11–12–09 Thursday Vol. 74 No. 217 Nov. 12, 2009

Pages 58189–58532

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Contents Federal Register Vol. 74, No. 217

Thursday, November 12, 2009

Agency for International Development Defense Department NOTICES RULES Senior Executive Service: Office of the Secretary of Defense and Joint Staff Privacy Membership of Performance Review Board, 58240 Program, 58205–58209

Agricultural Marketing Service Drug Enforcement Administration PROPOSED RULES NOTICES Kiwifruit Grown in California: Manufacturers of Controlled Substances; Registration, Recommended Decision and Opportunity to File Written 58313–58314 Exceptions to Proposed Amendments to Marketing Order (No. 920), 58216–58223 Education Department RULES Agriculture Department State Fiscal Stabilization Fund Program, 58436–58525 See Agricultural Marketing Service NOTICES See Forest Service Agency Information Collection Activities; Proposals, See Rural Business–Cooperative Service Submissions, and Approvals, 58259–58260 Proposed Priority; Capacity Building Program for Traditionally Underserved Populations: Centers for Disease Control and Prevention Technical Assistance for American Indian Vocational NOTICES Rehabilitation Services Projects, 58260–58262 Meetings: Advisory Committee to the Director; Ethics Election Assistance Commission Subcommittee, 58302 NOTICES State Plan Pursuant to Help America Vote Act, 58378– Civil Rights Commission 58433 NOTICES Meetings: Employment and Training Administration California Advisory Committee, 58240–58241 NOTICES Meetings; Sunshine Act, 58241 Adjustment Assistance; Applications, Determinations, etc.: Chrysler LLC; St. Louis South Assembly Division; Coast Guard Fenton, MO, 58314 RULES Adjustment Assistance; Applications, Determinations, etc.: Drawbridge Operation Regulations: Ecoquest Holdings Corp., Greeneville, TN, 58315 Hackensack River, Jersey City, NJ, Maintenance, 58209– Adjustment Assistance; Applications, Determinations, etc.: 58210 Chrysler LLC; St. Louis North Assembly Plant, Fenton, Victoria Barge Canal, Bloomington, TX, 58210–58211 MO, 58316 Safety Zones: Ford Motor Co., Dearborn, MI, 58314 Munitions and Explosives of Concern (MEC); Seal Island, JP Morgan Chase and Co., New York, NY, 58315 ME, 58211–58213 Victoria and Co. Ltd; Division of Jones Apparel Group; PROPOSED RULES Product Development Group; East Providence, RI, Vessel Traffic Service: 58315–58316 Lower Mississippi River, 58223–58231 Investigations Regarding Certifications of Eligibility to Apply for Worker Adjustment Assistance, 58316–58318 Commerce Department See International Trade Administration Energy Department See Minority Business Development Agency See Energy Information Administration See National Institute of Standards and Technology See Federal Energy Regulatory Commission See National Oceanic and Atmospheric Administration NOTICES NOTICES Environmental Impact Statements; Availability, etc.: Agency Information Collection Activities; Proposals, Construction and Startup of Mississippi Gasification, Submissions, and Approvals, 58241–58242 LLC, Industrial Gasification Facility, Moss Point, MS, 58262–58265 Commodity Futures Trading Commission Indiana Gasification, LLC, Industrial Gasification Facility, NOTICES Rockport, IN, 58265–58267 Determinations: Meetings: Whether Mid-C Financial Peak Contract et al., etc. Nuclear Energy Advisory Committee, 58267 Perform Significant Price Discovery Function, 58258– 58259 Energy Information Administration Whether Various SP–15 Financial Day-Ahead Contracts, NOTICES etc. Perform Significant Price Discovery Function, Agency Information Collection Activities; Proposals, 58259 Submissions, and Approvals, 58267–58268

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Environmental Protection Agency NOTICES NOTICES Guidance for Industry: Adequacy Status of Tennessee Portion: Registration and Product Listing for Owners and Bi-State Memphis Maintenance Plan 8-Hour Ozone Motor Operators of Domestic Tobacco Product Vehicle Emission Budgets, etc., 58277–58278 Establishments, 58298–58299 Amendment to Terminate Uses: Dimethyldithiocarbamate Salts, 58278–58279 Foreign Assets Control Office Certain New Chemicals: NOTICES Receipt and Status Information, 58279–58284 Unblocking of Specially Designated Nationals and Blocked Environmental Impact Statements; Availability, etc.: Persons Pursuant to Executive Order (13224), 58373 Availability of EPA comments, 58284 Meetings: Forest Service Science Advisory Board Risk and Technology Review NOTICES Methods Review Panel, 58285–58286 Environmental Impact Statements; Availability, etc.: SFIREG Full Committee, 58285 Helena National Forest, MT, Telegraph Vegetation Pesticide Registrations, 58286–58287 Project, 58239–58240 Receipt of Application for Emergency Exemption, Solicitation of Public Comment: General Services Administration Pseudomonas Fluorescens, 58287–58289 NOTICES Federal Management Regulation: Executive Office of the President Redesignations of Federal Buildings, 58292 See Presidential Documents Motor Vehicle Management: Cancellation of GSA Bulletin (FMR B–12), 58292–58293 Federal Aviation Administration RULES Health and Human Services Department Airworthiness Directives: See Centers for Disease Control and Prevention Empresa Brasileira de Aeronautica S.A. (EMBRAER) See Food and Drug Administration Model EMB–500 Airplanes, 58195–58200 See Health Resources and Services Administration Empresa Brasileira de Aeronautica S.A. (EMBRAER) See National Institutes of Health Model ERJ 170 and ERJ 190 Airplanes, 58191–58195 RULES Standard Instrument Approach Procedures, and Takeoff Implementation of OMB Guidance on Drug-Free Workplace Minimums and Obstacle Departure Procedures: Requirements, 58189–58191 Miscellaneous Amendments, 58200–58204 NOTICES NOTICES Meetings: Summary of Petitions Received: President’s Advisory Council for Faith-based and Petitions for Exemption, 58370 Neighborhood Partnerships, 58293 Waiver of Aeronautical Land-Use Assurance: Jefferson County Airpark, Steubenville, OH, 58370–58371 Health Resources and Services Administration NOTICES Federal Energy Regulatory Commission Meetings: NOTICES Advisory Commission on Childhood Vaccines, 58300 Applications: CenterPoint Energy Gas Transmission Co., 58268–58269 Homeland Security Department Tennessee Gas Pipeline Co., 58269 See Coast Guard Combined Notice of Filings, 58269–58277 See U.S. Citizenship and Immigration Services Filings: BJ Energy LLC; Franklin Power LLC; GLE Trading LLC et Housing and Urban Development Department al. v. PJM Interconnection, L.L.C., 58277 NOTICES Federal Highway Administration Funding Awards: NOTICES Indian Community Development Block Grant Recovery Environmental Impact Statements; Availability, etc.: Act Program, 58303–58305 Cameron County, TX, 58369–58370 Operating Cost Adjustment Factors (for 2010), 58305–58306 Requirements for Community Development Block Grant Federal Maritime Commission Program Funding Under the American Recovery and NOTICES Reinvestment Act of 2009: Agreements Filed, 58289–58290 Reallocations, 58306–58307 Applications: Leonardo Ortiz, 58290–58291 Indian Affairs Bureau Ocean Transportation Intermediary Licenses: NOTICES Applicants, 58291 Meetings: Revocations, 58291 Advisory Board for Exceptional Children, 58311–58312 Petitions for Exemption: Tribal Consultation on Draft Revisions (to 25 CFR Parts Hanjin Shipping Co. Ltd., 58291–58292 81 & 82), 58310–58311 Food and Drug Administration Interior Department RULES See Indian Affairs Bureau New Animal Drugs in Genetically Engineered Animals; CFR See Land Management Bureau Correction, 58205 See Reclamation Bureau

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Internal Revenue Service Endangered and Threatened Species: NOTICES Recovery Plan Preparation for the Threatened Southern Agency Information Collection Activities; Proposals, Distinct Population Segment of North American Submissions, and Approvals, 58371–58373 Green Sturgeon, 58245–58246 Fisheries of the Exclusive Economic Zone Off Alaska: International Trade Administration Recordkeeping and Reporting Requirements; Public NOTICES Workshops, 58248 Antidumping: Takes of Marine Mammals Incidental to Specified Chlorinated Isocyanurates from People’s Republic of Activities: China, 58242 Russian River Estuary Management Activities, 58248– Stainless Steel Butt Weld Pipe Fittings from Taiwan, 58258 58242–58243 National Science Foundation Justice Department NOTICES See Drug Enforcement Administration Meetings; Sunshine Act, 58318

Labor Department National Transportation Safety Board See Employment and Training Administration NOTICES See Veterans Employment and Training Service SES Performance Review Board, 58318 Land Management Bureau Nuclear Regulatory Commission NOTICES NOTICES Alaska Native Claims Selection, 58307–58310 Draft Regulatory Guides: Meetings: Preparation of Environmental Report; Exemption for State of Arizona Resource Advisory Council, 58311 Radionuclide Containing Product, 58318–58319 Realty Action: Environmental Impact Statements; Availability, etc.: Recreation and Public Purposes Act Classification of Pennsylvania State University; Penn State Breazeale Public Land, Clark County, NV, 58312–58313 Reactor, 58319–58322 Minority Business Development Agency Office of New Reactors; Final Interim Staff Guidance: NOTICES Review of Evaluation to Address Adverse Flow Effects in Extension of the Award Period for Certain Minority Equipment Other than Reactor Internals, 58323 Business Enterprise Centers, 58246–58248 Proposed Interim Staff Guidance: Gas Accumulation Issues in Safety Related Systems, National Highway Traffic Safety Administration 58323–58324 RULES Withdrawal of Regulatory Guide, 58324 Federal Motor Vehicle Safety Standards: Lamps, Reflective Devices, and Associated Equipment, Personnel Management Office 58213–58215 NOTICES Agency Information Collection Activities; Proposals, National Institute of Standards and Technology Submissions, and Approvals, 58324–58325 NOTICES Meetings: Presidential Documents Judges Panel of Malcolm Baldrige National Quality PROCLAMATIONS Award, 58248 Special Observances: Honoring the Victims of the Tragedy at Fort Hood, Texas National Institutes of Health (Proc. 8451), 58527–58529 NOTICES World Freedom Day (Proc. 8452), 58531–58532 Government-Owned Inventions; Availability for Licensing, 58293–58298 Reclamation Bureau Meetings: NOTICES Center for Scientific Review, 58299–58301 Environmental Impact Statements; Availability, etc.: Eunice Kennedy Shriver National Institute of Child Contra Loma Reservoir and Recreation Area, Antioch, Health and Human Development, 58301–58302 CA; Central Valley Project, 58310 National Cancer Institute, 58299 National Heart, Lung, and Blood Institute, 58300–58301 Rural Business–Cooperative Service National Institute of Allergy and Infectious Diseases, NOTICES 58302 Annual Renewal Fee for Fiscal Year 2010: Guarantee Fee Rates for Guaranteed Loans for Fiscal Year National Oceanic and Atmospheric Administration 2010, etc., 58239 PROPOSED RULES Fisheries of the Northeastern United States: Securities and Exchange Commission Atlantic Mackerel, Squid, and Butterfish Fisheries; RULES Specifications and Management Measures, 58234– Regulation S–AM: 58238 Limitations on Affiliate Marketing; Extension of NOTICES Compliance Date, 58204–58205 Applications: NOTICES Marine Mammals; File Nos. 14682, 10018, 13846, 14451, Applications: 14585, 14599, 14122, 14296, 14353, 58243–58245 FaithShares Trust, et al., 58325–58332

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Self-Regulatory Organizations; Proposed Rule Changes: Veterans Affairs Department Chicago Board Options Exchange, Inc., 58332–58334, PROPOSED RULES 58340–58341, 58354–58358 Claim-Related Documents or Supporting Evidence Not of Financial Industry Regulatory Authority, Inc., 58334– Record, 58232–58234 58340 NOTICES NASDAQ OMX BX, Inc, 58358–58360 Agency Information Collection Activities; Proposals, NASDAQ OMX PHLX, Inc., 58350–58351 Submissions, and Approvals, 58373–58375 New York Stock Exchange LLC, 58341–58345 NYSE Amex LLC, 58351–58354 Veterans Employment and Training Service NYSE Arca, Inc., 58345–58350 NOTICES State Department Meetings: Advisory Committee on Veterans Employment, Training NOTICES Bureau of Educational and Cultural Affairs (ECA) Request and Employer Outreach (ACVETEO), 58318 for Grant Proposals: Study of the U.S. Institutes for Student Leaders, 58360– 58367 Separate Parts In This Issue Surface Transportation Board NOTICES Part II Agency Information Collection Activities; Proposals, Election Assistance Commission, 58378–58433 Submissions, and Approvals, 58368–58369 Part III Transportation Department Education Department, 58436–58525 See Federal Aviation Administration See Federal Highway Administration Part IV See National Highway Traffic Safety Administration Presidential Documents, 58527–58529, 58531–58532 See Surface Transportation Board NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 58367–58368 Reader Aids Consult the Reader Aids section at the end of this page for Treasury Department phone numbers, online resources, finding aids, reminders, See Foreign Assets Control Office and notice of recently enacted public laws. See Internal Revenue Service To subscribe to the Federal Register Table of Contents U.S. Citizenship and Immigration Services LISTSERV electronic mailing list, go to http:// NOTICES listserv.access.gpo.gov and select Online mailing list Agency Information Collection Activities; Proposals, archives, FEDREGTOC-L, Join or leave the list (or change Submissions, and Approvals, 58302–58303 settings); then follow the instructions.

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CFR PARTS AFFECTED IN THIS ISSUE

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

2 CFR 382...... 58189 3 CFR Proclamations: 8451...... 58529 8452...... 58531 7 CFR Proposed Rules: 920...... 58216 14 CFR 39 (2 documents) ...... 58191, 58195 97 (2 documents) ...... 58200, 58202 17 CFR 248...... 58204 21 CFR 528...... 58205 32 CFR 311...... 58205 33 CFR 117 (3 documents) ...... 58209, 58210 165...... 58211 Proposed Rules: 161...... 58223 165...... 58223 34 CFR Chapter 2...... 58436 38 CFR Proposed Rules: 3...... 58232 45 CFR 82...... 58189 49 CFR 564...... 58213 571...... 58213 50 CFR Proposed Rules: 648...... 58234

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Rules and Regulations Federal Register Vol. 74, No. 217

Thursday, November 12, 2009

This section of the FEDERAL REGISTER 514–D Hubert H. Humphrey Building, total volume of drug-free workplace contains regulatory documents having general Washington, DC 20201. Please state ‘‘2 regulations. A second advantage is that applicability and legal effect, most of which CFR part 382’’ on the subject line. it co-locates OMB’s guidance and all of are keyed to and codified in the Code of FOR FURTHER INFORMATION CONTACT: the agencies’ implementing regulations Federal Regulations, which is published under in 2 CFR. 50 titles pursuant to 44 U.S.C. 1510. Nancy Weisman at (202) 260–4573, or e-mail her at [email protected]. The Current Regulatory Actions The Code of Federal Regulations is sold by SUPPLEMENTARY INFORMATION: the Superintendent of Documents. Prices of As the OMB guidance requires, HHS new books are listed in the first FEDERAL Background is taking two regulatory actions. First, REGISTER issue of each week. The Drug-Free Workplace Act of 1988 we are removing the drug-free [Pub. L. 100–690, Title V, Subtitle D; 41 workplace common rule from 45 CFR U.S.C. 701, et seq.] was enacted as a part part 82. Second, to replace the common DEPARTMENT OF HEALTH AND of omnibus drug legislation on rule, we are issuing a brief regulation in 2 CFR part 382 to adopt the HUMAN SERVICES November 18, 1988. Federal agencies Governmentwide policies and issued an interim final common rule to Office of the Secretary procedures in the OMB guidance. implement the act as it applied to grants 2 CFR Part 382 [54 FR 4946, January 31, 1989]. The rule Invitation To Comment was a subpart of the Governmentwide Taken together, these regulatory 45 CFR Part 82 common rule on nonprocurement actions are solely an administrative suspension and debarment. The simplification and are not intended to Implementation of OMB Guidance on agencies issued a final common rule make any substantive changes in Drug-Free Workplace Requirements after consideration of public comments policies or procedures. In soliciting [55 FR 21681, May 25, 1990]. comments on these actions, we therefore AGENCY: Department of Health and On November 26, 2003 [68 FR 66534], are not seeking to revisit substantive Human Services. the agencies updated the common rule issues that were resolved during the ACTION: Final rule. on drug-free workplace requirements development of the final common rule and converted it to plain language. Each in 2003. We are inviting comments SUMMARY: The Department of Health and agency at that time also relocated the Human Services (HHS or the specifically on any unintended changes drug-free workplace coverage to its own in substantive content that the new part Department) is removing its regulation CFR part and removed it from the implementing the Governmentwide in 2 CFR would make relative to the subpart in the suspension and common rule at 45 CFR part 82. common rule on drug-free workplace debarment common rule. requirements for financial assistance, When it established Title 2 of the CFR Administrative Procedure Act and issuing a new regulation to adopt as the new central location for OMB Under the Administrative Procedure Office of Management and Budget guidance and agency implementing Act (5 U.S.C. 553), agencies generally (OMB) guidance. This regulatory action regulations concerning grants and propose a regulation and offer interested implements the OMB’s initiative to agreements [69 FR 26276, May 11, parties the opportunity to comment streamline and consolidate into one title 2004], OMB announced its intention to before it becomes effective. However, as of the CFR all Federal regulations on replace common rules with OMB described in the ‘‘Background’’ section drug-free workplace requirements for guidance that agencies could adopt in of this preamble, the policies and financial assistance. These changes brief regulations. OMB began that procedures in this regulation have been constitute an administrative process by proposing [70 FR 51863, proposed for comment two times—one simplification that would make no August 31, 2005] and finalizing [71 FR time by Federal agencies as a common substantive change in HHS policy or 66431, November 15, 2006] rule in 2002 and a second time by OMB procedures for drug-free workplace. Governmentwide guidance on as guidance in 2008—and adopted each DATES: This final rule is effective on nonprocurement suspension and time after resolution of the comments January 11, 2010 without further action. debarment in 2 CFR part 180. received. Written comments must be received on As the next step in that process, OMB This direct final rule is solely an or before 5 p.m. (Eastern Standard Time) proposed for comment [73 FR 55776, administrative simplification that would on December 14, 2009 on any September 26, 2008] and finalized [74 make no substantive change in HHS unintended changes this action makes FR 28149, June 15, 2009] policy or procedures for drug-free in HHS policies and procedures for Governmentwide guidance with policies workplace. We therefore believe that the drug-free workplace. All comments on and procedures to implement drug-free rule is noncontroversial and do not unintended changes will be considered workplace requirements for financial expect to receive adverse comments, and, if warranted, HHS will revise the assistance. The guidance requires each although we are inviting comments on rule. agency to replace the common rule on any unintended substantive change this ADDRESSES: You may submit comments drug-free workplace requirements that rule makes. by either of the following methods: the agency previously issued in its own Accordingly, we find that the E-mail: [email protected], or by CFR title with a brief regulation in 2 solicitation of public comments on this mail: Nancy Weisman, HHS, Office of CFR adopting the Governmentwide direct final rule is unnecessary and that Grants Policy, Oversight and Evaluation, policies and procedures. One advantage ‘‘good cause’’ exists under 5 U.S.C. 200 Independence Ave., SW., Room of this approach is that it reduces the 553(b)(B) and 553(d) to make this rule

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effective on January 11, 2010 without Dated: November 2, 2009. § 382.10 What does this part do? further action, unless we receive Kathleen Sebelius, This part requires that the award and adverse comment by December 14, Secretary, Department of Health and Human administration of HHS grants and 2009. If any comment on unintended Services. cooperative agreements comply with changes is received, it will be ■ Accordingly, for the reasons set forth Office of Management and Budget considered and, if warranted, we will in the preamble, and under the publish a timely revision of the rule. (OMB) guidance implementing the authority of 5 U.S.C. 301, HHS amends portion of the Drug-Free Workplace Act the Code of Federal Regulations, Title 2, Executive Order 12866 of 1988 (41 U.S.C. 701–707, as Subtitle B, chapter III, and Title 45 CFR, OMB has determined this rule to be amended, hereafter referred to as ‘‘the chapter I, part 82, as follows: not significant for purposes of E.O. Act’’) that applies to grants. It thereby— 12866. Title 2—Grants and Agreements (a) Gives regulatory effect to the OMB Regulatory Flexibility Act of 1980 ■ 1. Add part 382 in Subtitle B, Chapter guidance (Subparts A through F of (5 U.S.C. 605(b)) III, to read as follows: 2 CFR part 182) for the HHS grants and Sec. This proposed regulatory action will cooperative agreements; and not have a significant adverse impact on PART 382—REQUIREMENTS FOR DRUG- (b) Establishes HHS policies and a substantial number of small entities. FREE WORKPLACE (FINANCIAL procedures for compliance with the Act ASSISTANCE) Unfunded Mandates Act of 1995 (Sec. that are the same as those of other 382.10 What does this part do? Federal agencies, in conformance with 202, Pub. L. 104–4) 382.20 Does this part apply to me? 382.30 What policies and procedures must the requirement in 41 U.S.C. 705 for This proposed regulatory action does Governmentwide implementing not contain a Federal mandate that will I follow? regulations. result in the expenditure by State, local, Subpart A—[Reserved] and tribal governments, in aggregate, or § 382.20 Does this part apply to me? by the private sector of $100 million or Subpart B—Requirements for more in any one year. This part and, through this part, Recipients Other Than Individuals pertinent portions of the OMB guidance Paperwork Reduction Act of 1995 in Subparts A through F of 2 CFR part (44 U.S.C., Chapter 35) § 382.225 Whom in HHS does a recipient other than an individual notify about a 182 (see table at 2 CFR 182.115(b)) This regulatory action will not impose criminal drug conviction? apply to you if you are a— any additional reporting or (a) Recipient of an HHS grant or recordkeeping requirements under the Subpart C—Requirements for cooperative agreement; or Paperwork Reduction Act. Recipients Who Are Individuals (b) HHS awarding official. Federalism (Executive Order 13132) § 382.300 Whom in HHS does a recipient This proposed regulatory action does who is an individual notify about a criminal § 382.30 What policies and procedures drug conviction? not have Federalism implications, as set must I follow? forth in Executive Order 13132. It will Subpart D—Responsibilities of Agency (a) General. You must follow the not have substantial direct effects on the Awarding Officials policies and procedures specified in States, on the relationship between the applicable sections of the OMB national government and the States, or § 382.400 What method do I use as an guidance in Subparts A through F of 2 on the distribution of power and agency awarding official to obtain a recipient’s agreement to comply with the CFR part 182, as implemented by this responsibilities among the various part. levels of government. OMB guidance? (b) Specific sections of OMB guidance List of Subjects Subpart E—Violations of This Part and that this part supplements. In Consequences 2 CFR Part 382 implementing the OMB guidance in 2 Administrative practice and § 382.500 Who in HHS determines that a CFR part 182, this part supplements procedure, Drug abuse, Grant programs, recipient other than an individual violated four sections of the guidance, as shown Reporting and recordkeeping the requirements of this part? in the following table. For each of those sections, you must follow the policies requirements. § 382.505 Who in HHS determines that a and procedures in the OMB guidance, as 45 CFR Part 82 recipient who is an individual violated the requirements of this part? supplemented by this part. Administrative practice and procedure, Drug abuse, Grant programs, Subpart F—[Reserved] Reporting and recordkeeping requirements. Authority: 41 U.S.C. 701–707.

Section of OMB Section in this part guidance where supplemented What the supplementation clarifies

(1) 2 CFR 182.225(a) .... § 382.225 ...... Whom in HHS a recipient other than an individual must notify if an employee is convicted for a violation of a criminal drug statute in the workplace. (2) 2 CFR 182.300(b) .... § 382.300 ...... Whom in HHS a recipient who is an individual must notify if he or she is convicted of a criminal drug offense resulting from a violation occurring during the conduct of any award activity. (3) 2 CFR 182.500 ...... § 382.500 ...... Who in HHS is authorized to determine that a recipient other than an individual is in viola- tion of the requirements of 2 CFR part 182, as implemented by this part.

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Section of OMB Section in this part guidance where supplemented What the supplementation clarifies

(4) 2 CFR 182.505 ...... § 382.505 ...... Who in HHS is authorized to determine that a recipient who is an individual is in violation of the requirements of 2 CFR part 182, as implemented by this part.

(c) Sections of the OMB guidance that Subpart E—Violations of This Part and cargo door opened without indication. In one this part does not supplement. For any Consequences of the events the aircraft took off with the section of OMB guidance in Subparts A cargo door opened. § 382.500 Who in HHS determines that a * * * * * through F of 2 CFR part 182 that is not recipient other than an individual violated listed in paragraph (b) of this section, The unsafe condition is a cargo door the requirements of this part? opening during flight, which could HHS policies and procedures are the The agency head is the official same as those in the OMB guidance. result in reduced structural integrity authorized to make the determination and consequent rapid decompression of under 2 CFR 182.500. Subpart A—[Reserved] the airplane. We are issuing this AD to § 382.505 Who in HHS determines that a require actions to correct the unsafe Subpart B—Requirements for recipient who is an individual violated the condition on these products. Recipients Other Than Individuals requirements of this part? DATES: This AD becomes effective The agency head is the official December 17, 2009. § 382.225 Whom in HHS does a recipient authorized to make the determination The Director of the Federal Register other than an individual notify about a under 2 CFR 182.505. approved the incorporation by reference criminal conviction? of certain publications listed in this AD Subpart F—(Reserved) as of December 17, 2009. A recipient other than an individual that is required under 2 CFR 182.225(a) Title 45—Public Welfare ADDRESSES: You may examine the AD to notify Federal agencies about an docket on the Internet at http:// CHAPTER I—DEPARTMENT OF HEALTH www.regulations.gov or in person at the employee’s conviction for a criminal AND HUMAN SERVICES U.S. Department of Transportation, drug offense must notify each HHS Docket Operations, M–30, West office from which it currently has an PART 82—[REMOVED] Building Ground Floor, Room W12–140, award. ■ 2. Under the authority of 5 U.S.C. 301, 1200 New Jersey Avenue SE., Subpart C—Requirements for remove part 82. Washington, DC. FOR FURTHER INFORMATION CONTACT: Recipients Who Are Individuals [FR Doc. E9–27024 Filed 11–10–09; 8:45 am] Kenny Kaulia, Aerospace Engineer, BILLING CODE 4151–AE–P § 382.300 Whom in HHS does a recipient International Branch, ANM–116, FAA, who is an individual notify about a criminal Transport Airplane Directorate, 1601 drug conviction? Lind Avenue SW., Renton, Washington DEPARTMENT OF TRANSPORTATION 98057–3356; telephone (425) 227–2848; A recipient who is an individual and fax (425) 227–1149. is required under 2 CFR 182.300(b) to Federal Aviation Administration SUPPLEMENTARY INFORMATION: notify Federal agencies about a conviction for a criminal drug offense 14 CFR Part 39 Discussion must notify each HHS office from which [Docket No. FAA–2009–0687; Directorate We issued a notice of proposed it currently has an award. Identifier 2009–NM–033–AD; Amendment rulemaking (NPRM) to amend 14 CFR 39–16080; AD 2009–23–08] part 39 to include an AD that would Subpart D—Responsibilities of Agency RIN 2120–AA64 apply to the specified products. That Awarding Officials NPRM was published in the Federal Airworthiness Directives; Empresa § 382.400 What method do I use as an Register on August 18, 2009 (74 FR Brasileira de Aerona´utica S.A. agency awarding official to obtain a 41642), and proposed to supersede AD recipient’s agreement to comply with the (EMBRAER) Model ERJ 170 and ERJ 2007–06–53, Amendment 39–15035 (72 OMB guidance? 190 Airplanes FR 21088, April 30, 2007). That NPRM proposed to correct an unsafe condition To obtain a recipient’s agreement to AGENCY: Federal Aviation Administration (FAA), Department of for the specified products. The MCAI comply with applicable requirements in states: the OMB guidance at 2 CFR part 182, Transportation (DOT). you must include the following term or ACTION: Final rule. It has been found the occurrence of two events of aircraft being dispatched with the condition in the award: SUMMARY: We are superseding an cargo door opened without indication. In one Drug-free workplace. You as the existing airworthiness directive (AD) for of the events the aircraft took off with the recipient must comply with drug-free the products listed above. This AD cargo door opened. workplace requirements in Subpart B results from mandatory continuing The unsafe condition is a cargo door (or Subpart C, if the recipient is an airworthiness information (MCAI) opening during flight, which could individual) of part 382, which adopts originated by an aviation authority of result in reduced structural integrity the Governmentwide implementation (2 another country to identify and correct and consequent rapid decompression of CFR part 182) of sec. 5152–5158 of the an unsafe condition on an aviation the airplane. Required actions include Drug-Free Workplace Act of 1988 (Pub. product. The MCAI describes the unsafe repetitive inspections of the forward L. 100–690, Title V, Subtitle D; 41 condition as: and aft cargo doors to detect signs of U.S.C. 701–707). It has been found the occurrence of two interference between the lock handle events of aircraft being dispatched with the and the aft edge liner assembly and

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reworking the assembly; a one-time charge for these costs. As we do not the Docket Operations office (telephone inspection for signs of damage of the control warranty coverage for affected (800) 647–5527) is in the ADDRESSES lateral roller fitting on the forward and parties, some parties may incur costs section. Comments will be available in aft cargo door frames at the fuselage and higher than estimated here. Based on the AD docket shortly after receipt. replacement of the roller if necessary, these figures, we estimate the cost of the List of Subjects in 14 CFR Part 39 and modification of the cargo door, AD on U.S. operators to be $2,569,690, which ends the repetitive inspections. or $17,722 per product. Air transportation, Aircraft, Aviation After accomplishing the modification, safety, Incorporation by reference, Authority for This Rulemaking the actions include incorporating Safety. Title 49 of the United States Code information into the maintenance Adoption of the Amendment program to include the operational specifies the FAA’s authority to issue (OPC) and functional (FNC) checks of rules on aviation safety. Subtitle I, ■ Accordingly, under the authority the forward and aft cargo doors and section 106, describes the authority of delegated to me by the Administrator, accomplishing repetitive OPC and FNC the FAA Administrator. ‘‘Subtitle VII: the FAA amends 14 CFR part 39 as checks. You may obtain further Aviation Programs,’’ describes in more follows: information by examining the MCAI in detail the scope of the Agency’s the AD docket. authority. PART 39—AIRWORTHINESS We are issuing this rulemaking under DIRECTIVES Comments the authority described in ‘‘Subtitle VII, ■ 1. The authority citation for part 39 We gave the public the opportunity to Part A, Subpart III, Section 44701: continues to read as follows: participate in developing this AD. We General requirements.’’ Under that received no comments on the NPRM or section, Congress charges the FAA with Authority: 49 U.S.C. 106(g), 40113, 44701. on the determination of the cost to the promoting safe flight of civil aircraft in § 39.13 [Amended] air commerce by prescribing regulations public. ■ for practices, methods, and procedures 2. The FAA amends § 39.13 by Conclusion the Administrator finds necessary for removing Amendment 39–15035 (72 FR We reviewed the available data and safety in air commerce. This regulation 21088, April 30, 2007) and adding the determined that air safety and the is within the scope of that authority following new AD: public interest require adopting the AD because it addresses an unsafe condition 2009–23–08 Empresa Brasileira de as proposed. that is likely to exist or develop on Aerona´utica S.A. (EMBRAER): Amendment 39–16080. Docket No. Differences Between This AD and the products identified in this rulemaking action. FAA–2009–0687; Directorate Identifier MCAI or Service Information 2009–NM–033–AD. We have reviewed the MCAI and Regulatory Findings Effective Date related service information and, in We determined that this AD will not (a) This airworthiness directive (AD) general, agree with their substance. But have federalism implications under becomes effective December 17, 2009. we might have found it necessary to use Executive Order 13132. This AD will different words from those in the MCAI not have a substantial direct effect on Affected ADs to ensure the AD is clear for U.S. the States, on the relationship between (b) This AD supersedes AD 2007–06–53, operators and is enforceable. In making the national government and the States, Amendment 39–15035. these changes, we do not intend to differ or on the distribution of power and Applicability substantively from the information responsibilities among the various (c) This AD applies to EMBRAER Model provided in the MCAI and related levels of government. ERJ 170–100 LR, –100 STD, –100 SE, –100 service information. For the reasons discussed above, I SU, –200 LR, –200 STD, and –200 SU We might also have required different certify this AD: airplanes; and ERJ 190–100 STD, –100 LR, actions in this AD from those in the 1. Is not a ‘‘significant regulatory –100 IGW, –200 LR, –200 STD, and –200 MCAI in order to follow our FAA action’’ under Executive Order 12866; IGW airplanes; certificated in any category. policies. Any such differences are 2. Is not a ‘‘significant rule’’ under the Subject highlighted in a Note within the AD. DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (d) Air Transport Association (ATA) of America Code 52: Doors. Costs of Compliance 3. Will not have a significant We estimate that this AD will affect economic impact, positive or negative, Reason about 145 products of U.S. registry. on a substantial number of small entities (e) The mandatory continuing The actions that are required by AD under the criteria of the Regulatory airworthiness information (MCAI) states: 2007–06–53 and retained in this AD Flexibility Act. It has been found the occurrence of two take about 1 work-hour per product, at We prepared a regulatory evaluation events of aircraft being dispatched with the an average labor rate of $80 per work of the estimated costs to comply with cargo door opened without indication. In one hour. Based on these figures, the this AD and placed it in the AD docket. of the events the aircraft took off with the estimated cost of the currently required cargo door opened. actions is $80 per product. Examining the AD Docket The unsafe condition is a cargo door We estimate that it would take about You may examine the AD docket on opening during flight, which could result in 7 work-hours per product to comply the Internet at http:// reduced structural integrity and consequent with the new basic requirements of this www.regulations.gov; or in person at the rapid decompression of the airplane. AD. The average labor rate is $80 per Docket Operations office between 9 a.m. Required actions include repetitive inspections of the forward and aft cargo work-hour. Required parts will cost and 5 p.m., Monday through Friday, doors to detect signs of interference between about $17,162 per product. Where the except Federal holidays. The AD docket the lock handle and the aft edge liner service information lists required parts contains the NPRM, the regulatory assembly and reworking the assembly; a one- costs that are covered under warranty, evaluation, any comments received, and time inspection for signs of damage of the we have assumed that there will be no other information. The street address for lateral roller fitting on the forward and aft

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cargo door frames at the fuselage and a new roller fitting having the same part specified in paragraphs (k)(2)(i), (k)(2)(ii), replacement of the roller if necessary, and number, in accordance with Embraer Alert and (k)(2)(iii) of this AD, in accordance with modification of the cargo door, which ends Service Bulletin 170–52–A036 or 190–52– the Accomplishment Instructions of Embraer the repetitive inspections. After A018, as applicable. Alert Service Bulletin 190–52–A018, accomplishing the modification, the actions (4) Actions done before May 7, 2007, in Revision 01, dated March 23, 2007. Repeat include incorporating information into the accordance with Embraer Alert Service the inspection specified in paragraph maintenance program to include the Bulletin 170–52–A036 or 190–52–A018, both (k)(2)(iii) of this AD at intervals not to exceed operational (OPC) and functional (FNC) dated March 12, 2007, are acceptable for 150 flight cycles until the terminating action checks of the forward and aft cargo doors and compliance with the corresponding specified in paragraph (k)(3) of this AD has accomplishing repetitive OPC and FNC requirements of this AD. been accomplished. checks. Note 1: For the purposes of this AD, a (i) Remove the roller fitting cover plate on the forward and aft cargo door frames. Compliance detailed inspection is: ‘‘An intensive examination of a specific item, installation, (ii) Perform a detailed inspection of the (f) Required as indicated, unless or assembly to detect damage, failure, or forward and aft cargo doors to detect signs of accomplished previously. irregularity. Available lighting is normally interference between the lock handle and the aft edge liner assembly. Then rework the aft Restatement of Requirements of AD 2007– supplemented with a direct source of good edge liner assembly at the applicable time 06–53, With New Service Information lighting at an intensity deemed appropriate. Inspection aids such as mirror, magnifying specified in paragraph (k)(2)(ii)(A) or Preflight Verification of Correct Door Closure lenses, etc., may be necessary. Surface (k)(2)(ii)(B) of this AD. (g) For Model ERJ 170–100 LR, –100 STD, cleaning and elaborate procedures may be (A) If any sign of interference is detected: –100 SE, –100 SU, –200 LR, –200 STD, and required.’’ Rework the assembly before further flight. (B) If no sign of interference is detected: –200 SU airplanes; and ERJ 190–100 STD, Note 2: Embraer Alert Service Bulletins –100 LR, and –100 IGW airplanes: As of 24 Rework the assembly within 150 flight cycles 170–52–A036 and 190–52–A018 refer to after the inspection. hours after May 7, 2007 (the effective date of Embraer Service Bulletins 170–50–0006 and AD 2007–06–53), before each flight after (iii) Perform a detailed inspection for signs 190–50–0006, respectively, as additional of damage of the lateral roller fitting on the closing the cargo doors, verify that the sources of guidance for the rework and roller forward and aft cargo doors are closed flush forward and aft cargo door frames at the fitting cover plate removal. Embraer Alert fuselage. If any damage is found, replace the with the fuselage skin, and that all 4 latched Service Bulletins 170–50–0006 and 190–50– and locked indicators at the bottom of each lateral roller fitting before further flight with 0006 are currently at Revision 01, dated a new roller fitting having the same part door are green. Persons qualified to do this March 13, 2007. verification are mechanics and flightcrew number, in accordance with Embraer Alert members. If it cannot be verified that both Repetitive Inspections for Damage Service Bulletin 190–52–A018, Revision 01, doors are closed flush with the fuselage skin, dated March 23, 2007. (i) For Model ERJ 170–100 LR, –100 STD, (3) For all airplanes: Within 5,000 flight and that all 4 latched and locked indicators –100 SE, –100 SU, –200 LR, –200 STD, and at the bottom of each door are green, repair cycles after the effective date of this AD, do –200 SU airplanes; and ERJ 190–100 STD, before further flight. Repeat the verification the actions specified in paragraphs (k)(3)(i) –100 LR, and –100 IGW airplanes: Repeat the before every flight until accomplishment of and (k)(3)(ii) of this AD on the forward and inspection specified in paragraph (h)(3) of the actions required by paragraph (h) of this aft cargo doors. Accomplishing the actions in this AD at intervals not to exceed 150 flight AD. this paragraph terminates the repetitive cycles until the terminating action specified inspections required by paragraphs (i) and Inspection for Interference and Damage in paragraph (k)(3) of this AD has been (k)(2) of this AD. (h) For Model ERJ 170–100 LR, –100 STD, accomplished. (i) Relocate the cargo door closed –100 SE, –100 SU, –200 LR, –200 STD, and Parts Installation indication sensor in accordance with the –200 SU airplanes; and ERJ 190–100 STD, Accomplishment Instructions of Embraer (j) For Model ERJ 170–100 LR, –100 STD, –100 LR, and –100 IGW airplanes: Within 10 Service Bulletin 170–52–0041, Revision 01, –100 SE, –100 SU, –200 LR, –200 STD, and days after May 7, 2007, do the actions dated June 13, 2008; or 190–52–0023, –200 SU airplanes; and ERJ 190–100 STD, specified in paragraphs (h)(1), (h)(2), and Revision 02, dated March 11, 2008; as –100 LR, and –100 IGW airplanes: As of (h)(3) of this AD, in accordance with the applicable. May 7, 2007, no person may install a roller Accomplishment Instructions of Embraer (ii) Modify the cargo door lock handle fitting cover plate on the forward and aft Alert Service Bulletin 170–52–A036 (for mechanism and replace the forward and aft cargo door frames on any airplane. Model ERJ 170 airplanes) or 190–52–A018 cargo door roller fittings having part number (for Model ERJ 190 airplanes), both dated New Requirements of This AD (P/N) 170–92569–401 and 170–85452–401 March 12, 2007; or Revision 01, both dated with new fittings having P/N 170–92569–403 March 23, 2007; as applicable. As of the Actions and Compliance and 170–85452–403, as applicable. Do the effective date of this AD, use Revision 01 of (k) Unless already done, do the following modification in accordance with the Embraer Alert Service Bulletin 170–52–A036 actions. Accomplishment Instructions of Embraer or 190–52–A018. (1) For Model ERJ 190–200 LR, –200 STD, Service Bulletins 170–52–0044, dated (1) Remove the roller fitting cover plate on and –200 IGW airplanes: As of 24 hours after January 18, 2008; or 190–52–0027, dated the forward and aft cargo door frames. the effective date of this AD, before each March 20, 2008; as applicable. (2) Perform a detailed inspection of the flight after closing the cargo doors, verify that (4) Actions done before the effective date forward and aft cargo doors to detect signs of the forward and aft cargo doors are closed of this AD in accordance with Embraer interference between the lock handle and the flush with the fuselage skin, and that all 4 Service Bulletin 170–52–0041, dated aft edge liner assembly. Then rework the aft latched and locked indicators at the bottom September 6, 2007; or 190–52–0023, dated edge liner assembly at the applicable time of each door are green. Persons qualified to September 6, 2007, or Revision 01, dated specified in paragraph (h)(2)(i) or (h)(2)(ii) of do this verification are mechanics and December 6, 2007; as applicable; are this AD. flightcrew members. If it cannot be verified acceptable for compliance with the (i) If any sign of interference is detected: that both doors are closed flush with the corresponding requirements of this AD. Rework the assembly before further flight. fuselage skin, and that all 4 latched and (5) Within 12 months after the effective (ii) If no sign of interference is detected: locked indicators at the bottom of each door date of this AD or 12 months after Rework the assembly within 150 flight cycles are green, repair before further flight. Repeat accomplishing the modification required by after the inspection. the verification before every flight until paragraph (k)(3) of this AD, whichever occurs (3) Perform a detailed inspection for signs accomplishment of the actions required by later: Incorporate information into the of damage of the lateral roller fitting on the paragraph (k)(2) of this AD. maintenance program to include the forward and aft cargo door frames at the (2) For Model ERJ 190–200 LR, –200 STD, operational (OPC) and functional (FNC) fuselage. If any damage is found, replace the and –200 IGW airplanes: Within 10 days after checks of the forward and aft cargo doors; in lateral roller fitting before further flight with the effective date of this AD, do the actions accordance with a method approved by the

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Manager, International Branch, ANM–116, after doing the actions required by paragraph Note 3: Guidance on the OPC and FNC Transport Airplane Directorate, FAA; or the (k)(3) of this AD, do the OPC and FNC checks checks specified in paragraph (k)(5) of this Ageˆncia Nacional de Aviac¸a˜o Civil (or its and repeat the checks thereafter at intervals AD can be found in the document specified delegated agent). Within 6,000 flight hours not to exceed 6,000 flight hours. in Table 1 of this AD, as applicable:

TABLE 1—OPC AND FNC GUIDANCE

Manual— Task— Date—

Embraer 170 Aircraft Maintenance Manual ...... 52–31–00–710–801–A/500 ...... July 15, 2008. 52–31–20–720–801–A/500 ...... July 15, 2008. 52–32–00–710–801–A/500 ...... July 15, 2008. 52–32–20–720–801–A/500 ...... July 15, 2008. Embraer 190 Aircraft Maintenance Manual ...... 52–31–00–710–801–A/500 ...... July 15, 2008. 52–31–20–720–801–A/500 ...... July 15, 2008. 52–32–00–710–801–A/500 ...... July 15, 2008. 52–32–20–720–801–A/500 ...... July 15, 2008.

Note 4: For the purposes of this AD, a Other FAA AD Provisions (2) Airworthy Product: For any requirement functional check (FNC) is: ‘‘A quantitative (l) The following provisions also apply to in this AD to obtain corrective actions from check to determine if one or more functions this AD: a manufacturer or other source, use these of an item perform within specified limits.’’ (1) Alternative Methods of Compliance actions if they are FAA-approved. Corrective Note 5: For the purposes of this AD, an (AMOCs): The Manager, International actions are considered FAA-approved if they operational check (OPC) is: ‘‘A task to Branch, FAA, has the authority to approve are approved by the State of Design Authority determine if an item is fulfilling its intended AMOCs for this AD, if requested using the (or their delegated agent). You are required purpose. Since it is a failure finding task, it procedures found in 14 CFR 39.19. Send to assure the product is airworthy before it does not require quantitative tolerances.’’ information to ATTN: Kenny Kaulia, is returned to service. Aerospace Engineer, International Branch, (3) Reporting Requirements: For any FAA AD Differences ANM–116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, reporting requirement in this AD, under the Note 6: This AD differs from the MCAI provisions of the Paperwork Reduction Act and/or service information as follows: Where Washington 98055–4056; telephone (425) (44 U.S.C. 3501 et seq.), the Office of the MCAI includes a compliance time of 227–2848; fax (425) 227–1149. Before using ‘‘after accomplishment of the modification’’ any approved AMOC on any airplane to Management and Budget (OMB) has for revising the maintenance program for which the AMOC applies, notify your approved the information collection Model ERJ–170 airplanes, we have principal maintenance inspector (PMI) or requirements and has assigned OMB Control determined that a compliance time of principal avionics inspector (PAI), as Number 2120–0056. ‘‘within 12 months after the effective date of appropriate, or lacking a principal inspector, the AD or within 12 months after your local Flight Standards District Office. Related Information accomplishment of the modification, The AMOC approval letter must specifically (m) Refer to Brazilian Airworthiness whichever occurs later’’ is appropriate. This reference this AD. AMOCs approved Directives 2007–03–01R1, dated June 9, 2008, compliance time is equivalent to the previously in accordance with AD 2007–06– and 2007–03–02R2, dated November 21, 53, are approved as AMOCs for the compliance time required for Model ERJ–190 2008; and the service information contained airplanes. The manufacturer and ANAC agree corresponding provisions of paragraph (i) of in Table 2 of this AD; for related information. with this compliance time. this AD.

TABLE 2—SERVICE INFORMATION

Service bulletin Revision Date

Embraer Alert Service Bulletin 170–52–A036 ...... 01 March 23, 2007. Embraer Alert Service Bulletin 190–52–A018 ...... 01 March 23, 2007. Embraer Service Bulletin 170-52-0041 ...... 01 June 13, 2008. Embraer Service Bulletin 170-52-0044 ...... 1 January 18, 2008. Embraer Service Bulletin 190-52-0023 ...... 02 March 11, 2008. Embraer Service Bulletin 190-52-0027 ...... 1 March 20, 2008. 1 Original.

Material Incorporated by Reference to do the actions required by this AD, unless (n) You must use the applicable service the AD specifies otherwise. information contained in Table 3 of this AD

TABLE 3—MATERIAL INCORPORATED BY REFERENCE

Service bulletin Revision Date

Embraer Alert Service Bulletin 170–52–A036 ...... 01 March 23, 2007. Embraer Alert Service Bulletin 190–52–A018 ...... 01 March 23, 2007. Embraer Service Bulletin 170–52–0041 ...... 01 June 13, 2008. Embraer Service Bulletin 170–52–0044 ...... 1 January 18, 2008. Embraer Service Bulletin 190–52–0023 ...... 02 March 11, 2008.

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TABLE 3—MATERIAL INCORPORATED BY REFERENCE—Continued

Service bulletin Revision Date

Embraer Service Bulletin 190–52–0027 ...... 1 March 20, 2008. 1 Original.

(1) For service information identified in It has been found the possibility of heating 5527) is in the ADDRESSES section. this AD, contact Empresa Brasileira de deactivation of Air Data System (ADS) Comments will be available in the AD Aeronautica S.A. (EMBRAER), Technical sensors due to its inadequate automatic logic, docket shortly after receipt. Publications Section (PC 060), Av. Brigadeiro when ADS/AOA knob is on AUTO position Faria Lima, 2170—Putim—12227–901 Sa˜o associated with the following messages: FOR FURTHER INFORMATION CONTACT: Karl Schletzbaum, Aerospace Engineer, FAA, Jose dos Campos—SP—Brasil; telephone: +55 —DC BUS 1 OFF displayed on Crew Alerting 12 3927–5852 or +55 12 3309–0732; fax: +55 System—CAS in conjunction with STBY Small Airplane Directorate, 901 Locust, 12 3927–7546; e-mail: HTR FAIL (which means loss of power on Room 301, Kansas City, Missouri 64106; [email protected]; Internet: http:// DC BUS 1); or telephone: (816) 329–4146; fax: (816) www.flyembraer.com. —EMER BUS OFF displayed on CAS (which 329–4090. (2) You may review copies of the service means loss of power on EMERGENCY SUPPLEMENTARY INFORMATION: information at the FAA, Transport Airplane BUS); or Directorate, 1601 Lind Avenue SW., Renton, —ELEC EMERGENCY displayed on CAS Discussion Washington. For information on the (which means Electrical Emergency). The AGEˆ NCIA NACIONAL DE availability of this material at the FAA, call ˜ 425–227–1221 or 425–227–1152. The loss of airplane air data sensors AVIAC¸AO CIVIL—BRAZIL, which is (3) You may also review copies of the heating may cause ice buildup on their the aviation authority for Brazil, has service information that is incorporated by surfaces, which in turn may cause wrong issued AD No.: 2009–10–01R1, dated reference at the National Archives and pressure acquisitions resulting in erroneous October 16, 2009 (referred to after this flight parameters indication to the flight Records Administration (NARA). For as ‘‘the MCAI’’), to correct an unsafe information on the availability of this crew. Since this condition may occur in other airplanes of the same type and affects flight condition for the specified products. material at NARA, call 202–741–6030, or go The MCAI states: to: http://www.archives.gov/federal_register/ safety, an immediate corrective action is code_of_federal_regulations/ required. Thus, sufficient reason exists to It has been found the possibility of heating ibr_locations.html. request compliance with this AD in the deactivation of Air Data System (ADS) indicated time limit. sensors due to its inadequate automatic logic, Issued in Renton, Washington, on This AD requires actions that are when ADS/AOA knob is on AUTO position October 26, 2009. associated with the following messages: Stephen P. Boyd, intended to address the unsafe condition described in the MCAI. —DC BUS 1 OFF displayed on Crew Alerting Acting Manager, Transport Airplane System—CAS in conjunction with STBY Directorate, Aircraft Certification Service. DATES: This AD becomes effective HTR FAIL (which means loss of power on [FR Doc. E9–26622 Filed 11–10–09; 8:45 am] December 2, 2009. DC BUS 1); or We must receive comments on this BILLING CODE 4910–13–P —EMER BUS OFF displayed on CAS (which AD by December 28, 2009. means loss of power on EMERGENCY ADDRESSES: You may send comments by BUS); or DEPARTMENT OF TRANSPORTATION any of the following methods: —ELEC EMERGENCY displayed on CAS • Federal eRulemaking Portal: Go to (which means Electrical Emergency). Federal Aviation Administration http://www.regulations.gov. Follow the The loss of airplane air data sensors instructions for submitting comments. heating may cause ice buildup on their • surfaces, which in turn may cause wrong 14 CFR Part 39 Fax: (202) 493–2251. pressure acquisitions resulting in erroneous • Mail: U.S. Department of [Docket No. FAA–2009–1039; Directorate flight parameters indication to the flight Identifier 2009–CE–059–AD; Amendment Transportation, Docket Operations, crew. Since this condition may occur in other 39–16085; AD 2009–23–11] M–30, West Building Ground Floor, airplanes of the same type and affects flight Room W12–140, 1200 New Jersey safety, an immediate corrective action is RIN 2120–AA64 Avenue, SE., Washington, DC 20590. required. Thus, sufficient reason exists to • Hand Delivery: U.S. Department of request compliance with this AD in the Airworthiness Directives; Empresa Transportation, Docket Operations, indicated time limit. Brasileira de Aeronautica S.A. M–30, West Building Ground Floor, This AD action requires inserting (EMBRAER) Model EMB–500 Airplanes Room W12–140, 1200 New Jersey information into the Abnormal AGENCY: Federal Aviation Avenue, SE., Washington, DC 20590, Procedures section of the FAA-approved Administration (FAA), DOT. between 9 a.m. and 5 p.m., Monday airplane flight manual (AFM). You may ACTION: Final rule; request for through Friday, except Federal holidays. obtain further information by examining the MCAI in the AD docket. comments. Examining the AD Docket SUMMARY: We are adopting a new You may examine the AD docket on FAA’s Determination and Requirements airworthiness directive (AD) for the the Internet at http:// of the AD products listed above. This AD results www.regulations.gov; or in person at the This product has been approved by from mandatory continuing Docket Management Facility between the aviation authority of another airworthiness information (MCAI) 9 a.m. and 5 p.m., Monday through country, and is approved for operation issued by the aviation authority of Friday, except Federal holidays. The AD in the United States. Pursuant to our another country to identify and correct docket contains this AD, the regulatory bilateral agreement with this State of an unsafe condition on an aviation evaluation, any comments received, and Design Authority, they have notified us product. The MCAI describes the unsafe other information. The street address for of the unsafe condition described in the condition as: the Docket Office (telephone (800) 647– MCAI and service information

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referenced above. We are issuing this We will post all comments we PART 39—AIRWORTHINESS AD because we evaluated all receive, without change, to http:// DIRECTIVES information provided by the State of www.regulations.gov, including any ■ Design Authority and determined the personal information you provide. We 1. The authority citation for part 39 unsafe condition exists and is likely to will also post a report summarizing each continues to read as follows: exist or develop on other products of the substantive verbal contact we receive Authority: 49 U.S.C. 106(g), 40113, 44701. same type design. about this AD. § 39.13 [Amended] Differences Between This AD and the Authority for This Rulemaking 2. The FAA amends § 39.13 by adding MCAI or Service Information Title 49 of the United States Code the following new AD: We have reviewed the MCAI and specifies the FAA’s authority to issue 2009–23–11 Empresa Brasileira de related service information and, in rules on aviation safety. Subtitle I, Aerona´utica S.A. (EMBRAER): general, agree with their substance. But section 106, describes the authority of Amendment 39–16085; Docket No. we might have found it necessary to use the FAA Administrator. ‘‘Subtitle VII: FAA–2009–1039; Directorate Identifier 2009–CE–059–AD. different words from those in the MCAI Aviation Programs,’’ describes in more to ensure the AD is clear for U.S. detail the scope of the Agency’s Effective Date operators and is enforceable. In making authority. (a) This airworthiness directive (AD) these changes, we do not intend to differ We are issuing this rulemaking under becomes effective December 2, 2009. substantively from the information the authority described in ‘‘Subtitle VII, Affected ADs provided in the MCAI and related Part A, Subpart III, Section 44701: (b) None. service information. General requirements.’’ Under that We might have also required different section, Congress charges the FAA with Applicability actions in this AD from those in the promoting safe flight of civil aircraft in (c) This AD applies to Model EMB–500 MCAI in order to follow FAA policies. air commerce by prescribing regulations airplanes, all serial numbers, certificated in Any such differences are described in a for practices, methods, and procedures any category. separate paragraph of the AD. These the Administrator finds necessary for Subject safety in air commerce. This regulation requirements take precedence over (d) Air Transport Association of America those copied from the MCAI. is within the scope of that authority (ATA) Code 30: Ice and Rain Protection. because it addresses an unsafe condition FAA’s Determination of the Effective that is likely to exist or develop on Reason Date products identified in this rulemaking (e) The mandatory continuing An unsafe condition exists that action. airworthiness information (MCAI) states: ‘‘It has been found the possibility of requires the immediate adoption of this Regulatory Findings AD. The FAA has found that the risk to heating deactivation of Air Data System We determined that this AD will not (ADS) sensors due to its inadequate the flying public justifies waiving notice automatic logic, when ADS/AOA knob is on and comment prior to adoption of this have federalism implications under Executive Order 13132. This AD will AUTO position associated with the following rule because the loss of airplane air data messages: not have a substantial direct effect on sensors heating may cause ice buildup —DC BUS 1 OFF displayed on Crew Alerting on their surface. This condition may the States, on the relationship between System—CAS in conjunction with STBY cause wrong pressure acquisitions, the national government and the States, HTR FAIL (which means loss of power on resulting in erroneous flight parameters or on the distribution of power and DC BUS 1); or indication to the flight crew. Therefore, responsibilities among the various —EMER BUS OFF displayed on CAS (which we determined that notice and levels of government. means loss of power on EMERGENCY opportunity for public comment before For the reasons discussed above, I BUS); or certify that this AD: —ELEC EMERGENCY displayed on CAS issuing this AD are impracticable and (which means Electrical Emergency). that good cause exists for making this (1) Is not a ‘‘significant regulatory action’’ under Executive Order 12866; The loss of airplane air data sensors amendment effective in fewer than 30 heating may cause ice buildup on their days. (2) Is not a ‘‘significant rule’’ under surfaces, which in turn may cause wrong DOT Regulatory Policies and Procedures Comments Invited pressure acquisitions resulting in erroneous (44 FR 11034, February 26, 1979); and flight parameters indication to the flight This AD is a final rule that involves (3) Will not have a significant crew. Since this condition may occur in other requirements affecting flight safety, and economic impact, positive or negative, airplanes of the same type and affects flight we did not precede it by notice and on a substantial number of small entities safety, an immediate corrective action is opportunity for public comment. We under the criteria of the Regulatory required. Thus, sufficient reason exists to Flexibility Act. request compliance with this AD in the invite you to send any written relevant indicated time limit.’’ data, views, or arguments about this AD. We prepared a regulatory evaluation This AD action requires inserting Send your comments to an address of the estimated costs to comply with information into the Abnormal Procedures listed under the ADDRESSES section. this AD and placed it in the AD docket. section of the FAA-approved airplane flight Include ‘‘Docket No. FAA–2009–1039; List of Subjects in 14 CFR Part 39 manual (AFM). Directorate Identifier 2009–CE–059– Actions and Compliance AD’’ at the beginning of your comments. Air transportation, Aircraft, Aviation We specifically invite comments on the safety, Safety. (f) Unless already done, before further overall regulatory, economic, flight, incorporate into the AFM the Adoption of the Amendment following procedures section revisions. You environmental, and energy aspects of may insert a copy of this AD into the ■ this AD. We will consider all comments Accordingly, under the authority appropriate sections of the AFM to comply received by the closing date and may delegated to me by the Administrator, with the requirements of this AD. amend this AD because of those the FAA amends 14 CFR part 39 as (1) Revise the AFM by replacing the comments. follows: ELECTRICAL EMERGENCY procedures in

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AFM section 4–08, Abnormal Procedures, pages 3 and 4, with Figure 1:

BILLING CODE 4910–13–P

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(2) Revise the AFM by replacing the DC Abnormal Procedures, pages 6 and 7, with BUS 1 OFF procedure in AFM section 4–08, Figure 2:

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(3) Revise the AFM by replacing the section 4–08, Abnormal Procedures, page 9, EMERGENCY BUS OFF procedure in AFM with Figure 3:

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FAA AD Differences to assure the product is airworthy before it DEPARTMENT OF TRANSPORTATION Note: This AD differs from the MCAI and/ is returned to service. or service information as follows: No (3) Reporting Requirements: For any 14 CFR Part 97 differences. reporting requirement in this AD, under the provisions of the Paperwork Reduction Act [Docket No. 30695; Amdt. No. 3347] Other FAA AD Provisions (44 U.S.C. 3501 et.seq.), the Office of (g) The following provisions also apply to Management and Budget (OMB) has Standard Instrument Approach this AD: approved the information collection Procedures, and Takeoff Minimums (1) Alternative Methods of Compliance requirements and has assigned OMB Control and Obstacle Departure Procedures; (AMOCs): The Manager, Standards Office, Number 2120–0056. Miscellaneous Amendments FAA, has the authority to approve AMOCs for this AD, if requested using the procedures Related Information AGENCY: Federal Aviation found in 14 CFR 39.19. Send information to (h) Refer to MCAI ANAC, AD No.: 2009– Administration (FAA), DOT. Attn: Karl Schletzbaum, Aerospace Engineer, ACTION: Final Rule. FAA, Small Airplane Directorate, 901 Locust, 10–01R1, dated October 16, 2009, for related information. Room 301, Kansas City, Missouri 64106; SUMMARY: This rule establishes, amends, telephone: (816) 329–4146; fax: (816) 329– Issued in Kansas City, Missouri on suspends, or revokes Standard 4090. Before using any approved AMOC on November 2, 2009. any airplane to which the AMOC applies, Instrument Approach Procedures notify your appropriate principal inspector Kim Smith, (SIAPs) and associated Takeoff (PI) in the FAA Flight Standards District Manager, Small Airplane Directorate, Aircraft Minimums and Obstacle Departure Office (FSDO), or lacking a PI, your local Certification Service. Procedures for operations at certain FSDO. [FR Doc. E9–26795 Filed 11–10–09; 8:45 am] airports. These regulatory actions are (2) Airworthy Product: For any requirement BILLING CODE 4910–13–C needed because of the adoption of new in this AD to obtain corrective actions from or revised criteria, or because of changes a manufacturer or other source, use these actions if they are FAA-approved. Corrective occurring in the National Airspace actions are considered FAA-approved if they System, such as the commissioning of are approved by the State of Design Authority new navigational facilities, adding new (or their delegated agent). You are required obstacles, or changing air traffic

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requirements. These changes are Regulations, Part 97 (14 CFR part 97) by where applicable, that good cause exists designed to provide safe and efficient amending the referenced SIAPs. The for making these SIAPs effective in less use of the navigable airspace and to complete regulatory description of each than 30 days. promote safe flight operations under SIAP is listed on the appropriate FAA Conclusion instrument flight rules at the affected Form 8260, as modified by the National airports. Flight Data Center (FDC)/Permanent The FAA has determined that this Notice to Airmen (P–NOTAM), and is DATES: This rule is effective November regulation only involves an established incorporated by reference in the 12, 2009. The compliance date for each body of technical regulations for which amendment under 5 U.S.C. 552(a), 1 SIAP, associated Takeoff Minimums, frequent and routine amendments are CFR part 51, and § 97.20 of Title 14 of and ODP is specified in the amendatory necessary to keep them operationally the Code of Federal Regulations. current. It, therefore—(1) is not a provisions. The large number of SIAPs, their The incorporation by reference of ‘‘significant regulatory action’’ under complex nature, and the need for a Executive Order 12866; (2) is not a certain publications listed in the special format make their verbatim regulations is approved by the Director ‘‘significant rule’’ under DOT regulatory publication in the Federal Register Policies and Procedures (44 FR 11034; of the Federal Register as of November expensive and impractical. Further, 12, 2009. February 26, 1979); and (3) does not airmen do not use the regulatory text of warrant preparation of a regulatory ADDRESSES: Availability of matter the SIAPs, but refer to their graphic evaluation as the anticipated impact is incorporated by reference in the depiction on charts printed by so minimal. For the same reason, the amendment is as follows: publishers of aeronautical materials. FAA certifies that this amendment will For Examination– Thus, the advantages of incorporation not have a significant economic impact 1. FAA Rules Docket, FAA by reference are realized and on a substantial number of small entities Headquarters Building, 800 publication of the complete description under the criteria of the Regulatory Independence Avenue, SW., of each SIAP contained in FAA form Flexibility Act. Washington, DC 20591; documents is unnecessary. This 2. The FAA Regional Office of the amendment provides the affected CFR List of Subjects in 14 CFR part 97: region in which the affected airport is sections and specifies the types of SIAP Air Traffic Control, Airports, located; and the corresponding effective dates. Incorporation by reference, and 3. The National Flight Procedures This amendment also identifies the Navigation (Air). Office, 6500 South MacArthur Blvd., airport and its location, the procedure Oklahoma City, OK 73169 or, and the amendment number. Issued in Washington, DC on Friday, 4. The National Archives and Records October 30, 2009. The Rule Administration (NARA). For John M. Allen, information on the availability of this This amendment to 14 CFR part 97 is Director, Flight Standards Service. effective upon publication of each material at NARA, call 202–741–6030, Adoption of the Amendment or go to: http://www.archives.gov/ separate SIAP as amended in the federal_register/ transmittal. For safety and timeliness of ■ Accordingly, pursuant to the authority code_of_federal_regulations/ change considerations, this amendment delegated to me, Title 14, Code of ibr_locations.html. incorporates only specific changes Federal regulations, Part 97, 14 CFR part Availability—All SIAPs are available contained for each SIAP as modified by 97, is amended by amending Standard online free of charge. Visit nfdc.faa.gov FDC/P–NOTAMs. Instrument Approach Procedures, to register. Additionally, individual The SIAPs, as modified by FDC P– effective at 0901 UTC on the dates SIAP and Takeoff Minimums and ODP NOTAM, and contained in this specified, as follows: copies may be obtained from: amendment are based on the criteria 1.FAA Public Inquiry Center (APA– contained in the U.S. Standard for PART 97—STANDARD INSTRUMENT 200), FAA Headquarters Building, 800 Terminal Instrument Procedures APPROACH PROCEDURES Independence Avenue, SW., (TERPS). In developing these changes to ■ Washington, DC 20591; or SIAPs, the TERPS criteria were applied 1. The authority citation for part 97 2.The FAA Regional Office of the only to specific conditions existing at continues to read as follows: region in which the affected airport is the affected airports. All SIAP Authority: 49 U.S.C. 106(g), 40103, 40106, located. amendments in this rule have been 40113, 40114, 40120, 44502, 44514, 44701, previously issued by the FAA in a FDC 44719, 44721–44722. FOR FURTHER INFORMATION CONTACT: NOTAM as an emergency action of ■ 2. Part 97 is amended to read as Harry J. Hodges, Flight Procedure immediate flight safety relating directly follows: Standards Branch (AFS–420) Flight to published aeronautical charts. The Technologies and Programs Division, circumstances which created the need By amending: § 97.23 VOR, VOR/ Flight Standards Service, Federal for all these SIAP amendments requires DME, VOR or TACAN, and VOR/DME Aviation Administration, Mike making them effective in less than 30 or TACAN; § 97.25 LOC, LOC/DME, Monroney Aeronautical Center, 6500 days. LDA, LDA/DME, SDF, SDF/DME; South MacArthur Blvd., Oklahoma City, Because of the close and immediate § 97.27 NDB, NDB/DME; § 97.29 ILS, OK. 73169 (Mail Address: P.O. Box relationship between these SIAPs and ILS/DME, MLS, MLS/DME, MLS/RNAV; 25082 Oklahoma City, OK. 73125) safety in air commerce, I find that notice § 97.31 RADAR SIAPs; § 97.33 RNAV telephone: (405) 954–4164. and public procedure before adopting SIAPs; and § 97.35 COPTER SIAPs, SUPPLEMENTARY INFORMATION: This rule these SIAPs are impracticable and Identified as follows: amends Title 14, Code of Federal contrary to the public interest and, * * * Effective Upon Publication

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AIRAC date State City Airport FDC No. FDC date Subject

17–Dec–09 MI DETROIT METROPOLI- DETROIT ...... 9/0505 10/23/09 ILS OR LOC Z RWY 22R, AMDT 2. TAN WAYNE COUNTY. 17–Dec–09 MI DETROIT METROPOLI- DETROIT ...... 9/0506 10/23/09 ILS PRM RWY 22R (SIMULTA- TAN WAYNE COUNTY. NEOUS CLOSE PARALLEL), ORIG. 17–Dec–09 MI DETROIT METROPOLI- DETROIT ...... 9/0507 10/23/09 ILS OR LOC Z RWY 4L, AMDT 3. TAN WAYNE COUNTY. 17–Dec–09 MI DETROIT METROPOLI- DETROIT ...... 9/0508 10/23/09 ILS PRM RWY 4L (SIMULTANEOUS TAN WAYNE COUNTY. CLOSE PARALLEL), ORIG. 17–Dec–09 NC ANDREWS–MURPHY .... ANDREWS ...... 9/1638 10/23/09 RNAV (GPS) RWY 8, ORIG. 17–Dec–09 TX DAVID WAYNE HOOKS HOUSTON ...... 9/1783 10/23/09 LOC RWY 17R, AMDT 1. MEMORIAL. 17–Dec–09 CT HURON ...... HURON REGIONAL ...... 9/2314 10/23/09 RNAV (GPS) RWY 30, AMDT 1. 17–Dec–09 AL MARION COUNTY– HAMILTON ...... 9/2958 10/23/09 RNAV (GPS) RWY 18, ORIG–A. RANKIN FITE. 17–Dec–09 AR MEMORIAL FIELD ...... HOT SPRINGS ...... 9/4462 10/23/09 VOR RWY 5, AMDT 4A. 17–Dec–09 TX DENTON ...... DENTON MUNI ...... 9/4809 10/23/09 NDB OR GPS RWY 17, AMDT 6C. 17–Dec–09 NH LEBANON ...... LEBANON MUNI ...... 9/4894 10/23/09 RNAV (GPS) RWY 7, ORIG. 17–Dec–09 ME WATERVILLE ROBERT WATERVILLE ...... 9/5104 10/21/09 RNAV (GPS) RWY 23, ORIG. LAFLEUR. 17–Dec–09 RI NORTH KINGSTOWN .... QUONSET STATE ...... 9/5393 10/21/09 RNAV (GPS) RWY 23, ORIG. 17–Dec–09 VA MARKS MUNI ...... CLARKSVILLE ...... 9/6483 10/9/09 GPS RWY 4, ORIG. 17–Dec–09 VA MARKS MUNI ...... CLARKSVILLE ...... 9/6484 10/16/09 RNAV (GPS) RWY 7, ORIG.

[FR Doc. E9–26976 Filed 11–10–09; 8:45 am] and ODP is specified in the amendatory FOR FURTHER INFORMATION CONTACT: BILLING CODE 4910–13–P provisions. Harry J. Hodges, Flight Procedure The incorporation by reference of Standards Branch (AFS–420), Flight certain publications listed in the Technologies and Programs Divisions, DEPARTMENT OF TRANSPORTATION regulations is approved by the Director Flight Standards Service, Federal of the Federal Register as of November Aviation Administration, Mike Federal Aviation Administration 12, 2009. Monroney Aeronautical Center, 6500 ADDRESSES: Availability of matters South MacArthur Blvd. Oklahoma City, 14 CFR Part 97 incorporated by reference in the OK. 73169 (Mail Address: P.O. Box amendment is as follows: 25082, Oklahoma City, OK 73125) [Docket No. 30694; Amdt. No 3346] For Examination— Telephone: (405) 954–4164. 1. FAA Rules Docket, FAA SUPPLEMENTARY INFORMATION: This rule Standard Instrument Approach Headquarters Building, 800 amends Title 14 of the Code of Federal Procedures, and Takeoff Minimums Independence Avenue, SW., Regulations, Part 97 (14 CFR part 97), by and Obstacle Departure Procedures; Washington, DC 20591; establishing, amending, suspending, or Miscellaneous Amendments 2. The FAA Regional Office of the revoking SIAPS, Takeoff Minimums AGENCY: Federal Aviation region in which the affected airport is and/or ODPS. The complete regulators Administration (FAA), DOT. located; description of each SIAP and its 3. The National Flight Procedures associated Takeoff Minimums or ODP ACTION: Final Rule. Office, 6500 South MacArthur Blvd., for an identified airport is listed on FAA Oklahoma City, OK 73169 or, form documents which are incorporated SUMMARY: This establishes, amends, 4. The National Archives and Records by reference in this amendment under 5 suspends, or revokes Standard Administration (NARA). For U.S.C. 552(a), 1 CFR part 51, and 14 Instrument Approach Procedures information on the availability of this CFR part 97.20. The applicable FAA (SIAPs) and associated Takeoff material at NARA, call 202–741–6030, Forms are FAA Forms 8260–3, 8260–4, Minimums and Obstacle Departure or go to: http://www.archives.gov/ 8260–5, 8260–15A, and 8260–15B when Procedures for operations at certain federal_register/ required by an entry on 8260–15A. airports. These regulatory actions are code_of_federal_regulations/ The large number of SIAPs, Takeoff needed because of the adoption of new ibr_locations.html. Minimums and ODPs, in addition to or revised criteria, or because of changes Availability—All SIAPs and Takeoff their complex nature and the need for occurring in the National Airspace Minimums and ODPs are available a special format make publication in the System, such as the commissioning of online free of charge. Visit http:// Federal Register expensive and new navigational facilities, adding new www.nfdc.faa.gov to register. impractical. Furthermore, airmen do not obstacles, or changing air traffic Additionally, individual SIAP and use the regulatory text of the SIAPs, requirements. These changes are Takeoff Minimums and ODP copies may Takeoff Minimums or ODPs, but instead designed to provide safe and efficient be obtained from: refer to their depiction on charts printed use of the navigable airspace and to 1. FAA Public Inquiry Center (APA– by publishers of aeronautical materials. promote safe flight operations under 200), FAA Headquarters Building, 800 The advantages of incorporation by instrument flight rules at the affected Independence Avenue, SW., reference are realized and publication of airports. Washington, DC 20591; or the complete description of ach SIAP, DATES: This rule is effective November 2. The FAA Regional Office of the Takeoff Minimums and ODP listed on 12, 2009. The compliance date for each region in which the affected airport is FAA forms is unnecessary. This SIAP, associated Takeoff Minimums, located. amendment provides the affected CFR

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sections and specifies the types of SIAPs List of Subjects in 14 CFR part 97: Havre, MT, Havre City-County, Takeoff and the effective dates of the, associated Minimums and Obstacle DP, Amdt 3 Air Traffic Control, Airports, Hudson, NY, Columbia County, GPS RWY 3, Takeoff Minimums and ODPs. This Incorporation by reference, and amendment also identifies the airport Amdt 1A, CANCELLED Navigation (Air). Hudson, NY, Columbia County, GPS RWY and its location, the procedure, and the 21, Orig-B, CANCELLED amendment number. John M. Allen, Hudson, NY, Columbia County, NDB–A, Director, Flight Standards Service. The Rule Amdt 4 Adoption of the Amendment Hudson, NY, Columbia County, RNAV (GPS) This amendment to 14 CFR part 97 is RWY 3, Orig effective upon publication of each ■ Accordingly, pursuant to the authority Hudson, NY, Columbia County, RNAV (GPS) separate SIAP, Takeoff Minimums and delegated to me, Title 14, Code of RWY 21, Orig ODP as contained in the transmittal. Federal Regulations, Part 97 (14 CFR Ogdensburg, NY, Ogdensburg Intl, Takeoff Some SIAP and Takeoff Minimums and Minimums and Obstacle DP, Amdt 1 part 97) is amended by establishing, Oklahoma City, OK, Clarence E Paige Muni, textual ODP amendments may have amending, suspending, or revoking RNAV (GPS) RWY 17R, Amdt 2 been issued previously by the FAA in a Standard Instrument Approach Oklahoma City, OK, Clarence E Paige Muni, Flight Data Center (FDC) Notice to Procedures and/or Takeoff Minimums RNAV (GPS) RWY 35L Amdt 2 Airmen (NOTAM) as an emergency and/or Obstacle Departure Procedures Oklahoma City, OK, Clarence E Paige Muni, action of immediate flight safety relating effective at 0902 UTC on the dates VOR–B, Amdt 3 directly to published aeronautical specified, as follows: Lancaster, PA, Lancaster, ILS OR LOC RWY charts. The circumstances which 8, Amdt 1 created the need for some SIAP and PART 97—STANDARD INSTRUMENT Lancaster, PA, Lancaster, RNAV (GPS) RWY 8, Amdt 2 Takeoff Minimums and ODP APPROACH PROCEDURES Lancaster, PA, Lancaster, Takeoff Minimums amendments may require making them ■ and Obstacle DP, Amdt 1 effective in less than 30 days. For the 1. The authority citation for part 97 continues to read as follows: Lancaster, PA, Lancaster, VOR RWY 8, Amdt remaining SIAPS and Takeoff 21 Minimums and ODPS, an effective date Authority: 49 U.S.C. 106(g), 40103, 40106, Lancaster, PA, Lancaster, VOR/DME RWY 8, at least 30 days after publication is 40113, 40114, 40120, 44502, 44514, 44701, Amdt 6 provided. 44719, 44721–44722. Selinsgrove, PA, Penn Valley, RNAV (GPS)- Further, the SIAPs and Takeoff ■ 2. Part 97 is amended to read as B, Orig-A, CANCELLED Minimums and ODPS contained in this follows: Selinsgrove, PA, Penn Valley, RNAV (GPS) RWY 17, Orig amendment are based on the criteria Effective 17 Dec 2009 Selinsgrove, PA, Penn Valley, Takeoff contained in the U.S. Standard for Galena, AK, Edward G. Pitka, Sr, ILS OR Minimums and Obstacle DP, Amdt 3 Terminal Instrument Procedures LOC/DME RWY 25, Amdt 1A, Selinsgrove, PA, Penn Valley, VOR–A, Amdt (TERPS). In developing these SIAPS and CANCELLED 7 Takeoff Minimums and ODPs, the Hope, AR, Hope Muni, NDB RWY 16, Amdt Lancaster, SC, Lancaster County-McWhirter TERPS criteria were applied to the 5 Field, NDB RWY 24, Amdt 5 conditions existing or anticipated at the Hope, AR, Hope Muni, Takeoff Minimums Lancaster, SC, Lancaster County-McWhirter affected airports. Because of the close and Obstacle DP, Orig Field, RNAV (GPS) RWY 6, Amdt 1 and immediate relationship between Twentynine Palms, CA, Twentynine Palms, Lancaster, SC, Lancaster County-McWhirter RNAV (GPS) RWY 26, Amdt 1A Field, RNAV (GPS) RWY 24, Amdt 1 these SIAPs, Takeoff Minimums and Savannah, GA, Savannah/Hilton Head Intl, Lancaster, SC, Lancaster County-McWhirter ODPs, and safety in air commerce, I find VOR/DME OR TACAN RWY 1, Orig-C Field, Takeoff Minimums and Obstacle DP, that notice and public procedures before Fort Dodge, IA, Fort Dodge Rgnl, ILS OR LOC Amdt 1 adopting these SIAPS, Takeoff RWY 6, Amdt 7 Lancaster, SC, Lancaster County-McWhirter Minimums and ODPs are impracticable Fort Dodge, IA, Fort Dodge Rgnl, RNAV Field, VOR/DME–A, Amdt 1 and contrary to the public interest and, (GPS) RWY 6, Amdt 1 Pickens, SC, Pickens County, Takeoff where applicable, that good cause exists Fort Dodge, IA, Fort Dodge Rgnl, RNAV Minimums and Obstacle DP, Orig for making some SIAPs effective in less (GPS) RWY 12, Amdt 1 Beaumont/Port Arthur, TX, Southeast Texas Fort Dodge, IA, Fort Dodge Rgnl, RNAV Rgnl, GPS RWY 12, Orig-A, CANCELLED than 30 days. (GPS) RWY 24, Amdt 1 Beaumont/Port Arthur, TX, Southeast Texas Conclusion Fort Dodge, IA, Fort Dodge Rgnl, RNAV Rgnl, GPS RWY 16, Orig-A, CANCELLED (GPG) RWY 30, Amdt 1 Beaumont/Port Arthur, TX, Southeast Texas The FAA has determined that this Fort Dodge, IA, Fort Dodge Rgnl, Takeoff and Rgnl, GPS RWY 30, Orig, CANCELLED regulation only involves an established Minimum Obstacle DP, Amdt 1 Beaumont/Port Arthur, TX, Southeast Texas body of technical regulations for which Red Oak, IA, Red Oak Muni, GPS RWY 5, Rgnl, GPS RWY 34, Orig-C, CANCELLED frequent and routine amendments are Orig, CANCELLED Beaumont/Port Arthur, TX, Southeast Texas necessary to keep them operationally Red Oak, IA, Red Oak Muni, GPS RWY 17, Rgnl, RNAV (GPS) RWY 12, Orig current. It, therefore—(1) is not a Orig, CANCELLED Beaumont/Port Arthur, TX, Southeast Texas ‘‘significant regulatory action’’ under Red Oak, IA, Red Oak Muni, RNAV (GPS) Rgnl, RNAV (GPS) RWY 16, Orig RWY 5, Orig Beaumont/Port Arthur, TX, Southeast Texas Executive Order 12866; (2) is not a Red Oak, IA, Red Oak Muni, RNAV (GPS) Rgnl, RNAV (GPS) RWY 30, Orig ‘‘significant rule’’ under DOT RWY 17, Orig Beaumont/Port Arthur, TX, Southeast Texas Regulatory Policies and Procedures (44 Mc Comb, MS, Mc Comb/Pike County/John Rgnl, RNAV (GPS) RWY 34, Orig FR 11034; February 26,1979); and E Lewis Field, ILS OR LOC RWY 15, Amdt Beaumont/Port Arthur, TX, Southeast Texas (3)does not warrant preparation of a 1 Rgnl, RADAR–1, Amdt 8, CANCELLED regulatory evaluation as the anticipated Havre, MT, Havre City-County, RNAV (GPS) Fort Hood/Killeen, TX, Robert Gray AAF, impact is so minimal. For the same RWY 8, Orig COPTER VOR RWY 33, Amdt 2 reason, the FAA certifies that this Havre, MT, Havre City-County, RNAV (GPS) Fort Hood/Killeen, TX, Robert Gray AAF, ILS RWY 26, Orig OR LOC RWY 15, Amdt 6 amendment will not have a significant Havre, MT, Havre City-County, VOR RWY 8, Fort Hood/Killeen, TX, Robert Gray AAF, ILS economic impact on a substantial Amdt 7 OR LOC RWY 33, Amdt 1 number of small entities under the Havre, MT, Havre City-County, VOR RWY Fort Hood/Killeen, TX, Robert Gray AAF, criteria of the Regulatory Flexibility Act. 26, Amdt 9 NDB RWY 15, Amdt 6

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Fort Hood/Killeen, TX, Robert Gray AAF, SECURITIES AND EXCHANGE marketing purposes, unless the RNAV (GPS) RWY 15, Amdt 1 COMMISSION consumer has been given notice and a Fort Hood/Killeen, TX, Robert Gray AAF, reasonable opportunity and a reasonable RNAV (GPS) RWY 33, Amdt 1 17 CFR Part 248 and simple method to opt out of such Fort Hood/Killeen, TX, Robert Gray AAF, solicitations. Regulation S–AM VOR–A, Amdt 2 [Release Nos. 34–60946; IA–2946; IC–28990; implements the requirements of Section Fort Hood/Killeen, TX, Robert Gray AAF, File No. S7–29–04] 624 with respect to investment advisers VOR/DME RWY 15, Amdt 3 RIN 3235–AJ24 Georgetown, TX, Georgetown Muni, GPS and transfer agents registered with the RWY 11, Orig, CANCELLED Regulation S–AM: Limitations on Commission, as well as brokers, dealers, Georgetown, TX, Georgetown Muni, GPS Affiliate Marketing; Extension of and investment companies (collectively RWY 18, Orig, CANCELLED Compliance Date ‘‘Covered Persons’’). The release Georgetown, TX, Georgetown Muni, GPS adopting Regulation S–AM established RWY 29, Orig, CANCELLED AGENCY: Securities and Exchange an effective date of September 10, 2009, Georgetown, TX, Georgetown Muni, GPS Commission. and a compliance date of January 1, RWY 36, Orig, CANCELLED ACTION: Final rule; extension of 2010.2 Georgetown, TX, Georgetown Muni, RNAV compliance date. (GPS) RWY 11, Orig Two associations representing Georgetown, TX, Georgetown Muni, RNAV SUMMARY: The Securities and Exchange institutions that are subject to (GPS) RWY 18, Orig Commission is extending the Regulation S–AM have expressed, on Georgetown, TX, Georgetown Muni, RNAV compliance date for Regulation S–AM behalf of their members, concerns (GPS) RWY 29, Orig (74 FR 40398 (Aug. 11, 2009)), which regarding the difficulties that their Georgetown, TX, Georgetown Muni, RNAV limits a person’s use of certain members are facing in complying with (GPS) RWY 36, Orig information received from an affiliate to the regulation.3 Specifically, the Georgetown, TX, Georgetown Muni, Takeoff solicit a consumer for marketing associations assert that the period for Minimums and Obstacle DP, Orig purposes unless the consumer has been compliance does not provide enough Killeen, TX, Skylark Field, ILS OR LOC RWY time to design, implement and test the 1, Amdt 3 given notice and a reasonable Killeen, TX, Skylark Field, RNAV (GPS) opportunity and a reasonable and system changes that will be necessary to RWY 1, Orig simple method to opt out of such accommodate, monitor and maintain Killeen, TX, Skylark Field, VOR–A, Amdt 4 solicitations. opt out requests. Lampasas, TX, Lampasas, RNAV (GPS) RWY DATES: The effective date for Regulation While we have some concerns about 34, Orig S–AM (17 CFR 248.101 through the effect of an extension in delaying the Lampasas, TX, Lampasas, VOR–A, Amdt 4 248.128) remains September 10, 2009. anticipated benefits of the regulation, Lampasas, TX, Lampasas, Takeoff Minimums The compliance date for Regulation S– the Commission is persuaded that a and Obstacle DP, Orig AM is extended from January 1, 2010 to limited extension of the compliance Llano, TX, Llano Muni, GPS RWY 17, Amdt 1, CANCELLED June 1, 2010. date for Regulation S–AM is Llano, TX, Llano Muni, GPS RWY 35, Amdt FOR FURTHER INFORMATION CONTACT: For appropriate. Our judgment is based on 1A, CANCELLED information regarding the regulation as the representations made by the Llano, TX, Llano Muni, RNAV (GPS) RWY it relates to brokers, dealers, or transfer associations (whose members are 17, Orig agents, contact Brice Prince, Special required to comply with the regulation Llano, TX, Llano Muni, RNAV (GPS) RWY Counsel, or Ignacio Sandoval, Attorney, and thus are in a position to assess the 35, Orig Office of Chief Counsel, Division of level of difficulty and time involved in Llano, TX, Llano Muni, Takeoff Minimums Trading and Markets, (202) 551–5550, or such compliance) and our experience in and Obstacle DP, Orig regarding the regulation as it relates to overseeing the industry. We also believe Odessa, TX, Odessa-Schlemeyer Field, investment companies or investment that the additional period for Takeoff Minimums and Obstacle DP, Amdt advisers, contact Penelope Saltzman, compliance would allow more Covered 2 Assistant Director, or Thoreau Persons to combine or coordinate Renton, WA, Renton Muni, NDB RWY 16, Bartmann, Senior Counsel, Office of notices required under Regulation S– Amdt 6 Renton, WA, Renton Muni, RNAV (GPS) Y Regulatory Policy, Division of AM with privacy notices required under RWY 16, Amdt 3 Investment Management, (202) 551– the Gramm-Leach-Bliley Act and Renton, WA, Renton Muni, RNAV (GPS) Z 6792, Securities and Exchange Regulation S–P, which is specifically RWY 16, Amdt 1 Commission, 100 F Street, NE., permitted under Section 624 of the Renton, WA, Renton Muni, Takeoff Washington, DC 20549. FCRA Act.4 Accordingly, the Minimums and Obstacle DP, Amdt 7 SUPPLEMENTARY INFORMATION: On August Commission believes it is appropriate to Wenatchee, WA, Pangborn Memorial, VOR/ 9, 2009, the Commission adopted extend the compliance date for DME–A, Amdt 8 Regulation S–AM to implement Section Regulation S–AM to June 1, 2010. The Wenatchee, WA, Pangborn Memorial, VOR/ 624 of the Fair Credit Reporting Act, as DME–C, Amdt 4 amended by Section 214 of the Fair and 2 Id. Wenatchee, WA, Pangborn Memorial, VOR Accurate Credit Transactions Act of 3 See Comment Letters from the Investment OR GPS–B, Amdt 4, CANCELLED 2003 (‘‘FACT Act’’).1 Section 624 Adviser Association (Sept. 24, 2009) and the Sheboygan, WI, Sheboygan County Investment Company Institute (Sept. 8, 2009). The Memorial, Takeoff Minimums and Obstacle required the Commission and other comment letters are available for public inspection DP, Amdt 1 federal agencies to adopt rules and copying in the Commission’s Public Reference Pinedale, WY, Pinedale/Ralph Wenz Field, implementing limitations on a person’s Room, 100 F Street, NE, Washington, DC 20549 on use of certain information received from official business days between the hours of 10 a.m. RNAV (GPS) RWY 11, Amdt 1 and 3 p.m. (File No. S7–29–04), and also are Pinedale, WY, Pinedale/Ralph Wenz Field, an affiliate to solicit a consumer for available on the Commission’s Internet Web site: RNAV (GPS) RWY 29, Amdt 1 http://www.sec.gov/rules/proposed/s72904.shtml). 1 Regulation S–AM: Limitations on Affiliate 4 See 15 U.S.C. 1681s-3(b). See also 15 U.S.C. [FR Doc. E9–26949 Filed 11–10–09; 8:45 am] Marketing, Securities Exchange Act Release No. 6801–6809 (Gramm-Leach-Bliley Act privacy BILLING CODE 4910–13–P 60423 (Aug. 9, 2009) [74 FR 40398 (Aug. 11, 2009)]. provisions); 17 CFR Part 248 (Regulation S–P).

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regulation’s effective date of September ACTION: Final rule; amendment. Public Law 96–511, ‘‘Paperwork 10, 2009 remains unchanged. Reduction Act’’ (44 U.S.C. Chapter 35) SUMMARY: On October 30, 2009 (74 FR The Commission finds that, for good It has been certified that 32 CFR part 56114), the Department of Defense cause and the reasons cited above, 311 does not impose reporting or published a final rule revising 32 CFR including the brief length of the recordkeeping requirements under the part 311 to update Office of the extension we are granting, notice and Paperwork Reduction Act of 1995. solicitation of comment regarding the Secretary of Defense (OSD) and Joint extension of the compliance date for Staff (JS) policy, assign responsibilities, Executive Order 13132, ‘‘Federalism’’ Regulation S–AM are impracticable, and prescribe procedures for the It has been certified that 32 CFR part unnecessary, or contrary to the public effective administration of the Privacy 311 does not have federalism interest.5 In this regard, the Commission Act (PA) Program in OSD and JS. In the implications, as set forth in Executive also notes that Covered Persons need to published rule, the section on Order 13132. This rule does not have be informed as soon as possible of the procedures for exemptions was substantial direct effects on: extension and its length in order to plan inadvertently dropped. This rule (1) The States; and adjust their implementation process amendment is being published to add (2) The relationship between the accordingly. this section back to 32 CFR part 311. National Government and the States; or By the Commission. DATES: Effective Date: This rule is (3) The distribution of power and Dated: November 5, 2009. effective November 30, 2009. responsibilities among the various levels of Government. Elizabeth M. Murphy, FOR FURTHER INFORMATION CONTACT: Secretary. Cindy Allard, 703–588–6830. List of Subjects in 32 CFR Part 311 [FR Doc. E9–27126 Filed 11–10–09; 8:45 am] SUPPLEMENTARY INFORMATION: Privacy Act. BILLING CODE 8011–01–P Executive Order 12866, ‘‘Regulatory ■ Accordingly, 32 CFR part 311 is Planning and Review’’ amended as follows: DEPARTMENT OF HEALTH AND It has been certified that 32 CFR part PART 311—[AMENDED] HUMAN SERVICES 311 does not: (1) Have an annual effect on the ■ 1. The authority citation for part 311 Food and Drug Administration economy of $100 million or more or continues to read as follows: adversely affect in a material way the Authority: 5 U.S.C. 552a. 21 CFR Part 528 economy; a section of the economy; ■ productivity; competition; jobs; the 2. Section 311.8 is added to read as New Animal Drugs in Genetically environment; public health or safety; or follows: Engineered Animals State, local, or tribunal governments or § 311.8 Procedures for exemptions. CFR Correction communities; (a) General information. The Secretary (2) Create a serious inconsistency or In Title 21 of the Code of Federal of Defense designates those Office of the otherwise interfere with an action taken Secretary of Defense (OSD) systems of Regulations, Parts 500–599, revised as of or planned by another Agency; April 1, 2009, on page 359, the heading records which will be exempt from (3) Materially alter the budgetary for part 528 is corrected to read ‘‘NEW certain provisions of the Privacy Act. impact of entitlements, grants, user fees, ANIMAL DRUGS IN GENETICALLY There are two types of exemptions, or loan programs, or the rights and ENGINEERED ANIMALS’’. general and specific. The general obligations of recipients thereof; or exemption authorizes the exemption of [FR Doc. E9–27305 Filed 11–10–09; 8:45 am] (4) Raise novel legal or policy issues a system of records from all but a few BILLING CODE 1505–01–D arising out of legal mandates, the requirements of the Act. The specific President’s priorities, or the principles exemption authorizes exemption of a set forth in this Executive Order 12866, system of records or portion thereof, DEPARTMENT OF DEFENSE as amended by Executive Order 13422. from only a few specific requirements. If an OSD Component originates a new Section 202, Public Law 104–4, Office of the Secretary system of records for which it proposes ‘‘Unfunded Mandates Reform Act’’ [DoD–2006–OS–0033; RIN 0790–AI26] an exemption, or if it proposes an It has been certified that 32 CFR part additional or new exemption for an 32 CFR Part 311 311 does not contain a Federal mandate existing system of records, it shall that may result in the expenditure by submit the recommended exemption Office of the Secretary of Defense and State, local and tribunal governments, in with the records system notice as Joint Staff Privacy Program aggregate, or by the private sector, of outlined in § 311.6. No exemption of a $100 million or more in any one year. system of records shall be considered AGENCY: Department of Defense. automatic for all records in the system. Public Law 96–354, ‘‘Regulatory The systems manager shall review each 5 See Section 553(b)(3)(B) of the Administrative Flexibility Act’’ (5 U.S.C. 601) Procedure Act (5 U.S.C. 553(b)(3)(B)) (‘‘APA’’) (an requested record and apply the agency may dispense with prior notice and It has been certified that 32 CFR part exemptions only when this will serve comment when it finds, for good cause, that notice 311 is not subject to the Regulatory significant and legitimate Government and comment are ‘‘impracticable, unnecessary, or contrary to the public interest). The change to the Flexibility Act (5 U.S.C. 601) because it purpose. compliance date is effective upon publication in the would not, if promulgated, have a (b) General exemptions. The general Federal Register. This date is less than 30 days after significant economic impact on a exemption provided by 5 U.S.C. publication in the Federal Register, in accordance substantial number of small entities. 552a(j)(2) may be invoked for protection with the APA, which allows effectiveness in less than 30 days after publication for ‘‘a substantive The rule implements the procedures for of systems of records maintained by law rule which grants or recognizes an exemption or the effective administration of the enforcement activities. Certain relieves a restriction.’’ See 5 U.S.C. 553(d)(1). Privacy Act Program in OSD and the JS. functional records of such activities are

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not subject to access provisions of the (iv) For subsections (c)(4) and (d) The individual may choose not to Privacy Act of 1974. Records identifying because notification would alert a provide information and the law criminal offenders and alleged offenders subject to the fact that an investigation enforcement process will rely upon consisting of identifying data and of that individual is taking place, and significant information about the subject notations of arrests, the type and might weaken the on-going from witnesses and informants. disposition of criminal charges, investigation, reveal investigatory (x) From subsection (e)(3) because sentencing, confinement, release, techniques, and place confidential supplying an individual with a form parole, and probation status of informants in jeopardy. containing a Privacy Act Statement individuals are protected from (v) From subsections (e)(4)(G) and (H) would tend to inhibit cooperation by disclosure. Other records and reports because this system of records is exempt many individuals involved in a criminal compiled during criminal from the access provisions of subsection investigation. The effect would be investigations, as well as any other (d) pursuant to subsection (j). somewhat inimical to established records developed at any stage of the (vi) From subsection (f) because the investigative methods and techniques. criminal law enforcement process from agency’s rules are inapplicable to those (xi) From subsection (e)(5) because arrest to indictment through the final portions of the system that are exempt the requirement that records be release from parole supervision are and would place the burden on the maintained with attention to accuracy, excluded from release. agency of either confirming or denying relevance, timeliness, and completeness (1) System identifier and name: the existence of a record pertaining to a would unfairly hamper the criminal DWHS P42.0, DPS Incident Reporting requesting individual might in itself investigative process. It is the nature of and Investigations Case Files. provide an answer to that individual criminal law enforcement for (i) Exemption. Portions of this system relating to an on-going criminal investigations to uncover the that fall within 5 U.S.C. 552a(j)(2) are investigation. The conduct of a commission of illegal acts at diverse successful investigation leading to the exempt from the following provisions of stages. It is frequently impossible to indictment of a criminal offender 5 U.S.C. 552a, Sections (c)(3) and (4); determine initially what information is precludes the applicability of (d)(1) through (d)(5); (e)(1) through accurate, relevant, timely, and least of established agency rules relating to (e)(3); (e)(5); (f)(1) through (f)(5); (g)(1) all complete. With the passage of time, verification of record, disclosure of the through (g)(5); and (h) of the Act. seemingly irrelevant or untimely (ii) Authority: 5 U.S.C. 552a(j)(2). record to that individual, and record information may acquire new significant (iii) Reason: The Defense Protective amendment procedures for this record as further investigation brings new Service is the law enforcement body for system. the jurisdiction of the Pentagon and (vii) For compatibility with the details to light. immediate environs. The nature of exemption claimed from subsection (f), (xii) From subsection (e)(8) because certain records created and maintained the civil remedies provisions of the notice requirements of this by the DPS requires exemption from subsection (g) must be suspended for provision could present a serious access provisions of the Privacy Act of this record system. Because of the impediment to criminal law 1974. The general exemption, 5 U.S.C. nature of criminal investigations, enforcement by revealing investigative 552a(j)(2), is invoked to protect ongoing standards of accuracy, relevance, techniques, procedures, and existence of investigations and to protect from access timeliness and completeness cannot confidential investigations. criminal investigation information apply to this record system. Information (c) Specific exemptions. All systems contained in this record system, so as gathered in criminal investigations is of records maintained by any OSD not to jeopardize any subsequent often fragmentary and leads relating to Component shall be exempt from the judicial or administrative process taken an individual in the context of one requirements of 5 U.S.C. 552a(d) as a result of information contained in investigation may instead pertain to a pursuant to subsection (k)(1) of that the file. second investigation. section to the extent that the system (2) System identifier and name: (viii) From subsection (e)(1) because contains any information properly JS006.CND, Department of Defense the nature of the criminal investigative classified under Executive Order 11265, Counternarcotics C4I System. function creates unique problems in ‘National Security Information,’ dated (i) Exemption: Portions of this system prescribing a specific parameter in a June 28, 552a(d) pursuant to subsection that fall within 5 U.S.C. 552a(j)(2) are particular case with respect to what (k)(1) of that section to the extent that exempt from the following provisions of information is relevant or necessary. the system contains any information 5 U.S.C. 552a, section (c) (3) and (4); Also, due to USSOUTHCOM’s close properly classified under E.O. 11265, (d)(1) through (d)(5); (e)(1) through liaison and working relationships with ‘National Security Information,’ dated (e)(3); (e)(4)(G) and (e)(4)(H); (e)(5); (f)(1) the other Federal, as well as state, local June 28, 1979, as amended, and required through (f)(5); (g)(1) through (g)(5) of the and foreign country law enforcement by the Executive Order to be kept Act. agencies, information may be received classified in the interest of national (ii) Authority: 5 U.S.C. 552a(j)(2). which may relate to a case under the defense or foreign policy. This (iii) Reason: From subsection (c)(3) investigative jurisdiction of another exemption, which may be applicable to because the release of accounting of agency. The maintenance of this parts of all systems of records, is disclosure would inform a subject that information may be necessary to necessary because certain record he or she is under investigation. This provide leads for appropriate law systems not otherwise specifically information would provide considerable enforcement purposes and to establish designated for exemptions may contain advantage to the subject in providing patterns of activity which may relate to isolated information which has been him or her with knowledge concerning the jurisdiction of other cooperating properly classified. The Secretary of the nature of the investigation and the agencies. Defense has designated the following coordinated investigative efforts and (ix) From subsection (e)(2) because OSD system of records described below techniques employed by the cooperating collecting information to the greatest specifically exempted from the agencies. This would greatly impede extent possible directly from the subject appropriate provisions of the Privacy USSOUTHCOM’s criminal law individual may or may not be Act pursuant to the designated authority enforcement. practicable in a criminal investigation. contained therein:

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(1) System identifier and name: DGC would require the disclosure of (iii) Reasons. These exemptions are 16, Political Appointment Vetting Files. investigatory material compiled solely necessary to protect the confidentiality (i) Exemption. Portions of this system for the purpose of determining access to of the records compiled for the purpose of records that fall within the provisions classified information, but only to the of: enforcement of the conflict of of 5 U.S.C. 552a(k)(5) may be exempt extent that the disclosure of such interest statutes by the Department of from the following subsections (d)(1) material would reveal the identity of a Defense Standards of Conduct through (d)(5). source who furnished information to the Counselor, General Counsel, or their (ii) Authority. 5 U.S.C. 552a(k)(5). Government under an expressed designees; and determining suitability, (iii) Reasons. From (d)(1) through promise that the identity of the source eligibility or qualifications for Federal (d)(5) because the agency is required to would be held in confidence, or prior to civilian employment, military service, protect the confidentiality of sources September 27, 1975, under an implied or Federal contracts of those alleged to who furnished information to the promise that the identity of the source have violated or caused others to violate Government under an expressed would be held in confidence. A the Standards of Conduct regulations of promise of confidentiality or, prior to determination will be made at the time the Department of Defense. September 27, 1975, under an implied of the request for a record concerning (5) System identifier and name: promise that the identity of the source whether specific information would DUSDP 02, Special Personnel Security would be held in confidence. This reveal the identity of a source. This Cases. confidentiality is needed to maintain exemption is required in order to (i) Exemption: All portions of this the Government’s continued access to protect the confidentiality of the sources system which fall under 5 U.S.C. information from persons who of information compiled for the purpose 552a(k)(5) are exempt from the otherwise might refuse to give it. This of determining access to classified following provisions of 5 U.S.C. 552a: exemption is limited to disclosures that information. This confidentiality helps (c)(3); (d). would reveal the identity of a maintain the Government’s continued (ii) Authority: 5 U.S.C. 552a(k)(5). (iii) Reasons: This system of records confidential source. access to information from persons who is exempt from subsections (c)(3) and (2) System identifier and name: would otherwise refuse to give it. (d) of 5 U.S.C. 552a which would DWHS P28, The Office of the Secretary (4) System identifier and name: of Defense Clearance File. require the disclosure of investigatory DWHS P32, Standards of Conduct material compiled solely for the purpose (i) Exemption. This system of records Inquiry File. is exempt from subsections (c)(3) and of determining access to classified (i) Exemption. This system of records (d) of 5 U.S.C. 552a, which would information, but only to the extent that is exempted from subsections (c)(3) and require the disclosure of investigatory the disclosure of such material would (d) of 5 U.S.C. 552a, which would material compiled solely for the purpose reveal the identity of a source who require the disclosure of: Investigatory of determining access to classified furnished information to the material compiled for law enforcement information but only to the extent that Government under an expressed purposes; or investigatory material disclosure of such material would reveal promise that the identity of the source compiled solely for the purpose of the identity of a source who furnished would be held in confidence or, prior to determining suitability, eligibility, or information to the Government under an September 27, 1975, under an implied qualifications for Federal civilian expressed promise that the identity of promise that the identity of the source employment, military service, or the source would be held in confidence would be held in confidence. A Federal contracts, but only to the extent or, prior to September 27, 1975, under determination will be made at the time that the disclosure of such material an implied promise that the identity of of the request for a record concerning would reveal the identity of a source the source would be held in confidence. whether specific information would who furnished information to the A determination will be made at the reveal the identity of a source. This Government under an express promise time of the request for a record exemption is required in order to or, prior to September 27, 1975, under concerning the specific information protect the confidentiality of the sources an implied promise that the identity of which would reveal the identity of the of information compiled for the purpose the source would be held in confidence. source. of determining access to classified (ii) Authority. 5 U.S.C. 552a(k)(5). If any individual is denied any right, information. This confidentiality helps (iii) Reasons. This exemption is privilege, or benefit that he would maintain the Government’s continued required to protect the confidentiality of otherwise be entitled by Federal law, or access to information from persons who the sources of information compiled for otherwise be eligible, as a result of the would otherwise refuse to give it. the purpose of determining access to maintenance of investigatory material (6) System identifier and name: classified information. This compiled for law enforcement purposes, DODDS 02.0, Educator Application confidentiality helps maintain the the material shall be provided to that Files. Government’s continued access to individual, except to the extent that its (i) Exemption. All portions of this information from persons who would disclosure would reveal the identity of system which fall within 5 U.S.C. otherwise refuse to give it. a source who furnished information to 552a(k)(5) may be exempt from the (3) System identifier and name: DGC the Government under an express following provisions of 5 U.S.C. 552a: 04, Industrial Personnel Security promise or, prior to September 27, 1975, (c)(3); (d). Clearance Case Files. under an implied promise that the (ii) Authority. 5 U.S.C. 552a(k)(5). (i) Exemption. All portions of this identity of the source would be held in (iii) Reasons. It is imperative that the system which fall under 5 U.S.C. confidence. At the time of the request confidential nature of evaluation and 552a(k)(5) are exempt from the for a record, a determination will be investigatory material on teacher following provisions of title 5 U.S.C. made concerning whether a right, application files furnished the 552a: (c)(3); (d). privilege, or benefit is denied or specific Department of Defense Dependent (ii) Authority. 5 U.S.C. 552a(k)(5). information would reveal the identity of Schools (DoDDS) under promises of (iii) Reasons. This system of records a source. confidentiality be exempt from is exempt from subsections (c)(3) and (ii) Authority. 5 U.S.C. 552a(k)(2) and disclosure to the individual to insure (d) of section 552a of 5 U.S.C. which (5). the candid presentation of information

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necessary to make determinations provisions of 5 U.S.C. 552a(k)(5) from (ii) Authority: 5 U.S.C. 552a(j)(2), involving applicants suitability for subsections 5 U.S.C. 552a(d)(1) through (k)(1), (k)(2), (k)(3), (k)(4), (k)(5), (k)(6), DoDDS teaching positions. (d)(5). and (k)(7). (7) System identifier and name: DGC (ii) Authority: 5 U.S.C. 552a(k)(5). (iii) Reasons: Records are only exempt 20, DoD Presidential Appointee Vetting (iii) Reasons: From subsections (d)(1) from pertinent provisions of 5 U.S.C. File. through (d)(5) because the agency is 552a to the extent such provisions have (i) Exemption: Investigatory material required to protect the confidentiality of been identified and an exemption compiled solely for the purpose of sources who furnished information to claimed for the original record and the determining suitability, eligibility, or the Government under an expressed purposes underlying the exemption for qualifications for federal civilian promise of confidentiality or, prior to the original record still pertain to the employment, military service, federal September 27, 1975, under an implied record which is now contained in this contracts, or access to classified promise that the identity of the source system of records. In general, the information may be exempt pursuant to would be held in confidence. This exemptions were claimed in order to 5 U.S.C. 552a(k)(5), but only to the confidentiality is needed to maintain protect properly classified information extent that such material would reveal the Government’s continued access to relating to national defense and foreign the identity of a confidential source. information from persons who policy, to avoid interference during the Portions of this system of records that otherwise might refuse to give it. This conduct of criminal, civil, or may be exempt pursuant to 5 U.S.C. exemption is limited to disclosures that administrative actions or investigations, 552a(k)(5) are subsections (d)(1) through would reveal the identity of a to ensure protective services provided (d)(5). confidential source. At the time of the the President and others are not (ii) Authority: 5 U.S.C. 552a(k)(5). request for a record, a determination compromised, to protect the identity of (iii) Reason: From (d)(1) through will be made concerning whether a confidential sources incident to Federal (d)(5) because the agency is required to right, privilege, or benefit is denied or employment, military service, contract, protect the confidentiality of sources specific information would reveal the and security clearance determinations, who furnished information to the identity of a source. to preserve the confidentiality and Government under an expressed (10) System identifier and name: integrity of Federal testing materials, promise of confidentiality or, prior to DFMP 26, Vietnamese Commando and to safeguard evaluation materials September 27, 1975, under an implied Compensation Files. used for military promotions when promise that the identity of the source (i) Exemption: Information classified furnished by a confidential source. The would be held in confidence. This under E.O. 12958, as implemented by exemption rule for the original records confidentiality is needed to maintain DoD 5200.1–R, may be exempt pursuant will identify the specific reasons why the Government’s continued access to to 5 U.S.C. 552a(k)(1). the records are exempt from specific information from persons who (ii) Authority: 5 U.S.C. 552a(k)(1). provisions of 5 U.S.C. 552a. otherwise might refuse to give it. (iii) Reasons: From subsection 5 (13) System identifier and name: (8) System identifier and name: U.S.C. 552a(d) because granting access DFOISR 10, Privacy Act Case Files. DWHS P29, Personnel Security to information that is properly classified (i) Exemption: During the processing Adjudications File. pursuant to E.O. 12958, as implemented of a Privacy Act request (which may (i) Exemption: Portions of this system by DoD 5200.1–R, may cause damage to include access requests, amendment of records that fall within the provisions the national security. requests, and requests for review for of 5 U.S.C. 552a(k)(5) may be exempt (11) System identifier and name: initial denials of such requests), exempt from the following subsections (d)(1) DUSP 11, POW/Missing Personnel materials from other systems of records through (d)(5). Office Files. may in turn become part of the case (ii) Authority: 5 U.S.C. 552a(k)(5). (i) Exemption: Information classified record in this system. To the extent that (iii) Reasons. From (d)(1) through under E.O. 12958, as implemented by copies of exempt records from those (d)(5) because the agency is required to DoD 5200.1–R, may be exempt pursuant ‘other’ systems of records are entered protect the confidentiality of sources to 5 U.S.C. 552a(k)(1). into this system, the Office of the who furnished information to the (ii) Authority: 5 U.S.C. 552a(k)(1). Secretary of Defense hereby claims the Government under an expressed (iii) Reasons: From subsection 5 same exemptions for the records from promise of confidentiality or, prior to U.S.C. 552a(d) because granting access those ‘other’ systems that are entered September 27, 1975, under an implied to information that is properly classified into this system, as claimed for the promise that the identity of the source pursuant to E.O. 12958, as implemented original primary system of which they would be held in confidence. This by DoD 5200.1–R, may cause damage to are a part. confidentiality is needed to maintain the national security. (ii) Authority: 5 U.S.C. 552a(j)(2), the Government’s continued access to (12) System identifier and name: (k)(1), (k)(2), (k)(3), (k)(4), (k)(5), (k)(6), information from persons who DFOISR 05, Freedom of Information Act and (k)(7). otherwise might refuse to give it. This Case Files. (iii) Records are only exempt from exemption is limited to disclosures that (i) Exemption: During the processing pertinent provisions of 5 U.S.C. 552a to would reveal the identity of a of a Freedom of Information Act request, the extent such provisions have been confidential source. At the time of the exempt materials from other systems of identified and an exemption claimed for request for a record, a determination records may in turn become part of the the original record and the purposes will be made concerning whether a case record in this system. To the extent underlying the exemption for the right, privilege, or benefit is denied or that copies of exempt records from those original record still pertain to the record specific information would reveal the ‘other’ systems of records are entered which is now contained in this system identity of a source. into this system, the Office of the of records. In general, the exemptions (9) System identifier and name: Secretary of Defense claims the same were claimed in order to protect JS004SECDIV, Joint Staff Security exemptions for the records from those properly classified information relating Clearance Files. ‘other’ systems that are entered into this to national defense and foreign policy, (i) Exemption: Portions of this system system, as claimed for the original to avoid interference during the conduct of records are exempt pursuant to the primary system of which they are a part. of criminal, civil, or administrative

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actions or investigations, to ensure eligibility, and qualification ACTION: Notice of temporary deviation protective services provided the determinations. from regulations. President and others are not (15) System identifier and name: compromised, to protect the identity of DCIFA 01, CIFA Operational and SUMMARY: The Commander, First Coast confidential sources incident to Federal Analytical Records. Guard District, has issued a temporary employment, military service, contract, (i) Exemptions: This system of records deviation from the regulation governing and security clearance determinations, is a compilation of information from the operation of the Witt Penn Bridge at to preserve the confidentiality and other Department of Defense and U.S. mile 3.1, across the Hackensack River, at integrity of Federal testing materials, Government systems of records. To the Jersey City, New Jersey. Under this and to safeguard evaluation materials extent that copies of exempt records temporary deviation a two-hour advance used for military promotions when from those ‘other’ systems of records are notice for bridge opening shall be furnished by a confidential source. The entered into this system, OSD hereby required at the Witt Penn Bridge to exemption rule for the original records claims the same exemptions for the facilitate bridge repairs. will identify the specific reasons why records from those ‘other’ systems that DATES: This deviation is effective from the records are exempt from specific are entered into this system, as claimed November 12, 2009 through November provisions of 5 U.S.C. 552a. for the original primary system of which 21, 2009. (14) System identifier and name: they are a part. ADDRESSES: Documents mentioned in DHRA 02, PERSEREC Research Files. (ii) Authority: 5 U.S.C. 552a(j)(2), this preamble as being available in the (i) Exemption: (A) Investigative (k)(1), (k)(2), (k)(3), (k)(4), (k)(5), (k)(6), docket are part of docket USCG–2009– material compiled solely for the purpose and (k)(7). 0952 and are available online at http:// of determining suitability, eligibility, or (iii) Records are only exempt from www.regulations.gov, inserting USCG– qualifications for federal civilian pertinent provisions of 5 U.S.C. 552a to 2009–0001 in the ‘‘Keyword’’ and then employment, military service, federal the extent (1) such provisions have been clicking ‘‘Search’’. They are also contracts, or access to classified identified and an exemption claimed for available for inspection or copying at information may be exempt pursuant to the original record and (2) the purposes the Docket Management Facility (M–30), 5 U.S.C. 552a(k)(5), but only to the underlying the exemption for the U.S. Department of Transportation, extent that such material would reveal original record still pertain to the record West Building Ground Floor, Room the identity of a confidential source. which is now contained in this system W12–140, 1200 New Jersey Avenue, SE., (B) Therefore, portions of this system of records. In general, the exemptions Washington, DC, 20590, between 9 a.m. may be exempt pursuant to 5 U.S.C. are claimed in order to protect properly and 5 p.m., Monday through Friday, 552a(k)(5) from the following classified information relating to except Federal holidays. subsections of 5 U.S.C. 552a(c)(3), (d), national defense and foreign policy, to FOR FURTHER INFORMATION CONTACT: If and (e)(1). avoid interference during the conduct of you have questions on this rule, call Mr. (ii) Authority: 5 U.S.C. 552a(k)(5). criminal, civil, or administrative actions Joe Arca, Project Officer, First Coast (iii) Reasons: (A) From subsection or investigations, to ensure protective Guard District, telephone (212) 668– (c)(3) and (d) when access to accounting services provided the President and 7165. If you have questions on viewing disclosures and access to or amendment others are not compromised, to protect the docket, call Renee V. Wright, of records would cause the identity of the identity of confidential sources Program Manager, Docket Operations, a confidential source to be revealed. incident to Federal employment, telephone 202–366–9826. military service, contract, and security Disclosure of the source’s identity not SUPPLEMENTARY INFORMATION: The Witt only will result in the Department clearance determinations, and to Penn Bridge, across the Hackensack breaching the promise of confidentiality preserve the confidentiality and River at mile 3.1 has a vertical clearance made to the source, but it will impair integrity of Federal evaluation materials. in the closed position of 35 feet at mean the Department’s future ability to The exemption rule for the original high water and 40 feet at mean low compile investigatory material for the records will identify the specific reasons water. The existing drawbridge purpose of determining suitability, why the records are exempt from operation regulations are listed at 33 eligibility, or qualifications for Federal specific provisions of 5 U.S.C. 552a. CFR 117.723. civilian employment, Federal contracts, Dated: November 6, 2009. The waterway has seasonal or access to classified information. Patricia L. Toppings, recreational vessels, and commercial Unless sources can be assured that a OSD Federal Register Liaison Officer, vessels of various sizes. promise of confidentiality will be Department of Defense. The owner of the bridge, New Jersey honored, they will be less likely to [FR Doc. E9–27148 Filed 11–10–09; 8:45 am] Department of Transportation, requested provide information considered BILLING CODE 5001–06–P a temporary deviation to facilitate the essential to the Department in making emergency replacement of the crash the required determinations. gates that stop vehicular traffic during (B) From (e)(1) because in the DEPARTMENT OF HOMELAND bridge openings. collection of information for SECURITY Under this temporary deviation the investigatory purposes, it is not always Witt Penn Bridge, mile 3.1, across the possible to determine the relevance and Coast Guard Hackensack River may require a two- necessity of particular information in hour advance notice for bridge openings the early stages of the investigation. In 33 CFR Part 117 from October 21, 2009 through some cases, it is only after the November 21, 2009. Vessels that can information is evaluated in light of other [Docket No. USCG–2009–0952] pass under the bridge without a bridge information that its relevance and Drawbridge Operation Regulations; opening may do so at all times. necessity becomes clear. Such Hackensack River, Jersey City, NJ, In accordance with 33 CFR 117.35(e), information permits more informed Maintenance the bridge must return to its regular decisionmaking by the Department operating schedule immediately at the when making required suitability, AGENCY: Coast Guard, DHS. end of the designated time period. This

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deviation from the operating regulations SUPPLEMENTARY INFORMATION: The SUMMARY: The Commander, Eighth is authorized under 33 CFR 117.35. Victoria County Navigation District has Coast Guard District, has issued a Dated: October 23, 2009. requested a temporary deviation from temporary deviation from the regulation Gary Kassof, the operating schedule of the UPRR governing the operation of the Union Vertical Lift Span Bridge across the Pacific Railroad (UPRR) Vertical Lift Bridge Program Manager, First Coast Guard District. Victoria Barge Canal, mile 29.4 at Span Bridge across the Victoria Barge Bloomington, Texas. The vertical lift Canal, mile 29.4 at Bloomington, [FR Doc. E9–27132 Filed 11–10–09; 8:45 am] bridge has a vertical clearance of 22 feet Victoria County, Texas. The deviation is BILLING CODE 4910–15–P above high water in the closed-to- necessary to allow for one phase of an navigation position and 50 feet above on-going maintenance project to replace DEPARTMENT OF HOMELAND high water in the open-to-navigation the lift span motors and brakes. This SECURITY position. deviation provides for the bridge to Presently, the bridge opens on signal remain closed to navigation for 12 Coast Guard for the passage of vessels. This deviation consecutive hours on November 23 and allows the draw span of the bridge to 24, 2009, from 7 a.m. to 7 p.m. each day. 33 CFR Part 117 remain closed to navigation for 12 DATES: This deviation is effective from consecutive hours between 7 a.m. and 7 [Docket Number USCG–2009–0940] 7 a.m. on Monday, November 23, 2009 p.m. each day on November 17 and 18, until 7 p.m. on Tuesday, November 24, Drawbridge Operating Regulations; 2009. Navigation on the waterway 2009. consists mainly of tugs with tows. Due Victoria Barge Canal, Bloomington, TX ADDRESSES: to prior experience and coordination Documents mentioned in this preamble as being available in the AGENCY: Coast Guard, DHS. with waterway users, it has been docket are part of docket USCG–2009– ACTION: determined that this closure will not Notice of temporary deviation 0960 and are available online by going from regulations. have a significant effect on these vessels. to http://www.regulations.gov, inserting SUMMARY: The Commander, Eighth The vertical lift bridge has a vertical USCG–2009–0960 in the ‘‘Keyword’’ Coast Guard District, has issued a clearance of 22 feet above high water in box and then clicking ‘‘Search.’’ They temporary deviation from the regulation the closed-to-navigation position and 50 are also available for inspection or governing the operation of the Union feet above high water in the open-to- copying at the Docket Management Pacific Railroad (UPRR) Vertical Lift navigation position. No alternate routes Facility (M–30), U.S. Department of Span Bridge across the Victoria Barge are available. The closures are necessary Transportation, West Building Ground Canal, mile 29.4 at Bloomington, to allow for replacement of the lift span Floor, Room W12–140, 1200 New Jersey Victoria County, Texas. The deviation is motors on the bridge. As this work is Avenue SE., Washington, DC 20590 necessary to allow for replacement of proposed during hurricane season, the between 9 a.m. and 5 p.m., Monday the lift span motors. This deviation work may be postponed and through Friday, except Federal holidays. provides for the bridge to remain closed rescheduled, should any tropical storms FOR FURTHER INFORMATION CONTACT: If to navigation for 12 consecutive hours or hurricanes enter or develop in the you have questions on this rule, call or on November 17 and 18, 2009, from 7 Gulf of Mexico. The Coast Guard has e-mail Phil Johnson, Bridge a.m. to 7 p.m. each day. coordinated the closures with the Administration Branch, Eighth Coast DATES: This deviation is effective from commercial users of the waterway. Guard District; telephone 504–671– 7 a.m. on Tuesday, November 17, 2009 In accordance with 33 CFR 117.35(e), 2128, e-mail [email protected]. until 7 p.m. on Wednesday, November the drawbridge must return to its regular If you have questions on viewing the 18, 2009. operating schedule immediately at the docket, call Renee V. Wright, Program ADDRESSES: Documents mentioned in end of the designated time period. This Manager, Docket Operations, telephone this preamble as being available in the deviation from the operating regulations 202–366–9826. docket are part of docket USCG–2009– is authorized under 33 CFR 117.35. SUPPLEMENTARY INFORMATION: The 0940 and are available online by going Dated: October 19, 2009. Victoria County Navigation District has to http://www.regulations.gov, inserting David M. Frank, requested a temporary deviation from USCG–2009–0940 in the ‘‘Keyword’’ Bridge Administrator. the operating schedule of the UPRR box and then clicking ‘‘Search.’’ They Vertical Lift Span Bridge across the [FR Doc. E9–27133 Filed 11–10–09; 8:45 am] are also available for inspection or Victoria Barge Canal, mile 29.4 at copying at the Docket Management BILLING CODE 4910–15–P Bloomington, Texas. The vertical lift Facility (M–30), U.S. Department of bridge has a vertical clearance of 22 feet Transportation, West Building Ground DEPARTMENT OF HOMELAND above high water in the closed-to- Floor, Room W12–140, 1200 New Jersey SECURITY navigation position and 50 feet above Avenue, SE., Washington, DC 20590 high water in the open-to-navigation between 9 a.m. and 5 p.m., Monday Coast Guard position. through Friday, except Federal holidays. Presently, the bridge opens on signal FOR FURTHER INFORMATION CONTACT: If 33 CFR Part 117 for the passage of vessels. This deviation you have questions on this rule, call or allows the draw span of the bridge to e-mail Phil Johnson, Bridge [Docket Number USCG–2009–0960] remain closed to navigation for 12 Administration Branch, Eighth Coast consecutive hours between 7 a.m. and 7 Guard District; telephone 504–671– Drawbridge Operating Regulations; p.m. each day on November 23 and 24, 2128, e-mail [email protected]. Victoria Barge Canal, Bloomington, TX 2009. Navigation on the waterway If you have questions on viewing the AGENCY: Coast Guard, DHS. consists mainly of tugs with tows. Due docket, call Renee V. Wright, Program to prior experience and coordination ACTION: Notice of temporary deviation Manager, Docket Operations, telephone with waterway users, it has been from regulations. 202–366–9826. determined that this closure will not

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have a significant effect on these DATES: This rule is effective November to the public interest.’’ Under 5 U.S.C. vessels. 12, 2009. 553(b)(B), the Coast Guard finds that The vertical lift bridge has a vertical ADDRESSES: Comments and material good cause exists for not publishing a clearance of 22 feet above high water in received from the public, as well as notice of proposed rulemaking (NPRM) the closed-to-navigation position and 50 documents mentioned in this preamble with respect to this rule because the feet above high water in the open-to- as being available in the docket, are part unexpected economic impacts on the navigation position. No alternate routes of docket USCG–2009–0595 and are fishing industry of the safety zone as are available. The closures are necessary available online by going to http:// expressed through the comments for one phase of an on-going www.regulations.gov, inserting USCG– received on the Interim Rule and the maintenance project to replace the lift 2009–0595 in the ‘‘Keyword’’ box, and concern expressed through the span motors and brakes on the bridge. then clicking ‘‘Search.’’ This material is congressional communication indicates As this work is proposed during also available for inspection or copying that it is in the public’s interest to hurricane season, the work may be at the Docket Management Facility (M– remove the safety zone regulation postponed and rescheduled, should any 30), U.S. Department of Transportation, promptly without providing notice and tropical storms or hurricanes enter or West Building Ground Floor, Room an opportunity to comment. Further, as develop in the Gulf of Mexico. The W12–140, 1200 New Jersey Avenue, SE., the Coast Guard has determined not to Coast Guard has coordinated the Washington, DC 20590, between 9 a.m. enforce the safety zone prior to a final closures with the commercial users of and 5 p.m., Monday through Friday, rule, it is impractical and unnecessary the waterway. except Federal holidays. to conduct a notice and comment section prior to issuing this final rule In accordance with 33 CFR 117.35(e), FOR FURTHER INFORMATION CONTACT: If the drawbridge must return to its regular removing the safety zone regulation. you have questions on this rule, call or Under 5 U.S.C. 553(d)(3), the Coast operating schedule immediately at the e-mail Lieutenant Laura VanDerPol, end of the designated time period. This Guard finds that good cause exists for Coast Guard Sector Northern New making this rule effective less than 30 deviation from the operating regulations England, Waterways Management is authorized under 33 CFR 117.35. days after publication in the Federal Division; telephone 207–741–5421, Register. This Final Rule removes the Dated: October 27, 2009. e-mail [email protected]. previously created Interim Rule David M. Frank, If you have questions on viewing the published in the Federal Register on Bridge Administrator. docket, call Renee V. Wright, Program September 8, 2009 (74 FR 46011), [FR Doc. E9–27134 Filed 11–10–09; 8:45 am] Manager, Docket Operations, telephone effectively cancelling the safety zone 202–366–9826. BILLING CODE 4910–15–P established around Seal Island. As this SUPPLEMENTARY INFORMATION: rule removes a regulation, the Coast Regulatory Information Guard finds that a delay in the effective DEPARTMENT OF HOMELAND date would be contrary to the public’s SECURITY On September 8, 2009, we published interest in removing the restrictions in an Interim Rule in the Federal Register the regulation as soon as practical. Coast Guard (74 FR 46011), which announced a Further, we have determined that a permanent safety zone around Seal delay in the effective date to allow for 33 CFR Part 165 Island, Maine from the shoreline out to public notification is unnecessary as the the 60 foot depth curve. We received regulation created by the Interim Rule is [Docket No. USCG–2009–0595] five comments as well as separate no longer being enforced. congressional communications on the RIN 1625–AA00 interim rule. A public meeting was Background and Purpose Safety Zone; Munitions and Explosives requested in two of the comments; those Seal Island is an uninhabited island of of Concern (MEC); Seal Island, ME comments were also opposed to the approximately 65 acres located to the interim rule; therefore, based upon this east of Matinicus Island off of the coast AGENCY: Coast Guard, DHS. action removing the interim rule the of Maine. Seal Island was used as an ACTION: Final rule; removal of interim Coast Guard does not now plan to hold aerial bombing and target range by the rule. a public hearing. United States Government until the late Due in part to the comments received 1960s. Seal Island was transferred to the SUMMARY: This document removes the and congressional inquiries, the Safety U.S. Department of Interior in 1972. In interim rule published on September 8, Zone created by the Interim Rule is the mid-1980s, Congress established the 2009 (74 FR 46011), which announced being removed by this Final Rule. The Formerly Used Defense Sites (FUDS) a permanent safety zone around Seal Coast Guard intends to pursue public Program to clean up properties formerly Island, Maine from the shoreline out to education about the MEC and conduct owned, leased, possessed or used by the the 60 foot depth curve. The September further analysis of both the risk to military services. Seal Island is 8, 2009 interim rule is being removed mariners and the economic impact of a designated a FUDS due to its prior because a comprehensive survey of safety zone around Seal Island. military use. The Department of Defense Munitions and Explosives of Concern The Coast Guard is issuing this final established the Military Munitions (MEC) in the area has not been rule without prior notice and Response Program (MMRP) to address completed therefore the Coast Guard is opportunity to comment pursuant to DOD sites suspected of containing unable to determine if the risk posed authority under section 4(a) of the Munitions and Explosives of Concern warrants permanent establishment of Administrative Procedure Act (APA) (5 (MEC). Under the MMRP, the U.S. Army the safety zone. Given the potential U.S.C. 553(b)). This provision Corps of Engineers is conducting negative economic impact of the safety authorizes an agency to issue a rule environmental response activities at zone created by the Interim Rule and the without prior notice and opportunity to designated FUDS locations. As part of limited reporting of MECs, this rule comment when the agency for good the environmental response activities of cancels the safety zone by removing it cause finds that those procedures are the MMRP, the U.S. Army Corps of as a regulation. ‘‘impracticable, unnecessary, or contrary Engineers is conducting site inspections

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of FUDS. A site inspection (SI) for Seal on the public. In recognition that some for the following reasons: The Coast Island was completed under the MMRP, risk remains, the Coast Guard may Guard is removing the safety zone Project No. D01ME003202. This site refocus efforts on public education of which covered a portion of the inspection is not a full scale study of the the existence of MEC on and around navigable waters around Seal Island, nature and extent of the MECs, rather it Seal Island and will encourage further thus, vessels may choose to operate in is limited to a terrestrial surface analysis and investigation of Seal Island these previously regulated waters. The inspection only for MEC along with to better understand the risks involved. result of this Final Rule is to reduce the samplings in the areas most likely to Discussion of Comments and Changes regulatory burden placed on the public. contain munitions constituents. The SI concluded that a Remedial Investigation Thus far the Coast Guard has received Small Entities and Feasibility Study be performed at five comments and two congressional Under the Regulatory Flexibility Act the site due to the past discovery of communications on this Interim Rule. (5 U.S.C. 601–612), we have considered munitions and explosives of concern as Four of the commenters stated that this whether this rule would have a well as the presence of munitions rule will cause significant financial significant economic impact on a constituents, particularly heavy metals. hardship for the lobstermen who make substantial number of small entities. Past MEC discoveries included an 8- a living fishing the waters around Seal The term ‘‘small entities’’ comprises inch live round artillery projectile and Island. One of the four commenters also small businesses, not-for-profit several 5-inch rocket warheads; stated that ‘‘he has fished Seal Island organizations that are independently additionally there was a report of an now for 35 years; my father fished it owned and operated and are not explosion(s) of MEC during a past before as well. He also lived on Seal dominant in their fields, and brush-fire on the island. The Remedial with my mother and several other governmental jurisdictions with Investigation and Feasibility Study has members of the family 1947–1950 and populations of less than 50,000. not been conducted, and given the in the 65 years since it was last used for The Coast Guard certifies under 5 remote location of Seal Island and the target practice, I know of no one ever U.S.C. 605(b) that this rule will not have control of the island by the U.S. Fish finding an [sic] munitions or a significant economic impact on a and Wildlife Service, who restricts explosives’’. A fifth commenter stated: substantial number of small entities. access, the additional study and ‘‘Someone should consider contacting This rule will affect the following investigation is unlikely to occur any the Navy if not already done so the entities, some of which may be small time soon. Navy can consider (stress consider) the entities: The owners or operators of A danger zone currently exists around proper course of action.’’ The Coast vessels intending to transit, fish, dive, or the island, but it is only to be enforced Guard has considered this course of anchor in a portion of the Gulf of Maine during times of active aerial bombing action and has made this around Seal Island. exercises, which no longer occur. The recommendation to the FUDS project This final rule will not have a regulation for the danger zone can be manager. The congressional significant economic impact on a found in 33 CFR 334.10. This Final Rule communications requested that the substantial number of small entities, as has no effect on the danger zone Coast Guard withdraw this rule due to it removes the previously created safety regulation. the fact that there is an unsubstantiated zone that excluded these small entities In addition to Seal Island being a level of risk to the mariners and larger from a portion of the navigable waters FUDS and the discovery of MEC on the than expected economic impact on local around Seal Island. As this rule removes island, in the summer of 2009 a private fishermen. Removing this interim rule the restriction, it will not have a citizen diving near the island’s shore addresses the concerns raised through significant effect on the small entities. reported observing multiple munitions the congressional communications. The on the sea floor. The type, number, and Coast Guard intends to pursue public Assistance for Small Entities condition of munitions are unknown; education while encouraging other however, that information along with Under section 213(a) of the Small government agencies to conduct Business Regulatory Enforcement concerns about the presence of MEC on additional study and analysis of both the island led the Coast Guard to Fairness Act of 1996 (Pub. L. 104–121), the risk to mariners and the economic we offer to assist small entities in establish a safety zone for all of the impact of a safety zone. navigable waters surrounding Seal understanding the rule so that they can Island out to the 60 foot depth curve. Regulatory Analyses better evaluate its effects on them and The Coast Guard was concerned that We developed this rule after participate in the rulemaking process. anchoring, fishing, trawling, diving or considering numerous statutes and Small businesses may send comments any other activity that could disturb the executive orders related to rulemaking. on the actions of Federal employees ocean floor might result in injury from Below we summarize our analyses who enforce, or otherwise determine MEC in the area. Following publication based on 13 of these statutes or compliance with, Federal regulations to of the Interim Rule on September 8, executive orders. the Small Business and Agriculture 2009, which created the safety zone, Regulatory Enforcement Ombudsman comments were received from area Regulatory Planning and Review and the Regional Small Business commercial fishermen expressing This rule is not a significant Regulatory Fairness Boards. The concern over the considerable negative regulatory action under section 3(f) of Ombudsman evaluates these actions economic impact that this rule would Executive Order 12866, Regulatory annually and rates each agency’s have on them. Moreover, commercial Planning and Review, and does not responsiveness to small business. If you fishermen expressed concern that the require an assessment of potential costs wish to comment on actions by rule did not consider the fact they have and benefits under section 6(a)(3) of that employees of the Coast Guard, call 1– not experienced any MEC. Order. The Office of Management and 888–REG–FAIR (1–888–734–3247). The The purpose of this Final Rule is to Budget has not reviewed it under that Coast Guard will not retaliate against remove the Safety Zone around Seal Order. small entities that question or complain Island that was created by the Interim The Coast Guard determined that this about this rule or any policy or action Rule, thereby removing the restrictions rule is not a significant regulatory action of the Coast Guard.

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Collection of Information responsibilities between the Federal List of Subjects in 33 CFR Part 165 Government and Indian tribes. This rule calls for no new collection Harbors, Marine safety, Navigation of information under the Paperwork Energy Effects (water), Reporting and recordkeeping Reduction Act of 1995 (44 U.S.C. 3501– requirements, Security measures, and 3520). We have analyzed this rule under Waterways. Executive Order 13211, Actions ■ Federalism Concerning Regulations That For the reasons discussed in the Significantly Affect Energy Supply, preamble, the Coast Guard amends 33 A rule has implications for federalism CFR part 165 as follows: under Executive Order 13132, Distribution, or Use. We have Federalism, if it has a substantial direct determined that it is not a ‘‘significant PART 165— REGULATED effect on State or local governments and energy action’’ under that order because NAVIGATION AREAS AND LIMITED would either preempt State law or it is not a ‘‘significant regulatory action’’ ACCESS AREAS under Executive Order 12866 and is not impose a substantial direct cost of ■ compliance on them. We have analyzed likely to have a significant adverse effect 1. The authority citation for part 165 this rule under that Order and have on the supply, distribution, or use of continues to read as follows: determined that it does not have energy. The Administrator of the Office Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. implications for federalism. of Information and Regulatory Affairs 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR has not designated it as a significant 1.05–1, 6.04–1, 6.04–6, 160.5; Public Law Unfunded Mandates Reform Act energy action. Therefore, it does not 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. The Unfunded Mandates Reform Act require a Statement of Energy Effects of 1995 (2 U.S.C. 1531–1538) requires under Executive Order 13211. § 165.180 [Removed]. Federal agencies to assess the effects of Technical Standards ■ 2. Remove § 165.180. their discretionary regulatory actions. In particular, the Act addresses actions The National Technology Transfer Dated: October 27, 2009. that may result in the expenditure by a and Advancement Act (NTTAA) (15 J.B. McPherson, State, local, or tribal government, in the U.S.C. 272 note) directs agencies to use Captain, U.S. Coast Guard, Captain of the aggregate, or by the private sector of voluntary consensus standards in their Port Sector Northern New England. $100,000,000 or more in any one year. regulatory activities unless the agency [FR Doc. E9–27131 Filed 11–10–09; 8:45 am] Though this rule will not result in such provides Congress, through the Office of BILLING CODE 4910–15–P an expenditure, we do discuss the Management and Budget, with an effects of this rule elsewhere in this explanation of why using these preamble. standards would be inconsistent with DEPARTMENT OF TRANSPORTATION applicable law or otherwise impractical. Taking of Private Property Voluntary consensus standards are National Highway Traffic Safety This rule will not effect a taking of technical standards (e.g., specifications Administration private property or otherwise have of materials, performance, design, or taking implications under Executive operation; test methods; sampling 49 CFR Parts 564 and 571 procedures; and related management Order 12630, Governmental Actions and [Docket No. NHTSA–2007–28322; Notice 3] Interference with Constitutionally systems practices) that are developed or Protected Property Rights. adopted by voluntary consensus RIN 2127–AK66 standards bodies. Civil Justice Reform This rule does not use technical Federal Motor Vehicle Safety This rule meets applicable standards standards. Therefore, we did not Standards; Lamps, Reflective Devices, in sections 3(a) and 3(b)(2) of Executive consider the use of voluntary consensus and Associated Equipment Order 12988, Civil Justice Reform, to standards. AGENCY: National Highway Traffic minimize litigation, eliminate Environment Safety Administration (NHTSA), DOT. ambiguity, and reduce burden. ACTION: Final rule; delay of effective We have analyzed this rule under date. Protection of Children Department of Homeland Security We have analyzed this rule under Management Directive 023–01 and SUMMARY: This final rule delays the Executive Order 13045, Protection of Commandant Instruction M16475.lD, effective date of a final rule that Children from Environmental Health which guide the Coast Guard in reorganized and improved the structure Risks and Safety Risks. This rule is not complying with the National and clarity of the Federal motor vehicle an economically significant rule and Environmental Policy Act of 1969 safety standard on lamps, reflective does not create an environmental risk to (NEPA) (42 U.S.C. 4321–4370f), and devices, and associated equipment. The health or risk to safety that may have concluded this action is one of a final rule reorganizing the lighting disproportionately affect children. category of actions which do not standard was published on December 4, individually or cumulatively have a Indian Tribal Governments 2007 with an effective date of significant effect on the human September 1, 2008.1 The effective date This rule does not have tribal environment. This rule is categorically was extended to December 1, 2009 in a implications under Executive Order excluded, under figure 2–1, paragraph final rule published on August 28, 13175, Consultation and Coordination (34)(g), of the Instruction. This rule 2008.2 The agency received fourteen with Indian Tribal Governments, involves the disestablishment of a safety petitions for reconsideration of the 2007 because it does not have a substantial zone. Under figure 2–1, paragraph final rule, including two that requested direct effect on one or more Indian (34)(g), of the Instruction, an a delay in the effective date of the rule, tribes, on the relationship between the environmental analysis checklist and a Federal Government and Indian tribes, categorical exclusion determination are 1 See 72 FR 68234. or on the distribution of power and not required for this rule. 2 See 73 FR 50730.

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and others that raised concerns that the logical presentation of the applicable not yet concluded. Given the reorganization of FMVSS No. 108 regulatory requirements (see 72 FR imminence of the December 1, 2009 imposed new requirements. This rule 68234). Related amendments were made effective date, the agency has delays the effective date further, from to 49 CFR part 564, Replacement Light determined that more time is needed to December 1, 2009 to December 1, 2012, Source Information. While the final rule fully respond to petitions concerning to enable the agency to fully resolve all greatly reduced the number of third- the technical and substantive issues of of the issues raised in the petitions well party standards incorporated by the December 2007 final rule. before manufacturers are required to reference, it did not impose any new certify to the new requirements. substantive requirements on We are extending the mandatory effective date of the rewrite of Standard DATES: The effective date of the final manufacturers. Along with the changes No. 108 for three years to allow rule amending 49 CFR parts 564 and made, the final rule specified an 571 published at 72 FR 68234, effective date of September 1, 2008 for sufficient time for the agency to analyze December 4, 2007, and delayed at 73 FR these amendments and permitted the issues raised by the petitioners in 50730, August 28, 2008, is further voluntary early compliance immediately relationship to the version of the SAE delayed until December 1, 2012. The upon publication. standards that are referenced. In many cases, the referenced version of the SAE incorporation by reference of certain II. Petitions for Reconsideration publications listed in the rule is standard is not the most current. The In response to the December 2007 approved by the director of the Federal agency would also like to carefully final rule, the agency received fourteen Register as of December 1, 2012. review issues the petitioners have raised petitions for reconsideration.3 Petitions Optional early compliance continues to in the context of past interpretations. for reconsideration were submitted by be permitted. Any petitions for Grote Industries, LLC, Alliance of This additional delay in the effective reconsideration of today’s final rule Automobile Manufacturers (Alliance), date will enable the agency to fully must be received by NHTSA not later Motor and Equipment Manufacturers resolve all of the issues raised in the than December 28, 2009. Association (MEMA) 4, Nissan North petitions well before manufacturers are ADDRESSES: Any petitions for America, Inc., Valeo Sylvania, Calcoast required to certify to the new reconsideration should refer to the Industrial Testing Laboratory, Harley- requirements. The various technical and docket number of this document and be Davidson Motor Company, Koito substantive issues in the petitions for submitted to: Administrator, National Manufacturing Co, Ltd., Ford Motor reconsideration will be addressed by the Highway Traffic Safety Administration, Company, Toyota Motor North America, agency in separate documents. 1200 New Jersey Avenue, SE., West Inc., GE Consumer & Industrial We note that, as indicated above, Building, Ground Floor, Docket Room Automotive Lighting, SABIC Innovative W12–140, Washington, DC 20590. some petitioners have argued that the Plastics, Valeo Lighting Systems, and reorganization imposed new FOR FURTHER INFORMATION CONTACT: For Vehicle Services Consulting, Inc. The requirements. We will specifically non-legal issues, you may call Mr. David petitions addressed a wide range of address the arguments and specific Hines, Office of Crash Avoidance FMVSS No. 108 subjects, including requirements at issue in separate Standards (Phone: 202–493–0245; FAX: technical amendments to the rule, documents, and why we are accepting 202–366–7002). For legal issues, you concern that the reorganization imposed may call Mr. Ari Scott Office of the new requirements, and requests to or not accepting each of the petitioners’ Chief Counsel (Phone: 202–366–2992; change the effective date of the final arguments and requests. We recognize, FAX: 202–366–3820). You may send rule. On August 28, 2008, NHTSA however, that one consequence of a mail to these officials at: National published a subsequent final rule major rewriting of a regulation as Highway Traffic Safety Administration, changing the effective date to December complex as Standard No. 108 is that 1200 New Jersey Avenue, SE., 1, 2009 (see 73 FR 50730). This was some regulated parties may discover Washington, DC 20590. done in order to allow for more time for that they have been interpreting some SUPPLEMENTARY INFORMATION: the agency to analyze the petitions prior provisions of the earlier version of the to the rule taking effect. standard incorrectly. One of the reasons I. Background we are extending the effective date of Federal Motor Vehicle Safety III. Agency Response to Petitions the new standard for three years is so Standard (FMVSS) No. 108, Lamps When the agency issued the 2008 that manufacturers will have a period of reflective devices, and associated final rule extending the effective date to time after the agency has responded to equipment, specifies requirements for December 1, 2009, it believed that the the petitions for reconsideration in original and replacement lamps, additional time was sufficient to allow which they can continue to certify their reflective devices, and associated NHTSA time to consider and respond products to the earlier version of the equipment. The purpose of FMVSS No. fully to all aspects of the numerous standard. 108 is to reduce traffic accidents and petitions for reconsideration. However, deaths and injuries resulting from traffic NHTSA’s consideration of the petitions IV. Effective Date of This Document accidents, by providing adequate has taken longer than expected and is illumination of the roadway, and by Because December 1, 2009 (the enhancing the conspicuity of motor 3 We note that the American Association for effective date for the amendments to vehicles on the public roads so that Justice (AAJ) submitted a document objecting to the FMVSS No. 108, set in the August 2008 their presence is perceived and their agency’s discussion of implied preemption. The final rule) is fast approaching, NHTSA agency does not consider this to be a petition for finds for good cause that this action signals understood, both in daylight and reconsideration, as NHTSA’s preemption in darkness or other conditions of discussion is not a rule. For a further discussion of delaying the effective date should take reduced visibility. this, in a different context, see 73 FR 54536; effect immediately. Today’s final rule On December 4, 2007, NHTSA September 22, 2008. makes no substantive changes to 4 MEMA submitted a petition for reconsideration FMVSS No. 108, but further delays the published a final rule amending FMVSS collectively with the Transportation Safety No. 108 to reorganize the standard and Equipment Institute and the Motor Vehicle Lighting effective date of the December 4, 2007 provide a more straightforward and Council. final rule until December 1, 2012.

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V. Rulemaking Analyses and Notices B. Privacy Act Paperwork Reduction Act, and Executive Order 13045 (Protection of A. Executive Order 12866 and DOT Anyone is able to search the Children from Environmental Health Regulatory Policies and Procedures electronic form of all comments and Safety Risks). Since that final rule received into any of our dockets by the This action delays the effective date of was an administrative rewrite of name of the individual submitting the an administrative rewrite of FMVSS No. existing requirements and since today’s comment (or signing the comment, if 108. It was not reviewed by the Office action simply delays the effective date submitted on behalf of an association, of Management and Budget under E.O. of that final rule, today’s rule does not business, labor union, etc.). You may 12866. The agency has considered the affect the agency’s analyses in those review DOT’s complete Privacy Act impact of this action under the areas. Department of Transportation’s Statement in the Federal Register regulatory policies and procedures (44 published on April 11, 2000 (Volume Therefore, the effective date of the FR 11034; February 26, 1979), and has 65, Number 70; Pages 19477–78) or you final rule amending 49 CFR Parts 564 determined that it is not ‘‘significant’’ may visit http://docketsinfo.dot.gov/. and 571 published at 72 FR 68234, under them. December 4, 2007, and delayed at 73 FR C. Other Rulemaking Analyses and 50730, August 28, 2008, is further This final rule delays the effective Notices date of a December 4, 2007 final rule delayed until December 1, 2012. (which, pursuant to the August 28, 2008 In the December 2007 final rule, the Authority: 49 U.S.C 322, 30111, 30115, final rule, was scheduled to become agency discussed relevant requirements 30117, and 30166; delegations of authority at effective December 1, 2009), to related to the Regulatory Flexibility Act, 49 CFR 1.50 and 501.8. December 1, 2012. Neither that rule nor the National Environmental Policy Act, today’s action will have any measurable Executive Order 13132 (Federalism), the Ronald L. Medford, effect on costs or benefits since the rule Unfunded Mandates Reform Act, Civil Acting Deputy Administrator. merely reorganizes and clarifies existing Justice Reform, the National Technology [FR Doc. E9–27075 Filed 11–5–09; 4:15 p.m.] requirements. Transfer and Advancement Act, the BILLING CODE 4910–59–P

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Proposed Rules Federal Register Vol. 74, No. 217

Thursday, November 12, 2009

This section of the FEDERAL REGISTER of this issue of the Federal Register. All This recommended decision is issued contains notices to the public of the proposed comments submitted in response to this pursuant to the provisions of the issuance of rules and regulations. The rule will be included in the record and Agricultural Marketing Agreement Act purpose of these notices is to give interested will be made available for public of 1937, as amended (7 U.S.C. 601–674), persons an opportunity to participate in the inspection in the Office of the Hearing hereinafter referred to as the ‘‘Act,’’ and rule making prior to the adoption of the final rules. Clerk during regular business hours, or the applicable rules of practice and can be viewed at: http:// procedure governing the formulation of www.regulations.gov. Please be advised marketing agreements and orders (7 CFR DEPARTMENT OF AGRICULTURE that the identity of the individuals or part 900). entities submitting the comments will The proposed amendments are based Agricultural Marketing Service be made public on the Internet at the on the record of a public hearing held address provided above. December 9, 2008, in Modesto, 7 CFR Part 920 To the extent practicable, all California. Notice of this hearing was [Doc. No. AO–FV–08–0174; AMS–FV–08– documents filed with the hearing clerk published in the Federal Register on 0085; FV08–920–3] should also be submitted electronically November 19, 2008 (73 FR 69588). The to Laurel May at the email address notice of hearing contained four Kiwifruit Grown in California; noted for her in the FOR FURTHER proposals submitted by the committee. Recommended Decision and INFORMATION CONTACT section. The proposed amendments were Opportunity To File Written Exceptions FOR FURTHER INFORMATION CONTACT: recommended by the committee to Proposed Amendments to Marketing Laurel May or Kathleen Finn, Marketing following deliberations at public Order No. 920 Order Administration Branch, Fruit and meetings on January 30, 2008; April 22, Vegetable Programs, AMS, USDA, 1400 2008; and July 9, 2008. The proposed AGENCY: Agricultural Marketing Service, amendments were submitted to the USDA. Independence Avenue, SW., Stop 0237, Washington, DC 20250–0237; Agricultural Marketing Service (AMS) ACTION: Proposed rule and opportunity on August 15, 2008. After reviewing the to file exceptions. Telephone: (202) 720–2491, Fax: (202) 720–8938, or E-mail: recommendation and other information submitted by the committee, AMS SUMMARY: This is a recommended [email protected] or determined to proceed with the formal decision regarding proposed [email protected]. Small rulemaking process and schedule the amendments to Marketing Order No. businesses may request information on matter for hearing. 920 (order), which regulates the this proceeding by contacting Jay The committee’s proposed handling of kiwifruit grown in Guerber, Marketing Order amendments to the order would: (1) California. Four amendments were Administration Branch, Fruit and Redefine the districts into which the proposed by the Kiwifruit Vegetable Programs, AMS, USDA, 1400 production area is divided and Administrative Committee (committee), Independence Avenue, SW., Stop 0237, reallocate committee membership which is responsible for local Washington, DC 20250–0237; positions among the districts; (2) revise administration of the order. These Telephone: (202) 720–2491, Fax: (202) committee nomination and selection proposed amendments would redefine 720–8938, E-mail: procedures; (3) add authority for the districts into which the production [email protected]. research and promotion programs; and area is divided and reallocate committee SUPPLEMENTARY INFORMATION: Prior (4) revise the committee’s meeting and membership positions among the documents in this proceeding: Notice of voting procedures. districts, revise the committee Hearing issued on January 24, 2008, and In addition to the proposed nomination and selection procedures, published in the November 19, 2008, amendments, AMS proposed to make authorize the committee to conduct issue of the Federal Register (73 FR any such changes to the order as may be research and promotion programs, and 69588). necessary to conform to any amendment revise committee meeting and voting This action is governed by the to the order that may result from the procedures. The proposals are intended provisions of sections 556 and 557 of hearing. to improve the operation and title 5 of the United States Code and is Seven industry witnesses testified at administration of the order. This therefore excluded from the the hearing. The witnesses represented recommended decision invites written requirements of Executive Order 12866. kiwifruit producers and handlers in the exceptions on the proposed production area, as well as the amendments. Preliminary Statement committee, and they all supported the DATES: Written exceptions must be filed Notice is hereby given of the filing recommended changes. The witnesses by December 14, 2009. with the Hearing Clerk of this emphasized the need to modernize and ADDRESSES: Written exceptions should recommended decision with respect to update committee representation and be filed with the Hearing Clerk, U.S. the proposed amendments to Marketing procedures as well as equip the industry Department of Agriculture, Room 1031– Order 920 regulating the handling of with additional tools to address the S, Washington, DC 20250–9200, Fax: kiwifruit grown in California, and the research and promotion needs of (202) 720–9776 or via the Internet at opportunity to file written exceptions California kiwifruit. http://www.regulations.gov. All thereto. Copies of this decision can be At the conclusion of the hearing, the comments should reference the docket obtained from Laurel May, whose Administrative Law Judge established a number and the date and page number address is listed above. deadline of February 6, 2009, for

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interested persons to file proposed divided into eight districts. Eight of the proportion of total kiwifruit production findings and conclusions or written eleven grower member committee seats from each district. After its approval by arguments and briefs based on the are allocated to the eight districts, with the committee, the recommendation evidence received at the hearing. No one additional seat assigned to each of would be forwarded to USDA for review briefs were filed. the three districts with the highest and approval prior to the beginning of volume production. No more than two the nomination period. Material Issues members and alternates may represent Currently, terms of office are The material issues presented on the any district. Witnesses testified that this staggered so that part of the committee record of hearing are as follows: structure was appropriate at the time the is nominated and selected each year. (1) Whether to amend the order by order was promulgated because Members and alternates are limited to redefining the production area’s district kiwifruit acreage and growers were three consecutive two-year terms in one boundaries and by reallocating widely distributed throughout position. Additionally, as explained committee membership positions among California. above, current order provisions require the districts; Evidence provided at the hearing the committee to reallocate three (2) Whether to amend the order by shows that most kiwifruit acreage and member and alternate seats each year, requiring that nomination meetings be growers are now concentrated in two based on production for each of the held by June 1 in each year when areas of the State. According to districts. Witnesses testified that nominations are to be made and by witnesses, under current order conducting the nominations process, specifying that mid-term committee provisions, representation on the reallocating some of the seats, and vacancies may be filled by the Secretary committee is no longer equitably seating new members every year has based upon recommendations from the distributed and does not reflect the become burdensome to the industry and committee; concentration of growers and disruptive to the administration of the (3) Whether to amend the order by production in these two areas. order. Witnesses supported the proposal adding authority for the committee to Witnesses stated that the areas with to synchronize all the terms of office to establish and conduct research and greater production are under- begin and end biannually. All eleven promotion programs, by adding represented on the committee. grower member and alternate seats authority to accept voluntary Witnesses further testified that it has would be assigned to represent the contributions for use in such programs, become increasingly difficult in the past districts for the entire two-year term of and by requiring a supermajority few years to fill committee positions to office. Witnesses testified that if the approval for all committee actions represent districts with fewer growers districts are realigned as proposed pertaining to research and promotion; and lower production. under Material Issue Number 1, there and Hearing testimony supported would be ample candidates available (4) Whether to amend the order by amending the order by redefining the from each district to fill committee authorizing substitute alternates to district boundaries and adding greater seats. represent absent members and alternates flexibility for the committee to Witnesses also supported adding a at meetings, by authorizing the recommend district boundaries and provision to the order that would committee to conduct meetings through committee membership allocations. provide that the terms of office for all telephone or other means of Witnesses testified that these changes current members would end on the last communication, and by specifying the would provide more equitable day of the fiscal period in which the voting procedures for various meeting representation for all growers and amendment becomes effective and formats. production within the production area. specify that nominations be conducted Specifically, witnesses supported for new terms of office for all members Findings and Conclusions amending the order by dividing the as soon as practicable following The following findings and production area into three districts as implementation of the amendments. conclusions on the material issues are follows: District 1 would include Butte, Under this proposal, terms of office for based on evidence presented at the Sutter, and Yuba Counties; District 2 members or alternates who have served hearing and the record thereof. would include Tulare County; and for less than two years at the time the District 3 would include all other current terms of office are terminated Material Issue Number 1—Districts and California counties not included in would not count toward tenure. Representation Districts 1 and 2. The record shows that No testimony opposing the proposed Section 920.12, District, should be this district alignment would better amendments was given at the hearing. amended to redefine the districts into serve the interests of the industry as it For the reasons stated above, it is which the production area is divided. is currently distributed within the recommended that § 920.12, District, be Section 920.20, Establishment and production area. amended to define three districts into Membership, should also be amended to Witnesses also supported amending which the kiwifruit production area is provide for flexible allocation of the the order’s membership allocation divided. Further, it is recommended eleven grower member and alternate provisions. Allocation of the eleven that § 920.20, Establishment and seats among the districts and to remove grower member positions on the Membership, be amended to specify that the limitation of no more than two committee would be based upon five- the eleven grower member seats on the members and two alternates per district. year production averages for each committee shall be allocated on the Finally, § 920.21, Term of Office, should district, or upon some other basis basis of five-year production history, or be amended to specify that the two-year approved by the Secretary, to provide on some other basis recommended by terms of office of all members and equitable representation for each the committee and approved by the alternates would begin and end district. Witnesses explained that the Secretary, to provide for equitable simultaneously and to provide for the committee’s staff would review representation on the committee. nomination of a new committee production averages prior to each Finally, § 920.21, Term of Office, should following the amendment process. nomination period and would be amended to provide for concurrent Currently, the production area, which recommend a membership allocation terms of office for all members that comprises the state of California, is that would reflect the then current would begin and end every other year.

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Section 920.21 should also provide that their seats. Testimony supported promotion projects. The record shows all current terms of office would end on amending the order to provide that mid- that industry members have made the last day of the fiscal period in which term vacancies may be filled by voluntary financial contributions in the the amendment becomes effective, and selections made by the Secretary after past to support research projects such as a new committee would be nominated consideration of recommendations that the improvement of maturity testing as soon as practicable after that date. may be submitted by the committee methods and the lengthening of The section would be further amended unless such selection is deemed kiwifruit shelf life, both of which were to specify that terms of office for unnecessary by the Secretary. considered critical to the industry. members or alternates who have served No testimony or evidence opposing Witnesses testified that such financial less than two years at the time the this proposal was provided at the support from the industry would be current terms of office are terminated hearing. For the reasons stated above, it likely to continue if the committee is would not count toward tenure. is recommended that § 920.22, authorized to accept voluntary Additionally, references to three Nomination, be amended to specify that contributions. districts with additional seats in grower district nomination meetings The record shows that contributions §§ 920.20 and 920.21 would be should be held by June 1 of each year could supplement assessment funds removed. Finally, a clarifying in which nominations are to be made. earmarked for research and promotion conforming change is made to the order Further, it is recommended that projects. Witnesses stated that the language in § 920.20 that cross § 920.26, Vacancies, be amended to declining California kiwifruit references § 920.31(l). authorize the Secretary to select production would eventually erode the members to fill mid-term vacancies base upon which assessments are Material Issue Number 2—Nominations based upon recommendations from the collected, and the committee would be and Vacancies committee. limited as to the number and type of Section 920.22, Nomination, of the projects it could support. Additionally, Material Issue Number 3—Research and order should be amended to specify that § 920.41 of the order specifies a cap on Promotion nomination meetings should be the assessment rate that the committee conducted in the grower districts by A new section 920.47, Production can levy on handlers. With such a cap June 1 of each year in which research, marketing research and on the assessment rate, witnesses could nominations are made. Currently, the development, providing authority to foresee a time when the committee order requires that such nomination establish and conduct research and might be unable to collect enough meetings be held by July 15 each year. promotion programs, should be added assessment revenue to fund extensive Witnesses explained that the committee to the order. An additional section, research or promotion projects. has found it necessary to conduct § 920.45, Contributions, authorizing the Voluntary contributions could augment nomination meetings earlier than committee to accept voluntary the committee’s available funds and currently prescribed in the order to contributions for research and allow the committee to conduct ensure that the selection process is promotion projects, should also be important projects. completed prior to the August 1 added to the order. Finally, paragraph One witness suggested that voluntary beginning of the terms of office. (a) of § 920.32, Procedure, should be contributions could also bolster the According to witnesses, the order amended to specify that actions of the committee’s share of projects requiring should be amended to codify what has committee with respect to research and matching funds. For example, the become a regular practice for the promotion activities should require at California kiwifruit industry is committee. Additionally, as described least eight concurring votes. interested in raising the demand for its under Material Issue Number 1, the Currently, the committee is not product in the export market. Voluntary committee proposed amending the order authorized to conduct research or contributions could boost the to provide for concurrent terms of office promotion programs, and it is not committee’s efforts to raise matching for all members that would begin and authorized to accept voluntary funds for participation in USDA’s end every other year. Witnesses noted contributions for any purpose. Research Market Access Program, which helps that if that proposed amendment is and promotion programs for the domestic producers develop and expand implemented, there would be no need to California kiwifruit industry are their international markets. conduct nomination meetings every currently conducted under a state The hearing record supports year. marketing order, and the state program specifying that voluntary contributions Section 920.26, Vacancies, should is authorized to accept contributions for would be free of any encumbrances by also be amended to authorize the its research programs. the donor and would be used at the Secretary to select a successor to fill Witnesses at the hearing supported committee’s discretion. Expenditure of mid-term committee vacancies that may amending the order by adding research contributed funds would be subject to occur after consideration of and promotion authority. Although they the committee’s annual financial audits. recommendations from the committee. did not identify specific projects that Under the order, eight members Currently, the order specifies that the committee is considering at this constitute a quorum, and most vacancies must be filled by following time, those testifying about this committee actions require the the same procedures described for proposed amendment explained that the concurrence of the majority of those in annual committee nominations and committee should have authority to attendance. Supermajorities of eight selections. Witnesses testified that conduct research and promotion concurring votes are currently required conducting the entire nomination and programs if the need arises. Further, for actions with respect to expenses, selection process to fill mid-term witnesses stated that the committee assessments, and recommendations for vacancies is burdensome to the does not intend to duplicate the efforts shipping and inspection regulations. industry. Witnesses stated that the of the state program. The committee proposed amending the committee is aware of qualified growers Hearing witnesses testified in support order by requiring eight concurring from each district who would be of the proposed amendment to add votes for actions with respect to available to serve out the unexpired authority to accept voluntary research and promotion if the order is terms of members who have vacated contributions for use in research and amended to authorize such activities.

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Witnesses supported the addition of this Witnesses supported amending the it. Witnesses stated that all interested supermajority voting requirement to order to authorize the committee to persons would have access to committee ensure widespread support for any appoint any available alternates to meetings and would be encouraged to research or promotion projects the represent absent members and alternates participate. committee may undertake. from the same district in order to obtain Section 920.32(b) should be further No testimony or evidence opposing a quorum. Witnesses agreed that amended to specify that this proposal was offered at the hearing. substitute alternates from the same videoconferences would be considered For the reasons stated above, it is districts as the absent members are assembled meetings, and that votes cast recommended that a new § 920.47, likely to have similar views regarding at such meetings would be considered Production research, marketing research industry issues and could represent the as cast in person. However, votes cast by and development, be added to the order views of their districts, as well as the members participating in meetings to authorize the committee to entire industry, appropriately. through other methods of recommend and conduct research and Currently, the order authorizes the communication should be by roll call. promotion programs. It is also committee to vote by telephone or other Currently, the order provides that votes recommended that a new § 920.45, means of communication, but if an by telegraph or other means of Contributions, be added to the order to assembled meeting is held, all votes communication shall be confirmed in authorize the committee to accept must be cast in person. This proposal writing. financial contributions for use in their would enable the committee to hold No opposing testimony regarding this research and promotion programs and to meetings through other means of proposal was offered at the hearing. For specify that the committee will retain communication when appropriate. the reasons stated above, it is complete control of any such As noted above, hearing witnesses recommended that § 920.27 should be contributions. Finally, it is testified that time and distance amended to authorize the committee to recommended that § 920.32(a) be constraints make attendance at appoint substitute alternates to act in amended to specify that eight assembled meetings difficult for the stead of absent members from the concurring votes are required for all committee members as well as other same district, if necessary to obtain a committee actions with respect to interested persons. Consequently, quorum. Further, § 920.32(b) should be research and promotion. meeting attendance has dropped. amended to allow the committee to According to witnesses, meeting meet by telephone and other means of Material Issue Number 4—Meeting and attendance could improve if the Voting Procedures communication, to specify that meetings were more accessible to as videoconference meetings shall be Section 920.27 should be revised to many participants as possible. considered assembled meetings and that specify that grower members and their Witnesses expected that providing more votes cast at such meetings shall be respective alternates may be represented meeting options would improve the considered in-person, and to require by any other alternates from the same likelihood that quorum requirements votes cast at non-assembled meetings to district at committee meetings if could be met, and that committee be taken by roll call. necessary to obtain a quorum. Section business could be conducted in a timely 920.32(b) should also be amended to manner. Conforming Changes authorize the committee to meet via According to evidence provided at the AMS also proposed to make such telephone, video conference, or other hearing, teleconference meetings are changes as may be necessary to the means of communication. currently used by other kiwifruit order to conform to any amendment that Currently, the order authorizes a industry organizations. Witnesses may result from the hearing. Any such member’s own alternate to represent testified that teleconferencing has changes have been previously him or her at meetings during the greatly enhanced the efficiency and identified. member’s absence. In the case of the effectiveness of those other groups. three districts allocated two members, Witnesses explained that the Small Business Considerations an alternate may act in the stead of the committee holds approximately three Pursuant to the requirements set forth other member of that district and his or meetings per year. Subcommittees meet in the Regulatory Flexibility Act (5 her alternate, if necessary. more frequently, as needed. If the U.S.C. 601–612) (RFA), AMS has If membership allocation is amended authority to conduct research and considered the economic impact of this as described under Material Issue promotion activities, as described under action on small entities. Accordingly, Number 1, some districts could be Material Issue Number 3, is added to the AMS has prepared this initial regulatory represented by more than two members. order, witnesses anticipate that many flexibility analysis. This proposal would revise the language more meetings could be needed to The purpose of the RFA is to fit of § 920.27 to authorize the committee discuss and recommend potential regulatory actions to the scale of to designate any available alternate to projects. Witnesses stated that the work business subject to such actions so that represent any absent grower member of the committee and subcommittees small businesses will not be unduly or and his or her alternate from the same would be facilitated by adding the disproportionately burdened. Marketing district, if necessary to obtain a quorum. flexibility to meet by telephone or other orders and amendments thereto are Witnesses at the hearing noted that, means of communication. unique in that they are normally due to increased demands on their time, Witness testimony indicates that the brought about through group action of growers have found it increasingly committee would provide for assembly essentially small entities for their own difficult to attend meetings that are held of interested persons at sites such as benefit. at great distances from their districts. county farm bureau offices, where all Small agricultural service firms, Citing recent examples, witnesses could participate in videoconference which include handlers regulated under described occasions when the meetings. As well, the committee would the order, have been defined by the committee was unable to conduct continue to publicize meeting Small Business Administration (SBA) business in a timely manner because information and provide relevant (13 CFR 121.201) as those having annual they were unable to meet quorum materials and call-in instructions on its receipts of less than $7,000,000. Small requirements. Web site or by mail to those requesting agricultural growers have been defined

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as those with annual receipts of less unanimously to support the four interests of all large and small entities than $750,000. proposed amendments that were are represented appropriately during There are approximately 30 handlers forwarded to AMS and subsequently committee deliberations. Synchronizing of kiwifruit subject to regulation under considered at the hearing. all the terms of office to begin and end the order and approximately 220 The proposed amendments are at the same time would simplify growers of kiwifruit in the regulated intended to provide the committee and administration of the order and reduce area. Information provided at the the industry with additional flexibility disruptions to committee business. hearing indicates that the majority of the in administering the order and Adoption of the proposed amendment handlers would be considered small producing and marketing California would have no economic impact on agricultural service firms. Hearing kiwifruit. Record evidence indicates growers or handlers of any size. testimony also suggests that the majority that the proposals are intended to of growers would be considered small benefit all growers and handlers under Proposal 2—Nominations and entities according to the SBA’s the order, regardless of size. Vacancies definition. All grower and handler witnesses Proposal 2 would amend the order by The order regulates the handling of supported the proposed amendments at specifying that grower nomination kiwifruit grown in the state of the hearing. Several witnesses meetings be held by June 1 of each California. Total bearing kiwifruit commented on the implications of nomination year and that mid-term acreage has declined from a peak of implementing research and promotion vacancies may be filled by selections approximately 7,300 acres in 1992–93 to programs under the order. In that made by the Secretary after about 4,000 acres in 2007–08. context, witnesses stated that they consideration of recommendations that Approximately 24,500 tons of kiwifruit expected the benefits to growers and may be submitted by the committee, were produced in California during the handlers to outweigh any potential unless such selection is deemed 2007–08 season—a decline of costs. unnecessary by the Secretary. approximately 27,800 tons compared to A description of the proposed Currently, the order requires that the 1992–93 season. According to amendments and their anticipated nomination meetings be held by July 15 evidence provided at the hearing, economic impact on small and large of each year, but that deadline does not approximately 30 percent of the entities is discussed below. allow for timely processing of the 2007–08 California kiwifruit crop was Proposal 1—Districts and nominations and selections of new shipped to export markets, including Representation members prior to the August 1 Canada, Mexico, Central American, and beginning of the terms of office. The Asian destinations. Proposal 1 would amend the order by committee has been conducting Under the order, outgoing grade, size, redefining the districts into which the nomination meetings earlier than pack, and container regulations are production area is divided and prescribed by the order and proposed established for kiwifruit shipments, and providing for the allocation of this revision to codify what has become shipping and inventory information is committee membership positions normal practice. collected. Program activities between the districts. Such allocation Any vacancies that occur under the administered by the committee are would be based upon five-year current order provisions must be filled designed to support large and small production averages, or upon another by repeating the nomination and kiwifruit growers and handlers. The 12- basis approved by the Secretary. This selection process outlined for new member committee is comprised of proposal would also provide for members. Allowing the Secretary to fill eleven grower representatives from the concurrent terms of office for all vacancies as proposed would streamline production area, as well as a public committee members, who would be the process of filling vacancies and member. Committee meetings in which selected biannually. reduce disruption to committee regulatory recommendations and other At the time the order was business. decisions are made are open to the promulgated, kiwifruit acreage was Adoption of this proposal would have public. All members are able to more widespread throughout California no economic impact upon growers or participate in committee deliberations, and there were many more growers handlers of any size. and each committee member has an involved in kiwifruit production. The equal vote. Others in attendance at order originally provided for eight Proposal 3—Research and Promotion meetings are also allowed to express grower districts within the production Proposal 3 would amend the order by their views. area, with one membership seat adding authority for the committee to Following several discussions within apportioned to each district, and an conduct research and promotion the kiwifruit industry, the committee additional seat reallocated annually to projects and to accept voluntary considered adding authority to conduct each of the three districts with the contributions to assist with funding research and promotion programs to highest production in the preceding those projects. This proposal would also provide maximum flexibility to the year. The structure was designed to amend the order by requiring the order. An amendment subcommittee afford equitable representation for all concurring vote of eight members for was appointed to develop districts on the committee. any action with respect to research and recommendations for this and other The concentration of planted acreage promotion. Currently, the committee is possible order revisions. The into two main regions and the decline not authorized to conduct research or subcommittee developed a list of in the number of growers over time has promotion programs, and it is not proposed amendments to the order, prompted the committee to evaluate the authorized to accept voluntary which was then presented to the appropriateness of the current contributions for any purpose. committee. committee structure. The committee Historically, kiwifruit research has The committee met to review and believes that consolidating the districts been conducted by other industry discuss the subcommittee’s proposals at and providing for reallocation of grower organizations and funded through its meetings on January 30, 2008, April seats as proposed would better reflect private as well as public revenues. 22, 2008, and July 9, 2008. At those the current composition of the industry. Currently, the California Kiwifruit meetings, the committee voted The revisions would ensure that the Commission, a state marketing program,

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is authorized to conduct research and Proposal 4—Meeting and Voting Committee meetings regarding these promotion projects for the industry. Procedures proposals, as well as the hearing date According to the hearing record, the and location, were widely publicized Proposal 4 would amend the order by committee has not identified any throughout the kiwifruit industry, and allowing the committee to designate specific projects that it wants to conduct all interested persons were invited to substitute alternates to represent absent at this time, nor does it intend to attend the meetings and the hearing and members from the same district at duplicate the efforts of the state to participate in committee meetings if necessary to secure a program. However, it would like to add deliberations on all issues. All quorum. Currently, under most authority to conduct such projects in the committee meetings and the hearing circumstances, only a member’s event that a need for new projects arises. were public forums and all entities, both respective alternate may represent the Further, the committee proposed large and small, were able to express member if the member is unable to adding authority to accept voluntary views on these issues. Finally, attend a meeting. For districts with only funds to conduct research and interested persons are invited to submit one member, there is no provision for promotion projects to augment the information on the regulatory and when both the member and his or her assessment revenues they might budget informational impacts of this action on alternate are unavailable for a meeting. for such purposes. The order specifies a small businesses. In the past, meetings have been cap on the rate handlers may be AMS is committed to complying with cancelled at the last minute because assessed to support the committee’s the E–Government Act, to promote the attendance was insufficient to meet programs and activities. According to use of the Internet and other quorum requirements. witnesses, the current assessment rate is information technologies to provide well below the established cap, but If implemented, the proposed increased opportunities for citizen supporting research and promotion amendment would allow alternates not access to Government information and projects in the future could require more otherwise representing absent members services, and for other purposes. money than what the shrinking industry to represent other members at is likely to collect through assessments. committee meetings in order to secure a Paperwork Reduction Act Voluntary contributions could also quorum. This would help ensure that Current information collection augment matching funds required from quorum requirements could be met and requirements for Part 920 are approved the committee for participation in that committee business could be by the Office of Management and USDA-sponsored market development addressed in a timely manner. Budget (OMB), under OMB Number programs. This proposal would further authorize 0581–0189—‘‘Generic OMB Fruit Finally, the committee recommended the committee to meet by telephone or Crops.’’ No changes in these adding a provision that all actions with other means of communication. Video requirements are anticipated as a result respect to research and promotion conference meetings would be of this proceeding. Should any such would require eight concurring considered assembled meetings and changes become necessary, they would committee votes. Witnesses explained votes taken at such meetings would be be submitted to OMB for approval. that this supermajority approval would considered in-person. Votes by As with all Federal marketing order ensure that research and promotion telephone or other types of non- projects undertaken by the committee programs, reports and forms are assembled meetings would be by roll periodically reviewed to reduce would benefit the industry as a whole. call. Adding authority to conduct research information requirements and Witnesses testified that this and promotion projects would not, of duplication by industry and public amendment would provide the itself, have any economic impact on sector agencies. committee with greater flexibility in growers or handlers of any size. If scheduling meetings and would be Civil Justice Reform research and promotion projects were consistent with current practices in implemented under this authority in the The amendments to Marketing Order other kiwi industry settings. The use of future, the assessment rate for handlers No. 905 proposed herein have been telephone and other means of would likely increase to cover the cost reviewed under Executive Order 12988, communication would allow greater of those expenditures. The value of any Civil Justice Reform. They are not proposed projects, as well as access to committee meetings for intended to have retroactive effect. recommendations for increased members as well as other interested The Act provides that administrative assessment rates, would be evaluated by persons. Additionally, administration of proceedings must be exhausted before the committee and approval would the order would be improved as urgent parties may file suit in court. Under require the concurring vote of eight committee business could be addressed section 608c(15)(A) of the Act, any members. Any increases in cost would in a timely manner. handler subject to an order may file be borne proportionately by handlers This amendment is expected to with USDA a petition stating that the according to the volume of kiwifruit benefit growers and handlers of all sizes order, any provision of the order, or any they ship. Those costs could be offset by by improving committee efficiencies obligation imposed in connection with voluntary contributions. Witnesses and encouraging greater participation in the order is not in accordance with law testified that any increases in cost due industry deliberations. The amendment and request a modification of the order to implementation of this proposal is not expected to result in any or to be exempted therefrom. A handler would be offset by benefits expected to significant increased costs to producers is afforded the opportunity for a hearing accrue to growers and handlers as or handlers. on the petition. After the hearing, USDA improved production and post-harvest USDA has not identified any relevant would rule on the petition. The Act handling methods and new market Federal rules that duplicate, overlap, or provides that the district court of the opportunities are developed. Any conflict with this proposed rule. These United States in any district in which increased costs would be proportional amendments are intended to improve the handler is an inhabitant, or has his to a handler’s size and would not the operation and administration of the or her principal place of business, has unduly or disproportionately impact order and to assist in the production jurisdiction to review USDA’s ruling on small entities. and marketing of California kiwifruit. the petition, provided an action is filed

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no later than 20 days after the date of timely received will be considered, and begin on August 1 and end on the last the entry of the ruling. a grower referendum will be conducted, day of July, or such other dates as the before any of these proposals are committee may recommend and the Rulings on Briefs of Interested Persons implemented. Secretary approve. Provided, That the Briefs and proposed findings and terms of office of all members and List of Subjects in 7 CFR Part 920 conclusions based on the record alternates currently serving will end on evidence were solicited in this Kiwifruit, Marketing agreements, the last day of the fiscal period in which proceeding. No briefs were filed. Reporting and recordkeeping this amended provision becomes requirements. General Findings effective, with nominations for new For the reasons set forth in the terms of office to be conducted as soon The findings hereinafter set forth are preamble, 7 CFR Part 920 is proposed to as practicable after the effective date of supplementary to the findings and be amended as follows: the amendment. Members may serve up determinations which were previously to three consecutive 2-year terms not to made in connection with the issuance of PART 920—KIWIFRUIT GROWN IN exceed 6 consecutive years as members. the marketing agreement and order; and CALIFORNIA Alternate members may serve up to all said previous findings and three consecutive 2-year terms not to determinations are hereby ratified and 1. The authority citation for 7 CFR part 920 continues to read as follows: exceed 6 consecutive years as alternate affirmed, except insofar as such findings members. Provided, That any term of and determinations may be in conflict Authority: 7 U.S.C. 601–674. office less than two years as a result of with the findings and determinations set 2. Revise § 920.12 to read as follows: the amendment will not count toward forth herein. tenure. (1) The marketing order, as amended, § 920.12 District. 5. In § 920.22, revise the first sentence and as hereby proposed to be further District means the applicable one of of paragraph (a) to read as follows: amended, and all of the terms and the following described subdivisions of conditions thereof, would tend to the production area or such other § 920.22 Nomination. effectuate the declared policy of the Act; subdivision as may be prescribed (a) Except as provided in paragraph (2) The marketing order, as amended, pursuant to § 920.31: (b) of this section, the committee shall and as hereby proposed to be further (a) District 1 shall include Butte, hold, or cause to be held, not later than amended, regulates the handling of Sutter, and Yuba Counties. June 1 of each year in which kiwifruit grown in the production area (b) District 2 shall include Tulare nominations are made, or such other (California) in the same manner as, and County. date as may be specified by the is applicable only to, persons in the (c) District 3 shall include all counties Secretary, a meeting or meetings of respective classes of commercial and within the production area not included growers in each district for the purpose industrial activity specified in the in Districts 1 and 2. of designating nominees to serve as marketing order upon which a hearing 3. Revise § 920.20 to read as follows: grower members and alternates on the has been held; committee. * * * (3) The marketing order, as amended, § 920.20 Establishment and membership. * * * * * and as hereby proposed to be further There is hereby established a 6. Revise § 920.26 to read as follows: amended, is limited in its application to Kiwifruit Administrative Committee the smallest regional production area consisting of 12 members, each of whom § 920.26 Vacancies. which is practicable, consistent with shall have an alternate who shall have To fill any vacancy occasioned by the carrying out the declared policy of the the same qualifications as the member failure of any person selected as a Act, and the issuance of several orders for whom he or she is an alternate. The member or as an alternate member of applicable to subdivisions of the 12-member committee shall be made up the committee to qualify, or in the event production area would not effectively of the following: One public member of the death, removal, resignation, or carry out the declared policy of the Act; (and alternate), and eleven members disqualification of any member or (4) The marketing order, as amended, (and alternates). With the exception of alternate member of the committee, a and as hereby proposed to be further the public member and alternate, all successor for the unexpired term of such amended, prescribes, insofar as members and their respective alternates member or alternate member of the practicable, such different terms shall be growers or employees of committee shall be selected by the applicable to different parts of the growers. In accordance with § 920.31(l), Secretary after consideration of production area are as necessary to give district representation on the committee recommendations which may be due recognition to the differences in the shall be based upon the previous five- submitted by the committee, unless production and marketing of kiwifruit year average production in the district such selection is deemed unnecessary grown in the production area; and and shall be established so as to provide by the Secretary. The selection shall be (5) All handling of kiwifruit grown in an equitable relationship between made on the basis of representation the production area as defined in the membership and districts. The provided for in § 920.20. marketing order, is in the current of committee may, with the approval of the 7. Revise § 920.27 to read as follows: interstate or foreign commerce or Secretary, provide such other allocation directly burdens, obstructs, or affects of membership as may be necessary to § 920.27 Alternate members. such commerce. assure equitable representation. An alternate member of the A 30-day comment period is provided 4. Revise § 920.21 to read as follows: committee, during the absence of the to allow interested persons to respond member for whom that individual is an to this proposal. Thirty days is deemed § 920.21 Term of office. alternate, shall act in the place and appropriate because the 2009–2010 The term of office of each member stead of such member and perform such fiscal period has already begun, and it and alternate member of the committee other duties as assigned. In the event would be preferable to have these shall be for two years from the date of both a member and his or her alternate changes, if adopted, in place for this their selection and until their successors are unable to attend a committee fiscal period. All written exceptions are selected. The terms of office shall meeting, the committee may designate

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any other alternate member from the Dated: November 5, 2009. ‘‘Public Participation and Request for same district to serve in such member’s Rayne Pegg, Comments’’ portion of the place and stead if necessary to secure a Administrator, Agricultural Marketing SUPPLEMENTARY INFORMATION section quorum. In the event of the death, Service. below for instructions on submitting removal, resignation, or disqualification [FR Doc. E9–27135 Filed 11–10–09; 8:45 am] comments. of a member, the alternate of such BILLING CODE 3410–02–P member shall act for him or her until a FOR FURTHER INFORMATION CONTACT: If successor for such member is selected you have questions on this proposed rule, call or e-mail Lieutenant and has qualified. DEPARTMENT OF HOMELAND Commander Jim Larson, Office of Shore 8. Revise § 920.32 to read as follows: SECURITY Forces (CG–7413), Coast Guard; § 920.32 Procedure. Coast Guard telephone 202–372–1554, e-mail (a) Eight members of the committee, [email protected]. If you have or alternates acting for members, shall 33 CFR Parts 161 and 165 questions on viewing or submitting constitute a quorum, and any action of material to the docket, call Ms. Renee V. [Docket No. USCG–1998–4399] the committee shall require the Wright, Program Manager, Docket concurring vote of the majority of those RIN 1625–AA58 (Formerly RIN 2115–AF75) Operations, telephone 202–366–9826. present: Provided, That actions of the SUPPLEMENTARY INFORMATION: committee with respect to expenses and Vessel Traffic Service Lower assessments, research and promotion Mississippi River Table of Contents for Preamble activities, or recommendations for AGENCY: Coast Guard, DHS. I. Public Participation and Request for regulations pursuant to §§ 920.50 ACTION: Supplemental notice of Comments through 920.55 of this part shall require proposed rulemaking. A. Submitting Comments at least eight concurring votes. B. Viewing Comments and Documents (b) Committee meetings may be SUMMARY: The Coast Guard proposes to C. Privacy Act assembled or held by telephone, video establish a Vessel Traffic Service (VTS) D. Public Meeting II. Abbreviations conference, or other means of on the Lower Mississippi River and III. Background communication. The committee may transfer certain vessel traffic A. Regulatory History vote by telephone, facsimile, or other management (VTM) provisions of the B. Vessel Traffic Services means of communication. Votes by Mississippi River, Louisiana—Regulated C. Stakeholder Involvement members or alternates present at Navigation Area to the VTS. The D. Automatic Identification System assembled meetings shall be cast in proposed rule would implement current Concept person. Votes by members or alternates practices and operating procedures IV. Summary of Changes Between NPRM and participating by telephone or other appropriate to an Automatic SNPRM means of communication shall be by Identification System (AIS)-based VTS V. Discussion of Comments roll call; Provided, That a video and facilitate vessel transits, enhance VI. Discussion of Supplemental Notice of conference shall be considered an good order, promote safe navigation, Proposed Rulemaking assembled meeting, and votes by those and improve existing waterway A. Section 161.2 Definitions B. Section 161.6 Preemption operating measures. The rule also participating through video conference C. Section 161.12 Vessel Operating shall be considered as cast in person. proposes minor conforming revisions to Requirements 9. Add a new § 920.45 to read as the existing VTM provisions and related D. Section 161.65 Vessel Traffic Service follows: regulations. Lower Mississippi River DATES: Comments and related material E. Section 165.810 Mississippi River, § 920.45 Contributions. must either be submitted to our online LA—Regulated Navigation Area The committee may accept voluntary docket via http://www.regulations.gov VII. Regulatory Analyses contributions, but these shall only be on or before January 11, 2010 or reach A. Regulatory Planning and Review used to pay expenses incurred pursuant the Docket Management Facility by that B. Small Entities to § 920.47. Furthermore, such date. C. Assistance for Small Entities contributions shall be free from any D. Collection of Information ADDRESSES: You may submit comments E. Federalism encumbrances by the donor, and the identified by docket number USCG– F. Unfunded Mandates Reform Act committee shall retain complete control 1998–4399 using any one of the G. Taking of Private Property of their use. following methods: H. Civil Justice Reform 10. Add a new § 920.47 to read as (1) Federal eRulemaking Portal: I. Protection of Children follows: http://www.regulations.gov. J. Indian Tribal Governments (2) Fax: 202–493–2251. K. Energy Effects § 920.47 Production research, marketing (3) Mail: Docket Management Facility L. Technical Standards research and development. (M–30), U.S. Department of M. Environment The committee, with the approval of Transportation, West Building Ground I. Public Participation and Request for the Secretary, may establish or provide Floor, Room W12–140, 1200 New Jersey Comments for the establishment of production and Avenue, SE., Washington, DC 20590– post-harvest research, and marketing 0001. We encourage you to participate in research and development projects (4) Hand delivery: Same as mail this rulemaking by submitting designed to assist, improve, or promote address above, between 9 a.m. and 5 comments and related materials. All the marketing, distribution, and p.m., Monday through Friday, except comments received will be posted consumption or efficient production of Federal holidays. The telephone number without change to http:// kiwifruit. The expense of such projects is 202–366–9329. www.regulations.gov and will include shall be paid from funds collected To avoid duplication, please use only any personal information you have pursuant to §§ 920.41 and 920.45. one of these four methods. See the provided.

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A. Submitting Comments signing the comment, if submitted on ITU International Telecommunications behalf of an association, business, labor Union If you submit a comment, please LMRWSAC Lower Mississippi River include the docket number for this union, etc.). You may review a Privacy Act notice regarding our public dockets Waterways Safety Advisory Committee rulemaking (USCG–1998–4399), MHz Megahertz indicate the specific section of this in the January 17, 2008, issue of the NDG National Dialogue Group document to which each comment Federal Register (73 FR 3316). NEPA National Environmental Policy Act applies, and provide a reason for each D. Public Meeting NPRM Notice of Proposed Rulemaking PAWSS Port and Waterways Safety Systems suggestion or recommendation. You The Coast Guard held a public may submit your comments and PWSA Ports and Waterways Safety Act meeting on October 24, 1998, in New PWSSC Ports and Waterways Safety material online or by fax, mail, or hand Orleans, Louisiana. We announced this Systems Committee delivery, but please use only one of meeting in a notice published in the VMRS Vessel Movement Reporting System these means. We recommend that you Federal Register on September 18, 1998 VTC Vessel Traffic Center include your name and a mailing (63 FR 49939). This meeting provided VTM Vessel Traffic Management address, an e-mail address, or a phone the Coast Guard with the opportunity to VTS Vessel Traffic Service number in the body of your document VTS LMR Vessel Traffic Service Lower discuss the Vessel Traffic Service (VTS) Mississippi River so that we can contact you if we have concept and the envisioned impact of questions regarding your submission. the Automatic Identification System III. Background To submit your comment online, go to (AIS) technology to the VTS program. A. Regulatory History http://www.regulations.gov, click on the This meeting also afforded us an ‘‘submit a comment’’ box, which will opportunity to report the preliminary On April 26, 2000, the Coast Guard then become highlighted in blue. In the results of AIS tests conducted on the published a notice of proposed ‘‘Document Type’’ drop down menu Lower Mississippi River (LMR). rulemaking (NPRM) entitled ‘‘Vessel select ‘‘Proposed Rules’’ and insert Advances in the use of AIS technology Traffic Service Lower Mississippi ‘‘USCG–1998–4399’’ in the ‘‘Keyword’’ and its impact on the established VTS River’’ in the Federal Register (65 FR box. Click ‘‘Search’’ then click on the are not discussed in depth in this 24616) and requested comments during balloon shape in the ‘‘Actions’’ column. rulemaking; however, AIS requirements a 90-day comment period. Due to If you submit your comments by mail or were the subject of a separate several requests for additional time to hand delivery, submit them in an rulemaking published on October 22, comment, on August 18, 2000, the Coast 1 unbound format, no larger than 8 ⁄2 by 2003 (68 FR 60559). Guard published a notice in the Federal 11 inches, suitable for copying and In addition, the Coast Guard Register (65 FR 50479) reopening the electronic filing. If you submit discussed the VTS concept at various comment period until December 1, comments by mail and would like to Lower Mississippi River Waterways 2000, and announcing that the Coast know that they reached the Facility, Safety Advisory Committee Guard would hold a public meeting. On please enclose a stamped, self-addressed (LMRWSAC) meetings. LMRWSAC is a September 20, 2000, the Coast Guard postcard or envelope. federally-chartered advisory committee, published a notice of meeting in the We will consider all comments and chaired by the Eighth Coast Guard Federal Register (65 FR 56843) material received during the comment District Commander, and is charged announcing that the Coast Guard would period and may change this proposed with making recommendations to the hold a public meeting in New Orleans, rule based on your comments. Coast Guard on matters relating to the Louisiana, on October 24, 2000, to B. Viewing Comments and Documents transit of vessels and products on the receive public comments on the NPRM. LMR. These open forums have allowed On October 24, 2000, the Coast Guard To view comments, as well as the public the opportunity to comment held a public meeting in New Orleans documents mentioned in this preamble on both VTS and AIS issues. The on Vessel Traffic Service Lower as being available in the docket, go to public’s input has been, and will be, Mississippi River (VTS LMR). Twenty- http://www.regulations.gov, click on the taken into account prior to the final four people attended the meeting, and ‘‘read comments’’ box, which will then rulemaking. two individuals provided comments. become highlighted in blue. In the We are still considering whether to This proposed rule would amend ‘‘Keyword’’ box insert ‘‘USCG–1998– have another public meeting on this vessel traffic measures within the 4399’’ and click ‘‘Search.’’ Click the issue. The Coast Guard would like your Mississippi River Regulated Navigation ‘‘Open Docket Folder’’ in the ‘‘Actions’’ comments on the reasons why another Area and require vessels as defined in column. If you do not have access to the meeting would be beneficial. Send your 33 CFR 161.2 to participate in a vessel Internet, you may view the docket comments requesting a public meeting traffic service (VTS) that will serve the online by visiting the Docket to the Docket Management Facility at Lower Mississippi River (LMR). Management Facility in Room W12–140 the address under ADDRESSES. If we Additionally, this proposed rule would on the ground floor of the Department determine that another public meeting update certain operating practices, of Transportation West Building, 1200 would aid this rulemaking, we will hold adopt standard traffic management New Jersey Avenue, SE., Washington, one at a time and place announced by procedures, and inform mariners of DC 20590, between 9 a.m. and 5 p.m., a later notice in the Federal Register. certain services provided by a Coast Monday through Friday, except Federal Guard VTS. holidays. We have an agreement with II. Abbreviations B. Vessel Traffic Services the Department of Transportation to use Abbreviation/Explanation the Docket Management Facility. The Coast Guard operates 12 VTSs in AHP Above Head of Passes the United States. A VTS provides C. Privacy Act AIS Automatic Identification System CH Channel navigation and safety information so Anyone can search the electronic COTP Captain of the Port mariners can make informed decisions form of comments received into any of GPS Global Positioning System during their voyage. In the past, the our dockets by the name of the IEC International Electrotechnical Coast Guard operated variations of a individual submitting the comment (or Commission VTS in the New Orleans area.

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Unfortunately, these efforts were watch using lanterns and whistle signals staffing, and site location hampered the plagued by budgetary constraints, the to a 24-hour, federally-staffed light operator’s ability to provide overall limitations of voluntary participation, communication station with twin safety and efficiency of anticipated and the temporary or part-time nature of control light towers at Governor vessel traffic beyond the immediate the VTS operation. Since Nicholls Street Wharf and Gretna Lights. vicinity of Algiers Point. Through disestablishment of the VTS in New Although not formally recognized as a implementation of a continuously- Orleans in the 1980s, the Coast Guard, VTS, the communication station has operating VTS, the Coast Guard has as directed by the Oil Pollution Act of provided longstanding traffic enhanced system capabilities and 1990 (OPA 90, Pub. L. 101–380), has: management services from its inception. improved navigation on the entire LMR. (1) Validated the need for a VTS in The Algiers Point/Crescent area is certain ports; currently subject to regulatory C. Stakeholder Involvement (2) Made participation mandatory in provisions established in 33 CFR The Coast Guard has long recognized all VTS ports; and 165.810(c). The procedures and that a VTS on the LMR is a valuable (3) Invested in infrastructure practices proposed in this rule are asset to all entities, the ‘‘stakeholders’’, improvement to VTS equipment and essentially the same as those currently that may be impacted by the waterway standardized operating procedures used in the Algiers Point/Crescent area, either directly or indirectly. In addition, across all United States VTSs. but are being moved to 33 CFR 161.65(c) many of the stakeholders who regularly The Coast Guard has long recognized to consolidate all VTS regulations under utilize the waterway have advised us the potential benefits of properly one section. that to achieve success, the VTS must established VTSs in U.S. ports and The primary objective of the existing meet the needs of the waterway users waterways. As a result, the Coast Guard regulatory system is providing an while imposing the least burden. established the Ports and Waterways orderly traffic flow around Algiers In 1997, the Coast Guard formed the Safety System (PAWSS) acquisition Point. Algiers Point is one of the most Ports and Waterways Safety Systems project to address waterway users’ challenging bends to safely navigate on Committee (PWSSC). The Coast Guard needs and place a greater emphasis on the Mississippi River, particularly in created this ad-hoc committee, a partnerships with industry to reduce high water conditions. In one of the subcommittee under LMRWSAC, of risk in the marine environment. As part busiest industrial harbors in the world, maritime, port community, government, of PAWSS, the Coast Guard vessels must negotiate a 120-degree and public stakeholders to define user immediately convened a national bend in the river amidst constantly requirements for a VTS that would dialogue group (NDG) comprised of changing hydrographic conditions, accomplish the overall goals of safety maritime and waterway community congested waters, and various bridges and efficiency. Since its formation, stakeholders to identify the needs of and piers. Mandatory vessel traffic PWSSC has met several times, and the waterway users with respect to Vessel measures, represented by the light product of these meetings was a Traffic Management (VTM) and VTS signals, are utilized to lessen the conceptual baseline VTS plan (see systems. The Coast Guard sponsored potential for mishap during periods of document USCG–1998–4399–0003 at these discussions, which were hosted by high water. The consequences of http://www.regulations.gov) endorsed the Committee on Maritime Advanced improper navigation in this segment of by LMRWSAC. Key recommendations of Information Systems (MAIS) under the the river are both significant and well- this plan involved the need to auspices of The Marine Board of the documented. Since 1991, there have implement AIS technology and to National Research Council. Those been multiple reportable marine incorporate AIS as a key component of stakeholders, representing all major casualties within the area covered by any VTS implementation. sectors of the U.S. and foreign-flagged this rulemaking. The failure to safely maritime industry, port authorities, D. Automatic Identification System transit this area can quickly lead to a Concept pilots, the environmental community, mishap that causes substantial property and the Coast Guard, were tasked to: (1) damage, serious environmental and AIS technology relies on Global Identify the information needs of economic consequences, or loss of life. Positioning System (GPS), navigation waterway users to ensure safe passage; The Coast Guard and local mariners sensors, and digital communication (2) assist in establishing a process to recognize that this segment of the equipment operating according to identify candidate waterways for VTM waterway warrants great vigilance. The standardized protocols (i.e., AIS improvements and VTS installations; nature of vessel traffic within this area transponders) that permit the voiceless and (3) identify the basic elements of a and the anticipated increase in traffic exchange of navigation information VTS. The goal of the NDG was to requires that certain vessel traffic between vessels and shoreside VTCs. provide a foundation for the measures are active at all times or at The AIS transponders on vessels can development of an approach to VTM least available at a moment’s notice. broadcast information about the vessel, that would meet the shared government, These measures can best be assured by such as its name or call sign, industry, and public objective of operating a Vessel Traffic Center (VTC) dimensions, type, position (derived ensuring the safety of vessel traffic in within the framework of a VTS. A VTC from a GPS input), course, speed, and U.S. ports and waterways in a is a shoreside facility from which the navigation status. This information is technologically sound and cost effective VTS operates and has the continually updated and received by all way. communications capability to interact AIS-equipped vessels in its vicinity. An A federally-operated and locally- with marine traffic and respond to AIS-based VTS is able to augment this adopted VTM facility has been in place developing situations. The existing broadcast with additional safety and in New Orleans Harbor since the 1930s. Control Light operation in the LMR and navigation information such as weather, In an effort to assist the mariner, around Algiers Point has proven tides, currents, and status of safeguard the port, ensure good order, valuable in some measures of VTM; navigational aids. This additional and improve safety, the local maritime however, these measures are narrow in information can be relayed to all VTS community implemented the Algiers scope, limited to a small area, and only users for consideration in voyage Point Control Lights. This system operated during periods of high water. planning and execution. The advantage evolved from local river pilots standing Historically, limitations of equipment, of this automatic exchange of

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information is that it can be accessed by personnel and a modernized VTC. From monitoring areas, utilizing VHF all mariners, tailored to the mariners’ this VTC, we have the capability to channels 11, 12, and 05A. VHF channel needs and desires, and greatly reduce monitor the movement of VTS users and 14 is being utilized by the U.S. Army voice radio exchanges. The ease of provide navigation services that will Corps of Engineers for lock operations operation of the VTS and the reduction help all requesting mariners plan their in the VTS LMR area, and the use of CH of voice interactions should greatly transits of the LMR. Because the bend at 14 by VTS LMR would interfere with enhance mariners’ ability to navigate, Algiers Point remains an area of great lock operations. In lieu of CH 14, the improve their situational awareness, concern and warrants extra precaution, Coast Guard is proposing to utilize VHF and assist them in the performance of we also designated the segment of the CH 11 (156.550 MHz) in the southern their duties, thus reducing the risk of river between 93.5 and 95 miles Above section of the VTS LMR area, which is collisions. Head of Passes (AHP) as a VTS Special currently designated as a VTS protected The Coast Guard recognizes the Area, and provisions formerly set forth frequency for the VTS LMR area in 47 importance of AIS and has led the way in 33 CFR 165.810(c) continue to apply CFR 80.383. The Coast Guard is also on various international fronts for in periods of high water. Due to added proposing to establish an additional acceptance and adoption of this concerns with a high number of vessel northern monitoring area, within the technology. Through its national casualties in the vicinity of Eighty-one VTS area originally proposed in the representation role in the International Mile Point as a result of unique river NPRM, utilizing VHF Channel 05A. Maritime Organization (IMO), conditions, an additional VTS Special This channel is not currently designated International Telecommunications Area is being designated on the river as a VTS protected frequency, but the Union (ITU), and participation in between 167.5 and 187.9 miles AHP. Coast Guard will be petitioning the FCC various other international working Provisions formerly set forth in 33 CFR for protection status for this channel groups, including groups within the 165.810(g) continue to apply. and has already made frequency use International Electrotechnical This rule also proposes extending the applications through appropriate Commission (IEC), the Coast Guard has area of operation of VTS LMR to the Federal agencies. Field tests have been been a leader in the drafting and/or area between 20 miles above Baton conducted on CH 05A during which adoption of various technical standards Rouge to the outer limit of the 12-mile little other marine traffic was identified, (e.g., ITU–R M.1371–3, IEC 61993–2, territorial sea boundary. indicating that little impact will result IEC 62320–1). Through comprehensive IV. Summary of Changes Between from the Coast Guard’s use of this field testing and based on feedback NPRM and SNPRM channel. received from test participants and other • Since publishing the NPRM, Coast interested parties in the area, the Coast The Coast Guard made the following Guard District Eight established Guard established a voluntary- changes to the notice of proposed operating requirements in § 165.810 to participation VTS on the LMR that rulemaking (NPRM) and incorporated cover the vicinity of Eighty-one Mile incorporated full use of AIS technology them in this supplemental NPRM Point (72 FR 41624). The operating in 2004. (SNPRM): requirements for this area are now In 2003, the USCG published a final • In the NPRM, we proposed to revise included in this proposed rule as a new rule that harmonized the AIS carriage § 26.03 by deleting Table 26.03(f) and VTS Special Area in § 161.65(e). and standardization requirements revising paragraph (f). We did not make • In the NPRM, we proposed to contained in the Maritime those changes in this proposed rule remove § 165.810(c) and redesignate the Transportation Security Act of 2002, because the changes were completed in remaining paragraphs. However, we Section 102, Public Law 107–295, 116 a different rulemaking (68 FR 60559). instead propose to remove and reserve Stat. 2064, 46 U.S.C. 70114 (November • In the NPRM, we discussed the paragraph (c) to preserve the original 25, 2002) (MTSA) with the requirements federalism implications of this rule and designations for the remaining of the International Convention for the determined that the proposed rule paragraphs. Safety of Life at Sea (SOLAS) that would have preemptive effect over any V. Discussion of Comments established AIS carriage requirements State laws or regulations on the same for commercial vessels (33 CFR 164). subject matter. We have restated that The Coast Guard received 21 letters Because of this prior regulation, all U.S.- determination elsewhere in this rule. In commenting on the original proposed flagged commercial vessels required to addition, we have created a new § 161.6 rule (65 FR 24616). We held one public carry AIS equipment for operation in to explicitly state that this rule has meeting where we received two public the VTS under this proposed rule have preemptive effect over state law on this comments. Many of the public’s been in compliance since 2004. subject. comments in response to the April 2000 Similarly, foreign-flagged vessels have • In the NPRM, we proposed to revise notice of proposed rulemaking (NPRM) been required to carry AIS equipment Table 161.12(b) by adding a new entry have been overtaken by subsequent under the SOLAS Convention since that describes the LMR VTS area. We events. As a result, we summarize below 2004. did not make those changes in this those actions that have taken place since This rulemaking proposes proposed rule because they were the original round of public comments establishing mandatory-participation in completed in a different rulemaking (68 and this supplemental NPRM (SNPRM). the current voluntary VTS on the LMR. FR 60559). That rulemaking also The public will have an opportunity to This effort is part of a comprehensive redesignated Table 161.12(b) as Table comment on the current state of VTS safety improvement initiative being 161.12(c). However, in the table LMR operations as addressed in this implemented by the Coast Guard in currently designated Table 161.12(c), we proposed rulemaking. consultation with various maritime propose to revise footnote 6 to indicate Since April 26, 2000, the Coast Guard entities in the area, including the operation of the VTS LMR. In has installed and operationally tested a LMRWSAC. addition, two VTS monitoring areas Vessel Traffic Management (VTM) The Coast Guard completed a were proposed for VTS LMR in the system to monitor the Lower capitalization program in 2004 that NPRM, utilizing VHF channels 12 and Mississippi River (LMR) area addressed provided Coast Guard Sector New 14. Based on the operational experience in this rulemaking. The system is a Orleans with additional Coast Guard of VTS LMR, we now propose three VTS computer-based VTM system that

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utilizes Automatic Identification System safety and efficiency of traffic in the Mississippi River, LA–RNA provisions (AIS), closed circuit television cameras VTS area as proposed in this rulemaking on Control Lights. The core of these (CCTV), radar, and VHF radio and look forward to addressing new provisions would be added to the communications to monitor and advise public comments received regarding the special operating requirements of the vessel traffic on the Mississippi River. proposed rulemaking. Algiers Point VTS Special Area in Computer-based VTM systems have VI. Discussion of Supplemental Notice § 161.65(c). been operationally proven as a reliable of Proposed Rulemaking Additionally, we propose to remove VTM system in seven U.S. ports and are and reserve paragraph (g), the existing maintained and supported through This proposed rule would revise Mississippi River, LA–RNA provisions Coast Guard efforts. regulations in 33 CFR parts 161 and 165 around Eighty-one Mile Point. The core The VTS is now fully staffed by Coast as follows: of these requirements would be added Guard civilian employees, who have A. Section 161.2 Definitions to the special operating requirements of undergone a rigorous selection, training, the Eighty-one Mile Point VTS Special We propose to clarify the term and qualification process. As part of this Area in § 161.65(e). training and qualification process, we ‘‘Hazardous Vessel Operating Condition’’ to make it clear that, in Finally, we propose adding a note at have developed a National VTS the end of this section alerting the Certification Course, based upon the addition to equipment and manning shortcomings, any vessel condition that reader that we would move the International Association of Marine information previously located in Aids to Navigation and Lighthouse ‘‘may affect the positive control or safe handling’’ of a vessel, towing vessels in paragraphs (c) and (g) of this section to Authorities (IALA) VTS Training § 161.65. Curriculum, that each VTS watch particular, is deemed a ‘‘Hazardous stander must complete. In addition to Vessel Operating Condition.’’ VII. Regulatory Analyses Coast Guard employees, the VTS watch B. Section 161.6 Preemption We developed this proposed rule after is augmented by two onsite Pilot considering numerous statutes and Advisors, who bring additional We propose to add this section to explicitly state that this rule has executive orders related to rulemaking. knowledge and experience to the VTS Below we summarize our analyses operation. The Coast Guard has two preemptive effect over state law on this subject. based on 13 of these statutes or Memorandums of Understanding with executive orders. (1) the Crescent River Port Pilots C. Section 161.12 Vessel Operating Association and the Independent River Requirements A. Regulatory Planning and Review Pilots and (2) the New Orleans and The Coast Guard proposes to revise This proposed rule is not a significant Baton Rouge Steamship Pilots and the Table 161.12(c). Specifically, we modify regulatory action under section 3(f) of Independent New Orleans and Baton the VTS LMR entry in the table by Executive Order 12866, Regulatory Rouge Steamship Pilots, which address changing from two to three monitoring Planning and Review, and does not the staffing of the VTS with pilot areas and updating the designated require an assessment of potential costs advisors. frequencies. Additionally, we revise the and benefits under section 6(a)(3) of that In addition to the installation of the text in footnote 6 by deleting the Order. The Office of Management and VTM system, remote traffic control light reference to VTS LMR. Budget has not reviewed it under that tower operations from Governor Nichols Order. Street Wharf and Gretna Light have been D. Section 161.65 Vessel Traffic safely transitioned to the Coast Guard Service, Lower Mississippi River This proposed rule would establish a VTS on the Lower Mississippi River and VTS center. Many of the original public The Coast Guard proposes to add a comments expressed concern with the transfer certain VTM provisions of the new entry that describes the Lower Mississippi River, Louisiana—Regulated ability of the Coast Guard to safely Mississippi River Vessel Traffic Service transition to and monitor the traffic Navigation Area to the VTS. The area. The VTS area extends from 20 proposed rule would implement current control towers from a consolidated VTS miles north of Baton Rouge to the outer center utilizing an AIS based VTS practices and procedures appropriate to limit of the territorial sea, seaward of an AIS-based VTS. system. Remote tower operation is Southwest Pass. Within this VTS, there further enhanced through the use of Based on data from the Coast Guard will be two VTS Special Areas. Marine Information for Safety and Law CCTV coverage of the river in critical The Algiers Point VTS Special Area Enforcement (MISLE) database, we areas. These remote operations have will consist of those waters of the LMR estimate the proposed rule would affect been in place since 2004. between 93.5 and 95.0 miles Above 1,796 U.S.-flagged vessels with hailing Many of the original public comments Head of Passes (AHP). Special operating ports from mile 242.4 Above Head of addressed concerns with AIS equipment requirements are proposed to mirror the Passes (AHP) (near Baton Rouge) to the carriage requirements associated with existing Control Light operations and the proposed rule. Since we published would be in effect during periods of territorial sea boundary and an the NPRM in the Federal Register in high water. estimated 2,294 foreign-flagged vessels. 2000, the Coast Guard separated the The Eighty-one Mile Point VTS The requirements for compliance with VTS LMR and AIS rulemaking projects Special Area will consist of those waters this proposed rule include: • into two separate rulemaking projects of the LMR between 167.5 and 187.9 Certain classes of commercial (see USCG–2005–21869 for the AIS miles AHP. Special operating vessels would be required to carry rulemaking). AIS is now fully integrated requirements are proposed to mirror the functioning AIS equipment and to with the Coast Guard traffic existing operating requirements and employ the AIS equipment while management systems and has proven to would be in effect at all times. operating within the VTS. be an effective traffic management tool • Commercial vessels not required to in LMR, as well as the other U.S. VTS E. Section 165.810 Mississippi River, carry AIS equipment would be required ports. LA—Regulated Navigation Area to follow established reporting We feel that the current state of VTS The Coast Guard proposes to remove procedures via radiotelephone when operations on the LMR increases the and reserve paragraph (c), the existing operating within the VTS area.

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• Coast Guard would maintain an to either industry or government Because of this prior regulation, all operational Vessel Traffic Center (VTC) resulting from this proposed rule. U.S.-flagged commercial vessels to monitor and direct traffic within the In 2003, the USCG published a final required to carry AIS equipment for VTS. rule that harmonized the AIS carriage operation in the VTS under this While this proposed rule would and standardization requirements proposed rule have been in compliance establish a mandatory participation contained in the Maritime since 2004. Similarly, foreign-flagged Vessel Traffic Service (VTS), its Transportation Security Act of 2002 vessels have been required to carry AIS principal effect will be to codify current (MTSA) with the requirements of the equipment under the SOLAS practices. The requirements of this International Convention for the Safety Convention since 2004. A list of the proposed rule have been implemented of Life at Sea (SOLAS) that established categories of commercial vessels and the through prior regulations and we expect AIS carriage requirements for dates of compliance for AIS carriage are that there would not be additional costs commercial vessels (33 CFR part 164). shown in Table 1.

TABLE 1—COMMERCIAL VESSELS: AIS CARRIAGE REQUIREMENTS

Class of vessel AIS currently required Compliance date

Self propelled vessels 65 feet or more in length in commercial service and on Yes ...... December 31, 2004. an international voyage (excludes passenger and fishing vessels). Passenger Vessels of 150 gross tons or more on an international voyage ...... Yes ...... July 1, 2003. Tankers on international voyages, regardless of tonnage ...... Yes ...... July 1, 2003. Vessels of 50,000 gross tons or more, other than tankers or passenger ships, Yes ...... July 1, 2004. on international voyages. Vessels of 300 gross tons or more but less than 50,000 gross tons, other than Yes ...... December 31, 2004. tankers or passenger ships. Self propelled vessels of 65 feet or more in length in commercial service (ex- Yes, when operating in a VTS or December 31, 2004. cludes fishing vessels and passenger vessels certificated to carry less than VMRS. 151 passengers for hire). Towing Vessels 26 feet or more in length and more than 600 horsepower in Yes, when operating in a VTS or December 31, 2004. commercial service. VMRS. Passenger Vessels certificated to carry more than 150 passengers for hire ...... Yes, when operating in a VTS or December 31, 2004. VMRS. Fishing Vessels ...... No.

Commercial vessels that are not current practices which increase the number of small entities. If you think required to carry AIS equipment must efficiency of vessel operations on the that your business, organization, or maintain radiotelephone Lower Mississippi River by governmental jurisdiction qualifies as a communication with the VTC while consolidating and standardizing vessel small entity and that this rule would traversing the VTS. These requirements operating procedures. have a significant economic impact on have been in place since July of 1982, it, please submit a comment to the B. Small Entities when the Coast Guard established Docket Management Facility at the specific radiotelephone frequencies and Under the Regulatory Flexibility Act address under ADDRESSES. In your reporting procedures for vessels (5 U.S.C. 601–612), we have considered comment, explain why you think it operating in the Mississippi River, LA- whether this proposed rule would have qualifies and how and to what degree Regulated Navigation Area. a significant economic impact on a this rule would economically affect it. The Coast Guard has operated a VTC substantial number of small entities. C. Assistance for Small Entities from a shoreside facility in downtown The term ‘‘small entities’’ comprises New Orleans since late 1999. This VTC small businesses, not-for-profit Under section 213(a) of the Small provides the core communications and organizations that are independently Business Regulatory Enforcement monitoring functions for the VTS. owned and operated and are not Fairness Act of 1996 (Pub. L. 104–121), The procedures and practices dominant in their fields, and we want to assist small entities in proposed in this proposed rule are the governmental jurisdictions with understanding this proposed rule so that same as those currently in use at the populations of less than 50,000. they can better evaluate its effects on Algiers Point/Crescent area of the VTS. As previously discussed, the them and participate in the rulemaking. Currently, commercial vessel requirements for vessel operation in the If the proposed rule would affect your movements in the VTS traverse the Algiers Point and Eighty-one Mile Point small business, organization, or Algiers Point/Crescent area and current special areas were implemented in prior governmental jurisdiction and you have compliance with the rules of this area regulations, and most vessels which will questions concerning its provisions or fulfills the requirements of the larger be required to participate in the VTS are options for compliance, please consult VTS. currently equipped to follow regulations with the Coast Guard personnel listed in As with the costs of the proposed already established in those two areas. the FOR FURTHER INFORMATION CONTACT rule, the benefits were also realized As a result, we expect that this rule section of the rule. The Coast Guard will through vessel compliance with the would not impose additional costs on not retaliate against small entities that prior regulations that established AIS any of the vessels operating in the VTS question or complain about this rule or and radiotelephone carriage LMR. any policy or action of the Coast Guard. requirements and the VTC operations Therefore, the Coast Guard certifies Small businesses may send comments center. The principal benefit of under 5 U.S.C. 605(b) that this proposed on the actions of Federal employees changing VTS participation from rule would not have a significant who enforce, or otherwise determine voluntary to mandatory is to codify economic impact on a substantial compliance with, Federal regulations to

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the Small Business and Agriculture as these categories are within a field H. Civil Justice Reform Regulatory Enforcement Ombudsman foreclosed from regulation by the States This proposed rule meets applicable and the Regional Small Business (see U.S. v. Locke, above), the Coast standards in sections 3(a) and 3(b)(2) of Regulatory Fairness Boards. The Guard recognizes the key role state and Executive Order 12988, Civil Justice Ombudsman evaluates these actions local governments may have in making Reform, to minimize litigation, annually and rates each agency’s regulatory determinations. The State of eliminate ambiguity, and reduce responsiveness to small business. If you Louisiana and the Coast Guard have burden. wish to comment on actions by worked closely throughout the I. Protection of Children employees of the Coast Guard, call 1– development of these regulations. 888–REG–FAIR (1–888–734–3247). Additionally, Sections 4 and 6 of We have analyzed this proposed rule D. Collection of Information Executive Order 13132 require that for under Executive Order 13045, any rules with preemptive effect, the Protection of Children from This proposed rule would call for no Environmental Health Risks and Safety new collection of information under the Coast Guard shall provide elected officials of affected state and local Risks. This rule is not an economically Paperwork Reduction Act of 1995 (44 significant rule and would not create an U.S.C. 3501–3520). governments and their representative national organizations the notice and environmental risk to health or risk to safety that might disproportionately E. Federalism opportunity for appropriate affect children. A rule has implications for federalism participation in any rulemaking under Executive Order 13132, proceedings, and to consult with such J. Indian Tribal Governments Federalism, if it has a substantial direct officials early in the rulemaking process. This proposed rule does not have effect on State or local governments, and Therefore, we invite affected state and tribal implications under Executive would either preempt State law or local governments and their Order 13175, Consultation and impose a substantial direct cost of representative national organizations to Coordination with Indian Tribal compliance on them. indicate their desire for participation Governments, because it would not have We have analyzed this proposed rule and consultation in this rulemaking a substantial direct effect on one or under that Order and have determined process by submitting comments to this more Indian tribes, on the relationship that it has implications for federalism. A notice. In accordance with Executive between the Federal Government and summary of the impact of federalism in Order 13132, the Coast Guard will Indian tribes, or on the distribution of this rule follows. provide a federalism impact statement power and responsibilities between the Title I of the Ports and Waterways to document (1) the extent of the Coast Federal Government and Indian tribes. Safety Act (PWSA) (33 U.S.C. 1221 et. Guard’s consultation with State and seq.) authorizes the Secretary to issue K. Energy Effects local officials that submit comments to regulations to establish and maintain We have analyzed this proposed rule this proposed rule, (2) a summary of the vessel traffic services consisting of under Executive Order 13211, Actions nature of any concerns raised by state or measures for controlling or supervising Concerning Regulations That local governments and the Coast vessel traffic to protect the marine Significantly Affect Energy Supply, environment. In enacting PWSA in Guard’s position thereon, and (3) a Distribution, or Use. We have 1972, Congress learned that advance statement of the extent to which the determined that it is not a ‘‘significant planning and consultation with the concerns of State and local officials energy action’’ under that order because affected States and other stakeholders have been met. We will also report to it is not a ‘‘significant regulatory action’’ was necessary to develop and the Office of Management and Budget under Executive Order 12866 and is not implement a VTS. The Coast Guard, any written communications with the likely to have a significant adverse effect throughout the development of the VTS states. on the supply, distribution, or use of on the Lower Mississippi River, has F. Unfunded Mandates Reform Act energy. consulted with the State of Louisiana, L. Technical Standards the affected state and Federal pilot’s The Unfunded Mandates Reform Act associations, vessel operators, users, and of 1995 (2 U.S.C. 1531–1538) requires The National Technology Transfer all affected stakeholders. Federal agencies to assess the effects of and Advancement Act (NTTAA) (15 The Coast Guard has determined, after their discretionary regulatory actions. In U.S.C. 272 note) directs agencies to use considering the factors developed by the particular, the Act addresses actions voluntary consensus standards in their Supreme Court in the consolidated that may result in the expenditure by a regulatory activities unless the agency cases of United States v. Locke and State, local, or tribal government, in the provides Congress, through the Office of Intertanko v. Locke, 529 U.S. 89, 120 aggregate, or by the private sector of Management and Budget, with an S.Ct. 1135 (March 6, 2000), that by $100,000,000 or more in any one year. explanation of why using these enacting Chapter 25 of the Ports and Though this proposed rule would not standards would be inconsistent with Waterways Safety Act, Congress applicable law or otherwise impractical. result in such an expenditure, we do intended to preempt the field of vessel Voluntary consensus standards are discuss the effects of this rule elsewhere traffic services in United States ports technical standards (e.g., specifications in this preamble. and waterways. Therefore, the of materials, performance, design, or regulations proposed in this rulemaking G. Taking of Private Property operation; test methods; sampling for operation and equipment required procedures; and related management on vessels have preemptive impact over This proposed rule would not effect a systems practices) that are developed or any State laws or regulations that may taking of private property or otherwise adopted by voluntary consensus be enacted on the same subject matter. have taking implications under standards bodies. While it is well settled that States may Executive Order 12630, Governmental This proposed rule does not use not regulate in categories in which Actions and Interference with technical standards. Therefore, we did Congress intended the Coast Guard to be Constitutionally Protected Property not consider the use of voluntary the sole source of a vessel’s obligations, Rights. consensus standards.

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M. Environment 33 CFR Part 165 clearance, speed capabilities, power availability, or similar characteristics, We have analyzed this proposed rule Harbors, Navigation (water), which may affect the positive control or under Department of Homeland Reporting and recordkeeping safe handling of the vessel or the tow. Security Management Directive 023–01 requirements, Vessels, Waterways. and Commandant Instruction For the reasons discussed in the * * * * * M16475.lD, which guide the Coast preamble, the Coast Guard proposes to 3. Add a new § 161.6 to read as Guard in complying with the National amend 33 CFR parts 161 and 165 as follows: Environmental Policy Act of 1969 follows: § 161.6 Preemption. (NEPA)(42 U.S.C. 4321–4370f), and have made a preliminary determination PART 161—VESSEL TRAFFIC The regulations in part 161 of this that this action is one of a category of MANAGEMENT subchapter as to vessels have actions which do not individually or preemptive impact over State law on the 1. The authority citation for part 161 cumulatively have a significant effect on same subject. The Coast Guard has continues to read as follows: the human environment. A preliminary determined after considering the factors environmental analysis checklist Authority: 33 U.S.C. 1223, 1231; 46 U.S.C. developed by the Supreme Court in U.S. supporting this determination is 70114, 70119; Pub. L. 107–295, 116 Stat. v Locke, 529 U.S. 89 (2000), that by available in the docket where indicated 2064; Department of Homeland Security enacting Chapter 25 of the Ports and under the ‘‘Public Participation and Delegation No. 0170.1. Waterways Safety Act (33 U.S.C. 1221 Request for Comments’’ section of this et. seq.), Congress intended to preempt § 161.2 [Amended] preamble. This rule involves regulations the field of vessel traffic services in changing Regulated Navigation Areas 2. In § 161.2, revise paragraph (3) of United States ports and waterways. the definition of Hazardous Vessel and regulations in aid of navigation. We § 161.12 [Amended] seek any comments or information that Operating Condition to read as follows: 4. In § 161.12, in Table 161.12(c)— may lead to the discovery of a § 161.2 Definitions. significant environmental impact from a. In footnote 6, remove the words this proposed rule. * * * * * ‘‘VTS Lower Mississippi River and’’; and Hazardous Vessel Operating Condition List of Subjects b. Amend Table 161.12(c) by revising * * * * * 33 CFR Part 161 the entries for New Orleans Traffic, to (3) Vessel characteristics that affect or read as follows: Harbors, Navigation (water), restrict maneuverability, such as cargo Reporting and recordkeeping or tow arrangement, trim, loaded § 161.12 Vessel operating requirements. requirements, Vessels, Waterways. condition, underkeel or overhead * * * * *

TABLE 161.12(C)—VTS AND VMRS CENTERS, CALL SIGNS/MMSI, DESIGNATED FREQUENCIES, AND MONITORING AREAS

Center MMSI 1 Designated frequency (Channel Monitoring Area 3,4 Call Sign designation)-purpose 2

*******

Lower Mississippi River—0036699952

New Orleans Traffic ...... 156.550 MHz (Ch. 11) ...... The navigable waters of the Lower Mississippi River below 29°55.3′ N 089°55.6′ W (Saxonholm Light at 86.0 miles Above Head of Passes (AHP)), extending down river to Southwest Pass, and, within a 12 nautical mile radius around 28°54.3′ N 089°25.7′ N (Southwest Pass Entrance Light at 19.9 miles Below Head of Passes. New Orleans Traffic ...... 156.600 MHz (Ch. 12) ...... The navigable waters of the Lower Mississippi River bounded on the north by a line drawn perpendicular on the river at 29°55′ 30″ N and 090°12′46″ W (Upper Twelve Mile Point at 109.0 miles AHP) and on the south by a line drawn perpendicularly at 29°55.3′ N 089°55.6′ W (Saxonholm Light at 86.0 miles AHP). New Orleans Traffic ...... 156.250 MHz ...... The navigable waters of the Lower Mississippi River below 30°38.7′ N (Ch. 05A) ...... 091°17.5′ W (Port Hudson Light at 255.0 miles AHP) bounded on the south by a line drawn perpendicular on the river at 29°55′30″ N and 090°12′46″ W (Upper Twelve Mile Point at 109.0 miles AHP).

******* Notes to Table161.12(c): 1Maritime Mobile Service Identifier (MMSI) is a unique nine-digit number assigned that identifies ship stations, ship earth stations, coast sta- tions, coast earth stations, and group calls for use by a digital selective calling (DSC) radio, an INMARSAT ship earth station or AIS. AIS require- ments are set forth in §§ 161.21 and 164.46 of this subchapter. The requirements set forth in §§ 161.21 and 164.46 of this subchapter apply in those areas denoted with a MMSI number. 2In the event of a communication failure, difficulties or other safety factors, the Center may direct or permit a user to monitor and report on any other designated monitoring frequency or the bridge-to-bridge navigational frequency, 156.650 MHz (Channel 13) or 156.375 MHz (Channel 67), to the extent that doing so provides a level of safety beyond that provided by other means. The bridge-to-bridge navigational frequency, 156.650 MHZ (Ch. 13) is used in certain monitoring areas where the level of reporting does not warrant a designated frequency. 3All geographic coordinates (latitude and longitude) are expressed in North American Datum of 1983 (NAD 83). 4Some monitoring areas extend beyond navigable waters. Although not required, users are strongly encouraged to maintain a listening watch on the designated monitoring frequency in these areas. Otherwise, they are required to maintain watch as stated in 47 CFR 80.148.

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* * * * * Lights (94.3 and 96.6 miles AHP, At both check-in and follow-on position 5. Add a new § 161.65 to read as respectively) in the following manner: check, VTS New Orleans will advise the follows: (i) Green Light—May proceed as vessel on traffic approaching Eighty-one intended. Mile Point. § 161.65 Vessel Traffic Service Lower (ii) Red Light—Do not proceed, unless Mississippi River. (2) Prior to proceeding downriver past otherwise directed by the VTS. 187.9 miles AHP COS–MAR Lights, (a) The Vessel Traffic Service (VTS) (iii) No Light—Do not proceed, vessels must contact VTS New Orleans area consists of navigable waters of the immediately notify VTS and await on VHF Channel 5A to check-in. Vessels Lower Mississippi River (LMR) below further directions. must provide name and destination, 30°38.7′ N, 91°17.5′ W (Port Hudson Note to § 161.65(c)(1): To provide advance confirm proper operation of their Light at 255.0 miles Above Head of notification to downbound vessels, a traffic automated identification system (AIS) if Passes (AHP)), the Southwest Pass, and repeater signal of Gretna Light is located at required under 33 CFR 164.46, and, if those within a 12 nautical mile radius Westwego, LA, 29°54.8′ N 90°08.3′ W (101.4 applicable, size of tow and number of around 28°54.3′ N, 89°25.7′ W miles AHP). loaded and empty barges. At 183.9 miles (Southwest Pass Entrance Light at 19.9 (2) A vessel awaiting a signal change AHP, Wyandotte Chemical Dock Lights, miles Below Head of Passes (BHP)). or VTS directions must keep clear of descending vessels must contact VTS (b) The Algiers Point VTS Special other vessels transiting the area. New Orleans and provide a follow-on Area consists of the navigable waters of (d) The Eighty-one Mile Point VTS position check. At both check-in and the LMR bounded on the north by a line Special Area consists of navigable follow-on position check, VTS New drawn from 29°57.62′ N, 90°02.61′ W to waters of the LMR between 167.5 miles Orleans will advise the vessel on traffic 29°57.34′ N, 90°02.60′ W and on the AHP and 187.9 miles AHP. approaching Eighty-one Mile Point. south by a line drawn from 29°56.89′ N, (e) Additional Eighty-one Mile Point 90°03.72′ W to 29°56.93′ N, 90°03.34′ W VTS Special Area Operating (3) All vessels getting underway (95.0 and 93.5 miles AHP) during Requirements. The following additional between miles 167.5 and 187.9 AHP periods of high water—that is, when the requirements are applicable in the must check-in with VTS New Orleans Carrolton Gage reads 8.0 feet or above Eighty-one Mile Point VTS Special on VHF Channel 5A immediately prior on a rising stage or 9.0 feet or above on Area: to getting underway and must comply a falling stage, or under any other water (1) Prior to proceeding upriver past with the respective ascending and conditions the Captain of the Port 167.5 miles AHP, Sunshine Bridge, descending check-in and follow-on (COTP) deems necessary. vessels must contact VTS New Orleans points listed in paragraphs (e)(1) and (2) (c) Additional Algiers Point VTS on VHF Channel 5A to check-in. Vessels of this section. Special Area Operating Requirements. must provide name and destination, (4) Fleet vessels must check-in with The following additional requirements confirm proper operation of their VTS New Orleans if they leave their are applicable in the Algiers Point VTS automated identification system (AIS) if respective fleet or if they move into the Special Area: required under 33 CFR 164.46, and, if main channel. Fleet vessels are not (1) A vessel movement reporting applicable, size of tow and number of required to check-in if they are system (VMRS) user must abide by the loaded and empty barges. At 173.7 miles operating exclusively within their fleet. signals of the Governor Nicholls Street AHP, Bringier Point Light, ascending (f) Reporting Points. Table 161.65(f) Wharf, 29°57.6′ N, 90°03.4′ W, and vessels must contact VTS New Orleans lists the VTS Lower Mississippi River Gretna, 29°55.5′ N, 90°03.7′ W, Control and provide a follow-on position check. Reporting Points.

TABLE 161.65(f)—VTS LOWER MISSISSIPPI RIVER REPORTING POINTS

Latitude/longitude/mile Designator Geographic name Geographic description marker Notes

A ...... Algiers Canal Forebay ... 88.0° AHP ...... 29°56.6′ N; 90°10.1′ W Upbound transiting Algiers Point Special Area. B ...... Industrial Canal ...... 92.7° AHP ...... 29°57.2′ N; 90°01.68′ W Upbound transiting Algiers Point Special Area. C ...... Crescent Towing Smith 93.5° AHP ...... 29°57.50′ N; 90°02.62′ Upbound Towing vessels transiting Algiers Point Fleet. W Special Area. D ...... Marlex Terminal (Naval 99.0° AHP ...... 29°54.65′ N; 90°05.87′ Downbound transiting Algiers Point Special Area. Ships). W E ...... Huey P. Long Bridge ..... 106.1° AHP ...... 29°55.40′ N; 89°57.7′ W Downbound transiting Algiers Point Special Area.

PART 165—REGULATED NAVIGATION b. Remove and reserve paragraph (g); this section) used to manage vessel traffic in AREAS AND LIMITED ACCESS AREAS and the vicinity of Eighty-one Mile Point are c. Add a note at the end of the section located in 33 CFR 161.65(e). 6. The authority citation for part 165 to read as follows: continues to read as follows: Dated: October 27, 2009. § 165.810 Mississippi River, LA-regulated Brian M. Salerno, Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. navigation area. Chapter 701; 50 U.S.C. 191, 195; 33 CFR Rear Admiral, U.S. Coast Guard, Assistant 1.05–1, 6.04–1, 6.04–6, and 160.5; Pub. L. * * * * * Commandant for Marine Safety, Security and 107–295, 116 Stat. 2064; Department of Note to § 165.810: Control Light provisions Stewardship. Homeland Security Delegation No. 0170.1. (previously referenced in paragraph (c) of [FR Doc. E9–26572 Filed 11–10–09; 8:45 am] this section) used to manage vessel traffic BILLING CODE 4910–15–P § 165.810 [Amended] during periods of high waters in the vicinity of Algiers Point are located in 33 CFR 7. In § 165.810— 161.65(c). The special operating requirements a. Remove and reserve paragraph (c); (previously referenced in paragraph (g) of

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DEPARTMENT OF VETERANS electronic control in four ROs. The audit With regard to lost evidence in AFFAIRS team found 36 pieces of active mail and support of a claim, the RO most likely 93 original support documents would have issued a decision or a 38 CFR Part 3 improperly designated for destruction supplemental statement of the case RIN 2900–AN33 by shredding. Documents identified as within 18 months from the date of the designated for destruction included, alleged submission of evidence. Because Claim-Related Documents or among other things, the following: VA the RO is required to summarize the Supporting Evidence Not of Record Form 21–526, Veteran’s Application for evidence that it considered in denying Compensation and/or Pension; VA Form a claim for benefits (38 U.S.C. AGENCY: Department of Veterans Affairs. 21–686c, Declaration of Status of 5104(b)(2)), a decision would have ACTION: Proposed rule. Dependents; VA Form 21–674, Request revealed that the RO had not considered for Approval of School Attendance; and the alleged submitted evidence. Also, SUMMARY: The Department of Veterans documents constituting informal claims. the RO is required to address in a Affairs (VA) proposes to add a new VA recognizes that the OIG’s findings supplemental statement of the case new section to its adjudication regulations to may have been indicative of a evidence submitted subsequent to the establish temporary VA procedures for document-handling or shredding filing of a statement of the case (38 CFR when claimants allege the submission of problem affecting numerous ROs at the 19.31(b)). claim-related documents or evidence in time of the OIG audit and that this With regard to lost notices of support of a claim during the time problem may have adversely impacted disagreement, the RO is required to period of April 14, 2007, through some veterans. In response to these issue a statement of the case (38 U.S.C. October 14, 2008, and such documents findings, the Secretary suspended all 7105(d)) and usually does so within a or evidence are not of record in the document-shredding activities and year after receiving a notice of official VA file. provided new guidance and training to disagreement. With regard to lost DATES: Comments must be received by all RO personnel regarding the handling substantive appeals, the Board, as a VA on or before January 11, 2010. and shredding of claim-related matter of practice soon after the ADDRESSES: Written comments may be documents and evidence in support of processing of a formal appeal, will submitted through ‘‘http:// a claim. The Secretary also decided to notify a claimant that an appeal has www.Regulations.gov;’’ by mail or hand- establish temporary claims-handling been certified to the Board for appellate delivery to Director, Regulation Policy procedures for veterans who allege that review and that the appellate record has and Management (02REG), Department they submitted claim-related documents been transferred to the Board (38 CFR of Veterans Affairs, 810 Vermont Ave., or evidence in support of a claim during 20.1304(a)). NW., Room 1068, Washington, DC the time period of April 14, 2007, Thus, we believe that, if a veteran 20042; or by fax to (202) 273–9026. through October 14, 2008, that are not contends that he or she submitted a Comments should indicate that they are of record in official VA files. This rule claim-related document or evidence in submitted in response to ‘‘RIN 2900– would codify the temporary claims- support of a claim before April 14, 2007, AN33—Claim-Related Documents or handling procedures, which include a the veteran reasonably would have Supporting Evidence Not of Record.’’ relaxed evidentiary standard for the inquired about the document Copies of comments received will be adjudication of claims involving alleged submission or would have been available for public inspection in the submissions of documents or evidence informed of its misplacement or Office of Regulation Policy and during this 18-month time period. These destruction within 18 months from the Management, Room 1063B, between the temporary procedures would reflect asserted date of submission, or prior to hours of 8 a.m. and 4:30 p.m., Monday VA’s pro-veteran response to the OIG’s October 14, 2008. through Friday (except holidays). Please findings of improper document We are particularly interested in call (202) 461–4923 for an appointment handling and control at the ROs. comments regarding the proposed (this is not a toll-free number). In October 14, 2008, is the date on which establishment of the 18-month period of addition, during the comment period, the Secretary suspended all document- April 14, 2007, through October 14, comments may be viewed online shredding activities following the OIG 2008, for an alleged submission of a through the Federal Docket Management audit. To ensure that claimants who claim-related document or evidence that System (FDMS) at ‘‘http:// may have been affected by the former is missing from official VA files for www.Regulations.gov.’’ document shredding activities have an which VA will consider the asserted opportunity to make assertions date of submission as the actual date of FOR FURTHER INFORMATION CONTACT: regarding missing documents, we submission. Thomas J. Kniffen, Chief, Regulations propose to establish an 18-month time This rule would require a claimant to Staff (211D), Compensation and Pension period from April 14, 2007, through notify the RO within one year of the Service, Veterans Benefits October 14, 2008, during which affected effective date of the final rule Administration, Department of Veterans claimants may receive the benefit of implementing the temporary claims Affairs, 810 Vermont Ave., NW., certain liberalized procedures. As we handling procedures of an alleged Washington, DC 20420, (202) 461–9725 describe in greater detail below, the submission during the 18-month period (This is not a toll-free number). proposed 18-month period is based of April 14, 2007, through October 14, SUPPLEMENTARY INFORMATION: On August upon VA’s claims adjudication 2008. The one-year deadline reasonably 20, 2008, VA’s Office of Inspector experience. With regard to lost claims or gives claimants time to inform ROs of General (OIG) initiated an audit of select applications for benefits, based on our alleged submissions during the 18- Veterans Benefits Administration (VBA) experience, VA takes on average 6 month period and would be consistent regional office (RO) mail processing months to process a claim. VA added an with the 12-month time period given to procedures. VBA receives and processes additional 12 months to reflect a claimants to file a Notice of approximately 25 million documents reasonable amount of time for a Disagreement. After the expiration of each year. The OIG audit team claimant to learn that a submitted claim- this one-year period, VA would amend examined mail-handling activities and related document may have been lost or its regulations to remove the obsolete the activity that places claims under mishandled by the RO. provisions in proposed § 3.218.

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For claims allegedly submitted distributive impacts; and equity). The Compensation for Service-Connected between April 14, 2007, and October 14, Executive Order classifies a ‘‘significant Death. 2008, the effective date would be regulatory action’’ requiring review by List of Subjects in 38 CFR part 3 established in accordance with the date the Office of Management and Budget, asserted by the claimant as the date on as any regulatory action that is likely to Administrative practice and which the Secretary received the claim. result in a rule that may: (1) Have an procedure, Claims, Disability benefits, In general practice, when a claimant annual effect on the economy of $100 Health care, Pensions, Radioactive asserts the submission of a claim-related million or more or adversely affect in a materials, Veterans, Vietnam. document or evidence in support of a material way the economy, a sector of Approved: August 11, 2009. claim that was not of record in the the economy, productivity, competition, John R. Gingrich, official VA file, VA requests the jobs, the environment, public health or Chief of Staff, Department of Veterans Affairs. claimant to submit any available safety, or State, local, or tribal secondary evidence that would support For the reasons set forth in the governments or communities; (2) create preamble, the Department of Veterans the alleged previous submission. For a serious inconsistency or interfere with example, VA would ask a claimant to Affairs proposes to amend 38 CFR part an action taken or planned by another 3 as follows: submit a copy of the claim-related agency; (3) materially alter the document or evidence date stamped by budgetary impact of entitlements, PART 3—ADJUDICATION VA or the claimant’s representative, or grants, user fees, or loan programs or the a dated transmittal or cover sheet from rights and obligations of entitlement Subpart A—Pension, Compensation, the claimant or claimant’s recipients; or (4) raise novel legal or and Dependency and Indemnity representative relating to the pertinent policy issues arising out of legal Compensation document, together with copies of any mandates, the President’s priorities, or documents that were included with the 1. The authority citation for part 3, the principles set forth in the Executive subpart A continues to read as follows: alleged previous submission. Order. Accordingly, if a claimant asserts that a VA has examined the economic, Authority: 38 U.S.C. 501(a), unless otherwise noted. document was originally filed before interagency, budgetary, legal, and policy April 14, 2007, or after October 14, 2008 implications of this proposed rule and 2. Add § 3.218 to read as follows: (or if a claimant asserts after the one- has concluded that it is a significant year period following the effective date § 3.218 Claim-Related Documents or regulatory action under Executive Order of the final rule that a document was Supporting Evidence Not of Record. 12866 because it is likely to result in a originally filed during the time period of (a) Submissions during the time rule that may raise novel legal or policy April 14, 2007, through October 14, period of April 14, 2007, through issues arising out of legal mandates, the 2008) and such document is not of October 14, 2008. If a claimant or President’s priorities, or the principles record in official VA files, VA would claimant’s representative asserts that a set forth in the Executive Order. ask the claimant to submit similar claim-related document or evidence in secondary evidence to support the Paperwork Reduction Act support of a claim was originally filed alleged previous submission, consistent with VA during the time period of April with VA’s general practice. If This document contains no provisions 14, 2007, through October 14, 2008, and entitlement to benefits is established constituting a new collection of such document or evidence is missing under this scenario, VA would assign an information under the Paperwork from official VA files, VA will consider effective date in accordance with the Reduction Act of 1995 (44 U.S.C. 3501– the asserted date of submission as the facts found based on credible 3521). actual date of submission. VA will corroborating evidence submitted by the Regulatory Flexibility Act apply procedures under this section claimant and applicable laws and only for assertions made before the end regulations. The Secretary hereby certifies that of the 1-year period following this proposed rule would not have a [EFFECTIVE DATE OF FINAL RULE]. Unfunded Mandates significant economic impact on a (b) Additional requirements and The Unfunded Mandates Reform Act substantial number of small entities as procedures for alleged submissions of‘1995 requires, at 2 U.S.C. 1532, that they are defined in the Regulatory under paragraph (a). (1) If the agencies prepare an assessment of Flexibility Act, 5 U.S.C. 601–612. The claimant’s assertion refers to an original anticipated costs and benefits before rule could affect only VA beneficiaries claim, a claim for increased benefits, or issuing any rule that may result in an and would not directly affect small a claim for reopening, the claimant must expenditure by State, local, and tribal entities. Therefore, pursuant to 5 U.S.C. submit either a copy of the previously governments, in the aggregate, or by the 605(b), this rule would be exempt from submitted claim form or a new claim private sector, of $100 million or more the initial and final regulatory flexibility form. VA will provide the claimant with (adjusted annually for inflation) in any analyses requirements of sections 603 assistance and notification of the given year. This rule would have no and 604. required evidence and information upon such effect on State, local, and tribal Catalog of Federal Domestic Assistance receipt of a substantially complete governments, or on the private sector. application, as necessary under § 3.159 The Catalog of Federal Domestic of this part, and will develop the claim Executive Order 12866 Assistance program numbers and titles pursuant to existing procedures. Executive Order 12866 directs for this rule are as follows: 64.104, (2) If the claimant’s assertion refers to agencies to assess all costs and benefits Pension for Non-Service-Connected evidence in support of a claim, the of available regulatory alternatives and, Disability for Veterans; 64.105, Pension claimant must identify the claim to when regulation is necessary, to select to Veterans, Surviving Spouses, and which the evidence pertains and submit regulatory approaches that maximize Children; 64.109, Veterans a copy of the evidence, or, if the net benefits (including potential Compensation for Service-Connected evidence is no longer available, a economic, environmental, public health Disability; and 64.110, Veterans description of such evidence or a and safety, and other advantages; Dependency and Indemnity completed VA Form 21–4142.

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(3) If the claimant’s assertion refers to Loligo fishery from 4.5 inches to 5 annually publish a proposed rule a document relating to the appeal of an inches. These proposed specifications specifying the amounts of the initial administrative decision, such as a notice and management measures promote the optimum yield (IOY), allowable of disagreement or substantive appeal, utilization and conservation of the MSB biological catch (ABC), domestic annual VA will follow proper appeal resource. harvest (DAH), and domestic annual procedures based on date of receipt of DATES: Public comments must be processing (DAP), as well as, where the document, as determined under this received no later than 5 p.m., eastern applicable, the amounts for total section. standard time, on December 14, 2009. allowable level of foreign fishing (4) If the only issue raised by the ADDRESSES: Copies of supporting (TALFF) and joint venture processing claimant’s assertion concerns the documents used by the Mid-Atlantic (JVP) for the affected species managed effective date of an award for benefits Fishery Management Council (Council), under the FMP. In addition, these for a claim already decided, VA will including the Environmental regulations allow specifications to be establish the proper effective date Assessment (EA) and Regulatory Impact specified for up to 3 years, subject to without additional development. Review (RIR)/Initial Regulatory annual review. The regulations found in (c) Effective dates. For claims Flexibility Analysis (IRFA), are § 648.21 also specify that IOY for squid allegedly submitted between April 14, available from: Daniel Furlong, is equal to the combination of research quota (RQ) and DAH, with no TALFF 2007, and October 14, 2008, the Executive Director, Mid-Atlantic specified for squid. For butterfish, the effective date will be established in Fishery Management Council, Room regulations specify that a butterfish accordance with the date asserted by the 2115, Federal Building, 300 South New bycatch TALFF will be specified only if claimant as the date on which the Street, Dover, DE 19904–6790. The EA/ Secretary received the claim. TALFF is specified for mackerel. RIR/IRFA is accessible via the Internet At its June 9–11, 2009, meeting in (Authority: 38 U.S.C. 501(a)(1)) at http://www.nero.noaa.gov. New York, NY, the Mid-Atlantic Fishery You may submit comments, identified [FR Doc. E9–27077 Filed 11–10–09; 8:45 am] Management Council (Council) by 0648–AY13, by any one of the BILLING CODE P recommended 2010 MSB specifications. following methods: The recommended specifications for • Electronic Submissions: Submit all mackerel, Illex, Loligo, and butterfish electronic public comments via the are the same as those implemented in DEPARTMENT OF COMMERCE Federal e-Rulemaking portal http:// 2009. For Loligo, the Council www.regulations.gov; recommended a modification in National Oceanic and Atmospheric • Fax: (978) 281–9135, Attn: Carrie accounting Trimester 1 quota underages. Administration Nordeen; The Council also recommended • Mail to NMFS, Northeast Regional increasing the minimum mesh size 50 CFR Part 648 Office, 55 Great Republic Dr, Gloucester, requirement for codend covers in the MA 01930. Mark the outside of the [Docket No. 0907301206–91208–01] Loligo fishery. The Council submitted envelope ‘‘Comments on 2010 MSB these recommendations, along with the RIN 0648–AY13 Specifications.’’ required analyses, for agency review on Instructions: All comments received August 10, 2009. Fisheries of the Northeastern United are a part of the public record and will States; Atlantic Mackerel, Squid, and generally be posted to http:// Research Quota Butterfish Fisheries; Specifications www.regulations.gov without change. and Management Measures Framework Adjustment 1 to the FMP All Personal Identifying Information established the Mid-Atlantic Research AGENCY: National Marine Fisheries (e.g., name, address) voluntarily Set-Aside (RSA) Program, which allows Service (NMFS), National Oceanic and submitted by the commenter may be research projects to be funded through Atmospheric Administration (NOAA), publicly accessible. Do not submit the sale of fish that has been set aside Commerce. Confidential Business Information or from the total annual quota. The RQ otherwise sensitive or protected ACTION: Proposed rule; request for may vary between 0 and 3 percent of the comments. information. NMFS will accept overall quota for each species. The anonymous comments. Attachments to Council has recommended that 3 SUMMARY: NMFS proposes 2010 electronic comments will be accepted in percent of the 2010 Loligo, Illex, specifications and management Microsoft Word, Excel, WordPerfect, or butterfish, and mackerel quotas be set measures for Atlantic mackerel, squid, Adobe PDF formats only. aside to fund projects selected under the and butterfish (MSB). This action FOR FURTHER INFORMATION CONTACT: 2010 Mid-Atlantic RSA Program. proposes to maintain quotas for Atlantic Carrie Nordeen, Fishery Policy Analyst, NMFS solicited research proposals mackerel (mackerel), Illex squid (Illex), 978–281–9272, fax 978–281–9135. under the 2010 Mid-Atlantic RSA Loligo squid (Loligo), and butterfish at SUPPLEMENTARY INFORMATION: Program through the Federal Register the same levels as 2009. This action also (74 FR 75, January 2, 2009). The proposes to modify accounting Background deadline for submission was March 3, procedures for underages of Trimester 1 Regulations implementing the Fishery 2009. The project selection and award quotas in the Loligo fishery so that Management Plan for the Atlantic process for the 2010 Mid-Atlantic RSA Trimester 1 quota underages that are Mackerel, Squid, and Butterfish Program has not concluded and greater than 25% of the Trimester 1 Fisheries (FMP) appear at 50 CFR part therefore, the research quota awards are quota would be allocated equally to 648, subpart B. Regulations governing not known at this time. When the Trimesters 2 and 3, and underages that foreign fishing appear at 50 CFR part selection process has concluded, are less than 25% of the Trimester 1 600, subpart F. These regulations at projects requesting RQ will be quota would be allocated to Trimester 3. § 648.21 and 600.516(c), require that forwarded to the NOAA Grants Office Additionally, this action proposes to NMFS, based on the maximum for award. If any portion of the RQ is not increase the minimum mesh size optimum yield (Max OY) of each fishery awarded, NMFS will return any un- requirement for codend covers in the as established by the regulations, awarded RQ to the commercial fishery

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either through the final 2010 MSB possession limits and to fish during expenses, as well as adequately specification rulemaking process or Federal quota closures. The Magnuson- compensate fishing industry through the publication of a separate Stevens Fishery Conservation and participants harvesting RQ. Vessels notice in the Federal Register notifying Management Act (Magnuson-Stevens harvesting RQ would operate within all the public of a quota adjustment. Act) requires that interested parties be other regulations that govern the Vessels harvesting RQ in support of provided an opportunity to comment on commercial fishery, unless otherwise exempted through a separate EFP. approved research projects would be all proposed EFPs. These exemptions issued exempted fishing permits (EFP) are necessary to allow project 2010 Proposed Specifications and authorizing them to exceed Federal investigators to recover research Management Measures

TABLE 1. PROPOSED SPECIFICATIONS, IN METRIC TONS (MT), FOR ATLANTIC MACKEREL, SQUID, AND BUTTERFISH FOR 2010 FISHING YEAR.

Specifications Loligo Illex Mackerel Butterfish

Max OY 32,000 24,000 N/A 12,175 ABC 19,000 24,000 156,000 1,500 IOY3 18,430 23,280 111,5501 485 DAH 19,000 24,000 115,0002 500 DAP 19,000 24,000 100,000 500 JVP 0 0 0 0 TALFF 0 0 0 0 1 IOY may be increased during the year, but the total ABC will not exceed 156,000 mt. 2 Includes a 15,000 mt catch of Atlantic mackerel by the recreational fishery. 3 Excludes 3 percent of the IOY for RQ.

Atlantic Mackerel testimony from shore side processors state of the world mackerel market and The status of the Atlantic mackerel indicated that the ability and intent possible increases in US production stock was most recently assessed at the exist to land and process well in excess levels, the Council concluded that 42nd Stock Assessment Review of 100,000 mt of Atlantic mackerel in specifying an IOY resulting in zero Committee (SARC) in late 2005. SARC 2010. To reach this level, the Atlantic TALFF will yield positive social and 42 concluded that the mackerel stock is mackerel stock will need to be economic benefits to the mackerel not overfished and overfishing is not sufficiently abundant and available in fishery and to the Nation. occurring. According to the FMP, the right sizes to the harvest sector For these reasons, consistent with the mackerel ABC must be calculated using (unlike the situations in 2007–2009). Council’s recommendation, NMFS the formula ABC = T - C, where C is the Industry members have testified that if proposes to specify IOY at a level that estimated catch of mackerel in Canadian stock conditions are similar to those can be fully harvested by the domestic waters for the upcoming fishing year prior to 2005, then they fully intend and fleet, thereby precluding the and T is the yield associated with a expect to land the entire IOY. The specification of a TALFF, in order to fishing mortality rate that is equal to the proposed 115,000 mt IOY is consistent assist the U.S. mackerel industry to target fishing mortality rate (F). Based with mackerel regulations at expand. This would yield positive on projections from SARC 42, the yield § 648.21(b)(2)(ii), which state that IOY is social and economic benefits to both associated with the target F of 0.12 in a modification of ABC, based on social U.S. harvesters and processors. NMFS 2008 is 211,000 mt. SARC 42 did not and economic factors, and must be less concurs that it is reasonable to assume project yields for 2010, but the yield than or equal to ABC. that in 2010 the commercial fishery has projections from 2008 will be used as a The Magnuson-Stevens Act provides the ability to harvest 100,000 mt of proxy until new projections are that the specification of TALFF, if any, mackerel. Thus DAH would be 115,000 calculated in the next mackerel stock shall be that portion of the optimum mt, which is the commercial harvest assessment, currently scheduled for yield (OY) of a fishery that will not be plus the 15,000 mt available for the December 2009. Canadian catch of harvested by vessels of the United recreational fishery. Because IOY = mackerel has been increasing in recent States. TALFF would allow foreign DAH, this specification is consistent years; therefore, the estimate of vessels to harvest U.S. fish and sell their with the Council’s recommendation that Canadian catch for 2010 will remain at product on the world market, in direct the level of IOY should not provide for the 2009 level of 55,000 mt. Thus, competition with the U.S. industry a TALFF. 211,000 mt minus 55,000 mt results in efforts to expand exports. While a NMFS proposes to maintain JVP at a proposed 2010 mackerel ABC of surplus existed between ABC and DAH zero (the most recent allocation was 156,000 mt. for many years, that surplus has 5,000 mt of JVP in 2004), consistent This action proposes a mackerel IOY disappeared due to the downward with the Council’s recommendation. In of 115,000 mt. The Council selected an revision in the estimate of MSY and previous years, the Council IOY under all three alternatives that is recent increases in both US and recommended a JVP greater than zero consistent with the recent increases in Canadian landings. The Council because it believed U.S. processors processing capacity and domestic concluded that no surplus exists lacked the ability to process the total landings of mackerel. The recent between the US portion of the amount of mackerel that U.S. harvesters increase in US processing capacity in sustainable yield from this stock and the could land. However, for the past 6 conjunction with relatively high world IOY for 2010. As a result TALFF is years, the Council has recommended demand has created conditions which specified as zero under all three zero JVP because the surplus between are favorable for continued growth of alternatives considered by the Council. DAH and DAP has been declining as the US mackerel fishery. Industry Based on analysis and a review of the U.S. shoreside processing capacity for

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mackerel has expanded. The Council prevent stock collapse. The revised or overages would be applied to also heard from the industry that the proxies for FTarget and FThreshold Trimester III, as is currently done. availability (i.e., size, distribution, and implemented in Amendment 9 are fixed In 2008, the fishery experienced a abundance) of mackerel to the fishery, values based on average fishing significant underage in Trimester I, rather than processing capacity, has mortality rates achieved during a time which was then applied to Trimester III. curtailed catch in recent years. The period when the stock biomass was However the fishery also experienced a Council concluded that processing fairly resilient (1987 - 2000). The closure during Trimester II. This capacity is no longer a limiting factor revised proxies are calculated as resulted in the fishery being unable to relative to domestic production of follows: FTarget is the 75th percentile of harvest the total DAH in Trimester III. mackerel, so JVP would be specified at fishing mortality rates during 1987 - The proposed method of underage zero. 2000 and FThreshold is the average fishing distribution will facilitate a reduction in mortality rates during the same period. small transfers that could lead to Inseason Adjustment of the Mackerel The revised proxy for F (0.32) is unforseable season openings or closures IOY Target used as the basis for establishing Loligo in Trimester II. This will prevent an Regulations at § 648.21(e) provide that OY. The use of a proxy is necessary underharvest of the annual quota, and specifications may be adjusted inseason because it is currently not possible to distribute unharvested quota evenly during the fishing year by the NMFS accurately predict Loligo stock biomass throughout the year. However, as a Northeast Regional Administrator because recruitment, which occurs result of both the inherent data (Regional Administrator), in throughout the year, is highly variable processing time lag and late dealer consultation with the Council, by inter-annually and influenced by reporting in the dealer reporting publishing a notice in the Federal changing environmental conditions. program, it is not possible to make the Register and providing a 30-day public Based on the revised biological underage calculation and announce a comment period. In 2010, as in 2009, reference points for Loligo, the Council quota adjustment until up to two NMFS’s Northeast Fishery Statistic recommended that the 2010 Loligo Max months after Trimester 1 ends. Office will summarize mackerel OY, ABC, IOY, DAH, and DAP remain Changes to Loligo Codend Mesh Size landings from dealer reports on a at the 2009 level. Therefore, the Requirements weekly basis and post this information proposed Loligo Max OY for 2010 is on the Northeast Regional Office 32,000 mt and the proposed ABC, IOY, This action proposes to increase the website (http://www.nero.noaa.gov/). DAH, DAP is 19,000 mt. ‘‘net strengthener’’/‘‘codend cover’’ NMFS staff will closely monitor these NMFS concurs with the Council’s minimum mesh requirement from 4.5 landings and industry trends to recommendation, therefore, this action inches to 5 inches (inside stretch determine if an inseason adjustment is proposes a 2010 Loligo Max OY of measurement). This would make the necessary. If, using landings projections 32,000 mt and an ABC, IOY DAH, and Loligo codend mesh size requirement and all other available information, the DAP of 19,000 mt. The FMP does not consistent with the next highest mesh Regional Administrator determines that authorize the specification of JVP and size currently required in another Mid- 70 percent of the Atlantic mackerel IOY TALFF for the Loligo fishery because of Atlantic fishery (Scup). will be landed during the 2010 fishing the domestic industry’s capacity to Illex Squid year, the Regional Administrator will harvest and process the OY for this The Illex stock was most recently make available additional quota for a fishery. total IOY of 156,000 mt of Atlantic assessed at SARC 42 in late 2005. While Distribution of the Loligo DAH it was not possible to evaluate current mackerel for harvest during 2010. As was done in 2007 to 2009, NMFS Additionally, if an inseason adjustment stock status because there are no reliable is proposing that the 2010 Loligo DAH current estimates of stock biomass or of the IOY is warranted, the Regional be allocated into trimesters, consistent Administrator will notify the Council fishing mortality rate, qualitative with the Council’s recommendation. analyses determined that overfishing and the inseason adjustment will be The proposed 2010 trimester allocations published in the Federal Register. had not likely been occurring. would be as follows: NMFS proposes to maintain the Illex Atlantic Squids specifications in 2010 at the same levels TABLE 2. PROPOSED TRIMESTER as they were for the 2009 fishing year, Loligo ALLOCATION OF Loligo QUOTA IN 2009 consistent with the Council’s Amendment 9 to the FMP recommendation. This action proposes 1 (Amendment 9) (73 FR 37382, July 1, Trimester Percent Metric Tons that the specification of Max OY, IOY, 2008) revised the proxies for Loligo I (Jan–Apr) 43 7,925 ABC, and DAH would be 24,000 mt. target and threshold fishing mortality II (May–Aug) 17 3,133 This level of DAH corresponds to a rates, FTarget and FThreshold, respectively, III (Sep–Dec) 40 7,372 target fishing mortality rate of 75 to reflect the analytical advice provided Total 100 18,430 percent FMSY. The FMP does not by the most recent Loligo stock authorize the specification of JVP and assessment review committee (SARC 1 Trimester allocations after 570 mt RQ deduction. TALFF for the Illex fishery because of 34). While Amendment 9 revised the the domestic fishing industry’s capacity formulas and values for these reference This action proposes to adjust how to harvest and to process the OY from points, the function of the reference Trimester I underages are distributed this fishery. points remains unchanged. FTarget is the among the remaining Trimesters. Butterfish basis for determining OY and FThreshold Currently any overages or underages in determines whether overfishing is Trimester I or II are applied to Trimester The status of the butterfish stock was occurring. III. The proposed action would split the most recently assessed at SARC 38 in Because Loligo is a sub-annual species distribution of Trimester I underages late 2004. The assessment concluded (i.e., has a lifespan of less than 1 year), evenly between Trimester II and III if that, while overfishing of the stock is the stock is solely dependent on the underage is greater than 25% of the not occurring, the stock is overfished sufficient recruitment year to year to Trimester I quota. All other underages because estimates of stock biomass are

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below the minimum biomass threshold NMFS (see ADDRESSES) or via the The Loligo IOY (19,000 mt) proposed 1 ( ⁄2 BMSY). SARC 38 estimated the Internet at http://www.nero.noaa.gov. in this action represents the status quo butterfish stock at 8,700 mt, 1⁄2 B at compared to the 2009. No reductions in MSY Statement of Objective and Need 11,400 mt, and BMSY at 22,798 mt. Based revenues for the Loligo fishery are on this information, the Council was This action proposes 2010 expected as a result of this proposed notified by NMFS on February 11, 2005, specifications and management action. that the butterfish stock was designated measures for mackerel, squid, and The Illex IOY (24,000 mt) proposed in as overfished, pursuant to the butterfish, and proposes to modify this action represents status quo as requirements of section 304(e) of the accounting procedures for underages of compared to 2008. Implementation of Magnuson-Stevens Act. The Council has Trimester 1 quotas in the Loligo fishery, this proposed action would not result in developed a rebuilding plan for the and to increase the minimum mesh size a reduction in revenue or a constraint butterfish stock in Amendment 10 to the requirement for codend covers in the on expansion of the fishery in 2010. , which was approved October 7, 2009. Loligo fishery from 4.5 inches to 5 The butterfish IOY proposed in this As in 2009, the Council recommended inches. A complete description of the action (500 mt) represents status quo, as that the quota be restricted to recent reasons why this action is being compared to 2009, and represents only landings levels to prevent an expansion considered, and the objectives of and a minimal constraint to vessels relative of the fishery and to protect the legal basis for this action, are contained to the landings in recent years. Due to rebuilding stocks. Without a current in the preamble to this proposed rule market conditions, there has not been a market for butterfish, a directed and are not repeated here. directed butterfish fishery in recent years; therefore, recent landings have butterfish fishery has not existed for Description and Estimate of Number of several years, with landings since 2003 been low. Given the lack of a directed Small Entities to Which the Rule Will butterfish fishery and low butterfish ranging from 437 mt to 674 mt. Apply The MSB FMP specifies that landings, the proposed action is not maximum sustainable yield equals Max Based on permit data for 2008, the expected to reduce revenues in this OY. SARC 38 re-estimated butterfish numbers of potential fishing vessels in fishery more than minimally. The accounting methods for Loligo maximum sustainable yield as 12,175 the 2009 fisheries are as follows: 371 for trimester underages proposed in this mt, and the butterfish overfishing Loligo/butterfish, 77 for Illex, 2,342 for action would distribute any substantial threshold at F of 0.38. Assuming that mackerel, and 2,193 vessels with underage in Trimester I (greater than butterfish discards equal twice the level incidental catch permits for squid/ 25% of the Trimester I quota) evenly of landings, the amount of butterfish butterfish. There are no large entities over the rest of the year. This method discards associated with approximately participating in this fishery, as defined of transferring quota over to Trimester II 500 mt of landings is approximately in section 601 of the RFA. Therefore, from Trimester I may provide some 1,000 mt. there are no disproportionate economic economic benefits to this fishery Therefore, in 2010, as implemented in impacts on small entities. Many vessels participate in more than one of these compared to how the fishery was 2009, the proposed specifications would prosecuted under the 2008 and 2009 set the Max OY at 12,175 mt; the ABC fisheries; therefore, permit numbers are not additive. specifications. at 1,500 mt; and the IOY, DAH, and The proposed action would also DAP at 500 mt. Harvest at these Description of Projected Reporting, increase the required minimum codend proposed levels should prevent Recordkeeping, and Other Compliance cover mesh size from 4.5 inches to 5.0 overfishing on the butterfish stock in Requirements inches in the Loligo fishery. A mesh size 2010. Additionally, consistent with increase is not expected to have a MSB regulations, the Council This action does not contain any new collection-of-information, reporting, significant impact on landings since recommended, and NMFS is proposing, most of the selectivity occurs in the zero TALFF for butterfish in 2010 recordkeeping, or other compliance requirements. It does not duplicate, codend liner. Most vessels are equipped because zero TALFF is proposed for with nets meeting or exceeding the mackerel. overlap, or conflict with any other Federal rules. proposed codend minimum mesh size, Classification so no negative impacts on revenues in Minimizing Significant Economic this fishery are expected as a result of Pursuant to section 304(b)(1)(A) of the Impacts on Small Entities these alternatives. Magnuson-Stevens Act, the NMFS Assistant Administrator has determined Proposed Actions Alternatives to the Proposed Rule that this proposed rule is consistent The mackerel IOY proposed in this The Council analysis evaluated two with the Atlantic Mackerel, Squid, and action (115,000 mt, with 15,000 mt alternatives to the proposed action for Butterfish FMP, other provision of the allocated to recreational catch) mackerel, which is also the status quo. Magnuson-Stevens Act, and other represents status quo, as compared to The first alternative would have set the applicable law, subject to further 2009, and is no constraint to vessels ABC at 56,000 mt, IOY at 56,000 mt, and consideration after pubic comment. relative to the landings in recent years. the second alternative would have set This proposed rule has been Mackerel landings for 2004–2006 the ABC at 186,000 mt, IOY at 115,000 determined to be not significant for averaged 51,836 mt. Landings in 2007 mt. Based on recent harvest levels, purposes of Executive Order 12866. were 25,547 mt, and landings in 2008 neither of the ABC and IOY alternatives The Council prepared an IRFA, as were 21,749 mt. This action also allows represent a constraint on vessels in this required by section 603 of the for an inseason adjustment, which fishery. However, the ABC of 56,000 mt Regulatory Flexibility Act (RFA). The would increase the IOY up to the ABC in the first alternative could result in IRFA describes the economic impact (156,000 mt), if landings approach the forgone revenue if mackerel is available this proposed rule, if adopted, would IOY early in the fishing year. Therefore, to the fishery. have on small entities. A summary of no reductions in revenues for the For Loligo, the alternatives to the the analysis follows. A copy of this mackerel fishery are expected as a result proposed action would have set the Max analysis is available from the Council or of this proposed action. OY at 32,000 mt and ABC, IOY, DAH,

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and DAP at 19,000 mt, as in the alternative would set Max OY at 12,175 3. In § 648.22, paragraph (a)(2)(i) is proposed action, and the status quo. The mt, ABC at 9,131 mt, and IOY, DAH, added and paragraph (a)(2)(ii) is added alternatives differed only in how and DAP at 3,044 mt. The amounts in and reserved to read as follows: Trimester underages and overages were this alternative represent the applied to the following Trimester specifications that would result from the § 648.22 Closure of the fishery. quotas. The first alternative is the status application of the F target control rule (a) * * * quo, and would continue to transfer if the butterfish stock was declared (2) * * * Trimester I and II overages or underages rebuilt. This alternative has been to Trimester III. The second alternative included due to the potential for rapid (i) If the Regional Administrator would make the full amount of a rebuilding in the butterfish stock. determines that the Trimester I closure Trimester I underage available to However, this alternative was not threshold has been underharvested by Trimester II. The proposed action adopted by the Council because it 25% or more, then the amount of the distributes any substantial underage in would likely result in overfishing and underharvest shall be reallocated to Trimester I (greater than 25% of the the additional depletion of the Trimester II and Trimester III in equal Trimester I quota) evenly over the rest spawning stock biomass of an amounts, through notice in the Federal of the year, which may positively overfished species. None of these Register. impact Loligo stocks, and prevent an alternatives represent a constraint on (ii) [Reserved] vessels in this fishery or would reduce underharvest of the annual quota. * * * * * The three alternatives to the proposed revenues in the fishery. 4. In § 648.23, paragraph (a)(3)(i) is minimum codend mesh size increase List of Subjects in 50 CFR Part 648 were all more restrictive than the revised to read as follows: Fisheries, Fishing, Recordkeeping and proposed increase or the status quo. The § 648.23 Gear restrictions. first alternative recommended a reporting requirements. minimum codend mesh size of 6 inches. Dated: November 03, 2009. (a) *** This mesh size represents the most John Oliver, (3) *** frequently observed codend mesh size Deputy Assistant Administrator For (i) Net obstruction or constriction. observed in the Loligo fishery. The Operations, National Marine Fisheries Owners or operators of otter trawl second alternative recommended a 6 Service. vessels fishing for and/or possessing inch mesh size using a square mesh for For the reasons set out in the Loligo shall not use any device, gear, or codend covers. Although diamond mesh preamble, 50 CFR part 648 is proposed material, including, but not limited to, is predominantly used in the Loligo to be amended as follows: nets, net strengtheners, ropes, lines, or fishery, this alternative specified square chafing gear, on the top of the regulated mesh based on reduced obstruction PART 648—FISHERIES OF THE portion of a trawl net that results in an caused by square mesh compared to the NORTHEASTERN UNITED STATES effective mesh opening of less than 17/ diamond mesh. The third alternative 1. The authority citation for part 648 8 inches (48 mm) diamond mesh, inside would have required a minimum continues to read as follows: stretch measure. ‘‘Top of the regulated codend mesh size of 9.5 inches using Authority: 16 U.S.C. 1801 et seq. portion of the net’’ means the 50 percent square mesh. This alternative is based 2. In § 648.21, paragraph (f)(2) is of the entire regulated portion of the net on the largest and least obstructive mesh revised to read as follows: that would not be in contact with the size and type that has been observed in ocean bottom if, during a tow, the use for a codend cover in the Loligo § 648.21 Procedures for determining initial regulated portion of the net were laid fishery. annual amounts. flat on the ocean floor. However, owners For Illex, one alternative was (f) * * * or operators of otter trawl vessels fishing considered that would have set the (2) Any underages of commercial for and/or possessing Loligo may use net ABC, IOY, DAH, and DAP at 19,000 mt period quota for Trimester I, which are strengtheners (covers), splitting straps, rather than 24,000 mt. This quota was greater than 25% of the Trimester I and/or bull ropes or wire around the used between 1997 and 1999, and was quota, will be divided in half, with one entire circumference of the codend, associated with the SAW 21 stock portion applied to Trimester II, and one provided they do not have a mesh assessment from 1996. However, this portion applied to Trimester III of the opening of less than 5 inches (12.7 cm) alternative would still allow harvest in same year. Any underages of diamond mesh, inside stretch measure. excess of recent landings in this fishery. commercial period quota for Trimester I, For butterfish, two alternatives were which are less than 25% of the For the purpose of this requirement, considered in addition to the Trimester I quota, will be applied to head ropes are not to be considered part recommended action. The first would Trimester III of the same year. Any of the top of the regulated portion of a have set Max OY at 12,175 mt, ABC at overages of commercial quota for trawl net. 4,525 mt, and IOY, DAH, and DAP 1,861 Trimesters I and II will be subtracted * * * * * mt, which is equivalent to the 2005– from Trimester III of the same year. [FR Doc. E9–26847 Filed 11–10–09; 8:45 am] 2007 specifications. The second * * * * * BILLING CODE 3510–22–S

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Notices Federal Register Vol. 74, No. 217

Thursday, November 12, 2009

This section of the FEDERAL REGISTER authority available for that fiscal year Act (ARRA) funds, there is no renewal contains documents other than rules or that may be used to guarantee loans fee and all guaranteed loans will be proposed rules that are applicable to the with a B&I guarantee fee of 1 percent or charged a 1 percent guarantee fee. Any public. Notices of hearings and investigations, guaranteed loans with a guarantee guaranteed loan that is $10 million or committee meetings, agency decisions and percentage exceeding 80 percent. less that scores at least 55 points in rulings, delegations of authority, filing of petitions and applications and agency Allowing the guarantee fee to be accordance with RD Instruction 4279–B, statements of organization and functions are reduced to 1 percent or exceeding the 80 section 4279.155, will receive a 90 examples of documents appearing in this percent guarantee on certain B&I percent guarantee. section. guaranteed loans that meet the DATES: Effective Date: November 12, conditions set forth in 7 CFR 4279.107 2009. and 4279.119, will increase the FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF AGRICULTURE Agency’s ability to focus guarantee Brenda Griffin, e-mail assistance on projects which the Agency Rural Business—Cooperative Service [email protected], Rural has found particularly meritorious. For Development, Business Programs, 1 percent fees, (1) the borrower’s Guarantee Fee Rates for Guaranteed Business and Industry Division, STOP business must support value-added 3224, 1400 Independence Avenue, SW., Loans for Fiscal Year 2010; Maximum agriculture and result in farmers Portion of Guarantee Authority Washington, DC 20250–3224, telephone benefiting financially, or (2) such (202) 720–6802. Available for Fiscal Year 2010; Annual projects are ‘‘high impact’’ as defined in SUPPLEMENTARY INFORMATION: Renewal Fee for Fiscal Year 2010 7 CFR 4279.155(b)(5), and are located in This action has been reviewed and AGENCY: Rural Business—Cooperative rural communities that either (a) remain persistently poor, (b) have experienced determined not to be a rule or regulation Service, USDA. as defined in Executive Order 12866 as ACTION: Notice. long-term population decline and job deterioration, (c) are experiencing amended by Executive Order 13258. SUMMARY: As set forth in 7 CFR trauma as a result of natural disaster, or Date: October 16, 2009. 4279.107(b) and 4280.126(c), Rural (d) are experiencing fundamental Judith A. Canales, Development (the Agency) has the structural changes in its economic base. Administrator, Rural Business—Cooperative authority to charge an annual renewal For guaranteed loans exceeding 80 Service. fee for loans made under the Business percent, such projects must be a high- [FR Doc. E9–27143 Filed 11–10–09; 8:45 am] and Industry (B&I) Guaranteed Loan priority project in accordance with 7 BILLING CODE 3410–XY–P Program and the Rural Energy for CFR 4279.155 (and meet the other America (Section 9007; formerly Section requirements of 7 CFR 4279.119(b)). 9006 Renewable Energy Systems and Not more than 12 percent of the DEPARTMENT OF AGRICULTURE Energy Efficiency Improvements Agency’s quarterly apportioned B&I Program) Guaranteed Loan Program. guarantee authority (including available Forest Service Pursuant to that authority, the Agency is Disaster funding) will be reserved for Helena National Forest, MT, Telegraph establishing the renewal fee rate at one- loan requests with a guarantee fee of 1 Vegetation Project fourth of 1 percent for the B&I percent, and not more than 15 percent Guaranteed Loan Program and one- of the Agency’s quarterly apportioned AGENCY: Forest Service, USDA. fourth of 1 percent for the Section 9007 guarantee authority (including available ACTION: Notice of intent to prepare an Guaranteed Loan Program. These rates Disaster funding) will be reserved for environmental impact statement. will apply to all loans obligated in fiscal guaranteed loan requests with a year (FY) 2010 that are made under the guaranteed percentage exceeding 80 SUMMARY: The Helena National Forest is cited programs. As established in 7 CFR percent. Once the respective quarterly going to prepare an environmental 4279.107 and 4280.126, the amount of limits are reached, all additional loans impact statement for vegetation the fee on each guaranteed loan will be for that quarter will be at the standard management actions in the Little determined by multiplying the fee rate fee and guarantee limits in 7 CFR part Blackfoot drainage west of the by the outstanding principal loan 4279. As an exception to this paragraph Continental Divide. The purpose and balance as of December 31, multiplied and for the purposes of this notice, need for action is to be responsive to the by the percent of guarantee. loans developed by the North American mountain pine beetle outbreak in this As set forth in 7 CFR 4280.126(a), Development Bank (NADBank) area, specifically to recover economic each fiscal year the Agency shall Community Adjustment and Investment value of dead and dying trees. establish the initial guarantee fee rate Program (CAIP) will not count against Additional purposes for the project for loans made under the Section 9007 the 15 percent limit. Up to 50 percent include promoting desirable Guaranteed Loan Program. Pursuant to of CAIP loans may have a guarantee regeneration, reducing fuels and the risk that authority, the Agency is percentage exceeding 80 percent. The of catastrophic fire, and maintaining establishing the initial guarantee fee rate funding authority for CAIP loans is not diverse wildlife habitats. at 1 percent for loans made in FY 2010. derived carryover or recovered funding DATES: Comments concerning the scope As set forth in 7 CFR 4279.107(a) and authority of the B&I Guaranteed Loan of the analysis must be received by 4279.119(b)(4), each fiscal year the Program. December 14, 2009. The draft Agency shall establish a limit on the For B&I projects funded with environmental impact statement is maximum portion of B&I guarantee American Recovery and Reinvestment expected June 2010 and the final

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environmental impact statement is would include approximately 3,800 Performance Review Board each year. expected November 2010. acres of underburning, site prep, The standing roster is as follows: ADDRESSES: Send written comments to broadcast burning, jackpot burning, and Mauricio Vera, Chairperson; Liz Van Genderen, Helena National hand piling/burning. In addition, trees Angelique Crumbly, Alternate; Forest, 2880 Skyway Dr., Helena, MT that are hazardous to public and historic Franklin Moore; 59602. Comments may also be sent via structures would be removed. Up to 7 Susan Pascocello; e-mail to comments-northern- miles of new road construction and James Peters, Alternate; [email protected], or via facsimile to approximately 5 miles of road Randy Streufert; 406–449–5436. reconstruction would be necessary to John Robinson, Outside SES Member. It is important that reviewers provide implement the proposed action. FOR FURTHER INFORMATION CONTACT: their comments at such times and in Responsible Official Melissa Jackson, 202–712–1781. such a way that they are useful to the Helena National Forest Supervisor. Dated: November 5, 2009. Agency’s preparation of the EIS. Helena Olivares, Therefore, comments should be Nature of Decision To Be Made Acting Chief, Civil Service Personnel Division. provided prior to the close of the The decisions to be made include: comment period and should clearly [FR Doc. E9–27150 Filed 11–10–09; 8:45 am] whether to implement the proposed articulate the reviewer’s concerns and BILLING CODE 6116–01–P action or an alternative to the proposed contentions. action, what monitoring requirements Comments received in response to would be appropriate to evaluate the this solicitation, including names and COMMISSION ON CIVIL RIGHTS implementation of this project, and addresses of those who comment, will whether a forest plan amendment would be part of the public record for this Agenda and Notice of Public Meeting be necessary as a result of the decision proposed action. Comments submitted of the California Advisory Committee for this project. anonymously will be accepted and Notice is hereby given, pursuant to considered, however. Scoping Process the provisions of the rules and FOR FURTHER INFORMATION CONTACT: Liz This notice of intent initiates the regulations of the U.S. Commission on Van Genderen at 406–449–5201. scoping process, which guides the Civil Rights (Commission), and the Individuals who use development of the environmental Federal Advisory Committee Act telecommunication devices for the deaf impact statement. In November 2009, a (FACA), that a meeting of the California (TDD) may call the Federal Information scoping package will be mailed, an open Advisory Committee (Committee) to the Relay Service (FIRS) at 1–800–877–8339 house will be scheduled, and website Commission will convene on between 8 a.m. and 8 p.m., Eastern information will be posted. Wednesday, December 2, 2009 at 9:30 Time, Monday through Friday. It is important that reviewers provide a.m. and adjourn on or about 11 a.m. at SUPPLEMENTARY INFORMATION: their comments at such times and in the Federal Building, 300 North Los such manner that they are useful to the Angeles St., Suite 2010, Los Angeles, Purpose and Need for Action agency’s preparation of the CA 90012. The purpose of the meeting Wide-scale tree mortality has environmental impact statement. is for the Committee to plan a briefing occurred due to the mountain pine Therefore, comments should be for fiscal year 2010. beetle. This mortality causes changes to provided prior to the close of the Members of the public are entitled to fire behavior in the event of a wildfire. comment period and should clearly submit written comments. The Treatment is needed to ensure diverse articulate the reviewer’s concerns and comments must be received in the and sustainable forest stands and to contentions. The submission of timely regional office by January 2, 2010. The lessen the probability of a catastrophic and specific comments can affect a address is U.S. Commission on Civil wildfire which could threaten wildland reviewer’s ability to participate in Rights, 300 North Los Angeles St., Suite urban interface areas. The project subsequent administrative appeal or 2010, Los Angeles, CA 90012. Persons focuses on reducing hazardous fuels, judicial review. wishing to e-mail their comments or establishing healthy regeneration, and Dated: November 5, 2009. who desire additional information should contact Peter Minarik, Regional recovering the economic value of dead Kevin T. Riordan, trees. In addition, aspen and whitebark Director, Western Regional Office, at Forest Supervisor. pine can be promoted with treatment. (213) 894–3437 or 800–877–8339 for The project also seeks to maintain or [FR Doc. E9–27144 Filed 11–10–09; 8:45 am] individuals who are deaf, hearing improve watershed values. BILLING CODE 3410–11–P impaired, and/or have speech disabilities or by e-mail to Proposed Action [email protected]. Approximately 6,335 acres are AGENCY FOR INTERNATIONAL Hearing-impaired persons who will proposed for treatment. Roughly 2,000 DEVELOPMENT attend the meeting and require the acres are young stands that established services of a sign language interpreter after past harvest and are in need of Senior Executive Service: Membership should contact the Regional Office at thinning to ensure they reach viable of Performance Review Board least ten (10) working days before the maturity. The remaining acres are ACTION: Notice. scheduled date of the meeting. primarily mature stands of lodgepole Records generated from this meeting pine with some Douglas-fir, Engelmann SUMMARY: This notice lists approved may be inspected and reproduced at the spruce, and subalpine fir with high candidates who will comprise a Western Regional Office, as they become mountain pine beetle mortality. These standing roster for service on the available, both before and after the acres would be treated using a Agency’s SES Performance Review meeting. Persons interested in the work combination of improvement cuts, Board. The Agency will use this roster of this advisory committee are advised regeneration harvests, thinning, and to select SES board members, and an to go to the Commission’s Web site, prescribed fire. Post treatment activities outside member for the convening SES http://www.usccr.gov, or to contact the

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Western Regional Office at the above prior to the meeting at 202–376–8105. DEPARTMENT OF COMMERCE e-mail or street address. TDD: (202) 376–8116. Submission for OMB Review; The meeting will be conducted Dated: November 9, 2009. Comment Request pursuant to the provisions of the rules David Blackwood, and regulations of the Commission and General Counsel. The Department of Commerce will FACA. [FR Doc. E9–27324 Filed 11–9–09; 4:15 pm] submit to the Office of Management and Dated in Washington, DC, November 4, BILLING CODE 6335–01–P Budget (OMB) for clearance the 2009. following proposal for collection of Peter Minarik, information under the provisions of the Acting Chief, Regional Programs COMMISSION ON CIVIL RIGHTS Paperwork Reduction Act (44 U.S.C. Coordination Unit. Chapter 35). [FR Doc. E9–27153 Filed 11–10–09; 8:45 am] Sunshine Act Notice Agency: National Oceanic and BILLING CODE 6335–01–P Atmospheric Administration (NOAA). AGENCY: United States Commission on Title: NMFS Alaska Region Vessel Civil Rights. Monitoring System (VMS) Program. COMMISSION ON CIVIL RIGHTS ACTION: Notice of meeting. OMB Control Number: 0648–0445. Form Number(s): None. Sunshine Act Notice DATE AND TIME: Friday, November 20, Type of Request: Regular submission. AGENCY: United States Commission on 2009; 9:30 a.m. EST. Number of Respondents: 878. Civil Rights. PLACE: 624 9th St., NW., Room 540, Average Hours per Response: VMS installation, 6 hours (once every three ACTION: Washington, DC 20425. Notice of meeting cancellation. years); maintenance, 4 hours per year; Meeting Agenda SUMMARY: On October 29, 2009 (74 FR VMS activation checklist, 12 minutes 55809–55810) the U.S. Commission on This meeting is open to the public. (once every three years). Civil Rights announced a business I. Approval of Agenda. Burden Hours: 3,721. Needs and Uses: Under the authority meeting to be held on Friday, November II. Program Planning. 6, 2009 at the Commission’s • of the Magnuson-Stevens Fishery Approval of MEPA Briefing Report. Conservation and Management Act (16 headquarters. On Wednesday, • Update on Status of 2010 November 4, 2009, the meeting was U.S.C. 1801 et seq.), National Marine Enforcement Report. Fisheries Service (NMFS), Alaska cancelled. The decision to cancel the • National Conference Update. meeting was too close in time to the day Region, directs a satellite-based vessel • Approval of Concept Papers for FY of the meeting for the publication of a monitoring program to locate fishing 2010 Briefing Topics. vessels and monitor compliance with cancellation notice to appear in advance • of the scheduled meeting date. The Amendments to Title IX Briefing area restrictions in the Gulf of Alaska, details of the cancelled meeting are: Report. Bering Sea, and Aleutian Islands. The • Update on Status of Title IX Project. Vessel Monitoring System (VMS) allows DATE AND TIME: Friday, November 6, the NMFS Office for Law Enforcement 2009; 9:30 a.m. EDT. III. Management & Operations. • Motion Regarding Special Assistant to monitor and survey vessels over vast PLACE: 624 9th St., NW., Room 540, GS Level. expanses of open-water while Washington, DC 20425. • Motion to Permit Commissioners’ maintaining the confidentiality of Meeting Agenda Special Assistants to Join fishing positions. The VMS is required Commissioners’ Line for under certain conditions in the This meeting is open to the public. following fisheries: Atka Mackerel, I. Approval of Agenda. Telephonic Meetings. IV. State Advisory Committee Issues. Pollock, Pacific Cod, BSAI Crab, II. Program Planning. essential fish habitat (EFH) and habitat • • Iowa SAC. Approval of Concept Papers for FY areas of particular concern (HAPC) in 2010 Briefing Report Topics. • Massachusetts SAC. • the Aleutian Islands and Gulf of Alaska. Amendments to Title IX Briefing V. Approval of September 24, October 8, The VMS unit is passive and automatic, Report. October 15 and October 30 Meeting requiring no reporting effort of the • Update on Status of 2010 Minutes. vessel operator. Enforcement Report. VI. Staff Director’s Report. Affected Public: Business or other for- III. Approval of Minutes of October 30 VII. Adjourn. profit organizations. Meeting. Frequency: On occasion. IV. Announcements. CONTACT PERSON FOR FURTHER INFORMATION: Lenore Ostrowsky, Acting Respondent’s Obligation: Required to V. Staff Director’s Report. obtain or retain benefits. VI. Adjourn. Chief, Public Affairs Unit (202) 376– 8591. TDD: (202) 376–8116. OMB Desk Officer: David Rostker, The Commission’s next scheduled Persons with a disability requiring (202) 395–3897. meeting is Friday, November 20, 2009, special services, such as an interpreter Copies of the above information the details of which to be published in for the hearing impaired, should contact collection proposal can be obtained by this same issue of the Federal Register. Pamela Dunston at least seven days calling or writing Diana Hynek, CONTACT PERSON FOR FURTHER prior to the meeting at 202–376–8105. Departmental Paperwork Clearance INFORMATION: Lenore Ostrowsky, Acting TDD: (202) 376–8116. Officer, (202) 482–0266, Department of Chief, Public Affairs Unit (202) 376– Commerce, Room 7845, 14th and 8591. TDD: (202) 376–8116. Dated: November 9, 2009. Constitution Avenue, NW., Washington, Persons with a disability requiring David Blackwood, DC 20230 (or via the Internet at special services, such as an interpreter General Counsel. [email protected]). for the hearing impaired, should contact [FR Doc. E9–27327 Filed 11–9–09; 4:15 pm] Written comments and Pamela Dunston at least seven days BILLING CODE 6335–01–P recommendations for the proposed

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information collection should be sent Commerce, Room 6625, 14th and Act’’), the Department shall issue the within 30 days of publication of this Constitution Avenue, NW., Washington, final results of an administrative review notice to David Rostker, OMB Desk DC 20230 (or via the Internet at within 120 days after the date on which Officer, FAX number (202) 395–7285, or [email protected].) the preliminary results are published. [email protected]. Written comments and However, if it is not practicable to Dated: November 6, 2009. recommendations for the proposed complete the review within this time information collection should be sent period, section 751(a)(3)(A) of the Act Gwellnar Banks, within 30 days of publication of this permits the Department to extend the Management Analyst, Office of the Chief notice to Jasmeet Seehra, OMB Desk time period to a maximum of 180 days. Information Officer. Officer, FAX number (202) 395–5806 or On October 13, 2009, the Department [FR Doc. E9–27184 Filed 11–10–09; 8:45 am] via the Internet at published a notice extending the time BILLING CODE 3510–22–P [email protected]. limit for the final results of this Dated: November 5, 2009. administrative review for 30 days until November 5, 2009. See Chlorinated DEPARTMENT OF COMMERCE Gwellnar Banks, Isocyanurates from the People’s Management Analyst, Office of the Chief Republic of China: Notice of Extension Submission for OMB Review; Information Officer. Comment Request of Time Limit for the Final Results of the [FR Doc. E9–27074 Filed 11–10–09; 8:45 am] Antidumping Duty Administrative The Department of Commerce will BILLING CODE 3510–13–P Review, 74 FR 52452 (October 13, 2009). submit to the Office of Management and The Department now finds that it is Budget (OMB) for clearance the not practicable to complete the final DEPARTMENT OF COMMERCE following proposal for collection of results of the administrative review of chlorinated isocyanurates from the PRC information under the provisions of the International Trade Administration Paperwork Reduction Act (44 U.S.C. within the current deadline due to Chapter 35). [A–570–898] complicated by-product and surrogate Agency: National Institute of value issues. We find that additional Standards and Technology (NIST). Chlorinated Isocyanurates From the time is needed to complete these final Title: National Voluntary Laboratory People’s Republic of China: Notice of results. Therefore, in accordance with Accreditation Program (NVLAP) Extension of Time Limit for the Final section 751(a)(3)(A) of the Act, we are Information Collection System. Results of the Antidumping Duty extending the time period for issuing OMB Control Number: 0693–0003. Administrative Review the final results of the administrative Form Number(s): None. AGENCY: Import Administration, review by an additional 30 days. This Type of Review: Regular submission. International Trade Administration, extension makes these final results due Burden Hours: 2,083. Department of Commerce. 180 days after the date on which the Number of Respondents: 850. preliminary results were published, i.e., DATES: Effective Date: November 12, Average Hours per Response: 2 hours, December 5, 2009. However, because 2009. 27 minutes. December 5, 2009, falls on a weekend, Needs and Uses: This information is FOR FURTHER INFORMATION CONTACT: the actual due date will be the first collected from all testing and calibration Brandon Petelin or Charles Riggle, AD/ business day following the weekend, laboratories that apply for National CVD Operations, Office 8, Import i.e., December 7, 2009. Voluntary Laboratory Accreditation Administration, International Trade This notice is published in Program (NVLAP) accreditation. It is Administration, U.S. Department of accordance with sections 751(a)(3)(A) used by NVLAP to assess laboratory Commerce, 14th Street and Constitution and 777(i) of the Act. conformance with applicable criteria as Avenue, NW., Washington, DC 20230; Dated: November 5, 2009. defined in 15 CFR part 285, section telephone: (202) 482–8173 or (202) 482– Edward C. Yang, 285.14. The information provides a 0650, respectively. service to customers in business and Acting Deputy Assistant Secretary for SUPPLEMENTARY INFORMATION: Antidumping and Countervailing Duty industry, including regulatory agencies Operations. and purchasing authorities that are Background [FR Doc. E9–27202 Filed 11–10–09; 8:45 am] seeking competent laboratories to On June 8, 2009, the Department of perform testing and calibration services. Commerce (‘‘Department’’) published BILLING CODE 3510–DS–P An accredited laboratory’s contact the preliminary results of the information and scope of accreditation administrative review of the DEPARTMENT OF COMMERCE are provided on NVLAP’s Web site antidumping duty order on chlorinated (http://www.nist.gov/nvlap). isocyanurates from the People’s International Trade Administration Affected Public: Business or other for- Republic of China (‘‘PRC’’). See profit organizations, not-for-profit Chlorinated Isocyanurates from the [A–583–816] institutions, and Federal, State or Local People’s Republic of China: Preliminary Certain Stainless Steel Butt-Weld Pipe government. Results of Administrative Review, 74 FR Fittings From Taiwan: Notice of Frequency: Annually. 27104 (June 8, 2009). This review covers Extension of Time Limit for the Final Respondent’s Obligation: Required to the period June 1, 2007, through May Results of Antidumping Duty obtain or retain benefits. 31, 2008. The final results of review are Administrative Review OMB Desk Officer: Jasmeet Seehra, currently due no later than November 5, (202) 395–3123. 2009. AGENCY: Import Administration, Copies of the above information International Trade Administration, collection proposal can be obtained by Extension of Time Limit for Final Department of Commerce. calling or writing Diana Hynek, Results of Review SUMMARY: The Department of Commerce Departmental Paperwork Clearance Pursuant to section 751(a)(3)(A) of the (the Department) is extending the time Officer, (202) 482–0266, Department of Tariff Act of 1930, as amended (‘‘the limit for the final results of the

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administrative review of the for a constructed export price offset and F/PR1, Office of Protected Resources, antidumping duty order on certain the Department’s use of facts available NMFS, 1315 East-West Highway, Room stainless steel butt-weld pipe fittings with respect to certain aspects of 13705, Silver Spring, MD 20910. Those from Taiwan. The period of review is respondent’s cost reporting. Because it individuals requesting a hearing should June 1, 2007, through May 31, 2008. is not practicable to complete this set forth the specific reasons why a This extension is made pursuant to administrative review within the time hearing on this particular request would section 751(a)(3)(A) of the Tariff Act of limit mandated by section 751(a)(3)(A) be appropriate. 1930, as amended (the Act). of the Act and 19 CFR 351.213(h)(2), the Comments may also be submitted by DATES: Effective Date: November 12, Department is extending the time limit facsimile at (301)713–0376, provided 2009. for completion of the final results of this the facsimile is confirmed by hard copy administrative review by 32 days, to no submitted by mail and postmarked no FOR FURTHER INFORMATION CONTACT: later than December 7, 2009. later than the closing date of the Angelica Mendoza or John Drury, Office This notice is published pursuant to comment period. 7, AD/CVD Operations, Import sections 751(a)(1) and 777(i)(1) of the Comments may also be submitted by Administration, International Trade Act. e-mail. The mailbox address for Administration, U.S. Department of providing e-mail comments is Commerce, 14th Street and Constitution Dated: November 5, 2009. [email protected]. Include Avenue, NW., Washington, DC 20230, Edward C. Yang, in the subject line of the e-mail telephone: (202) 482–3019 and (202) Acting Deputy Assistant Secretary for comment the associated File Number. 482–0195, respectively. Antidumping and Countervailing Duty FOR FURTHER INFORMATION CONTACT: The SUPPLEMENTARY INFORMATION: Operations. [FR Doc. E9–27201 Filed 11–10–09; 8:45 am] following Analysts at (301)713–2289: Background BILLING CODE 3510–DS–P For File No. 14682: Kristy Beard or On July 8, 2009, the Department Carrie Hubard; File No. 10018: Carrie published the preliminary results of the Hubard or Kristy Beard; File No. 13846: administrative review of the DEPARTMENT OF COMMERCE Amy Hapeman or Kristy Beard; File No. antidumping duty order on certain 14451: Kate Swails or Kristy Beard; File stainless steel butt-weld pipe fittings National Oceanic and Atmospheric No. 14585: Amy Hapeman or Kristy from Taiwan covering the period June 1, Administration Beard; File No. 14599: Amy Sloan or Kristy Beard; File No. 14122: Amy Sloan 2007, through May 31, 2008. See Certain RIN 0648–XS81 Stainless Steel Butt-Weld Pipe Fittings or Kristy Beard; File No. 14296: Kristy from Taiwan: Preliminary Results of Marine Mammals; File Nos. 14682, Beard or Jennifer Skidmore; File No. Antidumping Duty Administrative 10018, 13846, 14451, 14585, 14599, 14353: Carrie Hubard or Kristy Beard. Review, Notice of Intent to Rescind in 14122, 14296, 14353 SUPPLEMENTARY INFORMATION: The Part, and Notice of Intent Not to Revoke subject permits and permit amendment AGENCY: National Marine Fisheries Order in Part, 74 FR 32532 (July 8, are requested under the authority of the Service (NMFS), National Oceanic and 2009). The final results for the Marine Mammal Protection Act of 1972, Atmospheric Administration (NOAA), antidumping duty administrative review as amended (MMPA; 16 U.S.C. 1361 et Commerce. of certain stainless steel butt-weld pipe seq.), the regulations governing the fittings from Taiwan are currently due ACTION: Notice; receipt of applications. taking and importing of marine mammals (50 CFR part 216), the no later than November 5, 2009. SUMMARY: Notice is hereby given that Endangered Species Act of 1973, as Extension of Time Limits for Final NMFS has received nine applications amended (ESA; 16 U.S.C. 1531 et seq.), Results for permits or permit amendments to and the regulations governing the Section 751(a)(3)(A) of the Act conduct research on marine mammals. taking, importing, and exporting of requires the Department to issue the See SUPPLEMENTARY INFORMATION for endangered and threatened species (50 results in an administrative review additional information regarding CFR 222–226). within 120 days of the publication of applicants and specific information on Each of the nine applications is the preliminary results. However, if it is species affected. summarized below. For specific take not practicable to complete the review DATES: Written, telefaxed, or e-mail numbers of each species, please refer to within this time period, section comments must be received on or before the associated application. 751(a)(3)(A) of the Act allows the December 14, 2009. Whitlow Au, Ph.D. [File No. 14682], Department to extend the time limit for ADDRESSES: The applications and University of Hawaii, Hawaii Institute of the final results up to 180 days (or 300 related documents are available for Marine Biology, Marine Mammal days if the Department does not extend review by selecting ‘‘Records Open for Research Program, PO Box 1106, Kailua, the time limit for the preliminary Public Comment’’ from the Features box HI 96734, requests a five-year permit to results) from the date of publication of on the Applications and Permits for investigate the population dynamics the preliminary results. Protected Species (APPS) home page, and behavior of cetaceans around In accordance with section https://apps.nmfs.noaa.gov, and then Hawaii and the Pacific, to determine 751(a)(3)(A) of the Act and 19 CFR selecting the associated File No. from aspects of the behavior and use of the 351.213(h)(2), the Department finds that the list of available applications. acoustic environment by large whales, it is not practicable to complete the These documents are also available and to determine the effects of noise on review within the original time frame upon written request or by appointment behavior of cetaceans around Hawaii. (i.e., by November 5, 2009). Specifically, in the offices listed in SUPPLEMENTARY Researchers would conduct behavioral the Department requires additional time INFORMATION. observations, photo-identification, to review complex issues raised in the Written comments or requests for a genetic sampling, suction-cup tagging, respondent Ta Chen Stainless Pipe Co. public hearing on these applications acoustic recording, and acoustic Ltd.’s case brief, including comments should be mailed to the Chief, Permits, playbacks from vessels. Target species relating to the respondent’s qualification Conservation and Education Division, would be: Blainville’s beaked whale

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(Mesoplodon densirostris), Cuvier’s identification, passive acoustic sampling for sex determination, and for beaked whale (Ziphius cavirostris), recording, behavioral observation (by health assessment. In addition to killer whale (Orcinus orca), humpback vessel, underwater and aerial), video- humpback whales, the following species whale (Megaptera novaeangliae), dwarf recording, collection of sloughed skin, may be opportunistically studied or sperm whale (Kogia sima), pygmy sperm photogrammetry, biopsy sampling, incidentally harassed during surveys: whale (K. breviceps), short-finned pilot playback experiments, and suction-cup bottlenose dolphin, spinner dolphin, whale (Globicephala macrorhynchus), and implant tagging of target whales. spotted dolphin, Risso’s dolphin, false false killer whale (Pseudorca Whales of all ages would be harassed killer whale, melon-headed whale, crassidens), pygmy killer whale (Feresa during surveys with the exceptions that pygmy killer whale, rough toothed attenuata), melon-headed whale only juvenile and adult humpbacks dolphin, pilot whale, striped dolphin, (Peponocephala electra), long-beaked would be biopsy sampled and only pygmy and dwarf sperm whales, killer common dolphin (Delphinus capensis), adult humpbacks would be tagged. In whale, sperm whale, North Pacific right short-beaked common dolphin (D. Hawaii, spinner dolphins, pantropical whale (Eubalaena japonica), fin whale, delphis), striped dolphin (Stenella spotted dolphins, bottlenose dolphins blue whale, Cuvier’s beaked whale, coeruleoalba), spinner dolphin (S. and false killer whales may be minke whale (B. acutorostrata), sei longirostris), pantropical spotted incidentally harassed during research. whale, Bryde’s whale (B. edeni), Fraser’s dolphin (S. attenuata), bottlenose Killer whales and Steller sea lions dolphin (Lagenodelphis hosei) and dolphin (Turisiops truncatus), Risso’s (Eumetopias jubatus) may be Blainville’s beaked whale. dolphin (Grampus griseus), Pacific incidentally harassed in Washington or Fred A. Sharpe, Ph.D. [File No. white-sided dolphin (Lagenorhynchus Alaskan waters during research. 14599], Alaska Whale Foundation, 4739 obliquidens), and rough-toothed Joseph Mobley, Jr. [File No. 14451], University Way NE ι1239, Seattle WA dolphin (Steno bredanensis). University of Hawaii at Manoa, 2528 98105, requests a five-year permit to Rachel Cartwright, Ph.D. [File No. McCarthy Mall, Honolulu, HI 96816, conduct research on the social 10018], Keiki Kohola Project, 5277 West requests a five-year permit to investigate complexity of Alaskan humpback whale Wooley Road, Oxnard, CA 93035, short and long-term changes in bubble feeding to gain insight into the requests an amendment to Permit No. population size, habitat use, and manner in which environmental and 10018, issued on June 18, 2008 (73 FR behavior of cetaceans off the coast of social factors shape this behavior. 36042). Dr. Cartwright is currently eastern and western United States, Research would be conducted annually authorized to conduct humpback whale Hawaii, Alaska, Guam, and the Mariana and include approaches to individuals research, consisting of photo- Islands. Researchers would conduct for: (1) photo-identification; (2) acoustic identification, focal follows, underwater aerial and vessel surveys, photo- recordings; (3) sonar profiling; (4) pole observations, and collection of sloughed identification, videography, and cam observations; (5) broadcasting skin, in Hawaiian waters. The permit behavioral observations. Research sounds to individuals; (6) attachment of holder now requests authorization to would target numerous cetacean species suction cup tags; (7) aerial observations; conduct similar research in Alaskan including endangered blue whales (8) SCUBA observations; and (9) waters from May through September (Balaenoptera musculus), fin whales (B. opportunistic collection of fecal each year. The purpose of the physalus), humpback whales, sei whales material. Most activities would be amendment is to broaden the current (B. borealis) and sperm whales (Physeter conducted independently; however, study on humpback whale female-calf macrocephalus). photo-identification would occur before behavior and habitat choice. Field work Adam Pack, Ph.D. [File No. 14585], or after most other activities, and some would be based out of Kake, Alaska and University of Hawaii at Hilo, 200 West playbacks would be broadcast focused primarily in Chatham Straits, Kawili St., Hilo, HI, 96720, requests a concurrently to tagged individuals to Frederick Sound, Sumner Strait, Lynn five-year permit to continue long-term document received levels and Canal and Icy Strait. Humpback whales population studies of humpback whales subsurface movements. No impacts to of all ages, including calves, would be and other cetacean species in the non-target species are anticipated. The harassed during surveys and the Eastern, Western and Central North applicant is also requesting associated photo-identification, passive Pacific Ocean, primarily Hawaii and opportunistic approaches to killer acoustics, and behavioral observations. Alaska. These studies include: (1) whales for photo-identification. The Four other species of cetaceans (killer photo-identification to determine proposed activities are part of an whales, Pacific white-sided dolphins, individual life histories, social role, ongoing study, and ouldl be conducted and harbor (Phocoena phocoena) and migration, habitat use, distribution, and in the waters of Southeast Alaska, Dall’s porpoises (Phocoenoides dalli)) reproductive states; (2) underwater primarily from mid-May to mid- may be incidentally harassed during the videogrammetry to determine the body October. research. Any killer whales observed sizes of animals in different social roles; Jan Straley [File No. 14122], would be photographed for (3) underwater videography to University of Alaska Southeast Sitka identification purposes. The amended document behaviors and social Campus, 1332 Seward Ave., Sitka, AK permit would expire on June 30, 2013. interactions, and to aid in sex 99835, requests a five-year permit to Jim Darling, Ph.D. [File No. 13846], determination; (4) passive acoustic study the biology of large whales in Whale Trust, P.O. Box 384, Tofino, BC recordings of song to trace the evolution Alaskan waters to: (1) continue and V0R2Z0, Canada, requests a five-year of song in Hawaii and to examine expand a study of humpback whales permit to study the social organization, acoustic characteristics of song in including takes by close approach/ behavior and communication of relation to singer size and life history; disturbance, biological sampling, humpback whales in Hawaii (primarily (5) passive acoustic recordings of non- suction cup and satellite tagging and off west Maui), and the population song vocalizations to determine acoustic acoustic playbacks; (2) study sperm biology, ecology, and behavior of properties, contexts, and functions; (6) whale movements, foraging behavior humpback and Eastern gray Crittercam studies of humpbacks in and depredation on longline fishing gear (Eschrichtius robustus) whales along the different group types to help in the to reduce interactions involving takes by coastlines of Washington and Alaska. understanding of the humpback mating close approach/disturbance, biological Researchers would conduct photo- system; and (7) skin and blubber biopsy sampling, suction cup and satellite

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tagging, fishing modifications and recording, and underwater photo/ DEPARTMENT OF COMMERCE acoustic playbacks; (3) study killer videography. Suction cup tags would be whale seasonal movements, foraging, deployed on humpback whales, National Oceanic and Atmospheric migration patterns and depredation, including calves. Minke whales would Administration including takes by close approach/ be approached for photo-identification RIN 0648–XS83 disturbance, biological sampling, anywhere within the main Hawaiian suction cup and satellite tagging and islands. Twelve other cetacean species Endangered and Threatened Species: acoustic playbacks; (4) enhance the may be incidentally harassed during Recovery Plan Preparation for the body of knowledge, stock structure and research activities. Threatened Southern Distinct current status through research Population Segment of North American activities involving close approach/ In compliance with the National Green Sturgeon disturbance, biological sampling and Environmental Policy Act of 1969 (42 tagging of gray, minke, fin, sei, blue, and U.S.C. 4321 et seq.), an environmental AGENCY: National Marine Fisheries North Pacific right whales; and (5) study assessment (EA) will be prepared to Service (NMFS), National Oceanic and killer whale predation events, examine whether significant Atmospheric Administration (NOAA), photograph, observe, collect tissue environmental impacts could result Commerce. samples, incidentally harass and collect from issuance of the proposed scientific ACTION: Notice of intent to prepare a dead parts from prey including: research permits and permit recovery plan; request for information. humpback, gray, minke, sei and fin amendment. SUMMARY: NMFS announces its intent to whales, harbor porpoise, Dall’s Concurrent with the publication of develop a recovery plan for the porpoise, Pacific white-sided dolphin, this notice in the Federal Register, Southern Distinct Population Segment Northern fur seal (Callorhinus ursinus), of North American green sturgeon Steller sea lion, and harbor seal (Phoca NMFS is forwarding copies of these (Acipenser medirostris; hereafter, ‘‘sDPS vitulina). applications to the Marine Mammal green sturgeon’’) and also requests Briana Witteveen, Ph.D. [File No. Commission and its Committee of information from the public. The sDPS 14296], University of Alaska Fairbanks, Scientific Advisors. green sturgeon is listed as threatened School of Fisheries and Ocean Sciences, Documents may be reviewed in the under the Endangered Species Act 118 Trident Way, Kodiak, AK 99615, following locations: (ESA). NMFS is required by the ESA to requests a five-year permit to conduct Permits, Conservation and Education develop and implement recovery plans scientific research on cetaceans year- for the conservation and survival of round in the Gulf of Alaska, with Division, Office of Protected Resources, ESA-listed species. NMFS will be emphasis on examining prey use and NMFS, 1315 East-West Highway, Room coordinating with state, Federal, tribal, foraging patterns of gray, fin, humpback, 13705, Silver Spring, MD 20910; phone and local entities in California, Oregon, and killer whales and exploring the (301)713–2289; fax (301)713–0376; Washington, Canada, and Alaska to responses of humpback whales to Northwest Region, NMFS, 7600 Sand develop the recovery plan. acoustic deterrent devices. Takes would Point Way NE, BIN C15700, Bldg. 1, DATES: Information related to this notice occur by close approach to collect Seattle, WA 98115–0700; phone will be accepted, and incorporated photographs, recordings of (206)526–6150; fax (206)526–6426; vocalizations, biopsy samples, prey appropriately, at any time during the Alaska Region, NMFS, P.O. Box parts, sloughed skin, to attach suction recovery planning process. However, cup tags, and to document response to 21668, Juneau, AK 99802–1668; phone the first meeting of the recovery team is acoustic deterrents. Sei, blue, minke, (907)586–7221; fax (907)586–7249; scheduled for December 10–11, 2009, sperm, and right whales would be taken Southwest Region, NMFS, 501 West and therefore information must be by close approach to collect Ocean Blvd., Suite 4200, Long Beach, received by December 8, 2009, to be photographs and biopsy samples. Other CA 90802–4213; phone (562)980–4001; included during that meeting. In order species of marine mammals might be fax (562)980–4018; to best facilitate a smooth process, incidentally harassed during research NMFS strongly encourages public Pacific Islands Region, NMFS, 1601 activities. participation as early as possible. An Ann Zoidis [File No. 14353], Cetos Kapiolani Blvd., Rm 1110, Honolulu, HI initial meeting with stakeholders is Research Organization, 33 Echo Ave., 96814–4700; phone (808)944–2200; fax likely to occur in early 2010. Suite 5, Oakland, CA 94611, requests a (808)973–2941; ADDRESSES: You may submit five-year permit to conduct scientific Northeast Region, NMFS, 55 Great information by any of the following research on humpback and minke Republic Drive, Gloucester, MA 01930; methods: whales in Hawaiian waters. Research phone (978)281–9300; fax (978)281– • E-mail: Information may be would occur January through March. 9333; and submitted by e-mail to Humpback whale research would be [email protected]. Include Southeast Region, NMFS, 263 13th focused in the Au’au Channel near in the subject line of the e-mail the Maui. The objectives of the research are Avenue South, Saint Petersburg, Florida following identifier: Information for to examine: (1) underwater activity 33701; phone (727)824–5312; fax sDPS green sturgeon recovery plan. budgets of humpback whales, including (727)824–5309. • Mail: David Woodbury, National during non-daylight hours; (2) mother/ Dated: November 5, 2009. Marine Fisheries Service, Southwest calf/escort interactions, including sound P. Michael Payne, Region, 777 Sonoma Avenue, Santa production and vocal/behavioral Rosa, CA 95404–4731. Chief, Permits, Conservation and Education • Fax: (707) 578–3435, Attention: responses to sounds by conspecifics; (3) Division, Office of Protected Resources, David Woodbury. habitat use; and (4) any behavioral and/ National Marine Fisheries Service. or acoustic reactions to passing vessel FOR FURTHER INFORMATION CONTACT: [FR Doc. E9–27185 Filed 11–10–09; 8:45 am] traffic. Research activities would David Woodbury, NMFS Southwest include photo-identification, behavioral BILLING CODE 3510–22–S Region, at (707) 575–6088 or observations, passive acoustic [email protected].

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SUPPLEMENTARY INFORMATION: The ESA and conservation of the sDPS green notice. This action is necessary to allow requires that the Secretary of Commerce sturgeon; (c) actions to address these continued program delivery by the develop and implement recovery plans limiting factors and threats; (d) incumbent MBEC operators while for the conservation and survival of estimates of the time and cost to MBDA completes an evaluation of the threatened and endangered species. implement recovery actions; and (e) MBEC Program and the solicitation and Recovery is defined as an ‘‘improvement research, monitoring, and evaluation award processes for the next funding in the status of listed species to the needs. cycle. point at which listing is no longer NMFS understands that stakeholder appropriate’’ (50 CFR 402.02). Recovery participation in the recovery planning DATES: The extension and related plans provide blueprints to determine process is critical to the success of funding, if approved by the Department priority recovery actions for funding implementing the recovery plan. As of Commerce Grants Officer, will and implementation. The ESA specifies such, NMFS requests that stakeholders commence at the end of the current that recovery plans must, to the identify themselves in order to receive award period and will continue for a maximum extent practicable, notices of upcoming meetings and to period not to exceed 12 months. incorporate into each plan: (1) a receive draft documents to provide FOR FURTHER INFORMATION CONTACT: Mr. description of site-specific management comments. For those receiving this Efrain Gonzalez, Chief, Office of actions that may be necessary to achieve notice, please forward to those that may Business Development, Minority the plan’s goals for the conservation and be either interested in participating Business Development Agency, 1401 survival of the species; (2) objective, directly or may have knowledge to lend Constitution Avenue, NW., Room 5075, measurable criteria which, when met, that would benefit the plan, and thus Washington, DC 20230. Mr. Gonzalez would result in the species being green sturgeon. may be reached by telephone at (202) removed from the list of threatened and Authority: 16 U.S.C. 1531 et seq. 482–1940 and by e-mail at endangered species; and (3) estimates of [email protected]. the time required and costs to achieve Dated: November 6, 2009. the plan’s goal and to achieve Angela Somma, SUPPLEMENTARY INFORMATION: Pursuant intermediate steps toward that goal. Chief, Endangered Species Division, Office to Executive Order 11625, the MBEC NMFS has also developed interim of Protected Resources, National Marine Program provides standardized business recovery planning guidance that Fisheries Service. assistance and development services provides additional information to [FR Doc. E9–27314 Filed 11–10–09; 8:45 am] directly to eligible minority-owned ensure consistency among recovery BILLING CODE 3510–22–S businesses. The MBEC Program is a key plans developed for all species managed component of MBDA’s overall business by NMFS. This guidance emphasizes development assistance program; it the importance of stakeholder DEPARTMENT OF COMMERCE promotes the growth and involvement throughout the recovery competitiveness of minority business Minority Business Development enterprises, and further incorporates an planning process. In developing the Agency draft recovery plan for the sDPS green entrepreneurial approach to the delivery sturgeon, NMFS will consider all of the [Docket No.: 0910271380–91383–01] of client services. This strategy expands information received in response to this the reach and service delivery of the notice and solicitation. In addition, Extension of the Award Period for MBEC Program by requiring project NMFS will publish the draft recovery Certain Minority Business Enterprise operators to develop and build upon plan in the Federal Register for public Centers strategic alliances with public and private sector partners as a means of comment. AGENCY: Minority Business NMFS requests relevant information Development Agency, Commerce. serving eligible businesses within each MBEC’s applicable geographical service from the public that should be ACTION: Notice. addressed during preparation of the area. draft recovery plan for the threatened SUMMARY: The Minority Business MBDA amends its prior competitive sDPS green sturgeon. Such information Development Agency (MBDA) publishes solicitations under the MBEC Program, should address: (a) biological and other this notice to allow for a funded as referenced in the below table, to criteria for removing the species from extension of up to 12 months, on a non- allow for a funded extension of up to 12 the list of threatened and endangered competitive basis, of the award periods months, on a non-competitive basis, of species; (b) factors that are presently for those Minority Business Enterprise the award period for the following limiting or threaten to limit the survival Centers (MBECs) identified in this MBEC projects:

Original Federal Register Name of project Name of operator Geographical service area notice

Alabama MBEC...... Mobile Area Chamber of Com- State of Alabama ...... 71 FR 42351, as amended merce, Inc. by 71 FR 45773. Georgia MBEC ...... Georgia Tech Research Corporation State of Georgia ...... 71 FR 42351. Miami MBEC ...... M. Gill & Associates, Inc. Miami/Ft. Lauderdale/Pompano 72 FR 67277. Beach MSA. Mississippi MBEC...... Arkansas Regional Minority Busi- State of Mississippi ...... 71 FR 42351, as amended ness Council. by 71 FR 45773. North Carolina MBEC ...... North Carolina Institute of Minority State of North Carolina ...... 71 FR 42351. Economic Development. South Carolina MBEC ...... DESA, Inc. State of South Carolina ...... 71 FR 42351. Chicago MBEC ...... Chicago Community Ventures. State of Illinois ...... 71 FR 42351. Detroit MBEC ...... Michigan Minority Business Devel- State of Michigan ...... 71 FR 42351, as amended opment Council. by 71 FR 58788. Indianapolis MBEC ...... State of Indiana. State of Indiana ...... 71 FR 42351.

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Original Federal Register Name of project Name of operator Geographical service area notice

St. Louis MBEC ...... St. Louis Minority Business Devel- State of Missouri ...... 71 FR 42351. opment Council. Dallas MBEC ...... Grijalva & Allen, P.C. Dallas/Fort Worth/Arlington MSA ..... 71 FR 42351. El Paso MBEC ...... El Paso Hispanic Chamber of Com- El Paso MSA ...... 72 FR 71621. merce. New Mexico MBEC ...... NEDA Business Consultants, Inc. State of New Mexico ...... 71 FR 42351. San Antonio MBEC ...... University of Texas at San Antonio. San Antonio MSA ...... 71 FR 42351. Manhattan MBEC ...... Interracial Council for Business Op- New York Counties of: New York, 71 FR 42351. portunity. Bronx & Westchester. New Jersey MBEC ...... Interracial Council for Business Op- State of New Jersey ...... 71 FR 42351. portunity. Pennsylvania ...... The Enterprise Center. State of Pennsylvania ...... 71 FR 42351. Puerto Rico MBEC...... Asociacion Productos de Puerto Puerto Rico Islandwide ...... 71 FR 42351. Rico. Queens MBEC ...... Jamaica Business Resource Center. New York Counties of: Queens, 71 FR 42351. Nassau & Suffolk. Washington DC Metro MBEC ...... National Community Reinvestment Washington, DC/Arlington/Alexan- 71 FR 42351. Coalition, Inc. dria MSA. Williamsburg MBEC ...... ODA Community Development Cor- New York Counties of: Kings & 71 FR 42351. poration. Richmond. Arizona MBEC ...... Arizona Hispanic Chamber of Com- State of Arizona ...... 71 FR 42351. merce Foundation. Honolulu MBEC ...... University of Hawaii. Honolulu MSA ...... 72 FR 67277. Inland Empire MBEC ...... CHARO Community Development California Counties of: Orange, Riv- 71 FR 42351. Corporation. erside, Inland Empire, San Diego & San Bernardino. Los Angeles MBEC ...... University of Southern California. California Counties of: Los Angeles 71 FR 42351. & Ventura. Nevada MBEC ...... New Ventures Capital Development State of Nevada ...... 71 FR 42351. Company. Northern California MBEC ...... Asian, Inc. California Counties of: Santa Clara, 71 FR 42351. Alameda, San Francisco, San Mateo, San Benito, Monterey, Santa Cruz, Sonoma, Napa, So- lano, Contra Costa, Mendocino, San Joaquin, Sacramento, & Marin. Washington MBEC ...... Seattle Business Assistance Center. State of Washington ...... 71 FR 42351.

MBDA takes this action to allow for Funding for award extensions is Department of Commerce Pre-Award continued program delivery by the contingent upon the availability of Notification Requirements for Grants incumbent MBEC operators while Fiscal Year 2010 appropriations, which and Cooperative Agreements MBDA completes its evaluation of the have not yet been appropriated for the MBEC Program and of the competitive MBEC program. MBDA therefore issues The Department of Commerce Pre- solicitation and award processes for the this notice subject to the appropriations Award Notification Requirements for next funding cycle. made available under the current Grants and Cooperative Agreements contained in the Federal Register notice The award extension and additional continuing resolution, H.R. 2918, of February 11, 2008 (73 FR 7696) are funding referenced herein will be made Division B, ‘‘Continuing Appropriations applicable to this notice. at the sole discretion of MBDA and the Resolution, 2010,’’ Public Law 111–68. Department of Commerce using the In no event will MBDA or the Paperwork Reduction Act following evaluation criteria: (1) The Department of Commerce be responsible MBEC’s program performance rating for any costs incurred outside of the This document contains collection of during the current program period; (2) current award period by the incumbent information requirements subject to the the availability of appropriated funds; operators of the MBEC projects affected Paperwork Reduction Act (PRA). The and (3) MBDA and Department of by this notice if the MBEC Program fails use of the MBDA Performance Online Commerce’s priorities. MBDA will to receive funding or if an award Database and Standard Forms 424, 424A review each MBEC project’s extension is not made because of other and 424B has been approved by OMB performance rating as evaluated through MBDA or Department of Commerce under the control numbers 0640–0002, the standardized performance reports priorities. Publication of this 4040–0004, 4040–0006 and 4040–0007, and assessments required under the announcement does not oblige MBDA or respectively. Notwithstanding any other MBEC Program in determining which the Department of Commerce to award provisions of law, no person is required projects will be offered an extension. any extensions or to obligate any to respond to, nor shall any person be Although MBDA is allowing for an available funds. subject to a penalty for failure to comply extension of the award period for with a collection of information subject projects awarded under the MBEC to the PRA unless that collection Program, it is possible that not all displays a currently valid OMB Control projects will be offered an extension. Number.

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Executive Order 12866 ADDRESSES: The workshop will be held DATES: The conference call will convene This notice has been determined to be at the Swedish Cultural Center Seattle, December 3, 2009 at 1 p.m. and adjourn not significant for purposes of E.O. WA, 1920 Dexter Ave. N in the Svea at 2 p.m. on December 3, 2009. The 12866. Room on the Main Level. entire conference call will be closed. FOR FURTHER INFORMATION CONTACT: ADDRESSES: None. Executive Order 13132 (Federalism) Patty Britza, 907–586–7376. FOR FURTHER INFORMATION CONTACT: Dr. It has been determined that this notice SUPPLEMENTARY INFORMATION: The Harry Hertz, Director, Baldrige National does not contain policies with workshop will include discussion of Quality Program, National Institute of Federalism implications as that term is seaLandings and 2010 recordkeeping Standards and Technology, defined in Executive Order 13132. and reporting requirements for Alaska Gaithersburg, Maryland 20899, Administrative Procedure Act/ groundfish fisheries and Individual telephone number (301) 975–2361. Regulatory Flexibility Act Fishing Quota fisheries and instructions SUPPLEMENTARY INFORMATION: The for completing and submitting required Assistant Secretary for Administration, Prior notice and an opportunity for reports and logbooks. NMFS will with the concurrence of the General public comment are not required by the provide a demonstration of the new Counsel, formally determined on Administrative Procedure Act for rules version of seaLandings for at-sea catcher January 8, 2009, that the meeting of the concerning public property, loans, processors and training on how to Judges Panel will be closed pursuant to grants, benefits, and contracts. 5 U.S.C. submit daily production reports, Section 10(d) of the Federal Advisory 553(a)(2). Because notice and consolidated landing reports, with and Committee Act, 5 U.S.C. app. 2, as opportunity for comment are not without Individual Fishing Quota, and amended by Section 5(c) of the required pursuant to 5 U.S.C. 553 or any the maximum retainable amount Government in the Sunshine Act, Public other law, the analytical requirements of worksheet. Law 94–409. The meeting, which the Regulatory Flexibility Act, 5 U.S.C. Special Accomodations involves examination of Award 601 et seq., are inapplicable. Therefore, applicant data from U.S. companies and a regulatory flexibility analysis is not These workshops will be physically other organizations and a discussion of required and has not been prepared. accessible to people with disabilities. this data as compared to the Award Authority: 15 U.S.C. 1512 and Executive Requests for sign language criteria in order to recommend Award Order 11625. interpretation or other auxiliary aids recipients, may be closed to the public should be directed to Patty Britza, 907 David A. Hinson, in accordance with Section 552b(c)(4) of 586 7376, at least 5 working days prior Title 5, United States Code, because the National Director, Minority Business to the meeting date. Development Agency. meetings are likely to disclose trade [FR Doc. E9–26902 Filed 11–10–09; 8:45 am] Dated: November 6, 2009. secrets and commercial or financial BILLING CODE 3510–21–P James P. Burgess, information obtained from a person Acting Director, Office of Sustainable which is privileged or confidential. Fisheries, National Marine Fisheries Service. Dated: November 5, 2009. DEPARTMENT OF COMMERCE [FR Doc. E9–27186 Filed 11–10–09; 8:45 am] Patrick Gallagher, BILLING CODE 3510–22–S Deputy Director. National Oceanic and Atmospheric Administration [FR Doc. E9–27159 Filed 11–10–09; 8:45 am] DEPARTMENT OF COMMERCE BILLING CODE 3510–13–P RIN 0648–XS71 National Institute of Standards and Fisheries of the Exclusive Economic DEPARTMENT OF COMMERCE Zone Off Alaska; Recordkeeping and Technology Reporting Requirements; Public Judges Panel of the Malcolm Baldrige National Oceanic and Atmospheric Workshops National Quality Award Administration AGENCY: National Marine Fisheries AGENCY: National Institute of Standards RIN 0648–XQ82 Service (NMFS), National Oceanic and and Technology, Department of Takes of Marine Mammals Incidental to Atmospheric Administration (NOAA), Commerce. Commerce. Specified Activities; Russian River ACTION: Notice of closed conference call. ACTION: Notice of workshop. Estuary Management Activities SUMMARY: Pursuant to the Federal AGENCY: National Marine Fisheries SUMMARY: NMFS, Alaska Region, and Advisory Committee Act, 5 U.S.C. app. Service (NMFS), National Oceanic and the U.S. Coast Guard, North Pacific 2, notice is hereby given that the Judges Atmospheric Administration (NOAA), Fisheries Training Center, will present a Panel of the Malcolm Baldrige National Commerce. workshop on seaLandings, a Quality Award will conduct a ACTION: Notice; proposed incidental consolidated electronic means of conference call on Thursday, December reporting production of commercial harassment authorization; request for 3, 2009 at 1 p.m. The Judges Panel is comments. groundfish to multiple management composed of twelve members agencies for Federal and State fisheries prominent in the fields of quality, SUMMARY: NMFS has received an off the coast of Alaska, and 2010 innovation, and performance excellence application from the Sonoma County recordkeeping and reporting and appointed by the Secretary of Water Agency (Agency) for an requirements for the Alaska groundfish Commerce. The purpose of this Incidental Harassment Authorization fisheries and Individual Fishing Quota conference call is to conduct final (IHA) to take marine mammals, by fisheries. judging of the 2009 applicants. The harassment, incidental to Russian River DATES: The workshops will be held on conference call will be closed to the Estuary (Estuary) management activities, November 18, 2009, 9 a.m. to 5 p.m., public in accordance with Section specifically construction and Pacific Standard Time. 552b(c)(4) of Title 5, United States Code. maintenance of a lagoon outlet channel

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to improve rearing habitat for listed the Secretary of Commerce to allow, complete on September 22, 2009. These salmonid species and artificially upon request, the incidental, but not activities include construction and breaching the barrier beach at the mouth intentional, taking of small numbers of maintenance of a lagoon outlet channel of the river to minimize potential for marine mammals by U.S. citizens who to improve rearing habitat for listed flooding, as well as conducting a series engage in a specified activity (other than salmon and artificially breaching the of biological and physical monitoring commercial fishing) within a specified barrier beach at the mouth of the river activities. Pursuant to the Marine geographical region if certain findings to minimize potential for flooding and Mammal Protection Act (MMPA), NMFS are made and either regulations are a series of biological and physical is requesting comments on its proposal issued or, if the taking is limited to monitoring activities. The purpose of to issue an IHA to the Agency to harassment, a notice of a proposed these activities is to comply with NMFS’ incidentally harass, by Level B authorization is provided to the public Reasonable and Prudent Alternatives Harassment only, a small number of for review. (PRAs) outlined in its’ Biological harbor seals (Phoca vitulina richardii), Authorization for incidental takings Opinion (BiOp) for Water Supply, Flood California sea lions (Zalophus shall be granted if NMFS finds that the Control Operations, and Channel califonianus), and northern elephant taking will have a negligible impact on Maintenance conducted by the U.S. seals (Mirounga angustirostris) during the species or stock(s), will not have an Army Corps of Engineers, the Sonoma the specified activity. unmitigable adverse impact on the County Water Agency, and the DATES: Comments and information must availability of the species or stock(s) for Mendocino County Russian River Flood be received no later than December 14, subsistence uses (where relevant), and if Control and Water Conservation 2009. the permissible methods of taking and Improvement District in the Russian ADDRESSES: Comments on the requirements pertaining to the River Watershed (NMFS, 2008) application should be addressed to mitigation, monitoring and reporting of addressing ongoing practices and Michael Payne, Chief, Permits, such takings are set forth. NMFS has operations at dams and activities related Conservation and Education Division, defined ‘‘negligible impact’’ in 50 CFR to flood control, water diversion and Office of Protected Resources, National 216.103 as ’’...an impact resulting from storage, regulation of flows in the Marine Fisheries Service, 1315 East- the specified activity that cannot be Russian River and Dry Creek, estuary West Highway, Silver Spring, MD reasonably expected to, and is not management, hydroelectric power 20910–3225. The mailbox address for reasonably likely to, adversely affect the generation, channel maintenance, and providing email comments is PR1.0648– species or stock through effects on fish hatchery production by numerous [email protected]. NMFS is not annual rates of recruitment or survival.’’ stakeholders including the Agency. responsible for e-mail comments sent to Section 101(a)(5)(D) of the MMPA NMFS found current water management addresses other than the one provided established an expedited process by practices, including those at the mouth here. Comments sent via e-mail, which citizens of the United States can of the Russian River, were jeopardizing including all attachments, must not apply for an authorization to the continued existence of some of the exceed a 10–megabyte file size. incidentally take small numbers of steelhead and salmon species and Instructions: All comments received marine mammals by Level B harassment adversely modifying their critical are a part of the public record and will as defined below. Section 101(a)(5)(D) habitat. In response, the Agency is generally be posted to http:// establishes a 45–day time limit for altering its Estuary management www.nmfs.noaa.gov/pr/permits/ NMFS review of an application approach to include the activities incidental.htm without change. All followed by a 30–day public notice and described below. comment period on any proposed Personal Identifying Information (for The Agency’s specified activities authorizations for the incidental example, name, address, etc.) include construction and maintenance harassment of marine mammals. Within voluntarily submitted by the commenter of a lagoon outlet channel, artificial 45 days of the close of the comment may be publicly accessible. Do not breaching of the barrier beach which period, NMFS must either issue or deny submit Confidential Business forms at the Russian River- Pacific the authorization. If authorized, the IHA Information or otherwise sensitive or Ocean interface (the location of the would be effective for one year from protected information. Jenner haulout), and monitoring date of issuance. A copy of the application containing associated with such activities. Due to a list of the references used in this Except with respect to certain activities not pertinent here, the MMPA the necessity of operating heavy document may be obtained by writing to equipment (e.g., bulldozers, excavators) the address specified above, telephoning defines ‘‘harassment’’ as: any act of pursuit, torment, or annoyance to carry out the proposed management FOR the contact listed below (see which (i) has the potential to injure a marine activities, pinnipeds hauled out on the FURTHER INFORMATION CONTACT), or mammal or marine mammal stock in the wild beach may be alerted or flush into the visiting the internet at: http:// [Level A harassment]; or (ii) has the potential water. Therefore, the proposed action www.nmfs.noaa.gov/pr/permits/ to disturb a marine mammal or marine may result in Level B harassment to incidental.htm. Documents cited in this mammal stock in the wild by causing seals and sea lions present on the beach. notice may also be viewed, by disruption of behavioral patterns, including, Monitoring of harbor seals, the primary but not limited to, migration, breathing, appointment, during regular business species located at the haulout, has been hours, at the aforementioned address. nursing, breeding, feeding, or sheltering [Level B harassment]. conducted by local residents who FOR FURTHER INFORMATION CONTACT: formed the Stewards Seal Watch Jaclyn Daly, Office of Protected Summary of Request Program since 1985, the Agency during Resources, NMFS, (301) 713–2289, ext NMFS received an application on July breaching events from 1996–2000, and 151. 16, 2009 from the Agency for the taking, more recently with the aid of Goat Rock SUPPLEMENTARY INFORMATION: by Level B harassment only, of marine State Park volunteer docents. Therefore mammals incidental to the Agency’s an extensive data set of harbor seal Background Estuary management activities. After abundance and presence of other Sections 101(a)(5)(A) and (D) of the receipt of subsequent information, species of pinnipeds is available. Based MMPA (16 U.S.C. 1361 et seq.) direct NMFS determined the application on these monitoring data and number of

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events the Agency expects will be (ESA) regarding the potential effects of The adaptive lagoon outlet channel necessary to carry out the proposed their operations and maintenance management plan seeks to work with management activities, the Agency is activities, including, among other natural processes and site conditions to requesting authorization to incidentally things, the Agency’s estuary maintain an outlet channel that reduces harass up to 2,861 harbors seals, 16 management program, on federally- tidal inflow of saline water into the California sea lions, and 11 northern listed Central California Coast (CCC) estuary (PWA, 2009). To avoid tidal elephant seals under a one-year IHA. steelhead (Oncorhynchus mykiss), CCC inflow and maintain a lagoon system Because these activities would be on- coho salmon (O. kisutch), and California that would not flood properties adjacent going beyond one year, NMFS would Coastal (CC) Chinook salmon (O. to the Estuary, the Agency would create likely also promulgate subsequent tshawytscha). As a result of this and maintain a shallow, ‘‘perched’’ incidental take authorizations in the consultation, NMFS issued the BiOp outlet channel that would not be future. finding that artificially elevated inflows excavated as deeply, narrowly, or with as steep a gradient as typical artificial Description of the Specified Activity to the Russian River estuary during the low flow season and historic artificial breaching pilot channels, which are The Estuary is located about 97 breaching practices have significant designed to allow the current velocities kilometers (km; 60 miles) northwest of adverse effects on the Russian River’s to erode a wider and deeper channel San Francisco in Jenner, Sonoma estuarine rearing habitat for steelhead, and downcut into the barrier beach. County, California. The Russian River coho, and Chinook salmon and would Active management of estuarine/ watershed encompasses 3,847 square likely result in jeopardy to listed species lagoon water levels would commence kilometers (km) (1,485 square miles) in and adverse modification or destruction when oceanside wave action pushes Sonoma, Mendocino, and Lake counties. of designated critical habitat. NMFS sand landward to form a natural barrier The Estuary extends from the mouth of included RPAs in the BiOp to avoid beach across the river’s mouth. When the Russian River upstream jeopardy and adverse modification or this happens, the Agency would approximately 10 to 11 km (6 to 7 miles) destruction of critical habitat. These monitor lagoon water surface elevation, between Austin Creek and the require the Agency to collaborate with as river inflow to the newly closed community of Duncans Mills (Heckel, NMFS and to modify estuary water level lagoon builds up behind the barrier 1994). The proposed action includes management in order to reduce marine beach, causing water surface elevation construction and maintenance of a influence (high salinity and tidal to rise in the lagoon. The goal is to lagoon outlet channel that would inflow) and promote a higher water manage lagoon water surface elevations facilitate management of a barrier beach surface elevation in the estuary between 4 and 9 ft National Geodetic (closed sandbar) at the mouth of the (formation of a fresh or brackish lagoon) Vertical Datum (NGVD) 3, which is high Russian River and creation of a perched, for purposes of enhancing the quality of enough to enhance fish habitat (NMFS, summer lagoon to avoid the likelihood rearing habitat for juvenile (age 0+ and 2008) while also minimizing flood of jeopardy to listed steelhead and 1+) steelhead from May 15th to October hazard to low-lying structures adjacent salmon species and adverse 15th (referred to hereafter as the ‘‘lagoon to the Estuary (Heckel, 1994). After the modification of critical habitat, as management period’’). A program of lagoon water surface elevation rises to 3 described in the aforementioned BiOp potential, incremental steps are to 4 ft NGVD, the Agency would begin (NMFS 2008). prescribed to accomplish this, including to manage water levels by excavating a Since 1995, the Agency has artificially relatively low elevation (bed between 3 adaptive management of a lagoon outlet breached the barrier beach which forms and 4 ft NGVD) outlet channel. Water channel on the barrier beach. The at the mouth of the Russian River, and levels would initially be managed at the Agency will monitor the response of hence creates a lagoon behind the lower end of this range to reduce the water quality, invertebrate production, beach, in accordance with the Russian potential for eroding the outlet channel and salmonids in and near the estuary River Estuary Management Plan and reopening the mouth to tidal to water surface elevation management recommended in the Heckel (1994) exchange. If experience managing the in the estuary-lagoon system. In study. The purpose of artificially outlet channel indicates that higher addition, the Agency would monitor breaching the barrier beach is to lagoon water levels are feasible, effects of lagoon maintenance and alleviate potential flooding of low-lying subsequent excavations would approach properties along the estuary. However, sandbar breaching on pinnipeds and bed elevations of 7 ft NGVD. the historic method of artificial sandbar implement mitigation measures to The outlet channel, which is breaching, which is done in response to minimize any impact. approximately 100–400 feet long, would rising water levels behind the barrier Lagoon Outlet Channel Management be excavated and maintained with one beach, adversely affects the estuary’s or two pieces of heavy machinery (e.g., water quality and depths by To comply with the Russian River excavator or bulldozer) to move sand. transforming a natural deep brackish Biological Opinion, the Agency, in The outlet channel would be excavated water lagoon to one that is similar to a coordination with NMFS, plans to with a bed elevation 0.5 to 1.0 ft below shallow tidal marine environment (i.e., adaptively manage water surface the lagoon water surface elevation along high salinity). Salinity stratification elevations during the lagoon its entire length to allow outflow from contributes to low dissolved oxygen at management period (May 15 and the lagoon to pass over the sandbar. The the bottom in some areas and this October 15) after a barrier beach forms outlet channel would be a notch shallow, high salinity environment is naturally and creates a lagoon. approximately 2 ft deep by 25 to 100 ft not conducive to ideal salmonid rearing Modifications to the barrier beach wide cut into the top of the naturally habitat. would be small departures from the formed barrier beach. The strategy for The Agency, along with a suite of existing beach and channel topography outlet channel configuration and other stakeholders including the U.S. at the time of closure, and the new modifications would be an incremental Army Corps of Engineers (Corps), channel would be similar to the channel approach that seeks to minimize the risk formally consulted with the National configurations resulting from previous of uncontrolled breaching which returns Marine Fisheries Service (NMFS) under breaching practices and consistent with the estuary to tidal conditions. The Section 7 of the Endangered Species Act natural processes. precise number of excavations would

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depend on uncontrollable variables In addition to natural breaching, the as well as flow velocities and such as seasonal ocean wave conditions Agency, for decades, has also observations of the bed structure (to (e.g., wave heights and lengths), river mechanically breached the sandbar to identify bed forms and depth-dependent inflows, and the success of previous alleviate potential flooding of low-lying grain size distribution indicative of excavations (e.g., the success of selected shoreline properties near the town of armoring) in the channel. Fisheries channel widths and meander patterns) Jenner. These artificial breaching seining and trapping, water quality in forming an outlet channel that activities would typically be conducted monitoring, invertebrate/sediment effectively maintains lagoon water on outgoing tides to maximize the sampling, and physical habitat surface elevations. It is predicted that elevation head difference between the measurements require the use of boats up to three successive outlet channel estuary water surface and the ocean. A and nets in the Estuary. Boating and excavations, at increasingly higher cut in the barrier beach would be other monitoring activities occur in the beach elevations, may be necessary, created at a sufficient depth to allow vicinity of river haul outs and hence, with the result being a ‘‘perched’’ river flows to begin transporting sand to may result in harassment to pinnipeds. lagoon. The goal is to develop an outlet the ocean. The sand would be placed A summary of the monitoring tasks and channel that supports a stable onto the beach adjacent to the pilot the frequency of their implementation ‘‘perched’’ lagoon with water surface channel. After the pilot channel is dug, are presented in Table 2 of the elevations at approximately 7 ft NGVD the last upstream portion of the sandbar application. for several months. would be removed, allowing river water Description of Marine Mammals in the At the start of the management period, to flow to the ocean. The size of the Area of the Specified Activity when configuring the outlet channel for pilot channel varies depending on the the first time that year, machinery may height of the sandbar to be breached, the Marine mammals present within the operate on up to 4 consecutive working tide level, and the water surface action area would be harassed from days. As technical staff and elevation in the Estuary. A typical crews and equipment on the beach maintenance crews gain more channel would be approximately 100 during Estuary maintenance and experience with implementing the feet long, 25 feet wide, and 6 feet deep. monitoring activities. The primary outlet channel and observing its The amount of sand moved would range species inhabiting the Jenner haulout is response, it may be possible to reduce from less than 100 cubic yards to a portion of the California stock of the frequency of maintenance during the approximately 1,000 cubic yards. harbor seals; however, rogue California remainder of the management season, The Agency anticipates that artificial sea lions and northern elephant seals i.e., 1–3 days of intervention typically breaching activities would occur in have also been observed at the harbor one to two weeks apart. In consideration accordance with the Russian River seal haulout. of the beach environment, effort would Biological Opinion and that they would Harbor Seals be made to minimize the amount and primarily occur from October 16, 2009, frequency of mechanical intervention, to May 14, 2010. However, if estuary California harbor seals are not listed thereby reducing disturbances to seals water surface elevations rise above 7.0 under the ESA or considered strategic and other wildlife, as well as State feet (at the Jenner gage) during the under the Marine MMPA. Based on the Park’s visitors on the beach. In addition, lagoon management period (May 15 most recent harbor seal counts (26,333 activities would be conducted in a through October 15), the Agency would in May-July 2004; Lowry et al., 2005) manner to effect the least practicable artificially breach the sandbar to and Hanan’s revised correction factor, adverse impacts to pinnipeds and their alleviate potential flooding, as discussed the harbor seal population in California habitat as described in the Mitigation in the Biological Opinion. The is estimated to number 34,233 with a section below (e.g., crews on foot Biological Opinion incidental take minimum population estimate of 31,600 approach first, machinery driven slow statement estimates that the Agency (Caretta et al., 2005). Counts of harbor on beach, etc.). may need to artificially breach the seals in California showed a rapid sandbar ‘‘twice per year between May increase from approximately 1972 Artificial Sandbar Breaching 15 and October 15 during the first three (when the MMPA was passed) to 1990. The Estuary may close naturally years covered by the opinion, and once Net production rates appeared to throughout the year as a result of a per year between May 15 and October decline from 1982 to 1994. Although barrier beach forming across the mouth 15 during years 4–15 covered by this earlier analyses were equivocal (Hanan, of the Russian River. The mouth of the opinion’’ (NMFS, 2008). Because the 1996) and there has been no formal Russian River is located at Goat Rock IHA is only valid for the first year of this determination that the California stock State Beach (California Department of new management strategy, NMFS has has reached its Optimal Sustainable Parks and Recreation). Although analyzed the impacts from the proposed Population (OSP) level (defined in the closures may occur at anytime of the action based on two breaching events MMPA), the decrease in population year, the mouth usually closes during during the lagoon management period. growth rate has occurred at the same the spring, summer, and fall (Heckel time as a decrease in human-caused 1994; Merritt Smith Consulting 1997, Monitoring of Lagoon Outlet Channel mortality and may be an indication that 1998, 1999, 2000; Sonoma County Water Adaptive Management Plan the population is reaching its Agency and Merritt Smith Consulting, To monitor the effectiveness of the environmental carrying capacity. 2001). Closures result in ponding of the new Estuary management plan, and On land, harbor seals haul out on Russian River behind the barrier beach abide by RPAs in NMFS’ Biological rocky outcrops, mudflats, sandbars and and, as water surface levels rise in the Opinion, the Agency must monitor the sandy beaches with unrestricted access Estuary, flooding may occur. Natural response of water quality, invertebrate to water and with minimal human breaching events occur when estuary production, and salmonids in and near presence. In California, approximately water surface levels exceed the height of the estuary to water surface elevation 400–500 harbor seal haul out sites are the barrier beach and overtop it, management in the estuary-lagoon widely distributed along the mainland scouring an outlet channel that system. In addition, the Agency must and on offshore islands, including reconnects the Russian River to the monitor the changes in the bar and intertidal sandbars, rocky shores and Pacific Ocean. channel elevation, lengths, and widths, beaches (Hanan, 1996). The Russian

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River haul out is the largest in Sonoma during breaching events between 1996– males migrate north after the breeding County, comprising of approximately 18 2000. The Jenner haulout is also season in the late summer, and then percent of the harbor seal population atypical in terms of the time of day seal migrate back south to the breeding found there (M. DeAngelis, pers. count peaks are observed. At other grounds in the spring (California comm.). There are also several known harbor seal haulouts, daily peaks are Department of Fish and Game, 1990). haulouts in the Russian River estuary at typically observed at mid-afternoon low No established rookeries are known logs and rock outcroppings in the river. tides regardless of the season. Although north of Point Reyes, California, but Haulout sites are important as resting daily harbor seal numbers at the Jenner large numbers of subadult and non- sites for harbor seals. Harbor seals feed haulout do peak at midday during the breeding or post-breeding male opportunistically in shallow waters on winter (November 16th to March 30th) California sea lions are found fish, crustaceans, and cephalopods. and in the pupping and molting seasons throughout the Pacific Northwest. Foraging occurs in shallow littoral (April/May and June/July/August, During harbor seal counts, solitary waters, and common prey items include respectively), a midday peak is not California sea lions were occasionally flounder, sole, hake, codfish, sculpin, observed during the fall (Mortenson and observed between the river mouth and anchovy and herring (California Twohy, 1994). Mortenson and Twohy the Jenner visitor’s center during bar- Department of Fish and Game, 2005). (1994) identified the peak in harbor seal open conditions in the Russian River Harbor seals are typically solitary while abundance at the Jenner haulout as estuary (Merritt Smith Consulting, 1999 foraging, although small groups have occurring in February and March, with and 2000). A single sea lion was hauled been observed. high abundance continuing through out during post-breaching monitoring Although the Jenner haul-out is not a July. On a daily scale, in general, harbor on September 6, 2000 (Sonoma County designated pupping beach, Mortenson seal abundance peaks during the Water Agency and Merritt Smith (1996) observed pups were first seen at morning hours at the Jenner haulout Consulting, 2001). the Jenner haulout in late March, with when the barrier beach is closed (Meritt Northern Elephant Seals maximum counts in May. In this study, Smith Consulting 1997, 1998, 1999, pups were not counted separately from 2001). However, daily harbor seal Northern elephant seals are not listed other age-classes at the haulout after numbers peak at midday tides during under the ESA and is not ‘‘depleted’’ or August due to the difficulty in the winter (November 16- March 30 as listed as ‘‘strategic’’ stock under the discriminating pups from small defined in Mortenson and Twohy MMPA. Based on the estimated 35,549 yearlings (Mortenson, 1996). From (1994)). pups born in California in 2005, the August 1989 to July 1991, Hanson California stock was approximately (1993) observed that pupping began at California Sea Lions 124,000 in 2005 (Carretta et al., 2007). the Jenner haulout in mid-April, with a California Sea Lions are not listed Based on trends in pup counts, northern maximum number of pups observed under the ESA and is not ‘‘depleted’’ or elephant seal colonies were continuing during the first two weeks of May. This listed as ‘‘strategic’’ stock under the to grow in California through 2005 corresponds with the peaks observed at MMPA. The entire U.S. population has (Carretta et al., 2009), but appear to be Point Reyes, where the first viable pups been estimated at 238,000 and growing stable or slowly decreasing in Mexico are born around the first to second week at a rate of approximately 6.52 percent (Stewart et al., 1994). Northern elephant of March and the peak is the last week annually between 1975 and 2005 seals range along the entire California of April to early May. (Carretta et al., 2007) with an estimated coast (California Department of Fish and As described above, the Jenner annual growth rate of approximately 6 Game, 2009). Adult male elephant seals haulout has been exclusively percent since at least 1975. On land, the breed with harems of females in from monitoring since 1985. Local residents sea lions are found resting and breeding mid-December through March in dense also began monthly seal counts in 1987, in groups of various sizes, and haul out rookeries on the San Miguel Island, with nearby haulouts added to the on rocky surfaces and outcroppings and Santa Barbara Island, San Nicolas counts thereafter. The monthly average beaches, as well as manmade structures Islands, San Simeon Island, Southeast number of harbor seals recorded by E. such as jetties and beaches. Sea lions Farallon Island, Ano Nuevo Island, on Twohy during daily counts of seals at prefer haul out sites and rookeries near the mainland at Ano Nuevo (San Mateo the Jenner haulout from 1993 to 2005 is abundant food supplies, with easy Co.), and the Point Reyes Peninsula presented in Table 4a of the application. access to water; although sea lions (California Department of Fish and During these counts, diurnal patterns occasionally travel up rivers and bays in Game, 2001). From April to November, were discovered and it was noted search of food. They feed on fish and they feed at sea or haul out to molt at whether the mouth of the River was cephalopods, including Pacific whiting, rookeries. open or closed off to the Pacific Ocean. rockfish, anchovy, hake, flat-fish, small Censuses of pinnipeds at the mouth of The information that has emerged from sharks, squid, and octopus (California the Russian River have been taken at these data sets is that the Jenner haulout Department of Fish and Game, 1990). least semimonthly since 1987. Elephant is atypical in terms of the time of year Although solitary feeders, sea lions seals were noted from 1987 to 1991. and time of day that the peck numbers often hunt in groups, which can vary in From 1992–1995, one or two elephant of harbor seals are present. size according to the abundance of prey seals were counted during the censuses The numbers of seals at the Jenner (California Department of Fish and conducted in May, with occasional haulout peaks in the late winter Game, 1990). records during the fall and winter (February and March); at other harbor Sea lions exhibit seasonal migration (Mortenson and Follis, 1997). For the seal haulouts, peaks are typically patterns organized around their past several years, a single male observed during the pupping and breeding patterns. California sea lions northern elephant seal has been present molting season (spring and summer; breed at large rookeries on the Channel at the mouth of the Russian River harbor Mortenson and Twohy, 1993). The Islands in southern California, and on seal haul out site, during the late winter number of harbor seals significantly both sides of the Baja California and spring of each year. The elephant declines in August and remains low peninsula, typically from May to seal was believed to be a juvenile or until November. This trend corresponds August. Females tend to remain close to sub-adult male when it first began using to monitoring conducted by the Agency the rookeries throughout the year, while the area as a haul out site. It was

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observed harassing harbor seals hauled flush from the beach in response to crew breaching activities during the months out at the mouth of the Russian River. on the beach or equipment. In 2000, all of March, April and May has been seals flushed from the beach; however, relatively low in the past (see Table 1 of Potential Effects on Marine Mammals more recently, the trend is that not all the Agency’s IHA application), and the In addition to local resident and state seals flush and some will remain breaching activities occur in a single park monitoring efforts, the Agency also hauled-out on the beach while the day over several hours. Artificial conducted pinniped monitoring during equipment is in operation. Therefore, breaching activities are not expected to its artificial breaching activities from harbor seals, at most, would flush into impact mother/pup bonding. 1996–2000. In all five years of the water in response to maintenance Based on the extensive monitoring monitoring, the number of seals hauled activities but may also simply become data, NMFS has preliminary determined out on the barrier beach was generally alert or make small movement across that impact to pinnipeds on the beach low when it was and then quickly the beach away from equipment and during Estuary management activities increased once the barrier beach was crews. Harbor seals are considered more would be limited to short-term (i.e., one artificially breached (Merritt Smith skidish than other species of pinnipeds; day or less) behavioral harassment in Consulting, 1997, 1998, 1999, 2000, therefore, California sea lions or the form of alertness or flushing. Sonoma County Water Agency and northern elephant seals, if present, are Because crews would approach the Merritt Smith Consulting, 2001). not expected to display a more adverse beach slowly and cautiously, According to Heckel (1994), ‘‘the loss of reaction to maintenance activities that stampeding, and therefore injury or easy access to the haulout and ready those of harbor seals. No stampeding mortality, is not expected nor is it escape to the sea when the river mouth has been documented since the Agency documented in the years of monitoring is closed may account for the lower began monitoring in 1999 and this data as a result of breaching activities. number of harbor seals seen at that reaction is not expected from any Further, the lack of evidence of time.’’ The mouth of the Russian River pinniped species present on the permanent abandonment of the haulout is typically open during the winter haulout. despite the Agency breaching the beach months, but intermittently closes during Although the Jenner haulout is not a for years indicates long term or the late spring through fall. designated pupping beach, pups have permanent abandonment of the haulout The Agency’s pinniped monitoring been observed during the pupping is unlikely. from 1996 to 2000 focused on the barrier season; therefore, NMFS has evaluated Anticipated Take beach artificial breaching activities and the potential for injury or mortality to its effects on the Jenner haulout. Seal pups should an management event The Agency is requesting, and NMFS counts and disturbances were recorded occur when pups are present. To do so, is proposing, authorization to take from 1 to 2 days prior to breaching, the NMFS has inquired about pups from harbor seals, California sea lions, and day of breaching, and the day after monitoring data. Since monitoring northern elephant seals, by Level B breaching (Merritt Smith Consulting, began in 1987, there are records of only harassment only, incidental to beach 1997, 1998, 1999, 2000; Sonoma County two stampedes, both of which occurred based construction work involving the Water Agency and Merritt Smith prior to 1999 when equipment entered use of excavators and support vehicles Consulting 2001). In each year, the trend the beach before crews. Under the and activities required by monitoring set observed was that harbor seal numbers proposed mitigation, equipment would forth in the BiOp. The estimates of the were lower when the beach was closed not enter onto the beach before crews. number of Pacific harbor seals, (i.e., the sandbar was present) and Stampeding or dead pups have not been California sea lions, and northern increased the day following an artificial observed during monitoring of the elephant seals that may be harassed by breaching event. According to Heckel Agency’s artificial breaching activities the proposed activities is based upon (1994), the loss of easy access to the since those events. Implementation of the number of potential events haulout and ready escape to the sea the lagoon outlet channel, as required associated with Russian River estuary when the river mouth is closed may by NMFS’ Russian River Biological management activities (see Table 3 in account for the lower number of harbor Opinion, has not yet begun, but the the application) and the average number seals seen at that time. In addition, potential direct effects on harbor seals of individuals of each species that are while seals often alerted to distance and their pups would be expected to be present at the Jenner haulout during bar- sources of disturbance (e.g., the sound similar to artificial breaching activities closed conditions (Table 1). of trucks braking on nearby Highway 1), as construction methods would be very The numbers of events associated seals primarily fled the haulout as a similar. Any Stellar sea lions or with lagoon outlet channel management result of presence of people on or near California sea lions on the beach are are split into two categories: (1) initial the beach which is possibly when the expected to be juveniles or adults; channel excavation, which would likely beach is closed (i.e., people have access therefore, there would be no impact to occur between May and September, and to the beach). The number of seals the survival of pups of these species. (2) maintenance and monitoring of the declined during the day due to The opportunity for mother/pup outlet channel, which would continue disturbances by people on the beach or bonding at the Jenner haulout is not until October 15th. The Estuary has not kayakers/boaters approaching the expected to be impacted by remained closed for extended periods of haulout. Disturbances on the beach implementation of the lagoon outlet time (greater than 14 days), particularly typically increased as the morning channel or artificial breaching activities. in the summer months, since regular progressed (greater number of visitors The peak of pupping season is likely by counts of pinnipeds at the Jenner on the beach in the late mornings and mid-May in most years, and haulout began. It is difficult to estimate early afternoons). Therefore, although implementation of the lagoon outlet the numbers of seals that may be hauled the Agency’s operations may harass channel would begin around May 15th out on the barrier beach when the pinnipeds present on the beach, it is (as required by the Russian River lagoon is formed; however, harbor seals likely many have left due to the Biological Opinion). By this time, it is are regularly observed crossing overland presence of people. During actual expected that ‘‘bonding’’ between from the Pacific Ocean to haul out on breaching activities, monitoring has mothers and pups would have likely the Estuary side of the beach, even in revealed that some or all of the seals occurred. The number of artificial bar-open conditions, so it is anticipated

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that seals would continue to use the dependent on when the barrier beach the peak in harbor seal numbers at the haulout in bar-closed, lagoon naturally closes after May 15th), the Jenner haulout. For biological and conditions. Based on pinniped highest average number of harbor seals physical habitat monitoring activities in monitoring from 1996 to 2000 presented in Table 4b in the application the Estuary, it was assumed that associated with artificial breaching was used to conservatively estimate the pinnipeds may be encountered once per events, the average number of harbor number of seals that may be taken event and flush from a river haulout. seals hauled out during barrier beach- during barrier beach-closed conditions The estimated potential total number closed conditions can be used to and excavation of the lagoon outlet of individual animals that may be taken estimate the number of individuals that channel (Table 1). For maintenance and equates to the maximum number of may be harassed by both lagoon outlet monitoring activities associated with the seals of each species anticipated to be channel and artificial breaching lagoon outlet channel, the average encountered per event multiplied by the activities. Both activities would likely number of harbor seals for each month estimated number of events during the be implemented soon after a beach (see Table 4b in the application) was term of the IHA (Table 1). The potential closure (within 14 days), so the data used. Harbor seal numbers presented in total number of individual animals that presented in Table 1 would be Table 4a in the application were used to may be taken is likely an overestimate reasonable for the take estimates from estimate take associated with artificial because the same seal would likely be April to November. Because the lagoon breaching from December to March as taken multiple times throughout the outlet channel implementation dates this was the best information available season. cannot be determined yet (they are for those months and overlapped with BILLING CODE 3510–22–S

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BILLING CODE 3510–22–C

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Anticipated Effects on Habitat breaching pilot channel would also be Agency staff would be followed by the The purposes of the lagoon outlet temporary in nature. Harbor seals are equipment, which would then be channel management and artificial regularly observed crossing overland followed by an Agency vehicle breaching activities are to manage the from the Pacific Ocean to haul out on (typically a small pickup truck, the sandbar to improve summer rearing the Estuary side of the beach, even in vehicle would be parked at the habitat for juvenile salmonids in the bar-open conditions, so it is anticipated previously posted signs and barriers on Russian River estuary and to minimize that seals would continue to use the the south side of the excavation potential flood risk to low-lying haulout in bar-closed, lagoon location). Equipment would be driven properties near on the Estuary, conditions. slowly on the beach and care would be In summary, there will be physical respectively. These activities would taken to minimize the number of shut alteration of the beach and potential result in physical alterations of the downs and start ups when the impacts to other, smaller haulouts Jenner haulout but are essential to equipment is on the beach. Channel located up the Russian River. However, conserving and recovering endangered construction and modifications would the beach opens and closes naturally salmonid species (which are important be initiated during low tide so that after resulting in the same impacts to habitat; prey for pinnipeds). When the barrier several hours of work, the removal of therefore, seals are likely adapted to this the final portion of the beach berm beach closes, water surface elevations in cycle. In addition, the increase in the Estuary rise, resulting in an increase occurs near high tide. This would rearing habitat quality has the goal of minimize the head difference between in elevation of the beach and flooding increasing salmon abundance, of other haulouts in the Russian River. the estuary and ocean, reducing the ultimately providing more food for seals potential for the reconnected channel to For the summer lagoon outlet channel, present within the action area. elevations would be targeted between 4 scour into a fully tidal inlet. and 9 ft NGVD. For artificial breaching Proposed Mitigation NMFS has carefully evaluated the activities, the sandbar would be In order to issue an IHA under applicant’s proposed mitigation breached when water surface elevations Section 101(a)(5)(D) of the MMPA, measures and considered a range of ranged from 4.5 and 7 ft NGVD. NMFS must set forth the permissible other measures in the context of The lagoon outlet channel would alter methods of taking pursuant to such ensuring that NMFS prescribes the the beach by creating a shallow outlet activity, and other means of effecting means of affecting the least practicable channel that would convey river flow to the least practicable adverse impact on adverse impact on the affected marine pass over the sandbar and minimize or such species or stock and its habitat, mammal species and stocks and their eliminate tidal exchange from 1st to paying particular attention to rookeries, habitat. Our evaluation of potential October 15th. The gentle slope of the mating grounds, and areas of similar measures included consideration of the outlet channel would allow seals to significance, and on the availability of following factors in relation to one travel through the channel, although the such species or stock for taking for another: (1) the manner in which, and shallow depths (0.5 to 2 ft.) would likely certain subsistence uses. the degree to which, the successful not allow for swimming through the The Agency has proposed the implementation of the measure is channel. Depending on the barrier beach following mitigation measures designed expected to minimize adverse impacts height and the location of the river’s to minimize impact to affected species to marine mammals, (2) the proven or thalweg when the beach closes, part of and stocks: (1) Agency crews would likely efficacy of the specific measure to the outlet channel may be constructed slowly and cautiously approach the minimize adverse impacts as planned; in areas where seals typically haul out haulout ahead of the heavy equipment (3) the practicability of the measure for on the Estuary side. The outlet channel to minimize the potential for flushes to applicant implementation, including would be maintained from May 15 to result in a stampede, a particular consideration of personnel safety, October 15, annually. After October concern during pupping season; (2) practicality of implementation, and 15th, the closed barrier beach would be Agency staff would avoid walking or impact on the effectiveness of the artificially breached when water surface driving equipment through the seal military readiness activity. elevations in the Estuary approach 7.0 haulout; (3) Crews on foot would take NMFS has preliminarily determined feet NGVD as read at the Jenner visitor’s caution to approach the haulout slowly that the proposed mitigation measures center gauge. Artificial breaching and to make an effort to be seen by the provide the means of effecting the least activities alter the habitat by creating a seals from a distance, if possible, rather practicable adverse impacts on marine pilot channel through the closed than appearing suddenly at the top of mammals species or stocks and their sandbar. The location of the pilot the sandbar; and (4) during breaching habitat, paying particular attention to channel is dependent on the height and events all monitoring would be rookeries, mating grounds, and areas of width of the sandbar and the location of conducted from the overlook on the similar significance. bluff along Highway 1 adjacent to the the river’s thalweg. Proposed Monitoring and Reporting Changes in haulout elevation haulout in order to minimize potential regularly occur with the tides at this site for harassment. Personnel on the beach In order to issue an ITA for an and any habitat that would be impacted would include up to two equipment activity, Section 101(a)(5)(D) of the by side cast sand would be temporary. operators, three safety team members on MMPA states that NMFS must set forth Pinnipeds seeking to haul out would the beach (one on each side of the ‘‘requirements pertaining to the still have access to the estuary/lagoon channel observing the equipment monitoring and reporting of such waters and would likely continue to operators, and one at the barrier to warn taking’’. The MMPA implementing naturally flush into the water during beach visitors away from the activities), regulations at 50 CFR 216.104 (a)(13) high water surface elevation periods. and one safety team member at the indicate that requests for IHAs must Therefore, the natural cycle of using the overlook on Highway 1 above the beach. include the suggested means of Jenner haulout on a daily basis is not Occasionally, there would be two or accomplishing the necessary monitoring expected to change. Modification of more additional people on the beach and reporting that will result in habitat resulting from construction of (Agency staff or regulatory agency staff) increased knowledge of the species and the lagoon outlet channel or artificial on the beach to observe the activities. of the level of taking or impacts on

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populations of marine mammals that are alert reaction where the seal may turn negligible impact on affected species expected to be present. its head towards the disturbance; Level stocks, as defined in Background section The applicant has developed the 2 involves movement from short above, NMFS considers a number of Russian River Estuary Management distances to many meters but does not criteria regarding the impact of the Activities Pinniped Monitoring Plan enter water; and a Level 3 reaction proposed action including the number, which describes the proposed includes flight or flushing to the water. nature, intensity, and duration of Level monitoring efforts. This Plan can be In an attempt to understand possible B harassment takes will occur. Specific found on the NMFS website at http:// relationship between use of the Jenner to the proposed action, NMFS has www.nmfs.noaa.gov/pr/permits/ haulout and nearby coastal and river preliminarily determined that, although incidental.htm. In summary, monitoring haulouts, several other haulouts in the the Agency’s Estuary Management includes the following: Estuary, which were extensively Activities will impact a majority of Lagoon Outlet Channel and Artificial monitored from 1994–1999, would also pinnipeds at the Jenner haulout during Breaching Event Monitoring be monitored (see Figure 2 in the IHA construction and maintenance of the application for locations of these lagoon outlet channel and sandbar Should the mouth close during the haulouts). breaching events, as well as recurring lagoon management period (May 15th to monitoring activities, impacts are Long Term Monitoring October 15th), the Agency would occurring to small, localized population. construct a lagoon outlet channel as In addition to monitoring on event Further, no mortality or injury is described above. A one-day pre-outlet days, pinnipeds at the Jenner haulout anticipated, nor will the proposed channel survey would be made within would be counted twice monthly for the action result in long-term impacts such 1–3 days prior to constructing the outlet term of the IHA in the same manner as as permanent abandonment of the channel and the day of construction. described above. In an attempt to haulout. This is evident from continued Monitoring would also occur on each understand if seals from the Jenner use of the haulout despite the sandbar subsequent day the channel is haulout are displaced to coastal and being artificially breached for years and maintained using heavy equipment for river haulouts nearby when the mouth monitoring data indicating the seals the duration of the outlet channel remains closed in the summer, several generally return to the haulout within period (May 15 to October 15). In other haulouts, on the coast and in the one day. Seals will likely become alert addition to pre-construction and Russian River estuary, would be or flush into the water when crews and construction/maintenance days, seal monitored (Figure 2 in application). equipment come on to the beach. counts would also be conducted twice These haulouts include North Jenner Further, breaching the sandbar leads to monthly for the life of the IHA to gain and Odin Cove to the north, Pocked an increase in seal abundance on the a better understanding about what Rock, Kabemali, and Rock Point to the beach, likely due to fact that humans specific conditions seals may prefer for south, and Jenner logs, Patty’s Rock, and can not access the haulout when the hauling out at the mouth of the river. Chalanchawi in the Russian River sandbar is breached, thereby limited This baseline information will provide estuary. Each of these coastal and river additional disturbance. In addition, the the Agency with details so that they haulouts would be monitored lagoon management plan may provide may plan Estuary management activities concurrent with monitoring of outlet ideal rearing habitat for listed steelhead around prime seal haulout times in the channel construction and maintenance and thereby increasing the availability future. These monthly counts would activities. This would provide an of this species as prey for the seals. begin at dawn and continue for 8 hours, opportunity to qualitatively assess if No pinniped stocks which may be if weather permits, and be scheduled to these haulouts are being used by seals found within the action area is listed as capture a low and high tide each in the displaced from the Jenner haulout threatened or endangered under the morning and afternoon. during lagoon outlet channel excavation ESA or listed as depleted under the During artificial breaching events, and maintenance. This monitoring MMPA. Harbor seal populations are half-hour counts of all pinnipeds hauled would not provide definitive results that theorized to have reached the out on the beach would begin at local individuals from the Jenner haulout are environment’s carrying capacity and dawn the day of the breaching event and displaced to the coastal and river populations of California sea lions and continue for approximately five hours. haulouts as individual seals would not northern elephant seals are also Monitoring may occasionally last longer be marked; however, it would useful to considered healthy. The low level, acute than five hours when artificial track general trends in haulout use disturbance to pinnipeds at the Jenner breaching activities occur in late during lagoon outlet channel excavation haulout from the proposed action is not morning or early afternoon. Pinnipeds and maintenance. anticipated to have more than a would be monitored from the overlook An annual report would be prepared negligible impact to the affected species on the bluff along Highway 1 adjacent and distributed to the NMFS, California and stocks. To ensure minimal to the haulout. State Parks, and Stewards of the Coasts disturbance, crews will, along with For all counts, the following and Redwoods. The report would also other minimization measures described information would be recorded in 30 be available to the public on the above, approach the beach slowly and minute intervals from an overlook on a Agency’s website. The annual report cautiously before heavy equipment to bluff to avoid harassment from the would include an executive summary, reduce chance of stampeding and will monitoring: (1) seal counts, by species; monitoring methodology, tabulation of also reduce the frequency and stager (2) behavior; (3) time, source and estuary management events, summary of days of Estuary maintenance and duration of disturbance; (4) estimated monitoring results, and discussion of breaching events minimizing continued distances between source and seals; (5) problems noted and proposed remedial disturbance. weather conditions (e.g., temperature, measures. Marine mammal species and stocks wind, etc.); and (5) tide levels and affected by the proposed activities are Estuary water surface elevation. The Negligible Impact and Small Numbers not listed as threatened or endangered method and disturbance behavior would Analysis and Determination under the ESA or as depleted under the be recorded following Mortenson In determining whether or not MMPA. The proposed number of (2006). In summary, Level 1 indicates an authorized incidental take will have a animals taken for each species of

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pinnipeds can be considered small issued the Russian River Biological during construction and maintenance of relative to the population size. As Opinion (NMFS, 2008) finding that the lagoon outlet channel and during described in the species description artificially elevated inflows to the sandbar breaching events. Reactions are section above, the latest stock Estuary during the low flow season anticipated to be limited to alertness, assessments estimate there are 34,233 (May through October) and historic movement, or flushing in response to harbor seals (which may have reached artificial breaching practices have crew or equipment presence. Seals are OSP levels), 238,000 California sea lions significant adverse effects on the expected to return to the beach within (increasing at approximately 6.5 percent Russian River’s estuarine rearing habitat one day, as shown in the Agency’s five per year), and 124,000 northern for steelhead, coho salmon, and years of monitoring data. Due to the elephant seals (also increasing in Chinook salmon. The BiOp’s RPA 2 proposed mitigation measures (e.g., number in the U.S.). The applicant has requires the Agency to collaborate with crews approaching on foot slowly and requested, based on numerous NMFS and to modify Estuary water cautiously), stampeding is unlikely and monitoring data specific to the affected level management in order to reduce therefore mortality, a concern during the haulout, that approximately 2,861 marine influence (high salinity and tidal pupping season, is not expected. All harbor seals (approximately 8 percent of inflow) and promote a higher water Estuary management activities will be the population), 16 California sea lions surface elevation in the estuary (i.e., monitored by NMFS approved MMOs; (approximately 0.006 percent of the formation of a fresh or brackish lagoon) thereby, documenting the number of population), and 11 northern elephant for purposes of enhancing the quality of pinnipeds, nature of disturbance, and seals (0.008 percent of the population) rearing habitat for juvenile (age 0+ and number of level of take during each may be taken each year. However, 1+) steelhead from May 15th to October event. For these reasons, NMFS has because it is not possible to identify 15th (lagoon management period), preliminarily determined that the individual animals over the course of hence the need for the proposed action. specified activity would result in the the year from the proposed monitoring The BiOp fully considered the effects to take of small numbers of marine (seals would have to be tagged and listed species in the action area in mammal species or stocks, would result observed closely to do so), these drawing the conclusion that Estuary in a negligible impact on the affected numbers represents the total number of management activities conducted in species and stocks, and would not have seals observed harassed during accordance with RPAs would not result an unmitigable adverse impact on the monitoring, not individuals. Therefore, in jeopardy to any species or cause the availability of such species or stock for an even smaller percentage of modification or destruction of taking for subsistence uses as there are individuals from each population are designated critical habitat. Any no such uses for these pinniped species likely to taken from the proposed potential take of listed species in California. activities. associated with Estuary management Based on the analysis contained activities is permissible if conducted in Dated: November 2, 2009. herein of the likely effects of the accordance with the Incidental Take James H. Lecky, specified activity on marine mammals Statement in the BiOp. Again, no listed Director, Office of Protected Resources, and their habitat, and taking into marine mammals would be affected by National Marine Fisheries Service. consideration the implementation of the the action. [FR Doc. E9–27183 Filed 11–10–09; 8:45 am] mitigation and monitoring measures, BILLING CODE 3510–22–S National Environmental Policy Act NMFS preliminarily finds that Estuary (NEPA) management activities will result in the incidental take of small numbers of In compliance with the National COMMODITY FUTURES TRADING marine mammals and that the total Environmental Policy Act of 1969 (42 COMMISSION taking from will have a negligible U.S.C. 4321 et seq.), as implemented by impact on the affected species or stocks. the regulations published by the Notice of Intent To Undertake a Council on Environmental Quality (40 Determination Whether the Mid-C Impact on Availability of Affected CFR parts 1500–1508), and NOAA Financial Peak Contract; Mid-C Species for Taking for Subsistence Uses Administrative Order 216–6, NMFS is Financial Peak Daily Contract; Mid-C There are no relevant subsistence uses preparing an Environmental Assessment Financial Off-Peak Contract; and Mid- of marine mammals implicated by this (EA) to consider the direct, indirect and C Financial Off-Peak Daily Contract, action as none are present within the cumulative effects to pinnipeds and Offered for Trading on the action area. other applicable environmental IntercontinentalExchange, Inc., resources resulting from issuance of a Endangered Species Act (ESA) Perform a Significant Price Discovery one-year IHA and the potential issuance Function There are no ESA listed marine of additional authorization for mammals found in the action area; incidental harassment for the ongoing AGENCY: Commodity Futures Trading however, there are listed salmon and project. Upon completion, this EA will Commission. steelhead species present. The Agency be available on the NMFS website listed ACTION: Reopening comment period. and the U.S. Army Corps of Engineers in the beginning of this document. (Corps) consulted with NMFS under SUMMARY: The Commodity Futures Section 7 of the Endangered Species Act Preliminary Determination Trading Commission (‘‘Commission’’) is (ESA) regarding the’ potential effects of The applicant has submitted a reopening the comment period for their operations and maintenance complete application for incidental take interested parties to comment on the activities, including the Agency’s of pinnipeds for specified activities in a Commission’s Notice of Intent to estuary management program, on specified geographic region for a period consider whether the Mid-C Financial federally-listed steelhead, coho salmon, not to exceed one year. NMFS has Peak Contract, Mid-C Financial Peak and Chinook salmon that resulted in the preliminarily determined that the Daily Contract, Mid-C Financial Off- likelihood of jeopardy and adverse specified activities would result in Peak Contract, and Mid-C Financial Off- modification of critical habitat. As a short-term, Level B harassment to Peak Daily Contract offered for trading result of this consultation, the NMFS pinnipeds located within the action area on the IntercontinentalExchange, Inc.

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(‘‘ICE’’) perform a significant price COMMODITY FUTURES TRADING significant price discovery function.1 discovery function. COMMISSION The Commission established a 15-day period for submitting public comment; DATES: Written comments must be Notice of Intent To Undertake a the comment period closed on October received by November 27, 2009. Determination Whether Various SP–15 21, 2009. The notice of intent has ADDRESSES: Interested persons should Financial Day-Ahead Contracts Offered generated substantial interest, and a submit their views and comments to for Trading on the number of commenters and potential David Stawick, Secretary, Commodity IntercontinentalExchange, Inc. Perform commenters have informally requested Futures Trading Commission, Three a Significant Price Discovery Function that the Commission provide additional time in which to submit their views. In Lafayette Centre, 1155 21st Street, NW., AGENCY: Commodity Futures Trading Washington, DC 20581. In addition, Commission. response to these requests, and in order to ensure that an adequate opportunity comments may be sent by facsimile ACTION: Reopening comment period. transmission to (202) 418–5521, or by is provided for submission of electronic mail to [email protected]. SUMMARY: The Commodity Futures meaningful comments, the Commission has determined to reopen the comment Include the subject contracts by name in Trading Commission (‘‘Commission’’) is period for an additional 15 days. the subject or reference line of the reopening the comment period for comment. interest persons to comment on the Issued in Washington, DC, on November 5, Commission’s October 6, 2009 Notice of 2009 by the Commission. FOR FURTHER INFORMATION CONTACT: Intent to consider whether the following David A. Stawick, Martin Murray, Assistant Associate contracts offered for trading on the Secretary of the Commission. Director for Product Review, Division of IntercontinentalExchange, Inc. perform [FR Doc. E9–27162 Filed 11–10–09; 8:45 am] Market Oversight, Commodity Futures a significant price discovery function: BILLING CODE 6351–01–P Trading Commission, Three Lafayette SP–15 Financial Day-Ahead LMP Peak Centre, 1155 21st St., NW., Washington, Contract; SP–15 Financial Day-Ahead DC 20581. Telephone: (202) 418–5276. LMP Peak Daily Contract; SP–15 DEPARTMENT OF EDUCATION E-mail: [email protected]; Susan Financial Day-Ahead LMP Off-Peak Nathan, Senior Special Counsel, Daily Contract; SP–15 Financial Swap Submission for OMB Review; Division of Market Oversight, same Real Time LMP—Peak Daily Contract; Comment Request address. Telephone: (202) 418–5122. SP–15 Financial Day-Ahead LMP Off- Peak Contract; NP–15 Financial Day- AGENCY: Department of Education. E-mail: [email protected]. Ahead LMP Peak Daily Contract; and SUMMARY: The Director, Information SUPPLEMENTARY INFORMATION: On NP–15 Financial Day-Ahead LMP Off- Collection Clearance Division, October 6, 2009, the Commission Peak Daily Contract. Regulatory Information Management published for public comment a notice DATES: Written comments must be Services, Office of Management invites of intent to undertake a determination, received by November 27, 2009. comments on the submission for OMB pursuant to section 2(h)(7) of the ADDRESSES: Interested persons should review as required by the Paperwork Commodity Exchange Act and submit their views and comments to Reduction Act of 1995. Commission rule 36.3(c), whether the David Stawick, Secretary, Commodity DATES: Interested persons are invited to above-referenced contracts perform a Futures Trading Commission, Three submit comments on or before significant price discovery function.1 Lafayette Centre, 1155 21st Street, NW., December 14, 2009. The Commission established a 15-day Washington, DC 20581. In addition, ADDRESSES: Written comments should period for submitting public comment; comments may be sent by facsimile be addressed to the Office of the comment period closed on October transmission to (202) 418–5521, or by Information and Regulatory Affairs, 21, 2009. The notice of intent has electronic mail to [email protected]. Attention: Education Desk Officer, generated substantial interest, and a Include the subject contracts by name in Office of Management and Budget, 725 number of commenters and potential the subject or reference line of the 17th Street, NW., Room 10222, New commenters have informally requested comment. Executive Office Building, Washington, that the Commission provide them FOR FURTHER INFORMATION CONTACT: DC 20503, be faxed to (202) 395–5806 or additional time in which to submit their Martin Murray, Assistant Associate send e-mail to _ views. In response to these requests, and Director for Product Review, Division of oira [email protected]. in order to ensure that an adequate Market Oversight, Commodity Futures SUPPLEMENTARY INFORMATION: Section opportunity is provided for submission Trading Commission, Three Lafayette 3506 of the Paperwork Reduction Act of of meaningful comments, the Centre, Washington, DC 20581. 1995 (44 U.S.C. Chapter 35) requires Commission has determined to reopen Telephone: (202) 418–5276. E-mail: that the Office of Management and the comment period for an additional 15 [email protected]. Susan Nathan, Budget (OMB) provide interested days. Senior Special Counsel, Division of Federal agencies and the public an early Market Oversight, same address. opportunity to comment on information Issued in Washington, DC, on November 5, Telephone: (202) 418–5133. E-mail: 2009 by the Commission. collection requests. OMB may amend or [email protected]. waive the requirement for public David A. Stawick, SUPPLEMENTARY INFORMATION: On consultation to the extent that public Secretary of the Commission. October 6, 2009, the Commission participation in the approval process [FR Doc. E9–27160 Filed 11–10–09; 8:45 am] published for comment a notice of would defeat the purpose of the BILLING CODE 6351–01–P intent to undertake a determination, information collection, violate State or pursuant to section 2(h)(7) of the Federal law, or substantially interfere Commodity Exchange Act and with any agency’s ability to perform its Commission rule 36.3(c), whether the 1 74 FR 51261. above-referenced contracts perform a 1 74 FR 51264.

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statutory obligations. The IC Clearance [email protected] or faxed to 202– AIVRS Projects’’ in the subject line of Official, Regulatory Information 401–0920. Please specify the complete your electronic message. Management Services, Office of title of the information collection when FOR FURTHER INFORMATION CONTACT: Management, publishes that notice making your request. Ellen Chesley. Telephone: (202) 245– containing proposed information Comments regarding burden and/or 7300 or by e-mail: collection requests prior to submission the collection activity requirements [email protected]. of these requests to OMB. Each should be electronically mailed to If you use a telecommunications proposed information collection, [email protected]. Individuals who device for the deaf (TDD), call the grouped by office, contains the use a telecommunications device for the Federal Relay Service (FRS), toll free, at following: (1) Type of review requested, deaf (TDD) may call the Federal 1–800–877–8339. e.g., new, revision, extension, existing Information Relay Service (FIRS) at 1– SUPPLEMENTARY INFORMATION: or reinstatement; (2) Title; (3) Summary 800–877–8339. Invitation to Comment: We invite you of the collection; (4) Description of the [FR Doc. E9–26957 Filed 11–10–09; 8:45 am] to submit comments regarding this need for, and proposed use of, the BILLING CODE 4000–01–P notice. information; (5) Respondents and We invite you to assist us in frequency of collection; and (6) complying with the specific Reporting and/or Recordkeeping DEPARTMENT OF EDUCATION requirements of Executive Order 12866 burden. OMB invites public comment. and its overall requirement of reducing Dated: November 4, 2009. Office of Special Education and regulatory burden that might result from Angela C. Arrington, Rehabilitative Services—Capacity this proposed priority. Please let us Director, Information Collection Clearance Building Program for Traditionally know of any further ways we could Division, Regulatory Information Underserved Populations: Technical reduce potential costs or increase Management Services, Office of Management. Assistance for American Indian potential benefits while preserving the Vocational Rehabilitation Services effective and efficient administration of Office of Postsecondary Education Projects the program. Type of Review: New. During and after the comment period, Title: Application Forms and Catalog of Federal Domestic Assistance you may inspect all public comments (CFDA) Number: 84.406. Instructions for the Language Resource about this notice in Room 5018, Centers Program (CFDA Number AGENCY: Office of Special Education and Potomac Center Plaza, 550 12th Street, 84.229A) Rehabilitative Services, Department of SW., Washington, DC, between the Frequency: Programs conduct Education. hours of 8:30 a.m. and 4 p.m., competition every four years. ACTION: Notice of proposed priority. Washington, DC time, Monday through Affected Public: Not-for-profit Friday of each week except Federal institutions. SUMMARY: The Assistant Secretary for holidays. Reporting and Recordkeeping Hour Special Education and Rehabilitative Assistance to Individuals with Burden: Services proposes a priority under the Disabilities in Reviewing the Responses: 27. Capacity Building program for Rulemaking Record: On request we will Burden Hours: 2,160. Traditionally Underserved Populations provide an appropriate accommodation to fund a grant that will establish a Abstract: The Language Resource or auxiliary aid to an individual with a training and technical assistance center Centers Program makes awards to disability who needs assistance to to support the projects funded under the institutions of higher education for the review the comments or other American Indian Vocational purpose of establishing, strengthening, documents in the public rulemaking Rehabilitation Services (AIVRS) and operating centers that serve as record for this notice. If you want to program authorized under section 121 resources for improving the nation’s schedule an appointment for this type of of the Rehabilitation Act of 1973, as capacity for teaching and learning accommodation or auxiliary aid, please amended (Act). The purpose of this foreign languages effectively. contact the person listed under FOR This information collection is being center is to improve the provision of FURTHER INFORMATION CONTACT. submitted under the Streamlined vocational rehabilitation (VR) services Purpose of Program: The Capacity Clearance Process for Discretionary to, and the employment outcomes of, Building Program for Traditionally Grant Information Collections (1894– American Indians with disabilities Underserved Populations under section 0001). Therefore, the 30-day public through the provision of training and 21(b)(2)(C) of the Act (29 U.S.C. comment period notice will be the only technical assistance to projects funded 718(b)(2)(C)) provides outreach and public comment notice published for under the AIVRS program. The technical assistance to minority entities this information collection. Assistant Secretary may use this priority and American Indian tribes in order to Requests for copies of the information for competitions in fiscal year 2010 and enhance their capacity to carry out collection submission for OMB review later years. activities funded under the Act and to may be accessed from http:// DATES: We must receive your comments promote their participation in activities edicsweb.ed.gov, by selecting the on or before December 14, 2009. funded under the Act. ‘‘Browse Pending Collections’’ link and ADDRESSES: Address all comments about Program Authority: 29 U.S.C. 718(b)(2)(C). by clicking on link number 4164. When this notice to Ellen Chesley, U.S. you access the information collection, Department of Education, 400 Maryland Proposed Priority click on ‘‘Download Attachments ’’ to Avenue, SW., Room 5018, Potomac This notice contains one proposed view. Written requests for information Center Plaza, Washington, DC 20202– priority. should be addressed to U.S. Department 2800. If you prefer to send your Capacity Building Program for of Education, 400 Maryland Avenue, comments by e-mail, use the following Traditionally Underserved Populations: SW., LBJ, Washington, DC 20202–4537. address: [email protected]. You Technical Assistance for American Requests may also be electronically must include the term ‘‘Capacity Indian Vocational Rehabilitation mailed to the Internet address Building: Technical Assistance for Services Projects.

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Background recommendations, including the need participate in the activities funded According to the 2000 U.S. Census for the development of: (1) Orientation under the Act. Section 21(b)(2)(C) of the data, there are approximately 2.5 materials and training for new AIVRS Act makes awards to eligible entities to million United States citizens who have projects; (2) training guidelines for provide outreach and technical identified themselves as either AIVRS counselors with limited assistance to minority entities and American Indian or Alaskan Natives backgrounds in vocational American Indian tribes in order to and, of that number, more than 550,000 rehabilitation; (3) monitoring and enhance their capacity to carry out and have disabilities. In addition, section evaluation guidelines for AIVRS to promote their participation in 21(a)(2) of the Act (29 U.S.C. 718(a)(2)) projects to strengthen internal project activities funded under the Act. For the assessment and reporting; and (4) reasons discussed in this notice, the states that the rate of work-related strategies to increase communication Department intends to propose a disability for American Indians is about and cooperation between State VR priority under this authority to fund a one and one-half times that of the agencies and AIVRS projects. grant that will establish a training and general population. (Evaluation of the American Indian technical assistance center to support The AIVRS program authorizes grants Vocational Rehabilitation Services AVIRS projects. to the governing bodies of Indian tribes Program, June 2002, http://www.ed.gov/ located on Federal and State Proposed Priority policy/speced/leg/rehab/eval- reservations, and consortia of such studies.html#aivrs). The Assistant Secretary for Special governing bodies, to carry out VR The Department currently supports Education and Rehabilitative Services service projects for American Indians ten regional Technical Assistance and proposes a priority to support a with disabilities residing on or near Continuing Education (TACE) Centers technical assistance center under such reservations (CFDA 84.250A). The that provide technical assistance and section 21(b)(2)(C) of the Rehabilitation Department currently funds 77 of these continuing education to State VR Act of 1973, as amended (the Act) to projects. The purpose of these projects agencies and other entities that partner improve project management and the is to provide VR services to American with State VR agencies (partners). While delivery of VR services to American Indians with disabilities, consistent AIVRS grantees are included among the Indians with disabilities under the with their individual strengths, many partners eligible for TACE American Indian Vocational resources, priorities, concerns, abilities, services, the TACE Centers give highest Rehabilitation Services (AIVRS) capabilities, interests, and informed priority to addressing State VR agency program. The Department intends to choice, so that they may prepare for and needs that are identified through RSA’s award this grant as a cooperative engage in gainful employment, monitoring process and partner needs agreement to ensure that there is including self-employment, that directly relate to the performance substantial involvement (i.e., significant telecommuting, and business and compliance of State VR agencies. communication and collaboration) ownership. Therefore, TACE Centers may not have between RSA and the grantee in The Department’s Rehabilitation the capacity or resources to address carrying out the activities of the Center. Services Administration (RSA), which directly the training and technical (34 CFR 75.200(b)(4)) oversees the administration of the assistance needs of the AIVRS grantees In coordination with the Department, AIVRS projects, has identified specific identified in this notice. the Center must— areas requiring technical assistance and Additionally, RSA conducted three (1) Provide training and technical training. These include, but are not technical assistance and training forums assistance to AIVRS grantees to improve limited to: Understanding the role and for AIVRS grantees in the past two years their understanding of the principles, impact of the VR counselor and other in centralized geographical areas around requirements, and practices that serve as key personnel on the provision of VR the United States. the foundation of the VR process and services to American Indians with Despite the existing training and VR service provision, (e.g., the disabilities; understanding and applying technical assistance resources, more determination of eligibility, the Federal rules, regulations, and guidance intensive training and technical development of individualized plans for applicable to the AIVRS program; and assistance is needed and RSA believes employment, and the requirement to implementing appropriate financial it would be more efficient and cost provide informed consumer choice); management practices, including effective to provide such support (2) Provide comprehensive training to expending grant funds in a timely through a technical assistance center AIVRS staff on the regulatory manner. that is focused on the needs of AIVRS requirements and grants management An assessment of the training and projects in order to improve outcomes practices that are necessary for the technical assistance needs of AIVRS for American Indians with disabilities. proper administration of AIVRS projects projects conducted in 2002 by the Through the ARRA, Congress has including, but not limited to, Human Resource Committee of the appropriated $140,000,000 for the requirements found in 34 CFR parts 369 Consortium of Administrators of Native Independent Living programs under and 371 and the Education Department American Rehabilitation (CANAR) Title VII of the Rehabilitation Act of General Administrative Regulations identified similar training and technical 1973, as amended (the Act) to be (EDGAR); assistance needs, including the need for obligated by FY 2010. Under section (3) Provide comprehensive training on assistance with program and financial 21(b)(1) of the Act, the Department is requirements and practices associated management and strategies to improve required to reserve 1 percent of the with fiscal management found in staff recruitment and retention. funds appropriated for the fiscal year for EDGAR, the cost principles of Office of The Department also supported an programs authorized under title VII (and Management and Budget (OMB) independent evaluation of the AIVRS other titles of the Act, but title VII was Circular A–87, and general fiscal program conducted in 2000 and 2001 the only one to receive ARRA funding) management practices; that identified a number of technical to carry out section 21, the purpose of (4) Provide guidance on the need to assistance needs. The final report, which is to provide grants to eligible utilize community resources and build published in 2002, contained several entities to increase the capacity of relationships with the State VR agency technical assistance related traditionally underserved populations to in order to expand the ranges of the

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employment choices available for Note: This notice does not solicit person listed under FOR FURTHER consumers and of the financial applications. In any year in which we choose INFORMATION CONTACT. resources the project can leverage in to use this priority, we invite applications Electronic Access to this Document: order to provide the services the through a notice in the Federal Register. You can view this document, as well as consumer needs; Executive Order 12866: This notice all other documents of this Department (5) Provide training on how the has been reviewed in accordance with published in the Federal Register, in AIVRS projects can improve inter- and Executive Order 12866. Under the terms text or Adobe Portable Document intra-tribal communication regarding of the order, we have assessed the Format (PDF) on the Internet at the confidentiality and the development of potential costs and benefits of this following site: http://www.ed.gov/news/ cooperative agreements with State VR proposed regulatory action. fedregister. agencies and Federal entities (e.g., the The potential costs associated with To use PDF you must have Adobe Department of Interior and the Bureau this proposed regulatory action are Acrobat Reader, which is available free of Indian Affairs); those resulting from statutory at this site. If you have questions about (6) Provide technical assistance on requirements and those we have using PDF, call the U.S. Government methods associated with measuring determined as necessary for Printing Office (GPO), toll free, at 1– project performance, including the administering this program effectively 888–293–6498; or in the Washington, development of goals, performance and efficiently. DC, area at (202) 512–1530. measures, and efficiency models, and on In assessing the potential costs and Note: The official version of this document the reporting of performance data; benefits—both quantitative and qualitative—of this proposed regulatory is the document published in the Federal (7) Identify other technical assistance Register. Free Internet access to the official and training needs of the AIVRS action, we have determined that the edition of the Federal Register and the Code projects; and benefits of the proposed priority justify of Federal Regulations is available on GPO (8) Provide technical assistance to the costs. Access at: http://www.gpoaccess.gov/nara/ build an infrastructure that sustains We have also determined that this index.html. regulatory action does not unduly training and technical assistance for Delegation of Authority: The Secretary these projects. interfere with State, local, and tribal governments in the exercise of their of Education has delegated authority to Types of Priorities governmental functions. Andrew J. Pepin, Executive When inviting applications for a Executive Order 13175: Executive Administrator for the Office of Special competition using one or more Order 13175 (‘‘Consultation and Education and Rehabilitative Services, priorities, we designate the type of each Coordination with Indian Tribal to perform the functions of the Assistant priority as absolute, competitive Governments’’) provides that each Secretary for Special Education and preference, or invitational through a Federal agency must have an Rehabilitative Services. notice in the Federal Register. The accountable process to ensure regular Dated: November 6, 2009. effect of each type of priority follows: and meaningful consultation and Andrew J. Pepin, Absolute priority: Under an absolute collaboration with Indian tribal Executive Administrator for Special priority, we consider only applications governments or their representative Education and Rehabilitative Services. that meet the priority (34 CFR organizations in the development of [FR Doc. E9–27197 Filed 11–10–09; 8:45 am] 75.105(c)(3)). regulatory policies that have tribal BILLING CODE 4000–01–P Competitive preference priority: implications. Because Indian tribal Under a competitive preference priority, governments will be the beneficiaries of we give competitive preference to an any project funded under this priority DEPARTMENT OF ENERGY application by (1) awarding additional and because Indian tribal governments points, depending on the extent to are eligible applicants for any award Notice of Intent To Prepare an which the application meets the priority made using this priority, we are Environmental Impact Statement and (34 CFR 75.105(c)(2)(i)); or (2) selecting specifically inviting input from Indian To Conduct a Public Scoping Meeting, an application that meets the priority tribal officials concerning this notice of and Notice of Floodplain and Wetlands over an application of comparable merit proposed priority as part of the process Involvement To Support Construction that does not meet the priority (34 CFR of consultation required by the and Startup of the Mississippi 75.105(c)(2)(ii)). Executive order. Gasification, LLC, Industrial Invitational priority: Under an Intergovernmental Review: This Gasification Facility in Moss Point, MS invitational priority, we are particularly program is subject to Executive Order interested in applications that meet the 12372 and the regulations in 34 CFR AGENCY: Department of Energy, Loan priority. However, we do not give an part 79. One of the objectives of the Guarantee Program. application that meets the priority a Executive order is to foster an ACTION: Notice of Intent to Prepare an preference over other applications (34 intergovernmental partnership and a Environmental Impact Statement and CFR 75.105(c)(1)). strengthened federalism. The Executive Conduct a Public Scoping Meeting, and order relies on processes developed by Final Priority Notice of Proposed Floodplain and State and local governments for Wetlands Involvement. We will announce the final priority in coordination and review of proposed a notice in the Federal Register. We will Federal financial assistance. SUMMARY: The U.S. Department of determine the final priority after This document provides early Energy (DOE) announces its intent to considering responses to this notice and notification of our specific plans and prepare an environmental impact other information available to the actions for this program. statement (EIS) pursuant to the National Department. This notice does not Accessible Format: Individuals with Environmental Policy Act (NEPA) of preclude us from proposing additional disabilities can obtain this document in 1969, as amended, the Council on priorities, requirements, definitions, or an accessible format (e.g., braille, large Environmental Quality (CEQ) NEPA selection criteria, subject to meeting print, audiotape, or computer diskette) regulations, and the DOE NEPA applicable rulemaking requirements. on request to the program contact implementing procedures to assess the

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potential environmental impacts for its postmarked, or e-mailed by December projects that employ innovative proposed actions of issuing a Federal 14, 2009 to ensure consideration. DOE technologies. Title XVII of EPAct 2005 loan guarantee to Mississippi will consider late comments to the authorizes the Secretary of Energy to Gasification, LLC, (MG) and providing extent practicable. In addition to make loan guarantees for various types co-funding in a Cooperative Agreement receiving written comments (see of projects, including those that ‘‘avoid, with Leucadia Energy, LLC (Leucadia) ADDRESSES below), DOE will conduct a reduce, or sequester air pollutants or and Denbury Onshore, LLC (Denbury) public scoping meeting at which anthropogenic emissions of greenhouse (DOE/EIS–0428). In addition, the U.S. government agencies, private-sector gases; and employ new or significantly Army Corps of Engineers and the U.S. organizations, and the general public are improved technologies as compared to Coast Guard will be cooperating invited to provide comments or commercial technologies in service in agencies in the preparation of the EIS. suggestions regarding the alternatives the United States at the time the MG, a wholly-owned subsidiary of and potential impacts to be considered guarantee is issued.’’ A principal goal of Leucadia National Corporation, in the EIS. Further details about the the loan guarantee program is to submitted an application to DOE under public scoping meeting will be encourage commercial use in the United the Federal loan guarantee program announced through local-area media States of new or significantly improved pursuant to the Energy Policy Act of and on the DOE Loan Guarantee energy-related technologies. DOE 2005 (EPAct 2005) to support Program Office Web site (http:// believes that accelerated commercial construction and startup of the MG www.lgprogram.energy.gov/NEPA- use of these new or improved Industrial Gasification Facility (the 2.html) at least 15 days prior to the technologies will help sustain economic Facility) in Moss Point, Mississippi. meeting. Advance requests to speak at growth, yield environmental benefits, Leucadia and Denbury submitted an the public scoping meeting may be sent and produce a more stable and secure application to DOE for a cost-shared to Dr. Alistair Leslie at the address energy supply. Pursuant to the Cooperative Agreement pursuant to the indicated below prior to the meeting. provisions of Titles XV and XVI of the American Recovery and Reinvestment Requests to speak may also be made at ARRA 2009 and Section 703 of the Act of 2009 (ARRA 2009) and Section the time of registration for the meeting. Energy Independence and Security Act 703 of the Energy Independence and However, persons who submitted of 2007, DOE has competitively Security Act of 2007 for a two-phase advance requests to speak will be given solicited applications for a requirement project to support carbon dioxide (CO2) priority if time should become limited titled: ‘‘Carbon Capture and capture at the Facility and subsequent during the meeting. Sequestration from Industrial Sources enhanced oil recovery (EOR) ADDRESSES: Written comments on the and Innovative Concepts for Beneficial sequestration. The EIS would also help proposed scope of the EIS and requests CO2 Use.’’ One of the objectives of this DOE decide whether to fund the to speak at the public scoping meeting solicitation is to demonstrate advanced Leucadia-Denbury application. should be addressed to: Dr. Alistair technologies that capture and sequester The Facility would be designed to Leslie, Loan Guarantee Program Office CO2 emissions from industrial sources produce upwards of 120 million (CF–1.3), U.S. Department of Energy, into underground formations. standard cubic feet per day (MMSCFD) 1000 Independence Avenue, SW., Purpose and Need for Agency Action of pipeline-quality substitute natural gas Washington, DC 20585. Electronic MG submitted a Part I application to (SNG) from approximately 7,000 tons submission of comments is encouraged DOE for a loan guarantee on December per day of petroleum coke (petcoke) due to processing time required for 18, 2008, and submitted a Part II using gasification technology, coupled regular mail. Comments can be application on March 23, 2009, to to acid gas recovery, and methanation. submitted electronically by e-mail to: support construction and startup of the Marketable byproducts would include [email protected]. All comments sulfuric acid, CO , argon, and a small Facility. Leucadia and Denbury jointly 2 should reference Project No. DOE/EIS– submitted an application to DOE on amount of electric power. MG plans to 0428. August 6, 2009, for a two-phase project capture nearly 90% of the CO produced 2 FOR FURTHER INFORMATION CONTACT: To for compression power supply studies at and sell it to Denbury under a long-term obtain additional information about the the Facility; a measurement, monitoring, contract for use in EOR. The EIS will MG project or this EIS, the public and validation study (MMV) for the evaluate the potential impacts of DOE scoping meeting, or to receive a copy of utilization of recovered CO in EOR; issuing MG a Federal loan guarantee for 2 the draft EIS when it is issued, contact compression and metering equipment at the proposed project, the funding of a Dr. Alistair Leslie by telephone: 202– the Facility; and a 110-mile CO DOE Cooperative Agreement with 2 287–5620; toll free number: 800–832– pipeline to be funded, in part, with Leucadia and Denbury, and the range of 0885 ext. 75620 or e-mail: funds appropriated by ARRA 2009. The reasonable alternatives. The purpose of [email protected]. For general purpose and need for agency action is this Notice of Intent is to inform the information on the DOE NEPA process, to comply with DOE’s mandates under public about the DOE proposed actions, contact Ms. Carol M. Borgstrom, EPAct 2005 and ARRA 2009 by invite public participation in the EIS Director, Office of NEPA Policy and selecting eligible projects that meet the process, announce plans for a public Compliance (GC–54), U.S. Department goals of these Acts. DOE is using the scoping meeting to solicit public of Energy, 1000 Independence Avenue, NEPA process to assist in determining comments for consideration in SW., Washington, DC 20585; telephone: whether to issue MG a loan guarantee to establishing the scope and content of 202–586–4600; facsimile: 202–586– support the proposed project and the EIS, and provide notice of the intent 7031; e-mail: [email protected] or whether to provide funding for a to prepare a floodplain and wetland leave a toll-free message at 800–472– Cooperative Agreement with Leucadia assessment. 2756. and Denbury to support the work they DATES: To ensure that all of the issues SUPPLEMENTARY INFORMATION: proposed. related to this proposal are addressed, DOE invites comments on the proposed Background Proposed Action scope and content of the EIS from all EPAct 2005 established a Federal loan The DOE proposed action is to issue interested parties. Comments must be guarantee program for eligible energy a loan guarantee to MG to support

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construction and startup of the MG floodplain and other parts are within a neither intended to be all-inclusive nor Facility in Moss Point, MS, and to 500-year floodplain. There are also a predetermined set of potential provide funding to Leucadia and wetlands on the site. Therefore, DOE environmental impacts. Denbury to partially support a two- will include in the EIS a floodplain and • Air quality phase project for compression power wetland assessment prepared in • Greenhouse gas emissions and climate supply and MMV studies, compression accordance with the DOE Regulations change and metering equipment at the Facility, for Compliance with Floodplain and • Energy use and production and construction of a 110-mile CO2 Wetland Environmental Review • Water resources, including pipeline. Requirements (10 CFR part 1022). groundwater and surface waters As proposed the Facility would The EIS will analyze supporting • Wetlands and floodplains produce upwards of 120 MMSCFD of infrastructure and facilities, including • Geological resources SNG from approximately 7,000 tons per rail interconnections with an extended • Ecological resources, including day of petcoke using gasification rail spur and unloading facility; existing threatened and endangered species technology, coupled with acid gas local roads and regional highways; an and species of special concern recovery, and methanation. The SNG upgraded barge dock and unloading • Cultural resources, including historic would be the primary product and facility on the Escatawpa River; structures and properties; sites of would be delivered to one or more interconnection to an onsite 115 kilovolt religious and cultural significance to nearby natural gas pipelines. Marketable transmission line or a 230 kilovolt Tribes; and archaeological resources byproducts would include sulfuric acid, transmission line within 2 miles; • Land use CO2, argon, and a small amount of interconnection to one or more nearby • Visual resources and aesthetics electric power. MG plans to capture natural gas pipelines; and an existing • Transportation and traffic nearly 90% of the CO2 produced and CO2 pipeline network 110 miles to the • Noise and vibration sell it to Denbury under a long-term north to which an interconnecting • Hazardous materials and solid waste contract for use in EOR. Leucadia and pipeline from the Facility fence line management Denbury plan to undertake compression would be constructed. • Human health and safety power supply studies at the Facility, Alternatives • Accidents and terrorism install compression and metering • Socioeconomics, including impacts to equipment at the Facility, construct a In determining the range of reasonable alternatives to be considered in the EIS community services CO2 pipeline from the Facility to an • Environmental justice existing Denbury pipeline 110 miles to for the Facility, DOE identified the DOE invites comments on whether the north that already distributes CO2 reasonable alternatives that would for use in EOR, and undertake MMV for satisfy the underlying purpose and need the EIS should consider other resource areas or potential issues. the utilization of the recovered CO2 in for agency action. DOE currently plans EOR. MMV for injection of at least 1 to analyze potential impacts of the Public Scoping Process million tons of CO2 would be conducted projects as proposed by MG and by at Denbury’s EOR projects at the Leucadia and Denbury, and the no- To ensure that all issues related to Heidelberg, Soso and/or the Eucutta oil action alternative. To the extent DOE’s proposed action are addressed, fields in Mississippi and in the appropriate, DOE will also analyze DOE seeks public input to define the Citronelle oil field in Alabama. design options available to MG and to scope of the EIS. The public scoping Approximately 119 tons per day of Leucadia and Denbury, within the scope period will begin with publication of slag—the non-hazardous vitrified of the proposed actions (such as this Notice of Intent and end on (glassy) solid product of gasification— disposing slag and sulfur, transporting December 14, 2009. Interested would be shipped off-site for sale or petcoke, and alternative pipeline government agencies, private-sector disposed of as a non-hazardous waste. corridors) and mitigation measures. organizations, and the general public are Up to 12 million gallons of water per Under the no-action alternative, DOE encouraged to submit comments day would be supplied from the would not issue MG a loan guarantee concerning the content of the EIS, issues Escatawpa River supplemented by water and the project would not be and impacts to be addressed in the EIS, from the Pascagoula River, well water, constructed as part of the DOE loan and alternatives that should be and treated water near the site. guarantee program. This option would considered. Scoping comments should Operation, maintenance, and general not contribute to the Federal loan clearly describe specific issues or topics management of the Facility are guarantee program goals to make loan that the EIS should address to assist estimated to require 177 full-time guarantees for energy projects that DOE in identifying significant issues. employees. ‘‘avoid, reduce, or sequester air Comments must be postmarked, or e- The Facility would utilize pollutants or anthropogenic emissions mailed by December 14, 2009 to ensure approximately 115 acres of the 205-acre of greenhouse gases; and employ new or consideration. (See ADDRESSES above). site at Moss Point, known as the Moss significantly improved technologies.’’ In Late comments will be considered to the Point Industrial Technology Complex. addition DOE would not provide partial extent practicable. DOE invites those The site is in southeastern Mississippi funding to Leucadia and Denbury, and agencies with jurisdiction by law or along the Gulf of Mexico, and is the demonstration of advanced special expertise to be cooperating generally bounded by the Escatawpa technologies that capture and sequester agencies. River to the north, the Pascagoula River CO2 emissions from industrial sources A public scoping meeting will be held to the east, Grierson Street to the south, into underground formations would not in the Moss Point area. Further details and an abandoned rail right-of-way to be advanced. about the public scoping meeting will the west. The site has a designated be announced at least 15 days prior to industrial use, was previously the Preliminary Identification of the meeting on the DOE Loan Guarantee location of a paper mill, and has Environmental Issues Program Office Web site (http:// undergone remediation for past site DOE has tentatively identified the www.lgprogram.energy.gov/NEPA– contamination. Part of the proposed site following environmental resource areas 2.html) and in local media in the Moss at Moss Point is within a 100-year for consideration in the EIS. This list is Point, MS, area. Members of the public

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and representatives of groups and Facility).1 The Facility would utilize be submitted electronically by sending Federal, state, local, and Tribal agencies gasification technology with Illinois an e-mail to: IG–[email protected]. All are invited to attend. Displays and other Basin coal as the feedstock to produce electronic and written comments should forms of information about the proposed SNG. Other products from the reference Project No. DOE/EIS–0429. agency action, the EIS process, and the gasification process would be sulfuric FOR FURTHER INFORMATION CONTACT: To Facility will be available, with DOE acid, argon, and electric power, all of obtain additional information about this personnel available for discussions with which would be sold. NOI, the public scoping meeting, or to attendees. DOE requests that anyone The EIS will evaluate the potential receive a copy of the draft EIS when it who wishes to present oral comments at impacts of the issuance of a DOE Loan is issued, contact Doug Boren by the meeting contact Dr. Alistair Leslie Guarantee for IG’s proposed project and telephone: 202–287–5346; toll-free by phone, or e-mail (see ADDRESSES the range of reasonable alternatives. The number: 800–832–0885 ext. 75346; or above). Individuals who do not make purpose of this Notice of Intent (NOI) is electronic mail: advance arrangements to speak may to inform the public about DOE’s [email protected]. For general register at the meeting. Speakers who proposed action; invite public information on the DOE NEPA process, need more than five minutes should participation in the EIS process; please contact: Ms. Carol M. Borgstrom, indicate the amount of time desired in announce plans for a public scoping Director, Office of NEPA Policy and their request. DOE might need to limit meeting; solicit public comments for Compliance (GC–54), U.S. Department speakers to five minutes initially, but consideration in establishing the scope of Energy, 1000 Independence Avenue, will provide additional opportunities as and content of the EIS; and provide SW., Washington, DC 20585; telephone: notice of a proposed floodplain and time permits. Written comments 202–586–4600; facsimile: 202–586– wetlands assessment. DOE invites those regarding the scoping process can also 7031; electronic mail: agencies with jurisdiction by law or be submitted to DOE officials at the [email protected]; or leave a toll- special expertise to be cooperating scoping meeting. free message at 800–472–2756. agencies. Issued in Washington, DC, on November 4, SUPPLEMENTARY INFORMATION: 2009. DATES: To ensure that all of the issues Steve Isakowitz, related to this proposal are addressed, Background Chief Financial Officer, Office of the Chief DOE invites comments on the proposed EPAct 2005 established a Federal loan Financial Officer. scope and content of the EIS from all guarantee program for eligible energy [FR Doc. E9–27165 Filed 11–10–09; 8:45 am] interested parties. Comments must be projects that employ innovative BILLING CODE 6450–01–P postmarked or e-mailed by December technologies. Title XVII of EPAct 2005 14, 2009 to ensure consideration. Late authorizes the Secretary of Energy to comments will be considered to the make loan guarantees for a variety of DEPARTMENT OF ENERGY extent practicable. In addition to types of projects, including those that receiving written comments (see ‘‘avoid, reduce, or sequester air Notice of Intent To Prepare an ADDRESSES below), DOE will conduct a pollutants or anthropogenic emissions Environmental Impact Statement for a public scoping meeting in the vicinity of of greenhouse gases; and employ new or Proposed Federal Loan Guarantee To the proposed project at which significantly improved technologies as Support Construction and Start-Up of government agencies, private-sector compared to commercial technologies in the Indiana Gasification, LLC, organizations, and the general public are service in the United States at the time Industrial Gasification Facility in invited to provide comments or the guarantee is issued.’’ The two Rockport, IN suggestions with regard to the principal goals of the loan guarantee alternatives and potential impacts to be AGENCY: Department of Energy, Loan program are to encourage commercial considered in the EIS. The date, time, Guarantee Program. use in the United States of new or and location of the public scoping ACTION: Notice of Intent to Prepare an significantly improved energy-related meeting will be announced in local technologies and to achieve substantial Environmental Impact Statement, news media and on the DOE Loan Conduct a Public Scoping Meeting, and environmental benefits. On September Guarantee Program’s ‘‘NEPA Public 22, 2008, the DOE Loan Guarantee Notice of Proposed Floodplain and Involvement’’ Web site (http:// Wetland Involvement. Program Office issued a solicitation for www.lgprogram.energy.gov/NEPA- coal based power generation and SUMMARY: The U.S. Department of 2.html) at least 15 days prior to the date industrial gasification facilities. A Energy (DOE) announces its intent to of the meeting. portion of the funds made available in prepare an environmental impact ADDRESSES: Public comments can be the solicitation come under the statement (EIS) pursuant to the National submitted electronically or by U.S. mail. authority of the Consolidated Environmental Policy Act of 1969, as Written comments on the proposed EIS Appropriations Act, 2008, P.L. 110–161, amended (NEPA), the Council on scope should be addressed to: Mr. Doug which provides loan guarantee support Environmental Quality (CEQ) NEPA Boren, Loan Guarantee Program Office for advanced coal gasification projects. regulations, and the DOE NEPA (CF–1.3), U.S. Department of Energy, The proposed IG project qualifies under implementing procedures to assess the 1000 Independence Avenue, SW., this provision of the loan guarantee potential environmental impacts for its Washington, DC 20585. Please submit authority. proposed action of issuing a Federal one signed original paper copy. loan guarantee to Indiana Gasification, Electronic submission of comments is Purpose and Need for Agency Action LLC (IG) (DOE/EIS–0429). IG submitted encouraged due to processing time IG submitted an application to DOE an application to DOE under the Federal required for regular mail. Comments can for a loan guarantee in March 2009, to loan guarantee program pursuant to the support construction and start-up of the Energy Policy Act of 2005 (EPAct 2005) 1 The amount requested for the loan guarantee is Facility. The purpose and need for not being disclosed at this time because it is to support construction and start-up of business sensitive. Moreover, should DOE approve agency action is to comply with DOE’s a coal to substitute natural gas (SNG) a loan guarantee, the amount may differ from the mandate under EPAct 2005 by facility in Rockport, Indiana (the original request. identifying and providing loan

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guarantees to eligible projects that meet at this time, and IG is not proposing to seven feet in order to elevate the plant the goals of the Act. DOE has construct a CO2 pipeline as part of the site out of the 100-year floodplain. As a determined that the IG project meets the project. In the event a CO2 pipeline is result, DOE will prepare a floodplain two principal goals of the Act— not constructed and no other reasonable and wetland assessment in accordance encouraging commercial use of new or alternative to sequester the CO2 is with its regulations at 10 CFR Part 1022 significantly improved energy-related determined, then the CO2 produced and include the assessment in the EIS. technologies, and achieving substantial during the gasification process would be environmental benefits. The IG Project released to the atmosphere. Alternatives is expected to operate below the The site of the proposed IG Facility is In determining the range of reasonable emission limits established in Title XVII within a 1,300-acre parcel of land alternatives to be considered in the EIS, of EPAct 2005 for sulfur dioxide, located in Spencer County, Indiana. The DOE identified alternatives that would nitrogen oxides, particulate matter, and land is partially within the corporate satisfy the underlying purpose and need mercury. limits of the City of Rockport. The for agency action. DOE currently plans center of the City of Rockport is to analyze in detail the project as Proposed Action approximately 2.3 miles south of the proposed by IG and the no action DOE’s proposed action is to issue a site. The proposed Facility would alternative. As appropriate, DOE will loan guarantee to IG to support utilize approximately 600 acres of the also analyze alternatives to portions of construction and start-up of the site. This would include approximately the project that lessen or avoid impacts proposed Facility. The Facility would 200 acres for the main facilities; 200 to affected resources and mitigation utilize gasification technology with acres for the rail area, consisting of the measures. Illinois Basin coal as the feedstock to railroad spur to be reactivated and a Under the no action alternative, DOE produce raw syngas that would be coal unloading and storage area; 70 to would not provide the loan guarantee further processed to produce SNG. The 80 acres for road and utility access for the IG project and the project would Facility could handle up to corridors; 30 acres for an Ohio River not be constructed as part of the DOE approximately 12,600 tons of coal per barge terminal for the delivery of loan guarantee program. day, delivered to the site by barge or construction equipment and coal, water rail, to produce up to approximately 153 intakes, and cooling water discharge; Preliminary Identification of million standard cubic feet of SNG per and 100 acres for material lay down, Environmental Issues day. The SNG would be pipeline quality storage and construction parking, The following environmental resource and could be transported from the including 40 to 80 acres for a process areas have been tentatively identified Facility to the Midwestern Gas water well-field to facilitate the for consideration in the EIS. This list is Transmission line (3 miles) and/or the withdrawal of water from an aquifer at neither intended to be all-inclusive nor ANR Pipeline (4.5 miles). Byproducts of the site, if required. The remaining a predetermined set of potential the gasification process would be approximately 700 acres of the proposed environmental impacts: sulfuric acid, argon, and electric power, project site was made subject to option • Air quality. all of which would be sold. by IG in order to provide alternative • Greenhouse gas emissions and climate The Facility would employ a variety paths from the Ohio River to the Facility change. of technologies. The raw syngas (a site, a source for fill material, wetland • Energy use and production. mixture of carbon monoxide (CO) and mitigation areas, and additional buffer. • Water resources, including hydrogen (H2)) would be produced Supporting infrastructure and groundwater and surface waters. using gasification technology, processed facilities would include local access • Wetlands and floodplains. to remove sulfur compounds and carbon roads, rail and barge access, water • Geological resources. dioxide (CO2) and converted to SNG supply and wastewater pipelines, a • Ecological resources, including using methanation technology. Solid potential connection to a CO2 pipeline, threatened and endangered species waste (slag) from the process would be and a high voltage transmission line to and species of special concern. sold as a commercial product (e.g., an connect the Facility to the electric grid • Cultural resources, including historic aggregate substitute) or transported by system. DOE plans to analyze the structures and properties; sites of truck for disposal at a non-hazardous, impacts of construction and operation of religious and cultural significance to solid waste landfill. The construction the supporting infrastructure and Tribes; and archaeological resources. work force would peak at approximately facilities in the EIS. • Land use. 1,000 workers. The Facility would be The site is topographically flat and • Visual resources and aesthetics. operated and maintained by a staff of land use in the vicinity of the proposed • Transportation and traffic. approximately 200 employees. Facility site is mainly agriculture and • Noise and vibration. The Facility would be designed to be undeveloped, with small developed • Hazardous materials and solid waste capable of capturing and compressing areas to the south and east. Several management. approximately 85–90 percent of the CO2 hundred acres of the proposed project • Human health and safety. produced during the gasification site are considered prime farmland and • Accidents and terrorism. process. IG intends to sell the CO2 to a could be affected by the proposed • Socioeconomics, including impacts to third party off taker for use in enhanced project. Wetlands comprise about 18 community services. oil recovery. Construction of a pipeline percent of the 1,300-acre optioned • Environmental justice. would be necessary to transport the property limits. Most of the wetlands DOE invites comments on whether CO2. IG has an agreement with a are forested wetlands along drainages other resource areas or potential issues potential third party off taker in the Gulf and former channels. IG expects that should be considered in the EIS: Coast region for the sale of its CO2. The most of the wetlands onsite would be third party off taker would be avoided and only a minimal amount of Public Scoping Process responsible for construction of a the wetlands onsite would be To ensure that all issues related to pipeline to transport the CO2 but a permanently lost as a result of this DOE’s proposed action are addressed, commitment from the off taker to project. IG estimates 400 acres of the site DOE seeks public input to define the construct such a pipeline does not exist would need to be raised from one to scope of the EIS. The public scoping

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period will begin with publication of ACTION: Notice of open meeting. meeting, Friday, December 18, 2009. this NOI and end on December 14, 2009. Approximately 15 minutes will be Interested government agencies, private- SUMMARY: This notice announces a reserved for public comments. Time sector organizations, and the general meeting of the Nuclear Energy Advisory allotted per speaker will depend on the public are encouraged to submit Committee (NEAC). The Federal number who wish to speak but is not comments concerning the content of the Advisory Committee Act (Pub. L. 94– expected to exceed 5 minutes. Anyone EIS, issues and impacts to be addressed 463, 86 Stat. 770) requires that public who is not able to make the meeting or in the EIS, and alternatives that should notice of these meetings be announced has had insufficient time to address the be considered. Scoping comments in the Federal Register. committee is invited to send a written should clearly describe specific issues DATES: Friday, December 18, 2009, 8:30 statement to Kenneth Chuck Wade, U.S. or topics that the EIS should address to a.m.–5 p.m. Department of Energy 1000 assist DOE in identifying significant ADDRESSES: The meeting will be held at Independence Avenue, SW., issues. Comments must be postmarked the L’Enfant Plaza Hotel at 480 L’Enfant Washington DC 20585, or e-mail or e-mailed by December 14, 2009 to Plaza, SW., Washington, DC 20024. [email protected]. ensure consideration. (See ADDRESSES). FOR FURTHER INFORMATION CONTACT: Minutes: The minutes of the meeting Late comments will be considered to the Kenneth Chuck Wade, Designated will be available by contacting Mr. extent practicable. DOE invites those Federal Officer, U.S. Department of Wade at the address above or on the agencies with jurisdiction by law or Energy, 19901 Germantown Rd., Department of Energy, Office of Nuclear special expertise to be cooperating Germantown, MD 20874; telephone Energy Web site at: http:// agencies. (301) 903–6509; e-mail www.ne.doe.gov/neac/ A public scoping meeting will be held [email protected]. neNeacMeetings.html. at a date, time, and location to be Issued in Washington, DC, on November 3, determined. Notice of this meeting will SUPPLEMENTARY INFORMATION: Background: The Nuclear Energy 2009. be provided in local news media and on Rachel Samuel, the DOE Loan Guarantee Program’s Advisory Committee (NEAC), formerly Deputy Committee Management Officer. ‘‘NEPA Public Involvement’’ Web site the Nuclear Energy Research Advisory (http://www.lgprogram.energy.gov/ Committee (NERAC), was established in [FR Doc. E9–27164 Filed 11–10–09; 8:45 am] NEPA-2.html) at least 15 days prior to 1998 by the U.S. Department of Energy BILLING CODE 6450–01–P the date of the meeting. Members of the (DOE) to provide expert advice on complex scientific, technical, and policy public and representatives of groups DEPARTMENT OF ENERGY and Federal, state, local, and Tribal issues that arise in the planning, managing, and implementation of DOE’s agencies are invited to attend. The Energy Information Administration meeting will include both a formal civilian nuclear energy research opportunity to present oral comments programs. NEAC is composed of Agency Information Collection and an informal session during which individuals of diverse backgrounds Activities: Submission for OMB DOE and IG personnel will be available selected for their technical expertise and Review; Comment Request for discussions with attendees. Displays experience, established records of AGENCY: Energy Information and other forms of information about distinguished professional service, and Administration (EIA), Department of the proposed agency action, the EIS their knowledge of issues that pertain to Energy (DOE). process, and the IG proposed Facility nuclear energy. will also be available for review. DOE Purpose of the Meeting: Introduction ACTION: Agency information collection requests that anyone who wishes to of new members to the committee; activities: Submission for OMB review; present oral comments at the meeting briefing the committee on recent comment request. contact Mr. Boren by phone or e-mail developments and current status of research programs and projects pursued SUMMARY: The EIA has submitted the (see ADDRESSES above). Individuals who form DOE–887, ‘‘DOE Customer do not make advance arrangements to by the Department of Energy’s Office of Nuclear Energy; and receiving advice Surveys,’’ to the Office of Management speak may register at the meeting. DOE and Budget (OMB) for review and a may need to limit speakers to five and comments in return from the committee. three-year extension under section minutes initially, but will provide 3507(h)(1) of the Paperwork Reduction additional opportunities as time Tentative Agenda: The meeting is expected to include presentations that Act of 1995 (Pub. L. 104–13) (44 U.S.C. permits. Written comments regarding 3501 et seq., at 3507(h)(1)). the scoping process can also be cover such topics as the Office of Nuclear Energy’s strategic goals and DATES: Comments must be filed by submitted to DOE officials at the December 14, 2009. If you anticipate scoping meeting. direction, research and development roadmap, updates on the next that you will be submitting comments Issued in Washington, DC, on November 6, generation nuclear plant project and but find it difficult to do so within that 2009. university program activities. In period, you should contact the OMB Steve Isakowitz, addition, there will a discussion on Desk Officer for DOE listed below as Chief Financial Officer, Office of the Chief nuclear energy policy and technology soon as possible. Financial Officer. and NEAC subcommittees. The agenda ADDRESSES: Send comments to OMB [FR Doc. E9–27166 Filed 11–10–09; 8:45 am] may change to accommodate committee Desk Officer for DOE, Office of BILLING CODE 6450–01–P business. For updates, one is directed Information and Regulatory Affairs, the NEAC Web site: http:// Office of Management and Budget. To www.ne.doe.gov/neac/ ensure receipt of the comments by the DEPARTMENT OF ENERGY neNeacMeetings.html. due date, submission by FAX at 202– Nuclear Energy Advisory Committee Public Participation: Individuals and 395–7285 or e-mail to representatives of organizations who [email protected] is AGENCY: Department of Energy, Office of would like to offer comments and recommended. The mailing address is Nuclear Energy. suggestions may do so on the day of the 726 Jackson Place, NW., Washington,

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DC 20503. The OMB DOE Desk Officer Issued in Washington, DC, November 5, record (eLibrary) for this proceeding, or may be telephoned at (202) 395–4638. 2009. issue a Notice of Schedule for (A copy of your comments should also Stephanie Brown, Environmental Review. If a Notice of be provided to EIA’s Statistics and Director, Statistics and Methods Group, Schedule for Environmental Review is Methods Group at the address below.) Energy Information Administration. issued, it will indicate, among other FOR FURTHER INFORMATION CONTACT: [FR Doc. E9–27167 Filed 11–10–09; 8:45 am] milestones, the anticipated date for the Requests for additional information BILLING CODE 6450–01–P Commission staff’s issuance of the final should be directed to Grace Sutherland. environmental impact statement (FEIS) To ensure receipt of the comments by or EA for this proposal. The filing of the the due date, submission by FAX (202– DEPARTMENT OF ENERGY EA in the Commission’s public record 586–5271) or e-mail for this proceeding or the issuance of a Federal Energy Regulatory Notice of Schedule for Environmental ([email protected]) is also Commission recommended. The mailing address is Review will serve to notify Federal and Statistics and Methods Group (EI–70), [Docket No. CP10–10–000] State agencies of the timing for the Forrestal Building, U.S. Department of completion of all necessary reviews, and Energy, Washington, DC 20585–0670. CenterPoint Energy Gas Transmission the subsequent need to complete all Ms. Sutherland may be contacted by Company; Notice of Application Federal authorizations within 90 days of telephone at (202) 586–6264. the date of issuance of the Commission November 4, 2009. staff’s FEIS or EA. SUPPLEMENTARY INFORMATION: This Take notice that on October 27, 2009, There are two ways to become section contains the following CenterPoint Energy Gas Transmission involved in the Commission’s review of information about the energy Company (CEGT), 1111 Louisiana this project. First, any person wishing to information collection submitted to Street, Houston, Texas 77002, filed in obtain legal status by becoming a party OMB for review: (1) The collection Docket No. CP10–10–000, an to the proceedings for this project numbers and title; (2) the sponsor (i.e., application pursuant to Section 7(b) of should, on or before the comment date the Department of Energy component); the Natural Gas Act (NGA) and Part 157 stated below, file with the Federal (3) the current OMB docket number (if of the Commission’s regulations, Energy Regulatory Commission, 888 applicable); (4) the type of request (i.e., requesting authorization to abandon by First Street, NE., Washington, DC 20426, new, revision, extension, or sale and transfer to CenterPoint Energy a motion to intervene in accordance reinstatement); (5) response obligation Field Services, Inc. (CEFS) Line B–55 with the requirements of the (i.e., mandatory, voluntary, or required EXT in its entirety and an Commission’s Rules of Practice and to obtain or retain benefits); (6) a approximately two mile long segment of Procedure (18 CFR 385.214 or 385.211) description of the need for and Line B–106, located in Sebastian and and the Regulations under the NGA (18 proposed use of the information; (7) a Crawford Counties, Arkansas; and, to CFR 157.10). A person obtaining party categorical description of the likely abandon in place its Hobbs Compressor status will be placed on the service list respondents; and (8) an estimate of the Station, located in Sebastian County, maintained by the Secretary of the total annual reporting burden (i.e., the Arkansas, all as more fully set forth in Commission and will receive copies of estimated number of likely respondents the application which is on file with the all documents filed by the applicant and times the proposed frequency of Commission and open to public by all other parties. A party must submit response per year times the average inspection. This filing may also be 14 copies of filings made with the hours per response). viewed on the Commission’s Web site at Commission and must mail a copy to 1. DOE–887, ‘‘DOE Customer http://www.ferc.gov using the the applicant and to every other party in Surveys’’. ‘‘eLibrary’’ link. Enter the docket the proceeding. Only parties to the 2. Energy Information Administration. number, excluding the last three digits, proceeding can ask for court review of 3. OMB Number 1901–0302. in the docket number field to access the Commission orders in the proceeding. 4. Three-year extension. document. For assistance, call (866) However, a person does not have to 5. Voluntary. 208–3676 or TTY, (202) 502–8659. intervene in order to have comments 6. DOE–887 will be used to contact Any questions regarding this considered. The second way to users and beneficiaries of DOE products application should be directed to B. participate is by filing with the or other services to determine how DOE Michelle Willis, Manager, Regulatory & Secretary of the Commission, as soon as can better improve its services to meet Compliance, CenterPoint Energy Gas possible, an original and two copies of their needs. Information is needed to Transmission Company, P.O. Box comments in support of or in opposition make DOE products more effective, 21734, Shreveport, Louisiana 71151, or to this project. The Commission will efficient, and responsive and at a lesser by calling (318) 429–3708 (telephone) or consider these comments in cost. (318) 429–3133 (fax), determining the appropriate action to be 7. Respondents are users and [email protected], taken, but the filing of a comment alone beneficiaries of DOE products and or to Mark C. Schroeder, Vice President will not serve to make the filer a party services & General Counsel, CenterPoint Energy to the proceeding. The Commission’s 8. 12,500 hours (50,000 respondents Gas Transmission Company, P.O. Box rules require that persons filing times 1 response per year times .25 1700, Houston, Texas 77210–1700, or by comments in opposition to the project hours per response). calling (713) 207–3395 (telephone) or provide copies of their protests only to Please refer to the supporting (713) 207–0711 (fax), mark.schroeder@ the party or parties directly involved in statement for more information about centerpointenergy.com. the protest. the types of information collections that Pursuant to section 157.9 of the Persons who wish to comment only may be conducted. For instructions on Commission’s rules, 18 CFR 157.9, on the environmental review of this obtaining materials, see the FOR FURTHER within 90 days of this Notice the project should submit an original and INFORMATION CONTACT section. Commission staff will either: complete two copies of their comments to the Statutory Authority: Executive Order its environmental assessment (EA) and Secretary of the Commission. 12,862 § 1, 58 FR 48,257 (Sept. 11, 1993). place it into the Commission’s public Environmental commenters will be

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placed on the Commission’s Support at possible, an original and two copies of environmental mailing list, will receive [email protected] or toll comments in support of or in opposition copies of the environmental documents, free at (866) 208–3676, or TTY, contact to this project. The Commission will and will be notified of meetings (202) 502–8659. consider these comments in associated with the Commission’s Any questions regarding the petition determining the appropriate action to be environmental review process. should be directed to counsel for taken, but the filing of a comment alone Environmental commenters will not be Tennessee, Susan T. Halbach, Senior will not serve to make the filer a party required to serve copies of filed Counsel, Tennessee Gas Pipeline to the proceeding. The Commission’s documents on all other parties. Company, 1001 Louisiana Street, rules require that persons filing However, the non-party commenters Houston, Texas 77002, or via telephone comments in opposition to the project will not receive copies of all documents at (713) 420–5751, facsimile number provide copies of their protests only to filed by other parties or issued by the (713) 420–1601, or e-mail the party or parties directly involved in Commission (except for the mailing of [email protected]. the protest. environmental documents issued by the Pursuant to section 157.9 of the Persons who wish to comment only Commission) and will not have the right Commission’s rules, 18 CFR 157.9, on the environmental review of this to seek court review of the within 90 days of this Notice the project should submit an original and Commission’s final order. Commission staff will either: Complete two copies of their comments to the Motions to intervene, protests and its environmental assessment (EA) and Secretary of the Commission. comments may be filed electronically place it into the Commission’s public Environmental commentors will be via the Internet in lieu of paper; see, 18 record (eLibrary) for this proceeding; or placed on the Commission’s CFR 385.2001(a)(1)(iii) and the issue a Notice of Schedule for environmental mailing list, will receive instructions on the Commission’s Web Environmental Review. If a Notice of copies of the environmental documents, site under the ‘‘e-Filing’’ link. The Schedule for Environmental Review is and will be notified of meetings Commission strongly encourages issued, it will indicate, among other associated with the Commission’s electronic filings. milestones, the anticipated date for the environmental review process. Comment Date: November 25, 2009. Commission staff’s issuance of the final Environmental commentors will not be environmental impact statement (FEIS) required to serve copies of filed Kimberly D. Bose, or EA for this proposal. The filing of the documents on all other parties. Secretary. EA in the Commission’s public record However, the non-party commentors [FR Doc. E9–27121 Filed 11–10–09; 8:45 am] for this proceeding or the issuance of a will not receive copies of all documents BILLING CODE 6717–01–P Notice of Schedule for Environmental filed by other parties or issued by the Review will serve to notify Federal and Commission (except for the mailing of State agencies of the timing for the environmental documents issued by the DEPARTMENT OF ENERGY completion of all necessary reviews, and Commission) and will not have the right the subsequent need to complete all to seek court review of the Federal Energy Regulatory Federal authorizations within 90 days of Commission’s final order. Commission the date of issuance of the Commission The Commission strongly encourages [Docket No. CP10–9–000] staff’s FEIS or EA. electronic filings of comments, protests There are two ways to become and interventions in lieu of paper using Tennessee Gas Pipeline Company; involved in the Commission’s review of the ‘‘eFiling’’ link at http:// Notice of Application this project. First, any person wishing to www.ferc.gov. Persons unable to file obtain legal status by becoming a party electronically should submit an original November 4, 2009. to the proceedings for this project and 14 copies of the protest or Take notice that on October 23, 2009, should, on or before the comment date intervention to the Federal Energy Tennessee Gas Pipeline Company stated below, file with the Federal regulatory Commission, 888 First Street, (Tennessee), 1001 Louisiana Street, Energy Regulatory Commission, 888 NE., Washington, DC 20426. Houston, Texas 77002, filed with the First Street, NE., Washington, DC 20426, Comment Date: November 25, 2009. Commission an application under a motion to intervene in accordance section 7(b) of the Natural Gas Act with the requirements of the Kimberly D. Bose, (NGA) for authorization to abandon by Commission’s Rules of Practice and Secretary. sale to Tauber Pipeline, L.L.C. (Tauber) Procedure (18 CFR 385.214 or 385.211) [FR Doc. E9–27120 Filed 11–10–09; 8:45 am] thirty-four small natural gas supply and the Regulations under the NGA (18 BILLING CODE 6717–01–P laterals attached to Tennessee’s CFR 157.10). A person obtaining party mainline in South Texas, and related status will be placed on the service list facilities (collectively, the Facilities). maintained by the Secretary of the DEPARTMENT OF ENERGY Tennessee states that no construction, Commission and will receive copies of Federal Energy Regulatory removal or modifications of the all documents filed by the applicant and Commission Facilities is required to effectuate the by all other parties. A party must submit abandonment and sale of the Facilities 14 copies of filings made with the Combined Notice of Filings #2 to Tauber, all as more fully set forth in Commission and must mail a copy to the application which is on file with the the applicant and to every other party in November 3, 2009. Commission and open to public the proceeding. Only parties to the Take notice that the Commission inspection. The filing may also be proceeding can ask for court review of received the following electric corporate viewed on the Web at http:// Commission orders in the proceeding. filings: www.ferc.gov using the ‘‘eLibrary’’ link. However, a person does not have to Docket Numbers: EC10–8–000. Enter the docket number excluding the intervene in order to have comments Applicants: American Electric Power last three digits in the docket number considered. The second way to Service Corporation field to access the document. For participate is by filing with the Description: American Electric Power assistance, please contact FERC Online Secretary of the Commission, as soon as Service Corp requests for disclaimer of

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jurisdiction or, in the alternative Docket Numbers: ER07–1106–006; Accession Number: 20091102–0183. application for approvals Under Section ER02–1884–010; ER07–751–001; ER08– Comment Date: 5 p.m. Eastern Time 203 of the Federal Power Act. 1255–001; ER09–1488–001. on Friday, November 20, 2009. Filed Date: 10/23/2009 Applicants: ArcLight Energy Docket Numbers: ER10–158–000. Accession Number: 20091029–0016. Marketing, LLC, Oak Creek Wind Power, Applicants: Midwest Independent Comment Date: 5 p.m. Eastern Time LLC, Waterside Power LLC, LEA Power Transmission System Operator, Inc. on Friday, November 13, 2009. Partners, LLC, Black Bear Hydro Description: Midwest Independent Take notice that the Commission Partners, LLC. Transmission System Operator, Inc received the following electric rate Description: Notice of Change in submits an executed Amended and filings: Status of ArcLight Energy Marketing, Restated Agreement for Interconnection Docket Numbers: ER96–780–025; LLC, et al. of Transmission Facilities among ER00–3240–014; ER01–1633–011; Filed Date: 10/30/2009. MidAmerican Energy Company et al. Accession Number: 20091030–5096. ER03–1383–014. Filed Date: 10/30/2009. Comment Date: 5 p.m. Eastern Time Applicants: Alabama Power Accession Number: 20091102–0180. on Friday, November 20, 2009. Company, Georgia Power Company, Comment Date: 5 p.m. Eastern Time Southern Company Services, Inc., Docket Numbers: ER09–934–003. on Friday, November 20, 2009. Mississippi Power Company, Gulf Applicants: Bangor Hydro-Electric Docket Numbers: ER10–160–000. Power Company, Oleander Power Company. Applicants: Southern California Project, L.P., DeSoto County Generating Description: Bangor Hydro-Electric Edison Company. Company, LLC, Southern Company— Company submits filing to notify the Description: Southern California Florida LLC. Commission that, effective 11/1/09, it Edison Company submits revisions to will be charging under Schedule 21– Description: Notice of Non-Material its Transmission Owner Tariff, FERC BHE revised transmission rates based on Change in Status and of Generation Site Electric Tariff, Second Revised Volume the corrected value. Acquisition of Southern Companies. No 6. Filed Date: 10/30/2009. Filed Date: 10/30/2009. Filed Date: 10/30/2009. Accession Number: 20091102–0117. Accession Number: 20091102–0176. Accession Number: 20091030–5095. Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time on Friday, November 20, 2009. on Friday, November 20, 2009. on Friday, November 20, 2009. Docket Numbers: ER09–1050–001. Docket Numbers: ER99–3151–014; Applicants: Southwest Power Pool, Docket Numbers: ER10–161–000. ER97–837–011; ER03–327–006; ER08– Inc. Applicants: New England Power Pool. 447–04; ER08–448–004. Description: Southwest Power Pool, Description: New England Power Pool Applicants: PSEG Energy Resources & Inc submits a filing to comply with Participants Committee submits Trade LLC, PSEG Fossil LLC, PSEG Order No. 719–A. counterpart signature pages of the Nuclear LLC, PSEG Power Connecticut Filed Date: 10/27/2009. NEPOOL Agreement, dated 9/1/71 as LLC, Public Service Electric and Gas Accession Number: 20091028–0071. amended executed etc. Company. Comment Date: 5 p.m. Eastern Time Filed Date: 10/30/2009. Description: Order No. 697–C— on Tuesday, November 10, 2009. Accession Number: 20091102–0184. Comment Date: 5 p.m. Eastern Time Quarterly Generation Siting Report for Docket Numbers: ER10–155–000. on Friday, November 20, 2009. the PSEG Companies. Applicants: Northern States Power Filed Date: 10/30/2009 Company. Docket Numbers: ER10–163–000; Accession Number: 20091030–5098 Description: Xcel Energy Services, ER10–164–000; ER10–165–000. Comment Date: 5 p.m. Eastern Time Inc. submits a proposed Notice of Applicants: CalPeak Power—Border on Friday, November 20, 2009. Cancellation for 12 Construction LLC; CalPeak Power—El Cajon, LLC. Docket Numbers: ER07–1356–012; Agreements and 1 Interconnection Description: CalPeak Entities submits ER07–1112–010; ER07–1113–010; Study Agreement. Notices and Termination of the ER03–1283–020; ER07–1116–009; Filed Date: 10/30/2009. Reliability Must-Run Service Agreement ER07–1117–012; ER07–1358–011; Accession Number: 20091102–0186. between each of the CalPeak Entities ER07–1118–011; ER00–2885–026; Comment Date: 5 p.m. Eastern Time and the CAISO, Rate Schedule FERC 2 ER01–2765–025; ER09–609–003; ER09– on Friday, November 20, 2009. for each of the CalPeak Entities. 1141–005; ER05–1232–021; ER09–335– Docket Numbers: ER10–156–000. Filed Date: 10/30/2009. 007; ER02–2102–025. Applicants: Dynegy Oakland, LLC. Accession Number: 20091102–0116. Applicants: BE Alabama LLC, BE Description: Dynegy Oakland, LLC Comment Date: 5 p.m. Eastern Time Allegheny LLC, BE CA LLC, BE submits a revision to certain Reliability on Friday, November 20, 2009. Ironwood LLC, BE KJ LLC, BE Louisiana Must-Run Rate Schedules of its Docket Numbers: ER10–166–000. LLC, BE Rayle LLC, Cedar Brakes I, Reliability Must-Run Agreement with Applicants: Dynegy South Bay, LLC. L.L.C., Cedar Brakes II, L.L.C., Central the California Independent System Description: Dynegy South Bay, LLC Power & Lime LLC, J.P. Morgan Operator Corporation. submits revisions to certain Reliability Commodities Canada Corporation, J.P. Filed Date: 10/30/2009. Must-Run Rate Schedules of its Must- Morgan Ventures Energy Corporation, Accession Number: 20091102–0185. Run Service Agreement with California Utility Contract Funding, L.L.C., Comment Date: 5 p.m. Eastern Time Independent System Operator Vineland Energy LLC. on Friday, November 20, 2009. Corporations and amendments to the Description: Notice of non-material Docket Numbers: ER10–157–000. RMR Agreement. change in status. Applicants: Entergy Services, Inc. Filed Date: 10/30/2009. Filed Date: 09/29/2009. Description: Entergy Services, Inc Accession Number: 20091102–0115. Accession Number: 20090929–5055. submits Rate Schedules for service to Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time East Texas Electric Cooperative Inc et al. on Friday, November 20, 2009. on Tuesday, November 17, 2009. Filed Date: 10/30/2009. Docket Numbers: ER10–167–000.

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Applicants: Gilroy Energy Center, rate for network integration service and Filed Date: 10/30/2009. LLC. point-to-point service etc. Accession Number: 20091102–0168. Description: Gilroy Energy Center, Filed Date: 10/30/2009. Comment Date: 5 p.m. Eastern Time LLC submits annual revisions to certain Accession Number: 20091102–0111. on Friday, November 20, 2009. Rate Schedules of its Reliability Must- Comment Date: 5 p.m. Eastern Time Docket Numbers: ER10–181–000. Run Agreement with the California on Friday, November 20, 2009. Applicants: Southwest Power Pool, Independent System Operator Docket Numbers: ER10–175–000. Inc. Corporation, effective January 1, 2010. Applicants: Westar Energy, Inc. Description: Southwest Power Pool, Filed Date: 10/30/2009. Description: Westar Energy, Inc Inc submits Tenth Revised Sheet 163A Accession Number: 20091102–0114. submits executed Cost Based Agreement et al. to FERC Electric Tariff, Fifth Comment Date: 5 p.m. Eastern Time for Wholesale Power Sales Service from Revised Volume 1 to be effective 1/1/10. on Friday, November 20, 2009. generating assets likely to participate Filed Date: 10/30/2009. Docket Numbers: ER10–168–000. with the City of Burlingame. Accession Number: 20091102–0167. Applicants: PJM Interconnection, Filed Date: 10/30/2009. Comment Date: 5 p.m. Eastern Time L.L.C. Accession Number: 20091102–0173. on Friday, November 20, 2009. Description: PJM Interconnection, Comment Date: 5 p.m. Eastern Time Docket Numbers: ER10–183–000. LLC submits revised tariff sheets of the on Friday, November 20, 2009. Applicants: Otter Tail Power PJM Open Access Transmission Tariff Docket Numbers: ER10–176–000. Company. and the Amended and Restated Applicants: California Power Description: Otter Tail Power Operating Agreement of PJM Exchange Corporation. Company submits revised tariff sheets Interconnection, LLC. Description: California Power with proposed revisions to the Midwest Filed Date: 10/30/2009. Exchange Corporation submits proposed ISO’ Open Access Transmission, Energy Accession Number: 20091102–0113. amendments to its Rate Schedule No 1. and Operating Reserve Markets Tariff, Comment Date: 5 p.m. Eastern Time Filed Date: 10/30/2009. FERC Electric Fourth Revised Volume 1. on Friday, November 20, 2009. Accession Number: 20091102–0172. Filed Date: 10/30/2009. Docket Numbers: ER10–169–000. Comment Date: 5 p.m. Eastern Time Accession Number: 20091102–0175. Applicants: Avista Corporation. on Friday, November 20, 2009. Comment Date: 5 p.m. Eastern Time Description: Avista Corporation Docket Numbers: ER10–177–000. on Friday, November 20, 2009. submits proposed increase in rates for Applicants: Wisconsin Public Service Docket Numbers: ER10–184–000. transmission services under Avista’s Corporation. Applicants: Southwest Power Pool, open-access transmission tariff, FERC Description: Wisconsin Public Service Inc. Electric Tariff, Fifth Revised Volume 8, Corporation submits revised rate Description: Southwest Power Pool, to be effective 1/1/10. schedule sheet in Exhibit G to its Rate Inc submits an executed Large Generator Filed Date: 10/30/2009. Schedule No 51 with the City of Interconnection Agreement with Flat Accession Number: 20091102–0121. Marshfield. Ridge Wind Energy, LLC as Comment Date: 5 p.m. Eastern Time Filed Date: 10/30/2009. Interconnection Customer etc. on Friday, November 20, 2009. Accession Number: 20091102–0171. Filed Date: 10/30/2009. Docket Numbers: ER10–170–000. Comment Date: 5 p.m. Eastern Time Accession Number: 20091102–0174. Applicants: Tucson Electric Power on Friday, November 20, 2009. Comment Date: 5 p.m. Eastern Time Company. Docket Numbers: ER10–178–000. on Friday, November 20, 2009. Description: Tucson Electric Power Applicants: Wisconsin Public Service Docket Numbers: ER10–185–000. Company submits amended and restated Corporation. Applicants: Michigan Electric transmission line participation. Description: Wisconsin Public Service Transmission Co., LLC. Filed Date: 10/30/2009. Corporation submits revised service Description: Michigan Electric Accession Number: 20091102–0118. agreements between Manitowoc Public Transmission Company, LLC submits Comment Date: 5 p.m. Eastern Time Utilities and Upper Peninsula Power material in support of its request for on Friday, November 20, 2009. Company. authorization to use updated Docket Numbers: ER10–172–000. Filed Date: 10/30/2009. depreciation rates in the calculation of Applicants: Carolina Power & Light Accession Number: 20091102–0170. charges of transmission service. Company. Comment Date: 5 p.m. Eastern Time Filed Date: 10/30/2009. Description: Carolina Power and Light on Friday, November 20, 2009. Accession Number: 20091102–0165. Company submits a correction to its Docket Numbers: ER10–179–000. Comment Date: 5 p.m. Eastern Time cost-of-service formula rate for network Applicants: Mirant Potrero LLC. on Friday, November 20, 2009. integration service and point-to-point Description: Mirant Potrero, LLC Docket Numbers: ER10–186–000. service taken under PEC’s Open Access submits revisions to its Must Run Applicants: ISO New England Inc. Transmission Tariff. Service Agreement with the California Description: ISO New England Inc Filed Date: 10/30/2009. Independent System Operator submits Forward Capacity Auction Accession Number: 20091102–0112. Corporation. Results filing which includes the Comment Date: 5 p.m. Eastern Time Filed Date: 10/30/2009. testimony of Stephen J Rouke et al. on Friday, November 20, 2009. Accession Number: 20091102–0169. Filed Date: 10/30/2009. Docket Numbers: ER10–173–000. Comment Date: 5 p.m. Eastern Time Accession Number: 20091102–0162. Applicants: Florida Power on Friday, November 20, 2009. Comment Date: 5 p.m. Eastern Time Corporation. Docket Numbers: ER10–180–000. on Friday, November 20, 2009. Description: Florida Power Applicants: The United Illuminating Docket Numbers: ER10–187–000. Corporation submits revisions to its Company. Applicants: Midwest Independent cost-of-service formula rate for network Description: The Unlimited Transmission System Operator, Inc. integration service and point-to-point Illuminating Company submits Description: Midwest Independent revisions to its cost-of-service formula Localized Costs Sharing Agreements. Transmission System Operator et al.

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submits Third Revised Sheet No 1853 et eRegistration link. Select the eFiling Second Revised Sheet 25 et al. to FERC al. to FERC Electric Tariff, Fourth link to log on and submit the Gas Tariff, Seventh Revised Volume 1. Revised Volume 1 to be effective 1/1/10. intervention or protests. Filed Date: 10/28/2009. Filed Date: 10/30/2009. Persons unable to file electronically Accession Number: 20091029–0054. Accession Number: 20091102–0164. should submit an original and 14 copies Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time of the intervention or protest to the on Monday, November 9, 2009. on Friday, November 20, 2009. Federal Energy Regulatory Commission, Docket Numbers: RP10–82–000. Docket Numbers: ER10–191–000. 888 First St., NE., Washington, DC Applicants: Dauphin Island Gathering Applicants: E.ON U.S. LLC. 20426. Partners. Description: E.ON US, LLC et al. seeks The filings in the above proceedings Description: Dauphin Island approval to change Applicants method are accessible in the Commission’s Gathering Partners submits Forty-Ninth of complying with Order Nos. 888, 889 eLibrary system by clicking on the Revised Sheet No. 9 et al. to FERC Gas and 890 meeting certain conditions appropriate link in the above list. They Tariff, First Revised Volume No. 1. imposed by the Commission in the are also available for review in the Filed Date: 10/29/2009. context of prior mergers etc. Commission’s Public Reference Room in Accession Number: 20091030–0011. Filed Date: 10/30/2009. Washington, DC. There is an Comment Date: 5 p.m. Eastern Time Accession Number: 20091103–0044. eSubscription link on the Web site that on Tuesday, November 10, 2009. Comment Date: 5 p.m. Eastern Time enables subscribers to receive e-mail Docket Numbers: RP10–83–000. on Friday, November 20, 2009. notification when a document is added Applicants: Dauphin Island Gathering Take notice that the Commission to a subscribed docket(s). For assistance Partners. received the following electric with any FERC Online service, please e- Description: Dauphin Island reliability filings: mail [email protected]. or Gathering Partners submits First Docket Numbers: RD10–2–000. call (866) 208–3676 (toll free). For TTY, Revised Sheet No. 69 et al. to FERC Gas Applicants: Western Electricity call (202) 502–8659. Tariff, First Revised Volume No. 1. Coordinating Council. Nathaniel J. Davis, Sr., Filed Date: 10/29/2009. Accession Number: 20091030–0010. Description: Compliance Filing of the Deputy Secretary. Comment Date: 5 p.m. Eastern Time North American Electric Reliability [FR Doc. E9–27298 Filed 11–10–09; 8:45 am] Corporation in response to Order No. on Tuesday, November 10, 2009. BILLING CODE 6717–01–P 723: VSLs for BAL–004–WECC–01 R2– Docket Numbers: RP10–84–000. R4 and request for an extension of time Applicants: Sequent Energy for the filing of the VSL for R1. DEPARTMENT OF ENERGY Management, L.P., Integrys Energy Filed Date: 10/23/2009. Services, Inc. Accession Number: 20091023–5064. Federal Energy Regulatory Description: Sequent Energy Comment Date: 5 p.m. Eastern Time Commission Management, L.P, et al. Request for on Friday, November 13, 2009. Temporary Waiver, Shortened Comment Any person desiring to intervene or to Combined Notice of Filings Period and Expedited Decision. protest in any of the above proceedings Filed Date: 10/29/2009. November 2, 2009. must file in accordance with Rules 211 Accession Number: 20091029–5092. Take notice that the Commission has and 214 of the Commission’s Rules of Comment Date: 5 p.m. Eastern Time received the following Natural Gas Practice and Procedure (18 CFR 385.211 on Tuesday, November 10, 2009. Pipeline Rate and Refund Report filings: Docket Numbers: RP10–85–000. and 385.214) on or before 5 p.m. Eastern Docket Numbers: RP10–75–000. Applicants: Northwest Pipeline GP. time on the specified comment date. It Applicants: Natural Gas Pipeline Description: Northwest Pipeline GP is not necessary to separately intervene Company of America LLC. again in a subdocket related to a Description: Natural Gas Pipeline submits First Revised Sheet No. 217 et compliance filing if you have previously Company of America LLC submits the al. to FERC Gas Tariff, Fourth Revised intervened in the same docket. Protests Transportation Rate Schedule FTS Volume No. 1. Filed Date: 10/29/2009. will be considered by the Commission Agreement with a negotiated rate Accession Number: 20091030–0105. in determining the appropriate action to exhibit between Natural and Eagle Comment Date: 5 p.m. Eastern Time be taken, but will not serve to make Energy Partner I, LP. on Tuesday, November 10, 2009. protestants parties to the proceeding. Filed Date: 10/26/2009. Anyone filing a motion to intervene or Accession Number: 20091026–0283. Docket Numbers: RP10–86–000. protest must serve a copy of that Comment Date: 5 p.m. Eastern Time Applicants: Maritimes & Northeast document on the Applicant. In reference on Monday, November 9, 2009. Pipeline, L.L.C. to filings initiating a new proceeding, Docket Numbers: RP10–80–000. Description: Maritimes & Northeast interventions or protests submitted on Applicants: Northwest Pipeline GP. Pipeline, LLC submits Original Sheet or before the comment deadline need Description: Northwest Pipeline GP No. 9P et al. to FERC Gas Tariff, First not be served on persons other than the submits Fourth Revised Sheet 395 et al. Revised Volume No. 1. Applicant. to FERC Gas Tariff, Fourth Revised Filed Date: 10/29/2009. The Commission encourages Volume 1. Accession Number: 20091030–0104. electronic submission of protests and Filed Date: 10/28/2009. Comment Date: 5 p.m. Eastern Time interventions in lieu of paper, using the Accession Number: 20091029–0053. on Tuesday, November 10, 2009. FERC Online links at http:// Comment Date: 5 p.m. Eastern Time Docket Numbers: RP10–87–000. www.ferc.gov. To facilitate electronic on Monday, November 9, 2009. Applicants: Destin Pipeline Company, service, persons with Internet access Docket Numbers: RP10–81–000. L.L.C. who will eFile a document and/or be Applicants: Texas Eastern Description: Destin Pipeline Co, LLC listed as a contact for an intervenor Transmission LP. submits the Revenue Crediting must create and validate an Description: Texas Eastern Provision for Twelve Months ended 8/ eRegistration account using the Transmission, LP submits Thirty 31/09.

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Filed Date: 10/30/2009. Sheet No. 871 and amendments to three Description: National Fuel Gas Supply Accession Number: 20091030–0147. non-conforming transportation service Corporation submits 131st Revised Comment Date: 5 p.m. Eastern Time agreements, to be effective 12/1/09. Sheet No. 9 to FERC Gas Tariff, Fourth on Thursday, November 12, 2009. Filed Date: 10/30/2009. Revised Volume No. 1, to be effective Docket Numbers: RP10–88–000. Accession Number: 20091030–0143. 11/1/09. Applicants: Quest Pipelines (KPC). Comment Date: 5 p.m. Eastern Time Filed Date: 10/30/2009. Description: Quest Pipelines (KPC) on Thursday, November 12, 2009. Accession Number: 20091030–0137. submits First Revised Sheet No. 62 et al. Docket Numbers: RP10–94–000. Comment Date: 5 p.m. Eastern Time to FERC Gas Tariff, Second Revised Applicants: Trunkline Gas Company, on Thursday, November 12, 2009. Volume No. 1. LLC. Docket Numbers: RP10–100–000. Filed Date: 10/30/2009. Description: Trunkline Gas Company, Applicants: Great Lakes Gas Accession Number: 20091030–0146. LLC submits the Annual Interruptible Transmission Limited Partnership. Comment Date: 5 p.m. Eastern Time Storage Revenue Credit Surcharge Description: Great Lakes Gas on Thursday, November 12, 2009. Adjustment for the period September Transmission Limited Partnership Docket Numbers: RP10–89–000. 2008 through August 2009. submits Fifth Revised Sheet No. 0 et al. Applicants: Iroquois Gas Filed Date: 10/30/2009. to FERC Gas Tariff, Second Revised Transmission System, L.P. Accession Number: 20091030–0142. Volume No. 1, to be effective 11/30/09. Description: Iroquois Gas Comment Date: 5 p.m. Eastern Time Filed Date: 10/30/2009. Transmission System, LP submits First on Thursday, November 12, 2009. Accession Number: 20091030–0136. Comment Date: 5 p.m. Eastern Time Revised Sheet No. 6A et al. to FERC Gas Docket Numbers: RP10–95–000. on Thursday, November 12, 2009. Tariff, First Revised Volume No. 1, to be Applicants: Viking Gas Transmission effective 11/1/09. Company. Docket Numbers: RP10–101–000. Filed Date: 10/30/2009. Description: Viking Gas Transmission Applicants: Transcontinental Gas Accession Number: 20091030–0145. Company submits two new backhaul Pipe Line Company, LLC. Comment Date: 5 p.m. Eastern Time service agreements under Rate Schedule Description: Transcontinental Gas on Thursday, November 12, 2009. FT–A, to be effective 12/1/09. Pipe Line Company, LLC submits Docket Numbers: RP10–90–000. Filed Date: 10/30/2009. Twenty-First Revised Sheet No. 470 to Applicants: Midwestern Gas Accession Number: 20091030–0141. FERC Gas Tariff, Fourth Revised Transmission Company. Comment Date: 5 p.m. Eastern Time Volume No. 1. Description: Midwestern Gas on Thursday, November 12, 2009. Filed Date: 10/30/2009. Transmission Company submits Fifth Accession Number: 20091030–0135. Docket Numbers: RP10–96–000. Revised Sheet No. 273 to FERC Gas Comment Date: 5 p.m. Eastern Time Applicants: Equitrans, L.P. Tariff, Third Revised Volume No. 1, to on Thursday, November 12, 2009. Description: Equitrans L.P. submits be effective 12/1/09. Docket Numbers: RP10–102–000. Sixth Revised Sheet No. 317 to FERC Filed Date: 10/30/2009. Applicants: Colorado Interstate Gas Gas Tariff, Original Volume No. 1, to be Accession Number: 20091030–0144. Company. effective 11/1/09. Comment Date: 5 p.m. Eastern Time Description: Colorado Interstate Gas Filed Date: 10/30/2009. on Thursday, November 12, 2009. Company submits Twelfth Revised Accession Number: 20091030–0140. Sheet No. 8A et al. to FERC Gas Tariff, Docket Numbers: RP10–91–000. Comment Date: 5 p.m. Eastern Time Applicants: Colorado Interstate Gas First Revised Volume No. 2, to be on Thursday, November 12, 2009. Company. effective 11/1/09. Description: Request of Waiver of Docket Numbers: RP10–97–000. Filed Date: 10/30/2009. non-critical penalties for services Applicants: Northern Natural Gas Accession Number: 20091030–0134. related to its new Totem Gas Storage Company. Comment Date: 5 p.m. Eastern Time Field facilities of Colorado Interstate Description: Northern Natural Gas on Thursday, November 12, 2009. Gas Company. Company submits Fifth Revised Sheet Docket Numbers: RP10–103–000. Filed Date: 10/30/2009. No. 0 et al. to FERC Gas Tariff, Second Applicants: Wyoming Interstate Accession Number: 20091030–5024. Revised Volume No. 1, to be effective Company, Ltd. Comment Date: 5 p.m. Eastern Time 11/1/09. Description: Wyoming Interstate on Thursday, November 12, 2009. Filed Date: 10/30/2009. Company Ltd submits Twenty-Fifth Docket Numbers: RP10–92–000. Accession Number: 20091030–0139. Revised Sheet No 4C et al. to its FERC Applicants: El Paso Natural Gas Comment Date: 5 p.m. Eastern Time Gas Tariff, Second Revised Volume No. Company. on Thursday, November 12, 2009. 2. Description: Request for Waiver of Docket Numbers: RP10–98–000. Filed Date: 10/30/2009. non-critical penalties at certain delivery Applicants: Gas Transmission Accession Number: 20091030–0132. locations. This request results from the Northwest Corporation. Comment Date: 5 p.m. Eastern Time in-service of two new taps on the East Description: Gas Transmission on Thursday, November 12, 2009. Valley Lateral pipeline of El Paso Northwest Corporation submits Forty- Docket Numbers: RP10–104–000. Natural Gas Company. Seventh Revised Sheet No. 15 et al. to Applicants: Wyoming Interstate Filed Date: 10/29/2009. FERC Gas Tariff, Third Revised Volume Company, Ltd. Accession Number: 20091029–5095. No. 1, to be effective 11/1/09. Description: Wyoming Interstate Comment Date: 5 p.m. Eastern Time Filed Date: 10/30/2009. Company Ltd submits Fourth Revised on Tuesday, November 10, 2009. Accession Number: 20091030–0138. Sheet No 39C et al. to its FERC Gas Docket Numbers: RP10–93–000. Comment Date: 5 p.m. Eastern Time Tariff, Second Revised Volume No. 2. Applicants: Viking Gas Transmission on Thursday, November 12, 2009. Filed Date: 10/30/2009. Company. Docket Numbers: RP10–99–000. Accession Number: 20091030–0131. Description: Viking Gas Transmission Applicants: National Fuel Gas Supply Comment Date: 5 p.m. Eastern Time Company submits Seventh Revised Corporation. on Thursday, November 12, 2009.

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Docket Numbers: RP10–105–000. protestants parties to the proceeding. Take notice that the Commission Applicants: Southern LNG Inc. Anyone filing a motion to intervene or received the following electric rate Description: Southern LNG Inc protest must serve a copy of that filings: submits Twenty-Fifth Revised Sheet No document on the Applicant. In reference Docket Numbers: ER99–2284–012; 5 et al. to its FERC Gas Tariff, Original to filings initiating a new proceeding, ER98–2185–017; ER09–1278–001; Volume No 1. interventions or protests submitted on ER09–38–002; ER99–1761–008; ER99– Filed Date: 10/30/2009. or before the comment deadline need 1773–012; ER01–1315–008; ER01–2401– Accession Number: 20091030–0130. not be served on persons other than the 014; ER98–2186–018; ER00–1026–019; Comment Date: 5 p.m. Eastern Time Applicant. ER00–33–014; ER01–751–014; ER05– on Thursday, November 12, 2009. The Commission encourages 442–006; ER98–2184–017 Docket Numbers: RP10–106–000. electronic submission of protests and Applicants: AEE 2 LLC; AES Applicants: Columbia Gas interventions in lieu of paper, using the Alamitos, Inc.; AES Huntington Beach, Transmission, LLC. FERC Online links at http:// L.L.C.; AES Energy Storage, LLC; AES Description: Columbia Gas www.ferc.gov. To facilitate electronic Eastern Energy, LP; AES Eastern Energy, Transmission, LLC submits First service, persons with Internet access LP; AES Ironwood LLC; AES Red Oak Revised Sheet no 140 et al. to its FERC who will eFile a document and/or be LLC; AES Armenia Mountain Wind, Gas Tariff, Third Revised Volume No 1. listed as a contact for an intervenor LLC; Indianapolis Power & Light Filed Date: 10/30/2009. must create and validate an Company; AES Placerita Inc.; AES Accession Number: 20091030–0128. eRegistration account using the Redondo Beach, LLC; Mountain View Comment Date: 5 p.m. Eastern Time eRegistration link. Select the eFiling Power Partners, LLC. on Thursday, November 12, 2009. link to log on and submit the Description: The AES Corporation Docket Numbers: RP10–107–000. intervention or protests. Quarterly Report of Generation Site Applicants: Midcontinent Express Persons unable to file electronically Acquisition. Pipeline LLC. should submit an original and 14 copies Filed Date: 10/30/2009. Description: Midcontinent Express of the intervention or protest to the Accession Number: 20091030–5082. Pipeline LLC submits First Revised Federal Energy Regulatory Commission, Comment Date: 5 p.m. Eastern Time Sheet No 12 to it FERC Gas Tariff, 888 First St., NE., Washington, DC on Friday, November 20, 2009. Original Volume No 1. 20426. Docket Numbers: ER99–2311–013; Filed Date: 10/30/2009. The filings in the above proceedings ER97–2846–016. Accession Number: 20091030–0148. are accessible in the Commission’s Applicants: Carolina Power & Light Comment Date: 5 p.m. Eastern Time eLibrary system by clicking on the Company; Florida Power Corporation. on Thursday, November 12, 2009. appropriate link in the above list. They Description: Carolina Power & Light are also available for review in the Docket Numbers: RP10–108–000. Co et al. submits notice of change in Commission’s Public Reference Room in Applicants: Columbia Gas status in compliance with requirements Washington, DC. There is an Transmission, LLC. set forth in Section 35.42 of the Description: Columbia Gulf eSubscription link on the Web site that regulations. Transmission, LLC submits petition for enables subscribers to receive e-mail Filed Date: 10/28/2009. waiver of the Delivery Point Scheduling notification when a document is added Accession Number: 20091029–0058. Penalty. to a subscribed docket(s). For assistance Comment Date: 5 p.m. Eastern Time Filed Date: 10/30/2009. with any FERC Online service, please e- on Wednesday, November 18, 2009. Accession Number: 20091030–0127. mail [email protected]. or Docket Numbers: ER99–3168–011; Comment Date: 5 p.m. Eastern Time call (866) 208–3676 (toll free). For TTY, ER04–657–012; ER04–659–012; ER04– on Thursday, November 12, 2009. call (202) 502–8659. 660–012; ER04–994–007. Docket Numbers: RP10–109–000. Nathaniel J. Davis, Sr., Applicants: Astoria Generating Applicants: Columbia Gulf Deputy Secretary. Company, LP; Mystic I, LLC; Fore River Transmission Company. [FR Doc. E9–27301 Filed 11–10–09; 8:45 am] Development, LLC; Sithe Mystic Development LLC; Sithe Boston Description: Columbia Gulf BILLING CODE 6717–01–P Transmission Company submits petition Generating, LLC. for waiver of the Delivery Point Description: Quarterly Report for the Scheduling Penalty. DEPARTMENT OF ENERGY Third Quarter of 2009 of Astoria Filed Date: 10/30/2009. Generating Company, L.P., et al. Accession Number: 20091030–0126. Federal Energy Regulatory Filed Date: 10/29/2009. Comment Date: 5 p.m. Eastern Time Commission Accession Number: 20091029–5094. on Thursday, November 12, 2009. Comment Date: 5 p.m. Eastern Time Any person desiring to intervene or to Combined Notice of Filings # 1 on Thursday, November 19, 2009. protest in any of the above proceedings November 3, 2009. Docket Numbers: ER00–1770–022; must file in accordance with Rules 211 Take notice that the Commission ER01–202–011; ER02–453–013; ER07– and 214 of the Commission’s Rules of received the following exempt 903–005; ER04–472–010; ER08–1336– Practice and Procedure (18 CFR 385.211 wholesale generator filings: 003; ER09–1729–001; ER09–886–003; and 385.214) on or before 5 p.m. Eastern Docket Numbers: EG10–5–000. ER96–1361–016; ER98–3096–018; time on the specified comment date. It Applicants: Grant County Wind, LLC. ER98–4138–012; ER99–2781–014; is not necessary to separately intervene Description: Self Certification Notice ER05–1054–006. again in a subdocket related to a of Exempt Wholesale Generator of Grant Applicants: Conectiv Energy Supply, compliance filing if you have previously County Wind, LLC. Inc., Conectiv Atlantic Generation, LLC, intervened in the same docket. Protests Filed Date: 10/29/2009. Conectiv Delmarva Generation, LLC; will be considered by the Commission Accession Number: 20091029–5098. Potomac Power Resources, Inc.; in determining the appropriate action to Comment Date: 5 p.m. Eastern Time Conectiv Bethlehem, LLC; Fauquier be taken, but will not serve to make on Thursday, November 19, 2009. Landfill Gas, LLC; Bethlehem

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Renewable Energy, LLC; Energy Systems Filed Date: 10/30/2009. Rocky Mountain Energy Center, LLC, North East LLC; Conectiv Mid Merit, Accession Number: 20091030–5078. Santa Rosa Energy Center, LLC, South LLC; Conectiv Vineland Solar, LLC; Comment Date: 5 p.m. Eastern Time Point Energy Center, LLC, TBG Cogen Atlantic City Electric Company; Pepco on Friday, November 20, 2009. Partners, Zion Energy LLC. Energy Services, Inc.; Potomac Electric Docket Numbers: ER04–449–020. Description: Quarterly Report for the Power Company; Delmarva Power & Applicants: New York Independent Third Quarter of 2009 of Auburndale Light Company; Eastern Landfill Gas, System Operator, Inc. Peaker Energy Center, L.L.C., et al. LLC. Description: New York Independent Filed Date: 10/30/2009. Description: Change in Status of System Operator, Inc et al. submits Accession Number: 20091030–5081. Conectiv Energy Supply, Inc, et al. amendments to the Open Access Comment Date: 5 p.m. Eastern Time Filed Date: 10/30/2009. Transmission Tariff etc. on Friday, November 20, 2009. Accession Number: 20091030–5070. Filed Date: 10/28/2009. Docket Numbers: ER06–615–054. Comment Date: 5 p.m. Eastern Time Accession Number: 20091030–0003. Applicants: California Independent on Friday, November 20, 2009. Comment Date: 5 p.m. Eastern Time System Operator Corporation. Docket Numbers: ER00–1780–012; on Wednesday, November 18, 2009. Description: The California ER00–840–013; ER01–137–011; ER01– Docket Numbers: ER06–441–005; Independent System Operator 2641–016; ER01–2690–014; ER01–557– ER00–1115–011; ER00–3562–012; Corporation submits informational filing 016; ER01–559–016 ; ER01–560–016; ER00–38–010; ER01–2688–013; ER01– of Third Revised Sheet 639 et al. to ER01–596–010; ER02–1942–013; ER02– 2887–010; ER01–480–009; ER02–1319– FERC Electric Tariff, Fourth 2509–011; ER02–553–014; ER02–77– 009; ER02–1367–007; ER02–1633–007; Replacement Volume 1 to be effective 014; ER02–963–014; ER03–720–015; ER02–1959–008; ER02–2227–010; 11/5/09. ER05–524–009; ER09–43–003; ER94– ER02–2229–009; ER02–600–011; ER03– Filed Date: 10/28/2009. 389–035; ER98–1767–019; ER99–2992– 1288–006; ER03–209–008; ER03–24– Accession Number: 20091030–0002. 012; ER99–3165–013. 009; ER03–25–006; ER03–341–007; Comment Date: 5 p.m. Eastern Time Applicants: Big Sandy Peaker Plant, ER03–342–008; ER03–446–008; ER03– on Wednesday, November 18, 2009. LLC, Tenaska Alabama II Partners, L.P., 49–008; ER03–838–009; ER04–1081– Docket Numbers: ER09–556–003; Tenaska Alabama Partners, L.P., 006; ER04–1099–007; ER04–1100–007; ER08–367–008; ER06–615–054. Tenaska Georgia Partners, L.P., Tenaska ER04–1221–006; ER04–831–008; ER05– Applicants: California Independent Frontier Partners, Ltd., New Covert 67–006; ER05–68–006; ER05–819–006; System Operator Corporation Generating Company, LLC, Tenaska ER05–820–006; ER06–741–006; ER06– Description: The California Power Services Co., High Desert Power 742–006; ER06–749–006; ER06–750– Independent System Operator Project, LLC, Wolf Hills Energy, LLC, 006; ER06–751–007; ER06–752–006; Corporation submits informational filing Tenaska Washington Partners, L.P., ER06–753–005; ER06–755–006; ER06– of Third Revised Sheet 639 et al. to Lincoln Generating Facility, LLC, 756–006; ER07–1335–006; ER09–1084– FERC Electric Tariff, Fourth California Electric Marketing, LLC, Crete 003; ER09–71–003; ER99–1983–009; Replacement Volume 1 to be effective Energy Venture, LLC, Tenaska Gateway ER99–970–010. 11/5/09. Partners, Ltd., University Park Energy, Applicants: Auburndale Peaker Filed Date: 10/28/2009. LLC, New Mexico Electric Marketing, Energy Center, L.L.C., Bethpage Energy Accession Number: 20091030–0002. LLC, Alabama Electric Marketing, LLC, Center 3, LLC, Blue Spruce Energy Comment Date: 5 p.m. Eastern Time Kiowa Power Partners, LLC, Rolling Center, LLC, Broad River Energy LLC, on Wednesday, November 18, 2009. Hills Generating, L.L.C., Tenaska Calpine Construction Finance Company, Docket Numbers: ER09–1247–004. Virginia Partners, L.P., Texas Electric LP, Calpine Energy Services, L.P., Applicants: California Independent Marketing, LLC. Calpine Gilroy Cogen, L.P., Calpine System Operator Corporation. Description: Alabama Electric Description: California Independent Marketing, LLC., et al. Quarterly Report Newark, LLC, Calpine Oneta Power, LP, Calpine Philadelphia, Inc, Calpine System Operator Corporation submits for the Third Quarter of 2009. Third Substitute Original Sheet 216A et Filed Date: 10/29/2009. Power America—CA, LLC, Calpine al. to FERC Electric Tariff, Fourth Accession Number: 20091029–5101. Power America—OR, LLC, Carville Comment Date: 5 p.m. Eastern Time Energy LLC, CES Marketing IX, LLC, Replacement Volume 1 to be effective on Thursday, November 19, 2009. CES Marketing V, L.P., CES Marketing 11/1/09. Filed Date: 10/28/2009. Docket Numbers: ER02–237–015; X, LLC, Columbia Energy LLC, CPN Bethpage 3RD Turbine, INC, CPN Pryor Accession Number: 20091030–0001. ER03–1151–008. Comment Date: 5 p.m. Eastern Time Applicants: J. Aron & Company, Funding Corporation, Creed Energy on Wednesday, November 18, 2009. Power Receivable Finance, LLC. Center, LLC, Decatur Energy Center, Description: J. Aron & Company and LLC, Delta Energy Center, LLC, Geysers Docket Numbers: ER09–1621–003. Power Receivable Finance LLC submits Power Company, LLC, Gilroy Energy Applicants: Jersey Central Power & Notice of Change in Status for New Center, LLC, Goose Haven Energy Light Co. Generation Capacity Development. Center, LLC, Hermiston Power, LLC, Description: Jersey Central Power & Filed Date: 10/30/2009. KIAC Partners, Los Esteros Critical Light Company submits the third Accession Number: 20091030–5079. Energy Facility LLC, Los Medanos amendment to the 9/24/09 filing to Comment Date: 5 p.m. Eastern Time Energy Center LLC, Mankato Energy replace the canceled rate schedule sheet on Friday, November 20, 2009. Center, LLC, Metcalf Energy Center, to comply with the requirements of Docket Numbers: ER03–9–018; ER98– LLC, Mobile Energy LLC, Morgan Order 614. 2157–019. Energy Center, LLC, Nissequogue Cogen Filed Date: 10/29/2009. Applicants: Westar Energy, Inc.; Partners, Otay Mesa Energy Center, LLC, Accession Number: 20091030–0108. Western Resources, Inc. Pastoria Energy Center, LLC, PCF2, LLC, Comment Date: 5 p.m. Eastern Time Description: Quarterly Report Pine Bluff Energy, LLC, Power Contract on Thursday, November 19, 2009. regarding Generation Sites of Westar Financing, L.L.C., Riverside Energy Docket Numbers: ER10–121–000. Energy, Inc. Center, LLC, RockGen Energy, LLC, Applicants: Entergy Power, Inc.

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Description: Entergy Power Inc Description: Midwest Independent agreement for Network Integration submits Notices of Termination. Transmission System Operator, Inc Transmission Service with the Board of Filed Date: 10/28/2009 submits notice of termination and Public Utilities, Springfield, Missouri Accession Number: 20091028–0065. consent to termination of the Large etc. Comment Date: 5 p.m. Eastern Time Generator Interconnection Agreement Filed Date: 10/29/2009. on Wednesday, November 18, 2009. with Columbia Community Windpower Accession Number: 20091030–0115. Docket Numbers: ER10–126–000. LLC. Comment Date: 5 p.m. Eastern Time Applicants: Southwest Power Pool, Filed Date: 10/29/2009. on Thursday, November 19, 2009. Inc. Accession Number: 20091030–0120. Docket Numbers: ER10–145–000. Description: Southwest Power Pool, Comment Date: 5 p.m. Eastern Time Applicants: Southwest Power Pool, Inc submits filing for providing for on Thursday, November 19, 2009. Inc. revisions to its Open Access Docket Numbers: ER10–139–000. Description: Southwest Power Pool, Transmission Tariff. Applicants: Atlantic Path 15, LLC. Inc. submits revised pages to its Open Filed Date: 10/28/2009. Description: Atlantic Path 15, LLC Access Transmission Tariff etc. Accession Number: 20091029–0020. submits revisions to its Transmission Filed Date: 10/29/2009. Comment Date: 5 p.m. Eastern Time Owner Tariff, FERC Electric Tariff First Accession Number: 20091030–0114. on Wednesday, November 18, 2009. Revised Volume No 1. Comment Date: 5 p.m. Eastern Time on Thursday, November 19, 2009. Docket Numbers: ER10–127–000. Filed Date: 10/29/2009. Applicants: The United Illuminating Accession Number: 20091030–0119. Docket Numbers: ER10–146–000. Company. Comment Date: 5 p.m. Eastern Time Applicants: Southwest Power Pool, Description: The United Illuminating on Thursday, November 19, 2009. Inc. Company submits Engineering and Docket Numbers: ER10–140–000. Description: Southwest Power Pool, Procurement Agreement dated 10/1/09 Applicants: Entergy Power, LLC. Inc. submits executed Service etc. Description: Entergy Power, LLC Agreement for Network Integration Filed Date: 10/28/2009. submits Rate Schedule No 48. Transmission Service between Accession Number: 20091029–0021. Filed Date: 10/29/2009. Southwest Power Pool, Inc. as Comment Date: 5 p.m. Eastern Time Accession Number: 20091030–0118. Transmission Provider and Westar on Wednesday, November 18, 2009. Comment Date: 5 p.m. Eastern Time Energy as Network Customer, etc. on Thursday, November 19, 2009. Filed Date: 10/29/2009. Docket Numbers: ER10–128–000. Accession Number: 20091030–0113. Applicants: Midwest Independent Docket Numbers: ER10–141–000; Comment Date: 5 p.m. Eastern Time Transmission System Operator, Inc. ER10–141–001. on Thursday, November 19, 2009. Description: Midwest Independent Applicants: RRI Energy Wholesale Docket Numbers: ER10–147–000. Transmission System Operator, Inc Generation, LLC. Applicants: Great River Energy. submits amendments to Section 38.2.5.g Description: RRI Energy Wholesale Description: Great River Energy et al. of the Midwest ISO’s Open Access Generation, LLC submits notice of submits revised tariff sheets with Transmission, Energy and Operating cancellation of the Blackstart Service proposed revisions to the Midwest ISO’s Reserve Markets Tariff. Agreement between RRI Energy Open Access Transmission Energy and Filed Date: 10/28/2009. Wholesale Generation, LLC and Operating Reserve Markets Tariff FERC Accession Number: 20091029–0022. Commonwealth Edison Company. Electric Tariff, Fourth Revised Volume 1 Comment Date: 5 p.m. Eastern Time Filed Date: 10/29/2009. under ER10–147. on Wednesday, November 18, 2009. Accession Number: 20091030–0117. Filed Date: 10/29/2009. Docket Numbers: ER10–135–000. Comment Date: 5 p.m. Eastern Time Accession Number: 20091030–0121. Applicants: Southern California on Thursday, November 19, 2009. Comment Date: 5 p.m. Eastern Time Edison Company. Docket Numbers: ER10–142–000. on Thursday, November 19, 2009. Description: Southern California Applicants: Entergy Power, Inc. Docket Numbers: ER10–148–000. Edison Company submits revisions to Description: Entergy Power Inc Applicants: New York Independent its Transmission Owner Tariff, FERC submits notice of succession et al. System Operator, Inc. Electric Tariff, Second Revised Volume Filed Date: 10/28/2009. Description: New York Independent No 6. Accession Number: 20091030–0106. System Operator, Inc. et al. submit an Filed Date: 10/29/2009. Comment Date: 5 p.m. Eastern Time amended and restated large generator Accession Number: 20091030–0056. on Wednesday, November 18, 2009. interconnection agreement among New Comment Date: 5 p.m. Eastern Time Docket Numbers: ER10–143–000. York Independent System Operator, Inc. on Thursday, November 19, 2009. Applicants: Florida Power & Light et al. and request for waiver. Docket Numbers: ER10–137–000. Company. Filed Date: 10/29/2009. Applicants: Upper Peninsula Power Description: Florida Power & Light Accession Number: 20091030–0112. Company. Company submits Original Service Comment Date: 5 p.m. Eastern Time Description: Upper Peninsula Power Agreement No 264 between FPL and the on Thursday, November 19, 2009. Company submits changes in the City of Vero Beach. Docket Numbers: ER10–150–000. depreciation rates affecting cost based Filed Date: 10/29/2009. Applicants: ISO New England Inc. wholesale rates. Accession Number: 20091030–0116. Description: ISO New England Inc. Filed Date: 10/29/2009. Comment Date: 5 p.m. Eastern Time submits Updated Tariff Sheets for Accession Number: 20091030–0006. on Thursday, November 19, 2009. Compliance with Order 614. Comment Date: 5 p.m. Eastern Time Docket Numbers: ER10–144–000. Filed Date: 10/29/2009. on Thursday, November 19, 2009. Applicants: Southwest Power Pool, Accession Number: 20091030–0111. Docket Numbers: ER10–138–000. Inc. Comment Date: 5 p.m. Eastern Time Applicants: Midwest Independent Description: Southwest Power Pool. on Thursday, November 19, 2009. Transmission System Operator, Inc. Inc submits an executed service Docket Numbers: ER10–152–000.

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Applicants: PPL Electric Utilities link to log on and submit the interventions in lieu of paper using the Corporation. intervention or protests. ‘‘eFiling’’ link at http://www.ferc.gov. Description: PPL Electric Utilities Persons unable to file electronically Persons unable to file electronically Corporation submits revised tariff sheets should submit an original and 14 copies should submit an original and 14 copies to the PJM Interconnection, LLC Open of the intervention or protest to the of the protest or intervention to the Access Transmission Tariff. Federal Energy Regulatory Commission, Federal Energy Regulatory Commission, Filed Date: 10/29/2009. 888 First St., NE., Washington, DC 888 First Street, NE., Washington, DC Accession Number: 20091030–0123. 20426. 20426. Comment Date: 5 p.m. Eastern Time The filings in the above proceedings This filing is accessible on-line at on Thursday, November 19, 2009. are accessible in the Commission’s http://www.ferc.gov, using the Docket Numbers: ER10–153–000. eLibrary system by clicking on the ‘‘eLibrary’’ link and is available for Applicants: Niagara Mohawk Power appropriate link in the above list. They review in the Commission’s Public Corporation. are also available for review in the Reference Room in Washington, DC. Description: Niagara Mohawk Power Commission’s Public Reference Room in There is an ‘‘eSubscription’’ link on the Corporation submits for Commission Washington, DC. There is an Web site that enables subscribers to acceptance a 1999 Site Agreement eSubscription link on the Web site that receive e-mail notification when a between Niagara Mohawk and Erie enables subscribers to receive e-mail document is added to a subscribed Boulevard Hydropower, LP. notification when a document is added docket(s). For assistance with any FERC Filed Date: 10/29/2009. to a subscribed docket(s). For assistance Online service, please e-mail Accession Number: 20091030–0122. with any FERC Online service, please e- [email protected], or call Comment Date: 5 p.m. Eastern Time mail [email protected] or (866) 208–3676 (toll free). For TTY, call on Thursday, November 19, 2009. call (866) 208–3676 (toll free). For TTY, (202) 502–8659. Docket Numbers: ER10–154–000. call (202) 502–8659. Comment Date: 5 p.m. Eastern Time Applicants: ISO New England Inc. Nathaniel J. Davis, Sr., on November 23, 2009. Description: ISO New England Inc. Deputy Secretary. Kimberly D. Bose, submits 5th Revised Sheet 8545 et al. to [FR Doc. E9–27299 Filed 11–10–09; 8:45 am] Secretary. FERC Electric Tariff 3 from Section IV BILLING CODE 6717–01–P [FR Doc. E9–27119 Filed 11–10–09; 8:45 am] A of the ISO’s Transmission, Markets and Services Tariff in order to collect its BILLING CODE 6717–01–P administrative costs for CY 2010. DEPARTMENT OF ENERGY Filed Date: 10/29/2009. Accession Number: 20091030–0107. Federal Energy Regulatory ENVIRONMENTAL PROTECTION Comment Date: 5 p.m. Eastern Time Commission AGENCY on Thursday, November 19, 2009. Any person desiring to intervene or to [Docket No. EL08–49–005] [EPA–R04–OAR–2009–0164–200917; FRL– 8980–1] protest in any of the above proceedings BJ Energy LLC; Franklin Power LLC; must file in accordance with Rules 211 GLE Trading LLC; Ocean Power LLC; Adequacy Status of the Tennessee and 214 of the Commission’s Rules of Pillar Fund LLC v. PJM Portion of the Bi-State Memphis Practice and Procedure (18 CFR 385.211 Interconnection; L.L.C.; Notice of Maintenance Plan 8-Hour Ozone Motor and 385.214) on or before 5 p.m. Eastern Filing Vehicle Emission Budgets for time on the specified comment date. It Transportation Conformity Purposes is not necessary to separately intervene November 4, 2009. again in a subdocket related to a Take notice that on November 2, AGENCY: Environmental Protection compliance filing if you have previously 2009, PJM Interconnection, L.L.C. filed Agency (EPA). intervened in the same docket. Protests a refund report in compliance with the ACTION: Notice of adequacy. will be considered by the Commission Commission’s October 2, 2009 Order, BJ in determining the appropriate action to Energy LLC v. PJM Interconnection, SUMMARY: EPA is notifying the public be taken, but will not serve to make L.L.C., 129 FERC ¶ 61, 010 (2009). that it has found that the motor vehicle protestants parties to the proceeding. Any person desiring to intervene or to emissions budgets (MVEBs) for Shelby Anyone filing a motion to intervene or protest this filing must file in County, Tennessee in the 1997 8-Hour protest must serve a copy of that accordance with Rules 211 and 214 of Ozone Maintenance Plan State document on the Applicant. In reference the Commission’s Rules of Practice and Implementation Plan (SIP) revision, to filings initiating a new proceeding, Procedure (18 CFR 385.211, 385.214). submitted on February 26, 2009, by the interventions or protests submitted on Protests will be considered by the Tennessee Department of Environment or before the comment deadline need Commission in determining the and Conservation (TDEC), are adequate not be served on persons other than the appropriate action to be taken, but will for transportation conformity purposes. Applicant. not serve to make protestants parties to Shelby County is one of the counties in The Commission encourages the proceeding. Any person wishing to the bi-state Memphis Area for the 1997 electronic submission of protests and become a party must file a notice of 8-hour ozone standard. Crittenden interventions in lieu of paper, using the intervention or motion to intervene, as County, Arkansas is the other county in FERC Online links at http:// appropriate. Such notices, motions, or the bi-state Memphis Area. Through a www.ferc.gov. To facilitate electronic protests must be filed on or before the separate action EPA has already found service, persons with Internet access comment date. Anyone filing a motion the Crittenden County budgets adequate who will eFile a document and/or be to intervene or protest must serve a copy for transportation conformity purposes. listed as a contact for an intervenor of that document on the Applicant and This action relates only to the Shelby must create and validate an all the parties in this proceeding. County, Tennessee budgets. As a result eRegistration account using the The Commission encourages of EPA’s finding, Shelby County must eRegistration link. Select the eFiling electronic submission of protests and use the MVEBs for future conformity

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determinations for the 1997 8-hour revision for their portion of the bi-state Crittenden County MVEBs can be ozone standard. Memphis Area, submitted on February obtained at the EPA Web site: http:// DATES: These MVEBs are effective 26, 2009, are adequate and must be used www.epa.gov/otaq/stateresources/ November 27, 2009. for transportation conformity transconf/pastsips.htm. determinations in Shelby County, EPA posted the availability of the FOR FURTHER INFORMATION CONTACT: Tennessee. The bi-state Memphis, Shelby County MVEBs on EPA’s Web Dianna Smith, U.S. Environmental Tennessee 8-hour ozone nonattainment site on March 12, 2009, as part of the Protection Agency, Region 4, Air area is comprised of Shelby County in adequacy process, for the purpose of Planning Branch, 61 Forsyth Street, Tennessee and Crittenden County in soliciting comments. The adequacy SW., Atlanta, Georgia 30303. Ms. Smith Arkansas. Tennessee’s redesignation comment period ran from March 12, can also be reached by telephone at request and maintenance plan submittal 2009, through April 13, 2009. During (404) 562–9207, or via electronic mail at addresses only MVEBs for the EPA’s adequacy comment period, no [email protected]. The finding is Tennessee portion of this Area (i.e., adverse comments were received on the available at EPA’s conformity Web site: Shelby County). The MVEBs for the Shelby County MVEBs. Through this http://www.epa.gov/otaq/ Arkansas portion of this Area are notice, EPA is informing the public that stateresources/transconf/currsips.htm. addressed in a separate submittal these MVEBs are adequate for SUPPLEMENTARY INFORMATION: This provided by the State of Arkansas. In a transportation conformity. This finding notice is simply an announcement of a previous action, EPA found the MVEBs has also been announced on EPA’s finding that EPA has already made. EPA associated with Crittenden County (as a conformity Web site: http:// Region 4 sent a letter to TDEC on part of the bi-state Memphis 1997 8- www.epa.gov/otaq/stateresources/ September 18, 2009, stating that the hour ozone area) adequate for transconf/pastsips.htm. The adequate MVEBs identified for Shelby County in transportation conformity purpose. MVEBs are provided in the following Tennessee’s maintenance plan SIP More details on EPA’s finding for the table:

SHELBY COUNTY, TENNESSEE 8-HOUR OZONE MVEBS [Tons per day]

2006 2009 2017 2021

NOX ...... 55.878 55.620 55.173 54.445 VOC ...... 25.216 27.240 18.323 13.817

Transportation conformity is required County. Even if EPA finds a budget dimethyldithiocarbamate, pursuant to by section 176(c) of the Clean Air Act. adequate, the maintenance plan SIP section 6(f)(1) of the Federal Insecticide, EPA’s conformity rule, 40 CFR part 93, revision submittal could later be Fungicide, and Rodenticide Act requires that transportation plans, disapproved. (FIFRA), as amended. This cancellation programs and projects conform to state Within 24 months from the effective order follows a July 1, 2009 Federal air quality implementation plans and date of this notice, the transportation Register Notice of Receipt of Request establishes the criteria and procedures partners will need to demonstrate from a sodium dimethyldithiocarbamate for determining whether or not they do conformity to the new MVEBs, if the registrant to voluntarily amend to so. Conformity to a SIP means that demonstration has not already been terminate uses of their sodium transportation activities will not made, pursuant to 40 CFR 93.104(e). dimethyldithiocarbamate preservation produce new air quality violations, See, 73 FR 4419 (January 24, 2008). of cotton fabric, preservation of wood worsen existing violations, or delay Authority: 42 U.S.C. 7401 et seq. veneer, and preservation of alginate timely attainment of the national Dated: October 29, 2009. pastes product registrations. These are ambient air quality standards. not the last sodium Beverly H. Banister, dimethyldithiocarbamate products The criteria by which EPA determines Acting Regional Administrator, Region 4. whether a SIP’s MVEBs are adequate for registered for use in the United States. [FR Doc. E9–27170 Filed 11–10–09; 8:45 am] transportation conformity purposes are In the July 1, 2009 Notice, EPA outlined in 40 CFR 93.118(e)(4). We BILLING CODE 6560–50–P indicated that it would issue an order have also described the process for implementing the amendment to terminate uses, unless the Agency determining the adequacy of submitted ENVIRONMENTAL PROTECTION received substantive comments within SIP budgets in our July 1, 2004, final AGENCY rulemaking entitled, ‘‘Transportation the 30–day comment period that would Conformity Rule Amendments for the [EPA–HQ–OPP–2009–0321; FRL–8795–1] merit its further review of these New 8-hour Ozone and PM2.5 National requests, or unless the registrant Ambient Air Quality Standards and Dimethyldithiocarbamate Salts; withdrew its request within this period. Miscellaneous Revisions for Existing Amendment to Terminate Uses The Agency did not receive any Areas; Transportation Conformity Rule AGENCY: Environmental Protection comments on the notice. Further, the Amendments: Response to Court Agency (EPA). registrant did not withdraw its request. Decision and Additional Rule Changes’’ ACTION: Notice. Accordingly, EPA hereby issues in this (69 FR 40004). Please note that an notice a cancellation order granting the adequacy review is separate from EPA’s SUMMARY: This notice announces EPA’s requested amendment to terminate uses. completeness review, and it should not order to terminate uses, voluntarily Any distribution, sale, or use of the be used to prejudge EPA’s ultimate requested by the registrant and accepted sodium dimethyldithiocarbamate approval of Tennessee’s maintenance by the Agency, of products containing products subject to this cancellation plan SIP revision submittal for Shelby the pesticide sodium order is permitted only in accordance

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with the terms of this order, including terminated and removed from the label at any time request that any of its any existing stocks provisions. are listed in Table 1 of this unit. pesticide registrations be canceled or DATES: The cancellation is effective amended to terminate one or more uses. November 12, 2009. TABLE 1.—SODIUM DIMETHYLDITHIO- FIFRA further provides that, before CARBAMATE RODUCT EGISTRA acting on the request, EPA must publish FOR FURTHER INFORMATION CONTACT: P R - a notice of receipt of any such request Eliza Blair, Antimicrobials Division TION AMENDMENTS TO TERMINATE in the Federal Register. Thereafter, (7510P), Office of Pesticide Programs, USES following the public comment period, Environmental Protection Agency, 1200 the Administrator may approve such a Pennsylvania Ave., NW., Washington, EPA Reg- istration Product Delete from Label request. DC 20460–0001; telephone number: Number Name (703) 308–7279; e-mail address: VI. Provisions for Disposition of [email protected]. 1965–8 Vancide Preservation of Existing Stocks 51 cotton fabric, SUPPLEMENTARY INFORMATION: Existing stocks are those stocks of preservation of registered pesticide products which are I. General Information wood veneer, and preservation currently in the United States and A. Does this Action Apply to Me? of alginate which were packaged, labeled, and pastes released for shipment prior to the This action is directed to the public effective date of the cancellation order. in general, and may be of interest to a Table 2 of this unit includes the name The cancellation order issued in this wide range of stakeholders including and address of record for the registrant notice includes the following existing environmental, human health, and of the product in Table 1 of this unit. stocks provisions. agricultural advocates; the chemical The Agency has authorized the industry; pesticide users; and members TABLE 2.—REGISTRANTS OF AMENDED registrants to sell or distribute product of the public interested in the sale, SODIUM DIMETHYLDITHIOCARBAMATE under the previously approved labeling distribution, or use of pesticides. Since PRODUCTS for a period of 18 months after approval others also may be interested, the of the revision, unless other restrictions Agency has not attempted to describe all EPA Company Company Name and Ad- have been imposed, as in special review the specific entities that may be affected Number dress actions. by this action. If you have any questions regarding the applicability of this action 1965 R.T. Vanderbilt Co. Inc. List of Subjects to a particular entity, consult the person 30 Winfield Street Environmental protection, Pesticides listed under FOR FURTHER INFORMATION Norwalk, CT 06856–5150 and pests, Antimicrobials, CONTACT. dimethyldithiocarbamate salts, Sodium III. Summary of Public Comments dimethyldithiocarbamate. B. How Can I Get Copies of this Received and Agency Response to Dated: October 22, 2009. Document and Other Related Comments Information? Betty Shackleford, During the public comment period 1. Docket. EPA has established a Acting Director, Antimicrobials Division, provided, EPA received no comments in Office of Pesticide Programs. docket for this action under docket response to the July 1, 2009 Federal identification (ID) number EPA–HQ– [FR Doc. E9–26701 Filed 11–10–09; 8:45 am] Register notice (74 FR 31428) (FRL– BILLING CODE 6560–50–S OPP–2009–0321. Publicly available 8417–2) announcing the Agency’s docket materials are available either in receipt of the request for amendment to the electronic docket at http:// terminate uses of sodium ENVIRONMENTAL PROTECTION www.regulations.gov, or, if only dimethyldithiocarbamate. AGENCY available in hard copy, at the Office of Pesticide Programs (OPP) Regulatory IV. Cancellation Order [EPA–HQ–OPPT–2009–0840; FRL–8799–5] Public Docket in Rm. S–4400, One Pursuant to FIFRA section 6(f), EPA Potomac Yard (South Bldg.), 2777 S. hereby approves the requested Certain New Chemicals; Receipt and Crystal Dr., Arlington, VA. The hours of amendment to terminate uses of sodium Status Information operation of this Docket Facility are dimethyldithiocarbamate registrations AGENCY: Environmental Protection from 8:30 a.m. to 4 p.m., Monday identified in Table 1 of Unit II. Agency (EPA). through Friday, excluding legal Accordingly, the Agency orders that the ACTION: Notice. holidays. The Docket Facility telephone sodium Dimethyldithiocarbamate number is (703) 305–5805. product registration identified in Table SUMMARY: Section 5 of the Toxic 2. Electronic access. You may access 1 of Unit II is hereby amended to Substances Control Act (TSCA) requires this Federal Register document terminate the affected uses. Any any person who intends to manufacture electronically through the EPA Internet distribution, sale, or use of existing (defined by statute to include import) a under the ‘‘Federal Register’’ listings at stocks of the products identified in new chemical (i.e., a chemical not on http://www.epa.gov/fedrgstr. Table 1 of Unit II in a manner the TSCA Inventory) to notify EPA and inconsistent with any of the Provisions comply with the statutory provisions II. What Action is the Agency Taking? for Disposition of Existing Stocks set pertaining to the manufacture of new This notice announces the forth in Unit VI. will be considered a chemicals. Under sections 5(d)(2) and termination of use, as requested by the violation of FIFRA. 5(d)(3) of TSCA, EPA is required to registrant, of materials-preservation publish a notice of receipt of a manufacturing-use sodium V. What is the Agency’s Authority for premanufacture notice (PMN) or an dimethyldithiocarbamate product Taking this Action? application for a test marketing registered under section 3 of FIFRA. The Section 6(f)(1) of FIFRA provides that exemption (TME), and to publish registered product and the uses that are a registrant of a pesticide product may periodic status reports on the chemicals

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under review and the receipt of notices electronic comment, EPA recommends to a particular entity, consult the person of commencement to manufacture those that you include your name and other listed under FOR FURTHER INFORMATION chemicals. This status report, which contact information in the body of your CONTACT. covers the period from September 7, comment and with any disk or CD-ROM B. What Should I Consider as I Prepare 2009 to October 23, 2009, consists of the you submit. If EPA cannot read your My Comments for EPA? PMNs and TMEs, both pending or comment due to technical difficulties expired, and the notices of and cannot contact you for clarification, 1. Submitting CBI. Do not submit this commencement to manufacture a new EPA may not be able to consider your information to EPA through chemical that the Agency has received comment. Electronic files should avoid regulations.gov or e-mail. Clearly mark under TSCA section 5 during this time the use of special characters, any form the part or all of the information that period. of encryption, and be free of any defects you claim to be CBI. For CBI DATES: Comments identified by the or viruses. information in a disk or CD-ROM that specific PMN number or TME number, Docket: All documents in the docket you mail to EPA, mark the outside of the must be received on or before December are listed in the docket index available disk or CD-ROM that you mail to EPA, 14, 2009. at http://www.regulations.gov. Although mark the outside of the disk or CD-ROM listed in the index, some information is as CBI and then identify electronically ADDRESSES: Submit your comments, not publicly available, e.g., CBI or other within the disk or CD-ROM the specific identified by docket identification (ID) information whose disclosure is information that is claimed as CBI. In number EPA–HQ–OPPT–2009–0840, by restricted by statute. Certain other addition to one complete version of the one of the following methods: material, such as copyrighted material, comment that includes information • Federal eRulemaking Portal: http:// will be publicly available only in hard claimed as CBI, a copy of the comment www.regulations.gov. Follow the on-line copy. Publicly available docket that does not contain the information instructions for submitting comments. materials are available electronically at • Mail: Document Control Office claimed as CBI must be submitted for http://www.regulations.gov, or, if only inclusion in the public docket. (7407M), Office of Pollution Prevention available in hard copy, at the OPPT and Toxics (OPPT), Environmental Information so marked will not be Docket. The OPPT Docket is located in disclosed except in accordance with Protection Agency, 1200 Pennsylvania the EPA Docket Center (EPA/DC) at Rm. Ave., NW., Washington, DC 20460– procedures set forth in 40 CFR part 2. 3334, EPA West Bldg., 1301 2. Tips for preparing your comments. 0001. Constitution Ave., NW., Washington, When submitting comments, remember • Hand Delivery: OPPT Document DC. The EPA/DC Public Reading Room to: Control Office (DCO), EPA East Bldg., hours of operation are 8:30 a.m. to 4:30 i. Identify the document by docket ID Rm. 6428, 1201 Constitution Ave., NW., p.m., Monday through Friday, excluding number and other identifying Washington, DC. Attention: Docket ID legal holidays. The telephone number of information (subject heading, Federal Number EPA–HQ–OPPT–2009–0840. the EPA/DC Public Reading Room is Register date and page number). The DCO is open from 8 a.m. to 4 p.m., (202) 566–1744, and the telephone ii. Follow directions. The Agency may Monday through Friday, excluding legal number for the OPPT Docket is (202) ask you to respond to specific questions holidays. The telephone number for the 566–0280. Docket visitors are required or organize comments by referencing a DCO is (202) 564–8930. Such deliveries to show photographic identification, Code of Federal Regulations (CFR) part are only accepted during the DCO’s pass through a metal detector, and sign or section number. normal hours of operation, and special the EPA visitor log. All visitor bags are iii. Explain why you agree or disagree; arrangements should be made for processed through an X-ray machine suggest alternatives and substitute deliveries of boxed information. and subject to search. Visitors will be language for your requested changes. Instructions: Direct your comments to provided an EPA/DC badge that must be iv. Describe any assumptions and docket ID number EPA–HQ–OPPT– visible at all times in the building and provide any technical information and/ 2009–0840. EPA’s policy is that all returned upon departure. or data that you used. comments received will be included in FOR FURTHER INFORMATION CONTACT: v. If you estimate potential costs or the docket without change and may be Colby Lintner, Regulatory Coordinator, burdens, explain how you arrived at made available on-line at http:// Environmental Assistance Division, your estimate in sufficient detail to www.regulations.gov, including any Office of Pollution Prevention and allow for it to be reproduced. personal information provided, unless Toxics (7408M), Environmental vi. Provide specific examples to the comment includes information Protection Agency, 1200 Pennsylvania illustrate your concerns and suggest claimed to be Confidential Business Ave., NW., Washington, DC 20460– alternatives. Information (CBI) or other information 0001; telephone number: (202) 554– vii. Explain your views as clearly as whose disclosure is restricted by statute. 1404; e-mail address: TSCA- possible, avoiding the use of profanity Do not submit information that you [email protected]. or personal threats. consider to be CBI or otherwise viii. Make sure to submit your SUPPLEMENTARY INFORMATION: protected through regulations.gov or e- comments by the comment period mail. The regulations.gov website is an I. General Information deadline identified. ‘‘anonymous access’’ system, which means EPA will not know your identity A. Does this Action Apply to Me? II. Why is EPA Taking this Action? or contact information unless you This action is directed to the public Section 5 of TSCA requires any provide it in the body of your comment. in general. As such, the Agency has not person who intends to manufacture If you send an e-mail comment directly attempted to describe the specific (defined by statute to include import) a to EPA without going through entities that this action may apply to. new chemical (i.e., a chemical not on regulations.gov, your e-mail address Although others may be affected, this the TSCA Inventory to notify EPA and will be automatically captured and action applies directly to the submitter comply with the statutory provisions included as part of the comment that is of the premanufacture notices addressed pertaining to the manufacture of new placed in the docket and made available in the action. If you have any questions chemicals. Under sections 5(d)(2) and on the Internet. If you submit an regarding the applicability of this action 5(d)(3) of TSCA, EPA is required to

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publish a notice of receipt of a PMN or under TSCA section 5 during this time to access additional non-CBI an application for a TME and to publish period. information that may be available. In Table I of this unit, EPA provides periodic status reports on the chemicals III. Receipt and Status Report for PMNs under review and the receipt of notices the following information (to the extent of commencement to manufacture those This status report identifies the PMNs that such information is not claimed as chemicals. This status report, which and TMEs, both pending or expired, and CBI) on the PMNs received by EPA covers the period from September 7, the notices of commencement to during this period: the EPA case number 2009 to October 23, 2009, consists of the manufacture a new chemical that the assigned to the PMN; the date the PMN PMNs and TMEs, both pending or Agency has received under TSCA was received by EPA; the projected end expired, and the notices of section 5 during this time period. If you date for EPA’s review of the PMN; the commencement to manufacture a new are interested in information that is not submitting manufacturer; the potential chemical that the Agency has received included in the following tables, you uses identified by the manufacturer in may contact EPA as described in Unit II. the PMN; and the chemical identity.

I. 52 PREMANUFACTURE NOTICES RECEIVED FROM: 09/7/09 TO 10/23/09

Projected Case No. Received Notice Manufacturer/Importer Use Chemical Date End Date

P–09–0624 09/09/09 12/07/09 CBI (G) Open, non-dispersive (resin) (G) Quaternized styrene polymer P–09–0625 09/09/09 12/07/09 CBI (G) Open non-dispersive poly- (G) Aromatic isocyanate prepolymer urethane resin P–09–0626 09/09/09 12/07/09 CBI (G) Wash water additive (G) Modified urea polymer P–09–0627 09/11/09 12/09/09 CBI (G) Additive, open, non-dispersive (G) Polyethylene glycol dicarylate, use modified P–09–0628 09/14/09 12/12/09 CBI (G) Crosslinking, coupling agent (G) 1-substituted propane, 3- (triethoxysilyl)-, reaction products with polyethylene glycol mono- branched tridecyl) ether P–09–0629 09/14/09 12/12/09 Santolubes LLC (S) This substance will be a raw ma- (S) Bis(para-phenoxyphenyl)ether terial for a flame retardant product used in the plastics P–09–0630 09/14/09 12/12/09 3M (G) Surface treatment (G) Silane derivative P–09–0631 09/14/09 12/12/09 CBI (S) Flame retardant for molded elec- (G) Bromodiohenylethane trical devices P–09–0632 09/15/09 12/13/09 FRX Polymers, Inc. (G) FRX 100 is a non-halogenated (G) Polyphosphonate polyphosphonate flame retardant polymer that addresses the need to replace the current commercial bro- mine-containing flame retardants that are being phased out due to environmental regulation. Flame retardants are required to meet fire safety standards in order to reduce flammability of combustible mate- rials. P–09–0633 09/15/09 12/13/09 Forbo Adhesives, LLC (G) Hot melt adhesive (G) Isocyanate functional polyester urethane polymer P–09–0634 09/16/09 12/14/09 Fujifilm Hunt Chemi- (S) Raw material (reactant) for pro- (S) Phenol, 4-(1,1-dimethylethyl)-2- cals USA duction of intermediate for a photo- nitro-* graphic chemical P–09–0635 09/17/09 12/15/09 Umicore Precious Met- (G) Catalyst electronics application (S) Platinum (2+), tetraammine-, (SP- als NJ, LLC 4-1)-, acetate (1:2) P–09–0636 09/18/09 12/16/09 Fujifilm Hunt Chemi- (S) Isolation of intermediate in the (S) Benzenamine, 5-(1,1- cals U.S.A., Inc. production of substance P–03–840 dimethylethyl)-2-[(2-ethylhexyl)thio]- , 4-methylbenzenesulfonate (1:1) P–09–0637 09/21/09 12/19/09 H.B. Fuller (G) Industrial adhesive (G) Polyester isocyanate polymer P–09–0638 09/23/09 12/21/09 CBI (G) Open, non-dispersive (G) Polymer of glycidyl and anhydride esters P–09–0639 09/21/09 12/19/09 CBI (G) Dispersion additive for printing ink (G) Alkyl substituted azo metal salt P–09–0640 09/23/09 12/21/09 CBI (G) Colorant for coatings (G) Substituted 29H, 31H- phthalocyaninato metal complex P–09–0641 09/23/09 12/21/09 CBI (G) Intermediate for manufacture of (G) Substituted 29H, 31H- colorant phthalocyaninato metal complex P–09–0642 09/22/09 12/20/09 CBI (G) Chemical intermediate (G) Acrylate P–09–0643 09/22/09 12/20/09 CBI (G) Chemical intermediate (G) Acrylate P–09–0644 09/25/09 12/23/09 CBI (G) Hard surface protector; open, (G) Substituted alkyl phosphate ester non-dispersive use. P–09–0645 09/25/09 12/23/09 CBI (G) Hard surface protector; open, (G) Substituted alkyl phosphate non-dispsersive use. ester,, ammonium salt P–09–0646 09/28/09 12/26/09 CBI (G) Urethane component (G) Aromatic dicarboxylic acid, poly- mer with aliphatic diols and ali- phatic dicarboxylic acid

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I. 52 PREMANUFACTURE NOTICES RECEIVED FROM: 09/7/09 TO 10/23/09—Continued

Projected Case No. Received Notice Manufacturer/Importer Use Chemical Date End Date

P–09–0647 09/28/09 12/26/09 CBI (S) Intermediate for polyurethane (G) Fatty acids, C18-unsaturated, manufacture dimers, polymers with glycidyl alkanoate, 4-oxopentanoic acid and trimethylolpropane P–09–0648 09/28/09 12/26/09 CBI (S) Binder for lacquers and coatings, (G) Dimer fatty acid based polyester mainly for wood and concrete polyether polyurethane P–09–0649 09/25/09 12/23/09 CBI (G) Lubricant additive (G) 2,5-furandione, polymer with alkene, alkyl ester, substituted imid- azoline amide P–09–0650 09/28/09 12/26/09 CBI (S) Binder for wood floor lacquers (G) Dimer fatty acid based polyester polyurethane P–09–0651 09/29/09 12/27/09 CBI (G) Automated dish washing, hard (G) Polymer of acrylamido alkyl pro- surface cleaning applications pane sulfonic acid sodium salt and vinylic copolymer P–09–0652 09/29/09 12/27/09 CBI (G) Intermediate for paint or cleaner (G) Alkyl alkanol amine additive for non-dispersive use P–09–0653 09/30/09 12/28/09 CBI (G) Intermediate (G) Alkyl-dihydro-dialkyl-benzoxazine P–10–0001 10/01/09 12/29/09 Shin-ETSU Silicones (G) This material is used as reforming (G) Modified siloxane of America, Inc. agent of the polycarbonate resin P–10–0002 10/06/09 01/03/10 Fbsciences, Inc. (S) Active ingredient for plant nutrient (S) Definition: Active ingredient for enhancement; active ingredient plant nutrient enhancement; Active plant growth regulator ingredient plant growth regulator. Soil organic mattter, alkaline extract P–10–0003 10/06/09 01/03/10 CBI (G) Intermediate in the production of (G) Alkyl thiol, manufacture of by- a commercial product products from distant lights P–10–0004 10/06/09 01/03/10 CBI (G) Intermediate in the production of (G) Alkyl thiol, manufacturer of by- a commercial product products from distant residues P–10–0005 10/07/09 01/04/10 Southwest Nanotech- (S) Conductive coating using SWNT (S) Single-wall carbon nanotube nologies, Inc. dispersion or SWNT ink; additive (SWNT powder) in resins/thermo- plastics/elastomers for mechanical reinforcement; manufacture of sheet composites (buckypaper) using SWNT (no process informa- tion is available) P–10–0006 10/08/09 01/05/10 CBI (S) Base resin for ultraviolet light and (G) Aliphatic alcohol, polymer with electron beam curable formulation 1,3-diisocyanatomethylbenzene and .alpha.-hydro-.omega.-hydroxypoly (oxy-1,4-butanediyl), 2- hydroxypropyl methacrylate-blocked P–10–0007 10/08/09 01/05/10 CBI (G) Manufacturing intermediate (G) Distillates (petroleum), light ther- mal cracked, reaction products with phenol, carboxylated, metal salts P–10–0008 10/08/09 01/05/10 CBI (G) Lubricant additive (G) Distillates (petroleum), light ther- mal cracked, reaction products with phenol, carboxylated, metal salts P–10–0009 10/08/09 01/05/10 CBI (S) Reactive expoxide for use in pro- (G) Diglycidylaniline ducing reinforced composites (open/non-dispersive use) P–10–0010 10/01/09 12/29/09 CBI (G) Component in inks (G) Fatty acid, polymer with alkenyl alcohol, alkenedioic acid, rosin, vinyl monomer and phosphate, compound with alkanolamine P–10–0011 10/01/09 12/29/09 CBI (G) Component in pigment disper- (G) Amines, fatty alkyl, alkyoxylated, sions compounds with acrylates, vinyl monomers polymer with alkanolamine P–10–0012 10/14/09 01/11/10 CBI (G) Component in a polyurethane ad- (G) Polycarbonate polyurethane hesive/sealant prepolymer P–10–0013 10/14/09 01/11/10 CBI (G) Highly dispersive use (G) Manganese sulfonate derivative P–10–0014 10/09/09 01/06/10 CBI (G) Colorant raw material (G) Quino[2,3-b]acridine-7, 14-dione, 2,9-dichloro-5, 12-dihydro[4-[[2- (sulfooxy)ethyl]substituted]phenyl]- ,sodium salt (1:1) P–10–0015 10/15/09 01/12/10 CBI (G) Fuel additive (G) Anthraquinonedicarboximide, diamino-N-alkyl- P–10–0016 10/19/09 01/16/10 Heucotech LTD./ (S) Organic corrosion inhibitor/paint (S) 1,2-benzenedicarboxylic acid, zinc heubach additive salt (1:1)

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I. 52 PREMANUFACTURE NOTICES RECEIVED FROM: 09/7/09 TO 10/23/09—Continued

Projected Case No. Received Notice Manufacturer/Importer Use Chemical Date End Date

P–10–0017 10/20/09 01/17/10 CBC (America) Cor- (G) Sealant application (S) Phenol, 4,4′-(1- poration methylethylidene)bis-, polymer with 2-(chloromethyl)oxirane, hydro- genated P–10–0018 10/20/09 01/17/10 CBI (G) Intermediate used on site for (G) Fatty acid ethoxylate manufacture of odor neutralizer, contained use; odor reducing agent for use in consumer and commer- cial products P–10–0019 10/20/09 01/17/10 CBI (G) Odor reducing agent for use in (G) Fatty acid ethoxylate consumer and commercial products P–10–0020 10/21/09 01/18/10 Essential Industries (S) Raw material for industrial coating (G) Aliphatic polyurethane dispersion P–10–0021 10/21/09 01/18/10 Forbo Adhesives, LLC (G) Hot melt adhesive (G) Isocyanate functional polyester urethane polymer

In Table II of this unit, EPA provides CBI) on the Notices of Commencement the following information (to the extent to manufacture received: that such information is not claimed as

II. 63 NOTICES OF COMMENCEMENT FROM: 09/7/09 TO 10/23/09

Commencement Case No. Received Date Notice End Date Chemical

P–00–0126 09/22/09 09/17/09 (S) L-aspartic acid, N,N′-1,2-ethanediylbis-, compound with 2-aminoethanol P–00–0152 09/22/09 09/17/08 (S) L-aspartic acid, N,N′-1,2-ethanediylbis- P–03–0265 10/14/09 09/16/04 (G) Polymer of diethylenetriamine with polyepoxy functional polymers P–03–0421 09/23/09 07/29/09 (S) 9-octadecenoic acid (9Z)-, bismuth(3+) salt P–03–0719 09/15/09 09/04/09 (G) Isocyanate functional polyester polyether urethane polymer P–04–0717 10/20/09 09/30/09 (G) Tetramethylammonium halo salt P–04–0878 09/28/09 06/13/05 (G) Hydroxyl-terminated; aliphatic polycarbonate P–06–0713 09/21/09 09/08/09 (S) D-glucopyranose, 6-O-(carboxymethyl)-, oligomeric, C10–16-alkyl glycosides, sodium salts P–07–0537 09/09/09 08/19/09 (G) Alkanenitrile, bis(cyanoalkyl)amino P–07–0652 09/23/09 09/11/09 (S) Soybean oil, reaction products with diethanolamine and ethaneperoxoic acid P–08–0152 10/19/09 09/13/09 (G) Glycol modified pen (polyethylene naphthalate) polyester P–08–0287 09/28/09 05/20/09 (G) Hydrocarbylpolysilicate P–08–0453 10/16/09 10/07/09 (G) Cationic polyether P–08–0530 10/20/09 09/25/09 (G) Silicic acid ester polymer P–08–0531 10/20/09 09/25/09 (G) Silicic acid ester polymer P–08–0532 10/20/09 09/25/09 (G) Silicic acid ester polymer P–08–0533 10/20/09 09/25/09 (G) Silicic acid ester polymer P–08–0534 10/20/09 09/25/09 (G) Silicic acid ester polymer P–08–0535 10/20/09 09/25/09 (G) Silicic acid ester polymer P–08–0623 09/30/09 09/28/09 (S) 1,1-biphenyl, 3,3′,4,4′-tetramethyl P–08–0686 10/08/09 07/24/09 (G) Polyurethane prepolymer for coatings P–08–0697 10/20/09 10/06/09 (S) 2,5-furandione, telomer wth ethenylbenzene and (1-methylethyl)benzene, 2- phenylhydrazides P–09–0001 09/18/09 09/07/09 (G) Hexanedioic acid, polymer with oxybis (propanol) and alkylpolyol P–09–0026 10/19/09 10/08/09 (G) 2-(dimethylamino)ethyl methyl-2-propenoate, polymer with alkyl-substituted 2-methyl-2-propenoate and arylsubstituted methyl-2-propanoate, P–09–0038 10/08/09 07/24/09 (G) Reaction product of aldehyde and cyclic amine P–09–0077 09/22/09 08/20/09 (G) Alkylaminoalcohol P–09–0078 09/22/09 08/24/09 (G) Alkylaminoalcohol P–09–0085 10/14/09 09/24/09 (G) 1,3-propane diaminium-2-substituted,-hexaalkyl-,di halide P–09–0145 09/08/09 08/18/09 (S) 2-propenoic acid, 2-methyl-, 1,1′-[(3-heptyl-4-pentyl-1,2-cyclohexanediyl)bis (9,1-nonanediyliminocarbonyloxy-2,1-ethanediyl)] ester P–09–0145 09/08/09 08/18/09 (S) 2-propenoic acid, 2-methyl-, 2-[[[[9-[3(or 6)-heptyl-2-[9-[[(2oxiranyl methoxy)carbonyl]amino]nonyl]pentylcyclohexyl]nonyl]amino]carbonyl] oxy]ethyl ester P–09–0145 09/08/09 08/18/09 (S) Carbamic acid, N,N′-[(3-heptyl-4-pentyl-1,2-cyclohexanediyl)di-9,1- nonanediyl]bis-, C,C′-bis(2-oxiranylmethyl) ester P–09–0150 09/09/09 08/28/09 (S) Siloxanes and silicones, di-me, 3-(2-hydroxyphenyl)propyl group-terminated, polymers with bisphenol A diglycidly ether P–09–0158 10/14/09 09/25/09 (G) Substituted carbomoncyles, polymer with alkanediols P–09–0176 09/22/09 09/17/09 (G) Fluorinated copolymer P–09–0208 09/15/09 08/21/09 (G) Mixture on N-methylated polyalkylenepolyamine P–09–0216 10/08/09 09/20/09 (S) 1,3-dioxolan-2-one, 4-fluoro-

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II. 63 NOTICES OF COMMENCEMENT FROM: 09/7/09 TO 10/23/09—Continued

Commencement Case No. Received Date Notice End Date Chemical

P–09–0217 09/17/09 09/09/09 (G) Fatty acid ester P–09–0222 10/02/09 09/18/09 (G) Isocyanate terminated urethane polymer P–09–0223 10/02/09 09/18/09 (G) Isocyanate terminated urethane polymer P–09–0225 10/02/09 09/21/09 (G) Isocyanate terminated urethane polymer P–09–0226 10/02/09 09/21/09 (G) Isocyanate terminated urethane polymer P–09–0227 10/02/09 09/22/09 (G) Isocyanate terminated urethane polymer P–09–0230 10/07/09 08/08/09 (G) Rosin phenolies P–09–0287 10/20/09 09/22/09 (G) Acrylic acid, alkyl ester, polymer with ethylene and vinyl carboxylate P–09–0291 10/07/09 09/21/09 (G) Ammonium salt of fluoropropanoic acid P–09–0338 09/18/09 08/25/09 (G) Acrylic co-polymer P–09–0339 09/30/09 09/08/09 (G) Chlorinated rubber P–09–0368 09/29/09 09/14/09 (G) Fluorochemical acrylate P–09–0385 10/05/09 09/30/09 (S) Benzenepropanol, B-methyl- P–09–0389 09/21/09 09/14/09 (S) Phenol, 4,4′-[(1,1,3,3-tetramethyl-1,3-disiloxanediyl)di-2,1-ethanediyl]bis-, 1,1′-diacetate P–09–0401 09/17/09 09/09/09 (G) Hexanedioic acid, polymer with 1,2-ethanediol and 5-isocyanato-1- (isocyanatomethyl)-1,3,3-trimethylcyclohexane, vinyl functionality blocked P–09–0411 10/05/09 09/18/09 (S) 2-propenoic acid, 3-(5,5,6-trimethylbicyclo[2.2.1]hept-2-yl)cyclohexyl P–09–0419 10/01/09 09/10/09 (G) Modified styrene maleic anhydride polymer P–09–0424 09/30/09 09/23/09 (S) Siloxanes and silicones, di-me, bu group- and 3-[2-(3-carboxymethylene-1- oxopropoxy)ethoxy]propyl group-terminated P–09–0425 09/28/09 09/18/09 (S) 2-propenoic acid, 2-methyl-, polymer with 2-propenamide and 2- propenenitrile P–09–0436 10/02/09 09/24/09 (G) 2-propenoic acid, 2-methyl-, C12–15-branched and linear alkyl esters, telomers with alkyl 2-[[(alkylthio)thioxomethyl]thio]-2-alkanoate, aminoalkyl methacrylate and alkyl methacrylate, tert-bu 2-ethylhexanoperoxoate-initiated P–09–0441 10/09/09 09/24/09 (G) Blocked polyurethane prepolymer P–09–0442 10/16/09 10/08/09 (G) Organomodified silanic hydrogen fluid P–09–0443 10/16/09 10/08/09 (G) Modified silicone polyether copolymer P–09–0452 10/20/09 10/10/09 (S) 13-decosen-1-amine, N, N-dimethyl-(13Z)- P–09–0494 10/20/09 10/07/09 (G) Isocyanate polymer, amine blocked P–09–0496 10/20/09 10/07/09 (G) Isocyanate polymer, amine blocked

List of Subjects statements (EISs) was published in FR Final EISs dated July 17, 2009 (74 FR 34754). Environmental protection, Chemicals, EIS No. 20090322, ERP No. F–AFS– Premanufacturer notices. Draft EISs L65558–ID, Salmon-Challis National Dated: November 3, 2009. EIS No. 20090294, ERP No. D–AFS– Forest (SCNF), Proposes Travel Chandler Sirmons, L65579–OR, Off-Highway Vehicle Planning and OHV Route Designation, Acting Director, Information Management (OHV) Management Plan, Including Lemhi, Custer and Butte Counties, ID. Division, Office of Pollution Prevention and Forest Plan Amendment #17, Toxics. Summary: While EPA has no Designation of Roads, Trails and Areas objection with the proposed action, we [FR Doc. E9–27168 Filed 11–10–09; 8:45 am] for OHV Use on Mt. Hood National asked that the Forest Service further BILLING CODE 6560–50–S Forest, Implementation, Clackamas, integrate water quality considerations Hood River, Multnomah, and Wasco into future travel management planning. Counties, OR. EIS No. 20090338, ERP No. F–AFS– ENVIRONMENTAL PROTECTION Summary: EPA expressed L65574–OR, Big Summit Allotment AGENCY environmental concerns about impacts Management Plan, Proposes to [ER–FRL–8599–3] to water quality from sedimentation and the potential spread of invasive plants, Reauthorize Cattle Term Grazing Environmental Impact Statements and and recommended the elimination of Permits, Construct Range Regulations; Availability of EPA Off-Highway Vehicle routes with Improvements, and Restore Riparian Comments resource concerns. Rating EC2. Vegetation on Five Allotments, Lookout EIS No. 20090314, ERP No. D–FHW– Mountain Ranger District, Ochoco Availability of EPA comments National Forest, Crook County, OR. prepared pursuant to the Environmental F40450–IL, TIER 1—Elgin O’Hare—West Review Process (ERP), under section Bypass Study, To Identify Multimodal Summary: EPA does not object to the 309 of the Clean Air Act and Section Transportation Solutions, Cook and proposed action. 102(2)© of the National Environmental DuPage Counties, IL. Dated: November 9, 2009. Summary: While EPA has no Policy Act as amended. Requests for Robert W. Hargrove, copies of EPA comments can be directed objections to this project, we asked to the Office of Federal Activities at conceptual mitigation for wetland losses Director, NEPA Compliance Division, Office of Federal Activities. 202–564–7146 or http://www.epa.gov/ be included in the Final EIS, and that compliance/nepa/. detailed mitigation measures for [FR Doc. E9–27311 Filed 11–10–09; 8:45 am] An explanation of the ratings assigned wetlands, air quality and stormwater be BILLING CODE 6560–50–P to draft environmental impact developed in Tier 2. Rating LO.

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ENVIRONMENTAL PROTECTION substances under the Federal Food, Dated: November 3, 2009. AGENCY Drug and Cosmetics Act (FFDCA), or the William R. Diamond, Federal Insecticide, Fungicide, and Director, Field and External Affairs Division, [EPA–HQ–OPP–2009–0008; FRL–8798–8] Rodenticide Act (FIFRA). Office of Pesticide Programs. SFIREG Full Committee; Notice of B. How Can I Get Copies of this [FR Doc. E9–27306 Filed 11–10–08; 8:45 am] Public Meeting Document and Other Related BILLING CODE 6560–50–S AGENCY: Environmental Protection Information? Agency (EPA). 1. Docket. EPA has established a ENVIRONMENTAL PROTECTION ACTION: Notice. docket for this action under docket ID AGENCY number EPA–HQ–OPP–2008–0143. SUMMARY: The Association of American [FRL–8980–2] Publicly available docket materials are Pesticide Control Officials (AAPCO)/ available either in the electronic docket State FIFRA Issues Research and Science Advisory Board Staff Office; at http://www.regulations.gov, or, if only Evaluation Group (SFIREG) Full Notification of a Public Teleconference available in hard copy, at the Office of Committee will hold a 2–day meeting, of the Science Advisory Board Risk Pesticide Programs (OPP) Regulatory beginning on December 7, 2009, and and Technology Review Methods Public Docket in Rm. S–4400, One ending December 8, 2009. This notice Review Panel Potomac Yard (South Bldg.), 2777 S. announces the location and times for Crystal Dr., Arlington, VA. The hours of AGENCY: Environmental Protection the meeting and sets forth the tentative operation of this Docket Facility are Agency (EPA). agenda topics. from 8:30 a.m. to 4 p.m., Monday ACTION: Notice. DATES: The meeting will be held on through Friday, excluding legal Monday, December 7, 2009 from 8:30 holidays. The Docket Facility telephone SUMMARY: The Environmental Protection a.m. to 5 p.m., and 8:30 a.m to 12 noon number is (703) 305–5805. Agency (EPA or Agency) Science on Tuesday, December 8, 2009. Advisory Board (SAB) Staff Office To request accommodation of a 2. Electronic access. You may access announces a public teleconference of disability, please contact the person this Federal Register document the Risk and Technology Review (RTR) listed under FOR FURTHER INFORMATON electronically through the EPA Internet Methods Review Panel to discuss its CONTACT, preferably at least 10 days under the ‘‘Federal Register’’ listings at draft advisory report. http://www.epa.gov/fedrgstr. prior to the meeting, to give EPA as DATES: The public teleconference will much time as possible to process your II. Background be held on December 3, 2009 from 12:30 request. p.m. to 3:30 p.m. (Eastern Time). Topics may include but are not ADDRESSES: The meeting will be held at ADDRESSES: The public teleconference limited to: EPA. One Potomac Yard (South Bldg.) will be conducted by telephone only. 2777 Crystal Dr., Arlington VA. 1st 1. Regional Reports. FOR FURTHER INFORMATION CONTACT: Floor South Conference Room. 2. EPA Policy which Reduces Members of the public who wish to FOR FURTHER INFORMATION CONTACT: Ron Pesticide Pollution and Waste – torn obtain the call-in number and access Kendall, Field and External Affairs bags, leaking containers. code to participate in the teleconference Division (7506P), Office of Pesticide 3. POM/EQI WC Reports. may contact Dr. Sue Shallal, Designated Programs, Environmental Protection 4. NPDES Permits. Federal Officer (DFO), EPA Science Agency, 1200 Pennsylvania Ave., NW., Advisory Board (1400F), U.S. 5. OPP Incident Workgroup Progress Washington, DC 20460–0001; telephone Environmental Protection Agency, 1200 Report. number: (703) 305–5561 fax number: Pennsylvania Avenue, NW., (703) 308–1850; e-mail address: 6. Bed Bug Forum - Follow-up - Washington, DC 20460; telephone/voice [email protected]. or Grier Stayton, Section 18, Section 3 labels. mail: (202) 343–9977; fax (202) 233– SFIREG Executive Secretary, P.O. Box 7. OECA/OPP Updates. 0643; or via e-mail at: 466, Milford DE 19963; telephone 8. WDL Survey Results. [email protected]. General number (302) 422–8152; fax (302) 422– 9. Issue Papers Discussion. information about the EPA SAB, as well 2435; e-mail address: grierstaytonaapco- as any updates concerning the [email protected]. 10. Drift Labeling. teleconference announced in this notice, SUPPLEMENTARY INFORMATION: 11. Label Format Issue Paper. may be found on the SAB Web site at I. General Information 12. Container/Containment - http://www.epa.gov/sab . Container Issues DOT. SUPPLEMENTARY INFORMATION: Pursuant A. Does this Action Apply to Me? 13. AAPSE Report. to the Federal Advisory Committee Act, You may be potentially affected by 14. TPPC Report. 5 U.S.C., App. 2 (FACA), notice is this action if you are interested in hereby given that the SAB RTR Methods 15. Funding Issues Discussion setting SFIREG information exchange Review Panel will hold a public priorities. relationship with EPA regarding teleconference to discuss its draft important issues related to human 16. DFE Labels. advisory report. The SAB was health, environmental exposure to III. How Can I Request to Participate in established pursuant to 42 U.S.C. 4365 pesticides, and insight into EPA’s this Meeting? to provide independent scientific and decision-making process. You are technical advice to the Administrator on invited and encouraged to attend the This meeting is open for the public to the technical basis for Agency positions meetings and participate as appropriate. attend. You may attend the meeting and regulations. The SAB is a Federal Potentially affected entities may without further notification. Advisory Committee chartered under include, but are not limited to: List of Subjects FACA. The SAB will comply with the Those persons who are or may be provisions of FACA and all appropriate required to conduct testing of chemical Environmental protection. SAB Staff Office procedural policies.

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Background: EPA’s Office of Air files in IBM–PC/Windows 98/2000/XP Environmental Protection Agency, 1200 Quality Planning and Standards format). Submitters are requested to Pennsylvania Ave., NW., Washington, (OAQPS) requested that the Science provide two versions of each document DC 20460–0001. Advisory Board (SAB) review their draft submitted with and without signatures, • Delivery: OPP Regulatory Public methodologies for conducting Risk and because the SAB Staff Office does not Docket (7502P), Environmental Technology Review assessments (RTR publish documents with signatures on Protection Agency, Rm. S–4400, One assessments) as required by the Clean its Web sites. Potomac Yard (South Bldg.), 2777 S. Air Act. These assessments evaluate the Accessibility: For information on Crystal Dr., Arlington, VA. Deliveries effects of industrial emissions of access or services for individuals with are only accepted during the Docket hazardous air pollutants (HAPs) on disabilities, please contact Dr. Shallal at Facility’s normal hours of operation public health and the environment. The the phone number or e-mail address (8:30 a.m. to 4 p.m., Monday through proposed methodologies are noted above, preferably at least ten days Friday, excluding legal holidays). demonstrated through the use of two prior to the meeting to give EPA as Special arrangements should be made case studies, (1) petroleum refineries much time as possible to process your for deliveries of boxed information. The and (2) Portland cement manufacturing request. Docket Facility telephone number is facilities. The SAB RTR Methods Dated: November 4, 2009. (703) 305–5805. Review Panel held a meeting on July Vanessa T. Vu, FOR FURTHER INFORMATION CONTACT: 28–29, 2009 to review the EPA Mary L. Waller, Registration Division methodology and assessment document. Director, EPA Science Advisory Board Staff Office. (7505P), Office of Pesticide Programs, A Federal Register notice dated June 10, [FR Doc. E9–27169 Filed 11–10–09; 8:45 am] Environmental Protection Agency, 1200 2009 (74 FR 27538) announced the Pennsylvania Ave., NW., Washington, BILLING CODE 6560–50–P meeting and provided background DC 20460–0001; telephone number: information on this advisory activity. (703) 308–9354; e-mail address: Information on the process of forming ENVIRONMENTAL PROTECTION [email protected]. the RTR Methods Review Panel was provided in a Federal Register notice AGENCY SUPPLEMENTARY INFORMATION: dated January 31, 2008 (73 FR 5836– [EPA–HQ–OPP–2007-0536; FRL–8798–2] I. General Information 5838). The purpose of this upcoming teleconference is for the Panel to discuss Notice of Receipt of Requests for A. Does this Action Apply to Me? its draft advisory report. Additional Amendments to Delete Uses in Certain This action is directed to the public information about this advisory activity Pesticide Registrations in general. Although this action may be can be found on the SAB Web site at of particular interest to persons who AGENCY: Environmental Protection http://www.epa.gov/sab. Agency (EPA). produce or use pesticides, the Agency Availability of Meeting Materials: The has not attempted to describe all the ACTION: teleconference agenda and other Notice. specific entities that may be affected by materials including the SAB SUMMARY: In accordance with section this action. If you have any questions Committee’s draft report will be placed 6(f)(1) of the Federal Insecticide, regarding the information in this notice, on the SAB Web site at http:// Fungicide, and Rodenticide Act consult the person listed under FOR www.epa.gov/sab in advance of the (FIFRA), as amended, EPA is issuing a FURTHER INFORMATION CONTACT. teleconference. notice of receipt of request for B. How Can I Get Copies of this Procedures for Providing Public Input: amendments by registrants to delete Interested members of the public may Document and Other Related uses in certain pesticide registrations. Information? submit relevant written or oral Section 6(f)(1) of FIFRA provides that a information for the SAB Panel to registrant of a pesticide product may at 1. Docket. EPA has established a consider during the advisory process. any time request that any of its pesticide docket for this action under docket ID Oral Statements: In general, individuals registrations be amended to delete one number EPA–HQ–OPP–2007–0536. or groups requesting an oral or more uses. FIFRA further provides Publicly available docket materials are presentation at a public teleconference that, before acting on the request, EPA available either in the electronic docket will be limited to three minutes per must publish a notice of receipt of any at http://www.regulations.gov, or, if only speaker, with no more than a total of 30 request in the Federal Register. available in hard copy, at the Office of minutes for all speakers. Interested Pesticide Programs (OPP) Regulatory DATES: The deletions are effective parties should contact Dr. Shallal, DFO, Public Docket in Rm. S–4400, One December 14, 2009. The Agency will in writing (preferably via e-mail) at the Potomac Yard (South Bldg.), 2777 S. consider a withdrawal request contact information noted above, by Crystal Dr., Arlington, VA. The hours of postmarked no later than December 14, November 24, 2009 to be placed on the operation of this Docket Facility are 2009. Comments must be received on or list of public speakers for the from 8:30 a.m. to 4 p.m., Monday before December 14, 2009. teleconference. Written Statements: through Friday, excluding legal Users of these products who desire Written statements should be received holidays. The Docket Facility telephone continued use on crops or sites being in the SAB Staff Office no later than number is (703) 305–5805. November 30, 2009 so that the deleted should contact the applicable 2. Electronic access. You may access information may be made available to registrant on or before December 14, this Federal Register document the SAB Panel members for their 2009. electronically through the EPA Internet consideration. Written statements ADDRESSES: Submit your withdrawal under the ‘‘Federal Register’’ listings at should be supplied to the DFO in the request, identified by docket http://www.epa.gov/fedrgstr. following formats: One hard copy with identification (ID) number EPA–HQ– original signature, and one electronic OPP–2007–0536, by one of the II. What Action is the Agency Taking? copy via e-mail (acceptable file format: following methods: This notice announces receipt by the Adobe Acrobat PDF, WordPerfect, MS •Mail: Office of Pesticide Programs Agency of applications from registrants Word, MS PowerPoint, or Rich Text (OPP) Regulatory Public Docket (7502P), to delete uses in certain pesticide

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registrations. These registrations are active ingredient, and specific uses listed in Table 1 of this unit by deleted: registration number, product name,

TABLE 1.—REQUESTS FOR AMENDMENTS TO DELETE USES IN CERTAIN PESTICIDE REGISTRATIONS

EPA Registra- tion No. Product Name Active Ingredient Delete from Label

10163–274 Rubigan AS Turf and Ornamental Fenarimol All turf uses except golf course tees, greens, and fairways and turf in profes- sional athletic stadia

10163–276 Rubigan Technical Fenarimol All turf uses except golf course tees, greens, and fairways and turf in profes- sional athletic stadia

10163–290 Riverdale Patchwork Fenarimol All turf uses except golf course tees, greens, and fairways and turf in profes- sional athletic stadia

10163–302 Fenarimol Technical Fenarimol All turf uses except golf course tees, greens, and fairways and turf in profes- sional athletic stadia

Users of these products who desire for amendment. This 30–day period will Table 2 of this unit includes the continued use on crops or sites being also permit interested members of the names and addresses of record for all deleted should contact the applicable public to intercede with registrants prior registrants of the products listed in registrant before December 14, 2009 to to the Agency’s approval of the deletion. Table 1 of this unit, in sequence by EPA discuss withdrawal of the application company number.

TABLE 2.—REGISTRANTS REQUESTING AMENDMENTS TO DELETE USES IN CERTAIN PESTICIDE REGISTRATIONS

EPA Company Number Company Name and Address

10163 Gowan Company, P.O. Box 5569, Yuma, AZ 85366-5569

III. What is the Agency’s Authority for have been imposed, as in special review CL145A (ATCC #55799) to treat dams, Taking this Action? actions. water distribution (e.g., canals, pipes and plumbing), water treatment, water Section 6(f)(1) of FIFRA provides that List of Subjects pumping facilities, irrigation and power a registrant of a pesticide product may generation facilities infested with at any time request that any of its Environmental protection, Pesticides invasive quagga and zebra mussels and pesticide registrations be amended to and pests. associated reservoirs, water holding delete one or more uses. The FIFRA Dated: October 29, 2009. marinas and watercraft, recreational further provides that, before acting on G. Jeffrey Herndon, facilities (e.g., beaches, boat launches), the request, EPA must publish a notice Acting Director, Registration Division, Office fish hatcheries and fish protection of receipt of any such request in the of Pesticide Programs. facilities (e.g., fish ladders and screens). Federal Register. Thereafter, the [FR Doc. E9–26926 Filed 11–10–09; 8:45 am] The applicant proposes the use of a new Administrator may approve such a chemical which has not been registered request. BILLING CODE 6560–50–S by the EPA. EPA is soliciting public IV. Procedures for Withdrawal of comment before making the decision Request ENVIRONMENTAL PROTECTION whether or not to grant the exemption. AGENCY Registrants who choose to withdraw a DATES: Comments must be received on request for use deletion must submit the [EPA–HQ–OPP–2009–0803; FRL–8796–5] or before November 27, 2009. withdrawal in writing to Mary L. Waller ADDRESSES: Submit your comments, using the methods in ADDRESSES Pseudomonas Fluorescens; Receipt of . The identified by docket identification (ID) Agency will consider written Application for Emergency Exemption, Solicitation of Public Comment number EPA–HQ–OPP–2009–0803, by withdrawal requests postmarked no one of the following methods: later than December 14, 2009. AGENCY: Environmental Protection • Federal eRulemaking Portal: http:// Agency (EPA). V. Provisions for Disposition of Existing www.regulations.gov. Follow the on-line Stocks ACTION: Notice. instructions for submitting comments. The Agency has authorized the SUMMARY: EPA has received a • Mail: Office of Pesticide Programs registrants to sell or distribute product quarantine exemption request from the (OPP) Regulatory Public Docket (7502P), under the previously approved labeling United States Department of Interior’s Environmental Protection Agency, 1200 for a period of 18 months after approval Bureau of Reclamation to use the Pennsylvania Ave., NW., Washington, of the revision, unless other restrictions pesticide Pseudomonas fluorescens DC 20460–0001.

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• Delivery: OPP Regulatory Public 2777 S. Crystal Dr., Arlington, VA. The accordance with procedures set forth in Docket (7502P), Environmental hours of operation of this Docket 40 CFR part 2. Protection Agency, Rm. S–4400, One Facility are from 8:30 a.m. to 4 p.m., 2. Tips for preparing your comments. Potomac Yard (South Bldg.), 2777 S. Monday through Friday, excluding legal When submitting comments, remember Crystal Dr., Arlington, VA. Deliveries holidays. The Docket Facility telephone to: are only accepted during the Docket number is (703) 305–5805. i. Identify the document by docket ID Facility’s normal hours of operation FOR FURTHER INFORMATION CONTACT: number and other identifying (8:30 a.m. to 4 p.m., Monday through Andrew Ertman, Registration Division information (subject heading, Federal Friday, excluding legal holidays). (7505P), Office of Pesticide Programs, Register date and page number). Special arrangements should be made Environmental Protection Agency, 1200 ii. Follow directions. The Agency may for deliveries of boxed information. The Pennsylvania Ave., NW., Washington, ask you to respond to specific questions Docket Facility telephone number is DC 20460–0001; telephone number: or organize comments by referencing a (703) 305–5805. (703) 308–9367; fax number: (703) 605– Code of Federal Regulations (CFR) part Instructions: Direct your comments to 0781; e-mail address: or section number. docket ID number EPA–HQ–OPP–2009– [email protected]. iii. Explain why you agree or disagree; 0803. EPA’s policy is that all comments suggest alternatives and substitute received will be included in the docket SUPPLEMENTARY INFORMATION: language for your requested changes. without change and may be made I. General Information iv. Describe any assumptions and available on-line at http:// provide any technical information and/ www.regulations.gov, including any A. Does this Action Apply to Me? or data that you used. personal information provided, unless You may be potentially affected by v. If you estimate potential costs or the comment includes information this action if you are an agricultural burdens, explain how you arrived at claimed to be Confidential Business producer, food manufacturer, or your estimate in sufficient detail to Information (CBI) or other information pesticide manufacturer. Potentially allow for it to be reproduced. whose disclosure is restricted by statute. affected entities may include, but are vi. Provide specific examples to Do not submit information that you not limited to: illustrate your concerns and suggest consider to be CBI or otherwise • Crop production (NAICS code 111). alternatives. protected through regulations.gov or e- • Animal production (NAICS code vii. Explain your views as clearly as mail. The regulations.gov website is an 112). possible, avoiding the use of profanity ‘‘anonymous access’’ system, which • Food manufacturing (NAICS code or personal threats. means EPA will not know your identity 311). viii. Make sure to submit your or contact information unless you • Pesticide manufacturing (NAICS comments by the comment period provide it in the body of your comment. code 32532). deadline identified. If you send an e-mail comment directly This listing is not intended to be 3. Environmental justice. EPA seeks to to EPA without going through exhaustive, but rather provides a guide achieve environmental justice, the fair regulations.gov, your e-mail address for readers regarding entities likely to be treatment and meaningful involvement will be automatically captured and affected by this action. Other types of of any group, including minority and/or included as part of the comment that is entities not listed in this unit could also low income populations, in the placed in the docket and made available be affected. The North American development, implementation, and on the Internet. If you submit an Industrial Classification System enforcement of environmental laws, electronic comment, EPA recommends (NAICS) codes have been provided to regulations, and policies. To help that you include your name and other assist you and others in determining address potential environmental justice contact information in the body of your whether this action might apply to issues, the Agency seeks information on comment and with any disk or CD-ROM certain entities. If you have any any groups or segments of the you submit. If EPA cannot read your questions regarding the applicability of population who, as a result of their comment due to technical difficulties this action to a particular entity, consult location, cultural practices, or other and cannot contact you for clarification, the person listed under FOR FURTHER factors, may have atypical or EPA may not be able to consider your INFORMATION CONTACT. disproportionately high and adverse human health impacts or environmental comment. Electronic files should avoid B. What Should I Consider as I Prepare effects from exposure to the pesticide the use of special characters, any form My Comments for EPA? of encryption, and be free of any defects discussed in this document, compared or viruses. 1. Submitting CBI. Do not submit this to the general population. Docket: All documents in the docket information to EPA through II. What Action is the Agency Taking? are listed in the docket index available www.regulations.gov or e-mail. Clearly at http://www.regulations.gov. Although mark the part or all of the information Under section 18 of the Federal listed in the index, some information is that you claim to be CBI. For CBI Insecticide, Fungicide, and Rodenticide not publicly available, e.g., CBI or other information in a disk or CD-ROM that Act (FIFRA) (7 U.S.C. 136p), at the information whose disclosure is you mail to EPA, mark the outside of the discretion of the Administrator, a restricted by statute. Certain other disk or CD-ROM as CBI and then Federal or State agency may be material, such as copyrighted material, identify electronically within the disk or exempted from any provision of FIFRA is not placed on the Internet and will be CD-ROM the specific information that is if the Administrator determines that publicly available only in hard copy claimed as CBI. In addition to one emergency conditions exist which form. Publicly available docket complete version of the comment that require the exemption. The United materials are available either in the includes information claimed as CBI, a States Department of Interior’s Bureau electronic docket at http:// copy of the comment that does not of Reclamation has requested the www.regulations.gov, or, if only contain the information claimed as CBI Administrator to issue a quarantine available in hard copy, at the OPP must be submitted for inclusion in the exemption for the use of Pseudomonas Regulatory Public Docket in Rm. S– public docket. Information so marked fluorescens CL145A to treat dams, water 4400, One Potomac Yard (South Bldg.), will not be disclosed except in distribution (e.g., canals, pipes and

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plumbing), water treatment, water hand flow measurements. Turbidity Agreement No.: 011426–046. pumping facilities, irrigation and power measurements before and after Title: West Coast of South America generation facilities infested with application can be used as a surrogate Discussion Agreement. invasive quagga and zebra mussels and to measure actual applied product. Parties: A.P. Moller-Maersk A/S; APL associated reservoirs, water holding Maximum Rate of Application: Up to Co. Pte Ltd.; Compania Chilena de marinas and watercraft, recreational 200 ppm for up to 24 hours per Navigacion Interoceanica, S.A.; facilities (e.g., beaches, boat launches), treatment. Compania Sud Americana de Vapores, fish hatcheries and fish protection Maximum Number of Applications: S.A.; Frontier Liner Services, Inc.; facilities (e.g., fish ladders and screens). Maximum of 12 applications of MOI 401 Hamburg-Su¨ d; King Ocean Services Information in accordance with 40 CFR end use product (84059-L) per site. Limited, Inc.; Mediterranean Shipping part 166 was submitted as part of this Maximum Amount of Pesticide to be Company, SA; Seaboard Marine Ltd.; request. Used: 60,000 kg active ingredient, South Pacific Shipping Company, Ltd.; As part of this request, the applicant which equals approximately 411,000 kg and Trinity Shipping Line. asserts that mussel infestations are of end use product. Filing Party: Wayne R. Rohde, Esq.; causing physical obstruction of flow in Maximum Volume to be Treated: Sher & Blackwell LLP; 1850 M Street, water conveyance systems, ranging from Based on the maximum amount of NW.; Suite 900; Washington, DC 20036. roughening to complete blockage. Intake pesticide to be used and the treatment Synopsis: The amendment removes structures such as pipes and screens are rate of 200 mg a.i./L, the maximum Maruba S.C.A. as a party to the becoming clogged, reducing delivery volume of water that will be treated will agreement. capacities, pumping capabilities, and be 1.67 acre-feet. Agreement No.: 012037–002. hydropower generation functions. Flow This notice does not constitute a Title: Maersk Line/CMA CGM TA3 obstruction from mussel settlement at decision by EPA on the application Space Charter Agreement. Reclamation facilities has caused a itself. The regulations governing section Parties: A.P. Moeller-Maersk A/S and significant increase in the frequency of 18 of FIFRA require publication of a CMA CGM S.A. high temperature alarms in cooling notice of receipt of an application for a Filing Party: Wayne R. Rohde, Esq.; systems, requiring shut-downs for quarantine exemption proposing use of Sher & Blackwell LLP; 1850 M Street, maintenance. It is often necessary to a new chemical (i.e., an active NW., Suite 900; Washington, DC 20036. replace plugged equipment to avoid ingredient) which has not been Synopsis: The amendment would lengthy interruptions in operations. registered by EPA. reduce the amount of space being Invasive mussels affect all submerged The notice provides an opportunity for chartered, extend the duration of the components, conduits and other public comment on the application. agreement, incorporate other structures such as trashracks, fish The Agency, will review and consider miscellaneous modifications, change the screens, raw water distribution systems all comments received during the name of the agreement, and restate the for turbine cooling, fire suppression comment period in determining agreement. systems, water intakes (service, whether to issue the quarantine Agreement No.: 201202–002. domestic, and irrigation), irrigation exemption requested by the United Title: Oakland MTO Agreement. canals, gauging stations, weirs, gates, States Department of Interior’s Bureau Parties: Eagle Marine Services, Ltd.; diffuser gratings, drains, and virtually of Reclamation. Ports America Outer Harbor Terminal, all types of instrumentation in contact LLC; Seaside Transportation Service with raw water. Chemical degradation List of Subjects LLC; SSA Terminals (Oakland), LLC; (corrosion) of infrastructure is also Environmental protection, Pesticides Total Terminals International, LLC; resulting from mussel fouling of and pests. Transbay Container Terminal, Inc.; and metallic structures and equipment. Trapac, Inc. These impacts are increasing both in Dated: October 29, 2009. Filing Party: Wayne R. Rohde, Esq.; degree and frequency. The ongoing G. Jeffrey Herndon, Sher & Blackwell LLP; 1850 M Street, proliferation and dispersion of mussel Acting Director, Registration Division, Office NW.; Suite 900; Washington, DC 20036. populations threatens to seriously of Pesticide Programs. Synopsis: The amendment would add impact Reclamation operations, [FR Doc. E9–26822 Filed 11–10–09; 8:45 am] SSA Terminals, LLC as a party to the resulting in the interruption of BILLING CODE 6560–50–S agreement. hydropower and water delivery at significant economic costs. Agreement No.: 201203–002. Method of Application: MOI 401 (the Title: Port of Oakland/Oakland FEDERAL MARITIME COMMISSION product containing Pseudomonas Marine Terminal Operator Agreement. Parties: Eagle Marine Services, Ltd.; fluorescens CL145A) will be applied Notice of Agreements Filed using standard aquatic pesticide Ports of America Outer Harbor application equipment and or similar The Commission hereby gives notice Terminal, LLC; Port of Oakland; Seaside equipment commonly used for chemical of the filing of the following agreements Transportation Service LLC; SSA injection in drinking water treatment. under the Shipping Act of 1984. Terminals (Oakland), LLC; Total This includes equipment such as Interested parties may submit comments Terminals International, LLC; Transbay sprayers, mixers, injection pumps and/ on the agreements to the Secretary, Container Terminal, Inc.; and Trapac, or weighted hoses. The material will be Federal Maritime Commission, Inc. contained and transported in totes or Washington, DC 20573, within ten days Filing Party: Wayne R. Rohde, Esq.; appropriate plastic chemical application of the date this notice appears in the Sher & Blackwell LLP; 1850 M Street, barrels. Application will be flow of Federal Register. Copies of the NW.; Suite 900; Washington, DC 20036. volume based. For enclosed and agreements are available through the Synopsis: The amendment would add confined systems (i.e. canals, irrigation, Commission’s Web site (http:// SSA Terminals, LLC as a party to the and pipes), treated water flow rates and www.fmc.gov) or by contacting the agreement. chemical injection pump flow rates can Office of Agreements at (202) 523–5793 By Order of the Federal Maritime be measured by using flow meters and or [email protected]. Commission.

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Dated: November 6, 2009. Ortiz via Federal Express courier service April 15, 2009, at 1. Third, Mr. Ortiz’s Karen V. Gregory, on July 31, 2009. Mr. Ortiz signed a purported work experience assisting Secretary. Federal Express receipt, evidencing his attorneys in criminal, contract, torts, [FR Doc. E9–27188 Filed 11–10–09; 8:45 am] receipt of the Commission’s Order. and Federal administrative law is not BILLING CODE 6730–01–P Notice of this proceeding also was sufficient to make him qualified to published in the Federal Register. 74 FR practice before the Commission. BOE 38627 (Aug. 4, 2009). Memorandum of Law at 3; Application FEDERAL MARITIME COMMISSION The Commission’s Order designated of Leonardo Ortiz at 2 (Questions 8 and Mr. Ortiz as a Respondent and directed 12b); Verified Statement of Karen V. [Docket No. 09–05] him to file affidavits of fact and a Gregory at ¶ 7; and Decision Letter of Application of Leonardo Ortiz for memorandum of law no later than April 15, 2009, at 2. Likewise, Admission To Practice Before the September 4, 2009. The Order possession of a U.S. Coast Guard Federal Maritime Commission designated the Commission’s Bureau of Merchant Marine Master license does Enforcement (BOE) as a party, and not establish the requisite basis to Served: November 5, 2009. required BOE to submit rebuttal conclude that Mr. Ortiz has shown the By The Commission: Richard A. Lidinsky, Jr., affidavits of fact and memoranda of law necessary ‘‘legal, technical or other Chairman, Joseph E. BRENNAN, and no later than October 5, 2009. qualifications to render valuable service Rebecca F. DYE, Commissioners. Thereafter, Mr. Ortiz was permitted to before the Commission and is otherwise file a reply brief no later than October Order Denying Application of Leonardo competent to advise and assist in the 20, 2009. Ortiz for Admission to Practice presentation of matters before the BOE timely submitted its Commission,’’ 46 CFR 502.27(a)(1). See By Order served July 30, 2009, the memorandum of law and factual case on also BOE Memorandum of Law at 1–2; Commission directed Respondent October 5, 2009. BOE’s case includes Decision Letter of April 15, 2009, at 1. Leonardo Ortiz to demonstrate that he is the verified statement of the Although Mr. Ortiz submitted several qualified to practice before the Commission’s Secretary, Karen V. recommendations with his application, Commission as a non-lawyer, pursuant Gregory, which describes the factual it was determined that these letters to 46 CFR 502.27 and 502.29. Despite background of the Secretary’s review of lacked sufficient information or support two opportunities to be heard, Mr. Ortiz the subject application, along with the as to his qualifications to be admitted to did not submit evidence or otherwise Secretary’s decision letter issued to Mr. practice before the Commission. BOE respond to the Commission’s Order. Ortiz on April 15, 2009. To date, Mr. Memorandum of Law at 1–2, and Accordingly, the Commission upholds Ortiz has not submitted evidence, any Decision Letter of April 15, 2009, at 2. the Secretary’s April 15, 2009 decision memoranda of law, or otherwise The Secretary determined that such letter to Mr. Ortiz, and denies Mr. Ortiz responded to the Commission’s Order. letters served only to provide evidence certification to practice before the Discussion of Mr. Ortiz’s good character. Id. Commission. Despite adequate notice of the issues The Secretary is authorized to in the Decision Letter and notice of the Background approve or deny an application to September 4, 2009 deadline by which Mr. Ortiz filed an Application for practice before the Commission. 46 CFR Mr. Ortiz should respond to the Order, Admission to Practice before the 501.24(a). If the Secretary denies an Mr. Ortiz never submitted evidence, Commission on December 31, 2007, application to practice before the memoranda of law or affidavits to showing that he is self-employed and Commission, written notice is given so contest the Secretary’s determinations. operating from his residence in that the applicant can request a hearing As the Commission explained in Anderson, SC. Following discussions before the Commission. 46 CFR 502.29. Revocation of License No. 016019N— among FMC staff and further At hearing, Mr. Ortiz has the burden of Central Agency of Florida Inc., 31 S.R.R. communications with Mr. Ortiz, the showing the applicant’s qualifications. 486 (FMC, 2008): ‘‘It is a familiar rule Secretary issued a decision letter on 46 CFR 502.155. of evidence that the party with control April 15, 2009, indicating the denial of BOE cites the Secretary’s decision of information relevant to a disputed Mr. Ortiz’s application to practice before letter as setting forth three major points issue may be assigned the burden to the Commission as a non-attorney. which justify denying Mr. Ortiz provide such information or suffer an Among issues cited in the Secretary’s admission to practice before the adverse inference for its failure to decision letter for the determination are Commission: First, Mr. Ortiz is not a respond,’’ 31 S.R.R. at 486–7, citing Respondent’s lack of legal academic credentialed attorney because he does Commonwealth Shipping Ltd., Cargo credentials and lack of relevant work not have a license to practice law before Carriers Ltd., Martyn C. Meritt— experience demonstrating his any Federal, State or Territorial court. Submission of Materially False or qualifications to practice before the BOE Memorandum of Law at 3; Misleading Statements to the Federal Commission. Application of Leonardo Ortiz at 2 Maritime Commission, 29 S.R.R. 1408, In the decision letter, the Secretary (Question 10); Decision Letter of April 1412 (FMC 2003); Adair v. Penn-Nordic informed Mr. Ortiz of his right to 15, 2009, at 1. Second, Mr. Ortiz lacks Lines, 26 S.R.R. 11, 15 (ALJ, 1991), request a hearing within twenty days, other credible proof of legal or academic citing Alabama Power Co. v. FPC, 511 pursuant to Rule 29 of the Commission’s education to justify his entitlement to F.2d 383, 391 (D.C. Cir., 1974). Of Rules of Practice and Procedure, 46 CFR practice before the Commission, similar import, an applicant who fails to 502.29. Mr. Ortiz timely requested a inasmuch as the American Bar meet its burden of contesting allegations hearing on April 29, 2009. Association has not granted recognition or evidence upon a disputed issue is Pursuant to Mr. Ortiz’s request, the to the British American School of Law, deemed to have accepted the opposing Commission duly served an Order where Mr. Ortiz attended. BOE party’s allegations and evidence as true. directing applicant to show his Memorandum of Law at 3; Application Revocation of License No. 016019N— qualifications to practice as a non- of Leonardo Ortiz at 2 (Questions 7 and Central Agency of Florida Inc., 31 S.R.R. attorney before the Commission. The 12a); Verified Statement of Karen V. at 487; Capitol Transportation, Inc. v. Secretary served such Order on Mr. Gregory at ¶ 7; and Decision Letter of United States, 612 F.2d 1312, 1318–

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1319 (1st Cir. 1979); Bermuda Container Officer: Min Y. Zhu, CEO (Qualifying FEDERAL MARITIME COMMISSION Line Ltd. v. SHG Int’l Sales Inc., FX Individual). Coughlin Co., and Clark Building Conquests International Freight LLC, Ocean Transportation Intermediary Systems, Inc., 28 S.R.R. 312, 314 (I.D. 4452 NW 74 Avenue, Miami, FL License Revocations 1998). 33166, Officer: Brian N. Contipelli, The Federal Maritime Commission Having requested this hearing, Mr. Manager, (Qualifying Individual). hereby gives notice that the following Ortiz has, on two separate occasions, Prana International Inc, 4842 SW 1144 Ocean Transportation Intermediary neglected his opportunity to respond to Ct., Miami, FL 33175, Officer: Jorge licenses have been revoked pursuant to those issues specified in the Lacayo, President (Qualifying section 19 of the Shipping Act of 1984 Commission’s Order. In view of the Individual). (46 U.S.C. Chapter 409) and the uncontested nature of BOE’s case, the Port Line Services LLC, 250 North regulations of the Commission Commission validly may find that Mr. Avenue East, Elizabeth, NJ 07201, pertaining to the licensing of Ocean Ortiz is not qualified to practice before Officer: Jose B. Jiminez, Member Transportation Intermediaries, 46 CFR the Commission as a non-attorney, as (Qualifying Individual). part 515, effective on the corresponding provided by 46 CFR. 502.27. Cuban Parcel Services, Corp., 11027 date shown below: Accordingly, the Commission upholds N.W. 122nd Street, Medley, FL 33178, the Secretary’s Decision Letter of April Officers: Rolgues Rodriguez, Treasurer License Number: 002233NF. 15, 2009 and hereby denies certification (Qualifying Individual). Ernesto Villa, Name: Pronto Cargo Corporation. for Mr. Ortiz to practice before the President. Address: 1530 NW 98th Court, Unit Commission. KSB Shipping & Logistics LLC, 2301 103, Doral, FL 33172–2757. Trafalgar Square, Hillsborough, NJ Date Revoked: October 8, 2009. Conclusion 08844, Officer: Satish K. Sharma, Reason: Surrendered license Therefore, it is ordered, that the Member (Qualifying Individual). voluntarily. Application of Leonardo Ortiz to License Number: 021205NF. Non-Vessel-Operating Common Carrier practice before the Commission as a Name: Selim Logistics System USA, and Ocean Freight Forwarder non-attorney is denied. Inc. dba Uni Global Logistics. Transportation Intermediary By the Commission. Address: 6492 New Albany Rd., Lisle, Applicants IL 60535. Karen V. Gregory, Optim International Freight Services, Date Revoked: October 7, 2009. Secretary. Inc., 5733 Arbor Vitae Street, Ste. 101, Reason: Surrendered license [FR Doc. E9–27076 Filed 11–10–09; 8:45 am] Los Angeles, CA 90045, Officer: voluntarily. BILLING CODE P Dennis J. Liebregt, President (Qualifying Individual). Sandra L. Kusumoto, England Global Logistics USA, Inc. dba Director, Bureau of Certification and FEDERAL MARITIME COMMISSION England Logistics, 11222 La Cienega Licensing. Boulevard, Ste. 588, Inglewood, CA [FR Doc. E9–27190 Filed 11–10–09; 8:45 am] Ocean Transportation Intermediary BILLING CODE 6730–01–P License; Applicants 90304, Officers: Jack H. Chen, Director (Qualifying Individual), Josh A. England, President. FEDERAL MARITIME COMMISSION Ocean Freight Forwarder—Ocean Notice is hereby given that the [Petition No. P1–09] following applicants have filed with the Transportation Intermediary Federal Maritime Commission an Applications Petition of Hanjin Shipping Co., Ltd. for application for license as a Non-Vessel- ASL Logistics USA, LLC, Skyline an Exemption From 46 CFR 530.10; Operating Common Carrier and Ocean Tower, 10900 NE 4th Street, Ste. Notice of Filing and Request for Freight Forwarder—Ocean 2300, Bellevue, WA 98004, Officers: Comments Transportation Intermediary pursuant to Jerry V. Garcia, Managing Partner section 19 of the Shipping Act of 1984 (Qualifying Individual), Alicia S. Served: November 6, 2009. as amended (46 U.S.C. Chapter 409 and Gilson, President. This is to provide notice of filing and 46 CFR 515). Midnite Air Corp dba MNX, 300 N Oak to invite comments on or before Persons knowing of any reason why Street, Inglewood, CA 90302, Officers: November 16, 2009, with regard to the the following applicants should not Sean T. Gallagher, Senior Cargo Petition described below. receive a license are requested to Officer (Qualifying Individual). Keith Hanjin Shipping Co., Ltd. (Petitioner), contact the Office of Transportation D. Storey, Chairman. has petitioned the Commission pursuant Intermediaries, Federal Maritime Allyn International Services, Inc., 13391 to 46 CFR 502.69 of the Commission’s Commission, Washington, DC 20573. McGregor Boulevard, Fort Myers, FL Rules of Practice and Procedure, for an exemption from the Commission’s rules Non-Vessel-Operating Common Carrier 33919, Officer: Michael Smyers, Vice President, (Qualifying Individual). requiring individual service contract Ocean Transportation Intermediary amendments, 46 CFR 530.10. Applicants Reindeer Forwarding, LLC, 5100 Charles Court, Zionsville, IN 46077, Officers: Specifically, Petitioner requests that the JMJ Logistics, Inc., 201 Sevilla Avenue, Bradley Willy, General Manager Commission permit the submission of a Coral Gables, FL 33134, Officer: (Qualifying Individual), Timothy ‘‘universal notice’’ to the Commission of Ernesto Del Riego, President Donnar, CEO. its upcoming corporate reorganization (Qualifying Individual). in lieu of requiring individual service Advance Marine Shipping, 6505 Rusk, Dated: November 6, 2009. contract amendment filings with respect Houston, TX 77023, Gibson A. Karen V. Gregory, to more than 2,700 service contracts. Oluyitan, Sole Proprietor. Secretary. Petitioner separately commits to provide SBC International Inc., 398 S. Lemon [FR Doc. E9–27191 Filed 11–10–09; 8:45 am] each service contract shipper counter- Creek Dr., Ste. #R, Walnut, CA 91789. BILLING CODE 6730–01–P party with electronic notice of this

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corporate change and instructions on also will be posted on the Commission’s [email protected]; telephone: (202) how to request preparation of a ‘‘formal Web site at this location. 501–1100. consent’’ should one be required. Parties participating in this Dated: October 30, 2009. Effective December 1, 2009, proceeding may elect to receive service Paul F. Prouty, Petitioner’s shipping business will be of the Commission’s issuances in this transferred to a new affiliate company proceeding through e-mail in lieu of Acting Administrator of General Services. using the same name ‘‘Hanjin Shipping service by U.S. mail. A party opting for U.S. GENERAL SERVICES Co., Ltd.’’, operating with the same electronic service shall advise the Office ADMINISTRATION vessels, equipment and personnel. of the Secretary in writing and provide FMR BULLETIN PBS–2009–B2 Petitioner states that, under Korean law, an e-mail address where service can be the current corporation and the new made. REDESIGNATIONS OF FEDERAL corporation remain jointly and severally BUILDINGS liable for Hanjin’s contracts, and that Karen V. Gregory, the current corporation guarantees the Secretary. TO: Heads of Federal Agencies performance of the new corporation, [FR Doc. E9–27192 Filed 11–10–09; 8:45 am] SUBJECT: Designations and including its service contracts. BILLING CODE 6730–01–P Redesignations of Federal Buildings Petitioner concludes that the change in 1. What is the purpose of this contract party is primarily bulletin? This bulletin announces the administrative in nature, and will cause GENERAL SERVICES designations and redesignations of six no prejudice to any shipper counter- ADMINISTRATION Federal buildings. party. [FMR Bulletin PBS–2009–B2] In order for the Commission to make 2. When does this bulletin expire? This bulletin expires April 2010. a thorough evaluation of the Petition, Federal Management Regulation; However, the building designations and interested persons are requested to Redesignations of Federal Buildings submit views or arguments in reply to redesignations announced in this the Petition no later than November 16, AGENCY: Public Buildings Service (P), bulletin will remain in effect until 2009. Replies shall consist of an original GSA. canceled or superseded. and 15 copies, be directed to the ACTION: Notice of a bulletin. 3. Designations. The names of the Secretary, Federal Maritime buildings being designated are as SUMMARY: Commission, 800 North Capitol Street, The attached bulletin follows: NW., Washington, DC 20573–0001, and announces the redesignations of six Ronald H. Brown United States, Mission be served on Petitioner’s counsel, Robert Federal buildings. to the United Nations Building, 799 B. Yoshitomi, Nixon Peabody LLP, Gas DATES: Expiration Date: This bulletin United Nations Plaza, New York, NY Company Tower, 555 West Fifth Street, expires April 2010. However, the 10017. 46th Floor, Los Angeles, CA 90013. A building redesignations announced by copy of the reply shall be submitted in this bulletin will remain in effect until Ralph Regula Federal Building and electronic form (Microsoft Word) by canceled or superseded. United States Courthouse, 301–401 e-mail to [email protected]. FOR FURTHER INFORMATION CONTACT: U.S. McKinley Avenue, SW., Canton, OH The Petition will be posted on the General Services Administration, Public 44707. Commission’s Web site at http:// Buildings Service (P), Attn: Anthony E. 4. Redesignations. The former and www.fmc.gov/reading/Petitions.asp. Costa, 1800 F Street, NW., Washington, new names of the redesignated Replies filed in response to this petition DC 20405; e-mail: buildings are as follows:

Former name New name

Federal Building and United States Courthouse, 306 East Main Street, J. Herbert W. Small Federal Building and United States Courthouse, Elizabeth City, NC 27909. 306 East Main Street, Elizabeth City, NC 27909 United States Courthouse, 525 Magoffin Avenue, El Paso, TX 79901 ... Albert Armendariz, Sr., United States Courthouse, 525 Magoffin Ave- nue, El Paso, TX 79901 Federal Building, 844 North Rush Street, Chicago, IL 60611 ...... William O. Lipinski Federal Building, 844 North Rush Street, Chicago, IL 60611 United States Courthouse, 301 Simonton Street, Key West, FL 33040 Sidney M. Aronovitz United States Courthouse, 301 Simonton Street, Key West, FL 33040.

5. Whom should we contact for GENERAL SERVICES DATES: The cancellation of GSA FMR further information regarding ADMINISTRATION Bulletin B–12 is effective November 12, redesignation of these Federal 2009. buildings? U.S. General Services Motor Vehicle Management; FOR FURTHER INFORMATION CONTACT: Mr. Administration, Public Buildings Cancellation of GSA Bulletin FMR B–12 James Vogelsinger, General Services Service (P), Attn: Anthony E. Costa, Administration, Office of 1800 F Street, NW., Washington, DC AGENCY: Office of Governmentwide Governmentwide Policy, Office of 20405; telephone number: (202) 501– Policy, General Services Administration Travel, Transportation and Asset 1100; e-mail: [email protected]. (GSA). Management, at (202) 501–1764 or via ACTION: Notice. Paul F. Prouty, e-mail at [email protected] Acting Administrator of General Services. Please cite FTR Bulletin B–12 SUMMARY: This notice announces the cancellation notice. [FR Doc. E9–27029 Filed 11–10–09; 8:45 am] cancellation of GSA Federal BILLING CODE 6820–23–P Management (FMR) Bulletin B–12. SUPPLEMENTARY INFORMATION:

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A. Background organizations in order to: Identify best treat a variety of infectious diseases and practices and successful modes of delivering GSA Bulletin FMR B–12 was signed cancers, most notably melanoma. social services; evaluate the need for At its foundation, ACT involves on January 18, 2006, and became improvements in the implementation and effective on May 25, 2006. The Bulletin isolating lymphocytes with high affinity coordination of public policies relating to for a particular antigen, expanding those provided a list of agencies for which faith- based and other neighborhood GSA granted unlimited exemptions organizations; and make recommendations cells in vitro to produce a greater quantity of reactive cells, and infusing from the display of U.S. Government for changes in policies, programs, and the product cells into patients to attack license plates and motor vehicle practices. Contact Person for Additional Information: cells expressing the antigen, such as identification. 41 CFR part 102–34 was Mara Vanderslice, 202–260–1931, tumor cells, bacterial cells, or viral amended on March 20, 2009 (74 FR [email protected]. particles. Previously utilized ACT 11870). It revised the unlimited Supplementary Information: Please contact procedures have been plagued by exemption from the requirement to Mara Vanderslice for more information about technical, regulatory, and logistical display motor vehicle identification to how to join via conference call line. problems that have prevented exempt motor vehicles used primarily Agenda: Topics to be discussed include consistently successful clinical for investigative, law enforcement, deliberation on draft recommendations for Council report. outcomes. Through years of research, intelligence, or security duties. The scientists at the National Institutes of Dated: November 1, 2009. change recognizes the need for Health (NIH) have made great strides in protecting agency missions and Mara Vanderslice, developing ACT into a viable approach occupant safety and reduces the Special Assistant. to treat cancer patients. Of note, the administrative burden of processing [FR Doc. E9–27097 Filed 11–10–09; 8:45 am] ACT protocols developed by NIH exemptions while maintaining the BILLING CODE 4154–07–P scientists have successfully treated objective that Federal motor vehicles are patients with refractory metastatic required to be conspicuously identified melanoma who started with very few unless exempted (see 40 U.S.C. 609). DEPARTMENT OF HEALTH AND effective treatment options. These NIH Therefore, GSA is canceling this HUMAN SERVICES scientists have found that isolating cells Bulletin as unlimited exemptions are from the tumor infiltrating lymphocytes National Institutes of Health covered in 41 CFR 102–34.175. (TIL) of a patient tumor sample provides B. Procedures Government-Owned Inventions; a suitable initial lymphocyte culture for further in vitro manipulations. They Bulletins regarding motor vehicle Availability for Licensing have also discovered that taking the management are located on the Internet AGENCY: National Institutes of Health, isolated cells through one cycle of rapid at http://www.gsa.gov/fmrbulletin as Public Health Service, HHS. expansion (including exposure to IL–2), Federal Management Regulation (FMR) ACTION: Notice. rather than multiple cycles, yields bulletins. lymphocyte cultures with higher affinity Dated: November 4, 2009. SUMMARY: The inventions listed below and longer persistence in patients. Also, James Vogelsinger, are owned by an agency of the U.S. they have found that administering Director, Motor Vehicle Management Policy. Government and are available for nonmyeloablative lymphodepleting [FR Doc. E9–27163 Filed 11–10–09; 8:45 am] licensing in the U.S. in accordance with chemotherapy prior to the reinfusion of 35 U.S.C. 207 to achieve expeditious BILLING CODE 6820–14–P lymphocytes creates a more favorable commercialization of results of environment within patients for the federally-funded research and transferred cells to execute target cell development. Foreign patent DEPARTMENT OF HEALTH AND killing. These scientists envision that, applications are filed on selected HUMAN SERVICES for an ACT immunotherapy to gain inventions to extend market coverage regulatory approval and successfully President’s Advisory Council for Faith- for companies and may also be available treat a wide array of patients, it will based and Neighborhood Partnerships for licensing. need to be rapid, reliable, and ADDRESSES: Licensing information and technically simple. One of the most In accordance with section 10(a)(2) of copies of the U.S. patent applications critical factors to this approach is the the Federal Advisory Committee Act listed below may be obtained by writing generation of effective lymphocyte (Pub. L. 92–463), the President’s to the indicated licensing contact at the cultures that will rapidly and repeatedly Advisory Council for Faith-based and Office of Technology Transfer, National attack the target cells when infused into Neighborhood Partnerships announces Institutes of Health, 6011 Executive patients. the following meetings: Boulevard, Suite 325, Rockville, Scientists at the NIH have developed Name: President’s Advisory Council for Maryland 20852–3804; telephone: 301/ a method of generating CD8+ selected Faith-based and Neighborhood Partnerships 496–7057; fax: 301/402–0220. A signed ‘‘young’’ lymphocyte cultures for Council Meetings. Confidential Disclosure Agreement will infusion into cancer patients. Times and Dates: be required to receive copies of the Lymphocytes that spend fewer days in Tuesday, November 17th, 4 p.m. Eastern. patent applications. vitro between their initial isolation from Tuesday, December 15th, 4 p.m. Eastern. TIL and their ultimate reinfusion into Tuesday, January 19th, 4 p.m. Eastern. Simpler Is Better: The Production of patients compared to lymphocytes Place: Meetings will by conference call. Young Cell Cultures From Tumor cultured by previous ACT protocols are Please RSVP to receive the call-in Infiltrating Lymphocytes (TIL) Yields considered young lymphocyte cultures. information. More Effective Adoptive Cell Transfer Young lymphocytes, typically 19–35 Status: Open to the public, limited only by (ACT) Immunotherapies the space available. Conference call line will days old when reinfused into patients, be available. Description of Technology: Available exhibit improved proliferation, survival, Purpose: The Council brings together for licensing is an improved method of and enhanced anti-tumor activity within leaders and experts in fields related to the adoptive cell transfer (ACT) patients to yield greater tumor work of faith-based and neighborhood immunotherapy that can be utilized to regression compared to older

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lymphocytes, typically 44+ days old. responses in patients compared to [email protected] for more Furthermore, the generation of young previous ACT protocols and all information. lymphocyte cultures is more rapid, previously attempted treatments for Treating Cancer With Anti-Angiogenic reliable, and technically easier than metastatic melanoma. Chimeric Antigen Receptors previous ACT culturing methods. Young Development Status: This technology lymphocytes are isolated from TIL, is being utilized in a clinical protocol Description of Technology: Metastasis, directed against a single isolated tumor for adoptive cell transfer. The the growth and spread of cancer from a cell suspension, enriched for CD8 technology is a critical component of localized tumor to other sites in the expression, and rapidly expanded once the successful immunotherapy regimen body, is promoted by the formation of using autologous feeder cells without being used by the inventors and other new blood vessels through angiogenesis testing the culture for antigen clinicians at the NCI. Patients enrolled to ‘‘feed’’ the tumor. There is an urgent specificity. in ACT protocols are expected to show need to develop new therapeutic This approach to ACT offers a enhanced tumor regression and more strategies that combine fewer side- potentially significant improvement and objective responses compared to results effects and more specific anti-tumor a valuable new immunotherapeutic tool obtained with previous protocols. activity in order to block cancer for attacking tumors many types of Market: Cancer continues to be a metastasis in patients. Adoptive tumors. For diseases, such as metastatic medical and financial burden on U.S. immunotherapy is a promising new melanoma, where patients may only public health. According to U.S. approach to cancer treatment that have weeks or months of life estimates, cancer is the second leading engineers an individual’s innate and expectancy, this technology, which cause of death with over 565,000 deaths adaptive immune system to fight against provides for improved cell cultures reported in 2008 and almost 1.5 million specific diseases, including the spread prepared in less time, can make a new cases were reported (excluding of cancer. difference between life and death. In some skin cancers) in 2008. In 2007, the Chimeric antigen receptors (CARs) are addition, this method might be NIH estimated that the overall cost of hybrid proteins consisting of the portion applicable in treating other diseases cancer was $219.2 billion dollars and of an antibody that recognizes a tumor- such as AIDS, immunodeficiency, or $89 billion went to direct medical costs. associated antigen (TAA) fused to other autoimmunity for which immune Despite our increasing knowledge of protein domains that signal to activate effector cells can impact the clinical oncology and cancer treatment methods, the CAR-expressing cell. Human cells outcome. the fight against cancer will continue to that express CARs, most notably T cells, Applications: benefit from the development of new can recognize specific tumor antigens in • An improved immunotherapy therapeutics aimed at treating an MHC-unrestricted manner with high methodology to treat and/or prevent the individual patients. reactivity. CARs are able to mediate an recurrence of a variety of human Inventors: Mark E. Dudley and Steven immune response that promotes robust cancers, such as melanomas and A. Rosenberg (NCI). tumor killing in targeted cells. glioblastomas, infectious diseases, and Related Publications: Scientists at the National Institutes of autoimmune diseases by transferring 1. KQ Tran et al. Minimally cultured Health (NIH) have developed CARs with young lymphocyte cultures engineered tumor-infiltrating lymphocytes display high affinity for the vascular endothelial into cancer patients. optimal characteristics for adoptive cell growth factor receptor 2 (VEGFR2) (also • A technically simpler, more rapid, therapy. J Immunother. 2008 known as kinase domain region (KDR) more clinically reliable ACT procedure Oct;31(8):742–751. in humans and fetal liver kinase-1 with greater potential to overcome the 2. SA Rosenberg and ME Dudley. (Flk-1) in mice) to utilize as an technical, regulatory, and logistical Adoptive cell therapy for the treatment antiangiogenic tumor therapy. VEGFR2 hurdles of past ACT methods. This of patients with metastatic melanoma. is expressed on non-cancerous vascular technology could be broadly Curr Opin Immunol. 2009 endothelia cells, but is overexpressed on transferrable to a wide array of Apr;21(2):233–240 tumor endothelial cells in a variety of institutions to treat a wide array of Patent Status: HHS Reference No. E– cancers, especially solid tumors. patients. 273–2009/0—U.S. Provisional VEGFR2 overexpression promotes • The immunotherapy component of Application No. 61/237,889 filed 28 tumor vasculature, growth, and a combination therapy regimen aimed at Aug 2009 metastasis. The VEGFR2-specific CARs targeting the specific tumor-associated Related Technologies: HHS Reference feature the antigen binding domain of antigens expressed by the cancer cells of No. E–275–2002/1—U.S. Patent the KDR–1121 or DC101 antibody, individual patients. Application No. 10/526,697 filed 05 which recognize portions of the human Advantages: May 2005 (foreign counterparts in and mouse VEGFR2, respectively. This • Technically simpler than previous Europe, Canada, and Australia) antibody component is fused to the ACT methods: Decreased number of Licensing Status: Available for transmembrane and intracellular steps in the procedure and less analysis licensing. signaling domains of a T cell receptor of the cell cultures prior to reinfusion Licensing Contact: Samuel E. Bish, (TCR). These CARs combine high into patients. Ph.D.; 301–435–5282; affinity recognition of VEGFR2 provided • More rapid than previous ACT [email protected] by the antibody portion with the target methods: Adoptively transferred Collaborative Research Opportunity: cell killing activity of a cell expressing lymphocytes spend fewer days The Center for Cancer Research, Surgery an activated TCR. Infusion of these undergoing in vitro culturing, so they Branch, is seeking statements of VEGFR2-specific CARs into patients are introduced to patients with capability or interest from parties could prove to be a powerful new potentially short life expectancies more interested in collaborative research to immunotherapeutic tool for blocking quickly. further develop, evaluate, or angiogenic cancer metastasis by killing • Reliable, life-saving technology: commercialize cell and gene therapy VEGFR2+ tumor cells. This technology is anticipated by the technologies, and personalized Applications: inventors to yield greater tumor medicines. Please contact John D. • Immunotherapeutics to treat and/or regression and more objective clinical Hewes, Ph.D. at 301–435–3121 or prevent the reoccurrence of a variety of

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human cancers that overexpress human therapeutics aimed at treating DEPARTMENT OF HEALTH AND VEGFR2 by introducing anti-VEGFR2 individual patients. HUMAN SERVICES CAR expressing T cells into patients Cancer continues to be a medical and with metastatic cancer. financial burden on U.S. public health. National Institutes of Health • A possible prophylactic therapy to Statistically, in the U.S. cancer is the Government-Owned Inventions; prevent the spread of cancer in patients second leading cause of death with over Availability for Licensing whose cancer is predicted to 565,000 deaths reported in 2008 and metastasize. almost 1.5 million new cases were • A drug component of a combination AGENCY: National Institutes of Health, reported (excluding some skin cancers) Public Health Service, HHS. immunotherapy regimen aimed at in 2008, many with the potential to targeting the specific tumor-associated metastasize. In 2007, the NIH estimated ACTION: Notice. antigens expressed by cancer cells that the overall cost of cancer was SUMMARY: The inventions listed below within individual patients. $219.2 billion dollars and $89 billion Advantages: are owned by an agency of the U.S. went to direct medical costs. • This discovery is widely applicable Government and are available for to many different cancers: VEGFR2 is Inventors: Steven A. Rosenberg et al. licensing in the U.S. in accordance with overexpressed in many metastatic (NCI). 35 U.S.C. 207 to achieve expeditious cancers that utilize angiogenesis to Patent Status: HHS Reference No. E– commercialization of results of spread from their initial site of 205–2009/0—U.S. Provisional federally-funded research and development. An immunotherapy Application No. 61/247,625 filed 01 Oct development. Foreign patent protocol using anti-VEGFR2 CAR could 2009. applications are filed on selected treat a variety of cancer types. Related Technologies: inventions to extend market coverage • Antiangiogenic tumor therapy is • E–045–2009/0—U.S. Provisional for companies and may also be available anticipated to generate fewer side- Application No. 61/154,080 filed 20 Feb for licensing. effects compared to other treatment 2009 ADDRESSES: Licensing information and approaches: These CARs can be • E–312–2007/1—PCT Application copies of the U.S. patent applications delivered directly to the bloodstream to No. PCT/US2008/077333 filed 23 Sep listed below may be obtained by writing gain easy access to the targeted tumor 2008 to the indicated licensing contact at the vascular endothelial cells with minimal • E–059–2007/2—PCT Application Office of Technology Transfer, National effects to normal tissues. Furthermore, No. PCT/US2008/050841 filed 11 Jan Institutes of Health, 6011 Executive destroying tumor blood vessels could 2008, which published as WO 2008/ Boulevard, Suite 325, Rockville, accelerate tumor cell death so that the 089053 on 24 Jul 2008 Maryland 20852–3804; telephone: 301/ therapy can be administered for a • 496–7057; fax: 301/402–0220. A signed shorter period of time. A reduced E–304–2006/0—U.S. Provisional Confidential Disclosure Agreement will therapeutic timeframe and minimal Patent Application No. 60/847,447 filed be required to receive copies of the access to normal tissues should 26 Sep 2006; PCT Application No. PCT/ patent applications. contribute to reduced side-effects and US2007/079487 filed 26 Sep 2007, lowered toxicity for this treatment. which published as WO 2008/039818 A Method of Identifying Cdk5/p35 • The technology is anticipated to be on 03 Apr 2008 Modulators, and Possible Diagnostic or • highly effective and killing metastatic E–093–1995/0—PCT Application Therapeutic Uses for cells: Most angiogenic tumor epithelial No. PCT/US1996/04143 filed 27 Mar Neurodegenerative Diseases cells are believed to overexpress 1996, which published as WO 1996/ VEGFR2 to a similar degree. 30516 on 03 Oct 1996 Description of Invention: Cyclin- Administering a therapeutically • E–093–1995/2—U.S. Non- dependent kinase 5 (Cdk5) is a serine/ effective amount of anti-VEGFR2 CARs Provisional Application No. 08/084,994 threonine cyclin-dependent kinase that to patients may leave no or little tumor filed 02 Jul 1993 is highly expressed in the central nervous system and controls many cells remaining with an opportunity to Licensing Status: Available for biological processes that impact metastasize. Many current angiogenesis licensing. learning and memory, as well as pain therapies do not kill tumors, but rather Licensing Contact: Samuel E. Bish, stabilize the tumor, so they require long and drug addiction. Studies have Ph.D.; 301–435–5282; indicated that abnormal Cdk5 activity periods of administration. [email protected]. Development Status: This technology may be associated with the onset of Collaborative Research Opportunity: neurodegenerative diseases, such as could soon be ready for clinical The Center for Cancer Research, Surgery development since the inventors plan to Alzheimer’s disease, Parkinson’s Branch, is seeking statements of disease, and amyotrophic lateral initiate clinical trials using CAR capability or interest from parties engineered lymphocytes for adoptive sclerosis (ALS). The kinase activity of interested in collaborative research to Cdk5 is turned on when it binds to one immunotherapy of cancer. further develop, evaluate, or Market: The Food and Drug of the two proteins considered to be commercialize this technology. Please Administration (FDA) has approved neuronal activators, p35 and p39. contact John D. Hewes, Ph.D. at 301– eight therapies with antiangiogenic Scientists at the NIH designed a cell- 435–3121 or [email protected] for properties, including Avastin®, based assay to screen for p35 more information. Erbitux®, Vectibix®, Herceptin®, transcriptional regulators that work as Tarceva®, Nexavar®, Sutent®, Dated: November 3, 2009. upstream regulators of Cdk5. This ToriselTM, Velcade®, and Thalomid®. Richard U. Rodriguez, technology may be useful for assessing The majority of these drugs produced Director, Division of Technology Development the presence and risk of conditions worldwide sales exceeding an estimated and Transfer, Office of Technology Transfer, associated with atypical Cdk5 kinase $500 million in 2007. The fight against National Institutes of Health. activity or for finding drug modulators cancer and its spread will continue to [FR Doc. E9–27199 Filed 11–10–09; 8:45 am] that could be promising drug targets. benefit from the development of new BILLING CODE 4140–01–P Applications:

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• Diagnostic tool for assessing risk of Advantages: they provide the means for the systems’ conditions associated with abnormal • The imaging phantoms provided in standardization and quality control, and Cdk5 kinase activity. the invention are optimized specifically are thus a required components for their • Tool for screening Cdk5 for Diffusion MRI. They possess the reliable performance. Commercial modulators. following features and characteristics: success of these phantoms described in Development Status: Early stage. —Made of non-toxic, non-hazardous, the invention is therefore expected, in Inventors: Ashok B. Kulkarni and non-flammable and easily particular in view of the unique Elias S. Utreras Puratich (NIDCR). transportable materials. characteristics possessed by these Patent Status: U.S. Provisional —Possess diffusivities similar to those phantoms as outlined above. Due to Application No. 61/198,246 filed 03 of water in biological tissues, these properties they can be stored in a Nov 2008 (HHS Reference No. E–012– particular brain parenchyma. medical facility without special permits 2009/0–US–01). —Possess stable diffusion properties or requirements. Licensing Status: Available for over time. No appreciable change in • The phantoms described in this licensing. water diffusivity was detectable after invention could be sold with new MRI Licensing Contact: Charlene Sydnor, two years. scanners supporting DTI and other Ph.D.; 301–435–4689; —Offers option to tailor diffusiveness of diffusion MRI methods or for existing [email protected]. the phantoms to different applications MRI scanners that support diffusion Collaborative Research Opportunity: by varying the ratios of the chemical MRI applications. These phantoms The National Institute of Dental and components. could be used by MRI companies Craniofacial Research, Laboratory of • In addition, the inventors internally for product sequence testing Cell and Developmental Biology, established a procedure to make and development as well as to ensure Functional Genomics Section, is seeking concentrated solutions (up to 80 wt% that MRI scanners shipped to users statements of capability or interest from polymer content) from mixtures of operate properly and to within ‘‘specs’’ parties interested in collaborative different molecular weight polyvinyl following installation. The phantoms research to further develop, evaluate, or pyrrolidone (PVP) polymer and/or should be of interest to medical commercialize this technology. Please vinylpyrrolidone-based copolymers in physicists, technicians and bioengineers contact David W. Bradley, Ph.D. at 301– water in the presence of physiologically charged with the responsibility of 402–0540 or [email protected] relevant ions and gadolinium-based MRI assuring quality and reproducibility in for more information. contrast agents. In general, preparation their routine and research scans. A Phantom for Diffusion MRI: A of homogeneous polymer solutions from Inventors: Ferenc Horkay, Carlo Method of Enhancing Performance and hydrophilic glassy polymers with high Pierpaoli, Peter Basser (NICHD). Reliability solute content is problematic due to the Patent Status: U.S. Provisional inter- and intra-molecular interactions Application No. 61/147,314 filed 26 Jan Description of Invention: The (e.g., hydrogen bonds) leading to 2009 (HHS Reference No. E–249–2008/ technology offered for licensing is in the formation of entanglements and 0–US–01). field of Diffusion Magnetic Resonance gelation. This discovery indicates that at Licensing Status: Available for Imaging (Diffusion MRI). Specifically, a certain PVP-water compositions the new licensing. novel imaging phantom is described and preparation procedure gives rise to Licensing Contacts: Uri Reichman, claimed. Such a phantom is specifically disengagement of polymer chains and Ph.D., MBA; 301–435–4616; optimized for Diffusion MRI and is considerably improves polymer [email protected]; John Stansberry, Ph.D.; expected to enhance the performance solubility. Moreover, the addition of 301–435–5236; [email protected]. and reliability of this now widespread lower molecular weight PVP and/or Collaborative Research Opportunity: imaging technology. vinylpyrrolidone-based copolymers The Eunice Kennedy Shriver National The phantom provided in this decreases the intra molecular Institute of Child Health and Human invention comprises a stable aqueous association among the polymer Development’s Section on Tissue solution with a concentration of at least molecules without significantly Biophysics & Biomimetics (STBB) is 30%, by weight, of a mixture of a high affecting the diffusive and relaxation seeking statements of capability or molecular-weight polymer or copolymer properties of the solvent (water) in the interest from outside parties who are and a low molecular-weight polymer or MRI phantom. interested in entering into a copolymer, the aqueous solution having Development Status: The invention is Collaborative Research and a resulting water diffusivity from about Development Agreement (CRADA) to ¥ ¥ fully developed. 2 × 10 4 mm2/s to about 3 × 10 3 mm2/ Market: develop and commercialize the s. Polyvinyl Pyrrolidone (PVP) is the • The market for medical imaging Diffusion MRI Phantom described polymer of choice used in this equipment industry is approximately above. Please contact Alan Hubbs, Ph.D. invention. The phantoms of this $9.0 billion dollars now and has been at 301–594–4263 or invention are uniquely stable, non-toxic, growing by approximately 7.6% [email protected] for more and transportable, and have shown to annually. MRI instrumentation information. maintain constant water diffusivity after constitutes a significant portion of this Viral Inactivation Using Crosslinkers two years. market. Applications: Combining a Diffusion • Diffusion MRI is now a mature and Detergents MRI phantom with a resolution technology that has received FDA Description of Invention: The subject phantom would allow the same device approval; Diffusion MRI methods are technology is a method of inactivating to be used to calibrate an MR scanner’s ‘‘made, used and sold’’ by all major MRI enveloped viruses by hydrophobic image quality and the accuracy and manufacturers. The installed base of photoactivatable chemical crossing- precision of its diffusion measurements. clinical scanners using Diffusion MRI linking compounds and detergent This would be useful particularly for methods, including DTI, must now be in treatment. The inactivated viruses may Radiological QA and for use in assuring the thousands, worldwide. be used as vaccines against the diseases data quality in longitudinal and multi- • Imaging phantoms are necessary caused by those viruses or as reagents in subject studies. components of any imaging system as experimental procedures that require

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inactivated viral particles. The in medicine, ranging from pain relief to receptors based upon the compounds diffuse into the lipid bilayer psychological applications. The dextromethorphan and levomethorphan of biological membranes and upon UV disclosed compound may display scaffolds including molecular modeling irradiation will bind to proteins and attractive properties compared to the and synthesis of new derivatives, lipids in this domain, thereby closely related dextromethorphan or receptor binding and occupancy studies inactivating fusion of enveloped viruses other drugs currently in use as non- and non-competitive inhibition of with their corresponding target cells. competitive inhibitors of the nicotinic nicotinic acetylcholine receptors Furthermore, the selective binding of acetylcholine receptors, including subtypes and related ligand gated ion these chemical crosslinking agents to extended receptor inhibition and channels. Please contact Nicole Darack, protein domains in the lipid bilayer may reduced side effects. Ph.D. at 301–435–3101 or preserve the structural integrity and The nicotine acetylcholine receptor is [email protected] for more therefore immunogenicity of proteins on a ligand gated ion channel. These information. the exterior of the inactivated virus. The receptors specifically control rapid Methods and Compositions for the additional detergent step effectively permeation of cations through the Diagnosis of Neuroendocrine Lung eliminates the infectivity of any residual postsynaptic cell membrane, and are Cancer viral particles that are not adequately key targets in drug discovery for a crosslinked. number of diseases such as Alzheimer’s Description of Invention: The Applications: and Parkinson’s disease. This technology relates to the use of cDNA • Vaccines for enveloped viruses. superfamily of receptor proteins is microarrays to facilitate the • Vaccine for Human separated into the nicotinic receptor identification of pulmonary Immunodeficiency Virus. superfamily (muscular and neuronal neuroendocrine tumors. In order to Advantages: nicotinic), the excitatory amino acid identify molecular markers that could • Novel method of inactivating superfamily, and the ATP purinergic be used to classify pulmonary tumors, enveloped viruses. ligand gated ion channels, and they the inventors examined the gene • May maintain native differ only in the number of expression profiles of clinical samples conformational structures and viral transmembrane domains found in each from patients with small cell lung epitopes for generating an effective subunit. This newly discovered cancer (SCLC), large cell immune response. derivative of dextromethorphan may neuroendocrine carcinoma (LCNEC), Development Status: In vitro data can have potential therapeutic use for and typical carcinoma (TC) tumors by be provided upon request. several conditions involving these cDNA microarray analysis to detect Market: Vaccines. nicotinic acetylcholine receptors. hybridization between cDNA from Patent Status: International Patent Advantages: tumor cells and DNA from a panel of Application PCT/US2009/000623 filed • Derivative of dextromethorphan 8,897 human genes. Gene expression 30 Jan 2009 (HHS Reference No. E–331– may have superior properties on target was found to be nonrandom and to 2007/2–PCT–01). receptors including increased exhibit highly significant clustering that Licensing Status: Available for selectivity, potency and receptor divided the tumors into their assigned licensing. occupancy. World Health Organization (WHO) Licensing Contact: Kevin W. Chang, • Potential other therapeutic uses for classification with 100% accuracy. The Ph.D.; 301–435–5018; the new compound. inventors concluded that pulmonary [email protected]. Development Status: Early stage. neuroendocrine tumors could be Collaborative Research Opportunity: Inventors: Irving W. Wainer et al. classified based on the genome-wide The National Cancer Institute, Center for (NIA). expression profile of the clinical Cancer Research, Nanobiology Program Publication: K Jozwiak et al. samples without further manipulations. is seeking statements of capability or Displacement and non-linear Applications: interest from parties interested in chromatographic techniques in the • Method to differentiate three types collaborative research to further investigation of the interaction of of pulmonary neuroendocrine tumors. develop, evaluate, or commercialize the noncompetitive inhibitors with an • Method to diagnose pulmonary use of hydrophobic crosslinkers for their immobilized alpha3beta4 nicotinic neuroendocrine cancer. use in vaccine development. Interested acetylcholine receptor liquid • Neuroendocrine Microarray. collaborators are also invited to provide chromatographic stationary phase. Anal Advantages: Accurate, rapid, easy to statements for proposed in vitro or in Chem. 2002 Sep 15;74(18):4618–4624. use diagnostic to stratify patients vivo studies using various enveloped Patent Status: U.S. Patent Application according pulmonary tumors. viruses. Please contact John D. Hewes, No. 10/820,809 filed 09 Apr 2004, Development Status: The technology Ph.D. at 301–435–3121 or claiming priority to 11 Apr 2003 (HHS is currently in the pre-clinical stage of [email protected] for more Reference No. E–158–2003/1–US–02). development. information. Licensing Status: Available for Market: licensing. • Cancer is the second leading cause New Derivative of Dextromethorphan Licensing Contact: Jeffrey A. James, of death in United States and it will be for Use in Neuronal Therapy Ph.D.; 301–435–5474; responsible for an estimated 562,340 Description of Invention: This [email protected]. deaths. invention describes a derivative of Collaborative Research Opportunity: • It is estimated that the cancer dextromethorphan, which is a non- The National Institute on Aging, therapeutic market would double to $50 competitive inhibitor of the nicotinic Laboratory of Clinical Investigation, is billion a year in 2010 from $25 billion acetylcholine receptor. seeking statements of capability or in 2006. Dextromethorphan is an antitussive interest from parties interested in Inventors: Curtis C. Harris et al. (NCI) drug used as one of the active collaborative research to further Publication: P He et al. Identification ingredients to prevent coughs in many develop, evaluate, or commercialize a of carboxypeptidase E and gamma- over-the-counter cold and cough series of noncompetitive inhibitors of glutamyl hydrolase as biomarkers for medicines. It has also found other uses neuronal nicotinic acetylcholine pulmonary neuroendocrine tumors by

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cDNA microarray. Human Pathol. 2004 • Specific targeting of HIV-infected SUMMARY: The Food and Drug Oct;35(10):1196–1209. cells allows depletion of infected cells Administration (FDA) is announcing the Patent Status: U.S. Patent Application without affecting uninfected cells. availability of the guidance entitled No. 10/533,459 filed 02 May 2005 (HHS • Combination therapy combines ‘‘Registration and Product Listing for Reference No. E–248–2002/0–US–04). inhibition of HIV replication and Owners and Operators of Domestic Licensing Status: Available for selective killing of infected cells that Tobacco Product Establishments.’’ The licensing. still persist. guidance document is intended to assist Development Status: Preclinical stage persons making tobacco product Licensing Contact: Jennifer Wong; of development. establishment registration and product 301–435–4633; [email protected]. Patent Status: listing submissions to FDA under the Immunotoxin Useful for Treatment of • US Patent Application 09/673,707 Family Smoking Prevention and AIDS (HHS Reference No. E–201–1998/0–US– Tobacco Control Act (Tobacco Control 06), pending. Act). Description of Invention: Human • European Patent 1085908 (HHS DATES: Submit written or electronic Immunodeficiency Virus (HIV) attacks Reference No. E–201–1998/0–EP–05). and destroys T cells, leading to the comments on this guidance at any time. For more information, see: General comments on agency guidance development of Acquired • PE Kennedy et al. Anti-HIV–1 documents are welcome at any time. Immunodeficiency Syndrome (AIDS) in immunotoxin 3B3(Fv)-PE38: enhanced ADDRESSES: patients. Although significant progress potency against clinical isolates in Submit written requests for has been made treating patients with human PBMCs and macrophages, and single copies of the guidance document AIDS, an effective cure has yet to be negligible hepatotoxicity in macaques. J entitled ‘‘Registration and Product Listing for Owners and Operators of identified. For example, highly active Leukoc Biol. 2006 Nov;80(5):1175–1182. antiretroviral therapy (HAART) has • TK Bera et al. Specific killing of Domestic Tobacco Product shown dramatic reduction of viral HIV-infected lymphocytes by a Establishments’’ to the Center for replication while allowing recovery of recombinant immunotoxin directed Tobacco Products, Food and Drug the immune system in HIV patients. against the HIV–1 envelope Administration, 9200 Corporate Blvd., However, HAART does not directly kill glycoprotein. Mol Med. 1998 Rockville, MD 20850–3229. Send one HIV-infected T cells, allowing the virus Jun;4(6):384–391. self-addressed adhesive label to assist to persist in the body and resume Inventors: Ira Pastan et al. (NCI) that office in processing your request or replication and infection of T cells after Licensing Status: Available for include a fax number to which the HAART is stopped. This ultimately licensing. guidance document may be sent. See the results in a return to pre-treatment Licensing Contact: David A. SUPPLEMENTARY INFORMATION section for levels of viral replication and the Lambertson, Ph.D.; 301–435–4632; information on electronic access to the persistence of the disease in patients. [email protected]. guidance document. The current technology concerns an Collaborative Research Opportunity: Submit written comments on the invention that can be used to address The Center for Cancer Research, guidance to the Division of Dockets this limitation of HAART. An Laboratory of Molecular Biology, is Management (HFA–305), Food and Drug immunotoxin has been created that seeking statements of capability or Administration, 5630 Fishers Lane, rm. targets a toxin (PE38) to the HIV-specific interest from parties interested in 1061, Rockville, MD 20852. Submit Envelope glycoprotein (gp120) that is collaborative research to further electronic comments to http:// displayed on the surface of T cells that develop, evaluate, or commercialize this www.regulations.gov. Identify have been infected with the HIV virus. technology. Please contact John D. comments with the docket number The immunotoxin kills the HIV-infected Hewes, Ph.D. at 301–435–3121 or found in brackets in the heading of this T cells and other infected cell types that [email protected] for more document. serve as a viral reservoirs during information. FOR FURTHER INFORMATION CONTACT: HAART, thereby reducing the ability of Michele Mital, Center for Tobacco Dated: November 4, 2009. Products, Food and Drug the virus to replicate and infect other Richard U. Rodriguez, cells after HAART is stopped. Recent Administration, 9200 Corporate Blvd., Director, Division of Technology Development data shows that the immunotoxin blocks Rockville, MD 20850–3229, 301–796– and Transfer, Office of Technology Transfer, 4800, [email protected]. the spread of HIV–1 in vitro and does National Institutes of Health. SUPPLEMENTARY INFORMATION: not induce hepatotoxicity in rhesus [FR Doc. E9–27196 Filed 11–10–09; 8:45 am] monkeys, suggesting the procedure I. Background could be effective in human patients. By BILLING CODE 4140–01–P combining the immunotoxin with a In the Federal Register of October 21, treatment regimen such as HAART, it 2009 (74 FR 54052), FDA announced the DEPARTMENT OF HEALTH AND availability of a draft guidance may be possible to significantly improve HUMAN SERVICES treatment of HIV infection. document entitled ‘‘Registration and Product Listing for Owners and Applications: Food and Drug Administration • Operators of Domestic Tobacco Product Reduction of HIV–1 infected cell [Docket No. FDA–2009–D–0508] Establishments.’’ The agency considered populations in patients to reduce viral received comments as it finalized this reservoirs. Guidance for Industry on Registration guidance. This guidance document is • Treatment of HIV infection in and Product Listing for Owners and designed to assist domestic owners and combination with therapeutic regimens Operators of Domestic Tobacco operators with submitting tobacco such as HAART. Product Establishments; Availability product establishment registration and Advantages: AGENCY: Food and Drug Administration, tobacco product listing information. • Overcomes a limitation of current HHS. Under section 905(b) of the Federal HIV therapies by specifically depleting Food, Drug, and Cosmetic Act (the act) ACTION: Notice. infected cell reservoirs. (21 U.S.C. 387e(b)), added by the

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Tobacco Control Act, every person who individuals may submit one paper copy. clearly unwarranted invasion of owns or operates any domestic Comments are to be identified with the personal privacy. establishments engaged in the docket number found in brackets in the Name of Committee: National Cancer manufacture, preparation, heading of this document. Received Institute Special Emphasis Panel; NCI compounding, or processing of a comments may be seen in the Division Experimental Therapeutics Program (NExT). regulated tobacco product must register of Dockets Management between 9 a.m. Date: December 9, 2009. with FDA by December 31 of each year. and 4 p.m., Monday through Friday. Time: 8:30 a.m.–4:30 p.m. Moreover, all registrants must at the IV. Paperwork Reduction Act of 1995 Agenda: To evaluate the NCI Experimental time of registration file with FDA a list Therapeutics Program Portfolio. of all tobacco products which are being This guidance contains information Place: Bethesda Marriott—Pooks Hill, 5115 manufactured, prepared, compounded, collection provisions that are subject to Pooks Hill Road, Bethesda, MD 20814. or processed by that person for review by the Office of Management and Contact Person: Barbara Mroczkowski, commercial distribution, along with Budget (OMB) under the Paperwork Executive Secretary, NCI Experimental certain accompanying information, Reduction Act of 1995 (44 U.S.C. 3501– Therapeutics Program, National Cancer including all labeling (see section 3520). The collection of information in Institute, NIH, 31 Center Drive, Room 3A44, 905(i)(1) of the act, as added by the this guidance was approved under OMB Bethesda, MD 20892, (301) 496–4291, Tobacco Control Act). control number 0910–0650. [email protected]. FDA does not intend to enforce the requirement to submit registration and V. Electronic Access (Catalogue of Federal Domestic Assistance Program Nos. 93.392, Cancer Construction; product listing information under An electronic version of the guidance section 905 of the act by December 31, 93.393, Cancer Cause and Prevention document is available on the Internet at Research; 93.394, Cancer Detection and 2009, provided that the submission is http://www.regulations.gov and http:// received by FDA on or before February Diagnosis Research; 93.395, Cancer www.fda.gov/TobaccoProducts/ Treatment Research; 93.396, Cancer Biology 28, 2010. We recognize that the forms GuidanceComplianceRegulatory Research; 93.397, Cancer Centers Support; developed by FDA are new to industry, Information/default.htm. 93.398, Cancer Research Manpower; 93.399, and so may require additional time to Cancer Control, National Institutes of Health, complete accurately. While electronic Dated: November 6, 2009. HHS) submission of registration and listing David Horowitz, information is not required, FDA is Assistant Commissioner for Policy. Dated: November 3, 2009. strongly encouraging electronic [FR Doc. E9–27182 Filed 11–6–09; 4:15 pm] Jennifer Spaeth, submission to facilitate efficiency and BILLING CODE 4160–01–S Director, Office of Federal Advisory timeliness of data management and Committee Policy. submission. FDA does recognize, [FR Doc. E9–27217 Filed 11–10–09; 8:45 am] however, that electronic submission DEPARTMENT OF HEALTH AND BILLING CODE 4140–01–P requires several additional steps, such HUMAN SERVICES as obtaining an Electronic Submissions National Institutes of Health Gateway account and becoming familiar DEPARTMENT OF HEALTH AND with the eSubmitter electronic HUMAN SERVICES application. FDA therefore believes that National Cancer Institute; Notice of Closed Meeting this additional time for the first National Institutes of Health submission of this registration and Pursuant to section 10(d) of the listing information should result in Federal Advisory Committee Act, as Center for Scientific Review; Amended submission of higher quality amended (5 U.S.C. Appendix 2) notice Notice of Meeting information. is hereby given of the following II. Significance of Guidance meeting. Notice is hereby given of a change in the meeting of the Center for Scientific This guidance is being issued The meeting will be closed to the Review Special Emphasis Panel, consistent with FDA’s good guidance public in accordance with the November 18, 2009, 3 p.m. to November practices regulation (21 CFR 10.115). provisions set forth in sections 552b(c) 18, 2009, 10 p.m., Beacon Hotel and The guidance represents the agency’s (4) and 552b(c)(6), Title 5 U.S.C., as current thinking on ‘‘Registration and amended. The purpose of this meeting Corporate Quarters, 1615 Rhode Island Product Listing for Owners and is to evaluate requests for preclinical Avenue, NW., Washington, DC, 20036 Operators of Domestic Tobacco Product development resources for potential which was published in the Federal Establishments.’’ It does not create or new therapeutics for the treatment of Register on November 3, 2009, 74 FR confer any rights for or on any person cancer. The outcome of the evaluation 56855. and does not operate to bind FDA or the will provide information to internal NCI The starting time of the meeting on public. An alternative approach may be committees that will decide whether November 18, 2009 has been changed to used if such approach satisfies the NCI should support requests and make 6 p.m. until adjournment at 10 p.m. The requirements of the applicable statute available contract resources for meeting date and location remain the and regulations. development of the potential same. The meeting is closed to the therapeutic to improve the treatment of public. III. Comments various forms of cancer. The research Interested persons may submit to the proposals and the discussions could Dated: November 5, 2009. Division of Dockets Management (see disclose confidential trade secrets or Jennifer Spaeth, ADDRESSES) written or electronic commercial property such as patentable Director, Office of Federal Advisory comments regarding this document. material and personal information Committee Policy. Submit a single copy of electronic concerning individuals associated with [FR Doc. E9–27216 Filed 11–10–09; 8:45 am] comments or two paper copies of any the proposed research projects, the BILLING CODE 4140–01–P mailed comments, except that disclosure of which would constitute a

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DEPARTMENT OF HEALTH AND Dated: November 4, 2009. Place: National Institutes of Health, 6701 HUMAN SERVICES Alexandra Huttinger, Rockledge Drive, Bethesda, MD 20892 Director, Division of Policy Review and (Telephone Conference Call) Health Resources and Services Coordination. Contact Person: Laurent Taupenot, PhD, Administration Scientific Review Officer, Center for [FR Doc. E9–27158 Filed 11–10–09; 8:45 am] Scientific Review, National Institutes of BILLING CODE 4165–15–P Advisory Commission on Childhood Health, 6701 Rockledge Drive, Room 4811, MSC 7850, Bethesda, MD 20892, 301–435– Vaccines; Notice of Meeting 1203, [email protected]. DEPARTMENT OF HEALTH AND Name of Committee: Center for Scientific In accordance with section 10(a)(2) of HUMAN SERVICES Review Special Emphasis Panel; RFA–OD– the Federal Advisory Committee Act 09–007: ARRA AREA Grants Panel 06. (Pub. L. 92–463), notice is hereby given National Institutes of Health Date: December 4, 2009. of the following meeting: Time: 8 a.m. to 6 p.m. Center For Scientific Review; Notice of Agenda: To review and evaluate grant Name: Advisory Commission on Closed Meetings applications. Childhood Vaccines (ACCV). Place: Doubletree Hotel Bethesda, 8120 Date and Time: December 4, 2009, 1 p.m. Pursuant to section 10(d) of the Wisconsin Avenue, Bethesda, MD 20814. to 5:30 p.m. EST. December 5, 2009, 9 a.m. Federal Advisory Committee Act, as Contact Person: Reed A. Graves, PhD, to 12:30 p.m. EST. amended (5 U.S.C. App.), notice is Scientific Review Officer, Center for Place: Parklawn Building (and via audio hereby given of the following meetings. Scientific Review, National Institutes of conference call), Conference Rooms G & H, The meetings will be closed to the Health, 6701 Rockledge Drive, Room 6166, 5600 Fishers Lane, Rockville, MD 20857. MSC 7892, Bethesda, MD 20892, (301) 402– The ACCV will meet on Thursday, public in accordance with the provisions set forth in sections 6297, [email protected]. December 4 from 1 p.m. to 5:30 p.m. (EST) Name of Committee: Center for Scientific and Friday, December 5 from 9 a.m. to 12:30 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and Review Special Emphasis Panel, RFA–OD– p.m. (EST). The public can join the meeting 09–007: ARRA AREA Grants Panel 04. via audio conference call by dialing 1–888– the discussions could disclose Date: December 11, 2009, 323–2713 on December 4 & 5 and providing confidential trade secrets or commercial Time: 8 a.m. to 5 p.m. the following information: property such as patentable material, Agenda: To review and evaluate grant Leader’s Name: Dr. Geoffrey Evans. and personal information concerning applications. Password: ACCV. individuals associated with the grant Place: Hyatt Regency Bethesda, One Agenda: The agenda items for the applications, the disclosure of which Bethesda Metro Center, 7400 Wisconsin December meeting will include, but are not would constitute a clearly unwarranted Avenue, Bethesda, MD 20814. limited to: updates from the Division of invasion of personal privacy. Contact Person: Bill Bunnag, PhD, Vaccine Injury Compensation (DVIC), Scientific Review Officer, Center for Department of Justice, National Vaccine Name of Committee: Center for Scientific Scientific Review, National Institutes of Program Office, Immunization Safety Office Review Special Emphasis Panel; Review of Health, 6701 Rockledge Drive, Room 3156, (Centers for Disease Control and Prevention), Member Conflict HIV/AIDS Related Small MSC 7770, Bethesda, MD 20892, (301) 435– National Institute of Allergy and Infectious Business Grant Applications. 1177, [email protected]. Date: December 2, 2009. Diseases (National Institutes of Health), and (Catalogue of Federal Domestic Assistance Time: 12 p.m. to 1:30 p.m. Center for Biologics, Evaluation and Research Program Nos. 93.306, Comparative Medicine; (Food and Drug Administration). Agenda Agenda: To review and evaluate grant applications. 93.333, Clinical Research, 93.306, 93.333, items are subject to change as priorities 93.337, 93.393–93.396, 93.837–93.844, dictate. Place: National Institutes of Health, 6701 Rockledge Drive, Bethesda, MD 20892 93.846–93.878, 93.892, 93.893, National Public Comments: Persons interested in (Telephone Conference Call) Institutes of Health, HHS). providing an oral presentation should submit Contact Person: Jose H. Guerrier, PhD, a written request, along with a copy of their Dated: November 5, 2009. Scientific Review Officer, Center for Jennifer Spaeth, presentation to: Annie Herzog, DVIC, Scientific Review, National Institutes of Healthcare Systems Bureau (HSB), Health Health, 6701 Rockledge Drive, Room 5218, Director, Office of Federal Advisory Resources and Services Administration MSC 7852, Bethesda, MD 20892, 301–435– Committee Policy. (HRSA), Room 11C–26, 5600 Fishers Lane, 1137, [email protected]. [FR Doc. E9–27212 Filed 11–10–09; 8:45 am] Rockville, Maryland 20857 or e-mail: Name of Committee: Center for Scientific BILLING CODE 4140–01–P [email protected]. Requests should contain Review Special Emphasis Panel; the name, address, telephone number, and Neurodegenerative Disorders. any business or professional affiliation of the Date: December 2, 2009. DEPARTMENT OF HEALTH AND person desiring to make an oral presentation. Time: 12 p.m. to 1 p.m. HUMAN SERVICES Groups having similar interests are requested Agenda: To review and evaluate grant to combine their comments and present them applications. National Institutes of Health through a single representative. The Place: National Institutes of Health, 6701 allocation of time may be adjusted to Rockledge Drive, Bethesda, MD 20892 National Heart, Lung, and Blood accommodate the level of expressed interest. (Telephone Conference Call) Institute; Notice of Closed Meeting DVIC will notify each presenter by mail or Contact Person: Deborah L. Lewis, PhD, telephone of their assigned presentation time. Scientific Review Officer, Center for Pursuant to section 10(d) of the Persons who do not file an advance request Scientific Review, National Institutes of Federal Advisory Committee Act, as for a presentation, but desire to make an oral Health, 6701 Rockledge Drive, Room 4118, amended (5 U.S.C. App.), notice is statement, may announce it at the time of the MSC 7850, Bethesda, MD 20892, 301–435– hereby given of the following meeting. comment period. These persons will be 1224, [email protected]. The meeting will be closed to the allocated time as it permits. Name of Committee: Center for Scientific public in accordance with the For Further Information Contact: Anyone Review Special Emphasis Panel; provisions set forth in sections requiring information regarding the ACCV Neurodevelopment and Plasticity. should contact Annie Herzog, DVIC, HSB, Date: December 3, 2009. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., HRSA, Room 11C–26, 5600 Fishers Lane, Time: 1 p.m. to 3 p.m. as amended. The grant applications and Rockville, MD 20857; telephone (301) 443– Agenda: To review and evaluate grant the discussions could disclose 6593 or e-mail: [email protected]. applications. confidential trade secrets or commercial

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property such as patentable material, Contact Person: Jeffrey H. Hurst, PhD, Agenda: To review and evaluate grant and personal information concerning Scientific Review Officer, Review Branch/ applications. individuals associated with the grant DERA, National Heart, Lung, and Blood Place: Palomar Hotel, 2121 P Street, NW., applications, the disclosure of which Institute, 6701 Rockledge Drive, Room 7208, Washington, DC 20037. Bethesda, MD 20892–7924, 301–435–0303, Contact Person: Mark P. Rubert, PhD, would constitute a clearly unwarranted [email protected]. Scientific Review Officer, Center for invasion of personal privacy. (Catalogue of Federal Domestic Assistance Scientific Review, National Institutes of Name of Committee: Heart, Lung, and Program Nos. 93.233, National Center for Health, 6701 Rockledge Drive, Room 5218, Blood Initial Review Group; NHLBI Sleep Disorders Research; 93.837, Heart and MSC 7852, Bethesda, MD 20892, 301–435– Institutional Training Mechanism Review Vascular Diseases Research; 93.838, Lung 1775, [email protected]. Committee. Diseases Research; 93.839, Blood Diseases This notice is being published less than 15 Date: December 11, 2009. and Resources Research, National Institutes days prior to the meeting due to the timing Time: 8 a.m. to 5 p.m. of Health, HHS) limitations imposed by the review and Agenda: To review and evaluate grant funding cycle. Dated: November 5, 2009. applications. (Catalogue of Federal Domestic Assistance Place: The Ritz Carlton, 1150 22nd Street, Jennifer Spaeth, Program Nos. 93.306, Comparative Medicine; NW., Washington, DC 20037. Director, Office of Federal Advisory 93.333, Clinical Research, 93.306, 93.333, Contact Person: Charles Joyce, Ph.D., Committee Policy. 93.337, 93.393–93.396, 93.837–93.844, Scientific Review Officer, Review Branch/ [FR Doc. E9–27208 Filed 11–10–09; 8:45 am] 93.846–93.878, 93.892, 93.893, National DERA, National Heart, Lung, and Blood Institutes of Health, HHS) Institute, 6701 Rockledge Drive, Room 7196, BILLING CODE 4140–01–P Bethesda, MD 20892–7924, 301–435–0288, Dated: November 5, 2009. [email protected]. Jennifer Spaeth, (Catalogue of Federal Domestic Assistance DEPARTMENT OF HEALTH AND Director, Office of Federal Advisory Program Nos. 93.233, National Center for HUMAN SERVICES Committee Policy. Sleep Disorders Research; 93.837, Heart and [FR Doc. E9–27207 Filed 11–10–09; 8:45 am] Vascular Diseases Research; 93.838, Lung National Institutes of Health Diseases Research; 93.839, Blood Diseases BILLING CODE 4140–01–P and Resources Research, National Institutes Center for Scientific Review; Notice of of Health, HHS) Closed Meetings DEPARTMENT OF HEALTH AND Dated: November 5, 2009. Pursuant to section 10(d) of the HUMAN SERVICES Jennifer Spaeth, Federal Advisory Committee Act, as Director, Office of Federal Advisory amended (5 U.S.C. App.), notice is National Institutes of Health Committee Policy. hereby given of the following meetings. [FR Doc. E9–27209 Filed 11–10–09; 8:45 am] The meetings will be closed to the Eunice Kennedy Shriver National BILLING CODE 4140–01–P public in accordance with the Institute of Child Health & Human provisions set forth in sections Development; Notice of Closed 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Meeting DEPARTMENT OF HEALTH AND as amended. The grant applications and Pursuant to section 10(d) of the HUMAN SERVICES the discussions could disclose Federal Advisory Committee Act, as confidential trade secrets or commercial National Institutes of Health amended (5 U.S.C. App.), notice is property such as patentable material, hereby given of the following meeting. National Heart, Lung, and Blood and personal information concerning The meeting will be closed to the Institute; Notice of Closed Meeting individuals associated with the grant public in accordance with the applications, the disclosure of which provisions set forth in sections Pursuant to section 10(d) of the would constitute a clearly unwarranted 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Federal Advisory Committee Act, as invasion of personal privacy. as amended. The grant applications and amended (5 U.S.C. App.), notice is Name of Committee: Center for Scientific the discussions could disclose hereby given of the following meeting. Review Special Emphasis Panel; Genetic confidential trade secrets or commercial The meeting will be closed to the Analysis, Systems, and Diseases. property such as patentable material, public in accordance with the Date: November 16, 2009. and personal information concerning provisions set forth in sections Time: 1 p.m. to 2:30 p.m. individuals associated with the grant 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Agenda: To review and evaluate grant applications, the disclosure of which as amended. The grant applications and applications. would constitute a clearly unwarranted the discussions could disclose Place: National Institutes of Health, 6701 invasion of personal privacy. confidential trade secrets or commercial Rockledge Drive, Bethesda, MD 20892, property such as patentable material, (Telephone Conference Call) Name of Committee: National Institute of Contact Person: David J. Remondini, PhD, Child Health and Human Development and personal information concerning Scientific Review Officer, Center for individuals associated with the grant Special Emphasis Panel; Spina Bifida. Scientific Review, National Institutes of Date: December 4, 2009. applications, the disclosure of which Health, 6701 Rockledge Drive, Room 2210, Time: 11:15 a.m. to 2 p.m. would constitute a clearly unwarranted MSC 7890, Bethesda, MD 20892, 301–435– Agenda: To review and evaluate grant invasion of personal privacy. 1038, [email protected]. applications. Name of Committee: Heart, Lung, and This notice is being published less than 15 Place: National Institutes of Health, 6100 Blood Initial Review Group; Heart, Lung, and days prior to the meeting due to the timing Executive Boulevard, Room 5B01, Rockville, Blood Program Project Review Committee. limitations imposed by the review and MD 20852, (Telephone Conference Call) Date: December 3, 2009. funding cycle. Contact Person: Norman Chang, PhD, Time: 8 a.m. to 5 p.m. Name of Committee: Center for Scientific Scientific Review Officer, Division of Agenda: To review and evaluate grant Review Special Emphasis Panel; Review of Scientific Review, Eunice Kennedy Shriver applications. BSPH Member Conflict Applications and K24 National Institute of Child Health and Place: Hyatt Regency Bethesda, One Applications. Human Development, NIH, 6100 Executive Bethesda Metro Center, 7400 Wisconsin Date: November 17, 2009. Blvd., Room 5B01, Bethesda, MD 20892, Avenue, Bethesda, MD 20814. Time: 12 p.m. to 5 p.m. (301) 496–1485, [email protected].

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(Catalogue of Federal Domestic Assistance Dated: November 5, 2009. DEPARTMENT OF HOMELAND Program Nos. 93.864, Population Research; Elaine L. Baker, SECURITY 93.865, Research for Mothers and Children; 93.929, Center for Medical Rehabilitation Director, Management Analysis and Services Office, Centers for Disease Control and U.S. Citizenship and Immigration Research; 93.209, Contraception and Services Infertility Loan Repayment Program, National Prevention. Institutes of Health, HHS) [FR Doc. E9–27269 Filed 11–9–09; 4:15 pm] Agency Information Collection Dated: November 5, 2009. BILLING CODE 4163–18–P Activities: Form I–134; Extension of an Jennifer Spaeth, Existing Information Collection; Director, Office of Federal Advisory Comment Request Committee Policy. DEPARTMENT OF HEALTH AND [FR Doc. E9–27198 Filed 11–10–09; 8:45 am] HUMAN SERVICES ACTION: 60-Day Notice of Information BILLING CODE 4140–01–P Collection Under Review; Form I–134, National Institutes of Health Affidavit of Support; OMB Control No. 1615–0014. National Institute of Allergy and DEPARTMENT OF HEALTH AND Infectious Diseases; Notice of Closed HUMAN SERVICES The Department Homeland Security, Meeting U.S. Citizenship and Immigration Centers for Disease Control and Services (USCIS) has submitted the Prevention Pursuant to section 10(d) of the following information collection request Federal Advisory Committee Act, as for review and clearance in accordance Advisory Committee to the Director amended (5 U.S.C. App.), notice is with the Paperwork Reduction Act of (ACD), Centers for Disease Control hereby given of a meeting of the 1995. The information collection is (CDC) and Prevention—Ethics Division of Intramural Research Board published to obtain comments from the Subcommittee (ES) of Scientific Counselors, NIAID. public and affected agencies. Comments In accordance with section 10(a)(2) of The meeting will be closed to the are encouraged and will be accepted for the Federal Advisory Committee Act public as indicated below in accordance sixty days until January 11, 2010. (Pub. L. 92–463), the Centers for Disease with the provisions set forth in section During this 60 day period, USCIS will Control and Prevention (CDC) 552b(c)(6), Title 5 U.S.C., as amended be evaluating whether to revise the announces the following meeting of the for the review, discussion, and Form I–134. Should USCIS decide to aforementioned subcommittee: evaluation of individual intramural revise Form I–134 we will advise the programs and projects conducted by the public when we publish the 30-day Time and Date: 3 p.m.–4 p.m., November National Institute of Allergy and notice in the Federal Register in 23, 2009. accordance with the Paperwork Place: Teleconference. To participate, Infectious Diseases, including please dial (866) 919–3560 and enter consideration of personnel Reduction Act. The public will then passcode 4168828 for access. qualifications and performance, and the have 30 days to comment on any Status: Open to the public; teleconference competence of individual investigators, revisions to the Form I–134. access limited only by availability of the disclosure of which would Written comments and/or suggestions telephone ports. The public is welcome to constitute a clearly unwarranted regarding the item(s) contained in this participate during the public comment invasion of personal privacy. notice, especially regarding the period, which is tentatively scheduled from estimated public burden and associated 3:30 p.m. to 3:45 p.m. Name of Committee: Division of Intramural Purpose: The Ethics Subcommittee will Research Board of Scientific Counselors, response time, should be directed to the provide counsel to the ACD, CDC, regarding NIAID. Department of Homeland Security a broad range of public health ethics Date: December 7–9, 2009. (DHS), USCIS, Chief, Regulatory questions and issues arising from programs, Time: 8 a.m. to 5 p.m. Products Division, Clearance Officer, scientists and practitioners. Agenda: To review and evaluate personal 111 Massachusetts Avenue, NW., Matter to be Discussed: Ethical guidance qualifications and performance, and Washington, DC 20529–2210. for ventilator distribution during a severe Comments may also be submitted to pandemic. This notice is being published less competence of individual investigators. than 15 days prior to the meeting due to the Place: National Institutes of Health, DHS via facsimile to 202–272–8352 or public health emergency declared on April Building 10, 10 Center Drive, Bethesda, MD via e-mail at [email protected]. When 26, 2009. There is a critical need for this 20892. submitting comments by e-mail, please subcommittee to deliberate and discuss Contact Person: Kathryn C. Zoon, PhD, make sure to add OMB Control No. urgent matters related to the H1N1 virus and Director, Division of Intramural Research, 1615–0014 in the subject box. Written be actively engaged in the national National Institute of Allergy and Infectious comments and suggestions from the preparedness and response efforts as dictated Diseases, NIH, Building 31, Room 4A30, public and affected agencies concerning by circumstances and events. Bethesda, MD 20892, 301–496–3006, the collection of information should The agenda is subject to change as address one or more of the following priorities dictate. [email protected]. Contact Person For More Information: Drue (Catalogue of Federal Domestic Assistance four points: Barrett, Ph.D., Designated Federal Officer, Program Nos. 93.855, Allergy, Immunology, (1) Evaluate whether the proposed ACD, CDC—ES, 1600 Clifton Road, NE., M/ and Transplantation Research; 93.856, collection of information is necessary S D–50, Atlanta, Georgia 30333. Telephone: Microbiology and Infectious Diseases for the proper performance of the (404) 639–4690. E-mail: [email protected]. Research, National Institutes of Health, HHS) functions of the agency, including The Director, Management Analysis and whether the information will have Dated: November 5, 2009. Services Office, has been delegated the practical utility; authority to sign Federal Register notices Jennifer Spaeth, (2) Evaluate the accuracy of the pertaining to announcements of meetings and Director, Office of Federal Advisory other committee management activities, for agencies estimate of the burden of the Committee Policy. both the Centers for Disease Control and proposed collection of information, Prevention and the Agency for Toxic [FR Doc. E9–27195 Filed 11–10–09; 8:45 am] including the validity of the Substances and Disease Registry. BILLING CODE 4140–01–P methodology and assumptions used;

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(3) Enhance the quality, utility, and Dated: November 5, 2009. This program provides grants to clarity of the information to be Sunday Aigbe, Indian tribes and Alaska Native Villages collected; and Chief, Regulatory Products Division, U.S. to develop viable Indian and Alaska (4) Minimize the burden of the Citizenship and Immigration Services, Native communities, including the collection of information on those who Department of Homeland Security. creation of decent housing, suitable are to respond, including through the [FR Doc. E9–27136 Filed 11–10–09; 8:45 am] living environments, and economic use of appropriate automated, BILLING CODE 9111–97–P opportunities primarily for persons with electronic, mechanical, or other low and moderate incomes as defined in technological collection techniques or 24 CFR 1003.4. other forms of information technology, DEPARTMENT OF HOUSING AND The awards announced in this Notice e.g., permitting electronic submission of URBAN DEVELOPMENT were selected for funding in a responses. [Docket No. FR–5318–FA–01] competition announced in a NOFA posted on the Department’s Recovery Overview of This Information Act Web site on May 27, 2009 (http:// Collection Announcement of Funding Awards for the Indian Community Development www.hud.gov/recovery). Applications (1) Type of Information Collection: Block Grant Recovery Act Program were scored and selected for funding Extension of an existing information based on the selection criteria in that AGENCY: Office of Native American collection. notice and Area ONAP geographic Programs, Office of Public and Indian jurisdictional competitions. (2) Title of the Form/Collection: Housing, HUD. Affidavit of Support. The amount appropriated in the ACTION: Announcement of funding Recovery Act to fund the ICDBG was (3) Agency form number, if any, and awards. the applicable component of the $10,000,000. The allocations contained Department of Homeland Security SUMMARY: In accordance with Section in the NOFA for the Area ONAP sponsoring the collection: Form I–134; 102(a)(4)(C) of the Department of geographic jurisdictions were adjusted U.S. Citizenship and Immigration Housing and Urban Development to meet Area Office needs as allowed for Services (USCIS). Reform Act of 1989, this announcement in the NOFA. The final adjusted allocations are as follows: (4) Affected public who will be asked notifies the public of funding decisions or required to respond, as well as a brief made by the Department in a competition for funding under the Eastern/Woodlands ...... $1,480,885 abstract: Primary: Individuals or Southern Plains ...... 1,738,957 households. The use of Form I–134 is American Recovery and Reinvestment Act of 2009 (‘‘Recovery Act’’) Notice of Northern Plains ...... 1,612,431 necessary to determine if an applicant Southwest ...... 2,635,925 for an immigration benefit will become Funding Availability (NOFA) for the Northwest ...... 1,200,000 a public charge if admitted to the United Indian Community Development Block Alaska ...... 1,331,802 States. Grant (ICDBG) Program. This announcement contains the Total ...... $10,000,000 (5) An estimate of the total number of consolidated names and addresses of respondents and the amount of time the award recipients under the ICDBG In accordance with Section 102 estimated for an average respondent to Recovery Act Program. respond: 44,000 responses at 1 hour and (a)(4)(C) of the Department of Housing FOR FURTHER INFORMATION CONTACT: For 30 minutes (1.50) per response. and Urban Development Reform Act of questions concerning the ICDBG 1989 (103 Stat. 1987, 42 U.S.C. 3545), (6) An estimate of the total public Program awards, contact the Area Office the Department is publishing the names, burden (in hours) associated with the of Native American Programs (ONAP) addresses, and amounts of the 19 collection: 66,000 annual burden hours. serving your area or Deborah M. awards made under the regional If you need a copy of the information Lalancette, Office of Native Programs, competitions in Appendix A to this collection instrument, please visit the 1670 Broadway, 23rd Floor, Denver, CO document. website at: http://www.regulations.gov/. 80202, telephone (303) 675–1600. Dated: October 29, 2009. We may also be contacted at: USCIS, Hearing or speech-impaired individuals Sandra B. Henriquez, Regulatory Products Division, 111 may access this number via TTY by Massachusetts Avenue, NW., calling the toll-free Federal Information Assistant Secretary for Public and Indian Housing. Washington, DC 20529–2210, Relay Service at (800) 877–8339. Telephone number 202–272–8377. SUPPLEMENTARY INFORMATION: APPENDIX A

RECOVERY ACT INDIAN COMMUNITY DEVELOPMENT BLOCK GRANT AWARDS

Name of applicant Amount funded Activity funded Project description

Alaska Region

Akiachak Native Community, George Peter, Presi- $299,215 Public Facility Infrastructure .. Construct 1,025 feet of access road to dent, P.O. Box 70, Akiachak, AK 99551, (907) Aanaq Subdivision. 825–4626. Chilkoot Indian Association, Gregory Stuckey, 432,587 Housing Rehabilitation ...... Inspection and rehabilitation of 20 homes. Tribal Administrator, P.O. Box 490, Haines, AK 99827, (907) 766–2323. Yakutat Tlingit Tribe, Victoria Demmert, President, 600,000 Public Facility ...... Construction of Community Center/Facil- P.O. Box 418, Yakutat, AK 99689, (907) 784– ity. 3238.

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RECOVERY ACT INDIAN COMMUNITY DEVELOPMENT BLOCK GRANT AWARDS—Continued

Name of applicant Amount funded Activity funded Project description

Total for Alaska Region ...... 1,331,802

Eastern Woodlands Region

Hannahville Indian Community, Kenneth $434,456 Public Facilities Infrastructure Deer Ridge Infrastructure & Utilities. Meshigaud, Tribal Chairperson, N14911 Hannahville B1 Road, Wilson, MI 49894, (906) 466–2932. Keweenaw Bay Indian Community, Warren 600,000 Public Facility Community Early Childhood Education Center. Swartz, Jr., President, 16429 Beartown Road, Center. Baraga, MI 49908, (906) 353–6623. White Earth Band Reservation Tribal Council, Mi- 446,429 Public Facility ...... White Earth Rediscovery Replacement chael Triplett, Planner, 26246 Crane Road, Center. White Earth, MN 56591, (218) 983–32485.

Total for Eastern Woodlands Region ...... 1,480,885

Northern Plains Region

Confederated Salish and Kootenai Tribes, James $412,431 Public Facility Infrastructure .. Install 288 water meters. Steele, Jr., Tribal Chairman, P.O. Box 278, Pablo, MT 59855, (406) 675–2700. Northern Cheyenne Tribal Housing Authority, Lafe 600,000 Housing Rehabilitation ...... Rehabilitate 20 units. Jaugen, Executive Director, P.O. Box 327, Lame Deer, MT 59043, (406) 477–6419. Utah Paiute Housing Authority, Jessie Laggis, Ex- 600,000 Housing Rehabilitation ...... Rehabilitate 18 units. ecutive Director, 665 North, 100 East, Cedar City, UT 84721, (435) 586–1122.

Total for Northern Plains Region ...... 1,612,431

Northwest Region

Confederated Tribes of the Grand Ronde Com- $600,000 Public Facilities and Improve- (1) Design and construction of a 1,900 munity of Oregon, Cheryle Kennedy, Tribal ments. sq. ft. addition to the Tribe’s Health and Chairwoman, 9615 Grand Ronde Road, Grand Wellness Center. Ronde, OR 97347, (503) 879–2250. (2) Remodel the front desk and lab spaces of the existing Dental Clinic. Quileute Housing Authority, Anna Parris, Execu- 600,000 Housing Construction...... Construct five accessible 2-bedroom tive Director, PO Box 159, LaPush, WA 98350, homes. (360) 374–9719.

Total for Northwest Region ...... 1,200,000

Southern Plains Region

Ottawa Tribe of Oklahoma, Margie Ross, Tribal $600,000 Housing Rehabilitation ...... Rehabilitate 17–25 low- and moderate-in- Administrator, 13 South 69A, Miami, OK 74354, come, single-family, owner-occupied (918) 540–1536. homes with energy efficient products. Pawnee Nation of Oklahoma, George E. Howell, 600,000 Public Facilities & Improve- Access improvements to the current facil- President, Pawnee Business Council, P.O. Box ment. ity used by the elderly, handicapped 470, 881 Little Dee Drive, Pawnee, OK 74058, and low- to moderate-income families (918) 762–3621. who receive food through the Food Distribution Center. Improvements will include energy efficient technologies. Seneca-Cayuga Tribe of Oklahoma, LeRoy How- 538,957 Public Facilities & Improve- Establishment of an auxiliary power ard, Chief, R2301 E. Steve Owens Blvd., ment. source for Tribal Water/Wastewater Miami, OK 74355, (918) 542–6609. Systems & Emergency Response Fa- cilities.

Total for Southern Plains Region ...... 1,738,957

Southwest Region

Bear River Band of Rohnerville Rancheria, Leon- $600,000 Housing Construction ...... Construct three 3-bedroom homeowner- ard Bowman, Tribal Chairperson, 27 Bear River ship units that include accessible fea- Drive, Loleta, CA 95551, (707) 733–1900. tures for disabled persons. Laguna Housing Development & Management 600,000 Housing Rehabilitation ...... Rehabilitate 15 homeownership units for Enterprise, William Sommers, Executive Direc- elderly/disabled persons. tor, P.O. Box 178, Laguna, NM 87026, (505) 552–6430.

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RECOVERY ACT INDIAN COMMUNITY DEVELOPMENT BLOCK GRANT AWARDS—Continued

Name of applicant Amount funded Activity funded Project description

Los Coyotes Band of Cahuilla and Cupeno Indi- 235,925 Housing Rehabilitation ...... Rehabilitate 13 homes for low- and mod- ans, Diane McHenry, Grant Writer, P.O. Box erate-income tribal members. 189, Warner Springs, Ca 92806, (760) 432–666. Ohkay Owingeh Housing Authority, Tomasita 600,000 Housing Rehabilitation ...... Rehabilitate 14 homes that are occupied Duran, Executive Director, P.O. Box 1059, by low- and moderate-income families Ohkay Owingeh, NM 87566, (505) 852–0189. located outside of the Pueblo’s historic area. Quechan Tribally Designated Housing Entity, 600,000 Housing Rehabilitation ...... Rehabilitate 10 homeownership housing Robert Letendre, Executive Director, 1860 West units in an old subdivision. Sapphire Lane, Winterhaven CA 92283, (760) 572–0243.

Total for Southwest Region ...... 2,635,925 Grand total ...... 10,000,000

[FR Doc. E9–27341 Filed 11–10–09; 8:45 am] single factor to be applied uniformly to portfolio have become the FY 2010 BILLING CODE 4210–67–P all projects utilizing OCAFs as the OCAFs. method by which renewal rents are OCAFs continue to be published at established or adjusted. the state level. States are the lowest DEPARTMENT OF HOUSING AND LIHPRHA projects are low-income level of geographical aggregation at URBAN DEVELOPMENT housing projects insured by the Federal which there are enough projects to Housing Administration (FHA). permit statistically reliable analysis. [Docket No. FR–5362–N–01] LIHPRHA projects are primarily low- Additionally, no data were available for Notice of Certain Operating Cost income housing projects insured under the Western Pacific Islands. Data for Adjustment Factors for 2010 section 221(d)(3) below-market interest Hawaii was therefore used to generate rate (BMIR) and section 236 of the OCAFs for these areas. Finally, due to AGENCY: Office of the Assistant National Housing Act, respectively. limited data, Puerto Rico data was used Secretary for Housing—Federal Housing Both categories of projects have low- to generate OCAFs for the Virgin Commissioner, HUD. income use restrictions that have been Islands. ACTION: Notice. extended beyond the 20-year period The Department continues to specified in the original documents, and reexamine the methodology for SUMMARY: This notice establishes, for both categories of projects also receive computing the operating cost 2010, operating cost adjustment factors assistance under section 8 of the U.S. adjustment factors so that they more (OCAFs). OCAFs are annual factors used Housing Act of 1937 to support the closely mirror actual operating to adjust Section 8 rents renewed under continued low-income use. expenses. Future OCAF releases will section 524 of the Multifamily Assisted Additionally, MAHRA gives HUD likely include methodology Housing Reform and Affordability Act broad discretion in setting OCAFs— improvements. of 1997 (MAHRA). referring, for example, in sections 524(a)(4)(C)(i), 524(b)(1)(A), 524(b)(3)(A) II. MAHRA and LIHPRHA OCAF DATES: Effective Date: February 11, Procedures 2010. and 524(c)(1) simply to ‘‘an operating cost adjustment factor established by the MAHRA, as amended, created the FOR FURTHER INFORMATION CONTACT: Secretary.’’ The sole limitation to this Mark-to-Market Program to reduce the Charles Capone, Director, Office of grant of authority is a specific cost of federal housing assistance, Evaluation, Office of Housing, requirement in each of the foregoing enhance HUD’s administration of such Department of Housing and Urban provisions that application of an OCAF assistance, and ensure the continued Development, 451 7th Street, SW., ‘‘shall not result in a negative affordability of units in certain Washington, DC 20410; telephone adjustment.’’ Contract rents are adjusted multifamily housing projects. Section number 202–402–3237 (this is not a toll- by applying the OCAF to that portion of 524 of MAHRA authorizes renewal of free number). Hearing- or speech- the rent attributable to operating Section 8 project-based assistance impaired individuals may access this expenses exclusive of debt service. contracts for projects without number through TTY by calling the toll- HUD calculates the average, per unit, restructuring plans under the Mark-to- free Federal Information Relay Service change in operating costs (excluding Market Program, including projects that at 800–877–8339. debt service and bad debt expense), by are not eligible for a restructuring plan SUPPLEMENTARY INFORMATION: state, for all projects submitting and those for which the owner does not consecutive valid financial statement request such a plan. Renewals must be I. OCAFs reports with fiscal year end dates at rents not exceeding comparable Section 514(e)(2) of MAHRA requires between July 31, 2007 and July 31, 2009. market rents except for certain projects. HUD to establish guidelines for rent The projects comprise all multifamily As an example, for Section 8 Moderate adjustments based on an OCAF. The properties excluding nursing homes and Rehabilitation projects, other than single statute requiring HUD to establish hospitals. Furthermore, data for projects room occupancy projects (SROs) under OCAFs for LIHPRHA projects and with unusually high or low expenses the McKinney-Vento Homeless projects with contract renewals or due to unusual circumstances were Assistance Act (42 U.S.C. 11301 et seq.), adjustments under section 524 of deleted from the analysis. These that are eligible for renewal under MAHRA is similar in wording and changes in actual operating costs section 524(b)(3) of MAHRA, the intent. HUD has therefore developed a experienced by properties within HUD’s renewal rents are required to be set at

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the lesser of: (1) The existing rents OPERATING COST ADJUSTMENT expedited basis, eligible activities under under the expiring contract, as adjusted FACTORS FOR 2010—Continued the CDBG program. The May 5, 2009, by the OCAF; (2) fair market rents (less [U.S. Average: 4.7%] Notice also indicated that HUD would any amounts allowed for tenant- establish and publish in the Federal purchased utilities); or (3) comparable Maryland ...... 5.0 Register criteria for reallocating and market rents for the market area. Massachusetts ...... 5.6 awarding CDBG–R funds that are not LIHPRHA (see, in particular, section Michigan ...... 3.8 awarded to any eligible jurisdiction. 222(a)(2)(G)(i), 12 U.S.C. 4112 (a)(2)(G) Minnesota ...... 5.3 Only one jurisdiction did not apply to and the regulations at 24 CFR Mississippi ...... 4.7 receive its Recovery Act allocation. 248.145(a)(9)) requires that future rent Missouri ...... 3.9 Montana ...... 3.2 Today’s Notice announces the process adjustments for LIHPRHA projects be Nebraska ...... 2.3 HUD will use to reallocate this made by applying an annual factor, to Nevada ...... 5.1 assistance. be determined by HUD to the portion of New Hampshire ...... 5.7 FOR FURTHER INFORMATION CONTACT: project rent attributable to operating New Jersey ...... 5.5 Stanley Gimont, Director, Office of expenses for the project and, where the New Mexico ...... 6.4 Block Grant Assistance, Office of owner is a priority purchaser, to the New York ...... 5.4 North Carolina ...... 4.1 Community Planning and Development, portion of project rent attributable to Department of Housing and Urban project oversight costs. North Dakota ...... 6.6 Ohio ...... 5.4 Development, 451 7th Street, SW., III. Findings and Certifications Oklahoma ...... 4.7 Room 7286, Washington, DC 20410; Oregon ...... 3.2 telephone number 202–708–3587 (this Environmental Impact Pacific Islands ...... 7.5 is not a toll-free number). Persons with This issuance sets forth rate Pennsylvania ...... 4.1 hearing or speech impairments may determinations and related external Puerto Rico ...... 4.6 access this number through TTY by administrative requirements and Rhode Island ...... 5.2 calling the toll-free Federal Information procedures that do not constitute a South Carolina ...... 4.1 South Dakota ...... 3.5 Relay Service at 800–877–8339. development decision affecting the Tennessee ...... 3.6 Interested parties may also visit the physical condition of specific project Texas ...... 5.5 CDBG–R Web page on HUD’s Recovery areas or building sites. Accordingly, Utah ...... 5.1 Act Web site, http://www.hud.gov/ under 24 CFR 50.19(c)(6), this notice is Vermont ...... 4.1 recovery/, for updated information and categorically excluded from Virgin Islands ...... 4.6 resources. environmental review under the Virginia ...... 5.1 SUPPLEMENTARY INFORMATION: National Environmental Policy Act of Washington ...... 3.9 1969 (42 U.S.C. 4321). West Virginia ...... 2.2 Authority To Provide Alternative Wisconsin ...... 7.1 Requirements and Grant Regulatory Catalog of Federal Domestic Assistance Wyoming ...... 7.1 Waivers Number Title XII of Division A of the The Catalog of Federal Domestic [FR Doc. E9–27340 Filed 11–10–09; 8:45 am] BILLING CODE 4210–67–P American Recovery and Reinvestment Assistance Number for this program is Act of 2009 (Pub. L. 111–005, approved 14.187. February 17, 2009) appropriates Dated: October 15, 2009. DEPARTMENT OF HOUSING AND $1 billion to carry out the CDBG David H. Stevens, URBAN DEVELOPMENT program under Title I of the Housing and Community Development Act of Assistant Secretary for Housing—Federal [Docket No. FR–5355–N–01] Housing Commissioner. 1974 (42 U.S.C. 5301, et seq.) on an expedited basis. These funds will be Appendix Notice of Program Requirements for Community Development Block Grant distributed to grantees that received Program Funding Under the American CDBG funding in Fiscal Year (FY) 2008, OPERATING COST ADJUSTMENT in accordance with the provisions of 42 FACTORS FOR 2010 Recovery and Reinvestment Act of 2009: Reallocations U.S.C. 5306. The grant program under [U.S. Average: 4.7%] Title XII is commonly referred to as the AGENCY: Office of the Assistant CDBG–R program. When referring to a Alabama ...... 4.5 Secretary for Community Planning and provision of the appropriations statute Alaska ...... 11.0 Development, HUD. itself, this notice will refer to the Arizona ...... 4.3 Recovery Act; when referring to the Arkansas ...... 5.3 ACTION: Notice. California ...... 4.3 grants, grantees, assisted activities, and SUMMARY: Colorado ...... 3.0 On May 5, 2009, HUD posted implementation rules, this notice will Connecticut ...... 8.2 on its Web site its ‘‘Notice of Program use the term CDBG–R. Delaware ...... 5.7 Requirements for Community Under the authority of the Recovery District of Columbia ...... 5.2 Development Block Grant Program Act, the Secretary may waive or specify Florida ...... 1.8 Funding Under the American Recovery alternative requirements for any Georgia ...... 5.7 and Reinvestment Act of 2009.’’ The provision of any statute or regulation in Hawaii ...... 7.5 Notice advised the public of statutory connection with the obligation by the Idaho ...... 4.5 and regulatory waivers granted to Secretary or the use by the recipient of Illinois ...... 4.6 grantees under the American Recovery Indiana ...... 4.1 these funds, except for requirements Iowa ...... 6.0 and Reinvestment Act of 2009 (Recovery related to fair housing, Kansas ...... 3.9 Act), which made $1 billion in nondiscrimination, labor standards, and Kentucky ...... 5.8 Community Development Block Grant the environment, upon a finding that Louisiana ...... 3.7 (CDBG) funds available to states and such waiver is necessary to expedite or Maine ...... 6.3 local governments to carry out, on an facilitate the timely use of such funds

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and would not be inconsistent with the to other metropolitan cities or counties not conduct or sponsor, and a person is overall purpose of the statute. The in the same metropolitan area that not required to respond to, a collection Secretary finds that the additional would be adversely affected by the loss of information unless the collection alternative requirement outlined below of the funds. If there is no such other displays a currently valid OMB control is necessary to expedite the use of these city or county in that metropolitan area, number. funds for their required purposes. as is the case with Fairbanks, the funds are to be reallocated in the next fiscal Environmental Impact Formula: Reallocation year among all Entitlement grantees A Finding of No Significant Impact Section I.B of the May 5, 2009, Notice nationwide. Under the existing (FONSI) with respect to the stated that if a unit of general local provisions of 42 U.S.C. 5306(c), this environment has been made for this government, State, or Insular Area money would be reallocated as part of issuance in accordance with HUD receiving an allocation of CDBG–R the process for allocating the next fiscal regulations at 24 CFR part 50, which funds under that notice fails to submit year’s appropriation of regular CDBG implement section 102(2)(C) of the a substantial amendment to its program funding, sometime in FFY 2010. National Environmental Policy Act of year 2008 action plan for its grant Reallocating the small amount of 1969 (42 U.S.C. 4332(2)(C)). The FONSI allocation by the deadlines specified in funds involved to almost 1,200 is available for public inspection Section II.A.4. of the Notice, or submits Entitlement grantees according to the between the hours of 8 a.m. and 5 p.m. an application for less than the total regular CDBG reallocation method weekdays in the Regulations Division, allocation amount, or if HUD is unable would impose a substantial Office of General Counsel, Room 10276, to approve any entity’s submission, administrative burden on both HUD and Department of Housing and Urban HUD may notify the jurisdiction of the grantees. Delaying the reallocation of Development, 451 Seventh Street, SW., cancellation of all or part of its these funds until the next FFY would Washington, DC 20410. Due to security allocation amount. The Notice further also cut into the time the eventual measures at the HUD Headquarters states that once HUD determines the recipient has to expend funds before the building, please schedule an amount of funds (if any) that are not September 30, 2012, expenditure appointment to review the FONSI by awarded to any jurisdictions, the deadline. The Department has further calling the Regulations Division at 202– Secretary will establish criteria by determined that it would not be time- or 708–3055 (this is not a toll-free which to award such funds to other cost-effective to develop a formal number). Individuals with speech or entities, and the criteria will be process and set of selection criteria for hearing impairments may access this published in the Federal Register. The awarding these funds to other grantees number via TTY by calling the toll-free Notice indicated that these criteria will on a competitive basis. Most CDBG–R Federal Information Relay Service at be established only if funds become grantees have just begun to implement 800–877–8339. available for reallocation. their programs, and no meaningful data Fairbanks, Alaska is the only grantee are yet available on which to judge the Dated: October 13, 2009. that declined to apply for its CDBG–R relative performance of grantees. HUD Mercedes Ma´rquez, funding. Every other grantee submitted believes it would be inconsistent with Assistant Secretary for Community Planning a substantial amendment to its action the purposes and requirements of the and Development. plan for its full allocation amount, and Recovery Act to wait for performance [FR Doc. E9–27093 Filed 11–10–09; 8:45 am] each is likely to be awarded its funds. data to become available before BILLING CODE 4210–67–P Fairbanks was a grantee under the establishing a reallocation process. Such regular annual CDBG Entitlement a delay would be counter to the program through Federal Fiscal Year Recovery Act’s intent to produce an DEPARTMENT OF THE INTERIOR (FFY) 2008, but starting in FY 2009, immediate economic stimulus. Fairbanks relinquished its status as an Weighing the fact that the reallocated Bureau of Land Management entitlement community in order to funds were designated for Fairbanks, participate in the State of Alaska CDBG [F–14877–B2, F–14935–B2; LLAK964000– Alaska, which has now ceased its L14100000–KC0000–P] program. The City declined to apply for participation in the Entitlement CDBG its CDBG–R funds in part because of the program to instead participate in the Alaska Native Claims Selection small amount of funds involved and in State program, the need for economic part because it is discontinuing its stimulus in Alaska, and the AGENCY: Bureau of Land Management, participation in the CDBG Entitlement governmental interest in putting these Interior. program. funds to expeditious use, the Secretary ACTION: Notice of modified decision Fairbanks’ formula allocation of finds good cause to waive the existing approving lands for conveyance. CDBG–R funds was one of the 50 requirements in order to reallocate smallest allocations in the program (out $67,436 in unawarded CDBG–R funds to SUMMARY: As required by 43 CFR of nearly 1,200). Its allocation amount the State of Alaska. This additional 2650.7(d), notice is hereby given that was $67,436. The amount of CDBG–R increment of funding equals less than 10 the decision approving lands for funds that are available for reallocation percent of the State of Alaska’s initial conveyance to NANA Regional is a tiny fraction of the CDBG–R funds allocation of CDBG–R funds. Corporation, Inc., Successor in Interest distributed to states and local to Koovukmeut Incorporated and governments (less than .007 percent of Paperwork Reduction Act Isingnakmeut Incorporated, notice of the appropriation). The information collection which was published in the Federal The Department has determined that requirements in this Notice have been Register on September 15, 2009, 74 FR it is necessary to employ an alternative approved by the Office of Management 47269, is modified to correct T. 18 N., reallocation process in order to expedite and Budget (OMB) under the Paperwork R. 17 E., Kateel River Meridian to read the timely use of these reallocated Reduction Act of 1995 (44 U.S.C. 3501– T. 18 N., R. 7 E., Kateel River Meridian. funds. Under 42 U.S.C. 5306(c), any 3520) and assigned OMB Control Notice of the modified decision will unawarded CDBG Entitlement funds are Number 2506–0184. In accordance with also be published four times in the to be reallocated in the next fiscal year the Paperwork Reduction Act, HUD may Anchorage Daily News.

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DATES: The time limits for filing an Secs. 25 to 28, inclusive; Cleave Creek, Bremner River, and appeal on the change made by the Secs. 32, 33, and 34. Tasnuna River, Alaska, and are located modified decision are: Containing approximately 1,695 acres. in: T. 2 S., R. 45 W., 1. Any party claiming a property Copper River Meridian, Alaska interest which is adversely affected by Secs. 4, 5, 8, and 9. the changes made by the modified Containing approximately 940 acres. T. 9 S., R. 2 E., Sec. 34. decision shall have until December 14, Aggregating approximately 5,096 acres. 2009 to file an appeal. Notice of the decision will also be Containing approximately 634 acres. 2. Parties receiving service of the published four times in the Arctic T. 12 S., R. 5 E., decision by certified mail shall have 30 Sounder. Secs. 2, 3, 10, and 11; Secs. 14, 15, 22, and 23; days from the date of receipt to file an DATES: The time limits for filing an Secs. 25, 26, and 27; appeal. appeal are: Secs. 34, 35 and 36. Parties who do not file an appeal in 1. Any party claiming a property Containing approximately 6,916 acres. accordance with the requirements of 43 interest which is adversely affected by T. 10 S., R. 6 E., CFR part 4, Subpart E, shall be deemed the decision shall have until December Secs. 25 to 30, inclusive. to have waived their rights. 14, 2009 to file an appeal. Containing approximately 3,817 acres. ADDRESSES: A copy of the modified 2. Parties receiving service of the T. 12 S., R. 6 E., decision may be obtained from: Bureau decision by certified mail shall have 30 Secs. 30 and 31. of Land Management, Alaska State days from the date of receipt to file an Containing approximately 1,277 acres. Office, 222 West Seventh Avenue, #13, appeal. Parties who do not file an appeal in T. 10 S., R. 7 E., Anchorage, Alaska 99513–7504. Secs. 11 to 14, inclusive; accordance with the requirements of 43 FOR FURTHER INFORMATION CONTACT: The Secs. 24 and 25. CFR part 4, subpart E, shall be deemed Bureau of Land Management by phone Containing approximately 3,786 acres. to have waived their rights. at 907–271–5960, or by e-mail at T. 21 S., R. 25 E., [email protected]. Persons ADDRESSES: A copy of the decision may Secs. 16 to 19, inclusive. who use a telecommunication device be obtained from: Bureau of Land Containing approximately 2,505 acres. (TTD) may call the Federal Information Management, Alaska State Office, 222 Aggregating of approximately 18,934 acres. Relay Service (FIRS) at 1–800–877– West Seventh Avenue, #13, Anchorage, 8339, 24 hours a day, seven days a Alaska 99513–7504. Notice of the decision will also be week, to contact the Bureau of Land FOR FURTHER INFORMATION CONTACT: The published four times in the Cordova Management. Bureau of Land Management by phone Times. at (907) 271–5960, or by e-mail at DATES: The time limits for filing an Hillary Woods, [email protected]. Persons appeal are: Land Law Examiner, Land Transfer who use a telecommunication device Adjudication I Branch. (TTD) may call the Federal Information 1. Any party claiming a property [FR Doc. E9–27079 Filed 11–10–09; 8:45 am] Relay Service (FIRS) at 1–800–877– interest which is adversely affected by BILLING CODE 4310–JA–P 8339, 24 hours a day, seven days a the decision shall have until week, to contact the Burea of Land December 14, 2009 to file an appeal. Management. 2. Parties receiving service of the DEPARTMENT OF THE INTERIOR decision by certified mail shall have 30 Hillary Woods, days from the date of receipt to file an Bureau of Land Management Land Law Examiner, Land Transfer appeal. Adjudication I Branch. [F–19148–12, F–19148–15; LLAK964000– [FR Doc. E9–27081 Filed 11–10–09; 8:45 am] Parties who do not file an appeal in L14100000–HY0000–P] accordance with the requirements of 43 BILLING CODE 4310–JA–P Alaska Native Claims Selection CFR Part 4, Subpart E, shall be deemed to have waived their rights. AGENCY: Bureau of Land Management, DEPARTMENT OF THE INTERIOR ADDRESSES: A copy of the decision may Interior. be obtained from: Bureau of Land ACTION: Notice of decision approving Bureau of Land Management Management, Alaska State Office, 222 lands for conveyance. [AA–8096–03; LLAK964000–L14100000– West Seventh Avenue, #13, Anchorage, KC0000–P] Alaska 99513–7504. SUMMARY: As required by 43 CFR 2650.7(d), notice is hereby given that an Alaska Native Claims Selection FOR FURTHER INFORMATION CONTACT: The appealable decision approving the Bureau of Land Management by phone surface and subsurface estates in certain AGENCY: Bureau of Land Management, at 907–271–5960, or by e-mail at lands for conveyance pursuant to the Interior. [email protected]. Persons Alaska Native Claims Settlement Act ACTION: Notice of decision approving who use a telecommunication device will be issued to Arctic Slope Regional lands for conveyance. (TTD) may call the Federal Information Corporation. The lands are in the Relay Service (FIRS) at 1–800–877– vicinity of Point Lay, Alaska, and are SUMMARY: As required by 43 CFR 8339, 24 hours a day, seven days a located in: 2650.7(d), notice is hereby given that an week, to contact the Bureau of Land appealable decision approving the Management. Umiat Meridian, Alaska surface and subsurface estates in certain T. 1 S., R. 44 W., lands for conveyance pursuant to the Hillary Woods, Secs. 19 to 23, inclusive; Alaska Native Claims Settlement Act Land Law Examiner, Land Transfer Secs. 26 to 30, inclusive. will be issued to Chugach Alaska Adjudication I Branch. Containing approximately 2,461 acres. Corporation. The lands are in the [FR Doc. E9–27084 Filed 11–10–09; 8:45 am] T. 1 S., R. 45 W., vicinity of Wernicke River, Icy Bay, BILLING CODE 4310–JA–P

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DEPARTMENT OF THE INTERIOR DEPARTMENT OF THE INTERIOR DEPARTMENT OF THE INTERIOR

Bureau of Land Management Bureau of Land Management Bureau of Land Management [AA–12466, AA–84417, AA–87834; [F–22467; LLAK–962000–L14100000– [F–22789; LLAK–962000–L14100000– LLAK965–L14100000–KC0000–P] HY0000–P] HY0000–P] Alaska Native Claims Selection Alaska Native Claims Selection Alaska Native Claims Selection AGENCY: Bureau of Land Management, Interior. AGENCY: Bureau of Land Management, AGENCY: Bureau of Land Management, Interior. Interior. ACTION: Notice of decision approving lands for conveyance. ACTION: Notice of decision approving ACTION: Notice of decision approving lands for conveyance. lands for conveyance. SUMMARY: As required by 43 CFR 2650.7(d), notice is hereby given that an SUMMARY: As required by 43 CFR SUMMARY: As required by 43 CFR appealable decision approving the 2650.7(d), notice is hereby given that an 2650.7(d), notice is hereby given that an surface and subsurface estates in certain appealable decision approving the appealable decision approving the lands for conveyance pursuant to the Alaska Native Claims Settlement Act conveyance of surface and subsurface conveyance of surface and subsurface will be issued to Calista Corporation. estates for certain lands pursuant to the estates for certain lands pursuant to the The lands are in the vicinity of Russian Alaska Native Claims Settlement Act Alaska Native Claims Settlement Act Mission, Marshall, Goodnews Bay, and will be issued to Doyon, Limited for will be issued to Doyon, Limited for Platinum, Alaska, and are located in: 143.65 acres located southeasterly of the 10.44 acres located southeasterly of the Native village of Huslia, Alaska. Notice Native village of Tanana, Alaska. Notice Seward Meridian, Alaska of the decision will also be published of the decision will also be published T. 16 N., R. 32 W., four times in the Anchorage Daily News. four times in the Anchorage Daily News. Secs. 1, 2, and 3; Secs. 10 to 15, inclusive. DATES: The time limits for filing an DATES: The time limits for filing an appeal are: appeal are: Containing approximately 5,561 acres. T. 11 N., R. 60 W., 1. Any party claiming a property 1. Any party claiming a property Secs. 7 and 8; interest which is adversely affected by interest which is adversely affected by Secs. 17 to 20, inclusive. the decision shall have until December the decision shall have until December Containing approximately 3,759 acres. 14, 2009 to file an appeal. 14, 2009 to file an appeal. T. 11 N., R. 61 W., 2. Parties receiving service of the 2. Parties receiving service of the Secs. 1 and 2; decision by certified mail shall have 30 decision by certified mail shall have 30 Secs. 9 to 16, inclusive; days from the date of receipt to file an days from the date of receipt to file an Secs. 21 to 26, inclusive; Secs. 35 and 36. appeal. appeal. Containing approximately 11,520 acres. Parties who do not file an appeal in Parties who do not file an appeal in T. 12 N., R. 61 W., accordance with the requirements of 43 accordance with the Department’s Secs. 23 to 26, inclusive; CFR part 4, subpart E, shall be deemed Hearings and Appeals Procedures (43 Secs. 35 and 36. to have waived their rights. CFR part 4, subpart E), shall be deemed Containing approximately 3,840 acres. to have waived their rights. ADDRESSES: A copy of the decision may T. 23 N., R. 65 W., Secs. 29 to 33, inclusive. be obtained from: Bureau of Land ADDRESSES: A copy of the decision may Management, Alaska State Office, 222 be obtained from: Bureau of Land Containing 3,153.40 acres. West Seventh Avenue, #13, Anchorage, Management, Alaska State Office, 222 T. 21 N., R. 67 W., Sec. 24. Alaska 99513–7504. West Seventh Avenue, #13, Anchorage, Alaska 99513–7504. Containing 640 acres. FOR FURTHER INFORMATION CONTACT: The T. 21 N., R. 68 W., Bureau of Land Management by phone FOR FURTHER INFORMATION CONTACT: The Secs. 17 and 18. at 907–271–5960, or by e-mail at Bureau of Land Management by phone Containing approximately 1,274 acres. [email protected]. Persons at 907–271–5960, or by e-mail at: T. 10 S., R. 71 W., who use a telecommunication device [email protected]. Persons Secs. 5, 6, 8, 17, and 18. (TTD) may call the Federal Information who use a telecommunication device Containing 3,106.15 acres. Relay Service (FIRS) at 1–800–877– (TTD) may call the Federal Information T. 10 S., R. 72 W., 8339, 24 hours a day, seven days a Relay Service (FIRS) at 1–800–877– Secs. 4, 5, 8, and 9; week, to contact the Bureau of Land 8339, 24 hours a day, seven days a Secs. 12 to 17, inclusive. Management. week, to contact the Bureau of Land Containing 6,400 acres. Management. T. 14 S., R. 74 W., Dina L. Torres, Sec. 31. Dina L. Torres, Land Transfer Resolution Specialist, Containing 620.08 acres. Resolution Branch. Land Transfer Resolution Specialist, Aggregating approximately 39,873 acres. [FR Doc. E9–27086 Filed 11–10–09; 8:45 am] Resolution Branch. Notice of the decision will also be BILLING CODE 4310–JA–P [FR Doc. E9–27082 Filed 11–10–09; 8:45 am] published four times in the Tundra BILLING CODE 4310–JA–P Drums. DATES: The time limits for filing an appeal are:

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1. Any party claiming a property National Historic Preservation Act, the Before including your name, address, interest which is adversely affected by Federal Water Project Recreation Act, phone number, e-mail address, or other the decision shall have until and the Reclamation Recreation personal identifying information in any December 14, 2009 to file an appeal. Management Act, as applicable. correspondence, you should be aware 2. Parties receiving service of the Reclamation will conduct a workshop that your entire correspondence— decision by certified mail shall have 30 for the benefit of the various including your personal identifying days from the date of receipt to file an Stakeholders. The purpose of the information—may be made publicly appeal. workshop is to provide the Stakeholders available at any time. While you can ask Parties who do not file an appeal in information relative to Reclamation us in your correspondence to withhold accordance with the requirements of 43 uniform policies, including land your personal identifying information CFR part 4, subpart E, shall be deemed management guidelines that promote from public review, we cannot to have waived their rights. use, management, and development, of guarantee that we will be able to do so. the Contra Loma Reservoir and the ADDRESSES: A copy of the decision may Dated: November 5, 2009. surrounding recreational area lands. A be obtained from: Bureau of Land Michael Chotkowski, public scoping meeting will be Management, Alaska State Office, 222 Regional Environmental Officer, Mid-Pacific announced at a later date for the West Seventh Avenue, #13, Anchorage, Region. purpose of soliciting input on the Alaska 99513–7504. [FR Doc. E9–27147 Filed 11–10–09; 8:45 am] alternatives, concerns, and issues to be FOR FURTHER INFORMATION CONTACT: The addressed in the RMP/EIS. BILLING CODE 4310–MN–P Bureau of Land Management by phone DATES: A workshop will be held on at 907–271–5960, or by e-mail at December 9, 2009 from 12:30 p.m. to DEPARTMENT OF THE INTERIOR [email protected]. Persons 2:30 p.m., in Antioch, California. who use a telecommunication device ADDRESSES: The workshop will be held Bureau of Indian Affairs (TTD) may call the Federal Information at the Lone Tree Golf Course and Event Relay Service (FIRS) at 1–800–877– Center, 4800 Golf Course Road, Antioch, Tribal Consultation on Draft Revisions 8339, 24 hours a day, seven days a California. to 25 CFR Parts 81 & 82 week, to contact the Bureau of Land Management. FOR FURTHER INFORMATION CONTACT: Ms. AGENCY: Bureau of Indian Affairs. Sheryl Carter, Land Use & Resource ACTION: Notice of tribal consultation Charles Lovely, Planning Specialist, South-Central meetings. Land Transfer Resolution Specialist, Land California Area Office, Bureau of Transfer Adjudication II Branch. Reclamation, 1243 N Street, Fresno, CA SUMMARY: Notice is hereby given that [FR Doc. E9–27080 Filed 11–10–09; 8:45 am] 93721; (559) 487–5299. the Bureau of Indian Affairs (BIA) will BILLING CODE 4310–JA–P SUPPLEMENTARY INFORMATION: The RMP/ conduct consultation meetings with EIS is to guide future land resources Indian tribes reorganized under the management to ensure land and waters Indian Reorganization Act (IRA) and the DEPARTMENT OF THE INTERIOR of the United States are maintained and Oklahoma Indian Welfare Act, and other protected as provided for under the interested tribal leaders, to obtain oral Bureau of Reclamation authorizing purposes over a given and written comments concerning the period of time. This process is intended potential revision of regulations at 25 Contra Loma Reservoir and Recreation CFR part 81, Tribal Reorganization Area, Resource Management Plan/ to establish uniform policy and land management guidelines that promote an under a Federal Statute, and 25 CFR Environmental Impact Statement, part 82, Petitioning Procedures for Antioch, CA—Central Valley Project organized use, development, and management of the Contra Loma Tribes Reorganized Under Federal AGENCY: Bureau of Reclamation, Reservoir and the surrounding Statute and Other Organized Tribes. Interior. recreational area lands. These areas will DATES: November 30—December 2, ACTION: Notice of intent to prepare a be compatible with scenic surroundings 2009, in Anchorage Alaska; January 12, Resource Management Plan/ and applicable Federal and State laws. 2010, in Brooks, California; January 14, Environmental Impact Statement (RMP/ An RMP incorporates into one 2010, in Pala, California; January 20, EIS) and notice of a Stakeholders document all the information pertinent 2010, in Minneapolis, Minnesota; and Workshop. to the future guidance of a management January 26, 2010, in Oklahoma City, area and may serve as the basis for Oklahoma. See the SUPPLEMENTARY SUMMARY: The Bureau of Reclamation future resource decision making for the INFORMATION section of this notice for (Reclamation) is preparing a RMP/EIS management area. The RMP is to chart more details. for Contra Loma Reservoir and the biological, physical, and social FOR FURTHER INFORMATION CONTACT: Recreation Area to establish uniform condition that Reclamation desires to Elizabeth Colliflower, Tribal Relations policy and land management guidelines see once all the RMP management Specialist, Division of Tribal that promote an organized use, actions have been implemented. In Government Services, 1849 C Street, development, and management of the addition, the RMP provides sufficient NW., Mail Stop 4513–MIB, Washington, Contra Loma Reservoir and the detailed ways to efficiently and DC; Telephone (202) 513–7641; Fax surrounding recreational area lands. The equitably provide recreational (202) 501–0679. RMP/EIS shall be prepared to meet all opportunities to meet public demand SUPPLEMENTARY INFORMATION: Federal and Reclamation standards. within its intended planning lifespan. These standards include consideration This RMP/EIS will be used to develop I. Background of appropriate Federal, state, and local an integrated document that fulfills the In 1992, the BIA drafted revisions to laws and ordinances including the requirements of an RMP and an EIS for 25 CFR part 81 and 25 CFR part 82 and National Environmental Policy Act, the the Contra Loma Reservoir and held four consultation sessions. The BIA Endangered Species Act, the Clean Recreation Area, Resource Management received comments and Water Act, the Clean Air Act, the Plan/Environmental Impact Statement. recommendations that are now in the

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current draft version. The current draft • Reflects the addition of two new • Provides guidelines for the approval version also: subsections to section 16 of the IRA by or disapproval of charters by the • Incorporates the amendments made the Technical Corrections Act of 1994 Secretary; and to section 16 of the IRA, 25 U.S.C. 476 (Pub. L. 103–363, 108 Stat. 707), which • Corrects demonstrated weaknesses (48 Stat. 984), as amended by the Act of eliminates distinctions between Indians and clarifies confusing language in the November 1, 1988 (Pub. L. 100–581, 102 reorganized as historical tribes and existing regulations. Stat. 2938), which established time those reorganized as communities of A consultation booklet containing the frames within which the Secretary of adult Indians; current draft version of the rule will be the Interior must call and conduct available for the meetings and will be • Includes language clarifying that an Secretarial elections; distributed to federally recognized • Reflects the amendments made to IRA tribe may amend its constitution to Indian tribes and BIA regional and section 17 of the IRA by the Act of May remove Secretarial approval of future agency offices. 24, 1990 (Pub. L. 101–301, 104 Stat. amendments as indicated by the new 207) under which additional tribes may subsection to Section 16 of the IRA with II. Meeting Details petition for charter of incorporation and the enactment of the Native American Tribal consultation meetings will be removes the requirement of a Secretarial Technical Corrections Act of 2004 (Pub. held at the following dates and election to ratify new charters; L. 106–179, 118 Stat. 453); locations:

Date Location Time

November 30–December 2, 2009 ... Egan Convention Center, 555 West 5th Avenue, Anchorage, Alaska; 9 a.m.–4:30 p.m. (Local Time). Telephone: (907) 263–2800. January 12, 2010 ...... Rumsey Rancheria, Cache Creek Casino & Resort, 14455 Highway 9 a.m.–4:30 p.m. (Local Time). 16, Brooks, California; Telephone: (888) 772–2243. January 14, 2010 ...... Pala Casino Resort & Spa, 11154 Hwy 76, Pala, California 92059; 9 a.m.–4:30 p.m. (Local Time). Telephone: (877) 946–7252. January 20, 2010 ...... Ramada Mall of America, 2300 East American Boulevard, Bloom- 9 a.m.–4:30 p.m. (Local Time). ington, Minnesota 55425–1228; Telephone: (952) 854–3411. January 26, 2010 ...... Embassy Suites Hotel, 1815 S. Meridian, Oklahoma City, Oklahoma 9 a.m.–4:30 p.m. (Local Time). 73108; Telephone: (405) 683–6000.

Dated: November 2, 2009. Development of the Environmental Phoenix, Arizona 85004–4427, 602– Larry Echo Hawk, Impact Statement (EIS) on the Proposed 417–9504. Assistant Secretary—Indian Affairs. Withdrawal of Mining in the Arizona Joanie Losacco, [FR Doc. E9–27181 Filed 11–10–09; 8:45 am] Strip District; RAC questions on BLM Acting Arizona State Director. BILLING CODE 4310–WP–P District Managers’ Reports; and reports [FR Doc. E9–27145 Filed 11–10–09; 8:45 am] by RAC working groups. A public comment period will be provided at BILLING CODE 4310–32–P DEPARTMENT OF THE INTERIOR 11:30 a.m. on December 9, 2009, for any interested publics who wish to address Bureau of Land Management DEPARTMENT OF THE INTERIOR the Council on BLM programs and [LLAZ9120000.L12200000.AL00006100. business. Bureau of Indian Affairs 241A] Under the Federal Lands Recreation Advisory Board for Exceptional State of Arizona Resource Advisory Enhancement Act, the RAC has been Children Council Meeting designated as the Recreation Resource Advisory Council (RRAC), and has the AGENCY: Bureau of Indian Affairs, AGENCY: Bureau of Land Management, authority to review all BLM and Forest Interior. Interior. Service (FS) recreation fee proposals in ACTION: Notice of meeting. ACTION: Notice of Arizona Resource Arizona. The afternoon meeting agenda Advisory Council Meeting. on December 9 will include review and SUMMARY: In accordance with the Federal Advisory Committee Act, the SUMMARY: In accordance with the discussion of the Recreation Bureau of Indian Education (BIE) is Federal Land Policy and Management Enhancement Act (REA) Working Group announcing that the Advisory Board for Act of 1976 and the Federal Advisory Report, REA Working Group meeting Exceptional Children will hold its next Committee Act of 1972, the U.S. schedule and future BLM/FS recreation meeting in Miccosukee, Florida. The Department of the Interior, Bureau of fee proposals. The RRAC will not purpose of the meeting is to meet the Land Management (BLM), Arizona review any recreation fee proposals at mandates of the Individuals with Resource Advisory Council (RAC), will this meeting. Disabilities Education Act of 2004 meet on December 9, 2009, at the BLM (IDEA) on Indian children with Arizona State Office located at One DATES: Effective Date: December 9, 2009. disabilities. North Central Avenue, Suite 800 in FOR FURTHER INFORMATION CONTACT: downtown Phoenix, from 8 a.m. until Deborah Stevens, Bureau of Land DATES: The Advisory Board will meet on 4:30 p.m. Morning agenda items Management, Arizona State Office, One Monday, November 16, 2009, and include: BLM State Director’s update on North Central Avenue, Suite 800, Tuesday, November 17, 2009, from statewide issues; update on BLM’s Four- 8:15 a.m. to 4:30 p.m. Eastern Time. Tracks to Solar Energy Development in ADDRESSES: The meetings will be held at Arizona; update on BLM Scoping the Miccosukee School, U.S. HWY 41 Process and Comments on the Mile Marker 70, P.O. Box 440021,

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Tamiami Station, Miami, FL, 33144; found suitable for classification for lease October 5, 1998, and would be in the telephone (305) 894–2364. and subsequent conveyance under the public interest. FOR FURTHER INFORMATION CONTACT: Sue provisions of the Recreation and Public The lease and subsequent conveyance Bement, Designated Federal Official, Purposes (R&PP) Act, as amended, will be subject to the provisions of the Bureau of Indian Education, approximately 5.09 acres of public land R&PP Act and applicable regulations of Albuquerque Service Center, Division of in Clark County, Nevada. The City of the Secretary of the Interior, and will be Performance and Accountability, 1011 North Las Vegas (City) proposes to use subject to the following terms, Indian School Road NW., P.O. Box the land for a police substation, offices, conditions and reservations: 1088, Suite 332, Albuquerque, NM and a yard site with related 1. A right-of-way thereon for ditches 87103; telephone (505) 563–5274. appurtenances. or canals constructed by the authority of the United States, Act of August 30, SUPPLEMENTARY INFORMATION: The DATE: Interested parties may submit 1890 (43 U.S.C. 945); Advisory Board was established to written comments regarding the 2. All minerals shall be reserved to advise the Secretary of the Interior, proposed lease and subsequent the United States, together with the through the Assistant Secretary-Indian conveyance of the lands until right to prospect for, mine and remove Affairs, on the needs of Indian children December 28, 2009. such deposits from the same under with disabilities, as mandated by the ADDRESSES: Mail written comments to applicable law and such regulations as Individuals with Disabilities Act of 2004 the BLM Field Manager, Las Vegas Field the Secretary of the Interior may (Pub. L. 108–446). The meetings are Office, 4701 N. Torrey Pines Drive, Las prescribe; open to the public. Vegas, NV 89130. 3. Right-of-way N–54351 for fiber The following items will be on the FOR FURTHER INFORMATION CONTACT: optic facilities purposes reserved to the agenda: U.S. Air Force, its successors and • Cheryl G. Cote, (702) 515–5104. Advisory Board Ethics Training assigns, pursuant to section 507 of the • Advisory Board Orientation SUPPLEMENTARY INFORMATION: The Federal Land Policy and Management • Advisory Board Priority Team Reports following described land in Clark • Act of 1976 (FLPMA), as amended (43 Report from Gloria Yepa, Supervisory County, Nevada, has been examined and U.S.C. 1767); Education Specialist, Bureau of found suitable for lease and subsequent 4. Valid existing rights; Indian Education, Division of conveyance under the provisions of the 5. Right-of-way N–42581 for a gas Performance and Accountability R&PP Act, as amended (43 U.S.C. 869 et pipeline purposes granted to Kern River • Public Comments (via conference call, seq.). The parcel of land is located on Gas Transmission Company, its November 16, 2009, meeting only*) the east side of Pecos Road • successors and assigns, pursuant to Review of Advisory Board Annual approximately one-eighth mile north of section 501 of the Mineral Leasing Act Report—Dr. Billi Jo Kipp the Pecos Road and Centennial Parkway • of 1920 (30 U.S.C. 185); Setting Advisory Board Priorities for intersection and is legally described as: 6. Rights-of-way N–42592 and N– 2010–2011 • Mount Diablo Meridian 82352 for power line purposes granted Advisory Board Advice and to Nevada Power Company, its Recommendations T. 19 S., R. 62 E., • Sec. 19, portion of lot 19. successors or assigns, pursuant to Next Advisory Board meeting date section 501 of FLPMA (43 U.S.C. 1761); and place This description will be replaced by 7. Right-of-way N–61878 for water * During the November 16, 2009, another lot designation on final approval of the official plat of survey. The area described pipeline purposes granted to Southern meeting, time has been set aside for contains 5.09 acres, more or less, in Clark Nevada Water Authority, its successors public comment via conference call County. and assigns, pursuant to section 501 of from 1–1:30 p.m. Eastern Time. The FLPMA (43 U.S.C. 1761); call-in information is: Conference The City filed an R&PP application to 8. Rights-of-way N–76342 and N– Number 1–888–387–8686, Passcode develop the above described land as an 7634201 for fiber optic facility and work 4274201. offices and yard site. The proposed area purposes, respectively, granted to facilities consist of offices, a yard area, Dated: November 3, 2009. Nevada Power Company, its successors and related appurtenances for various and assigns, pursuant to section 501 of Larry Echo Hawk, City departments, such as police, parks Assistant Secretary—Indian Affairs. FLPMA (43 U.S.C. 1761); and and recreation, public works, and 9. An appropriate indemnification [FR Doc. E9–27179 Filed 11–10–09; 8:45 am] utilities. It will provide a critical hub for clause protecting the United States from BILLING CODE 4310–6W–P the City to provide essential claims arising out of lessee’s/patentee’s maintenance, operations, and safety use, occupancy, or operations on the services to the public. Related facilities leased/patented real property. DEPARTMENT OF THE INTERIOR include a modular building, outdoor Upon publication of this notice in the vehicle storage, public parking, utilities, Bureau of Land Management Federal Register, the land described landscaping, and an exterior chain link above will be segregated from all other [LLNVSO0500.L58530000.ER0000; N–85687; fence. Additional detailed information forms of appropriation under the public 9–08807; TAS:14X5232) pertaining to this application, plan of land laws, including the general mining development, and site plan is located in laws, except for lease or conveyance Notice of Realty Action: Recreation case file N–85687 at the Bureau of Land under the R&PP Act, leasing under the and Public Purposes Act Classification Management (BLM) Las Vegas Field mineral leasing laws, and disposals of Public Land, Clark County, NV Office at the address above. under the mineral material disposal AGENCY: Bureau of Land Management, The City is a political subdivision of laws. Interior. the State of Nevada and is therefore a Interested parties may submit written ACTION: Notice of realty action. qualified applicant under the R&PP Act. comments regarding the specific use The lease and subsequent conveyance is proposed in the application and plan of SUMMARY: The Bureau of Land consistent with the BLM Las Vegas development, whether BLM followed Management (BLM) has examined and Resource Management Plan, dated proper administrative procedures in

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reaching the decision to lease and basic classes of controlled substances is subsequently convey under the R&PP Drug Schedule consistent with the public interest at Act, or any other factor not directly this time. DEA has investigated related to the suitability of the land for Methadone Intermediate (9254) ... II Noramco, Inc. to ensure that the R&PP use. Any adverse comments will company’s registration is consistent be reviewed by the BLM Nevada State The company plans to manufacture with the public interest. The Director, who may sustain, vacate, or the listed controlled substances in bulk investigation has included inspection modify this realty action. In the absence for sale to its customers for formulation and testing of the company’s physical of any adverse comments, this realty into finished pharmaceuticals. security systems, verification of the action will become the final No comments or objections have been company’s compliance with State and determination of the Department of the received. DEA has considered the local laws, and a review of the Interior. factors in 21 U.S.C. 823(a) and company’s background and history. Before including your address, phone determined that the registration of Therefore, pursuant to 21 U.S.C. § 823, number, e-mail address, or other Boehringer Ingelheim Chemicals, Inc. to and in accordance with 21 CFR 1301.33, personal identifying information in your manufacture the listed basic classes of the above named company is granted comment, you should be aware that controlled substances is consistent with registration as a bulk manufacturer of your entire comment—including your the public interest at this time. DEA has the basic classes of controlled personal identifying information—may investigated Boehringer Ingelheim substances listed. be made publicly available at any time. Chemicals, Inc. to ensure that the Dated: November 3, 2009. company’s registration is consistent While you may ask us in your comment Joseph T. Rannazzisi, to withhold your personal identifying with the public interest. The investigation has included inspection Deputy Assistant Administrator, Office of information from public review, we Diversion Control, Drug Enforcement cannot guarantee that we will be able to and testing of the company’s physical Administration. security systems, verification of the do so. Only written comments [FR Doc. E9–27180 Filed 11–10–09; 8:45 am] company’s compliance with state and submitted by postal service or overnight BILLING CODE 4410–09–M mail to the Field Manager, BLM Las local laws, and a review of the Vegas Field Office, will be considered company’s background and history. properly filed. Electronic mail, Therefore, pursuant to 21 USC § 823, DEPARTMENT OF JUSTICE facsimile, or telephone comments will and in accordance with 21 CFR 1301.33, not be considered properly filed. the above named company is granted Drug Enforcement Administration In the absence of any adverse registration as a bulk manufacturer of comments, the decision will become the basic classes of controlled Manufacturer of Controlled Substances; Notice of Registration effective January 11, 2010. The lands substances listed. will not be available for lease or Dated: November 3, 2009. By Notice dated April 17, 2009, and subsequent conveyance until after the Joseph T. Rannazzisi, published in the Federal Register on decision becomes effective. Deputy Assistant Administrator, Office of April 29, 2009, (74 FR 19599), Stepan (Authority: 43 CFR 2741.5) Diversion Control, Drug Enforcement Company, Natural Products Dept., 100 Administration. W. Hunter Avenue, Maywood, New Kimber Liebhauser, [FR Doc. E9–27194 Filed 11–10–09; 8:45 am] Jersey 07607, made application by Assistant Field Manager, Division of Lands. BILLING CODE 4410–09–P renewal to the Drug Enforcement [FR Doc. E9–27089 Filed 11–10–09; 8:45 am] Administration (DEA) to be registered as BILLING CODE 4310–HC–P a bulk manufacturer of the basic classes DEPARTMENT OF JUSTICE of controlled substances listed in schedule II: Drug Enforcement Administration DEPARTMENT OF JUSTICE Drug Schedule Manufacturer of Controlled Drug Enforcement Administration Substances; Notice of Registration Cocaine (9041) ...... II Benzoylecgonine (9180) ...... II Manufacturer of Controlled By Notice dated June 15, 2009, and Substances; Notice of Registration published in the Federal Register on The company plans to manufacture By Notice dated June 15, 2009, and June 23, 2009, (74 FR 29719), Noramco the listed controlled substances in bulk published in the Federal Register on Inc., Division of Ortho-McNeil, Inc., for distribution to its customers. June 23, 2009, (74 FR 29719), 1440 Olympic Drive, Athens, Georgia No comments or objections have been Boehringer Ingelheim Chemicals, Inc., 30601, made application by letter to the received. DEA has considered the 2820 N. Normandy Drive, Petersburg, Drug Enforcement Administration factors in 21 U.S.C. 823(a) and Virginia 23805, made application by (DEA) to be registered as a bulk determined that the registration of renewal to the Drug Enforcement manufacturer of Tapentadol (9780), a Stepan Company to manufacture the Administration (DEA) to be registered as basic class of controlled substance listed listed basic classes of controlled a bulk manufacturer of the basic classes in schedule II. substances is consistent with the public The company plans to bulk interest at this time. DEA has of controlled substances listed in manufacture the above listed controlled investigated Stepan Company to ensure schedule II: substance for distribution to its that the company’s registration is customers. consistent with the public interest. The Drug Schedule No comments or objections have been investigation has included inspection Amphetamine (1100) ...... II received. DEA has considered the and testing of the company’s physical Lisdexamfetamine (1205) ...... II factors in 21 U.S.C. 823(a) and security systems, verification of the Methylphenidate (1724) ...... II determined that the registration of company’s compliance with state and Methadone (9250) ...... II Noramco, Inc. to manufacture the listed local laws, and a review of the

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company’s background and history. certification to include workers leased were published in the Federal Register Therefore, pursuant to 21 U.S.C. 823, from Robinson Solutions working on- on February 13, 2009 (74 FR 7269), and in accordance with 21 CFR 1301.33, site at the Fenton, Missouri location of July 14, 2009 (74 FR 34043) and the above named company is granted the subject firm. September 22, 2009 (74 FR 48314– registration as a bulk manufacturer of The intent of the Department’s 48315) respectively. the basic classes of controlled certification is to include all workers At the request of the State agency, the substances listed. employed at Chrysler LLC, St. Louis Department reviewed the Notice of Dated: November 3, 2009. South Assembly Division, Fenton, Missouri who were adversely affected Revised Determination on Joseph T. Rannazzisi, by increased imports of Chrysler Town Reconsideration for workers of the Deputy Assistant Administrator, Office of and Country mini-van and the Dodge subject firm. The workers are in direct Diversion Control, Drug Enforcement support of production of numerous Administration. Grand Caravan mini-van. The amended notice applicable to assembly plants of Ford Motor Company [FR Doc. E9–27193 Filed 11–10–09; 8:45 am] TA–W–62,438 is hereby issued as whose workers were certified eligible to BILLING CODE 4410–09–P follows: apply for adjustment assistance. All workers of Chrysler LLC, St. Louis New information shows that workers DEPARTMENT OF LABOR South Assembly Division, including on-site leased workers from TEK Systems were leased workers from HAAS TCM, Inc. and employed on-site at the Dearborn, Employment and Training Robinson Solutions, Fenton, Missouri, who Michigan location of Ford Motor became totally or partially separated from Administration employment on or after November 7, 2006, Company, Product Development Center. The Department has determined that [TA–W–62,438] through December 14, 2009, are eligible to apply for adjustment assistance under these workers were sufficiently under Chrysler LLC, St. Louis South Section 223 of the Trade Act of 1974, and are the control of the subject firm to be Assembly Division, Including On-Site also eligible to apply for alternative trade considered leased workers. Leased Workers From Haas TCM, Inc. adjustment assistance under Section 246 of the Trade Act of 1974. Based on these findings, the and Robinson Solutions, Fenton, MO; Department is amending this revised Amended Certification Regarding Richard Church, determination to include workers leased Eligibility To Apply for Worker Certifying Officer, Division of Trade from TEK Systems working on-site at Adjustment Assistance and Alternative Adjustment Assistance. the Dearborn, Michigan location of the Trade Adjustment Assistance [FR Doc. E9–27100 Filed 11–10–09; 8:45 am] subject firm. BILLING CODE 4510–FN–P In accordance with Section 223 of the The intent of the Department’s Trade Act of 1974 (19 U.S.C. 2273), and certification is to include all workers Section 246 of the Trade Act of 1974 (26 DEPARTMENT OF LABOR employed at Ford Motor Company, U.S.C. 2813), as amended, the Product Development and Engineering Department of Labor issued a Employment and Training Center, Dearborn, Michigan who were Certification of Eligibility To Apply for Administration adversely affected by increased imports. Worker Adjustment Assistance and Alternative Trade Adjustment [TA–W–60,086] The amended notice applicable to Assistance on December 14, 2007, TA–W–60,086 is hereby issued as Ford Motor Company Product follows: applicable to workers of Chrysler LLC, Development and Engineering Center St. Louis South Assembly Division, Including On-Site Leased Workers All workers of Ford Motor Company, Fenton, Missouri. The notice was From Roush Management LLC, Rapid Product Development and Engineering published in the Federal Register on Global Business Solutions, Inc., TAC Center, including on-site leased workers from December 31, 2007 (72 FR 74343). The Automotive, MSX, New Dimension Roush Management LLC, Rapid Global notice was amended November 18, 2008 Group, Kelly Services and TEK Business Solutions, Inc., TAC Automotive, to include on-site leased workers from Systems, Dearborn, Michigan; MSX, New Dimension Group, Kelly Services Haas TCM, INC. The notice was Amended Notice of Revised and TEK Systems, Dearborn, Michigan, who became totally or partially separated from published in the Federal Register on Determination on Reconsideration December 1, 2008 (73 FR 72848). employment on or after September 14, 2005, At the request of the petitioner, the In accordance with Section 223 of the through August 8, 2009, are eligible to apply Department reviewed the certification Trade Act of 1974 (19 U.S.C. 2273), and for adjustment assistance under Section 223 for workers of the subject firm. The Section 246 of the Trade Act of 1974 (26 of the Trade Act of 1974, and are also eligible workers assemble Chrysler Town and U.S.C. 2813), as amended, the to apply for alternative trade adjustment Country mini-van, and the Dodge Grand Department of Labor issued a Notice of assistance under Section 246 of the Trade Act Caravan mini-van. Revised Determination on of 1974. New information shows that leased Reconsideration on August 8, 2007. The Signed at Washington, DC, this 27th day of workers from Robinson Solutions were notice was published in the Federal October 2009. employed on-site at the Fenton, Register on August 20, 2007 (72 FR Elliott S. Kushner, Missouri location of Chrysler LLC, St. 46515–46516). The Revised Certifying Officer, Division of Trade Louis South Assembly Division. The Determination on Reconsideration was Adjustment Assistance. Department has determined that these amended on January 30, 2009, July 8, workers were sufficiently under the 2009 and August 26, 2009 to include on- [FR Doc. E9–27106 Filed 11–10–09; 8:45 am] control of Chrysler LLC, St. Louis South site leased workers from Roush BILLING CODE 4510–FN–P Assembly Division to be considered Management LLC, Rapid Global leased workers. Businesses Solutions, Inc., TAC Based on these findings, the Automotive, MSX, New Dimension Department is amending this Group, and Kelly Services. The notices

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DEPARTMENT OF LABOR DEPARTMENT OF LABOR Signed in Washington, DC, this 27th day of October, 2009. Employment and Training Employment and Training Richard Church, Administration Administration Certifying Officer, Division of Trade Adjustment Assistance. [TA–W–71,903] [TA–W–70,276] [FR Doc. E9–27103 Filed 11–10–09; 8:45 am] BILLING CODE 4510–FN–P JP Morgan Chase and Company, JP Ecoquest Holdings Corporation, Morgan Investment Banking Global Greeneville, TN; Amended Certification Corporate Financial Operations, New Regarding Eligibility To Apply for DEPARTMENT OF LABOR York, NY; Notice of Affirmative Worker Adjustment Assistance Employment and Training Determination Regarding Application Administration for Reconsideration In accordance with Section 223 of the Trade Act of 1974, as amended (‘‘Act’’), [TA–W–70,045] By application dated October 12, 19 U.S.C. 2273, and Section 246 of the 2009, a petitioner requested Trade Act of 1974 (26 USC 2813), as Victoria and Company, Ltd, a Division administrative reconsideration of the amended, the Department of Labor of Jones Apparel Group: Product negative determination regarding issued a Certification of Eligibility to Development Group, East Providence, workers’ eligibility to apply for Trade apply for Worker Adjustment Assistance RI; Determination Regarding Eligibility To Apply for Worker Adjustment Adjustment Assistance (TAA) and Alternative Trade Adjustment Assistance on July 1, 2009, applicable to Assistance and Alternative Trade applicable to workers and former workers of Ecoquest Holdings Adjustment Assistance workers of the subject firm. The Corporation, Greeneville, Tennessee. determination was issued on On October 22, 2009, the Department The notice was published in the Federal September 24, 2009. The Notice of issued an Affirmative Determination Register on August 19, 2009 (74 FR Regarding Application for Determination will soon be published in 41932). the Federal Register. Reconsideration applicable to workers At the request of the State agency, the The initial investigation resulted in a and former workers of the subject firm. Department reviewed the certification The previous investigation initiated negative determination based on the for workers of the subject firm. The on May 18, 2009, resulted in a negative finding that workers’ separations or workers are engaged in activity related determination issued on September 10, threat of separations was not related to to the production of air and water 2009, and was based on the finding that an increase in imports or shift/ purification units. imports of solid fragrance compacts did acquisition of business research and Findings show that there was a not contribute importantly to worker clerical support operations to a foreign separations at the subject firm and no country. previous certification, TA–W–60,799, issued on February 28, 2007, for the shift of production to a foreign source In the request for reconsideration, the workers of the Greenville, Tennessee occurred. petitioner alleged that employment at location of Ecoquest Holding In the request for reconsideration, the the subject firm was negatively Corporation. That certification expires petitioners supplied additional impacted by a shift in services from the February 28, 2009. To avoid an overlap information and alleged that the subject firm to India. The petitioner also in worker group coverage for the workers of the subject firm also alleged that the services performed by workers of the Greenville, Tennessee designed and fabricated jewelry master workers of the subject firm were location of Ecoquest Holding models and that the subject firm shifted supplied to external customers. Corporation, the certification is being these functions to China during the relevant period. The petitioners’ The Department has carefully amended to change the impact date intention was to file a request for reviewed the request for reconsideration from May 18, 2008 to March 1, 2009. reconsideration for workers engaged in and the existing record and has Accordingly, the Department is design and fabrication of master models. determined that the Department will amending the certification to properly The Department contacted a company conduct further investigation to reflect this matter. official of the subject firm to address determine if the workers meet the The intent of the Department’s this allegation. Upon further eligibility requirements of the Trade Act certification is to include all workers of investigation, it was revealed that the of 1974. Ecoquest Holding Corporation who were workers of the subject firm not only Conclusion adversely affected by a shift in manufactured solid fragrance compacts, production of air and water purification but also performed technical design After careful review of the units to China. utilizing CAD systems and were application, I conclude that the claim is The amended notice applicable to engaged in model making and product of sufficient weight to justify TA–W–70,276 is hereby issued as coordination during the relevant period. reconsideration of the U.S. Department follows: These workers were Model Makers, of Labor’s prior decision. The Product Coordinators and Technical application is, therefore, granted. All workers of Ecoquest Holdings Designers and were employees of the Corporation, Greeneville, Tennessee who Product Development Group. The Signed at Washington, DC, this 27th day of became totally or partially separated from workers were separately identifiable October 2009. employment on or after March 1, 2009, from other workers at the subject firm Elliott S. Kushner, through July 1, 2011, are eligible to apply for adjustment assistance under Section 223 of by job classification. The investigation Certifying Officer, Division of Trade the Trade Act of 1974, and are also eligible further revealed that the subject firm Adjustment Assistance. to apply for alternative trade adjustment shifted technical design, model making [FR Doc. E9–27104 Filed 11–10–09; 8:45 am] assistance under Section 246 of the Trade Act and product coordination functions to a BILLING CODE 4510–FN–P of 1974. third party located in Asia and that the

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worker separations at the above Assistance on April 14, 2008, applicable DEPARTMENT OF LABOR mentioned department were directly to workers of Chrysler LLC, St. Louis attributed to this shift. North Assembly Plant, Fenton, Employment and Training Missouri. The notice was published in Administration Conclusion the Federal Register on May 2, 2008 (73 After careful review of the additional FR 24317). The certification was Investigations Regarding Certifications facts obtained on reconsideration, I amended on November 18, 2009 and of Eligibility To Apply for Worker determine that workers of Victoria and December 9, 2009 to include on-site Adjustment Assistance Company, Ltd, a Division of Jones leased workers from HAAS TMC, Inc. Apparel Group, Product Development and Logistics Services, Inc. The notices Petitions have been filed with the Group, East Providence, Rhode Island, were published in the Federal Register Secretary of Labor under Section 221(a) who are engaged in activities related to on December 1, 2008 (73 FR 72848) and of the Trade Act of 1974 (‘‘the Act’’) and technical design, model making and December 18, 2008 (73 FR 77069) are identified in the Appendix to this product coordination meet the worker respectively. notice. Upon receipt of these petitions, group certification criteria under At the request of the State Agency, the the Director of the Division of Trade Section 222(a) of the Act, 19 U.S.C. Department reviewed the certification Adjustment Assistance, Employment 2272(a). In accordance with Section 223 for workers of the subject firm. The and Training Administration, has workers assemble Dodge Ram full-sized of the Act, 19. U.S.C. 2273, I make the instituted investigations pursuant to following certification: pickup trucks. Section 221(a) of the Act. Workers of Victoria and Company, Ltd, a New information shows that leased Division of Jones Apparel Group, Product workers from Robinson Solutions were The purpose of each of the Development Group, East Providence, Rhode employed on-site at the Fenton, investigations is to determine whether Island, who became totally or partially Missouri location of Chrysler LLC, St. the workers are eligible to apply for separated from employment on or after May Louis North Assembly Plant. The adjustment assistance under Title II, 18, 2008, through two years from the date of Department has determined that these Chapter 2, of the Act. The investigations this certification, and all workers in the workers were sufficiently under the will further relate, as appropriate, to the group threatened with total or partial control of Chrysler LLC, St. Louis North separation from employment on date of determination of the date on which total certification through two years from the date Assembly Plant to be considered leased or partial separations began or of certification, are eligible to apply for workers. threatened to begin and the subdivision adjustment assistance under Chapter 2 of Based on these findings, the of the firm involved. Title II of the Trade Act of 1974, as amended. Department is amending this certification to include workers leased The petitioners or any other persons Signed in Washington, DC this 3rd day of showing a substantial interest in the November 2009. from Robinson Solutions working on- site at the Fenton, Missouri location of subject matter of the investigations may Elliott S. Kushner, the subject firm. request a public hearing, provided such Certifying Officer, Division of Trade The intent of the Department’s request is filed in writing with the Adjustment Assistance. certification is to include all workers Director, Division of Trade Adjustment [FR Doc. E9–27102 Filed 11–10–09; 8:45 am] employed at Chrysler LLC, St. Louis Assistance, at the address shown below, BILLING CODE 4510–FN–P North Assembly Plant, Fenton, Missouri not later than November 23, 2009. who were adversely affected by Interested persons are invited to increased imports of Dodge Ram full- DEPARTMENT OF LABOR sized pickup trucks. submit written comments regarding the The amended notice applicable to subject matter of the investigations to Employment and Training the Director, Division of Trade Administration TA–W–63,052 is hereby issued as follows: Adjustment Assistance, at the address shown below, not later than November [TA–W–63,052] All workers of Chrysler LLC, St. Louis North Assembly Plant, including on-site 23, 2009. Chrysler LLC, St. Louis North leased workers from HAAS TCM, Inc., The petitions filed in this case are Assembly Plant, Including On-Site Logistics Services, Inc., and Robinson available for inspection at the Division Leased Workers From Haas TCM, Inc., Solutions, Fenton, Missouri, who became Logistics Services, Inc., and Robinson totally or partially separated from of Trade Adjustment Assistance, Solutions, Fenton, MO; Amended employment on or after March 18, 2007, Employment and Training Certification Regarding Eligibility To through April 14, 2010, are eligible to apply Administration, U.S. Department of Apply for Worker Adjustment for adjustment assistance under Section 223 Labor, Room N–5428, 200 Constitution of the Trade Act of 1974, and are also eligible Avenue, NW., Washington, DC 20210. Assistance and Alternative Trade to apply for alternative trade adjustment Adjustment Assistance assistance under Section 246 of the Trade Act Signed at Washington, DC, this 3rd day of In accordance with Section 223 of the of 1974. November 2009. Trade Act of 1974 (19 U.S.C. 2273), and Signed at Washington, DC, this 30th day of Richard Church, Section 246 of the Trade Act of 1974 (26 October 2009. Certifying Officer, Division of Trade U.S.C. 2813), as amended, the Elliott S. Kushner, Adjustment Assistance. Department of Labor issued a Certifying Officer, Division of Trade Certification of Eligibility to Apply for Adjustment Assistance. Worker Adjustment Assistance and [FR Doc. E9–27101 Filed 11–10–09; 8:45 am] Alternative Trade Adjustment BILLING CODE 4510–FN–P

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APPENDIX [TAA Petitions instituted between 10/19/09 and 10/23/09]

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

72609 ...... Valeo Climate Control Corporation (Wkrs) ...... Auburn Hills, MI ...... 10/19/09 10/16/09 72610 ...... Brand Science, LLC (Comp) ...... Stearns, KY ...... 10/19/09 10/16/09 72611 ...... Ryder Systems, Inc. (Wkrs) ...... Auburn Hills, MI ...... 10/19/09 10/15/09 72612 ...... Pikotek (State) ...... Wheat Ridge, CO ...... 10/19/09 10/16/09 72613 ...... Bruckner Supply (Wkrs) ...... Glasgow, KY ...... 10/19/09 10/16/09 72614 ...... Parker-Hannifin Corporation (Portland Cylinder Portland, OR ...... 10/19/09 10/09/09 Division) (Wkrs). 72615 ...... International Thermal Systems (Wkrs) ...... West Milwaukee, WI ...... 10/19/09 10/16/09 72616 ...... Occupational Healthlab, Inc. (Comp) ...... Silver City, NM ...... 10/19/09 10/15/09 72617 ...... Bay Creek Mfg., Inc. (Comp) ...... Summersville, MO ...... 10/19/09 10/16/09 72618 ...... Baker Furniture (Wkrs) ...... Highpoint, NC ...... 10/19/09 10/16/09 72619 ...... ITW Shippers Paper Products (Wkrs) ...... Mt. Pleasant, TN ...... 10/20/09 10/19/09 72620 ...... Brand Science, LLC (Comp) ...... Dandridge, TN ...... 10/20/09 10/19/09 72621 ...... Agr International, Inc. (Comp) ...... Butler, PA ...... 10/20/09 10/16/09 72622 ...... Standard Steel Specialty Company (Union) ...... Beaver Falls, PA ...... 10/20/09 10/19/09 72623 ...... DELL (Other) ...... Miami, FL ...... 10/20/09 10/16/09 72624 ...... Impress USA (Union) ...... Weirton, WV ...... 10/20/09 10/15/09 72625 ...... Superior Sewing, Inc. (Comp) ...... Salem, AR ...... 10/20/09 10/16/09 72626 ...... Flextronics (Comp) ...... Durham, NC ...... 10/20/09 10/19/09 72627 ...... Millwork Distributors (One) ...... Oshkosh, WI ...... 10/20/09 10/19/09 72628 ...... BASF Corporation (Comp) ...... Belvidere, NJ ...... 10/20/09 10/19/09 72629 ...... Marmon/Keystone Corporation (Union) ...... Bolingbrook, IL ...... 10/20/09 10/13/09 72630 ...... Daedalus Technologies Inc. (Comp) ...... Kennesaw, GA ...... 10/20/09 10/10/09 72631 ...... Jin Feng Sewing Company, Inc. (Wkrs) ...... San Francisco, CA ...... 10/20/09 10/12/09 72632 ...... Modine Manufacturing Company (Wkrs) ...... Camdenton, MO ...... 10/20/09 09/28/09 72633 ...... H.B. Fuller (Wkrs) ...... Blue Ash, OH ...... 10/21/09 10/15/09 72634 ...... Cimarron Energy, Inc. (Wkrs) ...... Norman, OK ...... 10/21/09 10/20/09 72635 ...... ABB, Inc. (Comp) ...... Wickliffe, OH ...... 10/21/09 10/20/09 72636 ...... Dukes Titan Aviation, LLC (Comp) ...... Findlay, OH ...... 10/21/09 10/20/09 72637 ...... Lynn Ladder and Scaffolding Company (Comp) Orwigsburg, PA ...... 10/21/09 10/20/09 72638 ...... AVX Corporation (Wkrs) ...... Myrtle Beach, SC ...... 10/21/09 09/30/09 72639 ...... Faurecia Seating (Comp) ...... Shelby Township, MI ...... 10/21/09 10/20/09 72640 ...... National Spinning Company, Inc. (Comp) ...... Washington, NC ...... 10/21/09 10/20/09 72641 ...... Chandler Lake, Inc. (Comp) ...... Ashland, ME ...... 10/21/09 10/19/09 72642 ...... Maui Process Technologies (Comp) ...... Makawao, HI ...... 10/21/09 10/15/09 72643 ...... Seagate Technology (Wkrs) ...... Scotts Valley, CA ...... 10/21/09 05/29/09 72644 ...... C&R Oilfield Service, Inc. (Comp) ...... San Angelo, TX ...... 10/22/09 10/20/09 72645 ...... Enterprise Tool and Die (Comp) ...... Grandville, MI ...... 10/22/09 10/21/09 72646 ...... Michigan Mechanical Services, Inc. (Comp) ..... Taylor, MI ...... 10/22/09 10/21/09 72647 ...... Graphic Packaging International, Inc. (Union) .. Wellsburg, WV ...... 10/22/09 10/21/09 72648 ...... Fisher and Paykel Laundry Manufacturing, Inc. Clyde, OH ...... 10/22/09 10/12/09 (Comp). 72649 ...... Contech Castings, LLC (Wkrs) ...... Dowagiac, MI ...... 10/22/09 10/19/09 72650 ...... TI Group Automotive Systems (Comp) ...... Winchester, KY ...... 10/22/09 10/21/09 72651 ...... EDS an HP Company (Wkrs) ...... Vandalia, OH ...... 10/22/09 09/22/09 72652 ...... Legacy, Inc. (Wkrs) ...... Winston-Salem, NC ...... 10/22/09 10/13/09 72653 ...... Da-Tech Corporation (Wkrs) ...... Ivyland, PA ...... 10/22/09 09/24/09 72654 ...... Mt. Vernon Neon (State) ...... Mt. Vernon, IL ...... 10/22/09 10/15/09 72655 ...... Welco Lumber Company (Wkrs) ...... Naples, ID ...... 10/23/09 10/22/09 72656 ...... Chemtrade Logistics (Wkrs) ...... Kalama, WA ...... 10/23/09 10/22/09 72657 ...... Hilton Reservations and Customer Care—Ha- Hazleton, PA ...... 10/23/09 10/19/09 zleton (Wkrs). 72658 ...... The Hartford (Wkrs) ...... Charlotte, NC ...... 10/23/09 10/22/09 72659 ...... DTR Industries, Inc (Comp) ...... Bluffton, OH ...... 10/23/09 10/22/09 72660 ...... TECT Power (Wkrs) ...... Newinton, CT ...... 10/23/09 10/19/09 72661 ...... AirComp, LLC (Wkrs) ...... San Angelo, TX ...... 10/23/09 10/22/09 72662 ...... Monopanel Technologies (Wkrs) ...... West Allis, WI ...... 10/23/09 10/22/09 72663 ...... Mid-States Tool and Machine, Inc. (Comp) ...... Decatur, IN ...... 10/23/09 10/22/09 72664 ...... Bay Creek Manufacturing, Inc. (Comp) ...... Mountain View, MO ...... 10/23/09 10/22/09

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[FR Doc. E9–27105 Filed 11–10–09; 8:45 am] NATIONAL SCIENCE FOUNDATION board reviews and evaluates the initial BILLING CODE 4510–FN–P (NSF) appraisal of a senior executive’s performance by the supervisor and National Science Board; Sunshine Act considers recommendations to the DEPARTMENT OF LABOR Meetings; Notice appointing authority regarding the performance of the senior executive. The National Science Board’s ad hoc Office of the Assistant Secretary for The following have been designated Committee on Honorary Awards, Veterans’ Employment and Training as members of the Performance Review pursuant to NSF regulations (45 CFR Board of the National Transportation Part 614), the National Science The Advisory Committee on Veterans’ Safety Board: Foundation Act, as amended (42 U.S.C. Employment, Training and Employer The Honorable Christopher A. Hart, Outreach (ACVETEO); Notice of Open 1862n–5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby Vice Chairman, National Meeting gives notice in regard to the scheduling Transportation Safety Board; PRB Chair. The Advisory Committee on Veterans’ of meetings for the transaction of National Science Board business and The Honorable Robert L. Sumwalt, Employment, Training and Employer other matters specified, as follows: Member, National Transportation Outreach (ACVETEO) was established Date and Time: Thursday, November Safety Board. pursuant to Title II of the Veterans’ 19, 2009 at 4 p.m. Steven Goldberg, Chief Financial Housing Opportunity and Benefits Subject Matter: Discussion of Officer, National Transportation Improvement Act of 2006 (Pub. L. 109– candidates for the 2010 Vannevar Bush Safety Board. 233) and Section 9 of the Federal Award and 2010 National Science Board Sarah Bonilla, Director, Human Advisory Committee Act (FACA) (Pub. Public Service Award. Resources, Office of the Chief Human L. 92–462, Title 5 U.S.C. app.II). The Status: Closed. Capital Officer, Department of Energy. ACVETEO is responsible for assessing This meeting will be held by Dr. John Cavolowsky, Director, Airspace employment and training needs of teleconference originating at the Systems Program Office, Aeronautics veterans; determining the extent to National Science Board Office, National Research Mission Directorate, which the programs and activities of the Science Foundation, 4201Wilson Blvd., National Aeronautics and Space U.S. Department of Labor meet these Arlington, VA 22230. Please refer to the Administration. needs; and assisting to conduct outreach National Science Board Web site Anthony P. Scardino, Acting Deputy to employers seeking to hire veterans. (http://www.nsf.gov/nsb) for Chief Financial Officer, Office of The authority of the ACVETEO is information or schedule updates, or Chief Financial Officer, U.S. codified in Title 38 U.S. Code, Section contact: Jennifer Richards, National Department of Housing and Urban Development. (Alternate). 4110. Science Foundation, 4201 Wilson Blvd., Arlington, VA 22230. Telephone: (703) David L. Mayer, Managing Director, The ACVETEO will conduct a 292–7000. National Transportation Safety Board. business meeting on Tuesday, December Dated: November 6, 2009. 2, 2009 from 8:30 a.m. to 4 p.m., at the Ann Ferrante, Candi Bing, Madison Hotel, Montpelier room, 1177 Technical Writer/Editor. Federal Register Coordinator. Fifteenth Street, NW., Washington, DC [FR Doc. E9–27270 Filed 11–9–09; 4:15 pm] [FR Doc. E9–27174 Filed 11–10–09; 8:45 am] 20005. The ACVETEO will discuss BILLING CODE 7555–01–P programs to assist veterans seeking BILLING CODE 7533–01–P employment and to raise employer awareness as to the advantages of hiring NATIONAL TRANSPORTATION veterans, with special emphasis on SAFETY BOARD NUCLEAR REGULATORY employer outreach and wounded and COMMISSION injured veterans. There will be an SES Performance Review Board opportunity for persons or organizations [NRC–2009–0492] AGENCY: National Transportation Safety to address the committee. Any Board. Draft Regulatory Guide: Issuance, individual or organization that wishes ACTION: Notice. Availability to do so should contact Margaret Hill Watts at (202) 693–4744. Individuals SUMMARY: Notice is hereby given of the AGENCY: Nuclear Regulatory needing special accommodations should appointment of members of the National Commission. notify Margaret Hill Watts at (202) 693– Transportation Safety Board ACTION: Notice of Issuance and 4744 by November 20, 2009. Performance Review Board (PRB). Availability of Draft Regulatory Guide, Signed in Washington, DC, this 6th day of FOR FURTHER INFORMATION CONTACT: Anh DG–6008, ‘‘Preparation of an November 2009. Bolles, Chief, Human Resources Environmental Report to Support a John M. McWilliam, Division, Office of Administration, Rulemaking Petition Seeking an National Transportation Safety Board, Exemption for a Radionuclide- Deputy Assistant Secretary for Operations Containing Product.’’ and Management, Veterans’ Employment and 490 L’Enfant Plaza, SW., Washington, Training Service. DC 20594–0001, (202) 314–6355. FOR FURTHER INFORMATION CONTACT: [FR Doc. E9–27171 Filed 11–10–09; 8:45 am] SUPPLEMENTARY INFORMATION: Section 4314(c)(1) through (5) of Title 5, United Catherine R. Mattsen, U.S. Nuclear BILLING CODE 4510–79–P States Code requires each agency to Regulatory Commission, Washington, establish, in accordance with DC 20555–0001, telephone: (301) 415– regulations prescribed by the Office of 6264 or e-mail Personnel Management, one or more [email protected]. SES Performance Review Boards. The SUPPLEMENTARY INFORMATION:

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I. Introduction contact information, and therefore, they For the Nuclear Regulatory Commission. The U.S. Nuclear Regulatory should not include any information in John N. Ridgely, Commission (NRC) is issuing for public their comments that they do not want Acting Chief, Regulatory Guide Development comment a draft guide in the agency’s publicly disclosed. You may submit Branch, Division of Engineering, Office of Nuclear Regulatory Research. ‘‘Regulatory Guide’’ series. This series comments by any of the following was developed to describe and make methods: [FR Doc. E9–27155 Filed 11–10–09; 8:45 am] available to the public such information 1. Mail comments to: Rulemaking and BILLING CODE 7590–01–P as methods that are acceptable to the Directives Branch, Mail Stop: TWB–05– NRC staff for implementing specific B01M, Office of Administration, U.S. NUCLEAR REGULATORY parts of the NRC’s regulations, Nuclear Regulatory Commission, COMMISSION techniques that the staff uses in Washington, DC 20555–0001. evaluating specific problems or [Docket No. 50–005; NRC–2009–0495] 2. Federal e-Rulemaking Portal: Go to postulated accidents, and data that the staff needs in its review of applications http://www.regulations.gov and search Pennsylvania State University: Penn for permits and licenses. for documents filed under Docket ID State Breazeale Reactor; The draft regulatory guide (DG), [NRC–2009–0492]. Address questions Environmental Assessment and entitled, ‘‘Preparation of an about NRC dockets to Carol Gallagher, Finding of No Significant Impact 301–492–3668; e-mail Environmental Report to Support a The U.S. Nuclear Regulatory Rulemaking Petition Seeking an [email protected]. Commission (NRC or the Commission) Exemption for a Radionuclide- 3. Fax comments to: Rulemaking and is considering issuance of a renewed Containing Product,’’ is temporarily Directives Branch, Office of Facility Operating License No. R–2, to identified by its task number, DG–6008, Administration, U.S. Nuclear Regulatory be held by Pennsylvania State which should be mentioned in all Commission at (301) 492–3446. University (PSU or the licensee), which related correspondence. DG–6008 is Requests for technical information would authorize continued operation of proposed Revision 2 of Regulatory about DG–6008 may be directed to the the Penn State Breazeale Reactor Guide 6.7, dated June 1976. NRC contact, Catherine R. Mattsen at (PSBR), located in University Park, This guidance document provides Centre County, Pennsylvania. Therefore, (301) 415–6264 or e-mail general procedures for the preparation as required by Title 10 of the Code of [email protected]. of environmental reports (ER), which Federal Regulations (10 CFR) Section are submitted to support a rulemaking Comments would be most helpful if 51.21, the NRC is issuing this petition for an exemption for a received by January 8, 2010. Comments Environmental Assessment and Finding radionuclide-containing product, and it received after that date will be of No Significant Impact. amends Revision 1 of Regulatory Guide considered if it is practical to do so, but Environmental Assessment 6.7 issued June 1976. Use of this the NRC is able to ensure consideration regulatory guide will help to ensure the only for comments received on or before Identification of the Proposed Action completeness of the information this date. Although a time limit is given, The proposed action would renew provided in the ER, assist staff of the comments and suggestions in Facility Operating License No. R–2 for U.S. Nuclear Regulatory Commission connection with items for inclusion in a period of twenty years from the date (NRC) and others in locating pertinent guides currently being developed or of issuance of the renewed license. The information, and facilitate the improvements in all published guides proposed action is in accordance with environmental review process. are encouraged at any time. the licensee’s application dated However, the NRC does not require Electronic copies of DG–6008 are December 6, 2005, as supplemented by conformance with the procedures, available through the NRC’s public Web letters dated October 31, 2008, and which are provided for guidance only. site under Draft Regulatory Guides in April 2, June 11, September 1, and II. Further Information the ‘‘Regulatory Guides’’ collection of October 21, 2009. In accordance with 10 CFR 2.109, the existing license remains The NRC staff is soliciting comments the NRC’s Electronic Reading Room at http://www.nrc.gov/reading-rm/doc- in effect until the NRC takes final action on DG–6008. Comments may be on the renewal application. accompanied by relevant information or collections/. Electronic copies are also supporting data and should mention available in ADAMS (http:// Need for the Proposed Action DG–6008 in the subject line. Comments www.nrc.gov/reading-rm/adams.html), The proposed action is needed to submitted in writing or in electronic under Accession No. ML092170207. allow the continued operation of the form will be made available to the In addition, regulatory guides are PSBR to routinely provide teaching, public in their entirety through the available for inspection at the NRC’s research, and services to numerous NRC’s Agencywide Documents Access Public Document Room (PDR) located at institutions for a period of twenty years. and Management System (ADAMS). 11555 Rockville Pike, Rockville, Environmental Impacts of the Proposed Because your comments will not be Maryland. The PDR’s mailing address is Action edited to remove any identifying or USNRC PDR, Washington, DC 20555– contact information, the NRC cautions 0001. The PDR can also be reached by The NRC has completed its safety you against including any information telephone at (301) 415–4737 or (800) evaluation of the proposed action to in your submission that you do not want 397–4205, by fax at (301) 415–3548, and issue a renewed Facility Operating to be publicly disclosed. by e-mail to [email protected]. License No. R–2 to allow continued The NRC requests that any party operation of the PSBR for a period of soliciting or aggregating comments Regulatory guides are not twenty years and concludes there is received from other persons for copyrighted, and Commission approval reasonable assurance that the PSBR will submission to the NRC inform those is not required to reproduce them. continue to operate safely for the persons that the NRC will not edit their Dated at Rockville, Maryland, this 4th day additional period of time. The details of comments to remove any identifying or of November 2009. the NRC staff’s safety evaluation will be

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provided with the renewed license that consequences of accidents. Therefore, approximately 0.02 milliSieverts (mSv) will be issued as part of the letter to the license renewal should not change the (2 millirems (mrem)) and this licensee approving its license renewal environmental impact of facility demonstrates compliance with the dose application. This document contains the operation. The NRC staff evaluated limit of 1 mSv (100 mrem) set by 10 CFR environmental assessment of the information contained in the licensee’s 20.1301. Additionally, this potential proposed action. application and data reported to the radiation dose demonstrates compliance The PSBR is located on the main NRC by the licensee for the last five with the air emissions dose constraint of campus of PSU and is a part of the years of operation to determine the 0.1 mSv (10 mrem) specified in 10 CFR Radiation Science and Engineering projected radiological impact of the 20.1101(d). Center. The reactor is housed in a facility on the environment during the The licensee disposes of liquid multipurpose building constructed period of the renewed license. The NRC radioactive wastes by evaporation, primarily of concrete, brick, steel, and staff found that releases of radioactive discharge to the sanitary sewer, or aluminum which serves as a material and personnel exposures were transfer to the Radiation Protection confinement. The reactor site comprises all well within applicable regulatory Office (RPO) which is a part of the PSU the reactor building and a small area limits. Based on this evaluation, the Department of Environmental Health immediately surrounding it, bounded by NRC staff concluded that continued and Safety. Disposal by evaporation a chain-link fence. Adjacent to the site operation of the reactor should not have removes the liquid from the liquid are athletic facilities to the north and a significant environmental impact. radioactive waste, creating west, fields and parking lots to the east, demineralized water and traces of solid and academic and research buildings to I. Radiological Impact radioactive waste that remain in the the south. The nearest permanent Environmental Effects of Reactor evaporator tank for decay. Discharge of residences are located approximately Operations liquid waste to the sanitary sewer 360 meters (390 yards) from the site requires the use of procedures and RPO Gaseous radioactive effluents are boundary. The nearest dormitories are approval to ensure that discharges meet discharged by the facility exhaust located approximately 130 meters (120 the requirements of 10 CFR 20.2003 for system via vents located on the roof of yards) south of the reactor. disposal by release into sanitary the reactor building, at a volumetric The PSBR is a pool-type, light water sewerage. The licensee also transfers flow rate of approximately 1.4 cubic moderated and cooled research reactor small quantities of liquid radioactive licensed to operate at a steady-state meters per second (3000 cubic feet per waste to the RPO for proper disposal power level of 1 megawatt thermal second). Other release pathways do under the University’s broad scope power (MW(t)). The reactor is also exist, however they are normally byproduct material license. During the licensed to operate in a pulse mode. The secured during reactor operation and past five years, the licensee reported no fuel is located at the bottom of a have insignificant volumetric flow rates routine releases of liquid radioactive polyurea-lined concrete pool with a compared to the facility exhaust system. waste by any of the disposal methods. volume of approximately 270,000 liters The only significant nuclide found in One unplanned release occurred as a (71,000 gallons) and a depth of 7.3 the gaseous effluent stream is Argon-41. result of leakage of reactor pool water meters (24 feet). The reactor is fueled The licensee performed measurements through the reactor pool liner to the with standard low-enriched uranium of Argon-41 production for conditions earthen backfill surrounding the reactor TRIGA fuel. A detailed description of of low-power and high-power reactor pool. According to the licensee, the the reactor can be found in the PSBR operation. Licensee calculations, based leakage resulted in the release of Safety Analysis Report (SAR). There on those measurements, indicate that approximately 1.3 milliCuries of have been no major modifications to the annual Argon-41 releases result in an tritium, at a concentration of 2.8E–5 Facility Operating License since offsite concentration of 3.2E–10 ±Ci/ml. This concentration is a fraction ± renewal of the license on January 27, microCuries per milliliter ( mCi/ml), of the limit of 1E–3 ±Ci/ml specified in 1986. which is below the limit of 1.0E–8 10 CFR Part 20, Appendix B for liquid ± The licensee has not requested any mCi/ml specified in 10 CFR 20, effluents. Offsite groundwater sampling changes to the facility design or Appendix B for air effluent releases. The conducted by the licensee showed no operating conditions as part of the NRC staff performed an independent detectable elevation in tritium levels. application for license renewal. No calculation and found the licensee’s The NRC inspection report related to the changes are being made in the types or calculation to be reasonable. The reactor pool leakage identified no quantities of effluents that may be licensee also performed measurements findings of significance. released off site. The licensee has and calculations to estimate the The RPO oversees the handling of systems in place for controlling the potential release of tritium resulting solid low-level radioactive waste release of radiological effluents and from evaporation of the reactor pool generated at the PSBR. The bulk of the implements a radiation protection water. The NRC staff performed waste consists of gloves, paper, plastic, program to monitor personnel exposures independent calculations and found the and small pieces of metal. Upon and releases of radioactive effluents. As licensee’s calculations to be reasonable removal from the facility by the RPO, discussed in the NRC staff’s safety and the potential airborne tritium the waste enters the campus-wide evaluation, the systems and radiation concentration to be a small fraction of radioactive waste stream covered by the protection program are appropriate for the air effluent concentration limit University’s broad scope byproduct the types and quantities of effluents specified in 10 CFR 20, Appendix B. material license. The RPO disposes of expected to be generated by continued Total gaseous radioactive releases the waste by decay in storage or operation of the reactor. Accordingly, reported to the NRC in the licensee’s shipment to a low level waste broker in there should be no increase in routine annual reports were less than four accordance with all applicable occupational or public radiation percent of the air effluent concentration regulations for transportation of exposure as a result of license renewal. limits set by 10 CFR 20, Appendix B. radioactive materials. According to the As discussed in the NRC staff’s safety The potential radiation dose to a licensee, no spent nuclear fuel has been evaluation, the proposed action will not member of the general public resulting shipped from the site to date. To comply significantly increase the probability or from this concentration is with the Nuclear Waste Policy Act of

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1982, PSU has entered into a contract reactor building and into the Endangered Species Act (ESA), Coastal with the U.S. Department of Energy environment. The licensee Zone Management Act (CZMA), (DOE) that provides that DOE retains conservatively calculated doses to National Historic Preservation Act title to the fuel utilized at the PSBR and facility personnel and the maximum (NHPA), Fish and Wildlife Coordination that DOE is obligated to take the fuel potential dose to a member of the Act (FWCA), and Executive Order 12898 from the site for final disposition. public. NRC staff performed Environmental Justice. The following As described in Chapter 11 of the independent calculations to verify that presents a brief discussion of impacts PSBR SAR, personnel exposures are the doses represent conservative associated with these laws and other well within the limits set by 10 CFR estimates for the MHA. Occupational requirements. 20.1201, and as low as is reasonably doses resulting from this accident achievable (ALARA). The RPO tracks would be well below 10 CFR Part 20 I. Endangered Species Act personnel exposures, which are usually limit of 50 mSv (5000 mrem). Maximum The site occupied by the PSBR does less than 0.5 mSv (50 mrem) per year. doses for members of the public not contain any Federally- or State- The PSU ALARA program requires the resulting from this accident would be protected fauna or flora, nor do the RPO to investigate any annual personnel well below 10 CFR Part 20 limit of 1 PSBR effluents impact the critical exposures greater than 10 percent of the mSv (100 mrem). The proposed action habitats of any such fauna or flora. limit of 50 mSv (5000 mrem) specified will not increase the probability or II. Coastal Zone Management Act in 10 CFR 20.1201. Personnel consequences of accidents. dosimeters mounted in the control room The site occupied by the PSBR is not and reactor bay provide a quarterly II. Non-Radiological Impacts located within any managed coastal measurement of total radiation The PSBR core is cooled by a light zones, nor do the PSBR effluents impact exposures at those locations. These water primary system consisting of the any managed coastal zones. reactor pool, a heat removal system, and dosimeters typically measure annual III. National Historic Preservation Act doses of less than 0.5 mSv (50 mrem) in a processing system. Cooling occurs by the control room and less than 2 mSv natural convection, with the heated The NHPA requires Federal agencies (200 mrem) in the reactor bay. No coolant rising out of the core and into to consider the effects of their changes in reactor operation that would the bulk pool water. The large heat sink undertakings on historic properties. The lead to an increase in occupational dose provided by the volume of primary National Register of Historic Places are expected as a result of the proposed coolant allows several hours of full- (NRHP) lists one historical site located action. power operation without any secondary on the PSU campus, the Ag Hill The licensee conducts an cooling. The heat removal system Complex. The location of the Ag Hill environmental monitoring program to transfers heat to the secondary system Complex is approximately 1 km (0.6 record and track the radiological impact via a 1–MW heat exchanger. The Miles) East of the PSBR. Given the of PSBR operation on the surrounding secondary system uses water pumped distance between the facility and the Ag unrestricted area. The program consists from the nearby Thompson Pond. Hill Complex, continued operation of of quarterly exposure measurements at During operation, the secondary system the PSBR will not impact any historical four locations on the site boundary and is maintained at a higher pressure than sites. In 1991, the PSBR received the at two control locations away from any the primary system to minimize the American Nuclear Society Nuclear direct influence from the reactor. The likelihood of primary system (ANS) Historic Landmark Award, RPO administers the program and contamination entering the secondary commemorated by a plaque located at maintains the appropriate records. Over system, and ultimately the environment. the site. Continued operation of the the past five years, the survey program The licensee conducts periodic leak PSBR will not affect this historic indicated that radiation exposures at the tests of the heat exchanger to further designation. During a telephone monitoring locations were not reduce the likelihood of secondary conversation between the NRC staff and significantly higher than those system contamination. the licensee on October 2, 2009, the measured at the control locations. Year- Release of thermal effluents from the licensee stated that PSU has no plans to to-year trends in exposures are PSBR will not have a significant effect apply to have the PSBR listed in the consistent between monitoring on the environment. A storm sewer NRHP. Additionally, the licensee stated locations. Also, no correlation exists returns the heated secondary coolant to that any modifications to the facility between total annual reactor operation Thompson Pond. According to the exterior must go through Campus and annual exposures measured at the licensee, the University maintains and Planning and Design in the PSU Office monitoring locations. Based on the NRC complies with the appropriate of Physical Plant. This provides staff’s review of the past five years of Pennsylvania Department of assurance that any modifications would data, the NRC staff concludes that Environmental Protection permit for be made only after an appropriate operation of the PSBR does not have any secondary water discharge, and no review by the University. Based on this significant radiological impact on the violations of the permit have occurred. information, the NRC finds that the surrounding environment. No changes Given that the proposed action does not potential impacts of license renewal in reactor operation that would affect involve any change in the operation of would have no adverse effect on historic off-site radiation levels are expected as the reactor and the heat load dissipated and archaeological resources at PSBR. a result of license renewal. to the environment, the NRC staff IV. Fish and Wildlife Coordination Act concludes that the proposed action will Environmental Effects of Accidents not have a significant impact on the The licensee is not planning any Accident scenarios are discussed in local water supply. water resource development projects, Chapter 13 of the PSBR SAR. The including any of the modifications maximum hypothetical accident (MHA) National Environmental Policy Act relating to impounding a body of water, is the uncontrolled release of the (NEPA) Considerations damming, diverting a stream or river, gaseous fission products contained in NRC has responsibilities that are deepening a channel, irrigation, or the gap between the fuel and the fuel derived from NEPA and from other altering a body of water for navigation cladding in one fuel element to the environmental laws, which include the or drainage.

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IV. Executive Order 12898— Based on this information and the proposed action. The State official did Environmental Justice analysis of human health and comment on the designation of the The environmental justice impact environmental impacts presented in this PSBR as an ANS Nuclear Historic analysis evaluates the potential for environmental assessment, the NRC Landmark. The comment was disproportionately high and adverse staff concludes that the proposed action informational in nature and the NRC human health and environmental effects would not have disproportionately high staff responded by including this on minority and low-income and adverse human health and information in this environmental populations that could result from the environmental effects on minority and assessment and noting that continued relicensing and the continued operation low-income populations residing in the operation of the facility will not vicinity of the PSBR. of the PSBR. Such effects may include adversely impact the ANS Nuclear ecological, cultural, human health, Environmental Impacts of the Historic Landmark designation. economic, or social impacts. Minority Alternatives to the Proposed Action Finding of No Significant Impact and low-income populations are subsets As an alternative to license renewal, of the general public residing around the NRC staff considered denial of the On the basis of the environmental the PSBR, and all are exposed to the proposed action. If the Commission assessment, the NRC concludes that the same health and environmental effects denied the application for license proposed action will not have a generated from activities at the PSBR. renewal, facility operations would end significant effect on the quality of the Minority Populations in the Vicinity and decommissioning would be human environment. Accordingly, the of the PSBR—According to 2000 census required. The NRC staff notes that, even NRC has determined not to prepare an data, 4.3 percent of the population with a renewed license, the PSBR will (approximately 634,000 individuals) environmental impact statement for the eventually require decommissioning, at proposed action. residing within a 50-mile radius of which time the environmental effects of PSBR identified themselves as minority decommissioning will occur. For further details with respect to the individuals. The largest minority group Decommissioning will be conducted in proposed action, see the licensee’s letter was Black or African American (12,000 accordance with an NRC-approved dated December 6, 2005 persons or 1.9 percent), followed by decommissioning plan which will (ML091250487), as supplemented by Asian (7,700 or 1.2 percent). According require a separate environmental review letters dated October 31, 2008 to the U.S. Census Bureau, about 9.4 under 10 CFR 51.21. Cessation of (ML092650603); and April 2 percent of Centre County population facility operations would reduce (ML093030395), June 11 identified themselves as minorities, radioactive effluents. However, as (ML092030312), September 1 with persons of Asian origin comprising previously discussed in this (ML092580215), and October 21, 2009 the largest minority group (4.4 percent). environmental assessment, radioactive (ML092990409). Documents may be According to census data 3-year average effluents resulting from facility examined, and/or copied for a fee, at the estimates for 2005–2007, the minority operations constitute only a small NRC’s Public Document Room (PDR), population of Centre County, as a fraction of the applicable regulatory located at One White Flint North, 11555 percent of total population, had limits. Therefore, the environmental Rockville Pike (first floor), Rockville, increased to 11.4 percent. impacts of license renewal and denial of Maryland. Publicly available records Low-Income Populations in the the application for license renewal are Vicinity of the PSBR—According to will be accessible electronically from similar. In addition, denial of the the Agencywide Documents Access and 2000 census data, approximately 13,000 application for license renewal would families and 78,000 individuals Management System (ADAMS) Public cause the benefits of teaching, research, Electronic Reading Room on the NRC (approximately 7.9 and 12.4 percent, and services provided by facility Web site http://www.nrc.gov/reading- respectively) residing within a 50-mile operation to be lost. radius of the PSBR were identified as rm/adams.html. Persons who do not living below the Federal poverty Alternative Use of Resources have access to ADAMS or who threshold in 1999. The 1999 Federal The proposed action does not involve encounter problems in accessing the poverty threshold was $17,029 for a the use of any different resources or documents located in ADAMS should family of four. significant quantities of resources contact the NRC PDR Reference staff at According to Census data in the beyond those previously considered in 1–800–397–4209, or 301–415–4737, or 2005–2007 American Community the issuance of Amendment No. 23 to send an e-mail to [email protected]. Survey 3-Year Estimates, the median Facility Operating License No. R–2 for Dated at Rockville, Maryland, this 4th day household income for Pennsylvania was the Penn State Breazeale Reactor dated of November 2009. $47,913, while 11.9 percent of the state January 27, 1986, which renewed the For the Nuclear Regulatory Commission. population was determined to be living Facility Operating License for a period below the Federal poverty threshold. of 20 years. Linh Tran, Centre County had a lower median Senior Project Manager, Research and Test household income average ($42,976) Agencies and Persons Consulted Reactors Branch A, Division of Policy and and higher percentages (18.5 percent) of In accordance with the agency’s stated Rulemaking, Office of Nuclear Reactor individuals living below the poverty policy, on September 28, 2009, the staff Regulation. level, respectively. consulted with the State Liaison Officer [FR Doc. E9–27282 Filed 11–10–09; 8:45 am] Impact Analysis—Potential impacts to regarding the environmental impact of BILLING CODE 7590–01–P minority and low-income populations the proposed action. The consultation would mostly consist of radiological involved a thorough explanation of the effects, however radiation doses from environmental review, the details of this continued operations associated with environmental assessment, and the NRC the license renewal are expected to staff’s findings. The State official stated continue at current levels, and would be the he understood the NRC review and well below regulatory limits. had no comments regarding the

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NUCLEAR REGULATORY problems in accessing the documents licenses by the Office of New Reactors. COMMISSION located in ADAMS should contact the The NRC staff intends to incorporate the NRC Public Document Room reference final approved DC/COL–ISG–019 into [NRC–2009–0110] staff by telephone at 1–800–397–4209, the next revision of the SRP and related Office of New Reactors; Final Interim 301–415–4737, or by e-mail at guidance documents. Staff Guidance on Review of [email protected]. DATES: Comments must be filed no later Evaluation To Address Adverse Flow FOR FURTHER INFORMATION CONTACT: Ms. than 30 days from the date of Effects in Equipment Other Than Jennifer L. Dixon-Herrity, Chief, publication of this notice in the Federal Reactor Internals Engineering Mechanics Branch 2, Register. Comments received after this Division of Engineering, Office of the date will be considered, if it is practical AGENCY: Nuclear Regulatory New Reactors, U.S. Nuclear Regulatory to do so, but the Commission is able to Commission (NRC). Commission, Washington, DC 20555– ensure consideration only for comments ACTION: Notice of availability. 0001; telephone at 301–415–2967 or by received on or before this date. e-mail at [email protected]. SUMMARY: The NRC is issuing its Final ADDRESSES: You may submit comments SUPPLEMENTARY INFORMATION: The Interim Staff Guidance (ISG) DC/COL– by any one of the following methods. agency posts its issued staff guidance in Please include Docket ID NRC–2009– ISG–010 (Agencywide Documents the agency external Web page (http:// Access and Management System 0494 in the subject line of your www.nrc.gov/reading-rm/doc- comments. Comments submitted in (ADAMS) Accession No. collections/isg/). ML092890285). The purpose of this ISG writing or in electronic form will be is to modify and provide additional Dated at Rockville, Maryland, this 3rd day posted on the NRC Web site and on the clarity in the guidance for the review of of November 2009. Federal rulemaking Web site analyses of adverse flow effects in For the Nuclear Regulatory Commission. Regulations.gov. Because your equipment other than reactor internals William F. Burton, comments will not be edited to remove performed by combined license (COL) Branch Chief, Rulemaking and Guidance any identifying or contact information, and design certification (DC) applicants. Development Branch, Division of New Reactor the NRC cautions you against including This ISG would revise the staff guidance Licensing, Office of New Reactors. any information in your submission that previously issued in March 2007 in the [FR Doc. E9–27154 Filed 11–10–09; 8:45 am] you do not want to be publicly Standard Review Plan (SRP) NUREG BILLING CODE 7590–01–P disclosed. 0080, ‘‘Standard Review Plan for the The NRC requests that any party Review of Safety Analysis Reports for soliciting or aggregating comments Nuclear Power Plants,’’ Section 3.9.2, NUCLEAR REGULATORY received from other persons for ‘‘Dynamic Testing and Analysis of COMMISSION submission to the NRC inform those Systems, Structures, and Components,’’ [NRC–2009–0494] persons that the NRC will not edit their Section 3.9.5, ‘‘Reactor Pressure Vessel comments to remove any identifying or Internals,’’ and Regulatory Guide 1.20, Office of New Reactors; Proposed contact information, and therefore, they ‘‘Comprehensive Vibration Assessment Interim Staff Guidance; Review of should not include any information in Program for Reactor Internals During Evaluation To Address Gas their comments that they do not want Pre-Operational and Initial Startup Accumulation Issues in Safety Related publicly disclosed. Testing.’’ The NRC staff issues DC/COL– Systems Federal Rulemaking Web site: Go to ISGs to facilitate timely implementation http://www.regulations.gov and search AGENCY: Nuclear Regulatory for documents filed under Docket ID of current staff guidance and to facilitate Commission (NRC). activities associated with review of NRC–2009–0494. Address questions ACTION: applications for DCs and COLs by the Solicitation of public comment. about NRC dockets to Carol Gallagher Office of New Reactors. The NRC staff SUMMARY: The NRC staff is soliciting 301–492–3668; e-mail will also incorporate the approved DC/ public comment on its proposed Interim [email protected]. COL–ISG–010 into the next revision of Staff Guidance (ISG) DC/COL–ISG–019 Mail comments to: Michael T. Lesar, the SRP and related guidance (Agencywide Documents Access and Chief, Rulemaking and Directives documents. Management System (ADAMS) Branch (RDB), Division of Disposition: On March 9, 2009, the Accession No. ML092360375). The Administrative Services, Office of NRC staff issued the proposed DC/COL– purpose of this ISG is to clarify the NRC Administration, Mail Stop: TWB–05– ISG–010 on ‘‘Disposition of Review of staff guidance to address issues of gas B01M, U.S. Nuclear Regulatory Evaluation to Address Adverse Flow accumulation in safety related systems. Commission, Washington, DC 20555– Effects in Equipment Other than Reactor This ISG revises and updates the 0001, or by fax to RDB at (301) 492– Internals,’’ ADAMS Accession No. guidance provided to the staff in 3446. ML090510728. There were no Standard Review Plan (SRP) Sections The NRC ADAMS provides text and comments received on the proposed 5.4.7, ‘‘Residual Heat Removal System,’’ image files of NRC’s public documents. ISG. Therefore, the guidance is issued as 6.3 ‘‘Emergency Core Cooling System,’’ These documents may be accessed final with only minor editorial changes and 6.5.2 ‘‘Containment Spray System’’ through the NRC’s Public Electronic to the proposed notification as above. of NUREG–0800, ‘‘Standard Review Reading Room on the Internet at ADDRESSES: The NRC ADAMS provides Plan for the Review of Safety Analysis http://www.nrc.gov/reading-rm/ text and image files of NRC’s public Reports for Nuclear Power Plants,’’ adams.html. Persons who do not have documents. These documents may be March 2007. The NRC staff issues DC/ access to ADAMS or who encounter accessed through the NRC’s Public COL–ISGs to facilitate timely problems in accessing the documents Electronic Reading Room on the Internet implementation of current staff located in ADAMS should contact the at http://www.nrc.gov/reading-rm/ guidance and to facilitate activities NRC Public Document Room reference adams.html. Persons who do not have associated with review of applications staff at 1–800–397–4209, 301–415–4737, access to ADAMS or who encounter for design certifications and combined or by e-mail at [email protected].

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FOR FURTHER INFORMATION CONTACT: Mr. Pressure Boundary,’’ GDC 15, ‘‘Reactor Congressional action, the methods or Joseph E. Donoghue, Chief, Reactor Coolant System Design,’’ GDC 31, techniques described in the Regulatory Systems, Nuclear Performance and Code ‘‘Fracture Prevention of Reactor Coolant Guide no longer describe a preferred Review Branch, Division of Safety Pressure Boundary,’’ and GDC 32, approach, or the Regulatory Guide does Systems & Risk Assessment, U.S. ‘‘Inspection of Reactor Coolant Pressure not provide useful information. Nuclear Regulatory Commission, Boundary.’’ Regulatory guides are available for Washington, DC 20555–0001; telephone RG 1.83 is being withdrawn because inspection or downloading through the 301–415–1193 or e-mail at it no longer describes a preferred NRC’s public Web site under [email protected]. approach. It is a prescriptive regulatory ‘‘Regulatory Guides’’ in the NRC’s guide which recommends the use of Electronic Reading Room at http:// SUPPLEMENTARY INFORMATION: The eddy current testing for the inspection www.nrc.gov/reading-rm/doc- agency posts its issued staff guidance in of steam generator tubes. RG 1.83 may collections. Regulatory guides are also the agency external Web page (http:// not ensure steam generator tube available for inspection at the NRC’s www.nrc.gov/reading-rm/doc- integrity as required by other rules/ Public Document Room (PDR), Room O– collections/isg/). regulations. In addition, many of the The NRC staff is issuing this notice to 1 F21, One White Flint North, 11555 methods/techniques discussed in the solicit public comments on the Rockville Pike, Rockville, MD 20852– regulatory guide would not be proposed DC/COL–ISG–019. After the 2738. The PDR’s mailing address is US considered acceptable, feasible, or NRC staff considers any public NRC PDR, Washington, DC 20555–0001. practical given improvements in comments, it will make a determination You can reach the staff by telephone at technology. Given the technological regarding the proposed DC/COL–ISG– 301–415–4737 or 800–397–4209, by fax improvements and the recognition of 019. at 301–415–3548, and by e-mail to the importance of maintaining tube [email protected]. Dated at Rockville, Maryland, this 3rd day integrity from a safety and economic Regulatory guides are not of November 2009. perspective, the need for such copyrighted, and NRC approval is not For the Nuclear Regulatory Commission. prescriptive guidance has been required to reproduce them. William F. Burton, superseded. In addition, simply Dated at Rockville, Maryland, this 3rd day Branch Chief, Rulemaking and Guidance following this guidance may not be of November 2009. Development Branch, Division of New Reactor sufficient to ensure tube integrity For the Nuclear Regulatory Commission. Licensing, Office of New Reactors. consistent with NRC regulations. John N. Ridgely, [FR Doc. E9–27151 Filed 11–10–09; 8:45 am] The NRC now endorses a more risk- Acting Chief, Regulatory Guide Development BILLING CODE 7590–01–P informed and performance-based approach to regulatory compliance. The Branch, Division of Engineering, Office of Nuclear Regulatory Research. performance-based approach relies NUCLEAR REGULATORY upon measurable (or calculable) [FR Doc. E9–27058 Filed 11–10–09; 8:45 am] COMMISSION outcomes (i.e., performance results) to BILLING CODE 7590–01–P [NRC–2009–0488] be met, but provides more flexibility to the licensee as to the means of meeting OFFICE OF PERSONNEL Withdrawal of Regulatory Guide those outcomes. The high level requirements that must MANAGEMENT AGENCY: Nuclear Regulatory be met are contained in the standard Commission. technical specifications. These technical Proposed Collection; Comment Request for Review of a Revised ACTION: Withdrawal of Regulatory Guide specifications are based on Nuclear 1.83. Energy Institute (NEI) 97–06, ‘‘Steam Information Collection: (OMB Control Generator Program Guidelines,’’ and No. 3206–0208; Form RI 38–115) FOR FURTHER INFORMATION CONTACT: John Technical Specification Task Force AGENCY: Office of Personnel N. Ridgely, U.S. Nuclear Regulatory (TSTF) Traveller, TSTF–449. This latter Management. Commission, Washington, DC 20555– document has been reviewed and ACTION: Notice. 0001, telephone: 301–251–7458 or e- approved by the NRC staff as mail [email protected]. documented in Generic Letter 2006–01. SUMMARY: In accordance with the SUPPLEMENTARY INFORMATION: In addition, the current version of this Paperwork Reduction Act of 1995 (Pub. Standard Review Plan discusses the L. 104–13, May 22, 1995), this notice I. Introduction high level requirements which an announces that the Office of Personnel The U.S. Nuclear Regulatory acceptable steam generator program Management (OPM) intends to submit to Commission (NRC or Commission) is must meet. RG 1.83 is no longer needed the Office of Management and Budget withdrawing Regulatory Guide (RG) since the NRC has adopted the (OMB) a request for review of a revised 1.83, ‘‘Inservice Inspection of performance-based approach. The use of information collection. This information Pressurized Water Reactor Steam a performance-based approach to steam collection, ‘‘Representative Payee Generator Tubes,’’ Revision 1, which generator tube inspection does not Survey’’ (OMB Control No. 3206–0208, was issued July 1975. RG 1.83 describes supplant or displace the requirement for Form RI 38–115), is used to collect a program of periodic inservice compliance with NRC regulations. information about how the benefits paid inspection and nondestructive to a representative payee have been examination using a prescriptive II. Further Information used or conserved for the benefit of the sampling approach of steam generator Withdrawal of RG 1.83 does not, in incompetent annuitant. tubing to detect defects and and of itself, alter any prior or existing Comments are particularly invited on: deterioration of the tubes in pressurized licensing commitments based on its use. whether this collection of information is water reactors (PWRs). The RG was The guidance provided in this necessary for the proper performance of developed to demonstrate compliance regulatory guide is no longer necessary. functions of the Office of Personnel with portions of General Design Regulatory guides may be withdrawn Management, and whether it will have Criterion (GDC) 14, ‘‘Reactor Coolant when their guidance is superseded by practical utility; whether our estimate of

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the public burden of the collection of information from applicants for SECURITIES AND EXCHANGE information is accurate, and based on disability retirement so that OPM can COMMISSION valid assumptions and methodology; determine whether to approve a disability retirement. The applicant will [Investment Company Act Release No. and ways in which we can minimize the 28991; File No. 812–13638] burden of the collection of information only complete Standard Forms 3112A on those who are to respond, through and 3112C. Standard Forms 3112B, FaithShares Trust, et al.; Notice of the use of appropriate technological 3112D and 3112E will be completed by Application collection techniques or other forms of the immediate supervisor and the information technology. employing agency of the applicant. November 5, 2009. Approximately 11,000 RI 38–115 Comments are particularly invited on: AGENCY: Securities and Exchange forms are completed annually. The form Whether this collection of information Commission (‘‘Commission’’). takes approximately 20 minutes to is necessary for the proper performance ACTION: Notice of an application for an complete. The annual estimated burden of functions of the OPM, and whether it order under section 6(c) of the is 3,667 hours. will have practical utility; whether our Investment Company Act of 1940 (the For copies of this proposal, contact estimate of the public burden of this ‘‘Act’’) for an exemption from sections Cyrus S. Benson on (202) 606–0623, collection of information is accurate, 2(a)(32), 5(a)(1), 22(d), and 22(e) of the FAX (202) 606–0910 or via E-mail to and based on valid assumptions and Act and rule 22c–1 under the Act; and [email protected]. Please include methodology; and ways in which we under sections 6(c) and 17(b) of the Act a mailing address with your request. can minimize the burden of the for an exemption from sections 17(a)(1) collection of information on those who DATES: Comments on this proposal and 17(a)(2) of the Act; and under should be received within 60 calendar are to respond, through the use of section 12(d)(1)(J) for an exemption appropriate technological collection days from the date of this publication. from sections 12(d)(1)(A) and techniques or other forms of information 12(d)(1)(B) of the Act. ADDRESSES: Send or deliver comments technology. to—James K. Freiert, Deputy Assistant Approximately 12,100 applicants for APPLICANTS: FaithShares Trust (‘‘Trust’’), Director, Retirement Services Program, disability retirement complete this FaithShares Advisors, LLC (‘‘Advisor’’) Center for Retirement and Insurance application annually. The SF 3112C and SEI Investments Distribution Services, U.S. Office of Personnel requires approximately 60 minutes to Company. Management, 1900 E Street, NW., Room complete. A burden of 12,100 hours is SUMMARY OF APPLICATION: Applicants 3305, Washington, DC 20415–3500. estimated for SF 3112C. SF 3112A is For information regarding request an order that would permit: (a) used each year by approximately 1,350 Series of an open-end management administrative coordination contact: persons who are not Federal employees. Cyrus S. Benson, Team Leader, investment company to issue shares SF 3112A requires approximately 30 (‘‘Fund Shares’’) that can be redeemed Publications Team, RIS Support minutes to complete and a burden of Services/Support Group, U.S. Office of only in large aggregations (‘‘Creation 675 hours is estimated for SF 3112A. Unit Aggregations’’); (b) secondary Personnel Management, 1900 E Street, All 12,100 respondents must use SF market transactions in Fund Shares to NW.—Room 4H28, Washington, DC 3112C; of the 12,100, only 1,350 of the occur at negotiated prices; (c) certain 20415, (202) 606–0623. applicants are not Federal Employees series to pay redemption proceeds, and use SF 3112A. The total annual U.S. Office of Personnel Management. under certain circumstances, more than John Berry, burden for SF 3112 is 12,775 hours. For copies of this proposal, contact seven days after the tender of Fund Director. Cyrus S. Benson on (202) 606–4808, Shares for redemption; (d) certain [FR Doc. E9–27138 Filed 11–10–09; 8:45 am] FAX (202) 606–0910 or via E-mail to affiliated persons of the series to deposit BILLING CODE 6325–38–P [email protected]. Please include securities into, and receive securities a mailing address with your request. from, the series in connection with the purchase and redemption of Creation DATES: Comments on this proposal OFFICE OF PERSONNEL Unit Aggregations; and (e) certain MANAGEMENT should be received within 60 calendar days from the date of this publication. registered management investment companies and unit investment trusts ADDRESSES: Proposed Collection; Comment Send or deliver comments outside of the same group of investment to—James K. Freiert, Deputy Assistant Request for Review of a Revised companies as the series to acquire Fund Director, Retirement Services Program, Information Collection: (OMB Control Shares. No. 3206–0228; Standard Form 3112) Center for Retirement and Insurance Services, U.S. Office of Personnel FILING DATES: The application was filed AGENCY: Office of Personnel Management, 1900 E Street, NW., Room on March 4, 2009, and amended on Management. 3305, Washington, DC 20415–3500. April 21, 2009, October 23, 2009, and November 4, 2009. ACTION: Notice. For information regarding administrative coordination contact: HEARING OR NOTIFICATION OF HEARING: An SUMMARY: In accordance with the Cyrus S. Benson, Team Leader, order granting the application will be Paperwork Reduction Act of 1995 (Pub. Publications Team, RIS Support issued unless the Commission orders a L. 104–13, May 22, 1995), this notice Services/Support Group, U.S. Office of hearing. Interested persons may request announces that the Office of Personnel Personnel Management, 1900 E Street, a hearing by writing to the Management (OPM) intends to submit to NW., Room 4H28, Washington, DC Commission’s Secretary and serving the Office of Management and Budget 20415, (202) 606–0623. applicants with a copy of the request, (OMB) a request for review of a revised personally or by mail. Hearing requests information collection. This information U.S. Office of Personnel Management. should be received by the Commission collection, ‘‘CSRS/FERS Documentation John Berry, by 5:30 p.m. on November 30, 2009, and in Support of Disability Retirement Director. should be accompanied by proof of Application’’ (OMB Control No. 3206– [FR Doc. E9–27139 Filed 11–10–09; 8:45 am] service on applicants, in the form of an 0228; Standard Form 3112), collects BILLING CODE 6325–38–P affidavit, or for lawyers, a certificate of

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service. Hearing requests should state amended (the ‘‘Advisers Act’’). The throughout the trading day except for the nature of the writer’s interest, the Advisor may enter into sub-advisory the values of Underlying Indices based reason for the request, and the issues agreements with one or more additional on foreign equity securities which will contested. Persons who wish to be investment advisers to act as sub- be disseminated every 60 seconds notified of a hearing may request advisors to one or more Funds (‘‘Sub- throughout the trading day. A Fund will notification by writing to the Advisors’’). Any Sub-Advisor will be utilize either a replication or Commission’s Secretary. registered under the Advisers Act. SEI representative sampling strategy which ADDRESSES: Secretary, U.S. Securities Investments Distribution Company, a will be disclosed with regard to each and Exchange Commission, 100 F broker-dealer registered under the Fund in its prospectus (‘‘Prospectus’’).6 Street, NE., Washington, DC 20549– Securities Exchange Act of 1934 (the A Fund using a replication strategy will 1090; Applicants: FaithShares Trust and ‘‘Exchange Act’’), will act as the invest in the Component Securities in FaithShares Advisors, LLC, c/o Mr. J. principal underwriter and distributor its Underlying Index in approximately Garrett Stevens, 3555 Northwest 58th for the Creation Unit Aggregations of the same proportions as in the Street, Suite 410, Oklahoma City, OK Fund Shares (each such broker-dealer, a Underlying Index. In certain 73112 and SEI Investments Distribution ‘‘Distributor’’). Applicants request that circumstances, such as when there are Company, c/o John Munch, Esq., 1 the requested order also apply to any practical difficulties or substantial costs Freedom Valley Drive, Oaks, PA 19456. other Distributor to the Funds in the involved in holding every security in an FOR FURTHER INFORMATION CONTACT: Jean future that complies with the terms and Underlying Index or when one or more E. Minarick, Senior Counsel at (202) conditions of the application. Component Securities is less liquid, 551–6811 or Julia Kim Gilmer, Branch 3. The Funds will seek investment illiquid or unavailable, a Fund may use Chief, at (202) 551–6821 (Division of results that correspond, before fees and a representative sampling strategy Investment Management, Office of expenses, generally to the price and pursuant to which it will invest in yield performance of a specified some, but not all of the Component Investment Company Regulation). 3 Underlying Index. The Initial Funds’ 7 SUPPLEMENTARY INFORMATION: The Securities of its Underlying Index. Underlying Indexes are comprised of following is a summary of the Applicants anticipate that a Fund that domestic equity securities (securities application. The complete application utilizes a representative sampling which are issued by U.S. issuers and strategy will not track the performance may be obtained via the Commission’s non-U.S. issuers meeting the Web site by searching for the file of its Underlying Index with the same requirements for trading in U.S. degree of accuracy as an investment number, or an applicant using the markets). A Future Fund’s Underlying Company name box, at http:// vehicle that invests in every Component Index may be based on domestic equity Security of the Underlying Index with www.sec.gov/search/search.htm or by securities or foreign equity securities calling (202) 551–8090. the same weighting as the Underlying (securities traded on a non-U.S. Index. Applicants expect that each Fund Applicants’ Representations securities market) (such Future Fund, a will have an annual tracking error 1. The Trust is registered as an open- ‘‘Foreign Fund’’). Any entity that relative to the performance of its end management investment company creates, compiles, sponsors or maintains Underlying Index of less than 5 percent. an Underlying Index (‘‘Index Provider’’) under the Act and is organized as a 5. The Funds will issue Creation Unit will not be an affiliated person, as Delaware statutory trust. The Trust will Aggregations in groups of 50,000 Fund defined in section 2(a)(3) of the Act, or initially offer Fund Shares of five series Shares. Applicants expect that the an affiliated person of an affiliated (‘‘Initial Funds’’), each of which will initial price of a Creation Unit person, of the Trust or a Fund, the track a specified equity securities index Aggregation will fall in the range of Advisor, any promoter of the Funds, (‘‘Underlying Index’’).1 Applicants may $1,000,000 to $2,000,000. All orders to Sub-Advisor or Distributor.4 purchase Creation Unit Aggregations offer additional series of the Trust 4. The investment objective of each must be placed with the Distributor, by (together with any other future Fund will be to seek to track the or through a party that has entered into registered open-end investment performance, before fees and expenses, an agreement with the Distributor company and its series advised by the of its Underlying Index.5 Intra-day (‘‘Authorized Participant’’). The Advisor or an entity controlling, values of each Underlying Index will be Distributor will be responsible for controlled by, or under common control disseminated every 15 seconds with the Advisor, the ‘‘Future Funds,’’ transmitting the orders to the Funds. An and the Future Funds together with the 3 The Underlying Indexes for the Initial Funds are Authorized Participant must be either: 2 Initial Funds, the ‘‘Funds’’). the: FaithShares Baptist Values Index, FaithShares (a) A broker-dealer or other participant 2. The Advisor, an Oklahoma limited Catholic Values Index, FaithShares Christian Values in the continuous net settlement system liability company, or an entity Index, FaithShares Lutheran Values Index and of the National Securities Clearing controlling, controlled by or under FaithShares Methodist Values Index. Corporation, a clearing agency 4 The Index Provider to the Initial Funds is FTSE/ common control with the Advisor will KLD Research and Analytics, Inc. registered with the Commission, or (b) be the investment adviser to the Funds. 5 Applicants represent that each Fund will invest The Advisor is registered as an at least 80% of its assets in the component 6 All representations and conditions contained in investment adviser under the securities (‘‘Component Securities’’) of its the application that require a Fund to disclose Investment Advisers Act of 1940, as Underlying Index. In the case of Foreign Funds, at particular information in the Fund’s Prospectus least 80% of the Fund’s assets will be invested in and/or annual report shall be effective with respect Component Securities and Depositary Receipts (as to the Fund until the time that the Fund complies 1 The Initial Funds are: FaithShares Baptist defined below) representing such Component with the disclosure requirements adopted by the Values Fund, FaithShares Catholic Values Fund, Securities. A Fund may invest up to 20% of its Commission in Investment Company Act Release FaithShares Christian Values Fund, FaithShares assets in cash and cash equivalents, such as money No. 28584 (Jan. 13, 2009). Lutheran Values Fund and FaithShares Methodist market instruments or other types of investments 7 Under the representative sampling strategy, the Values Fund. not included in its Underlying Index, but which the Advisor and any Sub-Advisor will seek to construct 2 All existing entities that currently intend to rely Advisor or Sub-Advisor believes will help the Fund a Fund’s portfolio so that its market capitalization, on the requested order have been named as track its Underlying Index. ‘‘Depositary Receipts’’ industry weightings, fundamental investment applicants. Any other existing or future entity that will typically be American Depositary Receipts, as characteristics (such as return variability, earnings relies on the order in the future will comply with well as Global Depositary Receipts and Euro valuation and yield) and liquidity measures the terms and conditions of the application. Depositary Receipts. perform like those of the Underlying Index.

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a participant in the Depository Trust Transaction Fees, and any variations or investor redeeming a Creation Unit Company (‘‘DTC’’, and such participant, waivers thereof, will be disclosed in Aggregation generally will receive (a) ‘‘DTC Participant’’). Fund Shares of each Fund’s Prospectus. The Distributor Portfolio Securities designated to be each Fund generally will be sold in will be responsible for delivering the delivered for Creation Unit Aggregation Creation Unit Aggregations in exchange Fund’s Prospectus to those persons redemptions on the date that the request for an in-kind deposit by the purchaser purchasing Creation Unit Aggregations, for redemption is made (‘‘Fund of a portfolio of securities designated by and for maintaining records of both the Securities’’) 12 and (b) a ‘‘Cash the Advisor or Sub-Advisor to orders placed and the confirmations of Redemption Payment,’’ consisting of an correspond generally to the price and acceptance furnished. In addition, the amount calculated in the same manner yield performance of the relevant Distributor will maintain a record of the as the Balancing Amount, although the Underlying Index (the ‘‘Deposit instructions given to the applicable actual amount of the Cash Redemption Securities’’), together with the deposit of Fund to implement the delivery of its Payment may differ if the Fund a specified cash payment (‘‘Balancing Fund Shares. Securities are not identical to the Amount,’’ together with the Deposit 7. Purchasers of Fund Shares in Deposit Securities on that day. An Securities, the ‘‘Portfolio Deposit’’). The Creation Unit Aggregations may hold investor may receive the cash equivalent Balancing Amount is an amount equal such Fund Shares or may sell such of a Fund Security in certain to the difference between (a) the net Fund Shares into the secondary market. circumstances, such as if the investor is asset value (‘‘NAV’’) (per Creation Unit Fund Shares will be listed and traded constrained from effecting transactions Aggregation) of a Fund and (b) the total on an Exchange. It is expected that one in the security by regulation or policy. aggregate market value (per Creation or more member firms of a listing 10. No Fund will be advertised or Unit Aggregation) of the Deposit Exchange will be designated to act as a marketed or otherwise held out as a Securities.8 Each Fund may permit a specialist or a market maker (each, a traditional open-end investment purchaser of Creation Unit Aggregations ‘‘Market Maker’’) and maintain a market company or a mutual fund. Instead, to substitute cash in lieu of depositing for Fund Shares trading on the listing each Fund will be marketed as an some or all of the Deposit Securities if Exchange. The price of Fund Shares ‘‘exchange-traded fund’’ or ‘‘ETF,’’ a Fund and the Advisor believe such trading on an Exchange will be based on ‘‘investment company’’ and ‘‘fund.’’ All method would reduce the Fund’s the current bid/offer market. Fund marketing materials that describe the transaction costs or enhance the Fund’s Shares sold in the secondary market features or method of obtaining, buying operating efficiency.9 will be subject to customary brokerage or selling Creation Unit Aggregations or 6. An investor purchasing or commissions and charges. Fund Shares, or refer to redeemability, redeeming a Creation Unit Aggregation 8. Applicants expect that purchasers will prominently disclose that Fund from a Fund will be charged a fee of Creation Unit Aggregations will Shares are not individually redeemable (‘‘Transaction Fee’’) to prevent the include institutional investors and and that the owners of Fund Shares may dilution of the interests of the remaining arbitrageurs (which could include acquire or redeem Fund Shares from the shareholders resulting from costs in institutional investors). A Market Fund in Creation Unit Aggregations connection with the purchase or Maker, in providing a fair and orderly only. The same approach will be redemption of Creation Unit secondary market for the Fund Shares, followed in the statement of additional Aggregations.10 The maximum also may purchase Creation Unit information (‘‘SAI’’), shareholder Aggregations for use in its market- reports and investor educational 8 Each Fund will sell and redeem Creation Unit making activities. Applicants expect materials issued or circulated in Aggregations only on a ‘‘Business Day,’’ which is that secondary market purchasers of connection with the Fund Shares. Each any day that a Fund is required to be open under Fund Shares will include both Section 22(e) of the Act. Each Business Day, prior Fund will provide copies of its annual to the opening of trading on the Exchange (defined institutional investors and retail and semi-annual shareholder reports to below), the list of names and the required number investors.11 Applicants expect that the of shares of each security included in the current DTC Participants for distribution to price at which Fund Shares trade will shareholders. Portfolio Deposit and the Balancing Amount will be be disciplined by arbitrage made available. Any national securities exchange (as defined in section 2(a)(26) of the Act) opportunities created by the option to Applicants’ Legal Analysis (‘‘Exchange’’) on which Fund Shares are listed will continually purchase or redeem 1. Applicants request an order under disseminate, every 15 seconds during its regular Creation Unit Aggregations at their trading hours, an amount per Fund Share section 6(c) of the Act for an exemption representing the sum of the estimated Balancing NAV, which should ensure that Fund from sections 2(a)(32), 5(a)(1), 22(d), and Amount and the current value of the Deposit Shares will not trade at a material 22(e) of the Act and rule 22c-1 under the Securities. discount or premium in relation to their Act; under sections 6(c) and 17(b) of the 9 Applicants state that in some circumstances or NAV. in certain countries, it may not be practicable or Act for an exemption from sections 9. Fund Shares will not be 17(a)(1) and 17(a)(2) of the Act; and convenient, or permissible under the laws of certain individually redeemable, and owners of countries or the regulations of certain foreign stock under section 12(d)(1)(J) of the Act for exchanges, for a Foreign Fund to operate Fund Shares may acquire those Fund an exemption from sections 12(d)(1)(A) exclusively on an ‘‘in-kind’’ basis. Applicants also Shares from a Fund, or tender such and 12(d)(1)(B) of the Act. note that when a substantial rebalancing of a Fund’s Fund Shares for redemption to the portfolio is required, the Advisor might prefer to receive cash rather than in-kind securities so that Fund, in Creation Unit Aggregations 12 The Funds will comply with the federal the Fund may avoid transaction costs involved in only. To redeem, an investor will have securities laws in accepting Deposit Securities and liquidating part of its portfolio to achieve the to accumulate enough Fund Shares to satisfying redemptions with Fund Securities, rebalancing. constitute a Creation Unit Aggregation. including that the Deposit Securities and Fund 10 Where a Fund permits a purchaser to substitute Redemption orders must be placed by or Securities are sold in transactions that would be cash in lieu of depositing a portion of the requisite exempt from registration under the Securities Act Deposit Securities, the purchaser may be assessed through an Authorized Participant. An of 1933. As a general matter, the Deposit Securities a higher Transaction Fee to cover the cost of and Fund Securities will correspond pro rata to the purchasing such Deposit Securities, including 11 Fund Shares will be registered in book-entry securities held by a Fund, although Fund Securities operational processing and brokerage costs, and form only. DTC or its nominee will be the registered received on redemption may not be identical to part or all of the spread between the expected bid owner of all outstanding Fund Shares. DTC or DTC Deposit Securities deposited in connection with the and the offer side of the market relating to such Participants will maintain records reflecting purchase of Creation Unit Aggregations for the same Deposit Securities. beneficial owners of Fund Shares. day.

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2. Section 6(c) of the Act provides that described in the prospectus. Rule 22c– more than seven days after the tender of the Commission may exempt any 1 under the Act generally requires that a security for redemption. Applicants person, security or transaction, or any a dealer selling, redeeming or state that settlement of redemptions for class of persons, securities or repurchasing a redeemable security do the Foreign Funds is contingent not transactions, from any provision of the so only at a price based on its NAV. only on the settlement cycle of the Act, if and to the extent that such Applicants state that secondary market United States market, but also on the exemption is necessary or appropriate trading in Fund Shares will take place delivery cycles in local markets for the in the public interest and consistent at negotiated prices, not at a current underlying foreign securities held by with the protection of investors and the offering price described in a Fund’s Foreign Funds. Applicants state that purposes fairly intended by the policy Prospectus, and not at a price based on delivery cycles currently practicable for and provisions of the Act. Section 17(b) NAV. Thus, purchases and sales of transferring Fund Securities to of the Act authorizes the Commission to Fund Shares in the secondary market redeeming investors, coupled with local exempt a proposed transaction from will not comply with section 22(d) of market holiday schedules, will, in section 17(a) of the Act if evidence the Act and rule 22c–1 under the Act. certain circumstances, require a delivery establishes that the terms of the Applicants request an exemption under process longer than seven calendar days transaction, including the consideration section 6(c) from these provisions. for Foreign Funds. Applicants request to be paid or received, are reasonable 5. Applicants assert that the concerns relief under section 6(c) of the Act from and fair and do not involve sought to be addressed by section 22(d) section 22(e) to permit Foreign Funds to overreaching on the part of any person of the Act and rule 22c–1 under the Act pay redemption proceeds up to a concerned, and the proposed with respect to pricing are equally maximum of 14 calendar days following transaction is consistent with the satisfied by the proposed method of the tender of a Creation Unit policies of the registered investment pricing Fund Shares. Applicants Aggregation of such Funds. Except as company and the general purposes of maintain that while there is little disclosed in a Foreign Fund’s the Act. Section 12(d)(1)(J) of the Act legislative history regarding section Prospectus and/or SAI, applicants provides that the Commission may 22(d), its provisions, as well as those of expect that each Foreign Fund will be exempt any person, security, or rule 22c–1, appear to have been able to deliver redemption proceeds transaction, or any class or classes of designed to (a) prevent dilution caused within seven days.13 persons, securities or transactions, from by certain riskless-trading schemes by 8. Applicants state that section 22(e) any provisions of section 12(d)(1) if the principal underwriters and contract was designed to prevent unreasonable, exemption is consistent with the public dealers, (b) prevent unjust undisclosed and unforeseen delays in interest and the protection of investors. discrimination or preferential treatment the payment of redemption proceeds. among buyers, and (c) ensure an orderly Applicants assert that the requested Sections 5(a)(1) and 2(a)(32) of the Act distribution of investment company relief will not lead to the problems that 3. Section 5(a)(1) of the Act defines an shares by eliminating price competition section 22(e) was designed to prevent. ‘‘open-end company’’ as a management from dealers offering shares at less than Applicants state that the SAI will investment company that is offering for the published sales price and disclose those local holidays in a given sale or has outstanding any redeemable repurchasing shares at more than the year where more than seven days will security of which it is the issuer. published redemption price. be needed to deliver redemption Section 2(a)(32) of the Act defines a 6. Applicants believe that none of proceeds and the maximum number of redeemable security as any security, these purposes will be thwarted by days needed to deliver the proceeds. other than short-term paper, under the permitting Fund Shares to trade in the Applicants are not seeking relief from terms of which the holder, upon its secondary market at negotiated prices. section 22(e) with respect to Foreign presentation to the issuer, is entitled to Applicants state that (a) secondary Funds that do not effect redemptions of receive approximately the holder’s market trading in Fund Shares do not Creation Unit Aggregations in-kind. proportionate share of the issuer’s directly involve Fund assets and will current net assets, or the cash not cause dilution of an investment in Section 12(d)(1) equivalent. Because Fund Shares will Fund Shares, and (b) to the extent 9. Section 12(d)(1)(A) of the Act, in not be individually redeemable, different prices exist during a given relevant part, prohibits a registered applicants request an order that would trading day, or from day to day, such investment company from acquiring permit each Fund to issue Fund Shares variances occur as a result of third-party securities of an investment company if that are redeemable in Creation Unit market forces, such as supply and such securities represent more than 3% Aggregations only. Applicants state that demand. Therefore, applicants assert of the total outstanding voting stock of investors may purchase Fund Shares in that secondary market transactions in the acquired company, more than 5% of Creation Unit Aggregations and redeem Fund Shares will not lead to the total assets of the acquiring Creation Unit Aggregations from each discrimination or preferential treatment company, or, together with the Fund. Applicants state that because among purchasers. Finally, applicants securities of any other investment Creation Unit Aggregations may always contend that the proposed distribution companies, more than 10% of the total be purchased and redeemed at NAV, the system will be orderly because assets of the acquiring company. Section market price of Fund Shares should not competitive forces will ensure that the 12(d)(1)(B) of the Act prohibits a vary substantially from their NAV. difference between the market price of registered open-end investment Fund Shares and their NAV remains Section 22(d) of the Act and Rule 22c– company, its principal underwriter, or narrow. 1 under the Act any other broker or dealer from selling Section 22(e) 4. Section 22(d) of the Act, among 13 Rule 15c6–1 under the Exchange Act requires other things, prohibits a dealer from 7. Section 22(e) of the Act generally that most securities transactions be settled within selling a redeemable security, which is prohibits a registered investment three business days of the trade. Applicants acknowledge that no relief obtained from the currently being offered to the public by company from suspending the right of requirements of section 22(e) will affect any or through a principal underwriter, redemption or postponing the date of obligations applicants may have under rule 15c6– except at a current public offering price payment of redemption proceeds for 1.

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the investment company’s shares to control that an Investing Fund may have fees. The board of directors or trustees another investment company if the sale over a Fund, applicants propose a of any Investing Management Company, will cause the acquiring company to condition prohibiting an Investing Fund including a majority of the directors or own more than 3% of the acquired Advisor or a Sponsor, any person trustees who are not ‘‘interested company’s voting stock, or if the sale controlling, controlled by, or under persons’’ within the meaning of section will cause more than 10% of the common control with an Investing Fund 2(a)(19) of the Act (‘‘independent acquired company’s voting stock to be Advisor or Sponsor, and any investment directors or trustees’’), will find that the owned by investment companies company and any issuer that would be advisory fees charged to the Investing generally. an investment company but for sections Management Company are based on 10. Applicants request an exemption 3(c)(1) or 3(c)(7) of the Act that is services provided that will be in to permit management investment advised or sponsored by an Investing addition to, rather than duplicative of, companies (‘‘Investing Management Fund Advisor or Sponsor, or any person services provided under the advisory Companies’’) and unit investment trusts controlling, controlled by, or under contract(s) of any Fund in which the (‘‘Investing Trusts,’’ and collectively common control with an Investing Fund Investing Management Company may with the Investing Management Advisor or Sponsor (‘‘Investing Fund’s invest. In addition, except as provided Companies, ‘‘Investing Funds’’) Advisory Group’’) from controlling in condition 11, an Investing Fund registered under the Act that are not (individually or in the aggregate) a Fund Advisor or a trustee (‘‘Trustee’’) or sponsored or advised by the Advisor or within the meaning of section 2(a)(9) of Sponsor of an Investing Trust, as any entity controlling, controlled by, or the Act. The same prohibition would applicable, will waive fees otherwise under common control with the Advisor apply to any Investing Fund Sub- payable to it by the Investing Fund in and are not part of the same ‘‘group of Advisor, any person controlling, an amount at least equal to any investment companies,’’ as defined in controlled by or under common control compensation (including fees received section 12(d)(1)(G)(ii) of the Act, as the with the Investing Fund Sub-Advisor, pursuant to any plan adopted by a Fund Funds to acquire Fund Shares beyond and any investment company or issuer under rule 12b–1 under the Act) the limits of section 12(d)(1)(A). that would be an investment company received by the Investing Fund Advisor Investing Funds do not include the but for sections 3(c)(1) or 3(c)(7) of the or Trustee or Sponsor or an affiliated Funds. In addition, applicants seek Act (or portion of such investment person of the Investing Fund Advisor, relief to permit the Distributor and any company or issuer) advised or Trustee or Sponsor, from a Fund in broker or dealer that is registered under sponsored by the Investing Fund Sub- connection with the investment by the the Exchange Act to sell Fund Shares to Advisor or any person controlling, Investing Fund in the Fund. Applicants an Investing Fund in excess of the limits controlled by or under common control also state that any sales charges or of section 12(d)(1)(B). with the Investing Fund Sub-Advisor service fees charged with respect to 11. Each Investing Management (‘‘Investing Fund’s Sub-Advisor shares of an Investing Fund will not Company will be advised by an Group’’). exceed the limits applicable to a fund of investment adviser within the meaning 14. Applicants propose other funds set forth in Conduct Rule 2830 of of section 2(a)(20)(A) of the Act (the conditions to limit the potential for the National Association of Securities ‘‘Investing Fund Advisor’’) and may be undue influence over the Funds, Dealers (‘‘NASD’’).15 sub-advised by one or more investment including that no Investing Fund or 16. Applicants submit that the advisers within the meaning of section Investing Fund Affiliate (except to the proposed conditions address the 2(a)(20)(B) of the Act (each an extent it is acting in its capacity as an concern about complexity. Applicants ‘‘Investing Fund Sub-Advisor’’). Any investment adviser to a Fund) will cause note that no Fund may acquire Investing Fund Advisor or Investing a Fund to purchase a security in any securities of any investment company or Fund Sub-Advisor will be registered offering of securities during the company relying on sections 3(c)(1) or under the Advisers Act. Each Investing existence of any underwriting or selling 3(c)(7) of the Act in excess of the limits Trust will be sponsored by a sponsor syndicate of which a principal contained in section 12(d)(1)(A) of the (‘‘Sponsor’’). underwriter is an Underwriting Affiliate Act except as permitted pursuant to rule 12. Applicants submit that the (‘‘Affiliated Underwriting’’). An 12d1–1 under the Act. To ensure that proposed conditions to the requested ‘‘Underwriting Affiliate’’ is a principal Investing Funds comply with the terms relief adequately address the concerns underwriter in any underwriting or and conditions of the requested relief underlying the limits in sections selling syndicate that is an officer, from section 12(d)(1), any Investing 12(d)(1)(A) and (B), which include director, member of an advisory board, Fund that intends to invest in a Fund in concerns about undue influence by a Investing Fund Advisor, Investing Fund reliance on the requested order will fund of funds over underlying funds, Sub-Advisor, employee or Sponsor of an enter into a written agreement with such excessive layering of fees and overly Investing Fund, or a person of which Fund regarding the terms of such complex fund structures. Applicants any such officer, director, member of an Investing Fund’s investment believe that the requested exemption is advisory board, Investing Fund Advisor, (‘‘Participation Agreement’’) requiring consistent with the public interest and Investing Fund Sub-Advisor, employee, the Investing Fund to adhere to the the protection of investors. or Sponsor is an affiliated person terms and conditions of the requested 13. Applicants believe that neither the (except that any person whose order. The Participation Agreement also Investing Funds nor an Investing Fund relationship to the Fund is covered by will include an acknowledgement from Affiliate would be able to exert undue section 10(f) of the Act is not an the Investing Fund that it may rely on 14 influence over the Funds. To limit the Underwriting Affiliate). the requested order only to invest in the 15. Applicants assert that the Funds and not in any other investment 14 An ‘‘Investing Fund Affiliate’’ is an Investing proposed conditions address any Fund Advisor, Investing Fund Sub-Advisor, company. Sponsor, promoter, and principal underwriter of an concerns regarding excessive layering of Investing Fund, and any person controlling, 15 Any references to NASD Conduct Rule 2830 controlled by, or under common control with any underwriter of a Fund and any person controlling, include any successor or replacement rule to NASD of these entities. A ‘‘Fund Affiliate’’ is an controlled by or under common control with any Conduct Rule 2830 that may be adopted by the investment adviser, promoter, or principal of these entities. Financial Industry Regulatory Authority.

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17. Applicants also note that a Fund Aggregations will be the same for all Applicants’ Conditions may choose to reject a direct purchase purchases and redemptions. Deposit Applicants agree that any order of Fund Shares in Creation Unit Securities and Fund Securities will be granting the requested relief will be Aggregations by an Investing Fund. To valued in the same manner as Portfolio subject to the following conditions: 18 the extent that an Investing Fund Securities. Therefore, applicants state purchases Fund Shares in the secondary that in-kind purchases and redemptions ETF Relief market, a Fund would still retain its will afford no opportunity for the 1. Each Fund’s Prospectus will clearly ability to reject purchases of Fund specified affiliated persons, or Second- disclose that, for purposes of the Act, Shares made in reliance on the Tier Affiliates, of a Fund to effect a the Fund Shares are issued by the requested order by declining to enter transaction detrimental to other holders Funds, which are registered investment into the Participation Agreement prior of Fund Shares. Applicants also believe companies, and that the acquisition of to any investment by an Investing Fund that in-kind purchases and redemptions Fund Shares by investment companies in excess of the limits of section will not result in self-dealing or is subject to the restrictions of section 12(d)(1)(A). overreaching of a Fund. 12(d)(1) of the Act, except as permitted Sections 17(a)(1) and (2) of the Act 21. Applicants also seek relief from by an exemptive order that permits section 17(a) to permit a Fund that is an 18. Section 17(a) of the Act generally registered investment companies to affiliated person of an Investing Fund to prohibits an affiliated person of a invest in a Fund beyond the limits in sell its Fund Shares to and redeem its registered investment company, or an Section 12(d)(1), subject to certain terms affiliated person of such a person Fund Shares from an Investing Fund, and conditions, including that the (‘‘Second-Tier Affiliate’’), from selling and to engage in the accompanying in- registered investment company enter kind transactions with the Investing into a Participation Agreement with the any security to or purchasing any 16 security from the company. Section Fund. Applicants state that the terms Fund regarding the terms of the 2(a)(3) of the Act defines ‘‘affiliated of the transactions are fair and investment. person’’ to include (a) any person reasonable and do not involve 2. As long as a Fund operates in directly or indirectly owning, overreaching. Applicants note that any reliance on the requested order, its Fund controlling or holding with power to consideration paid by an Investing Fund Shares will be listed on an Exchange. vote 5% or more of the outstanding for the purchase or redemption of Fund 3. Neither the Trust nor any Fund will voting securities of the other person, (b) Shares directly from a Fund will be be advertised or marketed as an open- 17 any person 5% or more of whose based on the NAV of the Fund. end investment company or a mutual outstanding voting securities are Applicants believe that any proposed fund. Each Fund’s Prospectus will directly or indirectly owned, controlled transactions directly between the Funds prominently disclose that Fund Shares or held with the power to vote by the and Investing Funds will be consistent are not individually redeemable shares other person, and (c) any person directly with the policies of each Investing and will disclose that the owners of or indirectly controlling, controlled by Fund. The purchase of Creation Unit Fund Shares may acquire those Fund or under common control with the other Aggregations by an Investing Fund Shares from the Fund and tender those person. Section 2(a)(9) of the Act directly from a Fund will be Fund Shares for redemption to the Fund provides that a control relationship will accomplished in accordance with the in Creation Unit Aggregations only. Any be presumed where one person owns investment restrictions of any such advertising material that describes the more than 25% of another person’s Investing Fund and will be consistent purchase or sale of Creation Unit voting securities. with the investment policies set forth in Aggregations or refers to redeemability 19. Applicants request an exemption the Investing Fund’s registration will prominently disclose that Fund from section 17(a) of the Act pursuant statement. The Participation Agreement Shares are not individually redeemable, to sections 6(c) and 17(b) of the Act to will require any Investing Fund that and that owners of Fund Shares may permit persons to effectuate in-kind purchases Creation Unit Aggregations acquire those Fund Shares from the purchases and redemptions with a Fund directly from a Fund to represent that Fund and tender those Fund Shares for when they are affiliated persons or the purchase of Creation Unit redemption to the Fund in Creation Unit Second-Tier Affiliates of the Funds Aggregations from a Fund by an Aggregations only. solely by virtue of one or more of the Investing Fund will be accomplished in 4. The Web sites maintained for the following: (a) Holding 5% or more, or in compliance with the investment Funds, which are and will be publicly excess of 25%, of the outstanding Fund restrictions of the Investing Fund and accessible at no charge, will contain the Shares of one or more Funds; (b) having will be consistent with the investment following information, on a per Fund an affiliation with a person with an policies set forth in the Investing Fund’s Share basis: (a) The prior Business Day’s ownership interest described in (a); or registration statement. NAV and the mid-point of the bid-ask (c) holding 5% or more, or more than spread at the time of the calculation of 25%, of the shares of any other 16 Applicants acknowledge that receipt of NAV (‘‘Bid/Ask Price’’), and a registered investment company (or compensation by (a) an affiliated person of an calculation of the premium or discount series thereof) advised by the Advisor or Investing Fund, or an affiliated person of such person, for the purchase by the Investing Fund of of the Bid/Ask Price at the time of an entity controlling, controlled by or Fund Shares or (b) an affiliated person of a Fund, calculation of the NAV against such under common control with the or an affiliated person of such person, for the sale NAV; and (b) data in chart format Advisor. by the Fund of its Fund Shares to an Investing Fund displaying the frequency distribution of 20. Applicants assert that no useful may be prohibited by section 17(e)(1) of the Act. The Participation Agreement also will include this discounts and premiums of the daily purpose would be served by prohibiting acknowledgment. Bid/Ask Price against the NAV, within these types of affiliated persons from 17 Applicants believe that most Investing Funds appropriate ranges, for each of the four purchasing or redeeming Creation Unit will purchase Fund Shares in the secondary market previous calendar quarters. Aggregations through ‘‘in-kind and will not purchase Creation Unit Aggregations 5. Each Fund’s Prospectus and annual directly from a Fund. However, the requested relief transactions.’’ The procedures for both would apply to direct sales of Creation Unit report will also include: (a) The in-kind purchases and in-kind Aggregations by a Fund to an Investing Fund and redemptions of Creation Unit redemptions of those Fund Shares. 18 See note 6, supra.

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information listed in condition 4(b), (i) a Fund Affiliate in connection with any 12. No Investing Fund or Investing in the case of the Prospectus, for the services or transactions. Fund Affiliate (except to the extent it is most recently completed year (and the 10. Once an investment by an acting in its capacity as an investment most recently completed quarter or Investing Fund in Fund Shares exceeds adviser to a Fund) will cause a Fund to quarters, as applicable) and (ii) in the the limit in section 12(d)(1)(A)(i) of the purchase a security in an Affiliated case of the annual report, for the Act, the board of directors or trustees of Underwriting. immediately preceding five years, as a Fund (‘‘Board’’), including a majority 13. The Board, including a majority of applicable; and (b) the following data, of the directors or trustees that are not the independent Board members, will calculated on a per Fund Share basis for ‘‘interested persons’’ within the adopt procedures reasonably designed one, five and ten year periods (or life of meaning of section 2(a)(19) of the Act to monitor any purchases of securities the Fund): (i) The cumulative total (‘‘independent Board members’’), will by a Fund in an Affiliated Underwriting return and the average annual total determine that any consideration paid once an investment by an Investing return based on NAV and Bid/Ask Price, by the Fund to the Investing Fund or an Fund in the Fund Shares exceeds the and (ii) the cumulative total return of Investing Fund Affiliate in connection limit of section 12(d)(1)(A)(i) of the Act, the relevant Underlying Index. with any services or transactions: (a) Is including any purchases made directly 6. The requested relief to permit ETF fair and reasonable in relation to the from an Underwriting Affiliate. The operations will expire on the effective nature and quality of the services and Board will review these purchases date of any Commission rule under the benefits received by the Fund; (b) is periodically, but no less frequently than Act that provides relief permitting the within the range of consideration that annually, to determine whether the operation of index-based ETFs. the Fund would be required to pay to purchases were influenced by the another unaffiliated entity in connection investment by the Investing Fund in the Section 12(d)(1) Relief with the same services or transactions; Fund. The Board will consider, among 7. The members of an Investing and (c) does not involve overreaching other things: (a) Whether the purchases Fund’s Advisory Group will not control on the part of any person concerned. were consistent with the investment (individually or in the aggregate) any This condition does not apply with objectives and policies of the Fund; (b) Fund within the meaning of section respect to any services or transactions how the performance of securities 2(a)(9) of the Act. The members of an between a Fund and its investment purchased in an Affiliated Underwriting Investing Fund’s Sub-Advisor Group adviser(s), or any person controlling, compares to the performance of will not control (individually or in the controlled by, or under common control comparable securities purchased during aggregate) any Fund within the meaning with such investment adviser. a comparable period of time in of section 2(a)(9) of the Act. If, as a 11. An Investing Fund Advisor, underwritings other than Affiliated result of a decrease in the outstanding Trustee or Sponsor will waive fees Underwritings or to a benchmark such Fund Shares, an Investing Fund’s otherwise payable to it by the Investing as a comparable market index; and (c) Advisory Group or an Investing Fund’s Management Company or Investing whether the amount of securities Sub-Advisor Group, each in the Trust in an amount at least equal to any purchased by the Fund in Affiliated aggregate, becomes a holder of more compensation (including fees received Underwritings and the amount than 25 percent of the Fund Shares, it pursuant to any plan adopted by the purchased directly from an will vote its Fund Shares in the same Fund under rule 12b–1 under the Act) Underwriting Affiliate have changed proportion as the vote of all other received from a Fund by the Investing significantly from prior years. The holders of the Fund Shares. This Fund Advisor or Trustee or Sponsor, or Board will take any appropriate actions condition does not apply to the an affiliated person of the Investing based on its review, including, if Investing Fund’s Sub-Advisor Group if Fund Advisor, Trustee or Sponsor, other appropriate, the institution of the Investing Fund Sub-Advisor or a than any advisory fees paid to the procedures designed to assure that person controlling, controlled by, or Investing Fund Advisor, Trustee or purchases of securities in Affiliated under common control with the Sponsor by the Fund, in connection Underwritings are in the best interests Investing Fund Sub-Advisor acts as the with the investment by the Investing of shareholders. investment adviser within the meaning Management Company or Investing 14. Each Fund will maintain and of section 2(a)(20)(A) of the Act. Trust in the Fund. Any Investing Fund preserve permanently in an easily 8. No Investing Fund or Investing Sub-Advisor will waive fees otherwise accessible place a written copy of the Fund Affiliate will cause any existing or payable to the Investing Fund Sub- procedures described in the preceding potential investment by the Investing Advisor, directly or indirectly, by the condition, and any modifications to Fund in a Fund to influence the terms Investing Management Company in an such procedures, and will maintain and of any services or transactions between amount at least equal to any preserve for a period not less than six the Investing Fund or Investing Fund compensation received from a Fund by years from the end of the fiscal year in Affiliate and the Fund or Fund Affiliate. the Investing Fund Sub-Advisor, or an which any purchase in an Affiliated 9. The board of directors or trustees of affiliated person of the Investing Fund Underwriting occurred, the first two an Investing Management Company, Sub-Advisor, other than any advisory years in an easily accessible place, a including a majority of the independent fees paid to the Investing Fund Sub- written record of each purchase of directors or trustees, will adopt Advisor or its affiliated person by a securities in Affiliated Underwritings procedures reasonably designed to Fund, in connection with the once an investment by an Investing ensure that the Investing Fund’s investment by the Investing Fund in Fund Shares exceeds the limit Advisor and any Investing Fund Sub- Management Company in a Fund made of section 12(d)(1)(A)(i) of the Act, Advisor are conducting the investment at the direction of the Investing Fund setting forth from whom the securities program of the Investing Management Sub-Advisor. In the event that the were acquired, the identity of the Company without taking into account Investing Fund Sub-Advisor waives underwriting syndicate’s members, the any consideration received by the fees, the benefit of the waiver will be terms of the purchase, and the Investing Management Company or an passed through to the Investing information or material upon which the Investing Fund Affiliate from a Fund or Management Company. Board’s determinations were made.

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15. Before investing in a Fund in SECURITIES AND EXCHANGE under CBOE’s rules and must provide excess of the limits in section COMMISSION continuous electronic quotes (as defined 12(d)(1)(A), the Investing Fund and the in CBOE Rule 1.1(ccc)) in at least 90% [Release No. 34–60957; File No. SR–CBOE– Fund will execute a Participation 2009–070] of the series of each class for which it Agreement stating, without limitation, receives Preferred Market Maker that their boards of directors or trustees Self-Regulatory Organizations; orders.5 In addition, to receive a and their investment advisers, and the Chicago Board Options Exchange, participation entitlement for orders Trustee and Sponsor, as applicable, Incorporated; Order Approving a entered into the COB, the Preferred understand the terms and conditions of Proposed Rule Change Relating to Market Maker must be quoting at the the order, and agree to fulfill their Preferred Market Makers best net priced bid/offer when the order responsibilities under the order. At the is received.6 For orders in a COA, the time of its investment in Fund Shares in November 6, 2009. Preferred Market Maker must: (1) At the excess of the limit in section I. Introduction beginning of the auction, be quoting at 12(d)(1)(A)(i), an Investing Fund will either (A) the best bid/offer on the CBOE On September 28, 2009, the Chicago notify the Fund of the investment. At in at least one of the component series Board Options Exchange, Incorporated such time, the Investing Fund will also of the complex order, or (B) the best net (‘‘CBOE’’ or ‘‘Exchange’’) filed with the transmit to such Fund a list of names of priced bid/offer for the complex order; Securities and Exchange Commission each Investing Fund Affiliate and and (2) be quoting at the best net priced (‘‘Commission’’), pursuant to Section Underwriting Affiliate. The Investing bid/offer at the conclusion of the 19(b)(1) of the Securities Exchange Act Fund will notify the Fund of any auction.7 of 1934 (the ‘‘Act’’),1 and Rule 19b–4 changes to the list of names as soon as CBOE prohibits an order flow thereunder,2 a proposal to amend CBOE reasonably practicable after a change provider from notifying a Preferred Rule 8.13, ‘‘Preferred Market-Maker occurs. The Fund and the Investing Program’’ to establish a participation Market Maker of its intention to submit Fund will maintain and preserve a copy entitlement for complex orders a preferenced complex order so that the of the order, the Participation designated to Preferred Market Makers Preferred Market Maker could change its Agreement, and the list with any and to clarify the operation of the quotation to match the national best bid updated information for the duration of Hybrid System with respect to the or offer (‘‘NBBO’’) immediately prior to the investment and for a period of not existing Preferred Market Maker the submission of the preferenced 8 less than six years thereafter, the first participation entitlement for individual order. CBOE states that CBOE Rule two years in an easily accessible place. options orders. The proposed rule 4.18, ‘‘Prevention of the Misuse of 16. Before approving any advisory change was published for comment in Material, Nonpublic Information,’’ contract under section 15 of the Act, the the Federal Register on October 7, prohibits this misuse of material non- 9 board of directors or trustees of each 2009.3 The Commission received no public information. CBOE represents Investing Management Company, comments regarding the proposal. This that it will conduct surveillance for, and 10 including a majority of the independent order approves the proposed rule enforce against, such violations. directors or trustees, will find that the change. The participation entitlement for a advisory fees charged under such complex order is based on the contracts advisory contract are based on services II. Description of the Proposal remaining after equivalent net priced provided that will be in addition to, The CBOE proposes to amend CBOE orders and quotes on the EBook and rather than duplicative of, the services Rule 8.13 to: (1) Establish a equivalent net priced public customer provided under the advisory contract(s) participation entitlement for complex complex orders resting in the COB that of any Fund in which the Investing orders entered into the Complex Order have priority over Preferred Market Management Company may invest. Book (‘‘COB’’) or the complex order Makers have been filled.11 After these These findings and their basis will be RFQ auction (‘‘COA’’) that are orders have been filled, the recorded fully in the minute books of designated to a Preferred Market Maker; participation entitlement for a Preferred the appropriate Investing Management and (2) clarify the operation of the Market Maker that satisfies the Company. Hybrid System with respect to the requirements in CBOE Rule 8.13, Interpretation and Policy .01 is: (1) 40% 17. Any sales charges and/or service Preferred Market Maker participation when there are two or more Market fees charged with respect to shares of an entitlement for individual options Makers also quoting at the best net Investing Fund will not exceed the orders. priced bid/offer execution price; and (2) limits applicable to a fund of funds as A. Participation Entitlement for 50% when there is one other Market set forth in Conduct Rule 2830 of the Complex Orders Maker quoting at the best net priced NASD. Under the proposal, any Designated bid/offer execution price.12 The 18. No Fund will acquire securities of Primary Market Maker, Lead Market participation entitlement percentages any investment company or companies Maker, or Market Maker with an for complex orders are the same as the relying on sections 3(c)(1) or 3(c)(7) of appointment/allocation in the relevant the Act in excess of the limits contained options class may be designated as a 5 See CBOE Rule 8.13, Interpretation and Policy in section 12(d)(1)(A) of the Act, except Preferred Market Maker for complex .01(c). as permitted pursuant to rule 12d1–1 orders.4 A Preferred Market Maker must 6 See CBOE Rule 8.13, Interpretation and Policy under the Act. .01(a)(ii). comply with the quoting obligations 7 See CBOE Rule 8.13, Interpretation and Policy For the Commission, by the Division of applicable to its Market Maker type .01(a)(iii). Investment Management, under delegated 8 See Notice, supra note 3, at note 3. authority. 1 15 U.S.C. 78s(b)(1). 9 Id. Florence E. Harmon, 2 17 CFR 240.19b–4. 10 Id. 3 11 Deputy Secretary. See Securities Exchange Act Release No. 60746 See CBOE Rule 8.13, Interpretation and Policy (September 30, 2009), 74 FR 51626 (‘‘Notice’’). .01(b)(ii). [FR Doc. E9–27130 Filed 11–10–09; 8:45 am] 4 See CBOE Rule 8.13, Interpretation and Policy 12 See CBOE Rule 8.13, Interpretation and Policy BILLING CODE 8011–01–P .01(a). .01(b).

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participation entitlement percentages manipulative acts and practices, to is received.18 For orders in a COA, the for individual options orders currently promote just and equitable principles of Preferred Market Maker must: (1) At the provided under CBOE Rule 8.13(c). If a trade, to remove impediments to and beginning of the auction, be quoting at Preferred Market Maker receives a perfect the mechanism of a free and either (A) the best bid/offer on the CBOE participation entitlement for a complex open market and a national market in at least one of the component series order in the COB or a COA, no other system, and, in general, to protect of the complex order, or (B) the best net participation entitlement provided in investors and the public interest. The priced bid/offer for the complex order; the CBOE’s rules for complex orders proposal establishes a Preferred Market and (2) be quoting at the best net priced will apply to the complex order.13 Maker participation entitlement for bid/offer at the conclusion of the complex orders submitted to the COB auction.19 These quoting requirements B. Clarification of the Participation and the COA. Under the proposal, the are analogous to the current requirement Entitlement for Individual Orders Preferred Market Maker participation in CBOE Rule 8.13(b)(ii) that a Preferred CBOE is amending CBOE Rule 8.13(b) entitlement percentages for complex Market Maker be quoting at the CBOE’s to more clearly reflect the operation of orders are the same as the Preferred best bid/offer to be eligible for a the Hybrid System with respect to Market Maker participation entitlement participation entitlement for an Preferred Market Makers. Specifically, percentages provided currently in CBOE individual options order. CBOE is revising CBOE Rule 8.13(b) to Rule 8.13(c) for individual options The Commission believes that it is indicate that the Hybrid System is orders.16 Because the proposal does not critical that, to be eligible for a programmed so that the recipient of a provide a participation entitlement for participation entitlement for a complex Preferred Market Maker order will complex orders that is greater than the order, a Preferred Market Maker may not receive a participation entitlement if: (1) currently acceptable participation step up and match the CBOE’s best bid/ The Preferred Market Maker has an entitlement threshold for individual offer after it receives an order, but must appointment/allocation in the relevant options orders, the Commission does be publicly quoting at the CBOE’s best options class; and (2) the Preferred not believe that the proposal will net priced bid/offer when the order is Market Maker is quoting at the CBOE’s negatively impact quote competition for received (for orders in the COB), or, for best bid or offer. CBOE is adding complex orders on CBOE. Under the orders in a COA, quoting at either the paragraph (d) to CBOE Rule 8.13, which proposal, the remaining portion of each CBOE’s best/bid offer for a least one will incorporate the quoting obligations complex order will still be allocated component of a complex order or at the applicable to Preferred Market Makers based on the competitive bidding of CBOE’s best net priced bid/offer for the that are currently set forth in CBOE Rule market participants. complex order at the start of the 20 8.13(b)(iii), including the requirement A Preferred Market Maker must auction. As noted above, CBOE states that a Preferred Market Maker provide satisfy certain requirements to be that it would be a misuse of material continuous electronic quotes, as defined eligible for a participation entitlement non-public information in violation of in CBOE Rule 1.1(ccc), in at least 90% in complex orders. Specifically, a CBOE Rule 4.18 for an order flow of the series of each class for which it Preferred Market Maker must comply provider to notify a Preferred Market receives Preferred Market Maker orders. with the quoting obligations applicable Maker of its intention to submit a CBOE notes that this quoting obligation, to its Market Maker type under the preferenced complex order immediately like other Market Maker quoting CBOE’s rules and must provide prior to sending the order to allow the obligations, is subject to CBOE market continuous electronic quotes (as defined Preferred Market Maker to modify its quotation.21 CBOE represents that it will performance, surveillance, and in CBOE Rule 1.1(ccc)) in at least 90% conduct surveillance for, and enforce disciplinary programs to assess and of the series for each class for which it against, such violations of its rules.22 enforce compliance. receives Preferred Market Maker 17 The Commission emphasizes that III. Discussion and Commission orders. In addition, to receive a approval of this proposal does not affect Findings participation entitlement for orders a broker-dealer’s duty of best execution. entered into the COB, the Preferred The Commission finds that the The Commission has discussed the duty Market Maker must be quoting at the of best execution in previous orders proposed rule change is consistent with best net priced bid/offer when the order the requirements of the Act and the approving proposals to implement participation entitlements,23 and hereby rules and regulations thereunder 16 The Commission also has approved similar applicable to a national securities participation entitlement percentages for individual incorporates those discussions by exchange.14 In particular, the options orders on other options exchanges. See, e.g., reference into this order. Commission finds that the proposal is Securities Exchange Act Release Nos. 56269 Finally, the Commission finds that the (August 15, 2007), 72 FR 47086 (August 22, 2007) changes to CBOE Rule 8.13(b) are consistent with Section 6(b)(5) of the (File No. SR–Amex–2007–75) (order approving an Act,15 which requires, in part, that the American Stock Exchange directed order program 18 rules of a national securities exchange that provides a 40% participation entitlement on See CBOE Rule 8.13, Interpretation and Policy directed orders) (‘‘Amex Order’’); 51759 (May 27, .01(a)(ii). be designed to prevent fraudulent and 19 2005), 70 FR 32860 (June 6, 2005) (File No. SR– See CBOE Rule 8.13, Interpretation and Policy Phlx–2004–91) (order approving a directed order .01(a)(iii). 13 See CBOE Rule 8.13, Interpretation and Policy program on the Philadelphia Stock Exchange that 20 A Preferred Market Maker will not be allocated .01(b)(iii). However, if a complex order executes, in allows the directed order recipient to receive a 40% a total quantity greater than the quantity it is part, against a Preferred Market Maker’s interest in participation entitlement on designated orders) quoting at the best net priced bid/offer execution the COB or the COA and, in part, against the (‘‘Phlx Order’’); and 51818 (June 10, 2005), 70 FR price. See CBOE Rule 8.13, Interpretation and Preferred Market Maker’s interest in the individual 35146 (June 16, 2005) (File No. ISE–2005–18) (order Policy .01(b)(i). series legs in the EBook, a Preferred Market Maker approving a preferencing program on the 21 See notes 8 and 9, supra, and accompanying entitlement may apply on both the individual series International Securities Exchange that allows a text. legs and on the COB or COA execution. See Notice, preferenced market maker to receive a 40% 22 See note 10, supra, and accompanying text. supra note 3, at note 5. participation entitlement on designated orders). 23 See, e.g., Amex Order and Phlx Order, supra 14 In approving this proposed rule change, the 17 See CBOE Rule 8.13, Interpretation and Policy note 16; and Securities Exchange Act Release No. Commission has considered the proposed rule’s .01(c). This quoting obligation also applies 51779 (June 2, 2005), 70 FR 33564 (June 8, 2005) impact on efficiency, competition, and capital currently to the Preferred Market Maker (File No. SR–CBOE–2004–71) (order approving a formation. 15 U.S.C. 78c(f). participation entitlement for individual options modification of the participation entitlement for 15 15 U.S.C. 78f(b)(5). orders. Preferred Designated Primary Market Makers).

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consistent with the Act because they published for comment in the Federal Procedures for Expedited Proceedings clarify the operation of the Hybrid Register on January 28, 2009.4 The Under the Rule 9550 Series). Lastly, System with respect to Preferred Market Commission received two comment FINRA proposed to make conforming Maker participation entitlements. letters in response to the proposed rule revisions to Section 4(g) of Schedule A 5 to the FINRA By-Laws. IV. Conclusion change, along with one letter from FINRA addressing certain of the A. Background It is therefore ordered, pursuant to comments.6 FINRA filed Amendment Section 19(b)(2) of the Act,24 that the No. 1 to the proposed rule change on Currently, both NASD and NYSE proposed rule change (File No. SR– June 17, 2009.7 FINRA filed Rules 9 contain provisions governing CBOE–2009–070) is approved. Amendment No. 2 to the proposed rule financial responsibility. These For the Commission, by the Division of change on June 30, 2009.8 This Order provisions have played an important Trading and Markets, pursuant to delegated approves the proposed rule change, as role in supporting the SEC’s minimum authority.25 modified by Amendment No. 1 and net capital and other financial Florence E. Harmon, issues notice of, and solicits comments responsibility requirements by Deputy Secretary. on, Amendment No. 2, and approves the establishing criteria promoting the [FR Doc. E9–27258 Filed 11–10–09; 8:45 am] filing, as modified by Amendment No. permanency of member’s capital, requiring the review and approval of BILLING CODE 8011–01–P 2, on an accelerated basis. material financial transactions and II. Description of the Proposed Rule establishing criteria intended to identify SECURITIES AND EXCHANGE Change member firms approaching financial COMMISSION The proposed rule change would difficulty and to monitor their financial adopt FINRA Rules 4110 (Capital and operational condition. For that [Release No. 34–60933; File No. SR–FINRA– reason, FINRA has placed high priority 2008–067] Compliance), 4120 (Regulatory Notification and Business Curtailment), on expeditiously developing the unified Self-Regulatory Organizations; 4130 (Regulation of Activities of Section set of proposed rules for inclusion in the Financial Industry Regulatory 15C Members Experiencing Financial Consolidated FINRA Rulebook. FINRA Authority, Inc.; Notice of Filing of and/or Operational Difficulties), 4140 believes that the proposed rules would Amendment No. 2 and Order Granting (Audit) and 4521 (Notifications, incorporate many of the provisions in Accelerated Approval to a Proposed Questionnaires and Reports) in the the existing rules but would streamline Rule Change, as Modified by Consolidated FINRA Rulebook and and reorganize the provisions. In Amendment Nos. 1 and 2, to Adopt delete NASD Rules 3130 and 3131, addition, FINRA has tiered many NASD IM–3130, Incorporated NYSE provisions to apply only to those firms Rules Governing Financial 10 Responsibility in the Consolidated Rules 312(h), 313(d), 325, 326, 328, that clear or carry customer accounts. FINRA Rulebook 416.20, 418, 420, 421 and NYSE Rule B. Proposed FINRA Rule 4110 (Capital Interpretations 313(d)/01, 313(d)/02, Compliance) November 4, 2009. 325(c)(1), 325(c)(1)/01 and 416/01. 1. Authority to Increase Capital I. Introduction FINRA also proposed to revise FINRA Requirements On December 30, 2008, the Financial Rule 9557 (Procedures for Regulating Proposed FINRA Rule 4110(a), based Industry Regulatory Authority, Inc. Activities Under Rules 4110, 4120 and primarily on NYSE Rule 325(d), would (‘‘FINRA’’) (f/k/a National Association 4130 Regarding a Member Experiencing enable FINRA to prescribe greater net of Securities Dealers, Inc. (‘‘NASD’’)) Financial or Operational Difficulties) capital requirements for carrying and filed with the Securities and Exchange and FINRA Rule 9559 (Hearing clearing members, or require any such Commission (‘‘SEC’’ or ‘‘Commission’’), 4 See Securities Exchange Act Release No. 59273 member to restore or increase its net pursuant to Section 19(b)(1) of the (January 22, 2009), 74 FR 4992 (January 28, 2009) capital or net worth, when deemed Securities Exchange Act of 1934 (hereinafter the ‘‘Proposing Release’’). necessary for the protection of investors (‘‘Act’’)1 and Rule 19b–4 thereunder,2 a 5 See letters from Holly H. Smith and Eric A. or in the public interest. The authority proposed rule change to adopt a new, Arnold of Sutherland, Asbill & Brennan, LLP on to act under the proposed rule would consolidated set of financial behalf of the Committee of Annuity Insurers dated February 18, 2009 (the ‘‘CAI Letter’’) and Julian reside with FINRA’s Executive Vice responsibility rules as part of the Rainero of Bracewell & Guiliani, LLP dated April process of developing a new President charged with oversight for 17, 2009 (the ‘‘B&G Letter’’). financial responsibility (or his or her consolidated rulebook (‘‘Consolidated 6 See letter from Adam H. Arkel of FINRA, dated FINRA Rulebook’’)3 without material April 14, 2009 (the ‘‘FINRA Letter’’). written officer delegate) (referred to as change. The proposed rule change was 7 Amendment No. 1 is a technical amendment ‘‘FINRA’s EVP’’). To execute such designed to clarify one sentence in the rule text. authority, FINRA would be required to 8 Amendment No. 2 adds Supplementary Material 24 issue a notice pursuant to Proposed 15 U.S.C. 78s(b)(2). to the proposed FINRA Rules 4110, 4120 and 4521 25 FINRA Rule 9557 (a ‘‘Rule 9557 17 CFR 200.30–3(a)(12). to clarify that, for purposes of each of those rules, 1 15 U.S.C. 78s(b)(1). all requirements that apply to a member that clear notice’’). FINRA believes that proposed 2 17 CFR 240.19b–4. or carry customer accounts also shall apply to any FINRA Rule 9557, much like the current 3 The current FINRA rulebook includes, in member that, operating pursuant to the exemptive rule, would afford a member adequate addition to FINRA Rules, (1) NASD Rules and (2) provisions of Rule 15c3–3(k)(2)(i), either clears safeguards because, among other things, rules incorporated from NYSE (‘‘Incorporated NYSE customer transactions pursuant to such exemptive Rules’’) (together, the NASD Rules and Incorporated provisions or holds customer funds in a bank NYSE Rules are referred to as the ‘‘Transitional account established thereunder. FINRA explained 9 For convenience, the Incorporated NYSE Rules Rulebook’’). While the NASD Rules generally apply this aspect of the rule change in its Notice to are referred to as the ‘‘NYSE Rules.’’ to all FINRA members, the Incorporated NYSE Members 08–23, and in greater detail in its original 10 All requirements set forth in the proposed rules Rules apply only to those members of FINRA that filing with the Commission. Further, one of the two that would apply to firms that clear or carry are also members of the NYSE (‘‘Dual Members’’). commenters commented on this aspect of the customer accounts would also apply to firms that For more information about the rulebook proposed rule changes (See the CAI Letter). FINRA operate pursuant to the exemptive provisions of consolidation process, see FINRA Information believes that incorporating this Supplementary SEA Rule 15c3–3(k)(2)(i). For further clarification in Notice, March 12, 2008 (Rulebook Consolidation Material will reduce any possible ambiguity with response to commenter concerns, see Section 2 Process). respect to this issue. under Item II C. See also infra note 12.

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it provides opportunity for an expedited during any period of time in which it is any rolling 35-calendar-day period, on a hearing pursuant to Proposed FINRA not in compliance with SEA Rule 15c3– net basis, would exceed 10 percent of Rule 9559.11 1. This requirement is consistent with the member’s excess net capital.16 This Proposed FINRA Rule 4110(a) would current law.13 provision is based in part on NYSE Rule be a new provision for FINRA members As with NASD Rule 3130(e), Proposed 312(h) and SEA Rule 15c3–1(e). While that are not Dual Members (‘‘non-NYSE FINRA Rule 4110(b)(1) is self-operative it would be a new requirement for non- members’’) that are carrying or clearing (that is, a firm would automatically be NYSE members that are carrying or members. However, it would not apply required to comply with the provision clearing members, it would not apply to to introducing firms or to certain firms without any direction from FINRA). non-clearing firms. In this regard, NYSE with limited business models (together, Notwithstanding that the proposed non-clearing firms that currently are ‘‘non-clearing firms’’).12 In this regard, provision is self-operative, FINRA may subject to NYSE Rule 312(h) would not certain Dual Members that currently are issue a Rule 9557 notice directing a be subject to the similar provision in the subject to NYSE Rule 325(d)—namely member that is not in compliance with FINRA Rule. FINRA further notes that those NYSE member firms that are not SEA Rule 15c3–1 to suspend all or a the 10 percent limit set forth in carrying or clearing members (‘‘NYSE portion of its business. Upon receipt of Proposed FINRA Rule 4110(c)(2) would non-clearing firms’’)—would not be a Rule 9557 notice, the firm would have provide a de minimis exception; current subject to the similar requirement in the the right to request an expedited NYSE Rule 312(h) does not include FINRA Rule. All member firms that are hearing. Neither the fact that FINRA such an exception. subject to the requirement would have may issue a Rule 9557 notice nor the an opportunity to request an expedited right to an expedited hearing would be 4. Sale-and-Leasebacks, Factoring, hearing if they receive a Rule 9557 a defense in any subsequent Financing, Loans and Similar notice, which would be a new disciplinary proceeding with respect to Arrangements procedural right not available under a member firm’s non-compliance with To ensure the permanency of net NYSE Rule 325(d). Proposed FINRA Rule 4110(b)(1). capital in contemplated sale-and- As FINRA has explained in the leaseback, factoring, financing and 3. Withdrawal of Equity Capital Notice, the NYSE staff historically similar arrangements, Proposed FINRA employed NYSE Rule 325(d) in limited To further the goal of financial Rule 4110(d)(1)(A) would provide that circumstances, and FINRA anticipates stability, Proposed FINRA Rule no carrying or clearing member may that it would apply Proposed FINRA 4110(c)(1) would prohibit a member consummate a sale-and-leaseback Rule 4110(a) in similar fashion. The from withdrawing equity capital for a arrangement with respect to any of its proposed rule would enable FINRA to period of one year, unless otherwise assets, or a sale, factoring or financing respond promptly to extraordinary, permitted by FINRA in writing. In arrangement with respect to any unanticipated or emergency response to commenter 14 requests for unsecured accounts receivable, where circumstances. Under Proposed FINRA clarification of this provision, the any such arrangement would increase Rule 4110(a), FINRA’s EVP could proposed rule expressly provides that, the member’s tentative net capital by 10 require a carrying or clearing member to subject to the requirements of Proposed percent or more,17 without the prior comply with increased capital FINRA Rule 4110(c)(2), members would written authorization of FINRA. requirements in circumstances such as not be precluded from withdrawing Proposed FINRA Rule 4110(d)(1)(A) is where unanticipated systemic market profits earned. based on NYSE Rule 328(a), but would events threaten the member firm’s FINRA anticipates that approvals for apply only to carrying and clearing capital, or where the member firm the early withdrawal of equity capital members. While the provision would be maintains an undue concentration in pursuant to Proposed FINRA Rule new for non-NYSE members that are illiquid products. In such instances, 4110(c)(1) would be granted on a carrying or clearing members, it would FINRA’s EVP may, for example, find it limited basis.15 not apply to non-clearing firms. In this appropriate, in the public interest, to Proposed FINRA Rule 4110(c)(2) regard, NYSE non-clearing firms that raise the applicable ‘‘haircut’’ (that is, to would apply only to carrying or clearing currently are subject to NYSE Rule increase the percentage of the market members and would prohibit any such 328(a) would no longer be subject to the value of certain securities or member, without the prior written similar provision in the FINRA Rule. commodities positions by which the approval of FINRA, from withdrawing Moreover, unlike NYSE Rule 328(a), member must reduce its net worth) or capital, paying a dividend or effecting a Proposed FINRA Rule 4110(d)(1)(A) treat certain assets as non-allowable in similar distribution that would reduce includes a de minimis exception by computing net capital. the member’s equity, or making any permitting a member to consummate, 2. Suspension of Business Operations unsecured advance or loan to a without FINRA’s prior authorization, a stockholder, partner, sole proprietor, sale-and-leaseback arrangement with Proposed FINRA Rule 4110(b)(1) is employee or affiliate, where such based in part on NASD Rule 3130(e) and respect to any of its assets, or a sale, withdrawals, payments, reductions, factoring or financing arrangement with would provide that, unless otherwise advances or loans in the aggregate, in permitted by FINRA, a member firm 16 The calculation of 10 percent of excess net must suspend all business operations 13 The Commission notes that the net capital rule capital must be based on the member’s excess net requires that ‘‘every broker or dealer shall at all capital position as reported in its most recently 11 See also Section F under this Item. times have and maintain’’ certain specified levels filed Form X–17A–5. The member must assure itself 12 For clarification, introducing firms and firms of net capital. The Commission further notes that that the excess net capital so reported has not with limited business models (for example, firms to the extent a broker-dealer fails to maintain at materially changed since the time the form was that engage exclusively in subscription-basis least the amount of net capital specified in that rule, filed. mutual fund transactions, direct participation it must cease doing a securities business. [See 72 17 The calculation of 10 percent of tentative net programs, or mergers and acquisitions activities) are FR 12862, at 12872.] capital must be based on the member’s tentative net not deemed carrying or clearing members and 14 All references to ‘‘commenters’’ are to persons capital position as reported in its most recently therefore would not be subject to Proposed FINRA that submitted comments in response to the Notice. filed Form X–17A–5. The member must assure itself Rule 4110(a), or for that matter any of the other For further information on this issue, see infra Item that the tentative net capital so reported has not provisions of the proposed rules that would apply II C. materially changed since the time the form was only to carrying or clearing members. 15 See Section 4 under Item II C. filed.

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respect to any unsecured accounts whether the term of the loan is at least clearing members. The proposed rule receivable where the arrangement one year. FINRA expects that a would require any such member would not increase the member firm’s determination of acceptability can promptly, but in any event within 24 tentative net capital by 10 percent or generally be made within approximately hours, to notify FINRA when certain more.18 one week. specified financial triggers are Proposed FINRA Rule 4110(d)(1)(B), reached.22 This would be a new 5. Subordinated Loans, Notes which is also based on NYSE Rule notification requirement for non-NYSE Collateralized by Securities and Capital 328(a), would provide that no carrying members that are carrying or clearing Borrowings member may consummate any members; it would not, however, apply arrangement concerning the sale or Proposed FINRA Rule 4110(e) is to non-clearing firms. Accordingly, factoring of customer debit balances, based in part on current NYSE Rule 420 NYSE non-clearing firms would no irrespective of amount, without the and would address the requirements for longer be subject to these requirements. prior written authorization of FINRA. subordinated loans and loans made to The provision would be new for non- general partners of members that are 2. Restrictions on Business Expansion NYSE members that are carrying partnerships. Proposed FINRA Rule 4120(b) is members. Proposed FINRA Rule 4110(e)(1) based on NASD Rule 3130(c) and NYSE Proposed FINRA Rule 4110(d)(2) is would implement Appendix D of SEA Rule 326(a) and addresses based on NYSE Rule 328(b), but would Rule 15c3–1 and require that all circumstances under which a member apply only to carrying and clearing subordinated loans or notes would be prohibited from expanding its members. The provision would require collateralized by securities must meet business. FINRA’s prior approval for any loan such standards as FINRA may require to Proposed FINRA Rule 4120(b)(1), agreement entered into by such a ensure the continued financial stability which is self-operative, would apply member, the proceeds of which exceed and operational capability of a member, only to carrying and clearing members, 10 percent of the member’s tentative net in addition to meeting those standards and requires any such member, unless capital 19 and that is intended to reduce specified in Appendix D of SEA Rule otherwise permitted by FINRA, to the deduction in computing net capital 15c3–1.21 Appendix D of SEA Rule refrain from expanding its business for fixed assets and other assets that 15c3–1 requires that all subordination during any period in which any of the cannot be readily converted into cash agreements must be found acceptable by conditions described in Proposed under SEA Rule 15c3–1(c)(2)(iv). the Examining Authority before they FINRA Rule 4120(a)(1) continue to exist Because the provision would apply only can become effective. for the specified time period. While to carrying and clearing members, NYSE Proposed FINRA Rule 4110(e)(2) NASD Rule 3130(c) includes non-clearing firms would be relieved would require that, unless otherwise comparable provisions, the requirement from current requirements under NYSE permitted by FINRA, each member would now be self-operative for non- Rule 328(b). In addition, unlike NYSE whose general partner enters into any NYSE members that are carrying or Rule 328(b), the proposed rule would secured or unsecured borrowing, the clearing members. Proposed FINRA include a de minimis exception. proceeds of which will be contributed to Rule 4120(b) also provides that FINRA Proposed FINRA Rule 4110(d)(3) the capital of the member, must, in may issue a Rule 9557 notice directing provides that any member that is subject order for the proceeds to qualify as any such member not to expand its to paragraphs (d)(1)(A), (d)(1)(B) or capital acceptable for inclusion in business, in which case the member (d)(2) of Proposed FINRA Rule 4110 computation of the member’s net would have the right to request an would be prohibited from capital, submit to FINRA for approval a expedited hearing. Neither the fact that consummating, without FINRA’s prior signed copy of the loan agreement. The FINRA may issue a Rule 9557 notice nor written authorization, any arrangement loan agreement must have at least a 12- the right to an expedited hearing would pursuant to those paragraphs if the month duration and provide non- be a defense in any subsequent aggregate of all such arrangements recourse to the assets of the member disciplinary proceeding with respect to would exceed 20 percent of the firm. Moreover, because a general a member’s non-compliance with member’s tentative net capital.20 partner’s interest may allow the lender Proposed FINRA Rule 4120(b)(1). Proposed FINRA Rule 4110(d)(4) to reach into the assets of the broker- Unlike the self-operative nature of implements a requirement of the SEC’s dealer, FINRA is requiring a provision paragraph (b)(1), Proposed FINRA Rule net capital rule and therefore would in the loan agreement that would estop 4120(b)(2) authorizes FINRA, for any apply to all members. It provides that the lender from having that right. financial or operational reason, to any agreement relating to a restrict any member’s ability to expand determination of a ‘‘ready market’’ for C. Proposed FINRA Rule 4120 its business by the issuance of a Rule securities based upon the securities (Regulatory Notification and Business 9557 notice. In all such cases, the being accepted as collateral for a loan by Curtailment) member would have the right to request a bank under SEA Rule 15c3–1(c)(11)(ii) 1. Regulatory Notification an expedited hearing. This same right must be submitted to, and be acceptable Proposed FINRA Rule 4120(a) is currently applies to NASD Rule to, FINRA before the securities may be 3130(c)(2). deemed to have a ‘‘ready market.’’ When based on current NYSE Rule 325(b), but determining the acceptability of a loan would apply only to carrying and 3. Reduction of Business agreement, pursuant to Proposed FINRA Proposed FINRA Rule 4120(c) is 21 See SEA Rule 15c3–1d. Note that the proposed Rule 4110(d)(4), FINRA staff would, as Supplementary Material would require that, for based on NASD Rule 3130(d) and NYSE a general matter, consider such factors purposes of Proposed FINRA Rule 4110(e)(1), the as whether the bank would have sole member must assure itself that any applicable 22 The determination of whether the financial recourse under the agreement and provisions of the Securities Act of 1933 and/or state triggers were reached must be based on the Blue Sky laws have been satisfied, and may be member’s financial position as reported in its most required to submit evidence thereof to FINRA prior recently filed Form X–17A–5. The member must 18 See supra note 17. to approval of the subordinated loan agreement. See assure itself that its financial position so reported 19 See supra note 17. Proposed FINRA Rule 4110.01 (Compliance with has not materially changed since the time the form 20 See supra note 17. Applicable Law). was filed.

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Rule 326(b) and addresses report is not timely filed, up to a with FINRA. This would be a new circumstances under which a member maximum of 10 business days. requirement for non-NYSE members would be required to reduce its that are carrying or clearing members. F. Proposed FINRA Rule 4521 business. (Notifications, Questionnaires and Proposed FINRA Rule 4521(d) would Proposed FINRA Rule 4120(c)(1), Reports) require that, unless otherwise permitted which is self-operative, would apply by FINRA in writing, member firms only to carrying and clearing members, Drawing in part on NASD IM–3130 carrying margin accounts for customers requiring any such member, unless and Rule 3150 and NYSE Rules must submit, on a settlement date basis: 23 24 otherwise permitted by FINRA in 325(b)(2), 416 and 421(2), Proposed (1) The total of all debit balances in writing, to reduce its business to a point FINRA Rule 4521 would address securities margin accounts; and (2) the enabling its available capital to exceed FINRA’s authority to request certain total of all free credit balances contained the standards set forth in Proposed information from members to carry out in cash or margin accounts. This would FINRA Rule 4120(a)(1) when any of the its surveillance and examination be a new requirement for non-NYSE enumerated conditions continue to exist responsibilities. As further described member firms that carry margin for the specified time period. While below, many of the provisions would accounts. NASD Rule 3130(d) includes apply only to carrying and clearing In response to commenter suggestion, comparable provisions, the requirement members. Proposed FINRA Rule 4521(e) has been Proposed FINRA Rule 4521(a) would would now be self-operative for non- revised to provide that a late fee of $100 provide that each carrying or clearing NYSE members that are carrying or would be imposed for each day that any member must submit to FINRA such clearing members. Proposed FINRA report, notification or information a financial and operational information Rule 4120(c)(1) also provides that member is required to file pursuant to regarding the member or any of its FINRA may issue a Rule 9557 notice Rule 4521 is not timely filed, up to a correspondents as FINRA deems directing any such member to reduce its maximum of 10 business days. essential for the protection of investors business, in which case the member and the public interest. The provisions G. Proposed FINRA Rules 9557 would have the right to an expedited would be new for certain non-NYSE (Procedures for Regulating Activities hearing. Neither the fact that FINRA members that are carrying or clearing Under Rules 4110, 4120 and 4130 may issue a Rule 9557 notice nor the members.25 Regarding a Member Experiencing right to an expedited hearing would be Proposed FINRA Rule 4521(b) would Financial or Operational Difficulties) a defense in any subsequent require every member approved by the and 9559 (Hearing Procedures for disciplinary proceeding with respect to SEC pursuant to SEA Rule 15c3–1 to use Expedited Proceedings Under the Rule a member’s non-compliance with the alternative method of computing net 9550 Series) Proposed FINRA Rule 4120(c)(1). capital contained in Appendix E to that FINRA Rules 9557 and 9559 address Unlike the self-operative nature of Rule to file such supplemental and service of notice to member firms that paragraph (c)(1), proposed FINRA Rule alternative reports as may be prescribed are experiencing financial or operational 4120(c)(2) authorizes FINRA, for any by FINRA. financial or operational reason, to Proposed FINRA Rule 4521(c) would difficulties and the related hearing require any member firm to reduce its require each carrying or clearing procedures. The proposed rule change business by the issuance of a notice in member to notify FINRA in writing no would make a number of conforming accordance with Rule 9557. In all such more than 48 hours after its tentative net revisions to FINRA Rules 9557 and 9559 cases, the member firm would have the capital, as computed pursuant to SEA in light of several of the proposed right to request an expedited hearing. Rule 15c3–1, has declined 20 percent or financial responsibility rules (Proposed This same right currently applies to more from the amount reported in its FINRA Rules 4110, 4120 and 4130). In NASD Rule 3130(d)(2). most recent FOCUS Report or, if later, response to commenter concerns, the most recent such notification filed FINRA re-iterates that the proposed rule D. Proposed FINRA Rule 4130 change also would include new (Regulation of Activities of Section 15C provisions to afford members with an Members Experiencing Financial and/or 23 NYSE Rules 416(a), 416(c) and 416.10 will remain in the Transitional Rulebook to be appeals process that is both more Operational Difficulties) addressed later in the rulebook consolidation expedited than that currently provided process. On July 11, 2008, the SEC approved under FINRA Rules 9557 and 9559 and Proposed FINRA Rule 4130 would be FINRA’s proposal to delete NYSE Rule 416(b). See substantially identical to NASD Rule Securities Exchange Act Release No. 58149 (July 11, provides members with adequate 3131 except that the proposed rule 2008), 73 FR 42385 (July 21, 2008) (Notice of Filing safeguards.26 For example: would reflect FINRA as the designated and Order Granting Accelerated Approval of • Proposed FINRA Rule 9557(d) Proposed Rule Change; File No. SR–FINRA–2008– would provide that the requirements examining authority and make other 034). conforming revisions. The proposed 24 Because FINRA proposes to delete NYSE Rule referenced in a Rule 9557 notice served rule would apply only to certain firms 421(2) and its related provision Rule 421.40, the upon a member are immediately that are subject to the Treasury proposed rule change would, in combination with effective. Under the proposed rule Department’s liquid capital rule change SR–FINRA–2008–033 (which was change, a timely request for a hearing approved by the SEC on September 4, 2008 and requirements. took effect on December 15, 2008), delete NYSE would stay the effective date for 10 business days after the service of the E. Proposed FINRA Rule 4140 (Audit) Rule 421 in its entirety. See Securities Exchange Act Release No. 58461 (September 4, 2008), 73 FR notice or until a written order is issued Proposed FINRA Rule 4140 would 52710 (September 10, 2008) (Order Approving pursuant to Proposed FINRA Rule Proposed Rule Change; File No. SR–FINRA–2008– incorporate FINRA’s existing authority 033); see also FINRA Regulatory Notice 08–57 (SEC 9559(o)(4)(A) (whichever period is less), under NASD Rule 3130 and NASD IM– Approves New Consolidated FINRA Rules) (October unless it is determined that such a stay 3130 and NYSE Rule 418 to request an 2008). cannot be permitted with safety to audit or an agreed-upon procedures 25 FINRA notes that NASD Rule 3150 (Reporting investors, creditors or other member Requirements for Clearing Firms) currently requires firms; review under certain circumstances. most carrying and clearing members to submit such The proposed rule would impose a late data to FINRA. Rule 3150 will be addressed later fee of $100 for each day that a requested in the rulebook consolidation process. 26 See Section 7 under Item II.C.

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• To ensure an expedited process, restrictions imposed by the notice. If the firm engages in any carrying or clearing Proposed FINRA Rule 9557(e) would Hearing Panel approves the activity, including operating pursuant to require a member to file with the Office requirements and/or restrictions and the exemptive provisions of 15c3– of Hearing Officers any written request finds the member has not complied with 3(k)(2)(i), then such firm would be for a hearing within two business days all of them, the Hearing Panel shall expected to comply with all after service of the Rule 9557 notice; impose an immediate suspension on the requirements set forth in the proposed • Proposed FINRA Rule 9559(f)(1) respondent that shall remain in effect rules that apply to carrying and clearing would provide that, after a respondent unless FINRA staff issues a letter of firms. A firm that does not engage in subject to a Rule 9557 notice files a withdrawal of all requirements and/or any such activity would not be subject written request for a hearing with the restrictions. to those requirements.’’ 33 Office of Hearing Officers, the hearing FINRA intends to announce the With respect to the commenter’s must be held within five business days effective date of the proposed rule second point, FINRA noted that firms of such filing; change in a Regulatory Notice to be that operate pursuant to the Rule 15c3– • Proposed FINRA Rule 9559(o)(4)(A) published no later than 90 days 3(k)(2)(i) exemption receive customer would provide that, within two business following Commission approval. funds for the purpose of settling days of the date of the close of the customer transactions and perform a III. Comment Letters hearing, the Office of Hearing Officers clearing function, irrespective of how must issue the Hearing Panel’s written The proposed rule change was short the period they may hold order. The Hearing Panel order would published for comment in the Federal customer funds.34 Accordingly, FINRA be effective when issued. (The proposed Register on January 28, 2009 and the stated that it believes that firms rule change provides that, pursuant to comment period closed on February 18, operating pursuant to the Rule 15c3– Proposed FINRA Rules 9559(o)(4)(B) 2009. The Commission received two 3(k)(2)(i) exemption should, as a matter and 9559(p), the written decision comment letters in response to the of investor protection, be subject to all explaining the reasons for the Hearing proposing release; the CAI Letter and requirements set forth in the proposed Panel’s determinations must be issued the B&G Letter.29 While neither rules that apply to carrying and clearing within seven days of the issuance of the commented generally on FINRA’s rule firms.35 written order.) proposal, both raised specific, discreet B. Ability to Increase Capital Proposed FINRA Rules 9557 and 9559 issues relating to those rules. set forth a number of other Requirements enhancements and clarifications of A. Members Operating Pursuant to SEA One commenter argued that FINRA procedure. For example, Proposed Rule 15c3–3(k)(2)(i) Exemption should build objective standards into FINRA Rule 9557(e)(1) provides that a FINRA stated in its filing with the Proposed Rule 4110(a) to ensure that member served with a Rule 9557 notice Commission that ‘‘the requirements set firms have some predictability in their may request from FINRA staff a letter of forth in the proposed rules that would cash management functions and so the withdrawal of the notice. The member apply to carrying and clearing members standards are applied equitably to all may make this request either in lieu of would also apply to members that FINRA members. In response to similar or in addition to filing with the Office operate pursuant to the exemptive comments it received in response to its of Hearing Officers the written request provisions of SEA Rule 15c3– Notice to Members 08–23, FINRA stated for a hearing. The proposed rule change 3(k)(2)(i).30 ’’ One commenter stated that that it ‘‘does not agree that it is in the would enable FINRA staff, in response it believes the definition of ‘‘carrying or public interest to limit the rule’s to the member’s request, either to clearing’’ firm should be revised in two application by listing specific withdraw the Rule 9557 notice or to respects: first, it believes that FINRA circumstances under which FINRA reduce its requirements and/or should include firms distributing would exercise its authority’’ because restrictions.27 The member may submit variable annuities or life insurance ‘‘Proposed Rule 4110(a) is intended to a request for a letter of withdrawal to within the types of firms FINRA has enable FINRA to respond promptly to FINRA staff at any time after the notice described as having ‘‘limited business extraordinary, unanticipated or is served. If such request is denied by models;’’ and second, it believes FINRA emergency circumstances.’’ 36 FINRA FINRA staff, the proposed rule change should take into consideration the also stated that Proposed FINRA Rule provides that the member shall not be extremely different profile of firms that 4110(a) does not lend itself to precluded from making a subsequent use the exemption provided in SEC Rule prescribed parameters.37 28 request or requests. 15c3–3(k)(2)(i) versus the profile of C. Suspension of Business Operations If a member requests a hearing within traditional carrying and clearing firms.31 two business days after service of a 9557 With respect to the commenter’s first One commenter requested notice, the member may seek to contest point, FINRA, in its response letter, clarification on the interplay between (1) the validity of the requirements and/ stated that the commenter may have FINRA’s Proposed Rule 4110(b) and or restrictions imposed by the notice (as misinterpreted the purpose of FINRA’s Exchange Act Rule 17a–11. Proposed the same may have been reduced by a reference to limited business models, Rule 4110(b) states, ‘‘[u]nless otherwise letter of withdrawal issued by FINRA and ‘‘it is not FINRA’s intention to permitted by FINRA, a member shall staff pursuant to Rule 9557(g)(2), where create business model or other suspend business operations during any applicable) and/or (2) FINRA staff’s exemptions from the proposed rules.’’ 32 period in which it is not in compliance determination not to issue a letter of To clarify further, FINRA stated, ‘‘[i]f a with applicable net capital requirements withdrawal of all requirements and/or set forth in SEA Rule 15c3–1.’’ In restrictions imposed by the notice, if 29 See supra, note 5. such was requested by the member. The 30 The Notice explained that ‘‘operating’’ 33 Id. 34 Hearing Panel may then either approve pursuant to the exemptive provisions of SEA Rule Id. 15c3–3(k)(2)(i) is not meant to include firms that 35 Id. or withdraw the requirements and/or have elected the exemption but do not operate as 36 See the Proposing Release, at 22 (74 FR at such. 4997). These comments are also reiterated by 27 See Proposed FINRA Rule 9557(g)(2). 31 See the CAI Letter. FINRA in the FINRA Letter, at page 3. 28 See Proposed FINRA Rule 9557(e)(1). 32 See the FINRA Letter 37 Id.

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response, FINRA reiterated that ‘‘the Commission, stating that, for purposes modify any of the restrictions or requirements set forth in the Proposed of Proposed FINRA Rule 4110(c)(2), limitations FINRA imposed.’’ FINRA, in Rule are consistent with current law.’’ ‘‘the calculation of 10 percent of excess the FINRA letter, disagrees with the FINRA also highlighted that the net capital must be based on the commenter’s assertion that the Hearing Commission, in the Proposing Release, member’s excess net capital position as Panel should have the authority to stated ‘‘the net capital rule requires that reported in its most recently filed Form modify the restrictions or limitations ‘every broker or dealer shall at all times X–17A–5.’’ 44 Further, FINRA stated imposed by FINRA and states that have and maintain’ certain specified that, ‘‘the member must assure itself that ‘‘FINRA believes that authorizing the levels of net capital,’’ and further, ‘‘to the excess net capital so reported has Hearing Panel, apart from action by the extent a broker-dealer fails to not materially changed since the time FINRA staff, to modify the requirements maintain at least the amount of net the form was filed.’’ 45 and/or restrictions imposed by a Rule capital specified in that rule, it must This commenter further suggests that 9557 notice would not be conducive to cease doing a securities business.’’ 38 ‘‘it would be appropriate to revise the efficient and expedited resolution of the action.’’ D. Withdrawals of Equity Capital [Proposed FINRA Rule 4110(b)] to take into account whether the Net Capital IV. Discussion and Findings Both commenters raised issues with Rule violation actually results in the respect to FINRA’s Proposed Rule broker-dealer currently being under- Generally, the Commission agrees 4110(c), arguing that it should be capitalized and is a continuing with FINRA’s responses to the amended or that the Commission should condition.’’ 46 In response FINRA, in the commenters’ issues. More specifically, reject it because it goes further than FINRA Letter, notes that ‘‘the firm’s with respect to the inclusion of (k)(2)(i) Exchange Act Rule 15c3–1(e). In obligations, both under the current firms in the definition of carrying and response to this comment, FINRA noted regulatory framework and under the clearing firms, the Commission believes that ‘‘its mandate is to design in enforce proposed rules, are clear—the firm must that firms that operate pursuant to the 39 rules to ensure investor protection.’’ maintain the required net capital at all Rule 15c3–3(k)(2)(i) exemption and that Further, as FINRA explained in the times.’’ 47 Further, ‘‘[t]he firm may receive customer funds and/or securities FINRA Letter ‘‘regulation of withdrawal resume its business when it returns to for the purpose of settling customer of equity capital serves to promote the net capital compliance.’’ 48 transactions perform a clearing function financial stability of member firms and, and should be subject to additional accordingly, is an important element of E. Service of Notice and Hearing scrutiny designed to protect investors. investor protection.’’ 40 Procedures Further, with respect to FINRA’s ability One commenter also asserted that, ‘‘if Finally, one commenter raised two to increase capital requirements for its FINRA believes it must establish a pre- issues relating to Proposed FINRA Rules members, the Commission believes that approval requirement, then it needs to 9557 and 9559. First, this commenter in extraordinary, unanticipated, or give member firms certainty regarding argues that FINRA should provide emergency situations it is important for how long firms will have to wait for member firms with any or all of the FINRA to have flexibility to quickly 41 FINRA’s approval.’’ In response, documents on which FINRA relied in impose restrictions on its members to FINRA, in the FINRA Letter, reiterated imposing restrictions on the member as protect investors as the situation the explanation it provided in its soon as a hearing is requested to provide warrants. With respect to FINRA’s original filing with the Commission that member firms with a fair opportunity to requirement that a broker-dealer cease ‘‘requests for withdrawal can be present their cases. First, FINRA business operations if it is not in handled in a routine manner and [..] highlights the fact that, pursuant to compliance with Exchange Act Rule decisions typically would be issued in Proposed Rule 9559, it is the member 15c3–1, the Commission notes that this approximately three business days.’’ 42 firm that requests a hearing and that the is a restatement of the requirements of Finally, one commenter requested hearing must take place within five the Exchange Act, which states that ‘‘no clarification with respect to whether the business days after the member firm broker or dealer [..] shall make use of staff’s review and decision will be based the mails or any means or on an intra-month net capital files the written hearing request. Further, FINRA states that ‘‘irrespective instrumentality of interstate commerce computation.43 FINRA, in the FINRA to effect any transaction in, or to induce letter reiterated the explanation it of document deliver, the proposed rule ensures that a respondent would be or attempt to induce the purchase or provided in its original filing with the sale of, any security [..] in contravention fully informed of the factual basis of the of such rules and regulations as the action’’ pursuant to Proposed FINRA 38 See the FINRA Letter at page 4. See also, note Commission shall prescribe as necessary Rule 9557(c).49 10 to the Proposing Release, at page 6 (74 FR at or appropriate in the public interest or 4994). See also, Amendments to Financial The second issue raised by this Responsibility Rules for Broker-Dealers, Securities commenter is that the Proposed Rule, for the protection of investors to provide Exchange Act Release No. 55431 (March 9, 2007) safeguards with respect to the financial which would allow the Hearing Panel to (72 FR 12862, at 12872 (March 19, 2007)), wherein responsibility.’’ Rule 15c3–1 is approve or withdraw the requirements the Commission states, ‘‘section 15(c)(3) of the considered to be a financial Exchange Act generally prohibits a broker-dealer and/or restrictions imposed by the responsibility rule.50 Consequently, to from effecting any transaction in, or inducing or notice, ‘‘would have no authority to attempting to induce the purchase or sale of, any the extent that a broker-dealer fails to security in contravention of the Commission’s ‘‘have and maintain net capital no less financial responsibility rules (which include Rule 44 See the FINRA Letter, at page 3. See also, note 15c3–1).’’ (15 U.S.C. 78o) 13 in the Proposing Release, at page 7 (74 FR at than the greater of the highest minimum 39 See the FINRA Letter, at page 3. 4994). requirement applicable’’ under Rule 40 Id. In its original filing with the Commission, 45 Id. 15c3–1, the Act would prohibit the FINRA stated that financial stability was one of the 46 See the CAI Letter, at page 6. broker-dealer from effecting securities goals that Proposed FINRA Rule 4110(c) was 47 See the FINRA Letter, at page 4. See also NTM transactions. With respect to FINRA’s designed to address (see Proposing Release, at page 07–16, Q&A #1 (April, 2007). See also, FINRA’s 6 (74 FR at 4994)). Interpretations of Financial and Operational Rules, proposed limitations on withdrawals of 41 See the CAI Letter, at page 5. pages 1 and 13. equity capital set forth in FINRA 42 See the FINRA Letter, at page 3. 48 See the FINRA Letter, at page 4. 43 See the CAI Letter, at page 5. 49 See the FINRA Letter, at page 4. 50 See 17 CFR 240.3a40–1.

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Proposed Rule 4110(c), the Commission VI. Solicitation of Comments For the Commission, by the Division of believes that each SRO should closely Trading and Markets, pursuant to delegated Interested persons are invited to authority.55 monitor significant withdrawals of submit written data, views and Florence E. Harmon, capital by its members which could arguments concerning Amendment No. have a material affect on the firm’s 2, including whether the proposed rule Deputy Secretary. financial position in order to fulfill its change is consistent with the Act. [FR Doc. E9–27263 Filed 11–10–09; 8:45 am] requirement to enforce its members’ Comments may be submitted by any of BILLING CODE 8011–01–P compliance with the Exchange Act, the the following methods: rules promulgated thereunder and its Electronic Comments own rules.51 SECURITIES AND EXCHANGE • Use the Commission’s Internet COMMISSION After careful review of the proposed comment form (http://www.sec.gov/ rule change, the comments, and [Release No. 34–60938; File No. SR–CBOE– rules/sro.shtml); or 2009–081] FINRA’s response to the comments, the • Send an e-mail to rule- Commission finds that the proposed [email protected]. Please include File Self-Regulatory Organizations; rule change is consistent with the Number SR–FINRA–2008–067 on the Chicago Board Options Exchange, requirements of the Act, and the rules subject line. Incorporated; Notice of Filing and and regulations thereunder that are Immediate Effectiveness of Proposed applicable to a national securities Paper Comments • Rule Change To Amend the Marketing association.52 In particular, the Send paper comments in triplicate Fee Program Commission believes that the proposed to Elizabeth M. Murphy, Secretary, rule change is consistent with the Securities and Exchange Commission, November 4, 2009. provisions of Section 15A(b)(6) of the 100 F Street, NE., Washington, DC Pursuant to Section 19(b)(1) of the Act 53 (which requires, among other 20549–1090. Securities Exchange Act of 1934 things, that FINRA rules must be All submissions should refer to File (‘‘Act’’),1 and Rule 19b–4 thereunder,2 designed to promote just and equitable Number SR–FINRA–2008–067. This file notice is hereby given that on principles of trade, to foster cooperation number should be included on the October 30, 2009, the Chicago Board and coordination with persons engaged subject line if e-mail is used. To help the Options Exchange, Incorporated in regulating, clearing, settling, Commission process and review your (‘‘CBOE’’ or the ‘‘Exchange’’) filed with processing information with respect to, comments more efficiently, please use the Securities and Exchange and facilitating transactions in only one method. The Commission will Commission (‘‘Commission’’) the securities, and, in general, to protect post all comments on the Commission’s proposed rule change as described in Internet Web site (http://www.sec.gov/ investors and the public interest), Items I, II, and III below, which Items rules/sro.shtml). Copies of the because the proposed rule change is have been prepared by the CBOE. CBOE submission, all subsequent designed to, among other things, protect has designated this proposal as one amendments, all written statements establishing or changing a due, fee, or investors and the public interest by with respect to the proposed rule requiring that each broker-dealer other charge applicable only to a change that are filed with the member under Section 19(b)(3)(A)(ii) of maintain sufficient net capital to allow Commission, and all written the Act 3 and Rule 19b–4(f)(2) it to self-liquidate if it experiences communications relating to the thereunder,4 which renders the proposal financial difficulty. Further, as the proposed rule change between the effective upon filing with the proposed rule change consolidates the Commission and any person, other than Commission. The Commission is NYSE and NASD financial those that may be withheld from the publishing this notice to solicit responsibility rules into one rule in the public in accordance with the comments on the proposed rule change consolidated FINRA rulebook, it should provisions of 5 U.S.C. 552, will be from interested parties. provide greater clarity with respect to available for inspection and copying in financial responsibility requirements for the Commission’s Public Reference I. Self-Regulatory Organization’s broker-dealers. Room, 100 F Street, NE., Washington, Statement of the Terms of Substance of DC 20549, on official business days the Proposed Rule Change V. Accelerated Approval between the hours of 10 a.m. and 3 p.m. CBOE proposes to amend its The Commission finds good cause, Copies of such filing also will be Marketing Fee Program. The text of the pursuant to Section 19(b)(2) of the available for inspection and copying at proposed rule change is available on the Act,54 for approving the proposed rule the principal office of FINRA. All Exchange’s Web site (http:// change, as amended by Amendment No. comments received will be posted www.cboe.org/Legal/), at the Exchange’s 2 thereto, prior to the 30th day after the without change; the Commission does Office of the Secretary, and at the date of publication in the Federal not edit personal identifying Commission. Register. Accordingly, the Commission information from submissions. You should submit only information that II. Self-Regulatory Organization’s finds that good cause exists to approve you wish to make available publicly. All Statement of the Purpose of, and the proposal, as modified by submissions should refer to File Statutory Basis for, the Proposed Rule Amendment No. 2, on an accelerated Number SR–FINRA–2008–067 and Change basis. should be submitted on or before In its filing with the Commission, December 3, 2009. CBOE included statements concerning 51 See Exchange Act section 19(g). 52 In approving this proposal, the Commission has VII. Conclusion considered the proposed rule’s impact on 55 17 CFR 200.30–3(a)(12). efficiency, competition, and capital formation. See It is therefore ordered, pursuant to 1 15 U.S.C. 78s(b)(1). 15 U.S.C. 17c(f). Section 19(b)(2) of the Act, that the 2 17 CFR 240.19b–4. 53 15 U.S.C. 78o–3(b)(6). proposed rule change (SR–FINRA– 3 15 U.S.C. 78s(b)(3)(A)(ii). 54 15 U.S.C. 78o–3(b)(2) 2008–067) be, and hereby is, approved. 4 17 CFR 240.19b–4(f)(2).

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the purpose of and basis for the B. Self-Regulatory Organization’s post all comments on the Commission’s proposed rule change and discussed any Statement on Burden on Competition Internet Web site (http://www.sec.gov/ comments it received on the proposed CBOE does not believe that the rules/sro.shtml). Copies of the rule change. The text of these statements proposed rule change will impose any submission, all subsequent may be examined at the places specified burden on competition that is not amendments, all written statements in Item IV below. The CBOE has necessary or appropriate in furtherance with respect to the proposed rule prepared summaries, set forth in of [sic] purposes of the Act. change that are filed with the sections (A), (B), and (C) below, of the Commission, and all written most significant aspects of such C. Self-Regulatory Organization’s communications relating to the statements. Statement on Comments on the proposed rule change between the Proposed Rule Change Received From Commission and any person, other than A. Self-Regulatory Organization’s Members, Participants, or Others those that may be withheld from the Statement of the Purpose of, and No written comments were solicited public in accordance with the Statutory Basis for, the Proposed Rule provisions of 5 U.S.C. 552, will be Change or received with respect to the proposed rule change. available for inspection and copying in (a) Purpose the Commission’s Public Reference III. Date of Effectiveness of the Room on official business days between Currently, CBOE’s marketing fee is Proposed Rule Change and Timing for the hours of 10 a.m. and 3 p.m. Copies assessed only on transactions of Market- Commission Action of such filing also will be available for Makers, e-DPMs, and DPMs, resulting Because the foregoing rule change inspection and copying at the principal from (i) customer orders for less than establishes or changes a due, fee, or office of CBOE. All comments received 1,000 contracts from payment accepting other charge imposed by the Exchange, will be posted without change; the firms, or (ii) customer orders for less it has become effective pursuant to Commission does not edit personal than 1,000 contracts that have Section 19(b)(3)(A) of the Act 8 and identifying information from designated a ‘‘Preferred Market-Maker’’ subparagraph (f)(2) of Rule 19b–4 9 submissions. You should submit only under CBOE Rule 8.13. CBOE proposes thereunder. At any time within 60 days information that you wish to make to amend its marketing fee program and of the filing of the proposed rule change, available publicly. All submissions delete the 1,000 contract limit.5 As a the Commission may summarily should refer to File Number SR–CBOE– result, the fee will be assessed on abrogate such rule change if it appears 2009–081 and should be submitted on transactions of Market-Makers, e-DPMs, to the Commission that such action is or before December 3, 2009. and DPMs resulting from customer necessary or appropriate in the public orders contracts from payment For the Commission, by the Division of interest, for the protection of investors, Trading and Markets, pursuant to delegated accepting firms, and customer orders or otherwise in furtherance of the authority.10 that have designated a ‘‘Preferred purposes of the Act. Florence E. Harmon, Market-Maker’’ under CBOE Rule 8.13. Deputy Secretary. CBOE believes that deleting the 1,000 IV. Solicitation of Comments contract cap is appropriate and will [FR Doc. E9–27129 Filed 11–10–09; 8:45 am] Interested persons are invited to BILLING CODE 8011–01–P allow its DPMs and Preferred Market- submit written data, views, and Makers to compete for order flow. CBOE arguments concerning the foregoing, also believes that this change will make including whether the proposed rule SECURITIES AND EXCHANGE CBOE’s marketing fee program change is consistent with the Act. COMMISSION competitive with other exchanges’ Comments may be submitted by any of plans, as no other exchange currently the following methods: [Release No. 34–60922; File No. SR–NYSE– maintains a cap on the size of orders on 2009–105] which a marketing fee is assessed. CBOE Electronic Comments Self-Regulatory Organizations; New proposes to implement this change to • Use the Commission’s Internet York Stock Exchange LLC; Notice of the marketing fee program beginning on comment form (http://www.sec.gov/ Filing of Proposed Rule Change November 1, 2009. rules/sro.shtml); or Adopting NYSE Rule 49 To Provide the CBOE is not amending its marketing • Send an e-mail to rule- Exchange With the Authority To fee program in any other respects. [email protected]. Please include File Declare an Emergency Condition With Number SR–CBOE–2009–081 on the (b) Statutory Basis Respect to Trading on or Through the subject line. The Exchange believes that the Systems and Facilities of the proposed rule change is consistent with Paper Comments Exchange and To Transfer Trading of Section 6(b) of the Act 6 in general, and • Send paper comments in triplicate Exchange-Listed Securities to Its furthers the objectives of Section 6(b)(4) to Elizabeth M. Murphy, Secretary, Corporate Affiliate, NYSE Arca, Inc. 7 of the Act in particular, in that it is Securities and Exchange Commission, November 3, 2009. designed to provide for the equitable 100 F Street, NE., Washington, DC Pursuant to Section 19(b)(1) 1 of the allocation of reasonable dues, fees, and 20549–1090. Securities Exchange Act of 1934 (the other charges among persons using its All submissions should refer to File ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 facilities. Number SR–CBOE–2009–081. This file notice is hereby given that, on October number should be included on the 13, 2009, New York Stock Exchange 5 CBOE believes that the 1,000 contract cap was subject line if e-mail is used. To help the LLC (‘‘NYSE’’ or the ‘‘Exchange’’) filed initially adopted as part of the Marketing Fee Plan Commission process and review your with the Securities and Exchange in December 2005. See Securities Exchange Act comments more efficiently, please use Release No. 53016 (12/22/05), 70 FR 77209 (/12/29/ 05) [sic], granting immediate effectiveness to only one method. The Commission will 10 17 CFR 200.30–3(a)(12). SR–CBOE–2005–107. 1 15 U.S.C. 78s(b)(1). 6 15 U.S.C. 78f(b). 8 15 U.S.C. 78s(b)(3)(A). 2 15 U.S.C. 78a. 7 15 U.S.C. 78f(b)(4). 9 17 CFR 240.19b–4(f)(2). 3 17 CFR 240.19b–4.

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Commission (the ‘‘Commission’’) the address an Emergency Condition. The authority to invoke its emergency proposed rule change as described in Exchange has been participating as a powers as necessary to respond to both Items I, II, and III below, which Items member of the inter-regulatory regional and national emergencies, such have been prepared by the self- ‘‘Pandemic Planning and Regulatory as a pandemic crisis, or other situations regulatory organization. The Coordination Working Group,’’ which is where trading on the Exchange’s Commission is publishing this notice to working on developing effective Trading Floor is substantially impaired, solicit comments on the proposed rule strategies and coordination among such as by government action or change from interested persons. regulators to prepare for an Emergency environmental causes. Condition. Under the proposed rule, when an I. Self-Regulatory Organization’s As described more fully below, the Emergency Condition exists that would Statement of the Terms of Substance of authority contemplated in the proposed prevent the Exchange from operating the Proposed Rule Change rule could be exercised when, due to an normally, a ‘‘qualified Exchange officer’’ The Exchange proposes to adopt Emergency Condition, the NYSE would have the authority to declare an NYSE Rule 49 to provide the Exchange Euronext facilities located at 11 Wall Emergency Condition with respect to with the authority to declare an Street, New York, New York, including trading on or through the systems and Emergency Condition (defined below) the NYSE Trading Floor, are inoperable. facilities of the Exchange and as with respect to trading on or through the In this situation, the Exchange has made necessary in the public interest and for systems and facilities of the Exchange arrangements for trading to be the protection of investors. A ‘‘qualified and to transfer trading of Exchange- conducted using the systems and Exchange officer’’ is defined as the listed securities to its corporate affiliate, facilities of corporate affiliate NYSE NYSE Euronext Chief Executive Officer NYSE Arca, Inc. (‘‘NYSE Arca’’) as Arca. or his or her designee, or the NYSE necessary in the public interest and for Proposed NYSE Rule 49 is intended to Regulation Inc. (‘‘NYSER’’) Chief the protection of investors. The text of be invoked only in the event of Executive Officer or his or her designee. the proposed rule change is available at emergencies as defined in Section In the event that none of these the Exchange, the Commission’s Public 12(k)(7) of the Act.5 As proposed, the individuals is able to assume this Reference Room, and http:// rule would provide the Exchange with responsibility due to incapacitation, the www.nyse.com. regulatory flexibility to mitigate the next most senior officer of NYSE effects of an Emergency Condition so II. Self-Regulatory Organization’s Euronext or NYSER would be a that the securities markets in general, Statement of the Purpose of, and ‘‘qualified Exchange officer’’ for and, as a primary market, the purposes of the proposed rule. Statutory Basis for, the Proposed Rule Exchange’s systems and facilities in Change particular, may continue to perform in Emergencies During Which the Trading In its filing with the Commission, the a manner consistent with the protection Floor Is Inoperable self-regulatory organization included of investors and in pursuit of the public To address emergencies that are so statements concerning the purpose of, interest. disruptive as to render the Trading and basis for, the proposed rule change Floor effectively inoperable, the Proposed NYSE Rule 49 and discussed any comments it received Exchange has developed a contingency on the proposed rule change. The text Under current Exchange rules, in the plan that would allow for the receipt, of those statements may be examined at event of an Emergency Condition that processing and execution of Exchange the places specified in Item IV below. would impact the Exchange’s ability to orders on or through the systems and The Exchange has prepared summaries, operate normally, the Exchange does not facilities of NYSE Arca.6 This set forth in sections A, B, and C below, currently have authority to transfer designation of NYSE Arca as a back-up of the most significant parts of such trading to the systems and facilities of facility of the NYSE requires several statements. NYSE Arca. The Exchange proposes to accommodations that are addressed add NYSE Rule 49 to provide such A. Self-Regulatory Organization’s either in this rule filing or in the authority to the Exchange, working in companion rule filing by NYSE Arca Statement of the Purpose of, and conjunction with NYSE Arca. As Statutory Basis for, the Proposed Rule regarding its own business continuity defined in the proposed rule, such planning.7 Change authority would be available only in the 1. Purpose rare event of exigent circumstances that 1. Use of NYSE Arca Trading Systems and Facilities The Exchange is proposing to adopt would prevent the Exchange from NYSE Rule 49 to provide the Exchange operating normally, such as a pandemic Under the proposed arrangement with the authority to declare an or similar occurrence that affects its between the two exchanges, the systems Emergency Condition with respect to facilities in New York City. and facilities of NYSE Arca would The proposed rule would provide the trading on or through the systems and effectively become the systems and Exchange with emergency powers so facilities of the Exchange (for the facilities of the NYSE, such that NYSE that in the event of an Emergency purposes of this filing, an ‘‘Emergency members, member organizations and Condition, the Exchange can act as 8 Condition’’) and to act as necessary in Sponsored Participants would be able necessary in the public interest and for the public interest and for the protection the protection of investors. As noted 6 NYSE Arca trades equity securities on the of investors.4 above, to ensure consistency among the systems and facilities of its wholly owned This rule filing responds to an subsidiary, NYSE Arca Equities, Inc., referred to as initiative of the Commission to ensure Commission and other exchanges, the the ‘‘NYSE Arca Marketplace’’. For the purposes of that regulatory agencies and self- Exchange proposes adopting the this filing and in the text of proposed NYSE Rule regulatory organizations have rules and definition of ‘‘emergency’’ set forth in 49, these shall be referred to collectively as the Section 12(k)(7) of the Act. Such systems and facilities of NYSE Arca. procedures in place to effectively 7 definition is broad enough to ensure See SR–NYSEArca–2009–90. 8 A ‘‘Sponsored Participant’’ is a person (as 4 NYSE Arca has submitted a companion filing to that the Exchange will have the defined in NYSE Rule 2(e)) who has entered into provide for the same emergency authority proposed a sponsorship arrangement with a Sponsoring herein. See SR–NYSEArca–2009–90. 5 15 U.S.C. 78l(k)(7). [sic] Member Organization to obtain authorized access to

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to submit bids and offers and execute orders on the Exchange’s Trading Floor documentation incident to such trades in NYSE-listed securities on or at the time an Emergency Condition is sponsored access. Such temporary through the systems and facilities of declared should cancel those orders and membership or access would be valid NYSE Arca, regardless of whether such re-enter them on the systems and only for the duration of the Emergency members, member organizations or facilities of NYSE Arca as soon as Condition until regular trading resumes Sponsored Participants are members or possible thereafter.10 on the Trading Floor.11 sponsored participants of NYSE Arca at NYSE members, member NYSE members, member the time the Emergency Condition is organizations and Sponsored organizations and Sponsored declared (see part 2 below). During Participants that are not members or Participants that quote or trade NYSE- these times, quotes or orders of NYSE- sponsored participants of NYSE Arca at listed securities on or through the listed securities entered or executed on the time of an Emergency Condition systems and facilities of NYSE Arca or through the systems and facilities of would be provided temporary following an Emergency Condition NYSE Arca would be published as membership and/or access to NYSE declaration by the NYSE would be quotes and executions of the NYSE (see Arca so that they could execute trades bound by the rules and procedures of part 3 below).9 on that exchange (see part 2 below). It NYSE Arca and would be required to Under such circumstances, the is important to note in this regard that comply with the NYSE Arca Equities Exchange would broadcast to the market the Exchange would not provide any Rules governing trading. Such rules using any and all methods available that connectivity to NYSE Arca on behalf of would be considered the rules of the it has declared an Emergency Condition its members, member organizations or Exchange for the duration of the and would then halt all trading Sponsored Participants; in order to Emergency Condition.12 continue trading in NYSE-listed conducted on the Exchange’s Trading Because of differences between the Floor. All unexecuted orders would securities, NYSE members, member organizations and Sponsored systems of the NYSE and NYSE Arca, remain on the Exchange’s systems NYSE Arca is not able to support the unless cancelled by the entering Participants would need separately to establish connectivity to NYSE Arca. NYSE’s Designated Market Makers member or member organization. The (‘‘DMMs’’) operating in the same Exchange would open trading on the 2. Member and Member Organization manner that they operate on the NYSE. systems and facilities of NYSE Arca as Obligations During an Emergency In particular, DMMs would not have soon thereafter as possible, but not Condition access to orders on the NYSE Arca earlier than at least the next trading day. In the event of an Emergency system any different than other market As soon as practicable following the Condition, NYSE Arca would provide participants. Thus, NYSE DMMs would commencement of trading on the temporary membership and/or access to not be able to fulfill their DMM systems and facilities of NYSE Arca, any those NYSE members, member obligations, including the affirmative unexecuted orders shall be purged from organizations and Sponsored obligation to make a market in a the Exchange’s own systems and Participants that are not already reasonable depth and with reasonable facilities. members or sponsored participants of price continuity, and would be severely It is important to note that, in the NYSE Arca. hampered in their ability to stabilize the event that the Exchange’s Trading Floor NYSE Arca will establish inactive market. As a result, in the event that the is rendered inoperable, it is not equity trading permits and connectivity NYSE is unable to operate its Trading technically feasible for the Exchange to for such members, and member Floor and instead designates NYSE Arca route unexecuted orders from the organizations that would become active to receive and process quotes and Trading Floor to the systems and in the event that NYSE Arca is trades, NYSE DMMs would not be facilities of NYSE Arca. As a result, designated as an alternative facility of considered DMMs under the NYSE NYSE members and member the NYSE. These trading permits would Rules for the duration of the organizations are required to have have the same trading rights and designation. In order to ensure that corresponding contingency plans for obligations as current ETP Holders on there continues to be a market for changing the routing instructions for NYSE Arca. Sponsored Participants of NYSE-listed securities, DMM member their order entry systems such that the Exchange that are not set up with firms would be designated as ‘‘Market orders for NYSE-listed securities are sponsored access to NYSE Arca at the Makers’’ in accordance with NYSE Arca sent to the systems and facilities of time of an Emergency Condition would Equities Rules and would be required to NYSE Arca. Those members and be permitted to obtain such access meet the requirements of those Rules for member organizations that have open through either an existing NYSE Arca the duration of an Emergency member or through an NYSE member or Condition.13 Once trading resumed on the Exchange pursuant to this rule. See NYSE Rule member organization that is granted 123B.30(a)(ii)(B). A ‘‘Sponsoring Member the Exchange’s Trading Floor, DMM Organization’’ is a NYSE member or member temporary access in accordance with member firms would resume their roles organization that enters into a written sponsorship proposed NYSE Arca Equities Rule as DMMs and would be subject to their agreement to provide a Sponsored Participant with 2.100, provided the Sponsored obligations under the Exchange’s rules. authorized access to the Exchange. See NYSE Rule Participants could establish 123B.30(a)(ii)(A). 9 Currently, NYSE Arca trades NYSE-listed connectivity and complete the required 11 See SR–NYSEArca–2009–90. securities on a UTP basis. However, in the event of 12 Even though the Exchange would apply the the declaration of an Emergency Condition under 10 Upon the invocation of the proposed Rule, applicable NYSE Arca Equities Rules governing proposed NYSE Rule 49 such that the Exchange’s orders in NYSE-listed securities entered on the trading for the duration of an emergency, the Trading Floor is inoperable and trading is NYSE Arca systems and facilities on a UTP basis Exchange’s rules governing member firm conduct conducted on or through the systems and facilities that are unexecuted prior to the declaration of an would continue to apply to its members, member of NYSE Arca, NYSE-listed securities traded on Emergency Condition would remain available for organizations and Sponsored Participants, NYSE Arca’s trading platform would be NYSE execution on the NYSE Arca systems (that is they including membership requirements and net capital trades rather than NYSE Arca trades. Under such will not be cancelled). Once trading on the requirements. In addition, the Exchange’s listing circumstances, the Exchange would use NYSE Arca Exchange resumes on the NYSE Arca systems requirements for its listed securities would as the execution engine for NYSE trades and would executions of such orders would be printed with an continue to apply. ensure that these trades are executed in compliance ‘‘N’’ modifier on the Consolidated Tape (see part 3 13 DMMs will be required to meet the same with Regulation NMS. below). See also SR–NYSEArca–2009–90. margin requirements as NYSE Arca Market Makers.

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Similarly, in the event of an The surveillance of the trading of purchase or valuation frequently make Emergency Condition, the Exchange NYSE-listed securities on or through the reference to the primary market print would provide temporary membership systems and facilities of NYSE Arca rather than to the Consolidated Tape and/or authorized access to those NYSE would be conducted by NYSE Arca on print. The Exchange believes that Arca members or sponsored participants behalf of the Exchange.15 In the event without a primary market print, there that are not already members, member that an NYSE member or member could be unnecessary disruption to organizations or Sponsored Participants organization failed to comply with other areas of an already fragile of the Exchange. The temporary NYSE Arca’s rules while trading NYSE- marketplace that is likely facing designation of NYSE Arca-only listed securities, they would—for significant challenges in dealing with members as members of the Exchange is jurisdictional reasons—be referred to other consequences of the Emergency necessary because, in the event of an the Exchange and be investigated by, Condition. Emergency Condition when Exchange- and if warranted, prosecuted by, NYSE Limitations on Invocation of Authority listed securities are trading on NYSE Regulation, Inc. on behalf of the Under Proposed NYSE Rule 49 Arca systems and facilities and are Exchange rather than on behalf of NYSE being printed as NYSE trades, the Arca. Before invoking the proposed system would not be able to prevent The Exchange recognizes that, by emergency powers, the Exchange will NYSE Arca-only members from trading cross-designating NYSE-only and NYSE make concerted efforts to alert and Exchange-listed securities. By granting Arca-only members and member consult with the Commission via NYSE Arca-only members temporary organizations and requiring that all electronic, telephonic and in-person NYSE membership, the Exchange seeks trades of NYSE-listed securities communications, and to continue to to avoid any issue as to the legitimacy executed on the systems of NYSE Arca maintain an open dialogue with the of such trades. be printed as NYSE trades, its business Commission regarding the responses NYSE Arca-only members that are continuity plan effectively combines the being taken. In the event that Exchange granted a temporary membership will two markets for those securities. The staff is unable to communicate with not be required to meet any of the Exchange believes, however, that its Commission staff, the proposed rule Exchange’s membership requirements, business continuity plan is appropriate permits the Exchange to take including the requirement that all and consistent with the provisions of appropriate action and to subsequently Exchange member organizations also be the Act. To begin with, such advise the Commission of such action at members of the Financial Industry consolidation would only be on a the earliest available time. Regulatory Authority. NYSE Arca temporary basis. In addition, the The Exchange’s authority under this sponsored participants that are not set Exchange notes that this arrangement rule would be available for up to 10 up with sponsored access to the would not harm customers or unfairly calendar days from the date that the Exchange would be authorized to obtain advantage the Exchange by distorting Exchange invoked such authority. At such access through either an existing the allocation of market data revenue or any time after invoking such emergency Exchange member or member quoting revenue to the various powers, the Exchange, with Commission organization or an NYSE Arca member exchanges; because NYSE and NYSE approval, may cease or alter such that is granted temporary membership Arca share a common corporate parent, emergency powers. If conditions are in accordance with proposed NYSE NYSE Euronext, and revenues are warranted, and subject to Commission approval of a rule filing pursuant to Rule 49. Such temporary membership or reported on a consolidated basis, there Section 19(b)(2) of the Act, the authorized access would be valid only is no net economic benefit to NYSE Exchange could extend this emergency for the duration of the Emergency Euronext. Condition until regular trading resumes. The Exchange believes that any authority for a specific amount of time longer than the initial 10 calendar day 3. Processing NYSE Trades Executed on confusion caused by designating all prints of NYSE-listed securities period. or Through NYSE Arca Systems and Before seeking Commission approval executed on NYSE Arca as NYSE trades Facilities for such an extension, the Exchange will is far outweighed by the benefits of re-evaluate the specific regulatory As noted above, for the duration of maintaining the ability for the Exchange actions taken and determine whether to the Emergency Condition, trades in to provide primary market prints to NYSE-listed securities would print as extend such actions. The Commission market participants during an may also unilaterally direct that the ‘‘N’’ trades on the Consolidated Tape Emergency Condition. Among other and quotes would be designated as Exchange cease or alter such emergency things, the Exchange notes that certain powers. Once such authority has been NYSE quotes in the Consolidated Quote indices, funds and derivative products Stream, notwithstanding the fact that invoked, the Exchange will use its require primary market prints for available communications resources, they were processed on or through the pricing and valuation, and that, NYSE Arca systems and facilities. including its Web site and other public similarly, private corporate channels, as well as regulatory channels Because the NYSE would, as a practical transactional contracts involving stock and legal matter, continue to operate— such as Information Memos or the albeit using a different system for Exchange’s Electronic Filing Platform continue to operate, the Amex utilized the systems 16 processing trades and quotes—the and facilities of the Exchange (and a portion of the (‘‘EFP’’), to provide members and Exchange submits that no modifications Exchange’s Trading Floor) to process and trade member organizations with advance would be necessary to either the Amex-listed securities. Indeed, for the duration of notice of when such actions will expire. that emergency, Amex quotes and trades were The Exchange shall provide adequate Consolidated Quote Plan or the considered to have originated from the Amex, 14 prior notice to members, member Consolidated Tape Association Plan. notwithstanding that they were processed on the systems and facilities of the Exchange. organizations, Sponsored Participants 14 The Exchange notes that there is precedent for 15 The Exchange’s mnemonic identification this type of arrangement: after the collapse of the system for its members and member organizations 16 EFP is an extranet built by the Exchange to World Trade Centers on September 11, 2001, the is different than that used by NYSE Arca for its ETP support authenticated, encrypted, two-way American Stock Exchange (‘‘Amex’’) was unable to holders. Thus, trades executed by Exchange-only communications between the Exchange and its open its trading floor because of its proximity to the members or member organizations can be readily membership. It is used to communicate information collapse site. To ensure that the Amex could identified if necessary. to certain key personnel of member organizations.

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and investors regarding its intention to IV. Solicitation of Comments For the Commission, by the Division of terminate the actions taken. Trading and Markets, pursuant to delegated Interested persons are invited to authority.18 Conclusion submit written data, views, and Florence E. Harmon, Because the purpose of the proposed arguments concerning the foregoing, Deputy Secretary. rule is to grant authority to the including whether the proposed rule [FR Doc. E9–27128 Filed 11–10–09; 8:45 am] Exchange to act in the event of an change is consistent with the Act. BILLING CODE 8011–01–P Emergency Condition, the terms of the Comments may be submitted by any of rule are necessarily inclusive and the following methods: flexible. At all times, the Exchange will SECURITIES AND EXCHANGE continue to act in a manner consistent Electronic Comments COMMISSION with the public interest and for the • Use the Commission’s Internet protection of investors, and it intends to [Release No. 34–60921; File No. SR– be bound by and guided by these comment form (http://www.sec.gov/ NYSEArca–2009–90] underlying precepts should there be a rules/sro.shtml); or • Self-Regulatory Organizations; NYSE need to invoke proposed NYSE Rule 49 Send an e-mail to rule- Arca, Inc.; Notice of Filing of Proposed and exercise such proposed emergency [email protected]. Please include File Rule Change Amending NYSE Arca powers. Number SR–NYSE–2009–105 on the Equities Rule 2.100 To Provide the 2. Statutory Basis subject line. NYSE Arca With the Authority to The basis for this proposed rule Paper Comments Declare an Emergency Condition With Respect to Trading on or Through the change is the requirement under Section • 6(b)(5) 17 of the Act that an exchange Send paper comments in triplicate Systems and Facilities of the NYSE have rules that are designed to promote to Elizabeth M. Murphy, Secretary, Arca and Enable the NYSE Arca to Act just and equitable principles of trade, to Securities and Exchange Commission, as a Back-Up Trading Facility for remove impediments to and perfect the 100 F Street, NE., Washington, DC Affiliated Exchanges Owned and mechanism of a free and open market 20549–1090. Operated by NYSE Euronext and a national market system and, in All submissions should refer to File November 3, 2009. general, to protect investors and the Number SR–NYSE–2009–105. This file Pursuant to Section 19(b)(1) 1 of the public interest. Proposed NYSE Rule 49 number should be included on the Securities Exchange Act of 1934 (the would provide the Exchange with the subject line if e-mail is used. To help the ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 regulatory flexibility to take action, as Commission process and review your notice is hereby given that, on October necessary, in the event of an Emergency 13, 2009, NYSE Arca Inc. (the Condition, as defined. comments more efficiently, please use only one method. The Commission will ‘‘Corporation’’ or ‘‘NYSE Arca’’) filed B. Self-Regulatory Organization’s post all comments on the Commission’s with the Securities and Exchange Statement on Burden on Competition Internet Web site (http://www.sec.gov/ Commission (the ‘‘Commission’’) the The Exchange does not believe that rules/sro.shtml). Copies of the proposed rule change as described in Items I, II, and III below, which Items the proposed rule change will impose submission, all subsequent have been prepared by the self- any burden on competition that is not amendments, all written statements regulatory organization. The necessary or appropriate in furtherance with respect to the proposed rule of the purposes of the Act. Commission is publishing this notice to change that are filed with the solicit comments on the proposed rule C. Self-Regulatory Organization’s Commission, and all written change from interested persons. Statement on Comments on the communications relating to the Proposed Rule Change Received From proposed rule change between the I. Self-Regulatory Organization’s Members, Participants, or Others Commission and any person, other than Statement of the Terms of Substance of the Proposed Rule Change No written comments were solicited those that may be withheld from the or received with respect to the proposed public in accordance with the NYSE Arca proposes to amend NYSE rule change. provisions of 5 U.S.C. 552, will be Arca Equities Rule 2.100 governing the available for inspection and copying in Corporation’s equities trading systems III. Date of Effectiveness of the the Commission’s Public Reference and facilities (also referred to as the Proposed Rule Change and Timing for Room, 100 F Street, NE., Washington, ‘‘NYSE Arca Marketplace’’). The Commission Action DC 20549, on official business days proposed rule change would (i) provide Within 35 days of the date of between the hours of 10 a.m. and 3 p.m. the Corporation with the authority to publication of this notice in the Federal Copies of such filing also will be declare an Emergency Condition Register or within such longer period (i) available for inspection and copying at (defined below) with respect to trading as the Commission may designate up to the principal office of the NYSE. All on or through the systems and facilities 90 days of such date if it finds such comments received will be posted of the Corporation as necessary in the longer period to be appropriate and without change; the Commission does public interest and for the protection of publishes its reasons for so finding or investors, and (ii) under such not edit personal identifying (ii) as to which the Exchange consents, circumstances, enable the Corporation information from submissions. You the Commission will: to act as a back-up trading facility for should submit only information that (A) By order approve such proposed affiliated exchanges owned and rule change, or you wish to make available publicly. All operated by NYSE Arca’s corporate (B) Institute proceedings to determine submissions should refer to File whether the proposed rule change Number SR–NYSE–2009–105 and 18 17 CFR 200.30–3(a)(12). should be disapproved. should be submitted on or before 1 15 U.S.C.78s(b)(1). December 3, 2009. 2 15 U.S.C. 78a. 17 15 U.S.C. 78f(b)(5). 3 17 CFR 240.19b–4.

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parent, NYSE Euronext.4 The text of the facilities located at 11 Wall Street, New NYSE Arca Equities Rule 2.100 to proposed rule change is available at the York, New York, including the Trading provide such authority to the Exchange, the Commission’s Public Floor of an Affiliated Exchange, are Corporation. As defined in the proposed Reference Room, and http:// inoperable. As proposed for rule, such authority would be available www.nyse.com. amendment, NYSE Arca Equities Rule only in the rare event of exigent 2.100 is intended to be invoked only in II. Self-Regulatory Organization’s circumstances that would prevent the the event of emergencies, as defined in Statement of the Purpose of, and Corporation or an Affiliated Exchange Section 12(k)(7) of the Act.5 As Statutory Basis for, the Proposed Rule from operating normally, such as a proposed, the rule would provide the Change pandemic or similar occurrence that Corporation with regulatory flexibility affects its facilities. In its filing with the Commission, the to mitigate the effects of an Emergency The proposed amendments to NYSE self-regulatory organization included Condition so that the securities markets Arca Equities Rule 2.100 would provide statements concerning the purpose of, in general, and the systems and facilities the Corporation with emergency powers and basis for, the proposed rule change of the Corporation or an Affiliated and discussed any comments it received Exchange in particular, may continue to so that in the event of an Emergency on the proposed rule change. The text perform in a manner consistent with the Condition, the Corporation can act as of those statements may be examined at protection of investors and in pursuit of necessary in the public interest and for the places specified in Item IV below. the public interest. the protection of investors. As noted The Exchange has prepared summaries, The proposed amendments are above, to ensure consistency among the set forth in sections A, B, and C below, described in detail below: Commission and other exchanges, the of the most significant parts of such Corporation proposes adopting the statements. 1. Deletion of Current NYSE Arca definition of ‘‘emergency’’ set forth in Equities Rule 2.100 as Obsolete Section 12(k)(7) of the Act. Such A. Self-Regulatory Organization’s Current NYSE Arca Equities Rule definition is broad enough to ensure Statement of the Purpose of, and 2.100 was adopted in November 2000 in that the Corporation will have the Statutory Basis for, the Proposed Rule connection with the proposal by Pacific authority to invoke its emergency Change Stock Exchange, Inc., through its powers as necessary to respond to both 1. Purpose wholly-owned subsidiary PCX Equities, regional and national emergencies, such NYSE Arca proposes to amend NYSE Inc. (‘‘PCXE’’), to create a new electronic as a pandemic crisis, or other situations Arca Equities Rule 2.100 to (1) delete trading facility of PCXE called the in which trading on the systems and the existing text as obsolete; (2) provide Archipelago Exchange (‘‘Arca’’). Rule facilities of the Corporation and/or an the Corporation with the authority to 2.100 provided a mechanism for Affiliated Exchange is restricted or declare an Emergency Condition with allowing PCXE members to trade substantially impaired, such as by uninterrupted when PCXE transitioned government action or environmental respect to trading on or through the 6 systems and facilities of the Corporation to Arca. The circumstances that causes. originally required the adoption of Rule (for the purposes of this filing, an Under the proposed rule, when an 2.100 are no longer applicable, as all ‘‘Emergency Condition’’) as necessary in Emergency Condition exists that would the public interest and for the protection former PCXE members either became NYSE Arca ETP Holders or opted not to prevent the Corporation and/or an of investors; and (3) under such Affiliated Exchange from operating circumstances, enable the Corporation become members of NYSE Arca. Accordingly, the Corporation is normally, a ‘‘qualified Corporation to act as a back-up trading facility for an officer’’ would have the authority to Affiliated Exchange in the event that it proposing to delete the current language of Rule 2.100. declare an Emergency Condition with is unable to trade because of an respect to trading on or through the emergency condition declared under its 2. Establishing Emergency Powers under systems and facilities of the Corporation rules. Proposed New NYSE Arca Equities Rule and/or the Affiliated Exchange and as This rule filing responds to an 2.100 necessary in the public interest and for initiative of the Commission to ensure Under current NYSE Arca Equities the protection of investors. A ‘‘qualified that regulatory agencies and self- rules, in the event of an Emergency Corporation officer’’ is defined as the regulatory organizations have rules and Condition that would impact the NYSE Euronext Chief Executive Officer procedures in place to effectively Corporation’s and/or an Affiliated or his or her designee, or the NYSE address an Emergency Condition. The Exchange’s ability to operate normally, Regulation, Inc. (‘‘NYSER’’) Chief Corporation has been participating as a the Corporation does not currently have Executive Officer 7 or his or her member of the inter-regulatory authority to permit it to accept the designee. In the event that none of these ‘‘Pandemic Planning and Regulatory transfer of trading from an Affiliated individuals is able to assume this Coordination Working Group,’’ which is Exchange to the Corporation. The responsibility due to incapacitation, the working on developing effective Corporation is proposing to amend strategies and coordination among next most senior officer of NYSE regulators to prepare for an Emergency Euronext or NYSER would be a 5 15 U.S.C. 78l(k)(7) [sic]. ‘‘qualified Corporation officer’’ for Condition. 6 See Securities Exchange Act Release No. 43608 purposes of the proposed rule. As described more fully below, the (November 21, 2000), 65 FR 78821 (December 15, authority contemplated in the proposed 2000) (SR–PCX–00–25). In April 2006, although rule could be exercised when, due to an Rule 2.100 was no longer being used, the names of 7 Upon completion of the merger between NYSE the entities in Rule 2.100 were changed in a rule Group, Inc. and Archipelago Holdings, Inc. on Emergency Condition, NYSE Euronext filing that made global name changes to all NYSE March 7, 2006, the regulatory personnel of the Arca Equities rules to reflect changes resulting from Corporation were re-designated as NYSER 4 The Corporation’s affiliated exchange is New the merger of NYSE Group, Inc. and Archipelago employees. Therefore, the NYSER Chief Executive York Stock Exchange LLC (‘‘NYSE’’ or ‘‘Affiliated Holdings, Inc. See Securities Exchange Act Release Offer or his or her designee may make such Exchange’’). The NYSE has submitted a companion No. 53615 (April 7, 2006), 71 FR 19226 (April 13, determinations and decisions as contemplated by filing to provide for the same emergency authority 2006) (SR–PCX–2006–24). The substance of the proposed NYSE Arca Equities Rule 2.100 on behalf proposed herein. See SR–NYSE–2009–105. rule, however, did not change. of the Corporation.

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3. Contingency Trading Facility for an Under such circumstances, the facilities. Although such Affiliated Affiliated Exchange Corporation and the Affiliated Exchange Participants can become ETP Holders or NYSE Euronext has determined to would broadcast to the market using any Sponsored Participants of the designate the Corporation, and and all methods available that they have Corporation if they so choose, some specifically the NYSE Arca Marketplace, declared a triggering event and the choose not to for business reasons (i.e., Affiliated Exchange would then halt all as a back-up trading facility for an to avoid the payment of additional trading conducted on its systems and registration fees). Affiliated Exchange. In the event that an facilities. All unexecuted orders would To effectuate the business continuity Emergency Condition is so disruptive as remain on the Affiliated Exchange’s plan in which trades of securities listed to render the trading systems and systems unless cancelled by the entering on an Affiliated Exchange are executed facilities of an Affiliated Exchange member or member organization. The on or through the systems and facilities effectively inoperable, a contingency Corporation and the Affiliated Exchange of the Corporation, the Corporation is plan has been developed to allow for the would then open trading of the proposing to amend NYSE Arca Equities Corporation to receive, process and Affiliated Exchange-listed securities on Rule 2.100 in order to provide execute orders for members, member the systems and facilities of the temporary membership and/or access to organizations and sponsored Corporation as soon thereafter as the NYSE Arca Marketplace if an participants of the Affiliated Exchange possible, but not earlier than at least the Affiliated Exchange declares an (designated as ‘‘Affiliated Participants’’) next trading day. As soon as practicable Emergency Condition. in its listed and traded securities. following the commencement of trading The Corporation will establish a. Use of the Corporation’s Trading on the Corporation’s systems and inactive equity trading permits and Systems and Facilities facilities, any unexecuted orders shall connectivity for Affiliated Participants be purged from the Affiliated that are not current ETP Holders of Under the proposed arrangement Exchange’s own systems and facilities.11 NYSE Arca Marketplace that would between the Corporation and the Orders in Affiliated Exchange-listed become active in the event that the Affiliated Exchange, the systems and securities entered on the Corporation’s Corporation is designated as an facilities of the Corporation would systems and facilities on a UTP basis alternative facility of an Affiliated effectively become the systems and that are unexecuted prior to the Exchange. Similarly, Affiliated facilities of the Affiliated Exchange, as declaration of an Emergency Condition Participants that trade on an Affiliated necessary, such that its Affiliated would remain available for execution on Exchange pursuant to sponsored access Participants would be able to submit the NYSE Arca systems (that is they will that do not have sponsored access to the bids and offers and execute trades in not be cancelled). Once trading on the NYSE Arca Marketplace at the time of Affiliated Exchange-listed securities on Affiliated Exchange resumes on the an Emergency Condition would be or through the NYSE Arca Marketplace Corporation’s systems executions of permitted to obtain such access through systems and facilities, regardless of such orders would be printed with an either an existing NYSE Arca ETP whether such Affiliated Participants are ‘‘N’’ modifier on the Consolidated Tape Holder or through an Affiliated ETP Holders 8 or Sponsored 12 (see part ‘‘c’’ below). Participant that is granted temporary Participants 9 of the Corporation at the membership in accordance with time the Emergency Condition is b. Obligations of Affiliated Participants proposed NYSE Arca Equities Rule declared (see part ‘‘b’’ below). During During Emergency Condition 2.100, provided the sponsored Affiliated these times, quotes or orders of The use of NYSE Arca as a back-up Participants could establish Affiliated Exchange-listed securities facility for the Affiliated Exchange connectivity and complete the required entered or executed on or through NYSE presents certain logistical hurdles. documentation incident to such Arca Marketplace would be published Specifically, NYSE Arca Equities Rule sponsored access. Temporary as quotes and executions of the 7.29(a) provides that only ‘‘Users’’ membership or access granted under the Affiliated Exchange (see part ‘‘c’’ having authorized access to the NYSE proposed Rule will be valid only for the below).10 Arca Marketplace may enter and duration of the Emergency Condition. execute orders. Pursuant to NYSE Arca The ability to trade directly on the 8 An ‘‘ETP Holder’’ is a broker or dealer registered Equities Rule 1.1(yy), a ‘‘User’’ is NYSE Arca Marketplace in this manner pursuant to Section 15 of Act that has been issued defined as an ETP Holder or Sponsored an Equity Trading Permit (‘‘ETP’’) by the would be available only in the event Corporation for effecting approved equities Participant who is authorized to obtain that an Affiliated Exchange declared an securities transactions on NYSE Arca Marketplace. access to the NYSE Arca Marketplace. emergency condition under its own See NYSE Arca Equities Rule 1.1(m)-(n). However, it is almost certain that some rules and designated the Corporation as 9 A ‘‘Sponsored Participant’’ is a person or entity Affiliated Participants will not be ETP the back-up execution facility. During that has entered into a sponsorship arrangement Holders or Sponsored Participants at the with a Sponsoring ETP Holder pursuant to NYSE the pendency of an Emergency time of an Emergency Condition and, Arca Equities Rule 7.29. See NYSE Arca Equities Condition, the Affiliated Participants therefore, would not be able to trade Rule 1.1(tt). A ‘‘Sponsoring ETP Holder’’ is a would be subject to the NYSE Arca broker-dealer that has been issued an ETP by the directly on the NYSE Arca Marketplace Equities rules governing trading (e.g. Corporation who has been designated by a in the event that an Affiliated Exchange Sponsored Participant to execute, clear and settle NYSE Arca Equities Rule 7) and such is required to close its systems and transactions on NYSE Arca Marketplace. The rules would be considered the rules of Sponsoring ETP Holder must be either (i) a clearing the Affiliate Exchange for the duration firm with membership in a clearing agency inoperable and trading is conducted on or through 13 registered with the Commission that maintains the systems and facilities of the Corporation, NYSE- of the declaration. facilities through which transactions may be cleared listed securities traded on the NYSE Arca or (ii) a correspondent firm with a clearing Marketplace would be NYSE trades rather than 13 Even though the applicable NYSE Arca Equities arrangement with any such clearing firm. See NYSE NYSE Arca trades. Under such circumstances, the Rules governing trading would apply for the Arca Equities Rule 1.1(uu). NYSE would use NYSE Arca Marketplace as the duration of an emergency condition, the Affiliated 10 Currently, the Corporation trades NYSE-listed execution engine for NYSE trades and would ensure Exchange’s rules governing member firm conduct equities securities on a UTP basis. However, in the that these trades are executed in compliance with would continue to apply to its Affiliated event of the declaration of an emergency condition Regulation NMS. Participants, including membership requirements under proposed NYSE Rule 49 such that the NYSE 11 See SR–NYSE–2009–105. and net capital requirements. In addition, the Trading Floor and systems and facilities are 12 See SR–NYSE–2009–105. Continued

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Because of differences between the any issue as to the legitimacy of such trading Affiliated Exchange-listed systems of the Affiliated Exchange and trades. securities, they would—for the Corporation, NYSE Arca Corporation-only members that are jurisdictional reasons—be referred to Marketplace is not able to support granted a temporary membership by an the Affiliated Exchange and be ‘‘Designated Market Makers’’ (‘‘DMMs’’) Affiliated Exchange will not be required investigated by, and if warranted, operating in the same manner that they to meet any of the Affiliated Exchange’s prosecuted by, NYSE Regulation, Inc. on operate on the Affiliated Exchange. In membership requirements. Sponsored behalf of the Affiliated Exchange rather particular, DMMs would not have Participants of the Corporation that are than on behalf of the Corporation. access to orders on NYSE Arca not set up with sponsored access to the A description of the procedures that Marketplace any different than other Affiliated Exchange would be Affiliated Participants would need to market participants. Thus, DMMs of an authorized for such access through follow in order to access and effect Affiliated Exchange would not be able either an existing member of the transactions through the facilities and to fulfill their DMM obligations, Affiliated Exchange or a Corporation systems of the Corporation will be made including the affirmative obligation to ETP Holder that is granted temporary available through the normal make a market in a reasonable depth membership in accordance with the communication systems of the and with reasonable price continuity, rules of the Affiliated Exchange. Such Corporation and the Affiliated and would be severely hampered in temporary memberships and/or Exchange. In addition, members of the their ability to stabilize the market. As authorized access would be valid only Corporation are required to take a result, in the event that an Affiliated for the duration of the Emergency appropriate actions as instructed by the Exchange is unable to operate its Condition. Corporation to accommodate the use of its systems and facilities to trade systems and facilities and instead c. Processing Trades of Affiliated Affiliated Exchange-listed securities designates the Corporation to receive Exchange-Listed Securities Executed on and process quotes and trades, such pursuant to this Rule. or Through the Corporation’s Systems The Corporation recognizes that, by DMMs would not be considered DMMs and Facilities under the NYSE Arca Equities Rules for cross-designating Affiliated Exchange- the duration of the designation. In order For the duration of the Emergency only and NYSE Arca-only members and to ensure that there continues to be a Condition, trades in securities listed on member organizations and requiring market for Affiliated Exchange-listed an Affiliated Exchange would print on that all trades of Affiliated Exchange- securities, DMMs would be designated the Consolidated Tape as trades of the listed securities executed on the NYSE as ‘‘Market Makers’’ in accordance with Affiliated Exchange, and quotes would Arca Marketplace be printed as trades of NYSE Arca Equities Rule 7.23 and be designated as quotes of the Affiliated the Affiliated Exchange, its business would be required to meet the Exchange in the Consolidated Quote continuity plan effectively combines the requirements of that Rule for the Stream, notwithstanding the fact that two markets for those securities. The duration of an Emergency Condition.14 they were processed on or through the Corporation believes, however, that its Once trading resumed on the Affiliated Corporation’s systems and facilities. business continuity plan is appropriate Exchange, DMMs would resume their Because an Affiliated Exchange would, and consistent with the provisions of roles as DMMs and would be subject to as a practical and legal matter, continue the Act. To begin with, such their obligations under the Affiliated to operate—albeit using different consolidation would only be on a systems and facilities for processing Exchange rules. temporary basis. In addition, the Similarly, in the event of a declaration trades and quotes—the Corporation Corporation notes that this arrangement of an Emergency Condition, the submits that no modifications would be would not harm customers or unfairly Affiliated Exchange would, as necessary to either the Consolidated advantage the Corporation by distorting Quote Plan or the Consolidated Tape the allocation of market data revenue or applicable, provide temporary 15 membership and/or authorized access to Association Plan. quoting revenue to the various The surveillance of the trading of those Corporation ETP Holders and exchanges; because NYSE and NYSE Affiliated Exchange-listed securities on Sponsored Participants that are not Arca share a common corporate parent, or through the systems and facilities of already members or sponsored NYSE Euronext, and revenues are the Corporation would be conducted by participants of the Affiliated Exchange reported on a consolidated basis, there NYSE Arca on behalf of the Affiliated at the time of an Emergency Condition. is no net economic benefit to NYSE Exchange.16 In the event that an The temporary designation of NYSE Euronext. Affiliated Participant failed to comply The Corporation believes that any Arca-only ETP Holders as members of with the Corporation’s rules while confusion caused by designating all the Affiliated Exchange is necessary prints of Affiliated Exchange-listed because, in the event of an Emergency 15 The Corporation notes that there is precedent securities executed on the NYSE Arca Condition when Affiliated Exchange- for this type of arrangement: after the collapse of Marketplace as trades of those listed securities are trading on the the World Trade Centers on September 11, 2001, exchanges is far outweighed by the Corporation’s systems and facilities and the American Stock Exchange (‘‘Amex’’) was unable to open its trading floor because of its proximity to benefits of maintaining the ability for are being printed as trades of the the collapse site. To ensure that the Amex could the Affiliated Exchange to provide Affiliated Exchange, the system would continue to operate, the Amex utilized the systems primary market prints to market not be able to prevent NYSE Arca-only and facilities of the NYSE (and a portion of its participants during an Emergency ETP Holders from trading Affiliated trading floor) to process and trade Amex-listed securities. Indeed, for the duration of that Condition. Among other things, the Exchange-listed securities. By granting emergency, Amex quotes and trades were Corporation notes that certain indices, NYSE Arca-only ETP Holders temporary considered to have originated from the Amex, funds and derivative products require membership in the Affiliated Exchange, notwithstanding that they were processed on the primary market prints for pricing and the Affiliated Exchange seek to avoid systems and facilities of the NYSE. 16 The Corporation’s mnemonic identification valuation, and that, similarly, private system for its ETP Holders is different than that corporate transactional contracts Affiliated Exchange’s listing requirements for its used by the Affiliated Exchange for its members and involving stock purchase or valuation listed securities would continue to apply. member organizations. Thus, trades executed by 14 DMMs will be required to meet the same Affiliated Exchange-only members or member frequently make reference to the margin requirements as NYSE Arca Market Makers. organizations can be readily identified if necessary. primary market print rather than to the

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Consolidated Tape print. The volatility,17 consistent with the C. Self-Regulatory Organization’s Corporation believes that without a authority granted to other self-regulatory Statement on Comments on the primary market print, there could be organizations (‘‘SROs’’).18 The Proposed Rule Change Received From unnecessary disruption to other areas of Corporation believes that the NYSE is Members, Participants, or Others an already fragile marketplace that is currently the only SRO that monitors for No written comments were solicited likely facing significant challenges in the thresholds (i.e., a specified decline or received with respect to the proposed dealing with other consequences of the SM of the Dow Jones Industrial Average rule change. Emergency Condition. (‘‘DJIA’’) from such index’s previous III. Date of Effectiveness of the 4. Limitations on Invocation of close during a trading day, based on a Proposed Rule Change and Timing for Authority Under Proposed NYSE Arca quarterly calculation of the average Commission Action Equities Rule 2.100 closing value for DJIA during such quarter) as noted within these common Before invoking the proposed Within 35 days of the date of rules. Due to this, the Corporation shall emergency powers, the Corporation will publication of this notice in the Federal make concerted efforts to alert and establish a mechanism to calculate these Register or within such longer period (i) consult with the Commission via thresholds in the event trading on the as the Commission may designate up to electronic, telephonic and in-person NYSE becomes inoperable and the 90 days of such date if it finds such communications, and to continue to Corporation acts as the alternative longer period to be appropriate and maintain an open dialogue with the trading facility of that Affiliated publishes its reasons for so finding or Commission regarding the responses Exchange, as contemplated by this (ii) as to which the Exchange consents, being taken. In the event that proposed rule. the Commission will: (A) By order approve such proposed Corporation staff is unable to Conclusion communicate with Commission staff, rule change, or the proposed rule permits the Because the purpose of the proposed (B) Institute proceedings to determine Corporation to take appropriate action rule is to grant authority to the whether the proposed rule change and to subsequently advise the Corporation to act in the event of an should be disapproved. Commission of such action at the Emergency Condition, the terms of the IV. Solicitation of Comments earliest available time. rule are necessarily inclusive, and Interested persons are invited to The Corporation’s authority under flexible. At all times, the Corporation this rule would be available for up to 10 submit written data, views, and will continue to act in a manner arguments concerning the foregoing, calendar days from the date that the consistent with the public interest and Corporation invoked such authority. At including whether the proposed rule for the protection of investors, and it change is consistent with the Act. any time after invoking such emergency intends to be bound by and guided by powers, the Corporation, with Comments may be submitted by any of these underlying precepts should there the following methods: Commission approval, may cease or be a need to invoke proposed NYSE alter such emergency powers. If Arca Equities Rule 2.100 and exercise Electronic Comments conditions are warranted, and subject to such proposed emergency powers. • Commission approval of a rule filing Use the Commission’s Internet pursuant to Section 19(b)(2) of the Act, 2. Statutory Basis comment form (http://www.sec.gov/ rules/sro.shtml); or the Corporation could extend this • emergency authority for a specific The basis for this proposed rule Send an e-mail to rule- amount of time longer than the initial 10 change is the requirement under Section [email protected]. Please include File calendar day period. 6(b)(5) 19 of the Act that an exchange Number SR–NYSEArca–2009–90 on the Before seeking Commission approval have rules that are designed to promote subject line. for such an extension, the Corporation just and equitable principles of trade, to Paper Comments remove impediments to and perfect the will re-evaluate the specific regulatory • actions taken. The Commission may mechanism of a free and open market Send paper comments in triplicate also unilaterally direct that the and a national market system and, in to Elizabeth M. Murphy, Secretary, Corporation cease or alter such general, to protect investors and the Securities and Exchange Commission, emergency powers. Once such authority public interest. Proposed NYSE Arca 100 F Street, NE., Washington, DC has been invoked, the Corporation will Equities Rule 2.100 would provide the 20549–1090. use its available communications Corporation with the regulatory All submissions should refer to File resources, including its Web site and flexibility to take action, as necessary, in Number SR–NYSEArca–2009–90. This other public channels, as well as the event of an Emergency Condition, as file number should be included on the regulatory channels such as Regulatory defined. subject line if e-mail is used. To help the Bulletins, to provide ETP Holders and Commission process and review your B. Self-Regulatory Organization’s Sponsored Participants with advance comments more efficiently, please use Statement on Burden on Competition notice of when such actions will expire. only one method. The Commission will post all comments on the Commissions The Corporation shall provide adequate The Exchange does not believe that Internet Web site (http://www.sec.gov/ prior notice to ETP Holders, Sponsored the proposed rule change will impose rules/sro.shtml). Copies of the Participants and investors regarding its any burden on competition that is not submission, all subsequent intention to terminate the actions taken. necessary or appropriate in furtherance amendments, all written statements of the purposes of the Act. Trading Halts Due to Extraordinary with respect to the proposed rule Market Volatility change that are filed with the 17 NYSE Arca currently has the See NYSE Arca Equities Rule 7.12. Commission, and all written 18 See, e.g., NYSE Rule 80B, Rule 80B–NYSE authority to halt all stocks eligible for Amex Equities, NASDAQ Stock Market Rules 4120 communications relating to the trading on NYSE Arca Equities in the and 4121. proposed rule change between the event of extraordinary market 19 15 U.S.C. 78f(b)(5). Commission and any person, other than

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those that may be withheld from the The text of the proposed rule change Sponsored Participant by name in an public in accordance with the is available on the Exchange’s Web site addendum to the Access Agreement. provisions of 5 U.S.C. 552, will be at http://www.nasdaqtrader.com/ Second, there must be a Sponsored available for inspection and copying in micro.aspx?id=PHLXRulefilings, at the Participant Agreement between the the Commission’s Public Reference principal office of the Exchange, and at Sponsoring Member Organization and Room, 100 F Street, NE., Washington, the Commission’s Public Reference the Sponsored Participant that contains DC 20549, on official business days Room. the following sponsorship provisions, between the hours of 10 a.m. and 3 p.m. enumerated in full in Rule 1094(b)(ii): II. Self-Regulatory Organization’s Copies of such filing also will be (i) The orders of the Sponsored Statement of the Purpose of, and available for inspection and copying at Participant are binding in all respects on Statutory Basis for, the Proposed Rule the principal office of the NYSE Arca. the Sponsoring Member Organization; Change All comments received will be posted (ii) the Sponsoring Member without change; the Commission does In its filing with the Commission, the Organization is responsible for the not edit personal identifying Exchange included statements actions of the Sponsored Participant; (iii) in addition to the Sponsoring information from submissions. You concerning the purpose of and basis for Member Organization being required to should submit only information that the proposed rule change and discussed comply with the Exchange Certificate of you wish to make available publicly. All any comments it received on the Incorporation, By-laws, Rules and submissions should refer to File proposed rule change. The text of these procedures of the Exchange, the Number SR–NYSEArca–2009–90 and statements may be examined at the Sponsored Participant shall do so as if should be submitted on or before places specified in Item IV below. The such Sponsored Participant were an December 3, 2009. Exchange has prepared summaries, set Exchange member organization; forth in sections A, B, and C below, of For the Commission, by the Division of (iv) the Sponsored Participant shall the most significant aspects of such Trading and Markets, pursuant to delegated maintain, keep current and provide to authority.20 statements. the Sponsoring Member Organization a Florence E. Harmon, A. Self-Regulatory Organization’s list of individuals authorized to obtain Deputy Secretary. Statement of the Purpose of, and access to the Exchange on behalf of the [FR Doc. E9–27127 Filed 11–10–09; 8:45 am] Statutory Basis for, the Proposed Rule Sponsored Participant; BILLING CODE 8011–01–P Change (v) the Sponsored Participant shall familiarize its authorized individuals 1. Purpose with all of the Sponsored Participant’s SECURITIES AND EXCHANGE The purpose of the proposed rule obligations under this Rule and will COMMISSION change is to attract additional business assure that they receive appropriate training prior to any use or access to the [Release No. 34–60942; File No. SR–Phlx- by extending its sponsored access rule, 2009–93] which is similar to that of other Exchange; exchanges. During the previous pilot (vi) the Sponsored Participant may Self-Regulatory Organizations; program, very few member not permit anyone other than authorized NASDAQ OMX PHLX, Inc.; Notice of organizations availed themselves of the individuals to use or obtain access to 3 Filing and Immediate Effectiveness of program, but the Exchange seeks to the Exchange; Proposed Rule Change Relating to make it available for an additional pilot (vii) the Sponsored Participant shall Extension of Sponsored Access Pilot period expiring January 31, 2010. take reasonable security precautions to Program prevent unauthorized use or access to A Sponsored Participant is a non- the Exchange, including unauthorized November 4, 2009. member of the Exchange, such as an entry of information into the Exchange, Pursuant to Section 19(b)(1) of the institutional investor, that gains access and agrees that it is responsible for any Securities Exchange Act of 1934 to the Exchange and trades under a and all orders, trades and other (‘‘Act’’)1 and Rule 19b–4 thereunder,2 Sponsoring Member’s execution and messages and instructions entered, notice is hereby given that on October clearing identity pursuant to a transmitted or received under 26, 2009, NASDAQ OMX PHLX, Inc. sponsorship arrangement between such identifiers, passwords and security (‘‘Phlx’’ or ‘‘Exchange’’) filed with the non-member and a member codes of authorized individuals, and for Securities and Exchange Commission organization. Specifically, the Exchange the trading and other consequences (‘‘SEC’’ or ‘‘Commission’’) the proposed proposes to permit Sponsored thereof; rule change as described in Items I and Participants to be sponsored by (viii) the Sponsored Participant II below, which Items have been Sponsoring Member Organizations, and acknowledges its responsibility to prepared by the Exchange. The thereby access the Exchange, subject to establish adequate procedures and Commission is publishing this notice to certain requirements. These controls that permit it to effectively solicit comments on the proposed rule requirements are intended to confirm monitor its employees’, agents’ and change from interested persons. that the Sponsored Participant is Participants’ use and access to the required to and had procedures in place Exchange for compliance with the terms I. Self-Regulatory Organization’s to comply with Exchange rules, and that of this agreement; Statement of the Terms of Substance of the Sponsoring Member Organization (ix) the Sponsored Participant shall the Proposed Rule Change takes responsibility for the Sponsored pay when due all amounts, if any, The Exchange proposes to extend its Participant’s activity on the Exchange. payable to Sponsoring Member sponsored access rule for a pilot period First, the Sponsored Participant and ending on January 31, 2010. its Sponsoring Member Organization 3 If the Exchange determines that an authorized must have entered into and maintained individual has caused a Member Organization to violate the Exchange’s Rules, the Exchange could 20 17 CFR 200.30–3(a)(12). an Access Agreement with the direct the Member Organization to suspend or 1 15 U.S.C. 78s(b)(1). Exchange. The Sponsoring Member withdraw the person’s status as an authorized 2 17 CFR 240.19b–4. Organization must designate the individual.

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Organization, the Exchange, or any operative prior to 30 days after the date Commission, and all written other third parties that arise from the of filing.8 However, Rule 19b– communications relating to the Sponsored Participant’s access to and 4(f)(6)(iii) 9 permits the Commission to proposed rule change between the use of the Exchange. Such amounts designate a shorter time if such action Commission and any person, other than include, but are not limited to is consistent with the protection of those that may be withheld from the applicable exchange and regulatory fees. investors and the public interest. The public in accordance with the Third, the Sponsoring Member Exchange has requested that the provisions of 5 U.S.C. 552, will be Organization must provide the Commission waive the 30-day operative available for inspection and copying in Exchange with a Sponsored Participant delay so that the proposal may become the Commission’s Public Reference Addendum to its Access Agreement operative upon filing. The Commission Section, 100 F Street, NE., Washington, acknowledging its responsibility for the believes that waiving the 30-day DC 20549, on official business days orders, executions and actions of its operative delay is consistent with the between the hours of 10 a.m. and 3 p.m. Sponsored Participant at issue. protection of investors and the public Copies of the filing also will be available 2. Statutory Basis interest because such waiver would for inspection and copying at the allow the pilot program to continue principal office of the Exchange. All The Exchange believes that its uninterrupted. The Commission notes comments received will be posted proposal is consistent with Section 6(b) that the proposal is substantially similar 4 without change; the Commission does of the Act in general, and furthers the to the rules of other national securities objectives of Section 6(b)(5) of the Act 5 not edit personal identifying exchanges.10 Accordingly, the information from submissions. You in particular, in that it is designed to Commission hereby grants the promote just and equitable principles of should submit only information that Exchange’s request and designates the you wish to make available publicly. All trade, to remove impediments to and proposal operative upon filing.11 perfect the mechanism of a free and submissions should refer to File open market and a national market IV. Solicitation of Comments Number SR–Phlx–2009–93 and should be submitted on or before December 3, system, and, in general to protect Interested persons are invited to 2009. investors and the public interest by submit written data, views, and helping market participants seeking arguments concerning the foregoing, For the Commission, by the Division of access to a marketplace. including whether the proposed rule Trading and Markets, pursuant to delegated 12 B. Self-Regulatory Organization’s change is consistent with the Act. authority. Statement on Burden on Competition Comments may be submitted by any of Florence E. Harmon, the following methods: The Exchange does not believe that Deputy Secretary. the proposed rule change will impose Electronic Comments [FR Doc. E9–27092 Filed 11–10–09; 8:45 am] any burden on competition not • Use the Commission’s Internet BILLING CODE 8011–01–P necessary or appropriate in furtherance comment form (http://www.sec.gov/ of the purposes of the Act. rules/sro.shtml); or • Send an e-mail to rule- SECURITIES AND EXCHANGE C. Self-Regulatory Organization’s COMMISSION Statement on Comments on the [email protected]. Please include File Proposed Rule Change Received From Number SR–Phlx–2009–93 on the Members, Participants, or Others subject line. [Release No. 34–60939; File No. SR– NYSEAmex–2009–79] No written comments were either Paper Comments solicited or received. • Send paper comments in triplicate Self-Regulatory Organizations; NYSE III. Date of Effectiveness of the to Elizabeth M. Murphy, Secretary, Amex LLC; Notice of Filing and Proposed Rule Change and Timing for Securities and Exchange Commission, Immediate Effectiveness of Proposed Commission Action 100 F Street, NE., Washington, DC Rule Change To Add 75 Options 20549–1090. Classes to the Penny Pilot Program Because the foregoing proposed rule All submissions should refer to File change does not: (i) Significantly affect Number SR–Phlx–2009–93. This file November 4, 2009. the protection of investors or the public number should be included on the 1 interest; (ii) impose any significant Pursuant to Section 19(b)(1) of the subject line if e-mail is used. To help the burden on competition; and (iii) become Securities Exchange Act of 1934 (the Commission process and review your 2 3 operative for 30 days after the date of ‘‘Act’’), and Rule 19b–4 thereunder, comments more efficiently, please use the filing, or such shorter time as the notice is hereby given that, on only one method. The Commission will Commission may designate, it has November 3, 2009, NYSE Amex LLC post all comments on the Commission’s become effective pursuant to Section (‘‘NYSEAmex’’ or the ‘‘Exchange’’) filed Internet Web site (http://www.sec.gov/ 19(b)(3)(A) of the Act 6 and Rule 19b– with the Securities and Exchange rules/sro.shtml). Copies of the 4(f)(6) 7 thereunder. Commission (the ‘‘Commission’’) the A proposed rule change filed under submission, all subsequent proposed rule change as described in 19b–4(f)(6) normally may not become amendments, all written statements Items I, II, and III below, which Items with respect to the proposed rule have been prepared by the self- 4 15 U.S.C. 78f(b). change that are filed with the regulatory organization. The 5 15 U.S.C. 78f(b)(5). Commission is publishing this notice to 6 15 U.S.C. 78s(b)(3)(A). 8 17 CFR 240.19b–4(f)(6)(iii). solicit comments on the proposed rule 7 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– 9 Id. change from interested persons. 4(f)(6) requires a self-regulatory organization to give 10 See, e.g., International Securities Exchange, the Commission written notice of its intent to file LLC Rule 706 and NYSE Arca, Inc. Rule 7.29. 12 the proposed rule change at least five business days 11 For the purposes only of waiving the 30-day 17 CFR 200.30–3(a)(12). prior to the date of filing of the proposed rule operative delay, the Commission has considered the 1 15 U.S.C. 78s(b)(1). change, or such shorter time as designated by the proposed rule’s impact on efficiency, competition, 2 15 U.S.C. 78a. Commission. Phlx has satisfied this requirement. and capital formation. See 15 U.S.C. 78c(f). 3 17 CFR 240.19b–4.

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I. Self-Regulatory Organization’s statements concerning the purpose of, 2009. The Exchange recently filed to Statement of the Terms of Substance of and basis for, the proposed rule change extend and expand the Pilot through the Proposed Rule Change and discussed any comments it received December 31, 2010.4 In that filing, the The Exchange proposes to identify the on the proposed rule change. The text Exchange had proposed expanding the next 75 options classes to be added to of those statements may be examined at Pilot on a quarterly basis to add the next the Penny Pilot Program for Options the places specified in Item IV below. 75 most actively traded multiple listed (‘‘Penny Pilot’’ or ‘‘Pilot’’) on November The Exchange has prepared summaries, options classes based on national 2, 2009. There are no changes to the set forth in Sections A, B, and C below, average daily volume for the six months Rule text. A copy of this filing is of the most significant parts of such prior to selection, closing under $200 available on the Exchange’s Web site at: statements. per share on the Expiration Friday prior to expansion, except that the month http://www.nyse.com, at the Exchange’s A. Self-Regulatory Organization’s principal office and at the Commission’s immediately preceding their addition to Statement of the Purpose of, and the Public Reference Room. the Penny Pilot will not be used for the Statutory Basis for, the Proposed Rule purpose of the six month analysis.5 II. Self-Regulatory Organization’s Change NYSE Amex proposes adding the Statement of the Purpose of, and 1. Purpose following 75 options classes to the Statutory Basis for, the Proposed Rule Penny Pilot on November 2, 2009, based Change NYSE Amex proposes to identify the on national average daily volume from In its filing with the Commission, the next 75 options classes to be added to April 1, 2009 through September 30, self-regulatory organization included the Penny Pilot effective November 2, 2009:

Nat’l ranking Symbol Company name

118 ...... ABX ...... Barrick Gold Corp. 48 ...... AXP ...... American Express Co. 134 ...... AUY ...... Yamana Gold Inc. 93 ...... BA ...... Boeing Co/The. 115 ...... BBT ...... BB&T Corp. 111 ...... BBY ...... Best Buy Co Inc. 94 ...... BP ...... BP PLC. 67 ...... CHK ...... Chesapeake Energy Corp. 58 ...... CIT ...... CIT Group Inc. 78 ...... COF ...... Capital One Financial Corp. 68 ...... CVX ...... Chevron Corp. 130 ...... DE ...... Deere & Co. 104 ...... DOW ...... Dow Chemical Co/The. 49 ...... DRYS ...... DryShips Inc. 88 ...... EFA ...... iShares MSCI EAFE Index Fund. 64 ...... ETFC ...... E*Trade Financial Corp. 32 ...... EWZ ...... iShares MSCI Brazil Index Fund. 25 ...... FAS ...... Direxion Daily Financial Bull 3X Shares. 33 ...... FAZ ...... Direxion Daily Financial Bear 3X Shares. 112 ...... FITB ...... Fifth Third Bancorp. 70 ...... FSLR ...... First Solar Inc. 26 ...... FXI ...... iShares FTSE/Xinhua China 25 Index Fund. 82 ...... GDX ...... Market Vectors—Gold Miners ETF. 127 ...... GG ...... Goldcorp Inc. 18 ...... GLD ...... SPDR Gold Trust. 129 ...... HGSI ...... Human Genome Sciences Inc. 62 ...... HIG ...... Hartford Financial Services Group Inc. 72 ...... HPQ ...... Hewlett-Packard Co. 59 ...... IBM ...... International Business Machines Corp. 45 ...... IYR ...... iShares Dow Jones US Real Estate Index Fund. 105 ...... JNJ ...... Johnson & Johnson. 131 ...... JNPR ...... Juniper Networks Inc. 98 ...... KO ...... Coca-Cola Co/The. 39 ...... LVS ...... Las Vegas Sands Corp. 87 ...... MCD ...... McDonald’s Corp. 71 ...... MGM ...... MGM Mirage. 113 ...... MON ...... Monsanto Co. 63 ...... MOS ...... Mosaic Co/The. 120 ...... MRK ...... Merck & Co Inc/NJ. 35 ...... MS ...... Morgan Stanley. 73 ...... NLY ...... Annaly Capital Management Inc. 99 ...... NOK ...... Nokia OYJ. 121 ...... NVDA ...... Nvidia Corp. 80 ...... ORCL ...... Oracle Corp. 61 ...... PALM ...... Palm Inc. 37 ...... PBR ...... Petroleo Brasileiro SA. 85 ...... PG ...... Procter & Gamble Co/The.

4 See SR–NYSEAmex–2009–74, filed October 26, 5 Index products would be included in the 2009. expansion if the underlying index level was under 200.

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Nat’l ranking Symbol Company name

41 ...... POT ...... Potash Corp of Saskatchewan Inc. 74 ...... RF ...... Regions Financial Corp. 124 ...... RIG ...... Transocean Ltd. 132 ...... RMBS ...... Rambus Inc. 103 ...... S ...... Sprint Nextel Corp. 83 ...... SDS ...... ProShares UltraShort S&P500. 122 ...... SKF ...... ProShares UltraShort Financials. 107 ...... SLB ...... Schlumberger Ltd. 91 ...... SLV ...... iShares Silver Trust. 84 ...... SRS ...... ProShares UltraShort Real Estate. 119 ...... SSO ...... ProShares Ultra S&P500. 101 ...... STI ...... SunTrust Banks Inc. 125 ...... SVNT ...... Savient Pharmaceuticals Inc. 92 ...... TBT ...... ProShares UltraShort 20+ Year Treasury. 14 ...... UNG ...... United States Natural Gas Fund LP. 117 ...... UNH ...... UnitedHealth Group Inc. 110 ...... UPS ...... United Parcel Service Inc. 81 ...... USB ...... US Bancorp. 44 ...... USO ...... United States Oil Fund LP. 60 ...... UYG ...... ProShares Ultra Financials. 96 ...... V ...... Visa Inc. 10 ...... WFC ...... Wells Fargo & Co. 133 ...... WYNN ...... Wynn Resorts Ltd. 52 ...... X ...... United States Steel Corp. 114 ...... XHB ...... SPDR S&P Homebuilders ETF. 86 ...... XLI ...... Industrial Select Sector SPDR Fund. 79 ...... XLU ...... Utilities Select Sector SPDR Fund. 54 ...... XRT ...... SPDR S&P Retail ETF.

2. Statutory Basis 19(b)(3)(A)(i) 6 of the Act and Rule 19b– Paper Comments 7 4(f)(1) thereunder, in that it constitutes • Send paper comments in triplicate The Exchange believes the proposed a stated policy, practice, or rule change is consistent with and to Elizabeth M. Murphy, Secretary, interpretation with respect to the Securities and Exchange Commission, furthers the objectives of Section 6(b)(5) meaning, administration, or of the Act, in that it is designed to 100 F Street, NE., Washington, DC enforcement of an existing rule of the 20549–1090. promote just and equitable principles of Exchange. trade, remove impediments to and All submissions should refer to File At any time within 60 days of the perfect the mechanism of a free and Number SR–NYSEAmex–2009–79. This filing of the proposed rule change, the open market and a national market file number should be included on the Commission may summarily abrogate system and, in general, to protect subject line if e-mail is used. To help the such rule change if it appears to the investors and the public interest, by Commission process and review your Commission that such action is identifying the options classes to be comments more efficiently, please use necessary or appropriate in the public added to the Pilot in a manner only one method. The Commission will interest, for the protection of investors, consistent with prior approvals and post all comments on the Commission’s or otherwise in furtherance of the filings. 8 Internet Web site (http://www.sec.gov/ purposes of the Act. rules/sro.shtml). Copies of the B. Self-Regulatory Organization’s IV. Solicitation of Comments submission, all subsequent Statement on Burden on Competition amendments, all written statements Interested persons are invited to The Exchange does not believe that with respect to the proposed rule submit written data, views, and change that are filed with the the proposed rule change will impose arguments concerning the foregoing, any burden on competition that is not Commission, and all written including whether the proposed rule communications relating to the necessary or appropriate in furtherance change is consistent with the Act. of the purposes of the Act. proposed rule change between the Comments may be submitted by any of Commission and any person, other than C. Self-Regulatory Organization’s the following methods: those that may be withheld from the Statement on Comments on the Electronic Comments public in accordance with the Proposed Rule Change Received From provisions of 5 U.S.C. 552, will be Members, Participants, or Others • Use the Commission’s Internet available for inspection and copying in comment form (http://www.sec.gov/ the Commission’s Public Reference No written comments were solicited rules/sro.shtml); or Room, 100 F Street, NE., Washington, or received with respect to the proposed • DC 20549–1090 on official business rule change. Send an e-mail to rule- [email protected]. Please include File days between the hours of 10 a.m. and III. Date of Effectiveness of the Number SR–NYSEAmex–2009–79 on 3 p.m. Copies of the filing also will be Proposed Rule Change and Timing for the subject line. available for inspection and copying at Commission Action NYSE Amex’s principal office and on its 6 15 U.S.C. 78s(b)(3)(A)(i). Internet Web site at http:// The proposed rule change is effective 7 17 CFR 240.19b–4(f)(1). www.nyse.com. All comments received upon filing pursuant to Section 8 See 15 U.S.C. 78s(b)(3)(C). will be posted without change; the

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Commission does not edit personal II. Self-Regulatory Organization’s and ITP access fees that it used to set identifying information from Statement of the Purpose of, and the current Temporary Member and ITP submissions. You should submit only Statutory Basis for, the Proposed Rule access fees. The only difference is that information that you wish to make Change the Exchange used clearing firm floating available publicly. All submissions In its filing with the Commission, monthly rate information for the month should refer to File Number SR– CBOE included statements concerning of November 2009 to set the proposed NYSEAmex–2009–79 and should be the purpose of, and basis for, the access fees (instead of clearing firm submitted on or before December 3, proposed rule change and discussed any floating monthly rate information for the 2009. comments it received on the proposed month of October 2009 as was used to For the Commission, by the Division of rule change. The text of these statements set the current access fees) in order to Trading and Markets, pursuant to delegated may be examined at the places specified take into account changes in clearing authority.9 in Item IV below. The CBOE has firm floating monthly rates for the Florence E. Harmon, prepared summaries, set forth in month of November 2009. Sections A, B, and C below, of the most Deputy Secretary. The Exchange believes that the significant aspects of such statements. [FR Doc. E9–27091 Filed 11–10–09; 8:45 am] process used to set the proposed BILLING CODE 8011–01–P A. Self-Regulatory Organization’s Temporary Member access fee and the Statement of the Purpose of, and proposed Temporary Member access fee Statutory Basis for, the Proposed Rule itself are appropriate for the same SECURITIES AND EXCHANGE Change reasons set forth in CBOE rule filing SR– COMMISSION 1. Purpose CBOE–2008–12 with respect to the original Temporary Member access fee.6 The current access fee for Temporary [Release No. 34–60932; File No. SR–CBOE– Similarly, the Exchange believes that 2009–082] Members under Rule 3.19.02 2 and the the process used to set the proposed ITP current access fee for ITP holders under Self-Regulatory Organizations; Rule 3.27 3 are both $11,900 per month. access fee and the proposed ITP access Chicago Board Options Exchange, Both access fees are currently set at the fee itself are appropriate for the same Incorporated; Notice of Filing and indicative lease rate (as defined below) reasons set forth in CBOE rule filing SR– Immediate Effectiveness of Proposed for October 2009. The Exchange CBOE–2008–77 with respect to the Rule Change Relating to Temporary proposes to adjust both access fees original ITP access fee.7 Membership Status and Interim effective at the beginning of November Each of the proposed access fees will Trading Permit Access Fees 2009 to be equal to the indicative lease remain in effect until such time either rate for November 2009 (which is November 4, 2009. that the Exchange submits a further rule $11,830). Specifically, the Exchange filing pursuant to Section 19(b)(3)(A)(ii) Pursuant to Section 19(b)(1) of the proposes to revise both the Temporary of the Act 8 to modify the applicable Securities Exchange Act of 1934 Member access fee and the ITP access access fee, or the applicable status (i.e., (‘‘Act’’),1 notice is hereby given that on fee to be $11,830 per month the Temporary Membership status or October 30, 2009, the Chicago Board commencing on November 1, 2009. the ITP status) is terminated. Options Exchange, Incorporated The indicative lease rate is defined Accordingly, the Exchange may, and (‘‘CBOE’’ or ‘‘Exchange’’) filed with the under Rule 3.27(b) as the highest likely will, further adjust the proposed Securities and Exchange Commission clearing firm floating monthly rate 4 of access fees in the future if the Exchange (‘‘Commission’’) the proposed rule the CBOE Clearing Members that assist change as described in Items I, II, and in facilitating at least 10% of the CBOE determines that it would be appropriate III below, which Items have been transferable membership leases.5 The to do so taking into consideration lease prepared by the CBOE. The Commission Exchange determined the indicative rates for transferable CBOE is publishing this notice to solicit lease rate for November 2009 by polling memberships prevailing at that time. comments on the proposed rule change each of these Clearing Members and The procedural provisions of the from interested parties. obtaining the clearing firm floating CBOE Fee Schedule related to the monthly rate designated by each of I. Self-Regulatory Organization’s assessment of each proposed access fee these Clearing Members for that month. are not proposed to be changed and will Statement of the Terms of Substance of The Exchange used the same process the Proposed Rule Change remain the same as the current to set the proposed Temporary Member procedural provisions relating to the CBOE proposes to adjust (i) the assessment of that access fee. monthly access fee for persons granted 2 See Securities Exchange Act Release No. 56458 (September 18, 2007), 72 FR 54309 (September 24, temporary CBOE membership status 2007) (SR–CBOE–2007–107) for a description of the 6 See Securities Exchange Act Release No. 57293 (‘‘Temporary Members’’) pursuant to Temporary Membership status under Rule 3.19.02. (February 8, 2008), 73 FR 8729 (February 14, 2008) Interpretation and Policy .02 under 3 See Securities Exchange Act Release No. 58178 (SR–CBOE–2008–12), which established the CBOE Rule 3.19 (‘‘Rule 3.19.02’’) and (July 17, 2008), 73 FR 42634 (July 22, 2008) (SR– original Temporary Member access fee, for detail CBOE–2008–40) for a description of the Interim regarding the rationale in support of the original (ii) the monthly access fee for Interim Trading Permits under Rule 3.27. Temporary Member access fee and the process used Trading Permit (‘‘ITP’’) holders under 4 Rule 3.27(b) defines the clearing firm floating to set that fee, which is also applicable to this CBOE Rule 3.27. The text of the monthly rate as the floating monthly rate that a proposed change to the Temporary Member access proposed rule change is available on the Clearing Member designates, in connection with fee as well. transferable membership leases that the Clearing 7 See Securities Exchange Act Release No. 58200 Exchange’s Web site (http:// Member assisted in facilitating, for leases that (July 21, 2008), 73 FR 43805 (July 28, 2008) (SR– www.cboe.org/Legal/), at the Exchange’s utilize that monthly rate. CBOE–2008–77), which established the original ITP Office of the Secretary, and at the 5 The concepts of an indicative lease rate and of access fee, for detail regarding the rationale in Commission’s Public Reference Room. a clearing firm floating month rate were previously support of the original ITP access fee and the utilized in the CBOE rule filings that set and process used to set that fee, which is also applicable adjusted the Temporary Member access fee. Both to this proposed change to the ITP access fee as 9 17 CFR 200.30–3(a)(12). concepts are also codified in Rule 3.27(b) in relation well. 1 15 U.S.C. 78s(b)(1). to ITPs. 8 15 U.S.C. 78s(b)(3)(A)(ii).

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2. Statutory Basis Paper Comments SECURITIES AND EXCHANGE COMMISSION The Exchange believes that the • Send paper comments in triplicate proposed rule change is consistent with to Elizabeth M. Murphy, Secretary, 9 [Release No. 34–60931; File No. SR–CBOE– Section 6(b) of the Act, in general, and Securities and Exchange Commission, 2009–078] furthers the objectives of Section 6(b)(4) 100 F Street, NE., Washington, DC 10 of the Act, in particular, in that it is 20549–1090. designed to provide for the equitable Self-Regulatory Organizations; allocation of reasonable dues, fees, and All submissions should refer to File Chicago Board Options Exchange, other charges among persons using its Number SR–CBOE–2009–082. This file Incorporated; Notice of Filing of facilities. number should be included on the Proposed Rule Change, as Modified by subject line if e-mail is used. To help the Amendment No. 1, Related to B. Self-Regulatory Organization’s Professional Orders Statement on Burden on Competition Commission process and review your comments more efficiently, please use November 4, 2009. CBOE does not believe that the only one method. The Commission will proposed rule change will impose any post all comments on the Commission’s Pursuant to Section 19(b)(1) of the burden on competition that is not Internet Web site (http://www.sec.gov/ Securities Exchange Act of 1934 (the ‘‘Act’’),1 and Rule 19b–4 thereunder,2 necessary or appropriate in furtherance rules/sro.shtml). Copies of the notice is hereby given that on October of the purposes of the Act. submission, all subsequent 20, 2009, the Chicago Board Options amendments, all written statements C. Self-Regulatory Organization’s Exchange, Incorporated (the ‘‘Exchange’’ Statement on Comments on the with respect to the proposed rule or ‘‘CBOE’’) filed with the Securities Proposed Rule Change Received From change that are filed with the and Exchange Commission (the Members, Participants or Others Commission, and all written ‘‘Commission’’) the proposed rule No written comments were solicited communications relating to the change as described in Items I, II, and or received with respect to the proposed proposed rule change between the III below, which Items have been rule change. Commission and any person, other than prepared by the Exchange. On those that may be withheld from the November 3, 2009, the Exchange filed III. Date of Effectiveness of the public in accordance with the Amendment No. 1 to the proposal.3 The Proposed Rule Change and Timing for provisions of 5 U.S.C. 552, will be Commission is publishing this notice to Commission Action available for inspection and copying in solicit comments on the proposed rule Because the foregoing rule change the Commission’s Public Reference change, as modified by Amendment No. establishes or changes a due, fee, or Room, 100 F Street, NE., Washington, 1, from interested persons. other charge imposed by the Exchange, DC 20549, on official business days I. Self-Regulatory Organization’s it has become effective pursuant to between the hours of 10 a.m. and 3 p.m. Statement of the Terms of Substance of Section 19(b)(3)(A) of the Act 11 and Copies of such filing also will be the Proposed Rule Change subparagraph (f)(2) of Rule 19b–4 12 available for inspection and copying at thereunder. At any time within 60 days the principal office of the Exchange. All The Exchange is proposing to amend of the filing of the proposed rule change, comments received will be posted its priority rules to give certain non- the Commission may summarily without change; the Commission does broker-dealer orders the same priority as abrogate such rule change if it appears not edit personal identifying broker-dealer orders. The text of the to the Commission that such action is information from submissions. You proposed rule change is available on the necessary or appropriate in the public should submit only information that Exchange’s Web site (http:// interest, for the protection of investors, you wish to make available publicly. All www.cboe.org/Legal), at the Office of the or otherwise in furtherance of the submissions should refer to File No. Secretary, CBOE and at the Commission. purposes of the Act. SR–CBOE–2009–082 and should be II. Self-Regulatory Organization’s IV. Solicitation of Comments submitted on or before December 3, Statement of the Purpose of, and Interested persons are invited to 2009. Statutory Basis for, the Proposed Rule submit written data, views, and For the Commission, by the Division of Change arguments concerning the foregoing, Trading and Markets, pursuant to delegated In its filing with the Commission, the including whether the proposed rule authority.13 self-regulatory organization included change is consistent with the Act. Florence E. Harmon, statements concerning the purpose of Comments may be submitted by any of Deputy Secretary. and basis for the proposed rule change the following methods: [FR Doc. E9–27088 Filed 11–10–09; 8:45 am] and discussed any comments it received Electronic Comments BILLING CODE 8011–01–P on the proposed rule change. The text • Use the Commission’s Internet of those statements may be examined at comment form (http://www.sec.gov/ the places specified in Item IV below. rules/sro.shtml); or The Exchange has prepared summaries, set forth in sections A, B, and C below, • Send an e-mail to rule- of the most significant parts of such [email protected]. Please include File statements. Number SR–CBOE–2009–082 on the subject line. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 9 15 U.S.C. 78f(b). 3 Amendment No. 1 proposed to revise a 10 15 U.S.C. 78f(b)(4). paragraph in the purpose section of the Form 19b– 11 15 U.S.C. 78s(b)(3)(A). 4 and in the Exhibit 1 thereto relating to the 12 17 CFR 240.19b–4(f)(2). 13 17 CFR 200.30–3(a)(12). application of Section 11(a) of the Act.

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A. Self-Regulatory Organization’s individual traders and entities not be subject to the exposure Statement of the Purpose of, and (collectively, ‘‘Professionals’’) have the requirements for solicited broker-dealer Statutory Basis for, the Proposed Rule same technological and informational orders, under Interpretation and Policy Change advantages over retail investors as .02), 6.45B (Priority and Allocation of broker-dealers trading for their own 1. Purpose Trades in Index Options and Options on account, which enables them to ETFs on the CBOE Hybrid System) Under CBOE rules, a ‘‘public compete effectively with broker-dealer (except that Professional orders may be customer’’ or ‘‘customer’’ is a person or orders and market maker quotes for considered public customer orders, and entity that is neither a member nor a execution opportunities in the CBOE therefore not be subject to the exposure broker/dealer. Each term is used in marketplace.7 requirements for solicited broker-dealer specific CBOE rules that provide certain The Exchange therefore does not orders, under Interpretation and Policy marketplace advantages to public believe that it is consistent with fair .02), 6.53C(c)(ii) and (d)(v) and customer orders over non-customer competition for these professional 6.53C.06(b) and (c) (Complex Orders on orders (e.g., orders for the account of account holders to continue to receive the Hybrid System), 6.74 (Crossing members or broker/dealers). In the same marketplace advantages as Orders) (except that Professional orders particular, under CBOE rules, subject to retail investors over broker-dealers may be considered public customer certain exceptions, (i) public customer trading on the CBOE. Moreover, because orders subject to facilitation under public customer orders at the same price orders are given priority over non- paragraphs (b) and (d)), 6.74A are executed in time priority, retail customer orders and Market-Maker (Automated Improvement Mechanism) quotes at the same price,4 and (ii) investors are prevented from fully (except Professional orders may be members are generally not charged a benefiting from the priority advantage considered customer Agency Orders or transaction fee for the execution of when Professionals are afforded public solicited orders eligible for customer-to- public customer orders. The purpose of customer order priority. customer immediate crosses under providing these marketplace advantages Accordingly, the Exchange is seeking Interpretation and Policy .09), 6.74B to public customer orders is to attract to adopt a new term that will be used (Solicitation Auction Mechanism), 8.13 retail investor order flow to the to more appropriately provide CBOE (Preferred Market-Maker Program), Exchange by leveling the playing field marketplace advantages to retail 8.15B (Participation Entitlement of for retail investors over market investors on the CBOE. Under the LMMs), 8.87 (Participation Entitlement professionals 5 and providing proposal, a ‘‘Professional’’ will be of DPMs and e-DPMs), 24.19 (Multi- competitive pricing. defined in proposed Rule 1.1 as a With respect to these CBOE person or entity that (i) is not a broker Class Broad-Based Index Option Spread marketplace advantages, the Exchange or dealer in securities, and (ii) places Orders), 43.1 (Matching Algorithm/ does not believe the definition of public more than 390 orders in listed options Priority), 44.4 (Obligations of SBT customer versus a non-customer per day on average during a calendar Market-Makers), and 44.14 (SBT DPM properly distinguishes between non- month for its own beneficial account(s). Obligations). In addition, the professional retail investors and certain Under the proposal, a Professional will Professional designation is not available professionals. According to the be treated in the same manner as a in Hybrid 3.0 classes. Exchange, providing marketplace broker or dealer in securities for The use of this new term for purposes advantages based upon whether the purposes of CBOE Rules 6.2A (Rapid of the above-referenced execution rules order is for the account of a participant Opening System), 6.2B (Hybrid Opening will result in Professional account that is a registered broker-dealer is no System), 6.8C (Prohibition Against holders participating in CBOE’s longer appropriate in today’s Members Functioning as Market- allocation process on equal terms with marketplace because some non-broker- Makers), 6.9 (Solicited Transactions), broker-dealer orders. The proposal will dealer individuals and entities have 6.13A (Simple Auction Liaison), 6.45 not otherwise affect non-broker-dealer access to information and technology (Priority of bids and Offers—Allocation individuals or entities under CBOE that enables them to professionally trade of Trades), 6.13B (Penny Price rules, and in particular, all public listed options in the same manner as a Improvement), 6.45A (Priority and customer orders will continue to be broker or dealer in securities.6 These Allocation of Equity Option Trades on treated equally for purposes of the the CBOE Hybrid System) (except that linkage-related rules. For example, 4 Professional orders may be considered See, e.g., CBOE Rules 6.45, Priority of Bids and CBOE will provide the same away- Offers—Allocation of Trades, 6.45A, Priority and public customer orders, and therefore Allocation of Equity Option Trades on the CBOE market protection for all public customer orders, including non-broker- Hybrid System, and 6.45B, Priority and Allocation Securities Exchange (‘‘ISE’’) proposal to introduce of Trades in Index Options and Options on ETFs priority customer and professional orders) and dealer orders that are included in the on the CBOE Hybrid System. 57254 (February 1, 2008), 73 FR 7345 (February 7, definition of ‘‘Professional’’ orders. 5 Market professionals have access to 2008) (SR–ISE–2006–26)(notice of ISE proposal to sophisticated trading systems that contain introduce priority customer and professional In order to properly represent orders functionality not available to retail customers, orders) at note 8. entered on the Exchange according to including things such as continuously updated 7 Market-Makers enter quotes based upon the the new definitions, members will be pricing models based upon real-time streaming theoretical value of the option, which moves with required to indicate whether public data, access to multiple markets simultaneously, various factors in their pricing models, such as the and order and risk management tools. value of the underlying security. Professional customer orders are ‘‘Professional’’ 6 For example, some broker-dealers provide their customers place and cancel orders in relation to an orders.8 To comply with this professional customers with multi-screened trading option’s theoretical value in much the same manner requirement, members will be required stations equipped with trading technology that as a Market-Maker. This is evidenced by the entry allows the trader to monitor and place orders on all of limit orders that join the best bid or offer and to review their customers’ activity on at six options exchanges simultaneously. These by a very high rate of orders that are cancelled. In least a quarterly basis to determine trading stations also provide compliance filters, contrast, retail customers who enter orders as part whether orders that are not for the order management tools, the ability to place orders of an investment strategy (such as a covered write account of a broker or dealer should be in the underlying securities, and market data feeds. or directional trade) most frequently enter See Securities Exchange Act Releases 59287 marketable orders or limit orders that they do not (January 23, 2009), 74 FR 5694 (January 30, 2009) cancel and replace. See, e.g., Securities Exchange 8 The Exchange intends to utilize a special order (SR–ISE–2006–26)(order approving International Act Release 57254 at note 9. origin code for Professional orders.

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represented as customer orders or an exchange member, subject to certain a sufficiently low number of orders to Professional orders.9 conditions, to effect transactions for its cover the Professional account holders Lastly, the Exchange intends to own account, the account of an that are competing with broker-dealers establish, via a separate rule filing, associated person, or an account with in the CBOE marketplace. In addition, transaction fees applicable to respect to which it or an associated basing the standard on the number of Professionals and the Exchange would person thereof exercises investment orders that are entered in listed options not commence the Professional program discretion (collectively ‘‘covered for a beneficial account(s) assures that until such fees are in place. accounts’’) by arranging for an Professional account holders cannot * * * * * unaffiliated member to execute the inappropriately avoid the purpose of the Section 11(a) of the Act prohibits any transaction on the exchange. rule by spreading their trading activity member of a national securities To comply with the ‘‘effect versus over multiple exchanges, and using an exchange from effecting transactions on execute’’ rule’s conditions, a member: (i) average number over a calendar month that exchange for its own account, the Must transmit the order from off the will prevent gaming of the 390 order account of an associated person, or an exchange floor; (ii) may not participate threshold. in the execution of the transaction once account over which it or its associated 2. Statutory Basis persons exercises discretion unless an it has been transmitted to the member exception applies.10 Section 11(a)(1) performing the execution; 15 (iii) may The basis under the Act for this contains a number of exceptions for not be affiliated with the executing proposed rule change is the requirement principal transactions by members and member; and (iv) with respect to an under Section 6(b)(5)19 that an exchange their associated persons. One such account over which the member has have rules that are designed to prevent exception, set forth in subparagraph (G) investment discretion, neither the fraudulent and manipulative acts and of Section 11(a)(1) and in Rule 11a1– member nor its associated person may practices, to promote just and equitable 1(T),11 permits any transaction for a retain any compensation in connection principles of trade, to remove member’s own account provided, among with effecting the transaction except as impediments to and perfect the other things, that the transaction yields provided in the rule.16 mechanism for a free and open market priority, parity, and precedence to The Exchange does not believe that its and a national market system, and, in orders for the account of persons who proposal relating to Professional orders general, to protect investors and the are not members or associated with would affect the availability of the public interest. In particular, the members of the exchange. Exchange exceptions to Section 11(a) of the Act, proposal will assure that retail investors rules, therefore, may require members to including the exceptions in continue to receive the appropriate yield priority to the orders of non- subparagraph (G) of Section 11(a) and in marketplace advantages in the CBOE members, including public customers, Rules 11a1–1(T) and 11a2–2(T), as are marketplace, while furthering fair to satisfy this exception to Section currently available.17 competition among marketplace 11(a).12 Another exception permits * * * * * professionals by treating them equally market makers to effect transactions on The Exchange believes that within the CBOE marketplace. exchanges in which they are members.13 identifying Professional account holders B. Self-Regulatory Organization’s In addition to the exceptions noted based upon the average number of Statement on Burden on Competition above, Rule 11a2–2(T) under the Act 14 orders entered for a beneficial account CBOE does not believe that the provides exchange members with an is an appropriately objective approach proposed rule change will impose any exception from the prohibitions in that will reasonably distinguish such burden on competition not necessary or Section 11(a). Rule 11a2–2(T), known as persons and entities from retail appropriate in furtherance of the the ‘‘effect versus execute’’ rule, permits investors. The Exchange proposes the purposes of the Act. threshold of 390 orders per day on 9 Orders for any customer that had an average of average over a calendar month because C. Self-Regulatory Organization’s more than 390 orders per day during any month of it believes it far exceeds the number of Statement on Comments on the a calendar quarter must be represented as Professional orders for the next calendar quarter. orders that are entered by retail Proposed Rule Change Received From Members will be required to conduct a quarterly investors in a single day,18 while being Members, Participants, or Others review and make any appropriate changes to the No written comments were solicited way in which they are representing orders within 15 The member, however, may participate in five days after the end of each calendar quarter. clearing and settling the transaction. See Securities or received with respect to the proposed While members only will be required to review Exchange Act Release No. 14563 (March 14, 1978), rule change. their accounts on a quarterly basis, if during a 43 FR 11542 (March 17, 1978). quarter the Exchange identifies a customer for 16 17 CFR 240.11a2–2(T). III. Date of Effectiveness of the which orders are being represented as public 17 See Securities Exchange Act Release No. 59546 Proposed Rule Change and Timing for customer orders but that has averaged more than (March 10, 2009), 74 FR 11144 (March 16, 2009) Commission Action 390 orders per day during a month, the Exchange (SR–CBOE–2009–016) and related regulatory will notify the member and the member will be circular, RG09–35. Within 35 days of the date of required to change the manner in which it is 18 publication of this notice in the Federal representing the customer’s orders within five days. Three hundred ninety orders is equal to the total number of orders that a person would place Register or within such longer period (i) 10 15 U.S.C. 78k(a). in a day if that person entered one order every 11 as the Commission may designate up to 17 CFR 240.11a1–1(T). minute from market open to close. Many of the 12 90 days of such date if it finds such See, e.g., CBOE Rule 6.45A(b)(i)(D), which largest retail-oriented electronic brokers offer lower pertains to the allocation of orders in open outcry commission rates to customers they define as and provides that members relying on the Section ‘‘active traders.’’ Publicly available information that on a typical trading day, options orders were 11(a)(1)(G) and Rule 11a1–1(T) thereunder as an from the websites for Charles Schwab, Fidelity, TD entered with respect to 5922 different customer exemption must yield priority to any bid (offer) at Ameritrade and optionsXpress all define an ‘‘active accounts. There was only one order entered with the same price of public customer orders and trader’’ as someone who executes only a few respect to 3765 of the 5922 different customer broker-dealer orders resting in the electronic book, options trades per month. The highest required accounts on this day, and there were only 17 as well as any other bids and offers that have trading activity to qualify as an active trader among customer accounts with respect to which more than priority over such broker-dealer orders under that these four firms was 35 trades per quarter. See 10 orders were entered. The highest number of rule. Securities Exchange Act Release 57254 at note 11 orders entered with respect to any one account over 13 Section 11(a)(1)(A). (which also notes that a study of one of the largest the course of an entire week was 27). 14 17 CFR 240.11a2–2(T). retail-oriented options brokerage firms indicated 19 15 U.S.C. 78f(b)(5).

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longer period to be appropriate and you wish to make available publicly. All II. Self-Regulatory Organization’s publishes its reasons for so finding or submissions should refer to File Statement of the Purpose of, and (ii) as to which the self-regulatory Number SR–CBOE–2009–078 and Statutory Basis for, the Proposed Rule organization consents, the Commission should be submitted on or before Change will: December 3, 2009. (A) By order approve such proposed In its filing with the Commission, the rule change, or For the Commission, by the Division of self-regulatory organization included (B) Institute proceedings to determine Trading and Markets, pursuant to delegated statements concerning the purpose of, 20 whether the proposed rule change authority. and basis for, the proposed rule change should be disapproved. Florence E. Harmon, and discussed any comments it received Deputy Secretary. on the proposed rule change. The text IV. Solicitation of Comments [FR Doc. E9–27087 Filed 11–10–09; 8:45 am] of these statements may be examined at Interested persons are invited to BILLING CODE 8011–01–P the places specified in Item IV below. submit written data, views, and The self-regulatory organization has arguments concerning the foregoing, prepared summaries, set forth in including whether the proposed rule SECURITIES AND EXCHANGE Sections A, B, and C below, of the most change is consistent with the Act. COMMISSION significant aspects of such statements. Comments may be submitted by any of the following methods: A. Self-Regulatory Organization’s [Release No. 34–60934; File No. SR–BX– Statement of the Purpose of, and Electronic Comments: 2009–071] Statutory Basis for, the Proposed Rule • Use the Commission’s Internet Change comment form (http://www.sec.gov/ Self-Regulatory Organizations; rules/sro.shtml); or NASDAQ OMX BX, Inc.; Notice of Filing 1. Purpose • Send an e-mail to rule- and Immediate Effectiveness of Proposed Rule Change Amending the Section 7 of the BOX Fee Schedule [email protected]. Please include File currently applies to all classes listed for Number SR–CBOE–2009–078 on the Fee Schedule of the Boston Options Exchange Facility trading on BOX that are not included in subject line. the Penny Pilot Program, as referenced Paper Comments: November 4, 2009. in Chapter V, Section 33 of the BOX Rules (‘‘Non-Penny Pilot Classes’’). The • Send paper comments in triplicate Pursuant to Section 19(b)(1) of the Exchange proposes to amend Section 7 to Elizabeth M. Murphy, Secretary, Securities Exchange Act of 1934 to make the following changes.5 Securities and Exchange Commission, (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 100 F Street, NE., Washington, DC notice is hereby given that on October Extend Section 7 Fees and Credits to 20549–1090. 30, 2009, NASDAQ OMX BX, Inc. (the Penny Pilot Classes All submissions should refer to File ‘‘Exchange’’) filed with the Securities Number SR–CBOE–2009–078. This file and Exchange Commission The Exchange proposes to extend the number should be included on the (‘‘Commission’’) the proposed rule applicability of Section 7 of the Fee subject line if e-mail is used. To help the change as described in Items I, II, and Schedule to also include Penny Pilot Commission process and review your III below, which Items have been Classes.6 The Exchange proposes that comments more efficiently, please use prepared by the Exchange. The the applicability of this pricing will only one method. The Commission will Exchange filed the proposed rule change apply to Penny Pilot Classes and Non- post all comments on the Commission’s pursuant to Section 19(b)(3)(A)(ii) of the Penny Pilot Classes alike, whereby Internet Web site (http://www.sec.gov/ Act 3 and Rule 19b–4(f)(2) thereunder,4 transactions that remove liquidity from rules/sro.shtml). Copies of the which renders the proposal effective the BOX Book will receive a ‘removal’ submission, all subsequent upon filing with the Commission. The credit and transactions that add amendments, all written statements Commission is publishing this notice to liquidity will be charged an ‘add’ fee. with respect to the proposed rule solicit comments on the proposed rule However, the Exchange proposes that change that are filed with the change from interested persons. the level of credits and fees differ for Commission, and all written Penny Pilot Classes as compared to I. Self-Regulatory Organization’s communications relating to the Non-Penny Pilot Classes. Specifically, Statement of the Terms of Substance of proposed rule change between the the Exchange proposes that both the fees the Proposed Rule Change Commission and any person, other than and credits for Penny Pilot Classes be those that may be withheld from the The Exchange proposes to amend the $0.20, in addition to the ‘standard’ fees.7 public in accordance with the Fee Schedule of the Boston Options The proposed lower fees and credits for provisions of 5 U.S.C. 552, will be Exchange Group, LLC (‘‘BOX’’). The text Penny Pilot Classes, as compared to available for inspection and copying in of the proposed rule change is available Non-Penny Pilot Classes, is based on the the Commission’s Public Reference from the principal office of the Room, 100 F Street, NE., Washington, Exchange, at the Commission’s Public 5 Changes to other sections of the Fee Schedule DC 20549, on official business days Reference Room and also on the other than Section 7 are required for conformity purposes. between the hours of 10 a.m. and 3 p.m. Exchange’s Internet Web site at http:// Copies of such filing also will be 6 Except for transactions within the PIP, as nasdaqomxbx.cchwallstreet.com/ discussed below, SPY, QQQQ and IWM will remain available for inspection and copying at NASDAQOMXBX/Filings/. subject only to ‘standard’ fees. the principal office of the CBOE. All 7 The next 300 most actively traded classes, as per Options Clearing Corporation volume data, will be comments received will be posted 20 17 CFR 200.30–3(a)(12). added to the Penny Pilot Program. See Securities without change; the Commission does 1 15 U.S.C. 78s(b)(1). Exchange Act Release No. 60886 (October 27, 2009) not edit personal identifying 2 17 CFR 240.19b–4. (SR–BX–2009–067). The first tranche of 75 classes information from submissions. You 3 15 U.S.C. 78s(b)(3)(A)(ii). will be eligible for quoting and trading in $0.01 should submit only information that 4 17 CFR 240.19b–4(f)(2). increments on November 2, 2009.

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narrower spreads exhibited in Penny subject to Section 7, as described in new executions in PIP auctions initiated by Pilot Classes. subsection 7(d) of the Fee Schedule.9 the particular Initiating Participant For example, a Public Customer Order Currently, transactions on both sides of which occur at a price at least better in a Penny Pilot Class is entered into the a PIP are exempt from Section 7 and are than the NBBO.11 A threshold average BOX Trading Host and executes against charged ‘standard’ execution fees daily volume (‘‘ADV’’) of 50,000 a Broker Dealer’s order resting on the according to Sections 1 through 3 of the contracts per month is proposed for all BOX Book. The Public Customer is the Fee Schedule. The Exchange proposes such executions. Any executions of the remover of liquidity and the Broker that the Section 7(d) fees and credits Initiating Participant above this Dealer is the adder of liquidity. The will be $0.20 for both Penny Pilot and threshold will receive a $0.05 discount. Public Customer will receive a $0.20 Non-Penny Pilot Classes traded within For Example, suppose that at the end ‘removal’ credit and the Broker Dealer the PIP. of a calendar month a BOX Participant’s will be charged a $0.20 ‘add’ fee. The For example, a BOX Participant executions in PIP auctions which it Public Customer will receive a $0.20 submits a Public Customer Order initiated and which were filled at a total credit (free ‘standard’ charge plus (‘‘Initiating Participant’’) in a Non- price better than the NBBO totaled 2.5 the $0.20 ‘removal’ credit) and the Penny Pilot Class into the BOX PIP million contracts. For a month with 20 Broker Dealer will be charged $0.40 (‘‘PIP Order’’) with a matching contra trading days this would average 125,000 total (the $0.20 ‘add’ fee for adding order (‘‘Primary Improvement Order’’) such contracts per trading day. For these liquidity in addition to the ‘standard’ for the full size with a price at least daily executions the Initiating $0.20 transaction fee). equal to the National Best Bid or Offer Participant will be billed $0.20 per contract ($25,000) in ‘standard’ Change the Title of Section 7 of the Fee (‘‘NBBO’’). The PIP runs for the execution fees in addition to $0.20 per Schedule specified duration period, currently one (1) second, and the Public Customer’s contract ($25,000) in Section 7 ‘add’ The Exchange also proposes that the PIP Order, which must be filled, fees. The 75,000 contracts over the name of the pricing structure of Section executes against the Initiating 50,000 ADV threshold will be 7 of the BOX Fee Schedule be changed Participant’s Primary Improvement discounted by $0.05 per contract to ‘Liquidity Fees and Credits’, as the Order. The Public Customer will be ($3,750 volume discount). The net daily name ‘Non-Penny Pilot Class Pricing charged the ‘standard’ transaction fee transaction cost for the Initiating Structure’ will no longer be appropriate for orders submitted into the PIP and Participant is the initial $25,000 once the inclusion of Penny Pilot receive the ‘removal’ credit ($0.20).10 ‘standard’ transaction fee plus the Classes is implemented.8 The Initiating Participant will be $25,000 in Section 7 ‘add’ fees less the Increase Credits and Fees for Non-Penny charged the ‘add’ fee ($0.20) in addition $3,750 volume discount for a grand total Pilot Classes to its ‘standard’ transaction fee ($0.20) of $46,250. The Exchange believes that providing The Exchange also proposes to for orders submitted in the PIP, resulting in a total fee of $0.40. a volume discount to the Initiating increase both the credits and fees for Participant’s fees is appropriate to Non-Penny Pilot Classes from $0.30 to Alternatively, a Public Customer’s PIP Order in a Penny Pilot Class executes in incent BOX Participants to submit their $0.75 within Section 7 of the Fee Public Customer Orders into the PIP for Schedule. These credits and fees apply the PIP against a competing the possibility of price improvement. equally to all account types, whether improvement order (‘‘Improvement Furthermore, such a discount is Public Customer, Firm or Market Maker Order’’) in the PIP from a BOX necessary to limit the exposure that and are in addition to any applicable Participant other than the Initiating Initiating Participants will have removal ‘standard’ trading fees and/or volume Participant. The Public Customer will fees, because as Initiating Participants discounts, as described in Sections 1 be charged the ‘standard’ transaction fee they will be adders of liquidity should through 4 of the BOX Fee Schedule. for orders submitted into the PIP and For example, a Public Customer Order receive the ‘removal’ credit ($0.20) and the Primary Improvement Order execute in a Non-Penny Pilot Class is entered the Participant whose Improvement against the PIP Order. The Exchange believes that the into the BOX Trading Host and executes Order executed against the Public proposed pricing changes are equitable against a Broker Dealer’s order resting Customer’s PIP Order will be charged in that they apply uniformly to all on the BOX Book. The Public Customer the ‘standard’ execution fee of $0.20 in similarly situated Participants, is the remover of liquidity and the addition to the fee for adding liquidity specifically, Participants seeking price Broker Dealer is the adder of liquidity. of $0.20, resulting in a total fee of $0.40. improvement for their customer order The Public Customer will receive a The changes proposed herein are in flow. The pricing changes are also $0.75 ‘removal’ credit and the Broker response to various ‘Payment for Order consistent with industry precedent that Dealer will be charged a $0.75 ‘add’ fee. Flow’ programs currently in operation allows for different prices to be charged The Public Customer will receive a on other options exchanges. The for different orders types originated by $0.75 total credit (free ‘standard’ charge Exchange believes that the proposed dissimilarly classified market plus the $0.75 ‘removal’ credit) and the fees are competitive, fair and participants. The other options Broker Dealer will be charged $0.95 reasonable, and non-discriminatory in exchanges currently apply different total (the $0.75 fee for adding liquidity that they apply equally to all BOX rates to firms facilitating their own in addition to the standard $0.20 Participants. customer order flow as opposed to transaction fee). The Exchange further proposes to 12 implement a volume discount for the orders of other market participants. The Price Improvement Period (‘‘PIP’’) fees charged to Initiating Participants. Additionally, the Exchange proposes 11 For purpose of this volume discount NBBO The volume discount will only apply to shall be determined at the time the PIP is initiated. to make transactions within the PIP 12 See Securities Exchange Act Release No. 60379 9 This will be applicable for all classes trading on (July 23, 2009), 74 FR 38244 (July 31, 2009) (SR– 8 The remainder of this proposal will refer to BOX, including transactions in the PIP in SPY, NYSEArca–2009–62). See also Securities Exchange Section 7 of the Fee Schedule in generic terms QQQQ and IWM. Act Release No. 60378 (July 23, 2009), 74 FR 38245 rather than with the current Non-Penny Pilot Class 10 The PIP Order will always be treated as the (July 31, 2009) (SR–NYSEAmex–2009–38). See also Pricing Structure moniker. remover of liquidity. Continued

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The degree of difference between the and other persons using its facilities. In All submissions should refer to File rates charged for different order types is particular, the proposed change will Number SR–BX–2009–071. This file the result of competitive forces in the allow the fees charged on BOX to number should be included on the marketplace and reflects certain remain competitive with other subject line if e-mail is used. To help the competitive differences amongst market exchanges and treats similarly situated Commission process and review your participants. Participants uniformly. comments more efficiently, please use only one method. The Commission will For example, under the current fee B. Self-Regulatory Organization’s post all comments on the Commission’s schedule of the NYSE Arca (‘‘NYSE Statement on Burden on Competition Arca’’) a firm facilitation trade is Internet Web site (http://www.sec.gov/ charged $0.0013 while manual broker The Exchange does not believe that rules/sro/shtml). Copies of the dealer executions are charged $0.25 and the proposed rule change will impose submission, all subsequent market maker non-directed orders are any burden on competition not amendments, all written statements charged $0.16. BOX believes that these necessary or appropriate in furtherance with respect to the proposed rule differences exist, in part, because of the purposes of the Act. change that are filed with the customers have historically been at a C. Self-Regulatory Organization’s Commission, and all written competitive disadvantage in the options Statement on Comments on the communications relating to the markets as compared to firms actively Proposed Rule Change Received From proposed rule change between the engaged in the market, thus firms are Members, Participants, or Others Commission and any person, other than appropriately incentivized to facilitate those that may be withheld from the The Exchange has neither solicited customer order flow.14 public in accordance with the nor received comments on the proposed The Exchange believes that making provisions of 5 U.S.C. 552, will be rule change. executions within the PIP auction available for inspection and copying in subject to Section 7 fees and credits as III. Date of Effectiveness of the the Commission’s Public Reference well as instituting the proposed volume Proposed Rule Change and Timing for Room, 100 F Street, NE., Washington, discount follows existing precedent for Commission Action DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. rate differentials and further encourages The foregoing rule change has become Copies of such filing will also be BOX Participants to provide their effective pursuant to Section available for inspection and copying at customers’ orders with the opportunity 19(b)(3)(A)(ii) of the Exchange Act 19 the principal office of the Exchange. All for price improvement, thereby assisting and Rule 19b–4(f)(2) thereunder,20 comments received will be posted customers in their attempt to transact in because it establishes or changes a due, without change; the Commission does the options markets at the best price and fee, or other charge applicable only to a not edit personal identifying lower cost. member. Finally, the Exchange proposes to At any time within 60 days of the information from submissions. You make additional changes to Section 4 filing of the proposed rule change, the should submit only information that and Section 7 of the BOX Fee Schedule Commission may summarily abrogate you wish to make available publicly. All in order to eliminate all references to the rule change if it appears to the submissions should refer to File No. outbound P and P/A Orders. Effective Commission that the action is necessary SR–BX–2009–071 and should be November 1, 2009 BOX will no longer or appropriate in the public interest, for submitted on or before December 3, be sending outbound P and P/A Orders the protection of investors, or would 2009. so references to these orders is no longer otherwise further the purposes of the For the Commission, by the Division of necessary. Act. Trading and Markets, pursuant to delegated 21 The proposed rule change shall be authority. IV. Solicitation of Comments implemented on November 2, 2009. Florence E. Harmon, Interested persons are invited to Deputy Secretary. 2. Statutory Basis submit written data, views and [FR Doc. E9–27090 Filed 11–10–09; 8:45 am] The Exchange believes that the arguments concerning the foregoing, BILLING CODE 8011–01–P proposal is consistent with the including whether the proposed rule requirements of Section 6(b) of the change is consistent with the Act. Act,15 in general, and Section 6(b)(5) of Comments may be submitted by any of DEPARTMENT OF STATE the Act,16 in particular, in that it is not the following methods: [Public Notice 6804] designed to permit unfair Electronic Comments discrimination, as well as Section 6(b) Bureau of Educational and Cultural 17 • Use the Commission’s Internet of the Act, in general, and Section Affairs (ECA) Request for Grant 6(b)(4) of the Act,18 in particular, in that comment form (http://www.sec.gov/ rules/sro.shtml); or Proposals: Study of the U.S. Institutes it provides for the equitable allocation • for Student Leaders of reasonable dues, fees, and other Send an e-mail to rule- charges among its members and issuers [email protected]. Please include File Announcement Type: New Number SR–BX–2009–071 on the Cooperative Agreements Securities Exchange Act Release No. 60477 (August subject line. Funding Opportunity Number: ECA/ 11, 2009), 74 FR 41777 (August 18, 2009) (SR–Phlx– Paper Comments A/E/USS–10–11–25 2009–67). Catalog of Federal Domestic 13 • The NYSEArca firm facilitation fee applies to Send paper comments in triplicate Assistance Number: 19.009 any transaction involving a firm proprietary trading to Elizabeth M. Murphy, Secretary, account that has a customer of that same firm on Key Dates: April, 2010 to April, 2011 the contra side of the transaction. Securities and Exchange Commission, Application Deadline: January 14, 14 See also supra note 12. 100 F Street NE., Washington, DC 2010 15 15 U.S.C. 78f(b). 20549–1090. Executive Summary: The Branch for 16 15 U.S.C. 78f(b)(5). the Study of the United States, Office of 17 15 U.S.C. 78f(b). 19 15 U.S.C. 78s(b)(3)(A)(ii). 18 15 U.S.C. 78f(b)(4). 20 17 CFR 240.19b–4(f)(2). 21 17 CFR 200.30–3(a)(12).

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Academic Exchange Programs, Bureau the program above is provided through and culture through the lens of its of Educational and Cultural Affairs, legislation. particular theme. All Institutes should invites proposal submissions for the include opportunities for leadership I.2. Purpose design and implementation of development, specifically as it relates to approximately fifteen (15) Study of the The Study of the U.S. Institutes for each field. Institutes should also expose United States Institutes for Student Student Leaders are intensive academic participants to community organizations Leaders under five different themes. programs whose purpose is to provide that provide advocacy or other services Taking place over the course of five groups of undergraduate students with a relevant to the particular theme. deeper understanding of the United weeks, the Institutes will be scheduled I.4. Institute Themes throughout a one year period, starting in States while also exposing Americans to April 2010 and ending in March 2011. the diverse cultures and traditions of the (a.) The Study of the U.S. Institute on The scheduling of each Institute should exchange participants. Global Environmental Issues should coincide with the academic calendar of The principal objective of the explore the role that environmental the participants’ home country(ies) (see Institutes is to provide a group of policy has played in the economic and specific themes, dates, and country undergraduate leaders an introduction political development of the United groups below in section I.4). to a specific field of study, while also States. The Institute should use The Institutes should take place at heightening their awareness of the experiential learning techniques to U.S. academic institutions and provide history and evolution of U.S. society, expose participants to current themes in groups of highly motivated culture, values, and institutions, broadly the field, including natural resource undergraduate students from the defined. In this context, the Institutes management, sustainable development/ countries and regions noted below with should incorporate a focus on sustainable agricultural practices, food in-depth seminars on the topics detailed contemporary American life, as it is security, ecotourism, energy generation in the following section. Each Institute shaped by historical and/or current (new and traditional forms), and water should include four weeks of academic political, social, and economic issues management and treatment. The issues residency followed by a one-week and debates. The role and influence of should be explored from numerous integrated educational travel tour that principles and values such as angles: local grassroots activism and will expose participants to a different democracy, the rule of law, individual civic initiatives, market-oriented region of the United States. The one- rights, freedom of expression, equality, approaches, and federal government week educational study tour should and diversity and tolerance should be policies and regulation. The Institute conclude with a two or three day addressed. might also examine the relationship In addition to promoting a better session in Washington, DC. between environmental security and Each Institute will host up to 20 understanding of the United States, an national security. Finally, the Institute participants, for a total of approximately important objective of the Institutes is to should explore environmental issues in 300 students. ECA plans to provide develop the participants’ leadership the context of a globalized society, and several awards for the administration of skills. In this context, the academic draw comparisons between the United the 15 Study of the U.S. Institutes and program should include group States and the participants’ home welcomes applications from accredited discussions, trainings, and exercises countries. Participants will be drawn post-secondary education institutions in that focus on topics such as leadership, from the following regions and the United States and public and private teambuilding, collective problem- countries: non-profit organizations or consortia of solving skills, effective communication, (1) Southeast Asia (possible countries organizations (see Eligibility and management skills for diverse include Burma, Thailand, Philippines, Information, section III). The awarding organizational settings. Institutes should Malaysia, Indonesia)—May and June of Cooperative Agreements for this include a community service 2010 (2) Southeast Asia (possible countries program is contingent upon the component in which the students include Cambodia, Vietnam, Laos)—July availability of FY 2010 funds. experience firsthand how not-for-profit organizations and volunteerism play a and August 2010 I. Funding Opportunity Description key role in American civil society. (3) Middle East (possible countries Local site visits and educational travel include Jordan, Israel)—July and August I.1. Authority should provide opportunities to observe 2010 Overall grant making authority for varied aspects of American life and to (b.) The Study of the U.S. Institute on this program is contained in the Mutual discuss lessons learned in the academic New Media should examine major Educational and Cultural Exchange Act program. The program should also topics in journalism, including the of 1961, Public Law 87–256, as include opportunities for participants to concept of a free press, First amended, also known as the Fulbright- meet American citizens from a variety of Amendment rights, the media’s Hays Act. The purpose of the Act is to backgrounds, to interact with their relationship to the public interest, and ‘‘enable the Government of the United American peers, and to speak to media business models. The Institute States to increase mutual understanding appropriate student and civic groups should cover all elements of journalism: between the people of the United States about their experiences and life in their Researching, writing, editing, and and the people of other countries * * *; home countries. reporting with particular emphasis on to strengthen the ties which unite us new forms of media. The program with other nations by demonstrating the I.3. Overview should underscore the impact of new educational and cultural interests, Institutes will provide an in depth technologies on journalism, and give developments, and achievements of the study of one of the themes outlined participants new skills such as working people of the United States and other below. Participants should gain both with on-line photos and videos; nations * * * and thus to assist in the theoretical knowledge and practical ‘twittering;’ publishing blogs; utilizing development of friendly, sympathetic skills that will allow them to excel in social networking and other internet and peaceful relations between the their disciplines. In addition to thematic sites; and other new technologies. United States and the other countries of teaching, all institutes should explore Participants will be drawn from the the world.’’ The funding authority for American history, government, society, following regions and countries:

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(1) South Asia (possible countries (e.) The Study of the U.S. Institute on academic director who will be present include India, Nepal, Bangladesh, Sri Women’s Leadership should examine throughout the program to ensure the Lanka)—May and June 2010 the history and participation of women continuity, coherence, and integration (2) Middle East (possible countries in public life in the United States. The of all aspects of the academic program, include Iraq, Lebanon, Syria, Israel)— Institute should focus on two major including the related educational study July and August 2010 areas: (1) Developing participants’ tour. It is important that the applicant (3) Southeast Asia (possible countries leadership skills in areas such as critical organization also retain qualified include Indonesia, Malaysia, thinking, communication, decision- ‘‘cultural ambassadors’’ or ‘‘graduate Philippines)—May and June 2010 making, and managerial abilities; and, mentors’’ (or another appropriate name) (c.) The Study of the U.S. Institute on (2) Placing these abilities in the context at each host institution who exhibit Religious Pluralism in the United States of the history and participation of cultural sensitivity, an understanding of should explore U.S. history, society, and women in U.S. politics, economics, the program’s objectives, and a institutions within the context of culture, and society. The Institute willingness to accompany the students religious pluralism and interfaith should examine the historical domestic throughout the program. progress towards women’s equality in dialogue. Topics should include, but are I.6. Participants not limited to, early religious traditions the United States, the current domestic in the U.S.; the separation of church and successes and challenges to women in a Participants will be identified and state; immigration and the introduction variety of fields, and current challenges nominated by the U.S. Embassies and of new religions in the U.S.; protection in global women’s issues. Participants Consulates and/or Fulbright and representation of minority groups will be drawn from the following Commissions with final selection made and religions; and interfaith dialogue regions and countries: by ECA. Each Institute will host up to and cooperation in a diverse and rapidly (1) South Asia (possible countries 20 participants, for a total of changing world. Participants should include Afghanistan, Pakistan, India)— approximately 300 students. Participants will be drawn from meet with U.S. community leaders of July and August 2010 among the priority country groupings different faiths that advocate for (2) Middle East (possible countries listed after each of the thematic collaboration and tolerance among include Egypt, Morocco, Saudi institutes described above. Applicants religious groups. Participants should Arabia)—July and August 2010 (3) Middle East (possible countries are welcome to indicate their preference also examine the leadership role that include Oman, Bahrain, UAE, Yemen)— for one of the country groups listed by religious officials play in their own January and February 2011 theme and if so, should indicate any societies and develop ideas for how they regional expertise. ECA will make the can work with leaders, of similar or I.5. Program Administration final decisions regarding participating different faiths, to bring about positive The Bureau is seeking detailed countries and reserves the right to adjust social change. Participants will be proposals from accredited post- the regions and countries participating drawn from the following regions and secondary U.S. institutions (community in this activity based upon Department countries: colleges, liberal arts colleges, public and priorities. (1) Afghanistan—January and private universities), consortia of Participants in the Study of the U.S. February 2011 organizations, and/or from public and Institutes for Student Leaders will be (2) Middle East (possible countries private non-profit organizations meeting highly motivated undergraduate include Egypt, Lebanon, Iraq, Saudi the eligibility requirements outlined students from colleges, universities, and Arabia)—July and August 2010 under Section III below. Consortia other institutions of higher education in (3) Indonesia—January and February applicants must designate a lead selected countries overseas who 2011 institution to receive the Cooperative demonstrate leadership through (d.) The Study of the U.S. Institute on Agreement. Organizations that opt to academic work, community Social Entrepreneurship should provide work in sub-grant arrangements should involvement, and extracurricular participants with an overview of how to clearly outline all duties and activities. Their major fields of study employ entrepreneurial skills to address responsibilities of the partner will be varied, and will include the social issues. The Institute should organization(s), ideally in the form of sciences, social sciences, humanities, review the development, history, sub-grant agreements that include education, and business. All challenges, and successes of social detailed line-item budgets. participants will have a good knowledge enterprises and community leaders, in Organizations that propose to of English and will have demonstrated the United States and globally. Topics administer multiple Institutes under interest in the Institute’s theme. may include, but are not limited to, sub-grantee agreements should Every effort will be made to select a microfinance; organizational designate a project director to oversee balanced mix of male and female development and management; grant all of the Institutes, coordinate logistical participants, and to recruit participants writing; innovation; emerging markets and administrative arrangements, who are from non-elite or and risk analysis; strategic business ensure an appropriate level of underprivileged backgrounds, from both planning; corporate social continuity between the various host rural and urban areas, and have had responsibility; and, women and institution programs, and serve as the little or no prior experience in the minorities in entrepreneurship. principal liaison between ECA and all United States or elsewhere outside of Participants will be drawn from the the host institutions and thus, be ECA’s their home country. following regions and countries: primary point of contact. (1) North Africa (possible countries Each host institution should designate I.7. Program Dates include Algeria, Tunisia, Morocco, an administrative director to oversee all The Institutes should be five weeks in Egypt)—July and August 2010 student support services, including length. The Institutes will be scheduled (2) Turkey—July and August 2010 supervision of the program participants at various times throughout the year, (3) Africa (possible countries include and budgetary, logistical, and other with the first Institutes beginning in Sierra Leone, Cote D’Ivoire, Mali, administrative arrangements. Each April 2010, and the last Institutes Senegal, Nigeria)—July and August 2010 organization also should designate an ending as late as March 2011. A

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proposed time line is indicated next to intent to renew this cooperative thematic institutes, three under each each country group listed above. agreement for two additional fiscal theme, as a result of this solicitation. years, before openly competing it again. Applicant organizations may submit I.8. Program Guidelines no more than one application under this III. Eligibility Information While the conception and structure of competition for Option A or Option B. the Institute agenda is the responsibility III.1 Eligible Applicants as outlined below. See Section III.1 of the organizers, it is essential that above, for a definition of an applicant proposals provide a detailed and Applications may be submitted by public and private non-profit organization. comprehensive narrative describing the If multiple proposals are received objectives of the Institute; the title, organizations meeting the provisions described in Internal Revenue Code from the same applicant organization, scope, and content of each session; all submissions will be declared planned site visits; and how each section 26 U.S.C. 501(c)(3). An applicant organization is defined technically ineligible and will be given session relates to the overall Institute no further consideration in the review theme. Proposals must include a by the DUNS number of the organization and by the signature of the process. All applicants are strongly syllabus that indicates the subject encouraged to read this RFGP matter for each lecture, panel authorized representative contained on the ‘‘Application for Federal Assistance thoroughly, prior to developing and discussion, group presentation, or other submitting a proposal, to ensure that activity. The syllabus also should Form’’ (SF–424) submitted under this competition. proposed activities are appropriate and confirm or provisionally identify responsive to the goals, objectives and proposed speakers, trainers, and session III.2 Cost Sharing or Matching Funds criteria outlined in the solicitations. leaders, and clearly show how assigned There is no minimum or maximum Applicants should indicate whether readings will advance the goals of each percentage required for this they are applying under Option A or session. Overall, proposals will be competition. However, the Bureau Option B, as detailed below. reviewed on the basis of their encourages applicants to provide Option A: Total available funding up responsiveness to RFGP criteria, maximum levels of cost sharing and to $240,000 (one institute) or up to coherence, clarity, and attention to funding in support of its programs. $480,000 (two institutes). Under Option detail. The accompanying Project When cost sharing is offered, it is A, applicant organizations (colleges, Objectives, Goals, and Implementation understood and agreed that the universities, or NGOs) are invited to (POGI) document provides program- applicant must provide the amount of submit one application to host no more specific guidelines that all proposals cost sharing as stipulated in its proposal than two Institutes under any of the must address fully. and later included in an approved themes listed in Section I.4. It is Please note: In a Cooperative Agreement, agreement. Cost sharing may be in the anticipated that between 1 and 5 awards the Branch for the Study of the United States form of allowable direct or indirect will be made under Option A. is substantially involved in program costs. For accountability, the recipient Option B: Total available funding up activities above and beyond routine grant institution must maintain written to $1,680,000. Under Option B, other monitoring. The Branch will assume the following responsibilities for the Institute: records to support all costs which are public and private non-profit Participate in the final selection of claimed as a contribution, as well as organizations or consortia of participants; debrief participants in costs to be paid by the Federal organizations must propose to Washington, DC at the conclusion of the government. Such records are subject to administer seven (7) Institutes in one Institute; and engage in follow-on audit. The basis for determining the application. Organizations, using sub- communication with the participants after value of cash and in-kind contributions grantee agreements, must propose to they return to their home countries. The must be in accordance with OMB administer at least one Institute under Branch may request that the recipient make Circular A–110, (Revised), Subpart each of the five (5) themes listed above, modifications to the academic residency and/ C.23—Cost Sharing and Matching. In and two additional Institutes in the or educational travel components of the program. The recipient will be required to the event the recipient institution does theme(s) of their choice. It is anticipated obtain approval of significant program not provide the minimum amount of that up to two awards may be made changes in advance of their implementation. cost sharing as stipulated in the under Option B. approved budget, ECA’s contribution All proposals should clearly indicate II. Award Information will be reduced in like proportion. the desired theme, country group, and time line from Section I.4 above, and Type of Award: Cooperative III.3 Other Eligibility Requirements Agreement. ECA’s level of involvement should demonstrate thematic expertise, (a.) Grants awarded to eligible in this program is listed under number as well as any regional expertise, if organizations with less than four years I above. applicable. ECA reserves the right to Fiscal Year Funds: FY 2010. of experience in conducting assign the final country groupings. Approximate Total Funding: international exchange programs will be ECA also reserves the right to adjust $3,600,000. limited to $60,000. ECA anticipates that the total funding amount to the Approximate Number of Awards: Up the minimum award under this applicant organizations based upon the to five. competition will be approximately quality of the proposed activity and Floor of Award Range: $240,000. $240,000. Therefore, organizations with each organization’s demonstrated Ceiling of Award Range: $1,680,000. less than four years experience in expertise. Anticipated Award Date: Pending conducting international exchanges are IV. Application and Submission availability of funds, April 1, 2010. ineligible to apply under this Information Anticipated Project Completion Date: competition. The Bureau encourages April 2011. applicants to provide maximum levels Note: Please read the complete Additional Information: Pending of cost sharing and funding in support announcement before sending inquiries or successful implementation of this of its programs. submitting proposals. Once the RFGP program and the availability of funds in (b.) Technical Eligibility: It is ECA’s deadline has passed, Bureau staff may not subsequent fiscal years, it is ECA’s intent to fund a total of fifteen (15) discuss this competition with applicants

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until the proposal review process has been appropriate box of the SF–424 which is important emphases on the security and completed. part of the formal application package. proper administration of the Exchange IV.3b. All proposals must contain an Visitor (J visa) Programs and adherence IV.1 Contact Information To Request executive summary, proposal narrative, by award recipients and sponsors to all an Application Package and budget. regulations governing the J visa. Please contact the Branch for the Please Refer to the Solicitation Therefore, proposals should Study of the United States, ECA/A/E/ Package. It contains the mandatory demonstrate the applicant’s capacity to USS; SA–5, Fourth Floor; U.S. Proposal Submission Instructions (PSI) meet all requirements governing the Department of State; Washington, DC document and the Project Objectives, administration of the Exchange Visitor 20522–0504, (202) 632–3337 to request Goals, and Implementation (POGI) Programs as set forth in 22 CFR part 62, a Solicitation Package. Please refer to document for additional formatting and including the oversight of Responsible the Funding Opportunity Number ECA/ technical requirements. Officers and Alternate Responsible A/E/USS–10–11–25 located at the top of IV.3c. You must have nonprofit status Officers, screening and selection of this announcement when making your with the IRS at the time of application. program participants, provision of pre- request. Please note: Effective January 7, 2009, arrival information and orientation to Alternatively, an electronic all applicants for ECA federal assistance participants, monitoring of participants, application package may be obtained awards must include in their proper maintenance and security of from grants.gov. Please see section IV.3f application the names of directors and/ forms, record-keeping, reporting, and for further information. or senior executives (current officers, other requirements. Administering organizations will be The Solicitation Package contains the trustees, and key employees, regardless asked to issue participants DS2019 Proposal Submission Instruction (PSI) of amount of compensation). In forms and ship them to the Public document which consists of required fulfilling this requirement, applicants Affairs Sections at posts. application forms, and standard must submit information in one of the following ways: ECA will issue participant DS 2019 guidelines for proposal preparation. forms for organizations with direct It also contains the Project Objectives, (1) Those who file Internal Revenue Service Form 990, ‘‘Return of agreements with ECA. Goals, and Implementation (POGI) A copy of the complete regulations document, which provides specific Organization Exempt From Income Tax,’’ must include a copy of relevant governing the administration of information, award criteria and budget Exchange Visitor (J) programs is instructions tailored to this competition. portions of this form. (2) Those who do not file IRS Form available at http://exchanges.state.gov Please specify Amy M. Rustan and or from: United States Department of refer to the Funding Opportunity 990 must submit information above in the format of their choice. State, Office of Exchange Coordination Number ECA/A/E/USS–10–11–25 and Designation, Office of Designation, located at the top of this announcement In addition to final program reporting requirements, award recipients will also ECA/EC/D, SA–5, Floor C2, Department on all other inquiries and of State, Washington, DC 20522–0582. correspondence. be required to submit a one-page document, derived from their program Please refer to Solicitation Package for IV.2 To Download a Solicitation reports, listing and describing their further information. Package Via Internet grant activities. For award recipients, IV.4.2 Diversity, Freedom, and The entire Solicitation Package may the names of directors and/or senior Democracy Guidelines be downloaded from the Bureau’s Web executives (current officers, trustees, Pursuant to the Bureau’s authorizing site at: http://exchanges.state.gov/ and key employees), as well as the one- legislation, programs must maintain a grants/open2.html, or from the page description of grant activities, will non-political character and should be Grants.gov Web site at: http:// be transmitted by the State Department balanced and representative of the www.grants.gov. to OMB, along with other information diversity of American political, social, Please read all information before required by the Federal Funding and cultural life. ‘‘Diversity’’ should be downloading. Accountability and Transparency Act interpreted in the broadest sense and (FFATA), and will be made available to encompass differences including, but IV.3 Content and Form of Submission the public by the Office of Management not limited to ethnicity, race, gender, Applicants must follow all and Budget on its USASpending.gov religion, geographic location, socio- instructions in the Solicitation Package. Web site as part of ECA’s FFATA economic status, and disabilities. The application should be submitted reporting requirements. Applicants are strongly encouraged to per the instructions under section IV.6 If your organization is a private adhere to the advancement of this Application Deadline and Methods of nonprofit which has not received a grant principle both in program Submission, indicated below. or cooperative agreement from ECA in administration and in program content. IV.3a. You are required to have a Dun the past three years, or if your Please refer to the review criteria under and Bradstreet Data Universal organization received nonprofit status the ‘Support for Diversity’ section for Numbering System (DUNS) number to from the IRS within the past four years, specific suggestions on incorporating apply for a grant or cooperative you must submit the necessary diversity into your proposal. Public Law agreement from the U.S. Government. documentation to verify nonprofit status 104–319 provides that ‘‘in carrying out This number is a nine-digit as directed in the PSI document. Failure programs of educational and cultural identification number, which uniquely to do so will cause your proposal to be exchange in countries whose people do identifies business entities. Obtaining a declared technically ineligible. not fully enjoy freedom and DUNS number is easy and there is no IV.4 Program Regulations democracy,’’ the Bureau ‘‘shall take charge. To obtain a DUNS number, appropriate steps to provide access http:// IV.4.1 Adherence to All Regulations opportunities for participation in such www.dunandbradstreet.com or call 1– Governing the J Visa programs to human rights and 866–705–5711. Please ensure that your The Bureau of Educational and democracy leaders of such countries.’’ DUNS number is included in the Cultural Affairs places critically Public Law 106–113 requires that the

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governments of the countries described in the RFGP (listed here in increasing IV.5.2 Allowable costs for the above do not have inappropriate order of importance): program include the following: influence in the selection process. 1. Participant satisfaction with the (1) Institute staff salary and benefits Proposals should reflect advancement of program and exchange experience. (2) Participant housing and meals these goals in their program contents, to 2. Participant learning, such as (3) Participant travel and per diem the full extent deemed feasible. increased knowledge, aptitude, skills, (4) Textbooks, educational materials, and changed understanding and and admissions fees IV.4.3 Program Monitoring and (5) Honoraria for guest speakers Evaluation attitude. Learning includes both substantive (subject-specific) learning (6) Follow-on programming for Proposals must include a plan to and mutual understanding. alumni of Study of the United States monitor and evaluate the project’s 3. Participant behavior, concrete programs. success, both as the activities unfold actions to apply knowledge in work or Please refer to the Solicitation and at the end of the program. The community; greater participation and Package for complete budget guidelines Bureau recommends that proposals responsibility in civic organizations; and formatting instructions. include a draft survey questionnaire or interpretation and explanation of IV.6 Application Deadline and Methods other technique plus a description of a experiences and new knowledge gained; of Submission methodology used to link outcomes to continued contacts between Application Deadline Date: January original project objectives. The Bureau participants, community members, and 14, 2010 expects that the recipient organization others. Reference Number: ECA/A/E/USS– will track participants or partners and 4. Institutional changes, such as 10–11–25 be able to respond to key evaluation increased collaboration and Methods of Submission: questions, including satisfaction with partnerships, policy reforms, new Applications may be submitted in one the program, learning as a result of the programming, and organizational of two ways: program, changes in behavior as a result improvements. (1) In hard-copy, via a nationally of the program, and effects of the Please note: Consideration should be given recognized overnight delivery service program on institutions (institutions in to the appropriate timing of data collection (i.e., Federal Express, UPS, Airborne which participants work or partner for each level of outcome. For example, Express, or U.S. Postal Service Express institutions). The evaluation plan satisfaction is usually captured as a short- Overnight Mail, etc.), or should include indicators that measure term outcome, whereas behavior and (2) Electronically through http:// gains in mutual understanding as well institutional changes are normally www.grants.gov. Along with the Project as substantive knowledge. considered longer-term outcomes. Title, all applicants must enter the Successful monitoring and evaluation Overall, the quality of a monitoring above Reference Number in Box 11 on depend heavily on setting clear goals and evaluation plan will be judged on the SF–424 contained in the mandatory and outcomes at the outset of a program. how well it (1) specifies intended Proposal Submission Instructions (PSI) An evaluation plan should include a outcomes; (2) gives clear descriptions of of the solicitation document. description of project’s objectives, how each outcome will be measured; (3) IV.6.1 Submitting Printed Applications anticipated project outcomes, and how identifies when particular outcomes and when outcomes will be measured will be measured; and (4) provides a Applications must be shipped no later (performance indicators). The more that clear description of the data collection than the above deadline. Delivery outcomes are ‘‘smart’’ (specific, strategies for each outcome (i.e., services used by applicants must have measurable, attainable, results-oriented, surveys, interviews, or focus groups). in-place, centralized shipping and placed in a reasonable time frame), (Please note that evaluation plans that identification and tracking systems that the easier it will be to conduct the deal only with the first level of may be accessed via the Internet and evaluation. Applicants should also outcomes [satisfaction] will be deemed delivery people who are identifiable by show how project objectives link to the less competitive under the present commonly recognized uniforms and goals of the program described in this evaluation criteria.) delivery vehicles. Proposals shipped on RFGP. Recipient organizations will be or before the above deadline but Monitoring and evaluation plans required to provide reports analyzing received at ECA more than seven days should clearly distinguish between their evaluation findings to the Bureau after the deadline will be ineligible for program outputs and outcomes. Outputs in their regular program reports. All further consideration under this are products and services delivered, data collected, including survey competition. Proposals shipped after the often stated as an amount. Output responses and contact information, must established deadlines are ineligible for information is important to show the be maintained for a minimum of three consideration under this competition. scope or size of project activities, but it years and provided to the Bureau upon ECA will not notify you upon receipt of cannot substitute for information about request. application. It is each applicant’s progress towards outcomes or the responsibility to ensure that each results achieved. Examples of outputs IV.5 Budget package is marked with a legible include the number of people trained or IV.5.1 Applicants must submit SF– tracking number and to monitor/confirm the number of seminars conducted. 424A—‘‘Budget Information—Non- delivery to ECA via the Internet. Outcomes, in contrast, represent Construction Programs’’ along with a Delivery of proposal packages may not specific results a project is intended to comprehensive budget for the entire be made via local courier service or in achieve and is usually measured as an program. There must be a summary person for this competition. Faxed extent of change. Findings on outputs budget as well as breakdowns reflecting documents will not be accepted at any and outcomes should both be reported, both administrative and program time. Only proposals submitted as but the focus should be on outcomes. budgets. Applicants may provide stated above will be considered. We encourage applicants to assess the separate sub-budgets for each program Important note: When preparing your following four levels of outcomes, as component, phase, location, or activity submission please make sure to include one they relate to the program goals set out to provide clarification. extra copy of the completed SF–424 form and

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place it in an envelope addressed to ‘‘ECA/ the Web site. ECA strongly recommends Bureau regulations and guidelines and EX/PM’’. that all potential applicants review forwarded to Bureau grant panels for The original and six (6) copies of the thoroughly the Grants.gov Web site, advisory review. Proposals may also be application should be sent to: Program well in advance of submitting a reviewed by the Office of the Legal Management Division, ECA–IIP/EX/PM, proposal through the Grants.gov system. Adviser or by other Department Ref.: ECA/A/E/USS–10–11–25, SA–5, ECA bears no responsibility for data elements. Final funding decisions are at Floor 4, Department of State, 2200 C errors resulting from transmission or the discretion of the Department of Street, NW., Washington, DC 20522– conversion processes. State’s Assistant Secretary for 0514. Direct all questions regarding Educational and Cultural Affairs. Final Applicants submitting hard-copy Grants.gov registration and submission technical authority for cooperative applications must also submit the to: Grants.gov Customer Support; agreements resides with the Bureau’s ‘‘Executive Summary’’ and ‘‘Proposal Contact Center Phone: 800–518–4726; Grants Officer. Narrative’’ sections of the proposal in Business Hours: Monday–Friday, V.2. Review Criteria text (.txt) or Microsoft Word format on 7 a.m.–9 p.m. Eastern Time; E-mail: a CD–ROM. The Bureau will provide [email protected]. Technically eligible applications will these files electronically to the Applicants have until midnight (12 be competitively reviewed according to appropriate Public Affairs Section(s) at a.m.), Washington, DC time of the the criteria stated below. These criteria the U.S. embassy(ies) for its(their) closing date to ensure that their entire are not rank ordered and all carry equal review. application has been uploaded to the weight in the proposal evaluation: Grants.gov site. There are no exceptions 1. Quality of Program Plan and Ability IV.6.2 Submitting Electronic to the above deadline. Applications to Achieve Program Objectives: Applications uploaded to the site after midnight of Proposals should exhibit originality, Applicants have the option of the application deadline date will be substance, precision, and relevance to submitting proposals electronically automatically rejected by the grants.gov the Bureau’s mission. A detailed agenda through Grants.gov (http:// system, and will be technically and relevant work plan should www.grants.gov). Complete solicitation ineligible. demonstrate substantive undertakings packages are available at Grants.gov in Please refer to the Grants.gov Web and logistical capacity. Objectives the ‘‘Find’’ portion of the system. site, for definitions of various should be reasonable, feasible, and flexible. Proposals should demonstrate Please Note: Due to Recovery Act related ‘‘application statuses’’ and the difference between a submission receipt clearly how the institution will meet the opportunities, there has been a higher than program’s objectives and plan. usual volume of grant proposals submitted and a submission validation. Applicants 2. Support for Diversity: Proposals through Grants.gov. Potential applicants are will receive a validation e-mail from should demonstrate substantive support advised that the increased volume may affect grants.gov upon the successful of the Bureau’s policy on diversity. the grants.gov proposal submission process. submission of an application. Again, Achievable and relevant features should As stated in this RFGP, ECA bears no validation of an electronic submission responsibility for applicant timeliness of be cited in both program administration via Grants.gov can take up to two submission or data errors resulting from (program venue and program business days. Therefore, we strongly transmission or conversion processes for evaluation) and program content recommend that you not wait until the proposals submitted via Grants.gov. (orientation and wrap-up sessions, application deadline to begin the Please follow the instructions program meetings, presenters, and submission process through Grants.gov. available in the ‘Get Started’ portion of resource materials). ECA will not notify you upon receipt of the site (http://www.grants.gov/ 3. Evaluation and Follow-Up: electronic applications. Proposals should include a plan to GetStarted). It is the responsibility of all Several of the steps in the Grants.gov evaluate the activity’s success, both as applicants submitting proposals via the registration process could take several the activities unfold and at the end of Grants.gov web portal to ensure that weeks. Therefore, applicants should the program. The Bureau recommends proposals have been received by check with appropriate staff within their that the proposal include a draft survey Grants.gov in their entirety, and ECA organizations immediately after questionnaire or other technique plus a bears no responsibility for data errors reviewing this RFGP to confirm or description of a methodology to use to resulting from transmission or determine their registration status with link outcomes to original project conversion processes. Grants.gov. objectives. Proposals also should Once registered, the amount of time it IV.6.3 Intergovernmental Review of discuss provisions made for follow-up can take to upload an application will Applications with returned participants as a means of vary depending on a variety of factors establishing longer-term individual and Executive Order 12372 does not apply including the size of the application and institutional linkages. to this program. the speed of your internet connection. 4. Cost-effectiveness/Cost-sharing: In addition, validation of an electronic V. Application Review Information The overhead and administrative submission via Grants.gov can take up components of the proposal, including V.1. Review Process to two business days. salaries and honoraria, should be kept Therefore, we strongly recommend The Bureau will review all proposals as low as possible. All other items that you not wait until the application for technical eligibility. Proposals will should be necessary and appropriate. deadline to begin the submission be deemed ineligible if they do not fully Proposals should maximize cost-sharing process through Grants.gov. adhere to the guidelines stated herein through other private sector support, as The Grants.gov Web site includes and in the Solicitation Package. All well as institutional direct funding extensive information on all phases/ eligible proposals will be reviewed by contributions. aspects of the Grants.gov process, the program office, as well as the Public 5. Institutional Track Record/Ability: including an extensive section on Diplomacy section overseas, where Proposals should demonstrate an frequently asked questions, located appropriate. Eligible proposals will be institutional record of successful under the ‘‘For Applicants’’ section of subject to compliance with Federal and exchange programs, including

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responsible fiscal management and full Please reference the following Web increase proposal budgets in accordance compliance with all reporting sites for additional information: with the needs of the program and the requirements for past Bureau grants as http://www.whitehouse.gov/omb/grants availability of funds. In addition, it determined by Bureau Grants Staff. The http://fa.statebuy.state.gov reserves the right to accept proposals in Bureau will consider the past whole or in part and to make an award performance of prior recipients and the VI.3. Reporting Requirements or awards in the best interest of the demonstrated potential of new You must provide ECA with a hard program. Awards made will be subject applicants. Proposed personnel and copy original plus one copy of the to periodic reporting and evaluation institutional resources should be fully following reports: requirements per section VI.3 above. (1) An interim program report no qualified to achieve the project’s goals. Dated: November 3, 2009. more than 90 days after the completion 6. Follow-on Activities: Proposals Maura M. Pally, should provide a plan for continued of the Institute; (2) A final program and financial Acting Assistant Secretary for Educational follow-on activity (without Bureau and Cultural Affairs, Department of State. support) ensuring that Bureau report no more than 90 days after the [FR Doc. E9–26913 Filed 11–10–09; 8:45 am] supported programs are not isolated expiration of the award; events. (3) A concise, one-page final program BILLING CODE 4710–05–P report summarizing program outcomes VI. Award Administration Information no more than 90 days after the VI.1. Award Notices expiration of the award. This one-page DEPARTMENT OF TRANSPORTATION report will be transmitted to OMB, and Final awards cannot be made until be made available to the public via Office of the Secretary funds have been appropriated by OMB’s USAspending.gov Web site—as [Docket No. DOT–OST–2009–0115] Congress, allocated and committed part of ECA’s Federal Funding through internal Bureau procedures. Accountability and Transparency Act Agency Information Collection Successful applicants will receive a (FFATA) reporting requirements. Activities: Request for Extension of a Federal Assistance Award (FAA) from (1.) A SF–PPR, ‘‘Performance Progress Previously Approved Information the Bureau’s Grants Office. The FAA Report’’ Cover Sheet with all program Collection and the original proposal with reports. Award recipients will be subsequent modifications (if applicable) required to provide reports analyzing AGENCY: U.S. Department of shall be the only binding authorizing their evaluation findings to the Bureau Transportation, Office of the Secretary document between the recipient and the in their regular program reports. Please (OST). U.S. Government. The FAA will be refer to IV. Application and Submission ACTION: Notice and request for OMB signed by an authorized Grants Officer Instructions (IV.3.d.3) above for Program review. and mailed to the recipient’s Monitoring and Evaluation information. SUMMARY: responsible officer identified in the All data collected, including survey The Department of application. responses and contact information, must Transportation (DOT) invites public Unsuccessful applicants will receive be maintained for a minimum of three comments about our intention to request notification of the results of the years and provided to the Bureau upon the Office of Management and Budget application review from the ECA request. (OMB) approval to renew an program office coordinating this All reports must be sent to the ECA information collection. The collection competition. Grants Officer and ECA Program Officer involves the Supplemental Discretionary Grants for a National VI.2. Administrative and National listed in the final assistance award document. Surface Transportation System. The Policy Requirements information to be collected will be used Terms and Conditions for the VII. Agency Contacts to and/or is necessary in order to receive Administration of ECA agreements For questions about this and evaluate applications for grant include the following: announcement, contact: Amy M. funds pursuant to Title XII of the Office of Management and Budget Rustan, Study of the U.S. Branch, ECA/ American Recovery and Reinvestment Circular A–122, ‘‘Cost Principles for A/E/USS, U.S. Department of State, Act of 2009 (ARRA). Title XII Nonprofit Organizations.’’ Fourth Floor, SA–5, 2200 C Street, NW., established a new program for OST to Office of Management and Budget Washington, DC 20522–0504, phone: provide Supplemental Discretionary Circular A–21, ‘‘Cost Principles for (202) 632–3337, e-mail: Grants for a National Surface Educational Institutions.’’ [email protected]. Transportation System. OST is referring OMB Circular A–87, ‘‘Cost Principles All correspondence with the Bureau to these grants as Grants for for State, Local and Indian concerning this RFGP should reference Transportation Investment Generating Governments.’’ the above title and number ECA/A/E/ Economic Recovery, or ‘‘TIGER’’ OMB Circular No. A–110 (Revised), USS–10–11–25. Discretionary Grants. The purposes of ‘‘Uniform Administrative Requirements the TIGER Discretionary Grants program for Grants and Agreements with VIII. Other Information: Notice include promoting economic recovery Institutions of Higher Education, The terms and conditions published and supporting projects that have a Hospitals, and other Nonprofit in this RFGP are binding and may not significant impact on the Nation, a Organizations.’’ be modified by any Bureau metropolitan area or a region. A 60-day OMB Circular No. A–102, ‘‘Uniform representative. Explanatory information Federal Register notice was published Administrative Requirements for provided by the Bureau that contradicts on August 21, 2009 (FR Vol. 74, No. Grants-in-Aid to State and Local published language will not be binding. 161). Since the release of the initial May Governments.’’ Issuance of the RFGP does not 18, 2009, interim Federal Register OMB Circular No. A–133, ‘‘Audits of constitute an award commitment on the notice, a total of 145 comments were States, Local Government, and Non- part of the Government. The Bureau received to the Docket (DOT–OST– profit Organizations.’’ reserves the right to reduce, revise, or 2009–0115) and reviewed by the

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Department. Many of the comments TIGER Discretionary Grants are awarded as required by the Paperwork Reduction received were letters supporting on a competitive basis to projects that Act of 1995, 44 U.S.C. 3501 et seq. applications submitted for TIGER have a significant impact on the Nation, (PRA), gives notice that the Board will Discretionary Grant funding. These a metropolitan area, or a region. seek from the Office of Management and letters of support were submitted by On May 18, 2009, the Department Budget (OMB) an extension of approval members of Congress and members of published an interim notice announcing for the two currently approved the public. In addition, comments were the availability of funding for TIGER collections described below. The Board submitted by members of the public Discretionary Grants, project selection is seeking comments regarding one or requesting changes to the program criteria, application requirements and both of these collections concerning (1) selection criteria. These comments were the deadline for submitting Whether the collection is necessary for considered and changes were made to applications, which was September 15, the proper performance of the functions the selection criteria in a June 17, 2009, 2009. On June 17, 2009, the Department of the Board, including whether the Federal Register notice (FR Vol. 74, No. published an additional notice revising collection has practical utility; (2) the 115). None of the comments submitted some elements of the interim notice (FR accuracy of the Board’s burden to the Docket since the initial May 18, Vol. 74, No. 115). A 60-day Federal estimates; (3) ways to enhance the 2009, Federal Register notice were Register notice was published on quality, utility, and clarity of the related to the proposed approval to August 21, 2009 (FR Vol. 74, No. 161). information collected; and (4) ways to renew the information collection. As the result of the notices, 145 minimize the burden of the collection of DATES: Comments should be submitted comments were received to the Docket information on the respondents, by December 14, 2009 and submitted to (DOT–OST–2009–0115). Many of the including the use of automated the attention of the DOT/OST Desk comments received were letters collection techniques or other forms of Officer, Office of Information and supporting applications submitted for information technology when Regulatory Affairs, Office of TIGER Discretionary Grant funding. appropriate. Submitted comments will Management and Budget, Docket These letters of support were submitted be addressed in a subsequent notice and Library, Room 10102, 725 17th Street, by members of Congress and members will also be submitted to OMB with the NW., Washington, DC 20503 with the of the public. In addition, comments Board’s request for OMB approval. associated OMB Approval Number were submitted by members of the Deadline: Persons wishing to 2105–0560 and Dockets (DOT–OST– public requesting changes to the comment on one or both of these 2009–0115). program selection criteria. These information collections should submit FOR FURTHER INFORMATION CONTACT: The comments were considered and changes comments by January 11, 2010. TIGER Discretionary Grants program were made to the selection criteria in ADDRESSES: Direct all comments to manager via e-mail at the June 17, 2009, Federal Register Marilyn R. Levitt, Office of the General [email protected]. notice. None of the comments received Counsel, Surface Transportation Board, Comments: Comments should be sent to the Docket were related to the 395 E Street, SW., Suite 1260, to the attention of the DOT/OST Desk proposed approval to renew the Washington, DC 20423, Officer, Office of Management and information collection. The [email protected], or by fax at (202) Budget, Office of Information and Department’s estimated burden for this 245–0460. Comments should be Regulatory Affairs, Docket Library, information collection: identified as ‘‘Paperwork Reduction Act Room 10102, 725 17th Street, NW., Expected Number of Respondents: Comments,’’ and should refer to the title Washington, DC 20503 or 500. and control number of the specific [email protected] and Frequency: One time collection. collection(s) commented upon. Estimated Average Burden per should identify the associated OMB Response: 100 hours. FOR FURTHER INFORMATION CONTACT: control number 2105–0560 and Docket Estimated Total Annual Burden: Cynthia T. Brown, (202) 245–0350. For (DOT–OST–2009–0115). 50,000. a copy of the regulations pertaining to SUPPLEMENTARY INFORMATION: the information collection(s), contact OMB Control Number: 2105–0560. Authority: The Paperwork Reduction Act Cynthia T. Brown at (202) 245–0350 or Title: Supplemental Discretionary of 1995; 44 U.S.C. Chapter 35, as amended; [email protected]. and 49 CFR 148. Grants for a National Surface Collection Number One Transportation System or TIGER Issued in Washington, DC on November 6, Discretionary Grants. 2009. Title: Maps Required in Abandonment Form Numbers: None. Patricia Lawton, Exemption Proceedings. Type of Review: Renewal of an DOT PRA Clearance Officer. OMB Control Number: 2140–0008. information collection. [FR Doc. E9–27342 Filed 11–10–09; 8:45 am] Form Number: None. Background: On February 17, 2009, BILLING CODE 4910–9X–P Type of Review: Extension without the President of the United States signed change. the Recovery Act to, among other Respondents: Railroads initiating purposes, (1) preserve and create jobs DEPARTMENT OF TRANSPORTATION abandonment exemption proceedings. and promote economic recovery, (2) Number of Respondents: 80. invest in transportation infrastructure Surface Transportation Board Estimated Time per Response: 1 hour, that will provide long-term economic based on average time reported in benefits, and (3) assist those most Notice and Request for Comments informal survey of respondents affected by the current economic AGENCY: Surface Transportation Board. conducted in 2009. downturn. The Recovery Act ACTION: Notice and request for Frequency of Response: 1. appropriated $1.5 billion of comments. Total Annual Burden Hours: 80. discretionary grant funds to be awarded Total Annual ‘‘Non-Hour Burden’’ by the Department for capital SUMMARY: The Surface Transportation Cost: None have been identified. investments in surface transportation Board (Board), as part of its continuing Needs and Uses: Under 49 CFR infrastructure. The funds provided by effort to reduce paperwork burdens, and 1152.50(d)(2) and 1152.60(b), the Board

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requires in each abandonment SUPPLEMENTARY INFORMATION: Under the distance of approximately 0.26 miles. exemption proceeding a detailed map of PRA, a Federal agency conducting or The proposed improvement would be the rail line, depicting the line’s relation sponsoring a collection of information constructed 32 feet downstream of the to other rail lines, roads, water routes, must display a currently valid OMB existing bridge within the existing 300- and population centers. The Board uses control number. A collection of feet wide right-of-way (ROW) and this information to determine the scope information, which is defined in 44 would not require additional ROW. No and the impact of the proposed U.S.C. 3502(3) and 5 CFR 1320.3(c), displacement of individuals, families, abandonment. In addition, this includes agency requirements that farms or non-profit organizations are information is posted on the Board’s persons submit reports, keep records, or anticipated. The new bridge span would Web site and serves as a form of notice provide information to the agency, third provide service to and a connection to current and/or potential shippers, parties, or the public. Under section between Brownsville, Texas and H. and to persons who might want to make 3506(c)(2)(A) of the PRA, Federal Matamoros, Tamaulipas, Mexico. an offer of financial assistance under 49 agencies are required to provide a 60- Cameron County and the City of U.S.C. 10904; acquire the line as a trail day notice and comment period through Brownsville plans to submit an under the National Trails System Act, publication in the Federal Register international bridge application for the 16 U.S.C. 1247(d); or acquire the line for concerning each proposed collection of proposed bridge to the Texas another public purpose under 49 U.S.C. information, including each proposed Transportation Commission. 10905. extension of an existing collection of The proposed bridge typical section information, before submitting the would have an overall width of 56 feet Collection Number Two collection to OMB for approval. consisting of four 12 feet wide travel Title: System Diagram Maps (or, in the Dated: November 4, 2009. lanes and a 5 feet wide security chain link fenced sidewalk for pedestrians. case of small carriers, the alternative Cynthia T. Brown, narrative description of rail system). The proposed bridge approach roadway Chief, Section of Administration, Office of would consist of four 12′ wide travel OMB Control Number: 2140–0003. Proceedings. Form Number: None. lanes, a sidewalk and shoulders with [FR Doc. E9–27149 Filed 11–10–09; 8:45 am] variable width. The bridge connection Type of Review: Extension without BILLING CODE 4915–01–P change. or the center bridge span would have an Respondents: Common carrier freight overall maximum width of 88 feet and railroads that are either new or reporting DEPARTMENT OF TRANSPORTATION would consist of two 12 feet wide travel changes in the status of one or more of lanes, a travel lane of variable width their rail lines. Federal Highway Administration with a minimum from 12 feet to a maximum of 48 feet and a 5 feet wide Number of Respondents: 3. Environmental Assessment: Cameron security chain link fenced sidewalk for Estimated Time per Response: 7.1 County, TX pedestrians. The proposed bridge on the hours, based on average time reported in U.S. side would be connected to a informal survey of respondents AGENCY: Federal Highway similar proposed bridge structure in the conducted in 2009. Administration (FHWA), DOT. Mexico side. A mid-point connection of Frequency of Response: 1. ACTION: Opportunity for public hearing the two bridges would be constructed to Total Annual Burden Hours: 21 for Environmental Assessment (EA). provide flexibility in operation, hours. maintenance, and security. Five bridge SUMMARY: FHWA is issuing this notice Total Annual ‘‘Non-Hour Burden’’ spans near the river would join the Cost: None have been identified. to advise the public that an opportunity for public hearing will be afforded. If a existing bridge to the proposed bridge. Needs and Uses: Under 49 CFR This transitional connection would request is made by interested citizens to 1152.10–1152.13, all railroads subject to allow for one bridge to be operational have a Public Hearing to discuss the the Board’s jurisdiction are required to while maintenance is undertaken on the socio-economic and environmental keep current system diagram maps on opposite bridge. This bridge connection effects of the second international file, or alternatively in the case of a section would allow traffic diversion bridge project at the Veterans Class III carrier (a carrier with assets of from one bridge to another in case of an International Bridge at Los Tomates in not more than $20 million in 1991 accident or emergency. dollars), to submit the same information Brownsville, Texas. One will be Approximately 0.406 acres of waters in narrative form. The information scheduled and adequate notices will be of the U.S. including wetlands would be sought in this collection identifies all publicized. impacted by the proposed lines in a particular railroad’s system, FOR FURTHER INFORMATION CONTACT: improvements. The proposed project is categorized to indicate the likelihood Gregory S. Punske P.E. District located within the 100-year floodplain that service on a particular line will be Engineer, Federal Highway and would permit the conveyance of the abandoned and/or whether service on a Administration, Texas Division, 300 100-year flood without causing line is currently provided under the East 8th Street, Room 826, Austin, Texas significant damage. Information about financial assistance provisions of 49 78701, Telephone (512) 536–5960. the tentative construction schedule can U.S.C. 10904. Carriers are obligated to SUPPLEMENTARY INFORMATION: The Texas be obtained from the district office. amend these maps as the need to change Department of Transportation (TxDOT) Location maps, design plans, the category of any particular line arises. in cooperation with Cameron County schematic, environmental assessment The Board uses this information to and the City of Brownsville, plan to and other available information facilitate informed decision making, and construct a second international bridge concerning the proposed project are on this information, which is available to at the Veteran’s International Bridge file and available for viewing at the the public from the carrier by request, located at Los Tomates from the General TxDOT District office (956) 702–6100 49 CFR 1152.12(c)(3), may serve as Services Administration (GSA) located at 600 W. U.S. Expressway 83 in notice to the shipping public of the Facilities in Brownsville, Cameron Pharr. Copies can be obtained by carrier’s intent to abandon or retain a County, Texas, to the International submitting a written request to the Pharr line. Demarcation line on the Rio Grande, a District office. For your convenience, it

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is advised to call beforehand to omission of information in the summary Issued in Washington, DC, on November 5, schedule an appointment to view the is intended to affect the legal status of 2009. available information. Information about any petition or its final disposition. Pamela Hamilton-Powell, the tentative construction schedule can Director, Office of Rulemaking. be obtained from the district office. DATES: Comments on petitions received Interested citizens may request a must identify the petition docket Petitions for Exemption Public Hearing to be held to discuss the number involved and must be received Docket No.: FAA–2009–0899. socio-economic and environmental on or before December 2, 2009. Petitioner: National Test Pilot School. Section of 14 CFR Affected: 14 CFR effects of the highway project by mailing ADDRESSES: You may send comments 61.3(a) and (c). a written request to the District identified by Docket Number FAA– Engineer’s Office at the P.O. Box 1717 Description of Relief Sought: National 2009–0899 using any of the following Test Pilot School (NTPS) seeks an in Pharr, Texas 78577, faxing request to methods: (956) 702–6110, or e-mailing request to exemption from 14 CFR 61.3(a) and (c) • [email protected] on or before Government-wide rulemaking Web to allow flight test training of foreign Tuesday, December 15, 2009, 5 p.m. site: Go to http://www.regulations.gov military test pilot students enrolled in In the event such a request is and follow the instructions for sending NTPS who have no civil licenses to be received, a Public Hearing will be your comments electronically. trained in aircraft requiring two licensed scheduled and adequate notices will be • Mail: Send comments to the Docket pilots. publicized regarding the date and Management Facility; U.S. Department [FR Doc. E9–27140 Filed 11–10–09; 8:45 am] location of the hearing. If a public of Transportation, 1200 New Jersey BILLING CODE 4910–13–P hearing is requested, persons who Avenue, SE., West Building Ground require special communication or Floor, Room W12–140, Washington, DC accommodation needs are encouraged to 20590. DEPARTMENT OF TRANSPORTATION contact Amy Rodriguez at (956) 702– 6100 at least five days before the • Fax: Fax comments to the Docket Federal Aviation Administration hearing. Management Facility at 202–493–2251. Comments and suggestions from all • Hand Delivery: Bring comments to Public Notice for Waiver of interested parties are invited to ensure the Docket Management Facility in Aeronautical Land-Use Assurance Jefferson County Airpark Steubenville, that the full range of issues related to Room W12–140 of the West Building OH the proposed project are identified and Ground Floor at 1200 New Jersey addressed. Comments or questions Avenue, SE., Washington, DC, between AGENCY: Federal Aviation concerning this proposed action and the 9 a.m. and 5 p.m., Monday through Administration, DOT. EA should be directed to the FHWA at Friday, except Federal holidays. the address provided above. ACTION: Notice of intent of waiver with • Docket: To read background respect to land. (Catalog of Federal Domestic Assistance documents or comments received, go to Program Number 20.205, Highway Research, SUMMARY: The Federal Aviation Planning and Construction. The regulations http://www.regulations.gov at any time Administration (FAA) is considering a implementing Executive Order 12372 or to the Docket Management Facility in proposal to change a portion of the regarding intergovernmental consultation on Room W12–140 of the West Building airport from aeronautical use to non- Federal programs and activities apply to this Ground Floor at 1200 New Jersey program.) aeronautical use and to authorize the Avenue, SE., Washington, DC, between release of 1.8473 acres of airport Issued on: November 5, 2009. 9 a.m. and 5 p.m., Monday through property for non-aeronautical Gregory S. Punske, Friday, except Federal holidays. development. The land consists of a District Engineer, Austin, Texas. SUPPLEMENTARY INFORMATION: We will portion of a 3.728 acre parcel acquired [FR Doc. E9–27152 Filed 11–10–09; 8:45 am] post all comments we receive, without under grant 3–390074–10. There are no BILLING CODE 4910–22–P change, to http://www.regulations.gov, impacts to the airport by allowing the including any personal information you Jefferson County to lease the property. The land is not needed for aeronautical provide. Using the search function of DEPARTMENT OF TRANSPORTATION use. Approval does not constitute a our docket Web site, anyone can find commitment by the FAA to financially Federal Aviation Administration and read the comments received into assist in the lease of the subject airport [Summary Notice No. PE–2009–54] any of our dockets, including the name property nor a determination of of the individual sending the comment eligibility for grant-in-aid funding from Petitions for Exemption; Summary of (or signing the comment for an the FAA. The disposition of proceeds Petitions Received association, business, labor union, etc.). from the lease of the airport property You may review DOT’s complete AGENCY: Federal Aviation will be in accordance with FAA’s Policy Privacy Act Statement in the Federal Administration (FAA), DOT. and Procedures Concerning the Use of Register published on April 11, 2000 Airport Revenue, published in the ACTION: Notice of petitions for (65 FR 19477–78). Federal Register on February 16, 1999. exemption received. In accordance with section 47107(h) FOR FURTHER INFORMATION CONTACT: of title 49, United States Code, this SUMMARY: This notice contains a Anna Bruse, (202) 267–9655, or Tyneka notice is required to be published in the summary of certain petitions seeking Thomas (202) 267–7626, Office of relief from specified requirements of 14 Federal Register 30 days before Rulemaking, Federal Aviation modifying the land-use assurance that CFR. The purpose of this notice is to Administration, 800 Independence improve the public’s awareness of, and requires the property to be used for an Avenue, SW., Washington, DC 20591. participation in, this aspect of FAA’s aeronautical purpose. regulatory activities. Neither publication This notice is published pursuant to DATES: Comments must be received on of this notice nor the inclusion or 14 CFR 11.85. or before December 14, 2009.

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ADDRESSES: Written comments on the Basis of bearings is the record direction of Abstract: This regulation concerns the Sponsor’s request must be delivered or the northerly right-of-way line of Airpark election made by a related group of mailed to: Alex Erskine, Program Drive, being the next to last line above- controlled foreign corporations to described. Manager, Detroit Airports District determine foreign base company Office, 11677 South Wayne Road, Suite Issued in Romulus, Michigan on October 1, shipping income and qualified 107, Romulus, MI 48174. 2009. investments in foreign base company Matthew J. Thys, FOR FURTHER INFORMATION CONTACT: Alex shipping operations on a related group Erskine, Program Manager, Federal Manager, Detroit Airports District Office, basis. The information required is Aviation Administration, Great Lakes FAA, Great Lakes Region. necessary to assure that the U.S. Region, Detroit Airports District Office, [FR Doc. E9–26938 Filed 11–10–09; 8:45 am] shareholder correctly reports any DET ADO–614, 11677 South Wayne BILLING CODE M shipping income of its controlled Road, Suite 107, Romulus, Michigan foreign corporations which is taxable to 48174. Telephone Number (734–229– the shareholder. 2927)/FAX Number (734–229–2950). DEPARTMENT OF THE TREASURY Current Actions: There is no change to Documents reflecting this FZAA action this existing regulation. may be reviewed at this same location Internal Revenue Service or at Jefferson County Airpark, Type of Review: Extension of a [LR–58–83] Steubenville, Ohio. currently approved collection. SUPPLEMENTARY INFORMATION: Proposed Collection; Comment Affected Public: Business or other for- Request for Regulation Project profit organizations. Parcel Legal Description Estimated Number of Respondents: AGENCY: Internal Revenue Service (IRS), Property located in the northeast and 100. northwest quarters of Section 23, Treasury. ACTION: Notice and request for Estimated Time per Respondent: 2 Township 6, Range 2, Cross Creek hours, 3 minutes. Township, Jefferson County, Ohio, and comments. being part of the Board of County Estimated Total Annual Burden SUMMARY: The Department of the Commissioners of Jefferson County, Hours: 205 Treasury, as part of its continuing effort Ohio tract of 3.727650 acres, Official to reduce paperwork and respondent The following paragraph applies to all Record Volume 612, Page 400, Tax Map burden, invites the general public and the collections of information covered Parcel #1–F (hereinafter referred to as other Federal agencies to take this by this notice: Board tract) of the Jefferson County opportunity to comment on proposed An agency may not conduct or Recorder’s Office, and known to the and/or continuing information sponsor, and a person is not required to Federal Aviation Administration as a collections, as required by the respond to, a collection of information combination of parts of Parcel No. 16 Paperwork Reduction Act of 1995, unless the collection of information and Parcel No. 19 as shown on the Public Law 104–13 (44 U.S.C. Property Plan of FAA Site No. l8562.A, displays a valid OMB control number. 3506(c)(2)(A)). Jefferson County Airpark, Steubenville, Books or records relating to a collection Currently, the IRS is soliciting Ohio, said parcel combination of information must be retained as long comments concerning an existing final hereinafter to be known to the FAA as as their contents may become material regulation, LR–58–83 (T.D. 7959), Parcel No. 19–B, and being more fully in the administration of any internal Related Group Election With Respect to described as follows: revenue law. Generally, tax returns and Qualified Investments in Foreign Base tax return information are confidential, Beginning at a point on the curved Company Shipping Operations as required by 26 U.S.C. 6103. northerly 100-foot right-of-way of Airpark (§§ 1.955A–2, and 1.955A–3). Drive where the right of way crosses the Request for Comments: Comments centerline of a vacated portion of old County DATES: Written comments should be submitted in response to this notice will Road #33 and on a northwesterly line of the received on or before January 11, 2010 be summarized and/or included in the aforementioned Board tract; to be assured of consideration. request for OMB approval. All Thence with lines of the Board tract the ADDRESSES: Direct all written comments comments will become a matter of following three courses and distances: ° ′ ″ to Glenn Kirkland, Internal Revenue public record. Comments are invited on: N61 40 14 E, 232.32 feet to a point near the Service, Room 6242, 1111 Constitution centerline of the old road; (a) Whether the collection of Thence N 62°20′16″ E, 216.00 feet to a Avenue, NW., Washington, DC 20224. information is necessary for the proper point in the east bound lane of the old road; FOR FURTHER INFORMATION CONTACT: performance of the functions of the Thence leaving the road, S 0°54′16″ W, Requests for additional information or agency, including whether the 451.07 feet to a point on the northerly right- copies of the regulations should be information shall have practical utility; of-way of Airpark Drive; directed to R. Joseph Durbala at Internal (b) the accuracy of the agency’s estimate Thence along the right of way and through Revenue Service, Room 6129, 1111 of the burden of the collection of the Board tract the following two courses and Constitution Avenue, NW., Washington, distances; information; (c) ways to enhance the N 52°16′55″ W, 292.77 feet to a point of DC 20224, or at (202) 622–3634, or quality, utility, and clarity of the curve; through the internet at information to be collected; (d) ways to Thence along a curve to the left, radius [email protected]. minimize the burden of the collection of ° ′ ″ 299.11 feet and central angle 32 45 09 , an SUPPLEMENTARY INFORMATION: information on respondents, including arc length of 170.98 feet, and chord of N ° ′ ″ Title: Related Group Election With through the use of automated collection 68 39 29 W, 168.66 feet to the place of techniques or other forms of information beginning containing 1.8473 acres, leaving Respect to Qualified Investments in 1.88035 acres remaining in the Board tract. Foreign Base Company Shipping technology; and (e) estimates of capital Also leaving 2.0235 acres in Airpark Parcel Operations. or start-up costs and costs of operation, No. 16, and 0.0008 acre in Airpark Parcel No. OMB Number: 1545–0755. Regulation maintenance, and purchase of services 19. Project Number: LR–58–83. to provide information.

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Approved: November 5, 2009. of section 1,901–2A by filing a DEPARTMENT OF THE TREASURY R. Joseph Durbala, statement with the IRS. Internal Revenue Service IRS Supervisory Tax Analyst. Current Actions: There is no change to [FR Doc. E9–27205 Filed 11–10–09; 8:45 am] this existing regulation. Proposed Collection; Comment BILLING CODE 4830–01–P Type of Review: Extension of a Request for Form 3520 currently approved collection. AGENCY: Internal Revenue Service (IRS), DEPARTMENT OF THE TREASURY Affected Public: Individuals or Treasury. households, and business or other for- Internal Revenue Service ACTION: Notice and request for profit organizations. comments. [LR–100–78] Estimated Number of Respondents: 110. SUMMARY: The Department of the Proposed Collection; Comment Treasury, as part of its continuing effort Request for Regulation Project Estimated Time per Respondent: 20 to reduce paperwork and respondent minutes, burden, invites the general public and AGENCY: Internal Revenue Service (IRS), Estimated Total Annual Burden other Federal agencies to take this Treasury. Hours: 37. opportunity to comment on proposed ACTION: Notice and request for and/or continuing information comments. The following paragraph applies to all of the collections of information covered collections, as required by the SUMMARY: The Department of the by this notice: Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. Treasury, as part of its continuing effort An agency may not conduct or to reduce paperwork and respondent 3506(c)(2)(A)). Currently, the IRS is sponsor, and a person is not required to burden, invites the general public and soliciting comments concerning Form respond to, a collection of information other Federal agencies to take this 3520, Annual Return To Report unless the collection of information opportunity to comment on proposed Transactions With Foreign Trusts and and/or continuing information displays a valid OMB control number. Receipts of Certain Foreign Gifts. collections, as required by the Books or records relating to a collection DATES: Written comments should be Paperwork Reduction Act of 1995, of information must be retained as long received on or before January 11, 2010 Public Law 104–13 (44 U.S.C. as their contents may become material to be assured of consideration. 3506(c)(2)(A)). Currently, the IRS is in the administration of any internal ADDRESSES: Direct all written comments soliciting comments concerning an revenue law. Generally, tax returns and to Glenn P. Kirkland, Internal Revenue existing final regulation, LR–100–78 tax return information are confidential, Service, Room 6129, 1111 Constitution (T.D. 7918), Creditability of Foreign as required by 26 U.S.C. 6103. Avenue, NW., Washington, DC 20224. Taxes (§§ 1.901–2 and 1.901–2A). Request for Comments: Comments FOR FURTHER INFORMATION CONTACT: DATES: Written comments should be submitted in response to this notice will Requests for additional information or received on or before January 11, 2010 be summarized and/or included in the copies of the form and instructions to be assured of consideration. request for OMB approval. All should be directed to R. Joseph Durbala, ADDRESSES: Direct all written comments comments will become a matter of (202) 622–3634, at Internal Revenue to Glenn Kirkland, Internal Revenue public record. Comments are invited on: Service, Room 6129, 1111 Constitution Service, Room 6242, 1111 Constitution (a) Whether the collection of Avenue, NW., Washington, DC 20224, Avenue, NW., Washington, DC 20224. information is necessary for the proper or through the internet at FOR FURTHER INFORMATION CONTACT: performance of the functions of the [email protected]. Requests for additional information or agency, including whether the SUPPLEMENTARY INFORMATION: copies of the information collection information shall have practical utility; Title: Annual Return To Report should be directed to R. Joseph Durbala, (b) the accuracy of the agency’s estimate Transactions With Foreign Trusts and at (202) 622–3634, or at Internal of the burden of the collection of Receipts of Certain Foreign Gifts. Revenue Service, Room 6516, 1111 information; (c) ways to enhance the OMB Number: 1545–0159. Constitution Avenue, NW., Washington, quality, utility, and clarity of the Form Number: Form 3520. DC 20224, or through the Internet, at information to be collected; (d) ways to Abstract: U.S. persons who create a [email protected]. minimize the burden of the collection of foreign trust or transfer property to a SUPPLEMENTARY INFORMATION: information on respondents, including foreign trust must file Form 3520 to Title: Creditability of Foreign Taxes. through the use of automated collection report the establishment of the trust or OMB Number: 1545–0746. techniques or other forms of information the transfer of property to the trust. Regulation Project Number: LR–100– technology; and (e) estimates of capital Form 3520 must also be filed by U.S. 78. or start-up costs and costs of operation, persons who are treated as owners of Abstract: Section 1.901–2A of the maintenance, and purchase of services any part of the assets of a trust under regulation contains special rules that to provide information. subpart E of Part I or subchapter J of apply to taxpayers engaging in business Chapter 1; who received a distribution transactions with a foreign government Approved: November 5, 2009. from a foreign trust; or who received that is also taxing them. In general, such R. Joseph Durbala, large gifts during the tax year from a taxpayers must establish what portion of IRS Supervisory Tax Analyst. foreign person. a payment made pursuant to a foreign [FR Doc. E9–27206 Filed 11–10–09; 8:45 am] Current Actions: There is no change levy is actually tax and not in the paperwork burden previously BILLING CODE 4830–01–P compensation for a economic benefit approved by OMB. This form is being received from the foreign government. submitted for renewal purposes only. One way a taxpayer can do this is by Type of Review: Extension of a electing to apply the safe harbor formula currently approved collection.

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Affected Public: Businesses and other (‘‘OFAC’’) is removing the name of two the Secretary of the Treasury on January for-profit organizations. entities and one individual from the list 22, 2003. The Department of the Estimated Number of Respondents: of Specially Designated Nationals and Treasury’s Office of Foreign Assets 1,320. Blocked Persons whose property and Control has determined that the two Estimated Time per Respondent: 54 interests in property have been blocked entities and one individual should be hours 35 minutes. pursuant to Executive Order 13224 of removed from the list of Specially Estimated Total Annual Burden September 23, 2001, Blocking Property Designated Nationals and Blocked Hours: 72,059. and Prohibiting Transactions With Persons. The following paragraph applies to all Persons Who Commit, Threaten To The following entities and individual of the collections of information covered Commit, or Support Terrorism. The are removed from the list of Specially by this notice: entities: BARAKAAT INTERNATIONAL Designated Nationals and Blocked An agency may not conduct or and BARAKAAT INTERNATIONAL Persons: sponsor, and a person is not required to FOUNDATION, were designated 1. BARAKAAT INTERNATIONAL, respond to, a collection of information pursuant to Executive Order 13224 on Hallbybacken 15, Spanga 70, unless the collection of information November 7, 2001 and the individual: Sweden [SDGT] displays a valid OMB control number. PATRICIA VINCK, was designated 2. BARAKAAT INTERNATIONAL Books or records relating to a collection pursuant to Executive Order 13224 on FOUNDATION, Rinkebytorget 1, of information must be retained as long January 22, 2003. Spanga 04, Sweden; P.O. Box 4036, as their contents may become material DATES: The removal from the list of Spanga, Sweden [SDGT] in the administration of any internal Specially Designated Nationals and 3. VINCK, Patricia (a.k.a. VINCK, revenue law. Generally, tax returns and Blocked Persons of the two entities and Souraya P.), 69 Rue des Bataves, tax return information are confidential, one individual whose property and 1040 Etterbeek, Brussels, Belgium; as required by 26 U.S.C. 6103. interests in property have been blocked Vaatjesstraat, 29, Putte 2580, Request for Comments: Comments pursuant to Executive Order 13224 is Belgium; DOB 04 Jan 1965; POB submitted in response to this notice will effective as of November 3, 2009. Antwerp, Belgium (individual) be summarized and/or included in the [SDGT] request for OMB approval. All FOR FURTHER INFORMATION CONTACT: comments will become a matter of Assistant Director, Compliance The removal of the two entities’ and public record. Outreach & Implementation, Office of individual’s names from the list of Comments are invited on: (a) Whether Foreign Assets Control, Department of Specially Designated Nationals and the collection of information is the Treasury, Washington, DC 20220, Blocked Persons is effective as of necessary for the proper performance of tel.: 202/622–2490. November 3, 2009. All property and the functions of the agency, including SUPPLEMENTARY INFORMATION: interests in property of the two entities whether the information shall have Electronic and Facsimile Availability and one individual that are in or practical utility; (b) the accuracy of the hereafter come within the United States agency’s estimate of the burden of the This document and additional or the possession or control of United collection of information; (c) ways to information concerning OFAC are States persons are now unblocked. enhance the quality, utility, and clarity available from OFAC’s Web site (http://www.treas.gov/ofac) or via Dated: November 3, 2009. of the information to be collected; (d) Adam J. Szubin, ways to minimize the burden of the facsimile through a 24-hour fax-on- demand service, tel.: 202/622–0077. Acting Director, Office of Foreign Assets collection of information on Control. respondents, including through the use Background [FR Doc. E9–27137 Filed 11–10–09; 8:45 am] of automated collection techniques or other forms of information technology; On September 23, 2001, the President BILLING CODE P and (e) estimates of capital or start-up issued Executive Order 13224 (the costs and costs of operation, ‘‘Order’’) pursuant to the International maintenance, and purchase of services Emergency Economic Powers Act, 50 DEPARTMENT OF VETERANS to provide information. U.S.C. 1701–1706, and the United AFFAIRS Nations Participation Act of 1945, 22 Approved: November 5, 2009. U.S.C. 287c, imposing economic [OMB Control No. 2900–0571] R. Joseph Durbala, sanctions on persons who commit, Proposed Information Collection (NCA IRS Supervisory Tax Analyst. threaten to commit, or support acts of Customer Satisfaction Surveys [FR Doc. E9–27210 Filed 11–10–09; 8:45 am] terrorism. The President identified in (Headstone/Marker) Activity): BILLING CODE 4830–01–P the Annex to the Order various Comment Request individuals and entities as subject to the economic sanctions. The Order AGENCY: National Cemetery DEPARTMENT OF THE TREASURY authorizes the Secretary of the Treasury, Administration, Department of Veterans in consultation with the Secretary of Affairs. Office of Foreign Assets Control State, the Attorney General, and ACTION: Notice. (pursuant to Executive Order 13284) the Unblocking of Specially Designated Secretary of the Department of SUMMARY: The National Cemetery Nationals and Blocked Persons Homeland Security, to designate Administration (NCA), Department of Pursuant to Executive Order 13224 additional individuals or entities Veterans Affairs (VA) is announcing an AGENCY: Office of Foreign Assets determined to meet certain criteria set opportunity for public comment on the Control, Treasury. forth in Executive Order 13224. proposed collection of certain ACTION: Notice. Two such additional entities were information by the agency. Under the designated by the Secretary of the Paperwork Reduction Act (PRA) of SUMMARY: The Treasury Department’s Treasury on November 7, 2001 and one 1995, Federal agencies are required to Office of Foreign Assets Control additional individual was designated by publish notice in the Federal Register

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concerning each proposed collection of level of satisfaction with existing ACTION: Notice. information, including each proposed service. VA will use the data collected extension of a currently approved to maintain ongoing measures of SUMMARY: The Veterans Benefits collection, and allow 60 days for public performance and to determine how well Administration (VBA), Department of comment in response to the notice. This customer service standards are met. Veterans Affairs (VA), is announcing an notice solicits comments on the burden Affected Public: Individuals or opportunity for public comment on the estimates relating to customer households. proposed collection of certain satisfaction surveys involving the Estimated Annual Burden Hours, information by the agency. Under the National Cemetery Administration Burden per Respondents, and Number Paperwork Reduction Act (PRA) of (NCA). of Respondents: 1995, Federal agencies are required to publish notice in the Federal Register DATES: Written comments and I. National Cemetery Administration concerning each proposed collection of recommendations on the proposed Focus Groups With: information, including each proposed collection of information should be a. Next of Kin (5 groups/10 extension of a currently approved received on or before January 11, 2010. participants per group/3 hours each collection and allow 60 days for public ADDRESSES: Submit written comments session) = 150 hours. comment in response to the notice. This on the collection of information through b. Funeral Directors (5 groups/10 notice solicits comments on information the Federal Docket Management System participants per group/3 hours each needed to determine whether an eligible (FDMS) at http://www.Regulations.gov; session) = 150 hours. person who is enrolled in a program at or to Ronald Cheich, National Cemetery c. Veterans Service Organizations (5 one school is entitled to receive Administration (41B3), Department of groups/10 participants per group/3 education benefits for enrollment at a Veterans Affairs, 810 Vermont Avenue, hours each session) = 150 hours. secondary school. NW., Washington, DC 20420 or e-mail DATES: Written comments and [email protected]. Please refer to II. National Cemetery Administration recommendations on the proposed ‘‘OMB Control No. 2900–0571’’ in any Visitor Comments Cards (Local Use): collection of information should be correspondence. During the comment (2,500 respondents/5 minutes per received on or before January 11, 2010. period, comments may be viewed online card) = 208 hours. ADDRESSES: at FDMS. Submit written comments III. National Cemetery Administration on the collection of information through FOR FURTHER INFORMATION CONTACT: Mail Surveys With: Federal Docket Management System Ronald Cheich at (202) 461–6686 or (FDMS) at http://www.Regulations.gov; FAX (202) 501–2240. a. Next of Kin National Customer Satisfaction Survey (Mail to 15,000 or to Nancy J. Kessinger, Veterans SUPPLEMENTARY INFORMATION: Under the respondents/30 minutes per survey) = Benefits Administration (20M35), PRA of 1995 (Pub. L. 104–13; 44 U.S.C. Department of Veterans Affairs, 810 3501–3521), Federal agencies must 7,500 hours b. Funeral Directors National Vermont Avenue, NW., Washington, DC obtain approval from the Office of Customer Satisfaction Survey (Mail to 20420; or e-mail: Management and Budget (OMB) for each 4,000 respondents/30 minutes per [email protected]. Please refer to collection of information they conduct survey) = 2,000 hours. ‘‘OMB Control No. 2900–0118’’ in any or sponsor. This request for comment is c. Veterans-At-Large National correspondence. During the comment being made pursuant to Section Customer Satisfaction Survey (Mail to period, comments may be viewed online 3506(c)(2)(A) of the PRA. 5,000 respondents/30 minutes per through FDMS. With respect to the following survey) = 2,500 hours. FOR FURTHER INFORMATION CONTACT: collection of information, VA invites comments on: (1) Whether the proposed IV. Program/Specialized Service Nancy J. Kessinger at (202) 461–9769 or collection of information is necessary Survey: FAX (202) 275–5947. SUPPLEMENTARY INFORMATION: Under the for the proper performance of VA’s National Cemetery Administration functions, including whether the PRA of 1995 (Pub. L. 104–13; 44 U.S.C. Headstone and Marker/PMC Survey 3501–3521), Federal agencies must information will have practical utility; (Mail 6,000 surveys/15 minutes per (2) the accuracy of VA’s estimate of the obtain approval from the Office of each) = 1,000. Management and Budget (OMB) for each burden of the proposed collection of Frequency of Response: Annually. information; (3) ways to enhance the collection of information they conduct quality, utility, and clarity of the Dated: November 9, 2009. or sponsor. This request for comment is information to be collected; and (4) By direction of the Secretary: being made pursuant to Section ways to minimize the burden of the Denise McLamb, 3506(c)(2)(A) of the PRA. collection of information on Program Analyst, Enterprise Records Service. With respect to the following respondents, including through the use [FR Doc. E9–27278 Filed 11–10–09; 8:45 am] collection of information, VBA invites comments on: (1) Whether the proposed of automated collection techniques or BILLING CODE P the use of other forms of information collection of information is necessary technology. for the proper performance of VBA’s Title: Generic Clearance for NCA, and DEPARTMENT OF VETERANS functions, including whether the IG Customer Satisfaction Surveys. AFFAIRS information will have practical utility; OMB Control Number: 2900–0571. (2) the accuracy of VBA’s estimate of the Type of Review: Extension of a [OMB Control No. 2900–0118] burden of the proposed collection of currently approved collection. Proposed Information Collection information; (3) ways to enhance the Abstract: Executive Order 12862, (Transfer of Scholastic Credit quality, utility, and clarity of the Setting Customer Service Standards, (Schools)) Activity: Comment Request information to be collected; and (4) requires Federal agencies and ways to minimize the burden of the Departments to identify and survey its AGENCY: Veterans Benefits collection of information on customers to determine the kind and Administration, Department of Veterans respondents, including through the use quality of services they want and their Affairs. of automated collection techniques or

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the use of other forms of information ACTION: Notice. (2) the accuracy of VBA’s estimate of the technology. burden of the proposed collection of SUMMARY: Title: Transfer of Scholastic Credit The Veterans Benefits information; (3) ways to enhance the Administration (VBA), Department of (Schools), VA Form Letter 22–315. quality, utility, and clarity of the Veterans Affairs (VA) is announcing an OMB Control Number: 2900–0118. information to be collected; and (4) Type of Review: Extension of a opportunity for public comment on the ways to minimize the burden of the currently approved collection. proposed collection of information by Abstract: Students receiving VA the agency. Under the Paperwork collection of information on education benefits and are enrolled in Reduction Act (PRA) of 1995, Federal respondents, including through the use two training institutions, must have the agencies are required to publish notice of automated collection techniques or primary institution at which he or she in the Federal Register concerning each the use of other forms of information is pursuing approved program of proposed collection of information, technology. education verify that their courses including each proposed extension of a Title: Monthly Record of Training and pursued at a secondary school will be currently approved collection, and Wages, VA Form 28–1905c. accepted as full credit towards their allow 60 days for public comment in OMB Control Number: 2900–0176. course objective. VA sends VA Form response to the notice. This notice Letter 22–315 to the student requesting solicits comments on the information Type of Review: Extension of a that they have the certifying official of needed to monitor claimants’ training currently approved collection. his or her primary institution list the progress towards their rehabilitation Abstract: On-job trainers use VA Form course or courses pursued at the goals. 28–1905c to maintain accurate records secondary school for which the primary DATES: Written comments and on a trainee’s progress toward their institution will give full credit. recommendations on the proposed rehabilitation goals as well as recording Educational payment for courses collection of information should be the trainee’s on-job training monthly pursued at a secondary school is not received on or before January 11, 2010. wages. Trainers report these wages on payable until VA receives evidence from ADDRESSES: the form at the beginning of the program the primary institution verifying that the Submit written comments student is pursuing his or her approved on the collection of information through and at any time the trainee’s wage rate program while enrolled in these the Federal Docket Management System changes. Following a trainee’s courses. VA Form Letter 22–315 serves (FDMS) at http://www.Regulations.gov; completion of a vocational as this certification of acceptance. or to Nancy J. Kessinger, Veterans rehabilitation program, the form is Affected Public: State, Local or Tribal Benefits Administration (20M35), submitted to the trainee’s case manager Government. Department of Veterans Affairs, 810 to monitor the trainee’s training and to Estimated Annual Burden: 1,436 Vermont Avenue, NW., Washington, DC ensure that the trainee is progressing hours. 20420; or e-mail and learning the skills necessary to Estimated Average Burden per [email protected]. Please refer to carry out the duties of his or her Respondent: 10 minutes. ‘‘OMB Control No. 2900–0176’’ in any occupational goal. Frequency of Response: Occasion. correspondence. During the comment Estimated Number of Respondents: period, comments may be viewed online Affected Public: Individuals or 8,616. at FDMS. Households. Dated: November 5, 2009. FOR FURTHER INFORMATION CONTACT: Estimated Annual Burden: 3,600 By direction of the Secretary. Nancy J. Kessinger at (202) 461–9769 or hours. Denise McLamb, FAX (202) 275–5947. Estimated Average Burden per Program Analyst, Enterprise Records Service. SUPPLEMENTARY INFORMATION: Under the Respondent: 15 minutes. PRA of 1995 (Pub. L. 104–13; 44 U.S.C. [FR Doc. E9–27072 Filed 11–10–09; 8:45 am] Frequency of Response: On occasion. BILLING CODE 8320–01–P 3501–3521), Federal agencies must obtain approval from the Office of Estimated Number of Respondents: Management and Budget (OMB) for each 14,400. DEPARTMENT OF VETERANS collection of information they conduct Dated: November 5, 2009. AFFAIRS or sponsor. This request for comment is By direction of the Secretary. being made pursuant to Section [OMB Control No. 2900–0176] 3506(c)(2)(A) of the PRA. Denise McLamb, Program Analyst, Enterprise Records Service. Proposed Information Collection With respect to the following [FR Doc. E9–27073 Filed 11–10–09; 8:45 am] (Monthly Record of Training and collection of information, VBA invites Wages) Activity: Comment Request comments on: (1) Whether the proposed BILLING CODE 8320–01–P collection of information is necessary AGENCY: Veterans Benefits for the proper performance of VBA’s Administration, Department of Veterans functions, including whether the Affairs. information will have practical utility;

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Part II

Election Assistance Commission Publication of State Plan Pursuant to the Help America Vote Act; Notice

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ELECTION ASSISTANCE COMMISSION American Samoa, Guam, Puerto Rico, comment in accordance with HAVA and the U.S. Virgin Islands. 69 FR sections 254(a)(11), 255, and 256. Publication of State Plan Pursuant to 14002. HAVA anticipated that States, Upon the expiration of thirty days the Help America Vote Act Territories and the District of Columbia from November 12, 2009, the State is would change or update their plans AGENCY: U.S. Election Assistance eligible to implement the changes from time to time pursuant to HAVA Commission (EAC). addressed in the plan that is published section 254(a)(11) through (13). HAVA herein, in accordance with HAVA ACTION: Notice. sections 254(a)(11)(A) and 255 require section 254(a)(11)(C). EAC wishes to EAC to publish such updates. This is SUMMARY: Pursuant to sections acknowledge the effort that went into 254(a)(11)(A) and 255(b) of the Help the second revision to New Jersey’s revising this State plan and encourages America Vote Act (HAVA), Public Law State plan and the first revision to further public comment, in writing, to 107–252, the U.S. Election Assistance Wisconsin’s State plan. the State election official listed below. The revised State plan from New Commission (EAC) hereby causes to be Jersey provides information on program Chief State Election Official published in the Federal Register accomplishments and changes in the changes to the HAVA State plans The Honorable Nina Mitchell Wells, respective budgets to account for the use previously submitted by New Jersey and Esq., Secretary of State, P.O. Box 304, of Fiscal Year 2008 and 2009 Wisconsin. Trenton, New Jersey 08625, Phone: requirements payments in addition to (609) 292–3760, Fax: (609) 777–1280. DATES: This notice is effective upon any future HAVA funding. The revised publication in the Federal Register. Mr. Kevin J. Kennedy, Director and State plan from Wisconsin provides a General Counsel, Government FOR FURTHER INFORMATION CONTACT: total revision to its previous State plan Accountability Board, Post Office Box Bryan Whitener, Telephone 202–566– including information on program 2973, 212 East Washington Avenue, 3100 or 1–866–747–1471 (toll-free). accomplishments and changes in the 3rd Floor, Madison, Wisconsin 53701, Submit Comments: Any comments respective budgets to account for the use regarding the plans published herewith Phone: (608) 266–8005, Fax: (608) of Fiscal Year 2008 and 2009 267–0500. should be made in writing to the chief requirements payments. In accordance Thank you for your interest in election official of the individual State with HAVA section 254(a)(12), all the improving the voting process in at the address listed below. State plans submitted for publication America. SUPPLEMENTARY INFORMATION: On March provide information on how the 24, 2004, the U.S. Election Assistance respective State succeeded in carrying Dated: October 27, 2009. Commission published in the Federal out its previous State plan. New Jersey Thomas R. Wilkey, Register the original HAVA State plans and Wisconsin confirm that these Executive Director, U.S. Election Assistance filed by the fifty States, the District of revisions to their respective State plans Commission. Columbia and the Territories of were developed and submitted to public BILLING CODE 6820–KF–P

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[FR Doc. E9–26736 Filed 11–10–09; 8:45 am] BILLING CODE 6820–KF–C

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Part III

Department of Education 34 CFR Chapter II State Fiscal Stabilization Fund Program; Final Rule

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DEPARTMENT OF EDUCATION Achieving equity in teacher or other information that the State will distribution, (b) improving collection confirm and publicly report. 34 CFR Subtitle B, Chapter II and use of data, (c) standards and The Department recognizes that [Docket ID ED–2009–OESE–0007] assessments, and (d) supporting requests for data and information struggling schools. For each area of should reflect an integrated and RIN 1810–AB04 reform, the ARRA prescribes specific coordinated approach among the actions that the State must assure that various programs supported with ARRA State Fiscal Stabilization Fund it will implement. In addition, section funds, particularly the SFSF, Race to the Program 14005(a) of the ARRA requires a State Top, School Improvement Grants (SIG), Catalog of Federal Domestic Assistance that seeks funds under the Stabilization and Statewide Longitudinal Data (CFDA) Numbers: 84.394 (Education program to submit an application to the Systems Grant programs. Accordingly, Stabilization Fund) and 84.397 Department containing such the Department has evaluated the (Government Services Fund) information as the Secretary may requirements and definitions for this AGENCY: Department of Education. reasonably require. In this notice, we program in context with those other ACTION: Final requirements, definitions, establish specific data and information programs. and approval criteria. requirements (the assurance indicators Section 14005(d)(2) of the ARRA and descriptors) that a State receiving requires a State receiving funds under SUMMARY: The Secretary of Education funds under the SFSF program must the SFSF program to assure that it will (Secretary) establishes requirements, meet with respect to the statutory take actions to improve teacher definitions, and approval criteria for the assurances. We also establish specific effectiveness and comply with section State Fiscal Stabilization Fund requirements for a plan that a State must 1111(b)(8)(C) of the Elementary and (Stabilization or SFSF) program. The submit (the State plan), as part of its Secondary Education Act of 1965, as Secretary may use one or more of these application for the second phase 1 of amended (ESEA) (20 U.S.C. requirements, definitions, and approval funding under the SFSF program, 6311(b)(8)(C)), in order to address criteria in awarding funds under this describing its ability to collect and inequities in the distribution of highly program in fiscal year (FY) 2010. These publicly report the required data and qualified teachers between high- and requirements, definitions, and approval other information. Together, these two low-poverty schools and to ensure that criteria are based on the assurances sets of requirements will provide low-income and minority children are regarding education reform that grantees transparency on the extent to which a not taught at higher rates than other are required to provide in exchange for State is implementing the actions for children by inexperienced, unqualified, receiving funds under the Stabilization which it has provided assurances. or out-of-field teachers. The indicators program. We take this action to specify Increased access to and focus on this the Department has established will the data and information that grantees information will better enable States measure the extent to which a State is must collect and publicly report with and other stakeholders to identify taking such actions and will provide respect to those assurances and to help strengths and weaknesses in education data and other information on: (1) ensure grantees’ ability to collect and systems and determine where Student access to highly qualified publicly report the required data and concentrated reform effort is warranted. teachers in high- and low-poverty information. We also intend to use the data and schools, (2) current strategies and efforts information that States collect and to address inequities in the distribution DATES: These requirements, definitions, publicly report in assessing whether a of inexperienced, unqualified, or out-of- and approval criteria are effective State is qualified to participate in and field teachers, (3) how teacher and January 11, 2010. receive funds under other reform- principal performance is evaluated and FOR FURTHER INFORMATION CONTACT: oriented programs administered by the how the results of these evaluations are James Butler, State Fiscal Stabilization Department. used, and (4) the distribution of Fund Program, U.S. Department of As discussed elsewhere in this notice, performance evaluation ratings or levels Education, 400 Maryland Ave., SW., an assurance indicator or descriptor among teachers and principals. Room 3E108, Washington, DC 20202. may relate to data or other information Section 14005(d)(3) requires each Telephone: (202) 260–2274 or by e-mail: that States currently collect and report State to assure that it will establish a [email protected]. to the Department, or to data or other longitudinal data system that includes If you use a telecommunications information for which the Department is the 12 elements described in section device for the deaf (TDD), call the itself the source. In those cases, we do 6401(e)(2)(D) of the America Federal Relay Service (FRS), toll free, at not establish any new data or COMPETES Act. The Department has 1–800–877–8339. information collection requirements for established an indicator that will SUPPLEMENTARY INFORMATION: a State; rather, the Department will measure the extent to which States have Purpose of Program: The State Fiscal provide the State with the relevant data implemented statewide longitudinal Stabilization Fund program provides data systems that include all of the approximately $48.6 billion in formula 1 The Department is awarding SFSF program required elements. These elements grants to States to help stabilize State funds in two phases. In the first phase, the constitute the minimum requirements of and local budgets in order to minimize Department awarded 67 percent of a State’s a modern statewide longitudinal data Education Stabilization Fund allocation, unless the and avoid reductions in education and State demonstrated that additional funds were system. Such a system will enable other essential services, in exchange for required to restore FY 2009 State support for States, local educational agencies a State’s commitment to advance education, in which case the Department awarded (LEAs), and schools to, among other the State up to 90 percent of that allocation. In essential education reform in key areas. addition, the Department awarded 100 percent of things: Follow student academic Background: Section 14005(d) of each State’s Government Services Fund allocation progress as a student moves from grade Division A of the American Recovery in Phase I. The Department will award the to grade; identify persistently lowest- and Reinvestment Act of 2009 (ARRA) remainder of a State’s Education Stabilization Fund achieving schools; and evaluate the requires a State receiving funds under allocation in the second phase. A table listing the allocations to States under the SFSF program is effectiveness of specific programs. the SFSF program to provide assurances available at: http://www.ed.gov/programs/ The Department has established in four key areas of education reform: (a) statestabilization/funding.html. additional indicators identifying

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whether a State provides teachers in high school using a four-year adjusted consistent with those in the grades and subjects in which it cohort graduation rate, enroll in an Department’s Race to the Top Fund and administers assessments with student institution of higher education (IHE) SIG notices to encourage and enable growth data and with reports of within 16 months of receiving a regular States to plan effectively and use individual teacher impact on student high school diploma, and complete at diverse funding sources to accomplish achievement. We believe that teachers’ least one year of college credit (towards consistent goals. receipt of these data and reports should a degree) within two years of In addition to the specific data and be a natural product of a statewide enrollment. information requirements relating to the longitudinal data system that includes As many States prepare to four ARRA education reform the required elements, particularly the significantly improve the rigor and assurances, we also establish requirements that such a system effectiveness of their standards and requirements for a plan that a State must includes unique statewide student assessment systems, we believe this submit to the Department. In general, identifiers and a teacher identifier information will provide stakeholders the State plan must describe the State’s system with the ability to match with vital transparency on the current current ability to collect the data or teachers to students. Moreover, we status of those systems and inform other information needed for the believe that these are key examples of efforts that are currently underway to assurance indicators and descriptors as how reliable, high-quality data from a improve them. The Department well as the State’s current ability to State’s system can drive education continues to encourage States to work make the data or information easily reform in general and improvements in together to develop and implement available to the public. If the State is instructional programs in particular. common internationally benchmarked currently able to fully collect and The ARRA also requires a State standards and assessments aligned to publicly report the required data or receiving funds under the SFSF program those standards in order to ensure that other information at least annually, the to assure that it will: (A) Enhance the students are college- and career-ready. State must provide the most recent data quality of the academic assessments it However, until those standards and or information with its plan. If a State administers pursuant to section assessments are complete, States need to is not currently able to collect or 1111(b)(3) of the ESEA (20 U.S.C. continue to ensure both the quality of publicly report the data or other 6311(b)(3)) through activities such as their current standards and assessments, information at least annually, the plan those described in section 6112(a) of the and that students are provided must describe the State’s process and ESEA (20 U.S.C. 7301a(a)); (B) comply accommodations as necessary. timeline for developing and with the requirements of paragraphs Section 14005(d)(5) of the ARRA implementing the means to do so as (3)(C)(ix) and (6) of section 1111(b) of requires a State receiving funds under soon as possible but no later than the ESEA (20 U.S.C. 6311(b)) and the SFSF program to provide an September 30, 2011, the date by which section 612(a)(16) of the Individuals assurance that it will comply with the States must obligate funds received with Disabilities Education Act (20 requirements of section 1116(b)(7)(C)(iv) under the SFSF program consistent with U.S.C. 1412(a)(16)) related to the and section 1116(b)(8)(B) of the ESEA section 421 of the General Education inclusion of children with disabilities (20 U.S.C. 6316(b)(7)(C)(iv) and Provisions Act (GEPA) (20 U.S.C. and limited English proficient students 2 6316(b)(8)(B)) with respect to Title I 1225(b)). The State plan must describe in State assessments, the development schools identified for corrective action the State’s collection and public of valid and reliable assessments for and restructuring. In order to provide reporting abilities with respect to each those students, and the provision of indicators of the extent to which a State individual indicator or descriptor. accommodations that enable their is implementing this statutory As discussed previously, the data or participation in State assessments; and assurance, we are requiring that the information needed for an assurance (C) take steps to improve State academic State provide data on the extent to indicator or descriptor is in some cases content standards and student academic which dramatic reforms to improve already reported to the Department by achievement standards for secondary student academic achievement are the State, or is provided by the schools consistent with section implemented in Title I schools in Department. In those cases, it is 6401(e)(1)(A)(ii) of the America improvement under section understood that the State is currently able to collect the data or information; COMPETES Act (20 U.S.C. 1116(b)(1)(A) of the ESEA,3 in corrective accordingly, the State’s plan need only 9871(e)(1)(A)(ii)). To assess the extent to action, or in restructuring and address the State’s ability to publicly which a State is taking these actions, we secondary schools that are eligible for, report the data or information, and the are requiring that the State collect and but not receiving, Title I funds. State need not include the data or publicly report data and other Additionally, a State must provide data information regarding State assessment information with its plan. on the operation and performance of its The State plan requirements apply systems, including on the assessment of charter schools. SFSF definitions and students with disabilities and limited generally across the education reform requirements for these indicators and English proficient students; State areas discussed above with the descriptors will, where appropriate, be National Assessment of Educational exception of education reform area (b) Progress (NAEP) data; and data on the (improving collection and use of data) 3 Although the statutory assurance concerns only number of students who graduate from Title I schools in corrective action and and new Indicators (c)(10) and (c)(11) restructuring, we are requiring that States include (proposed Indicators (c)(11) and (c)(12)), 2 The Department recognizes that stakeholders Title I schools in improvement as well when for which we establish slightly different often use terms such as ‘‘English language learners’’ providing data on the extent to which dramatic plan requirements. For example, for rather than ‘‘limited English proficient students’’ reforms to improve student academic achievement Indicator (b)(1) we require that a State when referring to students who are acquiring basic are being implemented. Making this addition would English proficiency and developing academic be consistent with the school reform strategies that describe in its plan whether the State’s English skills. However, because the ESEA defines States are implementing using funds available data system includes the required the term ‘‘limited English proficient,’’ and both the under section 1003(g) of the ESEA (20 U.S.C. elements of a statewide longitudinal statute and the implementing regulations use this 6303(g)) (School Improvement Grants), which are data system and, if the data system does term, as well as the phrase ‘‘students with limited intended to be applied to schools in improvement English proficiency,’’ we will continue to use the as well as to schools in corrective action or not, the State’s process and timeline for latter terms in this notice. restructuring. developing and implementing a system

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that meets all requirements as soon as not currently provide the required data field teachers (as required in section possible but no later than September 30, and information, it must provide on this 1111(b)(8)(C) of the ESEA). 2011. As this indicator relates to a Web site its plan with respect to the —Descriptors (a)(1) and (a)(2) have been State’s ability to collect and publicly indicator or descriptor and its reports on revised to require States also to report data, however, these its progress in implementing that plan. describe the use of results from requirements do not in effect differ In developing a plan as required in teacher and principal evaluation substantially from the generally this notice, the State is encouraged to systems in decisions regarding teacher applicable State plan requirements (i.e., consult with key stakeholders, such as and principal development, the requirements that the State describe superintendents, educators, content compensation, promotion, retention, its abilities to collect and publicly experts, and parents as well as teachers’ and removal. report data or other information for a union, business, community, and civil —New Indicator (a)(3) (proposed given indicator or descriptor). Moreover, rights leaders. Such consultation would Indicator (a)(2)) and new Indicator the development and implementation of ensure that these stakeholders are aware (a)(5) (proposed Indicator (a)(4)) have such a statewide longitudinal data of the State’s current ability to meet the been revised to have States indicate system is intrinsic to a State’s ability to requirements, can provide input on the whether the systems used to evaluate collect and publicly report the data means the State will develop to comply the performance of teachers include required by certain other indicators with the requirements, and can prepare student achievement outcomes or (e.g., the indicators on student to assist the State in implementing those student growth data as an evaluation enrollment and credit completion in means. criterion. IHEs after graduation from high school). • The NFR makes the following In the case of new Indicators (c)(11) Program Authority: American Recovery and Reinvestment Act of 2009, Division A, changes to the requirements for and (c)(12), regarding the data States Improving collection and use of data: will collect from IHEs on student Title XIV—State Fiscal Stabilization Fund, Public Law No. 111–5. —New Indicator (b)(2) requires that enrollment and credit completion, the each State indicate whether it State is required to, at a minimum, We published a notice of proposed provides student growth data on their possess the ability to collect and requirements, definitions, and approval current students and the students they publicly report the data by September criteria (NPR) for this program in the taught in the previous year to, at a 30, 2011. As a result, a State plan need Federal Register on July 29, 2009 (74 FR minimum, teachers of reading/ only address the development of 37837–37872). That notice contained language arts and mathematics in the capacity, and not implementation and background information and our reasons grades in which the State administers public reporting for these indicators. for proposing the particular assessments in those subjects, in a In addition to requirements relating to requirements, definitions, and approval manner that is timely and informs a State’s ability to collect and publicly criteria. In addition to some minor instructional programs. report data or other information for the editorial changes, there are several —New Indicator (b)(3) (proposed respective assurance indicators and substantive differences between the Indicator (b)(2)) has been revised to descriptors, we establish other general NPR and this notice of final require each State to indicate whether requirements for the State plan relating requirements, definitions, and approval it provides teachers of reading/ to the State’s institutional infrastructure criteria (NFR). These changes are language arts and mathematics in and capacity, the nature of any technical summarized in the next section and grades in which the State administers assistance or other support provided, described in greater detail in the assessments in those subjects with the budget for implementing the plan, Analysis of Comments and Changes reports of individual teacher impact and the processes the State employs to section elsewhere in this notice. ensure data and information quality and on student achievement on those student privacy. Major Changes in the Final assessments. Under proposed For the purposes of this program, the Requirements, Definitions, and Indicator (b)(2), a State would have data and information are largely Approved Criteria been required to indicate whether it intended for public use, rather than for provides such teachers with data on The following is a summary of the the performance of their students on Federal reporting. Individual States and major substantive changes in these final communities have the greatest power to those assessments that include requirements from the requirements estimates of individual teacher impact hold their LEAs and schools proposed in the NPR. (The rationale for accountable for the reforms that are in on student achievement, in a manner each of these changes is discussed in the that is timely and informs instruction. the best interest of their students. Rather Analysis of Comments and Changes than the Department collecting and • The final requirements make section elsewhere in this preamble.) several changes to the indicators for warehousing this information, it is our • intention that States and LEAs will The NFR makes several changes to Standards and assessments. The make the information available to the the requirements for Achieving equity in specific changes are: public in a manner that is useful for teacher distribution. The specific —Proposed Indicator (c)(2), which stakeholders in understanding key changes are: required each State to indicate information about education in each —The Department is adding a new whether it was engaged in activities to State and community. The Department Indicator (a)(2) that requires each enhance the quality of its believes that the most effective and State to confirm whether the State’s assessments, and Proposed Descriptor expeditious way for States to share Teacher Equity Plan (part of the (c)(1), which required States to information with the public is via the State’s Highly Qualified Teacher Plan) describe those activities, have been Internet. Accordingly, any State that fully reflects the steps the State is removed from the final requirements. receives SFSF funding in Phase II must currently taking to ensure that —New Indicator (c)(11) (proposed maintain a public Web site that provides students from low-income families Indicator (c)(12)) has been modified to the data and information that are and minority students are not taught require a State to provide data on responsive to the indicator and at higher rates than other students by student enrollment for students who descriptor requirements. If a State does inexperienced, unqualified, or out-of- enroll in an IHE within 16 months of

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receiving a regular high school require States to provide data and will develop and implement those diploma. Proposed Indicator (c)(12) information on charter schools that means (i.e., the State will collect and did not include a timeframe for this have been closed within each of the publicly report those data) by data element. last five years instead of over the last September 30, 2011, the State must —New Indicator (c)(12) (proposed five years. submit a plan for how it will collect Indicator (c)(13)) now requires that a • The NFR makes several changes to and publicly report the data by the State collect data on progress toward the requirements under State Plans. The established deadline. a postsecondary degree only for specific changes are: • The NFR includes definitions for students who attend a public IHE in —The NFR adds requirements regarding publicly report, student growth, the State. Under proposed Indicator new Indicator (b)(2). For new persistently lowest-achieving schools, (c)(13), a State would have provided Indicator (b)(2), the State must turnaround model, restart model, school these data for students who attended provide student growth data on their closure, transformation model, and public IHEs both in State and out of current students and students they increased learning time. State. taught in the previous year to, at a Analysis of Comments and Changes • The NFR makes several changes to minimum, teachers of reading/ In response to the Secretary’s the requirements for Supporting language arts and mathematics in invitation in the NPR, 60 parties struggling schools. The specific changes grades in which the State administers submitted comments on the proposed are: assessments in those subjects, in a requirements, definitions, and approval manner that is timely and informs —Indicator (d)(1) and Indicator (d)(2) criteria. An analysis of the comments instructional programs. A State must now require that a State also publicly and changes to the requirements, report on average statewide school indicate whether the State provides definitions, and approval criteria since gains in the ‘‘all students’’ category teachers with such data; if the State publication of the NPR follows. and for each student subgroup (as does not provide teachers with such We discuss substantive issues under defined under section 1111(b)(2)(C)(v) data, it must submit a plan for the sections of the requirements to of the ESEA). developing and implementing, as which they pertain. Generally, we do —New Descriptor (d)(1) requires each soon as possible but no later than not address technical or minor changes, State to provide its definition of September 30, 2011, the means to or suggested changes that we are not persistently lowest-achieving schools. provide teachers with such data. authorized to make under applicable —Indicator (d)(3) now requires a State —The NFR revises the requirements for law. to provide the number and identity of new Indicator (b)(3) (proposed Title I schools in improvement, Indicator (b)(2)). For new Indicator Indicator and Descriptor Requirements corrective action, or restructuring that (b)(3) (proposed Indicator (b)(2)), a in General are persistently lowest-achieving State must indicate whether it Comment: A few commenters asserted schools. provides teachers of reading/language that the proposed data and information —Indicator (d)(4) now requires a State arts and mathematics in grades in requirements do not reflect to provide, of the persistently lowest- which the State administers Congressional intent that the SFSF achieving Title I schools in assessments in those subjects with program relieve the economic crisis in improvement, corrective action, or reports of individual teacher impact schools and districts nationwide. restructuring, the number and identity on student achievement on those Commenters stated that SFSF funds are of schools that have been turned assessments. If the State does not intended to help maintain support for around, restarted, closed, or provide those teachers with such education, not to support new programs transformed in the last year. reports, it must submit a plan for how or initiatives. One commenter noted that —Indicator (d)(5) now requires a State it will develop and implement the requirements for new programs or to provide the number and identity of means to do so. Under the NPR, the initiatives may be appropriate for secondary schools that are eligible for, State would have been required to competitive programs such as the Race but do not receive, Title I funds that provide those teachers with such to the Top Fund, but not for the SFSF are persistently lowest-achieving reports (consistent with the indicator); program. In contrast, another schools. if the State did not provide those commenter asserted that States should —Indicator (d)(6) now requires a State teachers with such reports, it would use SFSF funds for more than simply to provide, of the persistently lowest- have been required to submit a plan maintaining support for current achieving secondary schools that are for how it would develop and education programs. eligible for, but do not receive, Title implement the means to do so as soon Discussion: The Department believes I funds, the number and identity of as possible but no later than that SFSF funds should be used both to schools that have been turned around, September 30, 2011. help restore support for education and restarted, closed, or transformed in —The NFR revises the requirements for to advance education reform. When the last year. new Indicators (c)(11) and (c)(12). For States received funds under Phase I of —New Indicator (d)(9) requires a State new Indicators (c)(11) and (c)(12) the SFSF program, they provided to provide the number and percentage (proposed Indicators (c)(12) and assurances that they would take steps to of charter schools that have made (c)(13)), if a State will develop but not address the key reform areas required progress on State assessments in implement the means to collect and under the ARRA. The data collected reading/language arts in the last year. publicly report the data by September will provide information on the status of —New Indicator (d)(10) requires a State 30, 2011, it must submit a plan for States’ efforts to comply with these to provide the number and percentage how it will develop the means to assurances. of charter schools that have made collect and publicly report the data Changes: None. progress on State assessments in and provide evidence, by September Comment: A number of commenters mathematics in the last year. 30, 2011, to demonstrate that it has supported the Department’s emphasis —New Indicators (d)(11) and (d)(12) developed the means to collect and on the four reform areas and noted that (proposed Indicators (d)(8) and (d)(9)) publicly report that data. If a State focus on those four areas will improve

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educational outcomes for students. Comment: Several commenters programs funded under the ARRA. One Several commenters also expressed requested that the Department provide commenter requested that the support specifically for the focus on States with a template for publicly Department review the reporting data systems and improving teacher reporting the data and information requirements across all ARRA programs quality. One commenter supported collected under the SFSF program. One and use single data-element definitions linking student data to teachers. Some commenter asserted that the Department for all programs in order to reduce commenters stated that the must provide guidance to ensure that redundant reporting and maintain requirements outlined in the notice States fully understand the public transparency. A few commenters were well-aligned with the reform areas reporting requirements. As an example, expressed concern that applications of ARRA. Another commenter believed the commenter questioned what submitted for programs under the ARRA that the Department should have constitutes making the data ‘‘easily will be duplicative. worked to ensure greater alignment accessible’’ for parents and the general Discussion: The Department is among the four reform areas. A few public. Another commenter questioned coordinating the implementation of the commenters believed the proposed whether the lack of specific guidance programs under the ARRA in order to requirements went beyond the intention from the Department on how to publicly support a comprehensive approach to of the ARRA, and a few commenters report the information collected meant education reform and to minimize the stated that they did not believe the that we would allow States to use a burden on States to the extent possible. ARRA provided the Department with variety of methods to meet their To that end, where appropriate, the the statutory authority to require States reporting obligation. The commenter Department is developing consistent to collect and publicly report the data encouraged the Department to provide requirements and definitions for SFSF, and information as proposed in the States with flexibility in meeting these the Race to the Top Fund, SIG, the NPR. One commenter stated that the requirements. One commenter noted Investing in Innovation Fund, the proposed requirements would be an that the Department would need to Teacher Incentive Fund, and other intrusion by the Federal Government consider the unique demographics of ARRA programs; those changes are into State and local control of States when evaluating applications. discussed later in this notice. The education. Discussion: The Department agrees Department will evaluate applications Discussion: In its application for that it is important to have clear based on the specific approval criteria initial funding under the SFSF program, guidance on the public reporting that is we have announced for each program, each State was required, consistent with required under this notice. Accordingly, and recognizes that, in certain instances, the statute, to provide an assurance that we have added a definition of publicly States will provide similar information it would take steps to advance reforms report to provide additional specificity across applications. Changes: None. in achieving equity in teacher and direction. We will also provide guidance on how States may meet the Comment: One commenter stated that distribution, enhancing standards and the Department did not propose assessments, and supporting struggling public reporting requirements for this program, and will be available to requirements that comprehensively schools. Each State also provided an provide technical assistance to States address the four education reform areas. assurance that it would establish a throughout the application and Specifically, the commenter believed statewide longitudinal data system. The reporting process. more indicators are needed in areas Department believes the requirements as Changes: The Department has added addressing the closing of achievement proposed in the NPR and established in a definition of publicly report, which gaps, improving overall student final in this notice are consistent with provides that the data or information performance, and achieving equity the statutory intent and requirements of required for an indicator or descriptor between high- and low-performing the ARRA and will provide are made available to anyone with schools. comprehensive information on a State’s access to an Internet connection without Discussion: While we agree that progress in the four assurance areas. The having to submit a request to the entity additional information in the four data and information that States will that maintains the data and information reform areas could be valuable to the publicly report under the indicators and in order to access that data and public, educators, and policy-makers, descriptors will inform State and local information. Under this definition, we believe that adding the suggested reform efforts and enable the States are required to maintain a public indicators would be overly burdensome Department to verify that a State is Web site that provides the data and to States and LEAs. We believe the fulfilling the commitments it made in information that are responsive to the indicators and descriptors established in order to receive ARRA funds. indicator and descriptor requirements. If this notice generally provide sufficient Changes: None. a State does not currently provide the data and information to measure State Comment: Many commenters required data or information, it must progress in the four reform areas for the supported the Department’s emphasis provide on this Web site its plan with purposes of the SFSF program. on making the data and information respect to the indicator or descriptor Additionally, the Department believes collected under the SFSF program and its reports on its progress in that meeting the requirement for each publicly available. Commenters also implementing that plan. State to include all 12 elements noted that increased access to the data In light of our addition of the described in the America COMPETES and information would help inform definition of publicly report, we have Act in its statewide longitudinal data decision-making and increase modified the indicators, descriptors, system will provide a State with the transparency around education reform. plan requirements, definitions, and capability to collect, analyze, and report Discussion: The Department approval criteria, as appropriate, to meaningful information on the appreciates the commenters’ support substitute the term ‘‘publicly report’’ for effectiveness of its programs in closing and agrees that the indicator and ‘‘report.’’ the achievement gap and improving descriptor requirements will provide the Comment: Some commenters student outcomes. public with valuable information on the supported our intent to ensure Changes: None. status of education reform in their State. consistency in collection and reporting Comment: One commenter stated that Changes: None. requirements across the various the Department is missing a major

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opportunity to learn more about the role collect information on the academic administration under Title I, part A of of professional development in school achievement of students who attend the ESEA and part B, section 611 of the reform. The commenter encouraged the charter schools and has added new Individuals with Disabilities Education Department to collect data on how Indicators (d)(9) and (d)(10), which Act (IDEA) with respect to funds States are using and improving measure the performance of charter available for those programs under the professional development to increase school students on State assessments in ARRA in order to make it easier for the performance levels of educators and reading/language arts and mathematics. States to meet ARRA reporting their students. Changes: The Department has added requirements. Discussion: The Department agrees new Indicators (d)(9) and (d)(10) to Further, in response to comments, the that professional development is an education reform area (d). These Department is reducing the burden on important factor in developing and changes are described in greater detail States. For example, the Department is supporting educators in improving their in the section of this notice entitled not requiring States to provide estimates practices and encourages States and Education Reform Area (d)—Supporting of teacher impact on student LEAs to collect and share data on Struggling Schools. achievement (new Indicator (b)(3) professional development, but we do Comment: A few commenters (proposed Indicator (b)(2)) but is now not believe that we should add an suggested that the Department create a requiring that States provide student indicator requiring a State to report on sequence of reform requirements instead growth data to teachers (new Indicator professional development. However, we of asking States to implement (b)(2)).4 In the NPR, the Department note that we have added a new indicator simultaneous reforms in all areas. They estimated that the total cost to States, requiring States to make publicly specifically suggested the Department LEAs, and IHEs of meeting the proposed available their Teacher Equity Plans, include goals, targets, or benchmarks for requirements was approximately $61.7 which include information on teacher improving performance on the million. Of that amount, approximately professional development, and indicate indicators and descriptors in order to $30 million was associated with the if they have updated those plans. In move States closer to the goal of college costs of providing estimates of teacher addition, we have revised Descriptors and career readiness for all students. impact on student achievement. The (a)(1) and (a)(2) to require States to Discussion: Section 14005(d) of the Department believes that providing describe the use of results from teacher ARRA requires States to take action in teachers of reading/language arts and and principal evaluation systems in each of the education reform areas and mathematics in grades in which the decisions regarding, among other things, the Department envisions that in order State administers assessments with professional development. to achieve the reform goals States will student growth data will be much less Changes: The Department has added address each reform area costly. new Indicator (a)(2) and has also revised simultaneously. We do not believe it is Furthermore, the Department believes Descriptors (a)(1) and (a)(2); these necessary to establish goals, targets, or that the potential benefits from changes are described in more detail in benchmarks for improving performance collecting and publicly reporting this the section of this notice entitled because the purpose of the indicator and information (e.g., greater accountability, Education Reform Area (a)—Achieving descriptor requirements is to provide implementation of a statewide Equity in Teacher Distribution. transparency on the extent to which a longitudinal data system to inform Comment: One commenter stated that State is implementing the actions for instruction, and more effective teacher the Department should require each which it provided an assurance in its and principal evaluation systems) State to indicate whether the application for initial SFSF funding. outweigh the costs associated with the information it publicly reports includes Changes: None. data requirements. The estimated costs information from charter schools and, if and benefits of these requirements are Burden and Costs such information is not currently described in greater detail in the available, require the State to provide Comment: Many commenters Summary of Costs and Benefits section information in its State plan on the expressed concern that States and LEAs of this notice. steps it will take to collect information do not have the financial resources Changes: The Department has revised on charter schools. necessary to collect and publicly report the State Plan requirements for new Discussion: Under the requirements as the data and information that the Indicator (b)(3) (proposed Indicator established in this notice, States will Department proposed to require of (b)(2)) to remove the requirement that publicly report information on charter States. One commenter noted that in States provide estimates of teacher schools that are LEAs in the same order to comply with the collection and impact on student achievement. manner that they provide information public reporting requirements, LEAs Comment: A few commenters claimed on any LEA. Further, information on would need to take staff away from that the reporting requirements may public charter schools that are not LEAs other essential functions. Another lead to unnecessary costs for States and will be provided in the same manner as commenter stated that the requirements LEAs that have already invested time for other public elementary and should reflect the fact that the SFSF and effort in creating data systems or in secondary schools. program will not provide an ongoing implementing school reform programs Additionally, as proposed in the NPR source of funding for States. that are not directly aligned with the and as established in this notice, the Discussion: The Department assurance areas. Department is requiring States to collect acknowledges that there are costs Discussion: The Department does not and publicly report information on the associated with the data collection and believe States will need to significantly number of charter schools that are public reporting requirements and reconfigure current State data systems permitted to operate and that are encourages States to consider available in order to meet the ARRA requirement actually operating in the State and each sources of Federal funds to support this to establish a statewide longitudinal LEA (new Indicators (d)(7) and (d)(8) reporting. For example, a State may use (proposed Indicators (d)(6) and (d)(7))). SFSF Government Services funds to 4 States are still required, however, to indicate whether they provide reports of individual teacher Moreover, and as discussed in greater meet the Phase II application impact on student achievement through new detail later in this notice, the requirements. The Department has also Indicator (b)(3) (proposed Indicator (b)(2)) and, if Department agrees that it is important to raised the statutory caps on State they do not, to provide a plan for doing so.

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data system that includes the 12 with stakeholders generally or with any Changes: The Department has revised elements identified in the America specific group because there will be the State plan requirements for new COMPETES Act (although a State may great variation across States as to the Indicator (b)(3) (proposed Indicator need to expand its data system in order groups with whom it would be (b)(2)), new Indicator (c)(11) (proposed to include all 12 data elements). The appropriate to consult. Indicator (c)(12)), and new Indicator America COMPETES Act predates Changes: None. (c)(12) (proposed Indicator (c)(13)). enactment of the ARRA, and States are Comment: Many commenters These revisions are discussed in greater already designing data systems that indicated that it is unrealistic to require detail later in this notice. incorporate the America COMPETES States to implement their plans by Applications and Approval Criteria Act elements. We note that the elements September 30, 2011. One commenter have also been incorporated into the characterized the deadline as arbitrary. Comment: Three commenters application requirements and guidance Another commenter noted that the expressed concern regarding the for the Department’s Statewide deadline will not allow States to collect timeline for submission of the SFSF Longitudinal Data Systems Grant data reflecting the potentially positive Phase II application, given the extensive program. impact of SFSF funds on student information the application requires. As part of the SFSF program, the achievement. Commenters One commenter elaborated that the Department is not requiring States to recommended reconsideration of this SFSF Phase II application timeline implement new school reform programs, timeline. One commenter suggested that could negatively affect a State’s ability to meet the Race to the Top application but to publicly report on the current the Department grant individual States deadline because, in a July 29, 2009 status of their programs and if they have extensions of the deadline without Federal Register notice, the Department implemented certain reform models in requiring States to justify such proposed that States must have an their persistently lowest-achieving extensions. schools. approved SFSF Phase II application to Discussion: The Department believes be eligible for Race to the Top funds. Changes: None. that the requirements of the State plan Comment: Several commenters One of these commenters emphasized provide critical information that is more supported our proposal to use data that that SFSF Phase II funds are critical to useful to stakeholders if it is presented the Department currently collects from preventing more serious school aid in a timely manner. Further, the States through EDFacts to meet the reductions than those currently under Department believes that two years is an public reporting requirements of the consideration in the State. appropriate amount of time to program. Commenters noted that the use Discussion: The Department will implement a plan to collect and of these data would minimize some of review Phase II applications submitted publicly report the required the burden associated with the reporting by the deadline, which we will publish information. However, in recognition of requirements for this program. in a separate notice in the Federal Discussion: The Department agrees existing State work in transitioning to Register, on a timely basis to ensure that with the comments and has attempted the adjusted four-year cohort graduation States will meet any Race to the Top to reduce the reporting burden by using rate, the Department has modified the eligibility requirements related to SFSF data from EDFacts and other readily plan requirements applicable to new application approval and to provide available data whenever possible. Indicators (c)(11) and (c)(12) (proposed additional resources expeditiously to Changes: None. Indicators (c)(12) and (c)(13)) so that a support elementary, secondary, and State is required only to provide State Plan Requirements postsecondary education. evidence that it has developed the Changes: None. Comment: One commenter suggested means to collect and publicly report the Comment: One commenter proposed that the Department require States to data by the deadline. that the Department include an obtain the support of key stakeholders As discussed in more detail later in additional approval criterion requiring for the plan the State will develop to this notice, we are also revising the States to demonstrate that they have meet the SFSF requirements. Another State plan requirements for new expended their SFSF funds consistent commenter suggested that the Indicator (b)(3) (proposed Indicator with program requirements. Department require States to collaborate (b)(2)). For new Indicator (b)(3) Discussion: We do not believe that the with youth-serving organizations in (proposed Indicator (b)(2)), a State must suggested approval criterion is their planning efforts so as to ensure the indicate whether it provides teachers of necessary. States will provide success of every young person; the reading/language arts and mathematics information on the uses of funds in the commenter recommended adding in grades in which the State administers quarterly reports that they submit workforce organizations, child welfare assessments in those subjects with pursuant to section 1512 of the ARRA; and juvenile/criminal justice agencies, reports of individual teacher impact on these reports will be publicly available and child and youth-serving student achievement on those at http://www.recovery.gov. In addition, community-based organizations to the assessments. If the State does not the Department will collect information list of stakeholders with whom a State provide those teachers with such on uses of SFSF funds through the must consult when developing the State reports, it must submit a plan for how annual performance reports States are plan. it will develop and implement the required to submit under section 14008 Discussion: The Department means to do so. Under the NPR, the of the ARRA. The annual performance recognizes the importance of State would have been required to reports will be made available to the collaboration and cooperation among provide those teachers with such reports public on the Department’s Web site at educational agencies, community (consistent with the indicator); if the http://www.ed.gov. Furthermore, during stakeholders, policy-makers, and youth- State did not provide those teachers its monitoring of State implementation serving organizations. While the with such reports, it would have been of the SFSF program, the Department Department encourages States to consult required to submit a plan for how it will review State and local uses of with key stakeholders when developing would develop and implement the program funds to ensure compliance the State plan, we do not believe it is means to do so as soon as possible but with applicable requirements. necessary to require States to consult no later than September 30, 2011. Changes: None.

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Indicator and Descriptor Requirements Decisions on how best to use the States’ compliance with the Education Reform Area (a)—Achieving specific data should be made at the requirements of the ESEA referenced in Equity in Teacher Distribution State and local levels. the statutory assurance in this reform Changes: None. area (i.e., the requirements of section Teacher Qualifications: Indicator (a)(1) Comment: A few commenters 1111(b)(8)(C)), the Department has Comment: Several commenters recommended that the definitions of previously required States to develop expressed support for our proposal to highest-poverty school and lowest- Highly Qualified Teachers State Plans. use existing data on teacher poverty school applicable to proposed Included in these plans is a component qualifications from the Department’s Indicator (a)(1) be revised to require (known as a ‘‘Teacher Equity Plan’’) in EDFacts system for proposed Indicator States to identify these schools which the State describes the steps (a)(1). These commenters believed that specifically using data on student being taken to ensure that students from leveraging existing data in EDFacts eligibility for free- or reduced-price low-income families and minority would minimize collection and lunches under the Richard B. Russell students are not taught at higher rates reporting burden on States and LEAs National School Lunch Act (NSLA), than other children by inexperienced, while still ensuring that high-quality rather than using the poverty measure unqualified, or out-of-field teachers.5 information is provided to the public. chosen by the State. One of these Rather than include indicators that However, one commenter requested commenters asserted that these terms would collect information on this topic clarification as to the State’s should be given the same meaning that is additional to or duplicative of the responsibilities for confirming the data across States to prevent inconsistencies information already provided by States in EDFacts. in reporting and to ensure that the data in their Teacher Equity Plans, we have Discussion: In general, we have reported by States can be aggregated at added an indicator that requires States sought to ensure that existing data from the national level. to indicate whether they have updated the Department’s EDFacts system (or Discussion: The Department permits and publicly reported these plans. other data for which the Department is States to use a poverty measure of their Changes: We have revised the itself the source) are used to populate choice when reporting data on courses indicators in this education reform area the indicators for this program wherever taught by highly qualified teachers in to include a new Indicator (a)(2), which possible so as to minimize the burden the highest- and lowest-poverty schools requires a State to confirm whether the on States and LEAs. In this case, we in their Consolidated State Performance State’s Teacher Equity Plan (as part of believe that existing data in EDFacts on Reports and in the annual State Report the State’s Highly Qualified Teacher courses taught by highly qualified Cards required under section 1111(h)(1) Plan) fully reflects the steps the State is teachers is appropriate as a measure of of the ESEA. While States may and currently taking to ensure that students States’ compliance with the statutory frequently do use student eligibility for from low-income families and minority assurance. free- or reduced-price lunches under the students are not taught at higher rates As stated in the NPR, a State will not NSLA as the poverty measure for than other students by inexperienced, be required to perform any additional reporting these data, this is not always unqualified, or out-of-field teachers (as analysis or verification in confirming the case. While the Department required in section 1111(b)(8)(C) of the indicator data that are in EDFacts. We appreciates the concern for ESEA). With the addition of these believe there are sufficient safeguards in comparability of data for this indicator, Indicators, we have renumbered the place to ensure the completeness and we believe that requiring the use of remaining Indicators and Descriptors in accuracy of data submitted by States in student eligibility for free- or reduced- this Education Reform Area. EDFacts and do not expect or require a price lunches under the NSLA as the Comment: A number of commenters State to reexamine or refresh the data. poverty measure for this indicator expressed concern that, while proposed Rather, the confirmation a State will would introduce unnecessary confusion Indicator (a)(1) would require States to provide is meant to be limited to an for States that use other poverty provide data on the distribution of acknowledgment that the data provided measures when reporting data on the highly qualified teachers between by the Department are the same data poverty level of students in their highest- and lowest-poverty schools, it submitted by the State. schools. would not provide similar data with Changes: None. Changes: None. respect to teachers of minority students. Comment: One commenter requested Comment: One commenter These commenters typically that the Department clarify how recommended that the Department recommended that an indicator be stakeholders should use the data include additional metrics relating to added in this education reform area reported for proposed Indicator (a)(1) to the equitable distribution of teachers requiring States to provide data on the identify inequities in the distribution of that would require States to describe distribution of highly qualified teachers highly qualified teachers across LEAs. their plans for ensuring, consistent with between highest- and lowest-minority Specifically, the commenter requested the statutory assurance, that students schools; one of these commenters clarification on whether stakeholders from low-income families and minority further recommended that the should identify inequities by comparing students are not taught at higher rates Department include in the final the data generally for all LEAs across than other children by inexperienced, requirements definitions of ‘‘highest- the State, or for subsets of LEAs in the unqualified, or out-of-field teachers, and minority school’’ and ‘‘lowest-minority State based on shared characteristics to describe the measures States would school.’’ such as size or location. use to evaluate and report on the Discussion: As discussed previously, Discussion: The Department is implementation of those plans. we have revised the indicators in this requiring States to make publicly Discussion: We agree with the education reform area to include an available data on the distribution of commenter on the importance of States’ indicator requiring a State to confirm highly qualified teachers across LEAs so developing plans to ensure equity in the that its Teacher Equity Plan accurately that educators, policymakers, and other qualifications of teachers serving and fully reflects the steps the State is stakeholders may address inequities in disadvantaged students and their peers the distribution of teachers between and evaluating the impact of those 5 These plans are available at http://www.ed.gov/ high- and low-poverty schools. plans. We note, however, that, to assess programs/teacherqual/hqtplans/index.html.

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taking to ensure that students from low- more accurate or more effective stated in the NPR (74 FR 37838), we income families and minority students measures of teacher quality are believe that local evaluation systems are not taught at higher rates than other considered. play a principal role in determining students by inexperienced, unqualified, Discussion: While the Department teacher effectiveness. Accordingly, we or out-of-field teachers. These plans believes that data on highly qualified believe that requiring States to collect include data related to whether minority teachers do have value, we recognize and publicly report data and student populations are served by that these data are limited by their sole information on teacher evaluation highly qualified teachers (in addition to focus on teacher qualifications. As systems is reasonable and justified. data related to whether such teachers reflected in the other indicators in this With respect to principal evaluation serve students from low-income education reform area (discussed in systems, as stated in the NPR (74 FR families). We expect that, in confirming further detail later in this notice), the 37838), effective school administration or providing their current plans, States Department believes that other is a key factor in effective teaching and will provide up-to-date data on this measures, such as measures of teacher learning. We likewise believe that local indicator as well as on the distribution effectiveness, are needed if efforts to evaluation systems play a primary role of highly qualified teachers between identify high-quality teachers are to be in determining the effectiveness of highest- and lowest-minority schools. successful. school principals. Accordingly, we For this reason, we do not believe it is Changes: None. believe that requiring States to collect necessary to include the additional Teacher and Principal Effectiveness: and publicly report data and indicators recommended by the General information on principal evaluation commenters. systems is also reasonable and justified. Changes: None. Comment: Several commenters Changes: None. Comment: Several commenters expressed support for including in this Comment: A few commenters stated asserted that proposed Indicator (a)(1) education reform area the proposed that, with the proposed metrics, the would not furnish data on whether metrics relating to teacher and principal Department incorrectly or improperly students from low-income families or effectiveness, in particular the equated the terms ‘‘highly qualified minority students are taught at higher indicators on performance ratings from teacher’’ and ‘‘effective teacher.’’ rates than other students by out-of-field teacher and principal performance Discussion: As discussed earlier, the or inexperienced teachers. These evaluation systems (proposed Indicators statutory assurance in this reform area commenters typically recommended (a)(2) through (a)(6)). However, several provides a basis on which to collect data that indicators be added in this commenters questioned whether the and information related both to teacher education reform area to provide data Department had sufficient justification effectiveness and to teacher on the distribution of in-field and for including these metrics. One qualifications. In collecting data and experienced teachers between highest- commenter asserted that requiring information on both of these items, it is and lowest-poverty schools, as well as States to collect and publicly report data not the intention of the Department to between highest- and lowest-minority and information for these metrics is not conflate the two; on the contrary, the schools. statutorily relevant, and another intent is precisely to acknowledge a Discussion: Inasmuch as we have asserted that the metrics exceed the difference in these concepts. revised the requirements in this requirements of the statute. Another Historically, in assessing the quality of education reform area, as discussed commenter believed that these our nation’s teachers, the Department previously, to include an indicator indicators, as they concern evaluation has focused, through ‘‘highly qualified regarding States’ Teacher Equity Plans systems that are typically developed teacher’’ measures, on the qualifications (in which States describe the steps being and implemented locally, represent an of teachers to the exclusion of other taken to ensure that students from low- unwarranted intrusion by the Federal factors. By including considerations of income families and minority students Government into local matters. Another teacher effectiveness in the statutory are not taught at higher rates than other commenter asserted that the ARRA does assurance, we believe the Congress has students by inexperienced, unqualified, not provide the Department with the now signaled that this focus is or out-of-field teachers), we do not authority to require States to collect and unnecessarily narrow and that believe it is necessary to include publicly report data and information on additional measures of teacher quality additional indicators that would principals. are needed—and, in particular, provide data specifically on the Discussion: We disagree with the measures that are associated more distribution of in-field or experienced commenters that the Department has closely with the outcomes of teaching teachers. (We note also that section insufficient justification for establishing and learning than with inputs such as 9101(23) of the ESEA requires that a these requirements. Section 14005(a) of qualifications. The metrics related to highly qualified teacher demonstrate the ARRA authorizes the Secretary to teacher effectiveness are accordingly subject knowledge or competence in the require States to submit an application intended to provide new information on subjects the teacher teaches in addition for funds under this program containing teacher quality, separate and apart from to possessing a State teaching such information as the Secretary may information currently available on credential; consideration of whether a reasonably require. In addition to States’ compliance with the highly teacher is teaching in or out of field is, requiring States to take actions to qualified teacher requirements of the thus, incorporated in the definition of address inequities in the distribution of ESEA. ‘‘highly qualified teacher’’ used in highly qualified teachers, the statutory Changes: None. Indicator (a)(1).) assurance in this education reform area Comment: One commenter objected to Changes: None. (section 14005(d)(2)) requires States to the proposed metrics relating to teacher Comment: Several commenters made ‘‘take actions to improve teacher and principal effectiveness on the general statements that the definition of effectiveness’’ and, thus, clearly grounds that, in estimating the burden ‘‘highly qualified teacher’’ is flawed or provides a basis on which to establish associated with these requirements, the does not identify high-quality teachers, requirements for the collection and Department stated that it does not though some acknowledged the public reporting of data and information possess definitive information on the ‘‘interim utility’’ of the term as other, related to teacher effectiveness. As extent to which teacher and principal

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evaluations are officially implemented principal effectiveness ratings (as and have sought to reduce that burden in LEAs. required under proposed Indicators significantly, as reflected in the changes Discussion: We disagree with the (a)(2) through (a)(6)) are not comparable to the proposed requirements discussed commenter’s assertion that a lack of across those systems (i.e., in States that elsewhere in this notice. With respect to information on whether teacher and do not require the implementation of these indicators, however, we continue principal evaluations are officially uniform evaluation systems across to believe that the benefits of collecting implemented in LEAs casts doubt on the LEAs), such data will nonetheless and reporting the data and information justification for these metrics and provide information on teacher and for all LEAs outweigh the costs of doing believe, moreover, that the metrics will principal effectiveness that is so. help to fill the information gaps that informative for stakeholders, most Further, we do not believe that it caused the Department’s burden importantly parents. Although would be sufficient to report data for estimates to be speculative. variations in the quality of those only a sample of LEAs. The Department Changes: None. evaluation systems may also mean that believes that the State should make this Comment: Numerous commenters these ratings data are not reliable in all information publicly available for all expressed concerns about the utility or cases, requiring the reporting of these LEAs so that each LEA can make any purpose of the proposed metrics relating data for all LEAs will nonetheless shine necessary reforms. to teacher and principal effectiveness. A a light on the limitations of current Changes: None. few commenters asserted that the data evaluation systems where they exist and Comment: A few commenters and information collected and publicly can drive efforts to improve those recommended that the Department reported for these metrics would not systems where such improvements are review data collections currently in the enable stakeholders to identify effective needed. Because the methods for EDFacts system to ascertain whether teachers or principals or to improve evaluating teachers vary greatly across data for the proposed metrics on teacher student achievement; to this point, States and LEAs, the Department does and principal effectiveness are already many commenters asserted that, due to not believe that establishing a national available or potentially available variation in the design and model for reporting these data is through modifications to other data. implementation of local evaluation appropriate. systems, the data and information Related to this point, one commenter Changes: None. noted that new data collection collected and publicly reported for these Comment: Several commenters requirements may not be the most metrics would not be comparable across cautioned that the proposed metrics immediately effective means for LEAs (or States), while another would force standardization upon local measuring a State’s compliance with the commenter asserted that local evaluation systems (which in some statutory assurance, given the amount of evaluation systems are generally of poor cases would be prohibited by State laws time and effort initially needed to meet quality. In light of concerns about providing for local control over comparability, one commenter education) and would reduce the requirements. suggested that the Department provide a opportunities for local innovation; Discussion: The Department model for reporting the data and related to this point, one commenter appreciates these comments and, as information for these proposed metrics, requested clarification about whether noted, has sought to use data and while another commenter recommended the proposed metrics would effectively information from existing Department that, in lieu of these metrics, the require that all LEAs in a State employ collections in the metrics for this Department instead direct States to a single, uniform system for evaluating program to the extent possible. develop plans for working with their teachers and for evaluating principals However, the Department does not LEAs to improve evaluation systems and that LEAs aggregate and report currently collect data related to teacher and the distribution of effective teachers results from that system. and principal effectiveness from States and principals across LEAs and schools. Discussion: Although the Department through the EDFacts system or other Discussion: While we appreciate the hopes that the metrics in this area will systems so it is necessary for us to questions raised by these commenters help promote the effective design and establish a new requirement for the regarding the purpose of the data and use of evaluation systems generally collection of those data. information that States will collect and across LEAs and States, we are not Changes: None. publicly report under these metrics, we requiring with these metrics that States Comment: One commenter requested believe that the metrics will serve a very and LEAs implement uniform teacher clarification as to whether the collection important purpose, namely, providing and principal evaluation practices. and reporting of data and information new, crucially valuable information on Changes: None. for the proposed metrics relating to teacher and principal quality. As Comment: Several commenters teacher and principal effectiveness must discussed earlier, information available asserted that the proposed metrics occur regularly or one time only. on teacher and principal quality has relating to teacher and principal Discussion: Consistent with the final historically been limited, at both the effectiveness would be unduly State Plan requirements established in State and Federal levels, to information burdensome on States and LEAs, this notice, a State must collect and on the qualifications or years of service particularly on small States and States publicly report the data and information of teachers. By requiring States to with many small LEAs. A few of these required for these metrics at least comply with these metrics, the commenters requested that the annually and must be able to complete Department intends that new and more Department provide States with the its first collection and reporting of the comprehensive information will be flexibility in meeting these data and information as soon as possible available for stakeholders and that this requirements, such as by collecting the but no later than September 30, 2011. availability will, in turn, shift the focus data and information for a The Department will determine at a of teacher quality debates toward the representative sample rather than for all later date whether the collection and effectiveness of educators. of the LEAs in the State. public reporting of these data and Although variations in the design and Discussion: We recognize that the information will continue after implementation of evaluation systems proposed requirements for this program September 30, 2011. may mean that the data on teacher and place some burden on States and LEAs Changes: None.

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Comment: A few commenters schools that lead to dramatic gains in descriptions. A few other commenters recommended that the Department or student achievement; indicators on the recommended or intimated that States States take a more proactive approach teaching of Advanced Placement, be required to describe specific toward improving teacher and principal International Baccalaureate, and other components or aspects of evaluation evaluation systems and developing advanced courses in secondary schools; systems used in LEAs, such as purpose, effective school personnel than what is and an indicator on teacher attendance, methodology, participants, frequency of reflected in the proposed metrics in this particularly in high-poverty schools. implementation, feedback protocols, area. These commenters’ Discussion: Although the Department and procedures for review and appeals. recommendations include the following: believes that there is value in In contrast, one commenter the Department should promote the establishing indicators such as those recommended that States be provided development of evaluation systems that mentioned by the commenters in the flexibility in the types of information or are specifically designed for that requirements for this program, we are level of detail to be included in these purpose, incorporate student mindful of ensuring that we minimize to descriptions. achievement and evidence-based the extent possible the burden on States Discussion: We agree that more instructional practices as evaluation and LEAs in meeting these requirements information on how States may meet the criteria, and use a range of ratings and, in this instance, do not wish to requirements to describe teacher and beyond simple bimodal ratings (e.g., create additional burden in the form of principal evaluations is necessary and ‘‘meets expectations’’ versus ‘‘does not additional requirements. will address this issue in guidance for meet expectations’’); the Department Changes: None. this program. In recognition, however, should define ‘‘teacher effectiveness’’ Teacher and Principal Effectiveness: of the limited availability of information and provide guidance to States and Descriptors (a)(1) and (a)(2)— on a ‘‘typical’’ evaluation system and LEAs on how to align evaluation Evaluation System Descriptions the potential for wide variation in these systems with that definition; the systems across LEAs and States, and Department should provide guidance to Comment: One commenter requested also of the additional burden that may States and LEAs on standards for clarification as to the purpose of the be conferred upon States and LEAs in principal evaluation; and States should proposed requirements to describe the responding to additional requirements, work toward developing systems for systems used to evaluate the we do not believe it would be licensing teachers based on performance of teachers and principals appropriate to include additional effectiveness. in LEAs (Descriptors (a)(1) and (a)(2)). requirements in this area. Discussion: We appreciate these The commenter intimated that the Changes: None. recommendations and agree in large proposed descriptors were unnecessary and that indicators alone should be Teacher and Principal Effectiveness: part that the Department should play a New Indicators (a)(3) and (a)(6) role in supporting the development of sufficient to provide information on teacher and principal effectiveness. (Proposed Indicators (a)(2) and (a)(5))— effective teachers and principals and the Whether Systems Include Student systems used to evaluate their Discussion: As reflected in the NPR and discussed previously in this notice, Achievement Outcomes as Evaluation performance. In fact, the Department Criterion has sought and continues to seek to we believe that descriptions of teacher promote the implementation by States and principal evaluation systems will Comment: One commenter expressed and LEAs of evaluation systems that provide stakeholders with much-needed support for proposed Indicators (a)(2) produce meaningful and actionable (and, often, otherwise unavailable) and (a)(5), which ask whether the information on teacher and principal information on the design and usage of systems used by LEAs to evaluate the effectiveness through its competitive these systems in LEAs and States. performance of teachers and principals grant programs, including the Teacher Moreover, we believe that these include student achievement outcomes Incentive Fund. While we will take descriptions will provide necessary as an evaluation criterion, and these recommendations into context for the data and information encouraged the Department to promote consideration for those programs and in collected and reported for the indicators the use of such outcomes in future policymaking (including in the on ratings received by teachers and performance evaluations. A number of reauthorization of the ESEA), we do not principals from these systems (new other commenters expressed concern believe it would be appropriate to Indicators (a)(3) through (a)(7) about these proposed indicators. These incorporate them formally into the (proposed Indicators (a)(2) through commenters asserted that fair and requirements for this program. (a)(6)); without information on the effective teacher and principal Changes: None. design and usage of evaluation systems, evaluation systems include multiple Comment: Several commenters data on these ratings may be too open evaluation criteria and/or employ recommended that the Department to interpretation by stakeholders and comprehensive evaluation frameworks include additional metrics related to may ultimately not be useful. and that, through the proposed effective teaching and learning, Changes: None. indicators, the Department was placing including: Indicators about State efforts Comment: Several commenters undue weight or focus on the inclusion to improve teacher preparation, requested that the Department provide of student achievement outcomes to the recruitment, and compensation; more information or greater prescription detriment of other factors important to indicators about factors likely to attract on the proposed requirements to evaluation. One commenter asserted high-quality teachers to struggling describe the systems used to evaluate that using student achievement schools, such as teaching and learning the performance of teachers and outcomes in evaluating teachers and conditions, leadership, safety, principals in LEAs. Several commenters principals is inappropriate. autonomy, and flexibility; indicators recommended that the Department In light of concerns such as these, a about other factors likely to affect further specify the information that few commenters recommended that the student achievement, such as class size, should be included in providing these Department ask for data or information attendance, and student migration; descriptions, and a few commenters on specific criteria used to evaluate indicators relating to specific inquired as to whether the Department teacher and principal performance other educational actions and practices in would provide a sample or rubric for the than student achievement outcomes,

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such as preparation, planning, teaching Discussion: These commenters appear use of results from academic practices, leadership skills, cultural to misunderstand the requirements assessments administered by the State competence, extracurricular roles and proposed by the Department. Although for accountability purposes as a student assignments, working conditions, and (as discussed previously) we believe achievement outcome in teacher and staff turnover rates. that student achievement outcomes are principal evaluations. One commenter Discussion: The Department agrees a central factor in effective teacher and noted that using such results to evaluate that teacher and principal evaluation principal evaluations, we are not teachers and principals is prohibited by systems generally should include, in requiring, through new Indicators (a)(3) law in the commenter’s State. Several addition to criteria relating to student and (a)(6) (proposed Indicators (a)(2) other commenters cautioned against achievement outcomes, other criteria and (a)(5)), the use of student using State assessment results to such as those noted by the commenters. achievement outcomes as an evaluation evaluate teacher and principal In providing the descriptions of teacher criterion; rather, we are requiring performance as such assessments, they and principal evaluation systems under merely that States indicate whether believe, are not designed specifically for Descriptors (a)(1) and (a)(2), we such outcomes are used in local teacher this purpose. In contrast, one encourage States to include discussion and principal evaluation systems. commenter recommended that the of those criteria. (As noted previously, Changes: None. definition of ‘‘student achievement the Department plans to provide Comment: Several commenters outcomes’’ applicable to proposed guidance for this program that will asserted that student assessment results Indicators (a)(2) and (a)(5) include State provide more information to States on should not be the sole or central student academic assessments only or primarily, describing their teacher and principal achievement outcome used in teacher so as to prevent inconsistencies in evaluation systems; among other topics, and principal evaluations and that reporting and the uncoupling of this guidance will address the multiple other outcomes should be instruction from State standards. information a State may want to include considered, such as grades; portfolios; Discussion: As discussed previously, in these descriptions with respect to and results of written work, group work, new Indicators (a)(3) and (a)(6) evaluation criteria.) presentations, and ‘‘capstone’’ projects. (proposed Indicators (a)(2) and (a)(5)) do In contrast, one commenter However, we also believe that student not require the use of any specific recommended that the definition of achievement outcomes are a central student achievement outcome student achievement outcomes include factor in evaluation systems that yield (including results from student only summative and interim fair and reliable assessments of assessments such as the State’s assessments, and another commenter performance (as stated in the NPR (74 assessments) in teacher and principal suggested that, in the evaluation of FR 37838)). Therefore, we believe that evaluations. If an LEA or State were to principals, student growth should be the requiring States to report on the use student assessment results as an only student achievement outcome evaluation criterion, it would be free to inclusion of student achievement specified. use results from assessments other than outcomes as a specific criterion in Discussion: We agree with the the State assessments if it finds those evaluation systems is warranted. commenters that student assessment assessments to be appropriate or Changes: None. results should not be the sole effective (and permissible) in the Comment: Several commenters achievement outcome used in teacher or principal evaluation context. recommended that we include evaluating teachers and principals. The Changes: None. indicators to address whether teacher definition of student achievement Comment: One commenter suggested and principal evaluation systems outcomes applicable to new Indicators that using student assessment results incorporate opportunities for feedback (a)(3) and (a)(6) (proposed Indicators may be problematic in cases where and professional development and the (a)(2) and (a)(5)) includes, in addition to teachers and principals are not nature or types of those opportunities. student assessment results, student evaluated on an annual basis. Discussion: The Department agrees grades and rates at which students are Discussion: As stated previously, the that strong teacher and principal on track to graduate from high school Department is not requiring the use of evaluation systems will include and does not prohibit the consideration student assessment results in teacher mechanisms for providing teachers and of additional outcomes in teacher and and principal evaluations as part of the principals with feedback about their principal evaluations, provided at least requirements for this program. In performance and for identifying one of these outcomes is used. Further, general, however, the Department does professional development and other we note that the purpose of the not believe that considerations of the support needs and opportunities based definition of student achievement frequency of teacher and principal on those results. We encourage States to outcomes is, again, not to require the evaluations should negatively affect discuss the inclusion of these elements use of any specific student achievement decisions to include results from in their descriptions of teacher and outcome in teacher and principal student assessments in those principal evaluation systems under evaluations, but rather to specify the evaluations. In the Department’s view, Descriptors (a)(1) and (a)(2), but are not types of student achievement outcomes there is nothing to prevent LEAs from requiring States to collect and report that a State would include when using student assessment results over information separately and specifically responding to the indicators. Although multiple years in evaluations of teachers on these elements as part of the (as reflected in the discussions earlier in and principals if such evaluations occur requirements for this program. this notice) the Department believes that less than annually. Changes: None. such outcomes should be included in Changes: None. Comment: Several commenters local evaluation systems, a State and its Comment: One commenter requested objected to the Department’s proposal to LEAs remain permitted to use these or clarification of the phrase ‘‘rates at require the use of student achievement other achievement outcomes or no such which students are on track to graduate outcomes in teacher and principal outcomes at all. from high school,’’ which is included evaluations on the grounds that to do so Changes: None. among the outcomes identified in the exceeds the requirements of the statute Comment: A number of commenters Department’s definition of student or is not supported by research. expressed concern about the specific achievement outcomes applicable to

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proposed Indicators (a)(2) and (a)(5). on the teachers and principals receiving one commenter stated that reporting The commenter asserted that this phrase the lowest ratings from evaluations, personally identifiable information may is ambiguous as written. including whether those teachers and violate employment laws, and another Discussion: Although we are principals continue teaching or remain stated that reporting such information is uncertain of the ambiguity to which the employed by the LEA. prohibited by a court ruling in the commenter is referring, we will further Discussion: We appreciate the commenter’s State. Other commenters clarify this phrase in guidance for this commenters’ support for these asserted or suggested that reporting program. indicators and agree that information personally identifiable information Changes: None. such as that suggested by the unfairly affects teachers and principals Comment: One commenter requested commenters would be valuable to in small and rural LEAs. clarification as to the relationship collect. We are mindful here, however, Discussion: We agree that teacher and between proposed Indicators (a)(2) and of local restrictions on reporting data on principal privacy must be protected and (a)(5) and the proposed selection the outcomes of teacher and principal will provide guidance to States on criterion for the Department’s Race to evaluations in terms of retention or publicly reporting data and information the Top Fund regarding the extent to removal, and thus believe it would be for these indicators in a manner that which an applying State, in more appropriate to collect information achieves the twin goals of optimized collaboration with its LEAs, has a plan on policies for the use of evaluation reporting and protection of personally to increase the use of student growth as results, rather than actual outcomes. In identifiable information. a significant factor in the evaluation of addition, we believe that it is important Changes: None. teachers and principals. to collect information on the use of Comment: One commenter requested Discussion: In the July 29, 2009 notice evaluation results not just with respect clarification as to whether and how the of proposed priorities, requirements, to teacher and principal retention and requirements of the Family Educational definitions, and selection criteria for the removal, but for other employment Rights and Privacy Act (FERPA) apply Race to the Top Fund, the Department decisions as well, such as development, to the public reporting of data and proposed a definition of ‘‘student compensation, and promotion. information for the proposed indicators. growth,’’ which defined that term as the Changes: We are revising Descriptors Discussion: The requirements of change in achievement data for an (a)(1) and (a)(2) to require States also to FERPA apply to the disclosure of individual student between two points describe the use of results from teacher information from education records of in time. We agree that, to the extent and principal evaluation systems in students. They do not address possible, there should be consistency in decisions regarding teacher and disclosure of information in records definitions across programs. principal development, compensation, relating to the employment of teachers Changes: The Department has revised promotion, retention, and removal. and principals and, thus, do not apply proposed Indicators (a)(2) and (a)(5) so Comment: A few commenters to the collection and public reporting of that States will now report on the extent requested clarification as to how these data and information for new Indicators to which systems used to evaluate the requirements could be met in the case (a)(3) through (a)(7) (proposed performance of teachers and principals of an LEA whose evaluation system Indicators (a)(2) through (a)(6)). include student achievement outcomes does not provide ratings or levels. One Changes: None. or student growth data as an evaluation of these commenters questioned Comment: One commenter noted that criterion. These Indicators have been whether reporting would be required for teacher evaluations are typically renumbered as Indicators (a)(3) and an LEA that uses its evaluation system performed by principals and claimed (a)(6) respectively. to determine whether teachers or that collecting and publicly reporting The Department has also added a new principals meet or do not meet the data and information for proposed definition of student growth, which is expectations but does not otherwise Indicators (a)(3) and (a)(4) would have defined as the change in achievement implement a rating scale. the unintended consequence of for an individual student between two Discussion: The Department will principals providing all teachers with or more points in time. The definition provide guidance to States on how to the same rating out of fear of public further provides that for grades in which publicly report indicator data for LEAs scrutiny. the State administers summative whose evaluations systems do not Discussion: We believe that concern assessments in reading/language arts produce ratings or levels for teacher or over this potential consequence is and mathematics, student growth data principals. We note here, however, that outweighed by the value to stakeholders must be based on a student’s score on we would consider binary and other interested parties of making the State’s assessment under section classifications of effectiveness (e.g., the data and information for these 1111(b)(3) of the ESEA. A State may also ‘‘meets expectations’’ versus ‘‘does not indicators publicly available. In include other measures that are rigorous meet expectations’’) as effectiveness addition, we question whether this and comparable across classrooms. ratings and that States should include concern is warranted, as a public LEAs using such classifications when observer would typically expect to see Teacher and Principal Effectiveness: publicly reporting data on these variation in ratings according to New Indicators (a)(3) Through (a)(7) indicators. performance and, accordingly, would be (Proposed Indicators (a)(2) Through Changes: None. struck by a decision to provide all (a)(6)) Comment: A number of commenters teachers with a uniform rating. Comment: A few commenters expressed concerns about ensuring that Changes: None. expressed support for proposed teacher and principal privacy is Comment: One commenter requested Indicators (a)(2) through (a)(6) pursuant protected in publicly reporting data and clarification as to whether the collection to which States would be required to information for these proposed and public reporting of data for the provide data and information on the indicators. In general, these commenters proposed indicators on the ratings of performance ratings of teachers and asserted that information that is teachers (proposed Indicators (a)(3) and principals. These commenters further personally identifiable must be (a)(4)) would apply only with respect to recommended that additional protected and not made publicly teachers who meet the definition of information be collected and reported available. In support of this assertion, ‘‘highly qualified teacher.’’

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Discussion: The collection and public Education Reform Area (b)—Improving specific deadline for States to reporting of data for these indicators the Collection and Use of Data implement such a system, the applies with respect to all teachers who Department believes that the ability of Indicator (b)(1) receive ratings from the evaluation States to collect and analyze data is vital systems, not just to those who are highly General to advancing essential education qualified. Comment: Numerous commenters reforms. As a result, the Department is opposed the proposed requirement that Changes: None. encouraging States to implement an States have in place, as soon as possible SLDS as soon as possible and is Comment: One commenter requested but no later than September 30, 2011, a requiring that they do so no later than clarification as to how full-time statewide longitudinal data system September 30, 2011. The Department equivalent teachers should be calculated (SLDS) that contains all of the elements believes that two years is sufficient time for purposes of reporting data on the described in section 6401(e)(2)(D) of the for each State to implement fully an proposed indicators on the ratings of America COMPETES Act (COMPETES SLDS, including to consult with key teachers. Act). They described the deadline as stakeholders, regardless of how many of Discussion: In reporting data for these arbitrary and unrealistic, and indicated the required elements it currently has in indicators, teacher ‘‘head counts’’ that it would not allow States sufficient place. We do not agree that the timeline should be used rather than full-time time to plan, develop, and implement a should be shortened, recognizing that equivalent counts. In other words, data system that includes valid and reliable the full development and should be reported for each teacher who data. implementation of these systems, in The commenters presented various receives a rating from the evaluation many cases, could not be accomplished arguments why States would not be able system regardless of the full-time or in less than a year. to meet this deadline. One commenter part-time status of that teacher. To meet the costs of developing and indicated that States would need more implementing an SLDS, States have Changes: None. time to build teacher knowledge, available a number of resources. States Comment: Regarding the indicator on support, and trust around the may use the Government Services funds whether the number and percentage of implementation of an SLDS. Another they have received under SFSF and teachers rated at each performance commenter emphasized that the funds awarded under the Department’s rating or level are available for each Department should consider that it takes SLDS Grant program. States may also school in the LEA in a manner easily time to collaborate and build trust use funds they receive under the Race accessible and a format easily among the various stakeholders to the Top Fund to develop and understandable by the public (proposed involved with such systems. Another implement an SLDS. Indicator (a)(4)), one commenter argued that States would be unable to Federal law does not prohibit the requested clarification on the meaning meet the deadline because Federal law sharing and use of data between K–12 of ‘‘in a manner easily accessible and a does not currently authorize the sharing and postsecondary systems, provided format easily understandable by the of data between K–12 and that certain Federal requirements are public.’’ Specifically, the commenter postsecondary systems. Finally, several met, so there is no reason to extend the sought clarification as to whether this commenters indicated that States would deadline on that basis. Elsewhere in this phrase meant that, to respond not have the financial resources section, we provide a fuller discussion affirmatively to this indicator, the data necessary to develop and implement an of issues relating to data sharing and for an LEA must be made available in SLDS by the September 30, 2011 student privacy. multiple languages. deadline. Changes: None. Some commenters suggested Comment: One commenter suggested Discussion: The Department did not alternative deadlines for the that the Department consider using the intend by the referenced phrase to establishment of an SLDS. A few of Data Quality Campaign’s (DQC) require the reporting of data in multiple these commenters argued that the collection efforts on statewide languages. To clarify the Department’s Department should establish deadlines longitudinal data systems in order to intent, we are revising new Indicator on a State-by-State basis, taking into minimize the State reporting burden (a)(5) (proposed Indicator (a)(4)) to consideration a State’s current progress and consider pre-populating the SFSF require States to indicate, for each LEA, in developing such a system. Others reporting tool with the information whether teacher performance data are argued that States that have received an reported to DQC. publicly reported for each school in the award under the Department’s SLDS Discussion: The Department LEA, consistent with the definition of grant program should be permitted to appreciates DQC’s role in collecting and publicly report that we have established abide by the implementation timeline analyzing information on States’ efforts in this notice. Accordingly, this under that program. One commenter in developing statewide longitudinal indicator concerns whether such data recommended accelerating the deadline data systems. The information States are made available to anyone with to September 30, 2010 to ensure that voluntarily collect and provide to the access to an Internet connection without States comply with the requirement DQC is valuable in measuring States’ having to submit a request to the entity before the September 30, 2011 deadline progress on SLDS development and that maintains the data and information for obligating SFSF funds. One should facilitate States’ ability to report in order to access that data and commenter argued that data collected as the requirements in the SFSF. The information. early as 2011 will not reflect the Department, however, is not using the Changes: We are revising new potentially positive impact of SFSF data provided by States through the Indicator (a)(5) (proposed Indicator funds on student achievement. annual DQC survey for several reasons. (a)(4)) to require States to indicate, for Discussion: The ARRA requires every First, DQC’s survey does not fully align each LEA, whether teacher performance State receiving SFSF funds to with the elements specified in the data are publicly reported for each implement an SLDS that contains all of COMPETES Act. Second, we do not school in the LEA, consistent with the the elements specified in section believe it is appropriate to rely on data definition of publicly report that we 6401(e)(2)(D) of the COMPETES Act. collected by a third party to confirm have established in this notice. While the ARRA does not establish a States’ efforts with respect to the

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development and implementation of an development as a key component of Department establish a uniform SLDS that includes all of the elements implementing an SLDS and methodology and clearinghouse for specified in the COMPETES Act. recommended that the Department data-sharing among State agencies. Finally, we note that if States are require States to address the provision Discussion: The Department collecting and providing this of professional development in their encourages States to work together and information to the DQC, it should not plans. Commenters also noted that share best practices in creating and pose much additional burden on States addressing professional development implementing their SLDSs, in particular to provide similar information to the needs in order to ensure that an SLDS Department. is used effectively by teachers will with respect to the reporting of data for Changes: None. result in additional financial burden on students from the State who attend out- Comment: Some commenters urged the States. of-State IHEs or schools or students who the Department to focus on both Discussion: The Department agrees have moved across State lines. We note governance and implementation of an that professional development plays a that the Department has proposed, for SLDS to ensure meaningful data may be key role in ensuring that teachers and the Race to the Top Fund, to establish accessed by teachers and administrators administrators are prepared to use the an invitational priority for States that to inform decisions and instruction. One SLDS effectively to improve teaching propose to work together to adapt one commenter noted that access and use by and learning. The Department State’s statewide longitudinal data teachers and administrators are key encourages a State to consider the system so that it may be used, in whole elements in the development of an professional development needs of or in part, by other State(s), rather than SLDS. A few commenters requested that educators when preparing its plan for having each State build or continue the Department provide guidance on implementing its SLDS. We encourage building its system independently. The how, in establishing an SLDS, a State States and LEAs to use all appropriate Department will consider issuing should address such issues as funding sources, including those guidance to States on ways they can governance, professional development, identified earlier, to support their collaborate with each other in security, identity management, process efforts, including efforts to provide developing these systems. controls, operations, and sustainability. professional development. Discussion: When developing their Changes: None. The Department does not plan to plan for developing and implementing Comment: One commenter expressed establish a uniform methodology and an SLDS, we encourage States to concern that there were not adequate clearinghouse for data sharing among consider not only the technical incentives for IHEs to provide the data the States because the Department’s goal requirements, but also governance needed for inclusion in an SLDS. One is to assist States in developing issues, administrative needs, and access commenter stated that LEAs and States individual data systems that can and use by practitioners. The should coordinate efforts in developing provide important data at the State, Department agrees that successful an SLDS so that compatible systems are LEA, and school levels. management is important in established and so that LEAs do not Changes: None. establishing an SLDS that will be used develop data systems that are Comment: One commenter claimed effectively. The Department encourages incompatible with the SLDS. each State to describe in its plan how it Discussion: A high-quality SLDS that the Department’s proposal requires will address governance and containing data on students from pre-K States to align all courses with a management issues in the development through postsecondary education common core curriculum. This and implementation of its SLDS. should benefit IHEs as well as LEAs and commenter requested that in To assist in system design and elementary and secondary schools. In establishing final requirements for the development, the National Center for developing its SLDS, a State should SFSF program, the Department Education Statistics (NCES) has posted consult with IHEs, LEAs, and other reconsider the date by which States standards and guidelines at the appropriate stakeholders to ensure that must implement an SLDS and allow following Web site: http://nces.ed.gov/ the SLDS meets the needs of these States time to establish common Programs/SLDS/ various entities. Inasmuch as each standards and update their SLDS with standardsguidelines.asp. The NCES State’s governor assured in the State’s those standards so as not to duplicate handbooks available at this Web site SFSF Phase I application that the State effort. include schemas of the Schools would develop an SLDS, the governor is Discussion: The Department is not Interoperability Framework Association in a unique position to bring all of these requiring that a State align all courses and the Postsecondary Electronic stakeholders together to collaborate on with a common core curriculum or that Standards Council, the National SLDS development and a State use a common set of standards Education Data Model of the National implementation. in its SLDS. Under the ARRA, States Forum on Education Statistics, the data Changes: None. receiving SFSF funds must establish Comment: Some commenters glossary of NCES’ Integrated and implement an SLDS that includes suggested that the Department provide Postsecondary Education Data System, all 12 elements required under the guidance to States on how they might and others. Work is currently underway America COMPETES Act, but these work together on the development of an to create comprehensive standards and elements do not include alignment with SLDS, especially with regards to guidelines for use by States to promote a common core curriculum. While the reporting data on students who move data quality and interoperability of data Department encourages State systems both within States and across across State lines or students from the State who attend an out-of-State IHE or participation in the development of States. The NCES site will be modified, common internationally benchmarked as appropriate, to include up-to-date school. A few commenters also standards and assessments, we believe resources. requested that the Department identify Changes: None. or develop grant opportunities that that the implementation of a high- Comment: A few commenters encourage States to work together to quality SLDS need not wait for those expressed concern that the notice did create compatible data systems. Another activities to be completed. not address the role of professional commenter suggested that the Changes: None.

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Compliance With the Family coursework on students who attend out- FERPA. States also may implement an Educational Rights and Privacy Act of-State or private IHEs. SLDS that includes the disclosure and Discussion: Proposed Indicator (c)(13) Comment: Some commenters redisclosure of personally identifiable would have requested that States collect questioned whether establishing and information from education records in a and report college course completion implementing an SLDS in the manner manner that complies with FERPA. data for students who enroll in a public We first address the question of the proposed in the NPR would violate IHE, whether or not the IHE is in-State disclosure and redisclosure of State and Federal law, including or out-of-State. We recognize that personally identifiable information in FERPA. In this regard, a number of collection of data from out-of-State IHEs the pre-K context. The disclosure of commenters noted that some of the in a FERPA-compliant manner could be personally identifiable information from Department’s past interpretations of burdensome on States and, therefore, pre-K programs to LEAs is not affected FERPA may pose a barrier to States’ are revising this Indicator to provide by FERPA with respect to pre-K ability to establish an SLDS that that States need only collect and programs that do not receive funding contains all 12 COMPETES Act publicly report these data from public from the Department, as FERPA does elements and still comply with FERPA. IHEs within the State. We also not apply to those programs. With One commenter requested that any data encourage States to consult the NCES respect to pre-K programs that receive collection that violated FERPA or other Web site for further assistance in funding from the Department, the non- Federal law be deleted from the developing statewide longitudinal data consensual disclosure of personally indicators and descriptors. systems. This Web site can be accessed identifiable information from the Many commenters supported the at http://nces.ed.gov/dataguidelines/. students’ pre-K education records to Department’s commitment in the NPR to Changes: We have modified new LEAs is permitted under the enrollment provide guidance regarding statewide Indicator (c)(12) (proposed Indicator exception in the FERPA regulations, longitudinal data systems and FERPA. (c)(13)) to require that States provide provided that certain notification and The commenters suggested that the college course credit data only for access requirements are met (20 U.S.C. Department provide guidance or clarity students enrolled in public in-State 1232g(b)(1)(B); 34 CFR 99.31(a)(2) and on such issues as the ability to collect, IHEs. 99.34). report, audit, and share information Comment: One commenter suggested The second issue raised by between State agencies. that, because States may collect data commenters involves the sharing of Discussion: The establishment of a only for those students who approve the information between postsecondary statewide longitudinal data system with release of their student records, the data institutions and SEAs. Similar to the the necessary functionality to would not be reliable. pre-K context, the non-consensual incorporate all 12 of the COMPETES Act Discussion: As discussed in more disclosure of personally identifiable elements, by itself, does not violate detail later in this section, under various information from K–12 education FERPA. The actual implementation of exceptions in FERPA, a State may records to a postsecondary institution is such a system (including the disclosure collect and disclose student-level data permitted under the enrollment and redisclosure of personally for the purpose of evaluating education exception, provided the notification and identifiable information from education programs and improving instruction access conditions are met. A records) also does not violate FERPA without prior written student or parent postsecondary institution may disclose provided that States follow FERPA’s consent. Moreover, the Department is personally identifiable information to an specific requirements. In the following not asking States to collect data only for SEA under the evaluation exception if sections, in response to specific those students who approve the release the SEA has the authority to conduct an questions from commenters, we provide of information from their student audit or evaluation of the postsecondary greater detail about how an SLDS may records. institution’s education programs (20 be established and implemented in Changes: None. U.S.C. 1232g(b)(1)(C), (b)(3), and (b)(5); compliance with FERPA. The Comment: Several commenters 34 CFR 99.31(a)(3) and 99.35). States Department is not aware of any other recommended that the Department that have not established the requisite Federal laws that would prohibit or clarify whether States have the authority authority may do so in a number of pose barriers to a State establishing an under FERPA to share data between pre- ways, such as (1) creating an entity in SLDS. kindergarten-through-grade-12 (pre-K– the State to house the SLDS and To the extent that State laws present 12) and postsecondary data systems, endowing that entity with the authority barriers to the development of an SLDS particularly with respect to the to conduct evaluations of elementary, in compliance with the ARRA, the State requirements in new Indicators (c)(11) secondary, and postsecondary education will likely need to take specific actions and (c)(12) (proposed Indicators (c)(12) programs, or (2) granting authority at the to address those barriers. As part of its and (c)(13)) that States collect and SEA or IHE level to conduct evaluations application, each State will identify any report student-level college enrollment of elementary, secondary, and obstacles, including legal barriers, that and course completion information. One postsecondary education programs. may prevent it from implementing an commenter specifically asked whether a States may grant authority through SLDS by the September 30, 2011 State educational agency (SEA) may various vehicles, including, for deadline. The Department will provide access postsecondary education records example, executive orders, regulations, further clarification in this area as of former students without explicit and legislation. In some States, the warranted. student permission. formation documents for SEAs, IHEs, or Changes: None. Discussion: As stated earlier, the other educational entities may already Comment: Some commenters establishment of a statewide grant the necessary authority. expressed concerns that the requirement longitudinal data system with the The Department recognizes that there to collect and report student data from necessary functionality to incorporate is considerable variation among States’ out-of-State IHEs would violate FERPA. all 12 of the COMPETES Act elements, governance structures and laws, and A few commenters asked the including the sharing of data between that in some States using the evaluation Department to provide guidance on how pre-K–12 and postsecondary data exception to obtain personally States can collect data on remedial systems, by itself, does not violate identifiable information from

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postsecondary institutions may be disaggregating data by subgroups in a Comment: Two commenters difficult. The Department is currently manner that is statistically accurate due recommended that the Department reviewing its regulations and policies in to the fact that most high school clarify whether the requirement in the this area and will be in close graduating classes have 100 or fewer COMPETES Act that the SLDS have the communication with States over the students. capacity to communicate with higher next several months regarding these Discussion: The Department does not education data systems means data issues. Of course, the Department also is have a definition of ‘‘successful integration or two-way communications. available, upon request, to provide transition’’ at this time. States and LEAs Another commenter asked whether States with technical assistance on how may use many indicators to determine these data can be merged for program to implement an SLDS that meets the successful transition, which may evaluation and policy analysis requirements of FERPA. include the ability to transition from purposes. Changes: None. secondary school to postsecondary Discussion: The COMPETES Act Comment: One commenter school within four to six years, an specifies that an SLDS have the capacity encouraged the Department to revisit analysis of trends in student to communicate with higher education FERPA interpretations related to SLDSs, demographics, program participation data systems. Therefore, statewide including on the issue of sharing data rate, courses taken or passed as they longitudinal data systems should have between SEAs and State workforce relate to participation in remediation the ability to link an individual student agencies. programs in postsecondary education record from one system to another. Discussion: Under current Department settings, time needed to graduate, and Additionally, these systems should meet regulations, FERPA prevents SEAs and differences in retention and persistence interoperability and portability LEAs from non-consensually disclosing in community colleges versus four-year standards, which will ensure that the personally identifiable information from institutions. systems provide timely and reliable education records to State workforce As discussed previously, to assist in opportunities to share data across agencies. However, the sharing and SLDS design and development, NCES different sectors within a State and reporting of personally identifiable has posted standards and guidelines at across States. Timely and reliable information from education records in the following Web site: http:// information from across sectors will de-identified form is permissible under nces.ed.gov/Programs/SLDS/ facilitate the evaluation of which FERPA (see 34 CFR 99.31(b)). standardsguidelines.asp. The NCES program or combinations of programs is Furthermore, the reporting of handbooks available at this Web site improving outcomes for students. Changes: None. individually identifiable data by a State include schemas of the Schools agency that does not maintain education Comment: One commenter expressed Interoperability Framework Association concern that the requirement that the records is not covered by FERPA and the Postsecondary Electronic inasmuch as FERPA applies only to the SLDS communicate with postsecondary Standards Council, the National education data systems does not disclosure of student-level data from Education Data Model of the National education records. In other words, account for students who choose a Forum on Education Statistics, the data postsecondary path other than higher because the data maintained by a glossary of NCES’ Integrated workforce agency is not in an education education (i.e., military or employment Postsecondary Education Data System, credentials). Another commenter record, FERPA does not apply and, and others. Work is currently underway accordingly, does not present a barrier recommended that the Department to create comprehensive standards and collect data on students who enter the to the disclosure of such data by State guidelines for use by States in workforce agencies to educational workforce or apprenticeship programs, promoting data quality and or follow some form of career and agencies, to IHEs, or to the State agency interoperability of data systems both that maintains the SLDS. technical training path after high school. within States and across States. The Discussion: The Department Changes: None. NCES site will be modified, as Comment: One commenter requested acknowledges the importance of appropriate, to include up-to-date that the Department clarify its position collecting data on students who enter resources. on the National Student Clearinghouse’s careers or technical training upon Changes: None. ability to verify college enrollment and graduating from high school. However, course completion data. Comment: One commenter requested for the purposes of the SFSF program, Discussion: To the Department’s that the Department provide its long- the Department has chosen to focus its knowledge, while the National Student term expectations regarding the higher data collection and public reporting Clearinghouse does have the capacity to education data elements of an SLDS so requirements on college enrollment and verify student enrollment, persistence, that States may set up their systems to course completion. The measures and graduation data for the vast majority meet those goals and any future included in this notice will allow of IHEs, it does not collect course requirements. One commenter parents, educators, and other key completion data. recommended that the Department stakeholders to measure the efficacy of Changes: None. publish criteria to judge the efficacy of secondary schools in preparing their SLDSs. graduates for success in college. In America COMPETES Act Elements Discussion: As noted previously, work addition, collecting and publicly Comment: One commenter is underway to create comprehensive reporting data on students entering recommended that we define what it standards and guidelines for use by employment or technical training would means for students to transition States to promote data quality and be extremely complex and burdensome successfully from secondary school to interoperability of data systems that on States. postsecondary education, which is one span early childhood through Changes: None. of the elements for an SLDS described postsecondary education. The NCES site Comment: One commenter in the America COMPETES Act. referenced previously will be modified, recommended that the Department Another commenter outlined challenges as appropriate, to include up-to-date require States to include in their SLDS in tracking students after they graduate resources. an additional data element on the rate from high school, including difficulty in Changes: None. of out-of-school suspensions and

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expulsions. The commenter also COMPETES Act. Accordingly, the reliably account for the complexity of suggested that the Department make the language concerning this element that factors that affect teacher impact. One existing data collected by the we included in the NPR is taken directly commenter was specifically concerned Department’s Office for Civil Rights from the America COMPETES Act. The with the requirement that States provide (OCR) publicly available. Department does not wish to add SLDS estimates of individual teacher impact Discussion: We do not believe it is requirements that are not in the by the proposed deadline of September necessary to require States to include in COMPETES Act. 30, 2011; this commenter suggested that their SLDS an additional element on Changes: None. States instead be required to report suspension and expulsion rates. The Comment: One commenter longitudinal statistics focusing on ARRA requires only that States recommended that the Department teacher-student information and implement an SLDS that contains the eliminate the COMPETES Act develop a timeline and plan for elements described in the America requirement that an SLDS include implementing a measure of teacher COMPETES Act. We believe that student-level transcript information, impact on student learning. One requiring States to include this including information on courses commenter did not support the use of additional element in their systems completed and grades earned. The State assessments to determine teacher would be unduly burdensome. commenter said that the commenter’s impact and recommended that the data The Department’s Civil Rights Data State does not have a standard grade be used to inform program evaluation Collection is publicly available on the scale and, accordingly, the data would and professional development. Department’s Web site at http:// be meaningless. Another commenter expressed www.ed.gov/about/offices/list/ocr/ Discussion: The Department does not concerns about using value-added data.html. have the authority to change the measures to compare schools across a Changes: None. elements for an SLDS identified in the State because the overall teacher quality Comment: One commenter urged the COMPETES Act. in schools varies. In addition, one Department to clarify whether a student Changes: None. commenter expressed concerns about identifier must include pre-K students if limitations in using value-added a State is to meet the requirement that New Indicator (b)(3) (Proposed Indicator (b)(2)) measures in schools with a highly an SLDS include a unique statewide mobile student population because class identifier that does not permit a student Comment: A few commenters voiced size may be too small to make accurate to be individually identified by users of concerns about the effect that assessments of teacher impact. Another the system. The commenter also implementation of the indicators in commenter cited challenges that States requested that the Department clarify education reform area (b) would have on face in developing systems that provide that use of such an identifier would teacher privacy. One commenter estimates of teacher impact because only be required where information is requested that the Department develop there are only a few providers currently being disclosed for research and guidance on teacher privacy and teacher available to assist States in the analytical purposes and would not identifier systems, including guidance development of these systems. apply to providing student data to on preventing unauthorized access to Many commenters requested that we teachers. One commenter requested teacher information. The commenter clarify the meaning of the term ‘‘student clarity on whether the definition of recommended that teachers’ identities achievement’’ in new Indicator (b)(3) ‘‘preschool’’ included only publicly be available only to their supervisors. (proposed Indicator (b)(2)). One operated preschools, or also publicly One commenter recommended that the commenter suggested that the funded preschools and non-publicly Department require States to describe Department require States to indicate funded private preschools. how they will protect teacher whether they provide student Discussion: For purposes of confidentiality. performance data to teachers for every developing an SLDS that includes the Discussion: The Department agrees subject and grade level in which the elements described in the America that teacher and principal privacy must State administers assessments. COMPETES Act, a State will need to be protected. However, teacher and Discussion: The Department provide students enrolled in Federally principal privacy is governed by State acknowledges that few providers are and State-supported early learning law. States, LEAs, and schools should currently available to support States in programs with a unique identifier that consider their individual State statutes the development of systems that provide will follow each student through the and policies regarding teacher and estimates of teacher impact and that the pre-K–12 system. This requirement principal privacy when establishing an use of such systems is an evolving field. applies only to Federally and State- SLDS. As discussed in the Education For these and the following reasons, the supported preschools, not private Reform Area (a)—Achieving Equity in Department is adding new Indicator preschools. Teacher Distribution section of this (b)(2) and changing proposed Indicator Changes: None. notice, the Department will provide (b)(2) (new Indicator (b)(3)) to clarify the Comment: One commenter suggested guidance to States on how States should requirement that a State provide that the requirement in the COMPETES address teacher and principal privacy estimates of teacher impact. Act that an SLDS contain student-level issues when publicly reporting The Department agrees with the information about the points at which performance evaluation data in response commenter who suggested that a State students exit, transfer in, transfer out, to the relevant indicators in education report longitudinal statistics focusing on drop out, or complete pre-K–16 reform area (a). teacher-student information. Therefore, education programs should be expanded Changes: None. the Department is adding new Indicator to include information on re-enrolled Comment: Many commenters (b)(2) requiring a State to indicate students. requested that the Department clarify whether it provides student growth data Discussion: The ARRA specifically the meaning of the term ‘‘individual on their current students and the requires States receiving SFSF funds to teacher impact’’ in new Indicator (b)(3) students they taught in the previous develop and implement statewide (proposed Indicator (b)(2)). Of these, year to, at a minimum, teachers of longitudinal data systems that contain several expressed concerns about the reading/language arts and mathematics the elements identified in the America difficulty in producing data that could in the grades in which the State

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administers assessments in those the State administers assessments in instruction. Another commenter subjects, in a manner that is timely and those subjects with reports of individual expressed concerns about the ability of informs instructional programs. teacher impact on student achievement teachers to use the data to inform The Department also acknowledges on those assessments. In addition, we instruction if they have no prior financial and institutional challenges are revising the State Plan requirements assessment results to serve as a basis of States face in establishing a system for new Indicator (b)(3) (proposed comparison. through which teachers are provided Indicator (b)(2)). For new Indicator Discussion: We agree that the student estimates of their individual impact on (b)(3) (proposed Indicator (b)(2)), a State growth data and teacher impact reports student achievement in a manner that is must indicate whether it provides provided under new Indicator (b)(2) and timely and informs instruction. teachers of reading/language arts and new Indicator (b)(3) (proposed Indicator However, the Department believes mathematics in grades in which the (b)(2)) are unlikely to lead to timely reports of individual teacher impact on State administers assessments in those changes in day-to-day instruction. student achievement may be a valuable subjects with reports of individual However, the Department believes that tool to States, LEAs, and teachers. teacher impact on student achievement even if student growth data or teacher Appreciating that this is a goal that on those assessments. If the State does impact reports are not available to States should work towards in the not provide those teachers with such teachers until the end of the school year future, the Department is revising reports, it must submit a plan for how or the beginning of the following school proposed Indicator (b)(2) (new Indicator it will develop and implement the year, they can still be a valuable tool for (b)(3)) to require a State to indicate means to do so. supporting instructional programs. For whether it provides teachers of reading/ Comment: One commenter noted that example, a teacher receiving student language arts and mathematics in grades only 21 States currently report the growth data at the end of the year may in which the State administers ability to connect student and teacher adjust instructional strategies the assessments in those subjects with data. Several individual States following year based on weak reports of individual teacher impact on commented on their own limitations in assessment results by students in the student achievement. The Department is linking teachers to individual students. prior year. Concurrently, the teacher in also revising the State Plan One commenter noted that although the the subsequent grade could use the data requirements with respect to proposed State can provide data linking student to identify areas of remediation to Indicator (b)(2) (new Indicator (b)(3)) to performance to teachers, LEAs would address with incoming students. require that, if a State does not currently have to grant teachers access to the data. As a result, the Department is adding provide reports of teacher impact, it is Discussion: The Department new Indicator (b)(2) to require a State to required to submit a plan on how it will acknowledges that some States have indicate whether it provides student do so in the future; we are not requiring, several of the COMPETES elements in growth data on their current students however, that a State do so by any place and other States have only a few. and the students they taught in the specific date. However, in the SFSF Phase I previous year to, at a minimum, The Department is also revising new application, each State Governor teachers of reading/language arts and Indicator (b)(3) (proposed Indicator committed to establishing, consistent mathematics in the grades in which the (b)(2)) to clarify that, for the purpose of with the requirements of the ARRA, an State administers assessments in those providing reports of teacher impact on SLDS with all 12 elements described in subjects, in a manner that is timely and student achievement, ‘‘student the America COMPETES Act, including informs instructional programs (rather achievement’’ is measured in terms of a teacher identifier system that enables than instruction). We are also removing student performance on assessments the the State to match teachers to students. the phrase ‘‘in a manner that is timely State administers pursuant to section FERPA allows the nonconsensual and informs instruction’’ from new 1111(b)(3) of the ESEA. Thus, we are disclosure of personally identifiable Indicator (b)(3) (proposed Indicator using this term in new Indicator (b)(3) information (PII) from student records to (b)(2)). (proposed Indicator (b)(2)) differently school officials with a legitimate Additionally, because States do not than our use of the term student educational interest in the data. In administer summative assessments in achievement outcomes, which is used in general, this means that individuals in all grades or subjects, the requirements the indicators relating to teacher and an LEA, including teachers, would need apply, at a minimum, to teachers in principal performance evaluation access to PII from a student’s education those tested grades and subjects. systems in education reform area (a). records in order to perform their Changes: New Indicator (b)(2) The Department will provide professional responsibilities. Schools requires that each State indicate guidance on the use of term ‘‘teacher should have in place criteria for whether it provides student growth data impact.’’ appropriate ‘‘school officials’’ and on their current students and the Changes: New Indicator (b)(2) ‘‘legitimate educational interest’’ and students they taught in the previous requires that each State indicate should include this information in the year to, at a minimum, teachers of whether it provides student growth data annual notification to parents of their reading/language arts and mathematics on their current students and the rights under FERPA. Criteria for in the grades in which the State students they taught in the previous appropriate ‘‘school officials’’ and administers assessments in those year to, at a minimum, teachers of ‘‘legitimate educational interest’’ should subjects, in a manner that is timely and reading/language arts and mathematics reflect the need for teachers and school informs instructional programs. in the grades in which the State administrators to have access to PII from New Indicator (b)(3) (proposed administers assessments in those the SLDS to facilitate the continuous Indicator (b)(2)) has been revised to subjects, in a manner that is timely and improvement of education outcomes for require each State to indicate whether it informs instructional programs. students. provides teachers of reading/language New Indicator (b)(3) (proposed Changes: None. arts and mathematics in grades in which Indicator (b)(2)) has been revised to Comment: One commenter expressed the State administers assessments in require each State to indicate whether it the concern that States would not be those subjects with reports of individual provides teachers of reading/language able to provide teachers with the results teacher impact on student achievement arts and mathematics in grades in which of student assessments in time to inform on those assessments.

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Comment: Several commenters States are preparing their students for assessment system, as determined by expressed support for proposed postsecondary success. the Department, given that it has Indicator (b)(2) (new Indicator (b)(3)) Changes: None. submitted data to the Department on its but recommended that the Department Comment: One commenter requested science assessments and is awaiting a add an indicator on principals’ and that the Department define what is decision on those assessments. district administrators’ ability to collect, meant by the term ‘‘high-quality’’ as Discussion: Indicator (c)(1) requires manage, and analyze data to improve applied to State assessments and each State to confirm the approval instruction and decision making. indicate whether any States meet that status, as determined by the Discussion: While the Department standard. The commenter also requested Department, of its assessment system encourages States to provide supports that the Department clarify the with respect to reading/language arts, and strategies to district administrators relationship between individual State mathematics, and science assessments. and principals on collecting, managing, assessments and internationally To comply with this indicator, a State and analyzing data to improve benchmarked common assessments. The merely confirms the approval status of instruction and decision making, the commenter further requested that the its assessment system (i.e., ‘‘Full Department believes that adding Department clarify how the requirement Approval,’’ ‘‘Full Approval with additional indicators and requiring to enhance current State assessments is Recommendations,’’ ‘‘Approval additional information would add affected by efforts to develop common Expected,’’ ‘‘Approval Pending,’’ or unnecessary burden for States. State assessments. ‘‘Approval Pending, Compliance Changes: None. Discussion: By ‘‘high-quality Agreement’’). The fact that a final Comment: One commenter assessments’’ the Department means determination has not been made recommended that the Department those assessments that have been peer concerning a State’s science assessments encourage States to provide principals reviewed and approved by the would not preclude a State from with a data ‘‘dashboard’’ that includes Department. While the Department is confirming its most current approval information on student achievement, encouraging the development of status. attendance, and credit completion, and common State assessments that are Changes: None. other student data that can be linked to aligned with common, internationally Proposed Indicator (c)(2) and Proposed individual teachers. Several benchmarked student achievement Descriptor (c)(1)—Enhancing commenters expressed concerns about standards, we believe that it is critical Assessments how States will measure or ensure for States to continue to ensure that teachers’ use of student data, with some their current assessments are of high Comment: One commenter commenters recommending that the quality and rigorous. recommended that the Department Department include an indicator Changes: None. remove the indicators in education requiring a State to describe how it will reform area (c) related to current State Indicator (c)(1)—Confirmation of assessment systems in light of the efforts provide data to teachers and monitor Approval Status teachers’ use of the data. that States are making toward creating Discussion: While the Department Comment: A few commenters and implementing common, encourages States to collect information recommended that the Department internationally benchmarked standards beyond that required through this clarify, with respect to Indicator (c)(1), and assessments. Other commenters notice, we believe that the current data whether a State that does not have a supported proposed Indicator (c)(2) (and requirements are sufficient for the fully approved system of standards and proposed Descriptor (c)(1)), which purposes of the SFSF program and that assessments and that has entered into a would require a State to indicate additional requirements would be compliance agreement with the whether it is engaged in activities to unnecessarily burdensome on States. Department is eligible for SFSF Phase II enhance the quality of its academic Changes: None. funding. assessments. These commenters urged Discussion: Under the authority in the Department also to collect Education Reform Area (c)—Standards section 457 of GEPA (20 U.S.C. 1234f), additional data about the alignment and Assessments the Department has entered into among standards, assessments, General compliance agreements with certain professional development, instructional Comment: One commenter indicated States with respect to their assessment materials, accommodations for students that, in light of variances in State systems. These agreements enable States with disabilities, and accommodations accountability systems, it is difficult to to remain eligible to receive funding for students with limited English compare student achievement levels under Part A of Title I of the ESEA proficiency. across States. The commenter noted that while coming into full compliance with Discussion: As a condition of comparing assessment data across States the Title I standards and assessment receiving SFSF funds, a State assures, may give the false impression that requirements. A State that is operating among other things, that it will enhance students in one State are under such a compliance agreement will the quality of the academic assessments underperforming when the opposite not be denied SFSF Phase II funding it administers pursuant to section may be true. solely due to the existence of such a 1111(b)(3) of the ESEA. The indicators Discussion: The Department agrees compliance agreement. A State in this in this education reform area require with this comment and encourages situation must still meet the Phase II States to be transparent on the current States to collaborate in developing SFSF application requirements to status of their efforts to provide common, internationally benchmarked receive funding. The approval status of rigorous, high-quality standards and standards and assessments. In the a State’s assessment system will not assessments. The Department meantime, collecting information on affect its eligibility for SFSF funding. acknowledges that many States are student college enrollment and Changes: None. working in collaboration or in consortia persistence rates (new Indicators (c)(11) Comment: One commenter with other States or organizations to and (c)(12)) (proposed indicators (c)(12) recommended that the final notice improve the quality, validity, and and (c)(13)) will provide meaningful clarify how the commenter’s State could reliability of their standards and data on how schools, districts, and confirm the approval status of its State assessments. In recognition of States’

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efforts to develop common standards assessments for students with Indicators (c)(5) and (c)(7) could be and assessments, the Department does disabilities. done by other States or organizations. not believe it is necessary to collect Changes: None. Discussion: For purposes of these indicators, the analysis could be done additional information on the steps that New Indicators (c)(4) and (c)(6) by other States or organizations. It is not States may be taking to enhance their (Proposed Indicators (c)(5) and (c)(7))— current State assessments. The Appropriateness and Effectiveness of necessary for each State to have Department believes that the peer Accommodations undergone a Departmental peer review review of State assessments provides of its assessment system within the past sufficient information on State efforts to Comment: Several commenters two years. enhance those assessments. recommended that the Department Changes: None. While the Department strongly remove new Indicators (c)(4) and (c)(6) Comment: One commenter encourages States to take steps to align (proposed Indicators (c)(5) and (c)(7)), recommended that the Department and publicly report the alignment of which ask each State to indicate publish criteria that States would use to their standards, assessments, whether it has completed, within the review the appropriateness and professional development, instructional last two years, an analysis of the effectiveness of accommodations for materials, accommodations for students appropriateness and effectiveness of the students with disabilities. with disabilities, and accommodations accommodations it provides, for Discussion: Section for students with limited English assessment purposes, to students with 1111(b)(3)(A)(ix)(II) and (III) of the proficiency, the Department believes disabilities and students with limited ESEA requires each State to ensure that that the current indicators are sufficient English proficiency, respectively. These students with disabilities and students for the purposes of this program. commenters noted that this analysis was with limited English proficiency, Changes: The Department has already performed as part of the peer respectively, have access to appropriate removed proposed Indicator (c)(2) and review process. accommodations necessary to measure Descriptor (c)(1). With the removal of Discussion: The Department believes the academic achievement of those this indicator and descriptor, we have that States should regularly analyze the students. Element 4.6 in the renumbered the remaining indicators appropriateness and effectiveness of Department’s peer review guidance and descriptors in this education reform their assessment accommodations to provides the criteria the Department area. ensure that the assessments fully uses to determine whether States have address the needs of students with 6 New Indicator (c)(3) (Proposed complied with these requirements. disabilities and limited English Indicator (c)(4))—Alternate States may use these criteria to guide proficient students. The Department Assessments for Students With any analysis of assessment Disabilities agrees that the peer review process accommodations that are conducted includes a rigorous analysis of the outside the Department’s peer review Comment: One commenter appropriateness and effectiveness of process. recommended adding language on the assessment accommodations. Thus, a Changes: None. validity and reliability of assessments State that has submitted its assessment Comment: A few commenters for students with disabilities to system to the Department for peer requested that the Department require proposed Indicator (c)(4), which review within the last two years, or that States to describe the accommodations requires States to confirm whether the has engaged in an alternative rigorous available to students with disabilities. State’s alternate assessments for analysis of its assessment One of these commenters recommended students with disabilities, if approved accommodations during this timeframe, that the Department require States to by the Department, are based on grade- should be able to respond to these submit data on the number and level, modified, or alternate academic indicators affirmatively. percentage of students afforded each achievement standards. Changes: None. accommodation. Discussion: Section 1111(b)(3)(A) of Comment: One commenter expressed Discussion: In their assessment the ESEA requires each State to concern that proposed Indicators (c)(5) manuals, States include information on implement a set of high-quality student and (c)(7) will lead to an expectation the accommodations available to academic assessments. As further that each State complete an analysis of students with disabilities. States post required in section 1111(b)(3)(C)(iv), the accommodations it provides to these manuals on their Web sites to such assessments must be of adequate students with disabilities and students ensure transparency and accountability technical quality for each purpose with limited English proficiency for for all students. required under the ESEA. Each State has assessment purposes. With regard to reporting the number submitted to the Department for peer Discussion: Section 1111(b)(3)(A) of and percentage of students afforded review and approval its regular and the ESEA requires each State to each accommodation, while each alternate assessments. This peer review implement a set of high-quality student student’s Individualized Education includes a rigorous evaluation of the academic assessments. This requirement Program lists the accommodations to be validity and reliability of each includes appropriate and effective provided to that student, States are not assessment, including all alternate accommodations for students with required by law to aggregate and report assessments. Thus, if a State’s alternate disabilities and students with limited the number and percentage of students assessments for students with English proficiency. The Department, afforded each accommodation. The disabilities are determined to have met therefore, encourages regular review of regulations in 34 CFR 300.160(f) require the statutory and regulatory accommodations that are part of State that States report to the public, among requirements through the Department’s assessment systems. other things, the following: (1) The peer review process, those assessments Changes: None. number of students with disabilities would necessarily be valid and reliable Comment: A few commenters who participate in the general (regular) assessments. Accordingly, it is not requested that the Department clarify assessments, (2) the number of students necessary to add language to new whether the analysis of the Indicator (c)(3) (proposed Indicator appropriateness and effectiveness of the 6 This guidance is available at http://www.ed.gov/ (c)(4)) on the validity and reliability of accommodations referenced in proposed policy/elsec/guid/saaprguidance.pdf.

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with disabilities provided or that it improperly implies that such effective instruction and assessment accommodations (that did not result in assessments are required or preferred. accommodations and supports. While an invalid score) to participate in Discussion: New Indicator (c)(7) the recommended modifications might general assessments, and (3) the number (proposed Indicator (c)(8)) merely provide more detailed information on of students with disabilities who requires a State to confirm whether or the extent to which States are meeting participate in alternate assessments not it is administering native language the needs of these students, for the based on grade-level, alternate, or versions of State assessments, as purposes of this program, the modified academic achievement approved by the Department, for limited Department believes that new Indicators standards. We do not believe that English proficient students. The (c)(6), (c)(7), and (c)(8) (proposed further reporting with respect to each indicator does not suggest that the use Indicators (c)(7), (c)(8), and (c)(9)) will type of accommodation provided is of native language assessments is the provide sufficient data in this area warranted for the purposes of the SFSF best or only way of meeting the needs without imposing undue burden. program. of limited English proficient students, Changes: None. and it is not intended to require States Changes: None. New Indicators (c)(10), (c)(11), and Comment: A few commenters to use such assessments. (c)(12) (Proposed Indicators (c)(11), requested that States be required to Changes: None. (c)(12), and (c)(13))—High School describe the accommodations provided Comment: One commenter Graduation Rate Data and to students with limited English recommended that the Department add an indicator or descriptor that would Postsecondary Enrollment and proficiency for assessment purposes. Attainment One of these commenters also require States to list languages spoken recommended that States provide data by one percent or more of students in Comments: Numerous commenters on the number and percentage of the State for whom translations of State urged the Department to expand the students afforded each accommodation. assessments are provided or not reporting requirements in proposed Discussion: Information on provided. Indicators (c)(11), (c)(12), and (c)(13) accommodations offered to limited Discussion: Because native language pertaining to high school graduation, English proficient students is already versions of State assessments are not college enrollment, and course available in State assessment manuals, required under the ARRA or the ESEA, completion to account for high school which States make publicly available. the Department does not agree that this graduates who choose a path other than Requiring States to report on the additional information should be higher education. Several commenters number and percentage of students with collected as part of the SFSF Phase II argued that the scope of the proposed limited English proficiency who receive application. data collection is too narrow and each type of accommodation would Changes: None. suggested, for example, that the impose significant additional burden on Comments: Several commenters Department foster the collection of data States and LEAs. The Department does suggested that the Department require on career readiness in addition to not believe that the additional data States to provide additional data college readiness. sought by these commenters are demonstrating that the needs of limited Discussion: The Department warranted for the purposes of the SFSF English proficient students are being recognizes the value of alternative program. met. For example, one commenter career pathways separate from higher Changes: None. recommended that proposed Indicator education, and seeks in no way to Comment: One commenter inquired (c)(8) be broadened to include other minimize the accomplishments of whether the data required under ways of gauging a student’s mastery of individuals or States with regard to proposed Indicator (c)(7) are already content and English. Another students who pursue successful careers provided by States through the commenter suggested that the indicator immediately after high school through Department’s Education Data Exchange be changed to require States to provide military service, career and technical Network (EDEN). Another commenter data on the percentage of limited education programs, or full-time requested that we clarify whether the English proficient students using native employment. However, as discussed analysis referenced in this indicator language versions of State assessments earlier, we have a particular interest in should be done at the State level or at and, of this group, the percentage of collecting information on college the student level. students who are also receiving content readiness (as an indicator of the strength Discussion: The data that the instruction in their native language. A of States’ secondary education standards Department will be collecting under third commenter recommended that and programs) and have chosen, for the new Indicator (c)(6) (proposed Indicator States be required to provide their purposes of this program, to limit the (c)(7)) are not reported through EDEN. process for classifying students as burden of our reporting requirements Under this indicator, the Department is limited English proficient students. This accordingly. asking each State whether, within the commenter requested that the Changes: None. last two years, it has performed a State- Department modify the SFSF Phase II Comment: Many commenters stated level analysis of its assessment requirements to require States to that collecting the proposed student accommodations for limited English identify the types of valid and enrollment and course completion data proficient students. This analysis is not appropriate assessments that are would be very burdensome, time- required at the student level. available for these students. This consuming, and costly for States. Some Changes: None. commenter also suggested that States be of these commenters suggested that the required to describe the instructional indicators are unlikely to produce New Indicator (c)(7) (Proposed practices and programs that are meaningful data. Others noted that the Indicator (c)(8))—Native Language approved for teaching limited English requirements would negatively affect Assessments proficient students. students by taking valuable resources Comments: Several commenters Discussion: The Department agrees from the classroom. opposed this indicator, stating that the with these commenters about the Discussion: The Department Department does not have the authority importance of providing limited English acknowledges the challenges that the to require native language assessments proficient students with appropriate and postsecondary data collection and

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public reporting requirements present. believes that this additional collection information on student course-taking, However, we believe that collecting and requirement would impose an undue home discussions of school work, and publicly reporting these data will burden on States due to the wide range television-viewing habits. By statute, the provide States, LEAs, and schools with of technical training programs from Department requires States to information they need in order to which data would be required. disaggregate State assessment data for continuously improve elementary and Moreover, the Department believes that adequate yearly progress (AYP) secondary education. The Department the college readiness data required determinations by economically recognizes that tracking credits earned under new Indicators (c)(11) and (c)(12) disadvantaged status, race/ethnicity, by students enrolled in private IHEs or (proposed Indicators (c)(12) and (c)(13)) disability, and English language in out-of-State IHEs is particularly are sufficient to provide a sound proficiency (section 1111(b)(2)(C)(v)(II)). challenging. Given that the majority of measure of the strength of secondary State report cards must report high school graduates enroll in an in- education standards and programs. assessment data disaggregated by State IHE, and that the majority of Changes: The Department has not gender, race/ethnicity, English language enrollment in degree-granting included references to ‘‘technical proficiency, migrant status, disability institutions is in public institutions, the training’’ in the final requirements. status, and economic advantage status, Department believes that at this time Comments: One commenter asserted unless such disaggregation would reveal States should be required to collect that States will need vendor services in personally identifiable student course completion data only for order to track student enrollment, information (section 1111(b)(3)(C)(xiii)). students who enroll in an in-State persistence, and remedial course work Under 34 CFR 200.19(a)(4)(i), with public IHE. These data should provide and suggested that States would have to respect to high school graduation rates, an accurate reflection of the strength of rely on too few vendors during a short the Department requires that data be States’ secondary education standards time period to provide the data under disaggregated by the subgroups in and programs. proposed Indicators (c)(12) and (c)(13). section 1111(b)(2)(C)(v)(II) of the ESEA. Changes: The Department has revised Discussion: The Department believes Because new Indicator (c)(10) (proposed proposed Indicator (c)(13) (new that obtaining data on student Indicator (c)(11)) addresses graduation Indicator (c)(12)) to require a State to enrollment and course completion in rates, the subgroups identified in provide, for the State, for each LEA in IHEs for these indicators will provide section 1111(b)(2)(C)(v)(II) of the ESEA the State, for each high school in the stakeholders with critical information are the most appropriate. State and, at each of these levels, by on the effectiveness of secondary Changes: None. student subgroup (consistent with education across States. The Department Comment: One commenter stated that section 1111(b)(2)(C)(v)(II) of the ESEA), believes that States will be able to the timeline for States to report of the students who graduate from high obtain the assistance they may need to graduation rate data under proposed school consistent with 34 CFR meet the requirements of new Indicators Indicator (c)(11) using a four-year 200.19(b)(1)(i) who enroll in a public (c)(11) and (c)(12) (proposed Indicators adjusted cohort graduation rate appears IHE (as defined in section 101(a) of the (c)(12) and (c)(13)) through available to be inconsistent with the timeline in HEA) in the State within 16 months of data sources such as the National the Title I regulations. receiving a regular high school diploma, Student Clearinghouse. Discussion: New Indicator (c)(10) the number and percentage (including Changes: None. (proposed Indicator (c)(11)) requires numerator and denominator) who Comment: Some commenters States to provide, for the State, for each complete at least one year’s worth of requested that the Department remove LEA in the State, and for each high college credit (applicable to a degree) inconsistencies between the student school in the State, data disaggregated within two years of enrollment in the subgroups identified for reporting in the by student subgroup on the number and IHE. SFSF NPR and the student subgroups percentage of students who graduate Comment: In the background to the identified for reporting in the notice of from high school using the four-year section of the NPR discussing the proposed priorities, requirements, adjusted cohort graduation rate as indicators and descriptors relating to definitions, and selection criteria for the required by the Title I regulations in 34 standards and assessment requirements, Race to the Top Fund. CFR 200.19(b). Under the Title I the Department included references to Discussion: The proposed regulations, the four-year adjusted both college education and technical requirements under the Race to the Top cohort graduation rate must be reported training. The background discussion Fund included a requirement to at the State, LEA, and high school indicated that a State would be required disaggregate student data according to levels, as well as disaggregated by each to provide data on the extent to which the subgroups required under the subgroup described in section students graduate from high school in National Assessment of Educational 1111(b)(2)(C)(v)(II) of the ESEA, four years with a regular high school Progress (NAEP) for some items and the beginning with report cards providing diploma and pursue a college education subgroups required under section results of assessments administered in or technical training. One commenter 1111(b)(2)(C)(v)(II) of the ESEA for the 2010–2011 school year. The noted that none of the proposed others. For Phase II of SFSF, we Department does not believe that the indicators specifically referenced proposed that States be required to timeline for reporting under new ‘‘technical training’’ and recommended disaggregate data by the subgroups in Indicator (c)(10) (proposed Indicator that the Department delete the phrase section 1111(b)(2)(C)(v)(II) of the ESEA. (c)(11)) is inconsistent with the Title I unless the requirements of the program The Department is making every effort regulations because those regulations do also reflect career or technical training. to unify requirements across programs, not specify a date by which the four- Discussion: The Department particularly across ARRA programs, year adjusted cohort graduation rate for recognizes the importance of technical whenever possible. NAEP presents data school year 2010–2011 must be training and believes it is an important by a number of ‘‘student groups,’’ reported. We believe that States should option for many students. However, the including gender, race or ethnicity, have the capacity to publicly report Department is not requiring States to highest level of parental education, and these data by September 30, 2011, as provide data on students who enroll in type of school (public or private). required in this notice. training programs. The Department Additional questionnaires also provide Changes: None.

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Comment: Numerous commenters requirements with student performance (c)(13)) will address the underlying questioned why the Department is expectations. The commenter asserted issue the commenters raised—namely, collecting data only on the basis of a that such alignment could more how well high schools are preparing four-year adjusted cohort graduation accurately assess the extent to which students for college. rate and requested that the Department postsecondary students require Changes: None. amend proposed Indicator (c)(11) to take remediation. The commenter argued Comments: Numerous commenters into consideration extended-year that the extent to which college students opposed proposed Indicator (c)(12), adjusted cohort graduation rates. require remediation is largely within the regarding the number of students who Several of the commenters indicated control of IHEs because IHEs establish graduate from high school and enroll in that use of the adjusted four-year cohort admissions requirements. Further, this an IHE, claiming that the data collection graduation rate fails to take into account commenter contended that those IHEs would be too costly, unreliable, or legitimate reasons a student might take with no or low admissions requirements impractical to conduct at this time. One more than four years to graduate. One will likely have to provide more commenter had specific concerns about commenter suggested adding a new remediation. the costs of obtaining enrollment data indicator that collects at the State, LEA, Discussion: The Department on students who attend private or out- and high school levels, as well as acknowledges that IHEs, in some of-State IHEs. disaggregated by subgroups, data on the respects, may have control over the Discussion: College enrollment data number and percentage of students who extent to which their students require will help measure the extent to which graduate from high school using an remediation. The Department secondary schools have prepared their extended-year adjusted cohort encourages States to involve IHEs in the students for colleges and universities. graduation rate as approved by the process of aligning pre-K–12 standards, While difficult to quantify, the benefits Department. curricula, and assessments so that associated with collecting these data Discussion: The reporting of data students are better prepared for college. should outweigh the costs. using a four-year adjusted cohort Changes: None. Changes: None. graduation rate, which States must Comment: A few commenters Comment: One commenter requested uniformly implement as required in the encouraged the use of college entrance that the Department clarify which entity Title I regulations, helps ensure that exams (such as SATs and ACTs) or in the State (elementary or secondary there is an accurate method of NAEP data to demonstrate whether high school or IHE) will be responsible for comparing graduation rate data across school standards and assessments are reporting on proposed Indicators (c)(12) States. Without such comparability, it is appropriately aligned to facilitate and (c)(13). difficult to measure adequately how college and career readiness. One Discussion: States are responsible for well schools, LEAs, and States are doing commenter requested that the collecting and publicly reporting these in addressing the educational needs of Department gather information on data and should implement the high school students. Thus, for the whether graduation requirements align collection of these data in the manner purposes of this program, the with evidence of college and work that is most effective for each State. Department is requiring the collection readiness. This commenter requested Changes: None. and public reporting of graduation rate that the Department also require States Comment: None. data only using the four-year adjusted to report, and disaggregate by Discussion: In light of the number of cohort graduation rate. subgroups, the number and percentage recent high school graduates who Changes: None. of students who earn two-year and four- engage in experiential learning or other Comment: One commenter suggested year degrees at IHEs in three and six activities during the year immediately that, in directing States to submit years, respectively. following their high school graduation, graduation rate data under proposed Discussion: While we recognize the the Department believes it is important Indicator (c)(11), the Department value of college entrance test data, the to collect data on students who enroll in establish an ‘‘n size’’ (minimum Department believes that new Indicators an IHE even if they do not do so subgroup size) for reporting so that (c)(11) and (c)(12) (proposed Indicators immediately after receiving a regular student data are not personally (c)(12) and (c)(13)) will provide data high school diploma. Collecting data on identifiable. that accurately and sufficiently reflect students who enroll in an IHE within Discussion: When presenting the strength of secondary education sixteen months of obtaining a regular disaggregated data, States, LEAs, and standards and programs. In addition, high school diploma will more schools are responsible for ensuring that not all IHEs require entrance exams as accurately reflect the effectiveness of they do not reveal personally a prerequisite for admission. With secondary education. identifiable information about respect to using NAEP data to validate Changes: The Department has revised individual students. As part of its State assessments, the Department new Indicator (c)(11) (proposed approved Consolidated State affirms the utility of comparing NAEP Indicator (c)(12)) to require a State to Application Accountability Workbook scores but notes that the NAEP is not provide, for the State, for each LEA in (Accountability Workbook) under Title administered annually to high school the State, for each high school in the I, each State has identified a minimum students. In addition, we recognize that State and, at each of these levels, by number of students for reporting data on the number and percentage of student subgroup (consistent with purposes. These established minimum students who earn two-year and four- section 1111(b)(2)(C)(v)(II) of the ESEA), subgroup sizes are to be used in year degrees within three and six years, of the students who graduate from high reporting the graduation rate data under respectively, would be a reliable school consistent with 34 CFR new Indicator (c)(10) (proposed measure of the strength of secondary 200.19(b)(1)(i), the number and Indicator (c)(11)). education. However, the Department percentage who enroll in an IHE (as Changes: None. seeks to minimize the burden on States defined in section 101(a) of the HEA) Comment: One commenter and believes that the postsecondary within 16 months of receiving a regular recommended that the Department enrollment and course-completion high school diploma. consider whether there are ways to indicators in new Indicators (c)(11) and Comment: One commenter requested better align college admissions (c)(12) (proposed Indicators (c)(12) and that, in order to measure students’

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academic readiness for postsecondary- information from education records in a college credit during their first year of level work, the Department require manner that complies with FERPA. The college. The Department acknowledges States to collect both aggregated and non-consensual disclosure of personally the value of data on college credit disaggregated information on students identifiable information from K–12 earned during their first year of college who are placed in one or more remedial education records to a postsecondary but recognizes that students may attend courses during their first year of institution is permitted under the college part-time and prefers to establish enrollment in an IHE. enrollment exception, provided the a requirement that more flexibly Discussion: The Department included notification and access conditions are accounts for a broader spectrum of new Indicator (c)(12) (proposed met. Postsecondary institutions may situations. Indicator (c)(13)) in order to provide a disclose personally identifiable Changes: None. measure of students’ college readiness. information to an SEA under the Comment: None. Remedial courses generally do not result evaluation exception if the SEA has the Discussion: New Indicator (c)(11) in credit toward a degree, the type of authority to conduct an audit or (proposed Indicator (c)(12)) requires credit measured by this indicator. evaluation of the postsecondary States to report, for the State, and for Changes: None. institution’s education programs. (20 each LEA and high school in the State, Comment: A few commenters U.S.C. 1232g(b)(1)(C), (b)(3), and (b)(5); disaggregated data on the number and requested that the Department define 34 CFR 99.31(a)(3) and 99.35). percentage of high school graduates who the term ‘‘one-year’s worth of college The Department is not requiring enroll in an IHE within 16 months of credit’’ in proposed Indicator (c)(13). States to report student data that would receiving a regular high school diploma. Discussion: There is considerable reveal personally identifiable New Indicator (c)(12) (proposed variation among IHEs about what it information. In reporting data under Indicator (c)(13)) requires States to means to complete at least one year’s new Indicators (c)(11) and (c)(12) report, for the State, and for each LEA worth of college credit. As a result, it (proposed Indicators (c)(12) and (c)(13)), and high school in the State, would not be feasible to establish a States should use the minimum disaggregated data on the number and uniform definition of this term at this subgroup sizes that are part of their percentage of those graduates who time. The Department believes that approved Accountability Workbooks complete at least one year’s worth of permitting each public IHE to define under Title I. college credit within two years of this term in a manner consistent with its Changes: None. enrollment at a public IHE in the State. own academic requirements will not Comment: One commenter States are required to identify graduates only minimize the reporting burden on recommended that the Department using a four-year adjusted cohort the IHEs and States, but will result in strengthen the metrics regarding graduation rate. The Department meaningful data on student progress standards and assessments by adding an recognizes that many States will be toward a college degree. indicator on the number and percentage unable to report on postsecondary Changes: None. of students in each grade who are enrollment and attainment of high Comment: Several commenters enrolled in and successfully complete a school graduates consistent with the suggested that proposed Indicators college- or career-ready high school four-year adjusted cohort rate by (c)(12) on college enrollment and (c)(13) curriculum (aligned with college- and September 30, 2011. Therefore, the on course completion raise potential career-ready standards), disaggregated Department has modified the plan FERPA issues and requested that the by subgroup and reported at the State, requirements for new Indicators (c)(11) Department provide guidance around district, and school levels. and (c)(12). creating a FERPA-compliant pre-K–16 Discussion: The Department Changes: The Department has data system. The commenters sought recognizes the value of this information modified the plan requirements for new additional guidance regarding the but believes that the indicators on the Indicators (c)(11) and (c)(12). These authority to share data between pre-K– adjusted four-year cohort graduation requirements now provide that the State 12 and postsecondary data systems, rate, college enrollment, and college is required to, at a minimum, possess especially where the systems are course completion are sufficient to the ability to collect and publicly report administered by separate State agencies. obtain data on elementary/secondary the data. As a result, the requirements One commenter specifically suggested education and on postsecondary of paragraph (a) of the Plan that the Department provide States with outcomes. Given these other indicators, Requirements section of this notice flexibility to set data aggregation and the Department does not believe that the apply to these indicators, at a minimum, masking standards to avoid reporting of additional burden that would result with respect to the State’s development small data cells that could identify an from the suggested indicator is of the means to collect and to publicly individual student. The commenter warranted. report the data. Accordingly— suggested that the Department consider Changes: None. (1) If, for either of these indicators, a collecting data aggregated at a higher Comment: Several commenters State will develop but not implement level. requested that the Department require the means to collect and publicly report Discussion: As stated earlier in States to collect and report data on the the data (i.e., the State will not collect response to the comments on percentage of students who earn college and publicly report the data) by implementing an SLDS that is credit during their first year of college. September 30, 2011, the State— compliant with FERPA, establishment These commenters indicated that such (i) May submit a plan with respect to of a statewide longitudinal data system data more accurately predict degree the indicator that addresses the with the necessary functionality to completion. requirements of paragraph (a) only with incorporate all 12 of the COMPETES Act Discussion: The Department’s respect to the State’s development of the elements, including the sharing of data requirement that States collect data on means to collect and to publicly report between pre-K–12 and postsecondary the number and percentage of high the data, and not the State’s data systems does not by itself violate school graduates who complete at least implementation of those means; and FERPA. States also may implement an one year’s worth of college credit within (ii) If submitting a plan in this SLDS that includes the disclosure and two years of enrollment in the IHE will manner, must include in its plan a redisclosure of personally identifiable capture data on students who earn description of the evidence it will

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provide to the Department of Education, and responses related to the definition With respect to the requirements that by September 30, 2011, to demonstrate and those models from the SIG NPR. In a State collect and publicly report data that it has developed the means to the following sections, we first discuss and information on the persistently collect and publicly report that data. the comments we received on struggling lowest-achieving schools that are Title I (2) If, however, for either of these schools in response to the SFSF NPR schools in improvement, corrective indicators, a State will develop and and our responses. We then discuss the action, or restructuring or secondary implement those means (i.e., the State comments we received related to the schools that are eligible for, but do not will collect and publicly report the data) definition and the four intervention receive, Title I funds, persistently by September 30, 2011, the State must models as proposed in the SIG NPR and lowest-achieving schools means, as submit a plan with respect to the our responses to those comments. determined by the State— indicator that fully addresses the (a)(1) Any Title I school in Persistently Lowest-Achieving Schools requirements of paragraph (a). improvement, corrective action, or Comment: Some commenters restructuring that— Education Reform Area (d)— expressed support for our proposal in (i) Is among the lowest-achieving five Supporting Struggling Schools education reform area (d) that States percent of Title I schools in Introduction identify and support schools that are not improvement, corrective action, or meeting student achievement goals, but A central purpose of ARRA funds is restructuring or the lowest-achieving a number of commenters expressed five Title I schools in improvement, to increase the academic achievement of concern that the proposed indicators in students in struggling schools. As a corrective action, or restructuring in the this reform area would not result in the State, whichever number of schools is result, the NPRs regarding the State correct identification of those schools. Fiscal Stabilization Fund, the Race to greater; or Many commenters were specifically (ii) Is a high school that has had a the Top Fund, and the School concerned that high schools might not graduation rate as defined in 34 CFR Improvement Grants each included be identified among the lowest- 200.19(b) that is less than 60 percent requirements related to struggling achieving schools. One commenter over a number of years; and schools. The most explicit requirements argued that the strategies for turning (2) Any secondary school that is were included in the SIG NPR that was around struggling high schools may eligible for, but does not receive, Title published in the Federal Register on differ from strategies for turning around I funds that— August 26, 2009 (74 FR 43101), in other schools and that the data for the (i) Is among the lowest-achieving five which the Department proposed four proposed indicators for education percent of secondary schools or the rigorous school intervention models— reform area (d) should be disaggregated lowest-achieving five secondary schools turnaround, restart, school closure, and by school type and grade span so that in the State that are eligible for, but do transformation—that an LEA seeking high schools are reported separately. not receive, Title I funds, whichever SIG funds would implement in the Several commenters recommended number of schools is greater; or lowest-achieving Title I schools in broadening the definition of lowest- (ii) Is a high school that has had a improvement, corrective action, or achieving five percent to include both graduation rate as defined in 34 CFR restructuring identified by each State Title I and non-Title I secondary schools 200.19(b) that is less than 60 percent and could also implement in secondary with reasonably high scores on over a number of years. schools that are eligible for, but do not assessments but low graduation rates in (b) To identify the lowest-achieving receive, Title I funds. Commenters on an effort to better identify struggling schools, a State must take into account each notice recommended that the schools. One commenter recommended both— Department make the identity of, and that high schools with graduation rates (i) The academic achievement of the requirements for, struggling schools below 60 percent be added to proposed ‘‘all students’’ group in a school in consistent among all three programs. We indicators (d)(3) through (d)(5) to better terms of proficiency on the State’s agree with these comments and, in identify low-achieving high schools. approved assessments under section response, have revised the four school Discussion: The Department agrees 1111(b)(3) of the ESEA in reading/ intervention models and are integrating that it is important to identify the language arts and mathematics them into the criteria, definitions, and lowest-achieving schools in each State combined; and requirements for all three programs. In so that parents, policy-makers, and (ii) The school’s lack of progress on addition, we have developed a other stakeholders can take appropriate those assessments over a number of definition of persistently lowest- action and measure the progress made years in the ‘‘all students’’ group. achieving schools to substitute for in improving the achievement of We have added a new Descriptor ‘‘schools in the lowest-achieving five students who attend those schools. We (d)(1), which requires States to provide percent’’ (SFSF) and persistently lowest- also agree that strategies and approaches their definition of persistently lowest- performing schools (Race to the Top) for to reform schools may vary according to achieving schools (consistent with the use in all three programs. school type and grade span. The requirements for defining this term set Because both the SFSF and Race to Department agrees that the proposed forth in this notice) that the State uses the Top notices of final requirements are definition of lowest-achieving five to identify such schools. being published prior to the final SIG percent of schools might fail to identify We also have made two additional notice, we are publishing, in final, the some struggling secondary schools, changes to education reform area (d) requirements for the four models in including those whose students are that require States to report on reform SFSF, will append them to Race to the performing adequately on State efforts in secondary schools. We have Top, and will incorporate them into the assessments but are failing to graduate. revised Indicator (d)(5) to require States final SIG notice when it is issued. In Changes: The Department has to provide, for the State, the number and order to clarify and fully explain the removed the definition of lowest- identity of the schools that are definition of persistently lowest- achieving five percent and added a new secondary schools that are eligible for, achieving schools and the changes that definition for the term persistently but do not receive, Title I funds that are we made to the four models, we are lowest-achieving schools. This term is identified as persistently lowest- including in this notice the comments defined as follows: achieving schools. We have added new

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Indicator (d)(6), which requires States to and more information that is useful to lack a sufficient research base. Also, provide, for the State, of the persistently parents, educators, and other several commenters expressed a belief lowest-achieving schools that are stakeholders. that the definition for a school that has secondary schools that are eligible for, Changes: As noted in the previous been turned around is too restrictive. but do not receive, Title I funds, the responses, a new definition of Many of these commenters number and identity of those schools persistently lowest-achieving schools recommended that States be given a that have been turned around, restarted, has been added and Indicators (d)(3), broader range of options for choosing closed, or transformed in the last year. (d)(4), and (d)(5) have been revised to intervention models and that the data Comment: With respect to Indicator require States to provide the number collection requirements be expanded to (d)(3), one commenter questioned the and identity of the schools being require States to report on other models value of requiring States to collect data reported under these indicators. We also that have been used to assist struggling on schools in improvement status in have removed the requirement that schools. addition to schools identified for States report the percentages for these Discussion: The Department corrective action and restructuring. The schools. recognizes that there are reform models commenter further questioned whether Comment: One commenter requested and other intervention efforts not the additional collection of information that the Department provide States with identified in the NPR that can be is necessary to focus on the lowest- the flexibility to determine which successful in turning around struggling achieving five percent. schools are struggling. schools. We also understand that no Discussion: In order to remain Discussion: We believe that the single reform model will be effective in consistent with school reform strategies definition of persistently lowest- every State or every LEA. However, the that States are implementing using achieving schools that we have intervention strategies proposed in the funds available under section 1003(g) of established in this notice provides NPR focus on dramatic change, the ESEA (School Improvement Grants), States with flexibility in identifying including significant changes in the Department chose to collect data on these schools while setting forth basic leadership, staffing, and governance, schools in improvement status. It is parameters for States to follow in and as they are targeted to the Nation’s important to capture information developing their definitions. The SFSF persistently lowest-achieving schools, regarding all schools that are definition and requirements for which in most cases have not responded persistently lowest-achieving schools in persistently lowest-achieving schools to multiple earlier school improvement the State, including those in and school intervention models will and turnaround efforts. Research improvement. now be consistent with those in the indicates that fundamental, Because the Department believes that Race to the Top notice and the comprehensive changes in leadership, States should place a priority on upcoming School Improvement Grants staffing, and governance hold the reforming the persistently lowest- notice; this consistency may encourage greatest promise for bringing about the achieving schools, we are requiring and enable States to use diverse funding improvements in school structure, States to collect and publicly report sources to accomplish consistent goals. climate, and culture that are required to information only on the intervention We encourage States to think break the cycle of chronic educational strategies in those schools and not on comprehensively across these programs failure. We believe that the reform every school in improvement, corrective in order to develop plans that best target models proposed in the NPR hold great action, or restructuring. and meet the needs of their persistently promise in their ability to turn around Changes: Indicator (d)(3) has been lowest-achieving schools. the Nation’s persistently lowest- revised to require States to provide, for Changes: None. achieving schools and that they are the State, the number and identity of Comment: One commenter expressed flexible enough to allow States and Title I schools in improvement, concern that State-by-State comparisons LEAs to adapt them to meet their corrective action, or restructuring that will not identify the lowest-achieving specific needs. As noted earlier, to be are identified as persistently lowest- schools in the Nation. consistent with the definitions and achieving schools. Indicator (d)(4) has Discussion: The purpose of the data requirements in the School been revised to require the State to collection and public reporting Improvement Grants notice and to provide, for the State, of the persistently requirements in education reform area encourage and enable States to plan lowest-achieving Title I schools in (d) is not to provide a list of the lowest- effectively across these programs, these improvement, corrective action, or achieving schools in the Nation. Rather, indicators, descriptors and definitions, restructuring, the number and identity the Department intends that the where appropriate, have been revised. of those schools that have been turned required data collection and public Specifically, we have added a fourth around, restarted, closed, or transformed reporting will provide transparency on model, the transformation model, and (as defined in this notice) in the last the persistently lowest-achieving revised and clarified requirements in year. schools in each State. This will allow the turnaround, restart, and school Comment: One commenter questioned parents, students, and educators in each closure models. the usefulness of the stratification in State to make informed decisions and At this time, the Department declines proposed Indicators (d)(3), (d)(4), and implement reform strategies that will to require States to collect data on other (d)(5) and recommended creating a new work best for their individual situations. reform models as we believe that these indicator that provides the identity and Changes: None. hold the most potential for turning grade levels of the schools identified for around struggling schools. improvement, corrective action, or The Four Intervention Models Changes: We have revised the restructuring and the lowest-achieving Comment: Some commenters objected definitions of the intervention models as five percent of schools in the State. to our proposed definitions of the detailed in the Final Definitions section Discussion: The Department agrees intervention models (turnaround, school of this notice. that identifying schools and providing closure, consolidation) used in We have revised Indicator (d)(4), greater disaggregation of data required Indicators (d)(3), (d)(4), and (d)(5). which requires States to provide, for the on the persistently lowest-achieving These commenters argued that the State, of the persistently lowest- schools provides greater transparency definitions are overly restrictive and achieving schools that are Title I schools

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in improvement, corrective action, or achieving schools, which are the we believe that this notice clearly uses restructuring, the number and identify schools most in need of the types of it to describe a process for improving of those schools that have been turned interventions included in this notice student achievement in a persistently around, restarted, closed, or transformed and the schools on which States and lowest-achieving school. in the last year. LEAs should be focusing their reform Changes: None. We have added new Indicator (d)(6), efforts. Accordingly, we do not think it Comment: Several commenters which requires States to provide, for the is necessary to establish the additional expressed concern regarding the State, of the persistently lowest- reporting requirements suggested by the requirement that one element of the achieving schools that are secondary commenters. turnaround model is the replacement of schools that are eligible for, but do not Changes: None. at least 50 percent of the existing staff. receive, Title I funds, the number and Comment: One commenter Several commenters indicated that the identity of those schools that have been recommended that States report the 50 percent figure is arbitrary. A few turned around, restarted, closed, or name and number of all schools eligible commenters stated that there is a lack of transformed in the last year. With the for and receiving Title I funds by grade existing research that supports the addition of new Indicator (d)(6) and the span. assertion that a certain percentage of addition of several new indicators Discussion: The Department currently staff need to be replaced in order to regarding charter schools, we have makes public information regarding the successfully turn around a school. renumbered the indicators in this name and number of Title I-eligible Several commenters recommended that education reform area. schools by grade span in the Common the definition not include a specific Comment: A few commenters stated Core of Data (CCD). We believe that the percentage. One commenter that the proposed models for data available in the CCD, combined recommended that, under this model, intervening in struggling schools are with the information that States will all teachers should be required to process or structural reforms rather than report under this notice, is sufficient to reapply for a teaching position with the results-based approaches focusing on enable parents, educators, and other new school leadership having the gains in student achievement. They stakeholders to judge State and local authority to rehire teachers regardless of believe that the collection of data will reform efforts. seniority or tenure. Another commenter provide information only on where Changes: None. expressed concern that replacing a reform efforts have occurred, not on the Comment: One commenter argued majority of staff may not be the most success of those efforts. that closing schools in some rural areas effective approach for every school; the Discussion: The Department believes is not an option due to an already new school leadership may determine, that if the four reform models difficult time that districts have in after an evaluation of existing staff, that established in this notice are recruiting and retaining highly qualified less than a majority be replaced to implemented effectively, they will lead staff. support the turn-around effort. One to gains in student achievement. In Discussion: We agree that not all commenter recommended that schools addition, via EDFacts the Department reform models are appropriate in all operating under this model should be collects data on Title I schools in circumstances. As States and LEAs work required to retain at least 50 percent of improvement, corrective action, or to implement reforms in the persistently current qualified staff. restructuring and on whether those lowest-achieving schools, they should Discussion: The Department schools have improved student exercise great care in determining recognizes that replacing leadership and achievement outcomes to a point that exactly which reforms actions to staff is one of the most difficult aspects they are no longer classified in those implement in which schools. This of the school turnaround option. categories. The Department does not, notice includes three intervention However, we also believe that in our therefore, believe it is necessary to models (turnaround, restart, and lowest-performing schools, many of collect such data through these transformation) that do not require the which have failed to improve despite requirements. closing of a school. repeated turnaround efforts, dramatic Changes: None. Changes: None. and wholesale changes in leadership Comment: A few commenters and staffing can be the key to creating recommended that the Department add Schools That Have Been Turned the new climate and culture needed to an indicator that would require States to Around break the cycle of educational failure. report the number of Title I schools in Comment: Some commenters Moreover, the required turnaround restructuring in the last five years for expressed concern that the use of the option leaves room to accommodate each LEA and, for these schools, also phrase schools that have been turned many of the flexibilities suggested by report the number that have been turned around implies improvement in these commenters. For example, a around with new leadership and a academic results in a formerly low- principal has the option of retaining majority of new staff, the number that performing school. Commenters roughly half of existing staff who are have been turned around through recommend restricting the use of the deemed effective and who commit to conversion to charter schools, and the term ‘‘turned around’’ to circumstances supporting other key elements of the number that have been closed and the in which States can demonstrate school’s turnaround plan. With regard students placed in higher-performing significant improvement in student to the comment that new school schools. achievement. Further, the commenters leadership have the authority to rehire Discussion: The Department currently recommended defining this model as teachers regardless of seniority or collects, through its EDFacts data ‘‘major reform actions’’ or ‘‘school that tenure, the Department believes such system, information on the number and has undertaken a turn-around strategy.’’ issues are best resolved at the State and identity of Title I schools in Discussion: The Department local levels in the context of existing improvement, corrective action, or appreciates the commenters’ concern collective bargaining agreements; restructuring in each State. Through the that the term schools that have been however, in schools implementing a SFSF Phase II application, States will turned around implies an outcome turnaround model, the principal must report publicly on the types of reforms rather than an input. The term be provided with sufficient operational implemented in persistently lowest- ‘‘turnaround’’ has several meanings, but flexibility, including in making staffing

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decisions, to implement fully a in the State in the ‘‘all students notice) on State assessments in reading/ comprehensive approach to category.’’ Additionally, several language arts in the last year. substantially improving student commenters expressed concern that Indicator (d)(2) requires a State to achievement outcomes. Finally, the underperformance by subgroups could provide, for the State, the average Department would like to make clear go unchecked. Some commenters statewide school gain in the ‘‘all that the turnaround option is only one recommended that the definition of a students’’ category and the average of four reform models outlined in this school that has made progress require statewide school gain for each student notice. If a school determines that the gains for the subgroup or subgroups that subgroup (as under section requirements of a turnaround model are are equal to or greater than the average 1111(b)(2)(C)(v) of the ESEA) on State too restrictive, the LEA may choose to gains of schools in the State in the ‘‘all assessments in mathematics and for the implement another reform model in the students’’ category, and that are greater State and for each LEA in the State, the school. than zero. Another commenter number and percentage (including Changes: The definition of a recommended changing the phrase ‘‘in numerator and denominator) of Title I turnaround model has been revised to the ‘all students’ category (as under schools in improvement, corrective require that the principal be given section 1111(b)(2)(C)(v)(I) of ESEA’’ to action, or restructuring that have made sufficient operational flexibility, ‘‘in the ‘all students’ and ‘subgroups’ progress on State assessments in including in selecting staff, to categories (as under section mathematics in the last year. implement fully a comprehensive 1111(b)(2)(C)(v) of ESEA.’’ Comment: One commenter asserted approach to substantially improving Discussion: We agree that a school that student achievement must be used student achievement outcomes. that has made progress must in conjunction with graduation rates for Comment: One commenter demonstrate positive gains. We also high schools to ensure that there is no recommended that States be encouraged agree that, in order to monitor progress incentive for schools to have low- to develop or support programs for on closing the achievement gap the data performing students leave the school rigorous preparation for principals who collection must include measures of prior to graduation. The commenter are hired to turn around a school. subgroup performance and average recommended adding to the definition Discussion: We agree that principals statewide subgroup performance within of school that has made progress that a need rigorous preparation and support the State. The reporting of average high school must also have made gains in order to achieve results in statewide gains will provide useful in graduating students at a rate that is persistently lowest-achieving schools. information regarding progress in the equal to or greater than the average We encourage States and LEAs to work State. graduation rate gain of other schools in with existing, or develop new, principal Changes: We have revised the the State and that the definition of and school leadership programs that definition of school that has made continuous and substantial ensure adequate preparation and progress as follows: improvement as defined by the ongoing support for principals working With respect to the requirements that Department in 34 CFR 200.19(b)(1) be in persistently lowest-achieving schools. a State collect and publicly report the met. We decline in this notice to require such numbers and percentages of certain Discussion: The Department agrees actions of States because the purpose of groups of schools that have made that all high schools should work to this notice is to have States collect and progress on State assessments in ensure that all of their students are publicly report data, not to establish reading/language arts and in graduating with a regular high school professional development policies. mathematics in the last year, school that diploma. As a result of our concern over Changes: None. has made progress means a school graduation rates, we have chosen, as whose gains on the assessment, in the Schools That Have Made Progress discussed previously, to require States ‘‘all students’’ category and for each to collect and publicly report data and Comment: A few commenters student subgroup (as under section information on their persistently lowest- expressed concern that the proposed 1111(b)(2)(C)(v) of the ESEA), are equal achieving schools . This requirement definition of schools that have made to or greater than the average statewide will capture secondary schools with progress will not provide information school gain in the State on that graduation rates below 60 percent. The on whether schools are improving assessment, in the ‘‘all students’’ Department believes that the changes it student achievement. The commenters category and for each student subgroup, has made to the definition of stated that this definition assumes that, except that if the average statewide persistently lowest-achieving schools on average, rates in reading and school gains in the State on that sufficiently address the commenters’ mathematics are improving from year to assessment are equal to or less than concern regarding high school year. Commenters noted that, while this zero, the gains of the school must be graduation rates. is true in many States, proficiency rates greater than zero. Changes: None. in some States have been nearly flat or We also have revised Indicators (d)(1) Comment: A few commenters have declined from year to year. A few and (d)(2). Indicator (d)(1) requires that recommended that those schools in commenters recommended that the a State provide, for the State, the improvement, corrective action, or Department require States to report the average statewide school gain in the ‘‘all restructuring determined to be making average statewide gains used to students’’ category and the average progress in reading/language arts and determine whether schools meet the statewide school gain for each student mathematics, respectively, be identified definition of making progress in subgroup (as under section by name (in addition to providing the reading/language arts and mathematics. 1111(b)(2)(C)(v) of the ESEA) on the number and percentage of such schools) Commenters recommended that the State assessments in reading/language in the reports States provide under definition stipulate that gains in the ‘‘all arts and for the State and for each LEA education reform area (d). students’’ category be greater than zero in the State, the number and percentage Discussion: While we encourage and, for schools identified in the ‘‘all (including numerator and denominator) States to identify the schools in students’’ category, that the gains in the of Title I schools in improvement, improvement, corrective action, or ‘‘all students’’ category be equal to or corrective action, or restructuring that restructuring determined to be making greater than the average gains of schools have made progress (as defined in this progress in reading/language arts and

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mathematics, we do not believe it is be useful also to require States to collect to allow States flexibility in determining necessary to require States to provide and publicly report information on the best strategies. these identifications. expenditure of SFSF funds at the school Discussion: The Department Changes: None. level, we are mindful here, as in other appreciates the comments in support of Comment: One commenter expressed areas, of the burden of such a the goal of increasing the number of concern that the number and percentage requirement on States and LEAs. We, high-performing charter schools as a of schools that have made progress in therefore, decline to require further strategy for both turning around the reading/language arts and mathematics reporting in this area. persistently lowest-performing schools do not align with current assessment Changes: None. and for increasing the educational and reporting priorities since student options for students attending such Charter Schools assessments are conducted and reported schools. The Department recognizes that by grade level. The commenter asked Comment: As described earlier in this the available research on the that the Department provide guidance notice, one commenter stated that the effectiveness of charter schools in on how States and LEAs should Department should require each State to raising student achievement is mixed. calculate school-level, rather than grade- indicate whether the information it However, we believe strongly that high- level, improvement. Similarly, one reports includes information from performing charter schools can be commenter stated that guidance is charter schools and, if such information especially valuable in communities needed on how States should calculate is not currently available, require the where chronically low-performing the student gains used to determine State to provide information in its State traditional public schools have failed to school progress; otherwise, the plan on the steps it will take to collect improve after years of conventional commenter said, there will not be a way information on charter schools. turnaround efforts. In such cases, high- to meaningfully compare data among Discussion: Under the requirements, performing charter schools, whether States. States will report information on charter created through the conversion of a Discussion: The Department will schools that are LEAs in the same traditional public school enrolling the provide guidance to States on manner that they will provide same students or by establishing a new calculating school-level progress in information on any LEA. Further, school that provides an alternative to reading/language arts and mathematics. information on public charter schools traditional public schools, can offer Changes: None. that are not LEAs is provided in the promising and proven options for Comment: One commenter same manner as it is for other public breaking the cycle of educational recommended that States be required to elementary and secondary schools. failure. Finally, while we believe in the list the number of schools that have Additionally, as proposed in the NPR ability of high-performing charter emerged from improvement, corrective and established in this notice, the schools to turn around struggling action, or restructuring and to describe Department is requiring States to collect schools, we do not believe that they are what activities led to these results. and publicly report information on the the only reform option. States and LEAs Discussion: The Department agrees number of charter schools that are have developed alternative intervention that it is important to make public the permitted to operate and that are models that have demonstrated success identity of schools that have emerged actually operating in the State (new in raising student achievement in low- from improvement, corrective action, or Indicators (d)(7) and (d)(8)). However, performing schools. In addition to high- restructuring. The data that States will and as discussed in greater detail later quality charter schools, we encourage make available under the requirements in this section, the Department agrees the use of these alternatives that have of this notice will over time provide that it is important to collect proven to be successful in transforming parents, educators, and policymakers information on the academic struggling schools. with information on the extent to which achievement of students who attend Changes: None. States and LEAs have had success in charter schools as well and has added Comment: One commenter questioned reforming the persistently lowest- new Indicators (d)(9) and (10) that why progress information is not achieving schools. Information on the measure the performance of charter required for charter schools when the type of reforms implemented in those school students on State assessments in Department has indicated that it wants schools will also be publicly available. reading/language arts and mathematics. to hold charter schools accountable. The However, while we encourage studies Changes: As discussed in more detail commenter proposed a new indicator on the efficacy of particular reform later, the Department has added new requiring information on charter school strategies, we believe that requiring Indicators (d)(9) and (d)(10) to progress in reading and mathematics. States to conduct such studies is beyond education reform area (d). Discussion: We agree that information the scope of the SFSF program. Comment: A few commenters should be collected on charter school Changes: None. expressed support for proposed progress in improving student Comment: One commenter indicators (d)(6) through (d)(9). achievement in reading/language arts recommended that the Department add However, many commenters expressed and mathematics. Charter schools can an indicator that would provide concern over the Department’s focus on serve as models for school reform, but additional information on the dollar charter schools. Several commenters it is important that they be held amount and percentage of SFSF funds objected to the emphasis on charter accountable for their performance. spent on secondary schools. schools, noting that research suggests Collecting data on charter school Discussion: States will provide that many charter schools perform no progress in reading/language arts and quarterly data on the uses of funds better than regular public schools in mathematics will provide valuable appropriated under the ARRA as raising student achievement. A number information on charter school required by section 1512 of the ARRA. of commenters believe that these performance. In addition, States will provide an indicators will promote an Changes: Two new indicators have annual report on uses of SFSF funds. overemphasis on charter schools while been added to reform area (d) to address These reports will provide a certain ignoring other alternatives. They urged charter school progress in reading/ amount of information on the uses of the Department to focus on other language arts and mathematics. New ARRA funds. While we believe it would models for turning around schools and Indicator (d)(9) requires each State to

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provide, for the State and for each LEA Comment: One commenter Comment: One commenter suggested in the State that operates charter recommended that the Department that the Department consider limiting schools, information on the number and prohibit charter schools from refusing the charter school data collection to percentage of charter schools that have students based on test scores, special such factors as size of enrollment and made progress on State assessments in needs, or any other factor. length of operation. The commenter also reading/language arts in the last year. Discussion: The Department believes recommended that SEAs not be required New Indicator (d)(10) establishes the that all students should have access to to collect data on reasons for charter same requirement for State assessments an excellent education. However, State school closures in previous years in mathematics. and local governments possess the because some States do not have this Comment: A number of commenters authority to authorize charter schools information and would be required to asserted that the proposed data and as such, requirements for charter collect it retroactively. collection regarding charter schools school admissions are primarily State Discussion: The Department believes would provide only a superficial and local matters. Nonetheless, Federal that many States will already have this overview of charter school civil rights laws prohibit charter schools information. States will need to collect accountability and success and (as recipients of Federal funds or as information on charter schools for the proposed new indicators to collect public entities) from discriminating in purposes of State funding and reporting additional information. The proposals admissions on the basis of race, color, for LEAs and schools and, in doing so, included collecting information on the 7 national origin, sex, or disability. In will likely determine which charter charter school application process, the addition, we note that charter schools schools have closed. It is also likely that number of charter school applications receiving funds under the Department’s States also collect information on the received each year, and the number of Charter Schools Program (CSP) may set reasons for closure. Though some States applications approved and denied. The minimum qualifications for admission proposed indicators also included may not currently collect and publicly only to the extent that such report this information, the Department collecting data on the extent to which qualifications are: (a) Consistent with charter schools serve student believes that it is important that they do the statutory purposes of the CSP; (b) so. Understanding the reasons for populations comparable to non-charter reasonably necessary to achieve the public schools in the district, and if a charter school closures can help States, educational mission of the charter LEAs, and other stakeholders determine non-charter school was converted to a school; and (c) consistent with civil charter school, the percentage of the which models of charter schools are rights laws and Part B of the Individuals effective and eliminate those that are former student population the charter 8 with Disabilities Education Act. not. school continues to serve. Commenters Changes: None. also suggested collecting data on reform Comment: One commenter suggested Changes: None. strategies that have been applied to the adding ‘‘mismanagement’’ to the list of Comment: One commenter lowest-achieving charter schools and possible reasons a charter school may recommended that the Department issue requiring States that allow charter have closed. clear reporting guidelines and a schools to show evidence of charter Discussion: While the reasons for standard form for reporting the reasons school success. Another commenter charter school closure included in the for charter school closures in order to suggested that all data related to charter notice are not meant to be exhaustive, eliminate potential problems with schools be disaggregated by the Department believes that requiring reporting such data. subpopulation. States to report information on the Discussion: Policies regarding Discussion: By requiring States to closure of charter schools due to publicly report the number of charter authorization and closure of charter academic, educational or financial schools vary greatly from State to State. schools permitted to operate under State reasons captures the vast majority of law, the number that are currently The Department cannot provide a official ‘mismanagement’ circumstances standard reporting form that would operating, the number of charter schools that would cause a charter school to that have closed and the reason for address all of the different issues in close or not be renewed. The each State. We leave the establishment closure, this final notice will ensure Department has provided an ‘‘other’’ parents, policy makers and other of such guidelines and reporting forms category to allow for closures not to each State. stakeholders have access to valuable reflected in the choices provided. A information on States’ charter school State could use that category for schools Changes: None. laws, operations, and accountability. To closed because of other instances of Comment: One commenter asked for ensure greater transparency, States must ‘‘mismanagement’’. clarification regarding our intent when report this information in each of the Changes: None. we ask for information regarding ‘‘the last five years instead of, as called for in Comment: One commenter asked for number of charter schools currently the proposed requirements, over the last clarification of which entities would permitted to operate.’’ five years. constitute a valid source of information While we encourage States to collect Discussion: In this section, the on why a charter school closed. Department intends to require States to and publicly report data on the Discussion: SEAs are ultimately collect and publicly report information performance of charter schools beyond responsible for all schools in the State on the number of charter schools what is called for in this notice, we and as such will be a valid source for currently permitted to operate under believe that the information we are why a charter school has closed. requiring is sufficient for the purposes Changes: None. State law. of this program. Changes: We have revised new Changes: New Indicators (d)(11) and 7 Additional information on the application of Indicator (d)(7) so that the indicator (d)(12) (proposed Indicators (d)(8) and Federal civil rights laws to charter schools is now reads: Provide for the State and, if (d)(9)) require that the information be available at http://www.ed.gov/offices/OCR/ applicable, for each LEA in the State, archives/pdf/charter.pdf. publicly reported for ‘‘each of the last 8 Additional information on the CSP is available the number of charter schools that are five years’’ as opposed to ‘‘the last five at http://www.ed.gov/programs/charter/ currently permitted to operate under years.’’ legislation.html. State law.

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Comments and Responses on the SIG schools (especially secondary schools) using data available in all States, and NPR that do not yet have an improvement can produce easily understood results in As noted earlier, the following status. the form of a list of State’s lowest- Several commenters also suggested discussion summarizes the comments achieving schools that have not changing the method for determining we received, and our responses, on the improved in a number of years. ‘‘lack of progress,’’ including using Regarding the determination of ‘‘Tier I’’ and ‘‘Tier II’’ schools proposed subgroups rather than the ‘‘all students’’ whether a school is making progress in in the SIG NPR that are now included group, measuring progress in meeting improving its scores on State in the definition of persistently lowest- adequate yearly progress targets, and assessments, the commenters achieving schools. The discussion also narrowing achievement gaps. Another highlighted the complexity and summarizes the comments and our commenter recommended clarifying potential unreliability of measuring responses on the four school that, even if a school shows gains year-to-year gains on such assessments. intervention models proposed in the greater than the State average, it should In response, we are simplifying this SIG NPR. not be considered to be making progress aspect of the definition to give SEAs Definition of Persistently Lowest- if those gains are not greater than zero. greater flexibility in determining a Achieving Schools Finally, several commenters suggested school’s lack of progress on State that graduation rates be taken into assessments over a number of years. Comment: A number of commenters account in determining the lowest- We also agree that it is important to recommended alternatives to the achieving Title I high schools. One of include Title I high schools in process proposed in the SIG NPR for these commenters suggested including improvement, corrective action, or determining the lowest-achieving five in Tier I all Title I high schools in restructuring that have low graduation percent of all Title I schools in improvement, corrective action, or rates in the definition. The Secretary has improvement, corrective action, or restructuring with a graduation rate made addressing our Nation’s restructuring in the State—that is, ‘‘Tier below 60 percent as well as their feeder unacceptably high drop-out rates—an I’’ schools. As proposed in the SIG NPR, middle and junior high schools. estimated 1 million students leave a Tier I school is a school in the lowest- Discussion: In developing our school annually, many never to return— achieving five percent of all Title I proposed definition of the lowest- a national priority. In recognition of this schools in improvement, corrective achieving five percent of schools for priority, and in response to action, or restructuring in the State, or each State as defined in the SIG NPR, recommendations from commenters, we one of the five lowest-achieving Title I we considered several alternatives, are including in the definition any Title schools in improvement, corrective including the use of the existing ESEA I high school in improvement, action, or restructuring in the State, improvement categories and the corrective action, or restructuring that whichever number of schools is greater. possibility of using a measure that has had a graduation rate that is less Under the SIG NPR, to determine this would identify the lowest-achieving five than 60 percent over a number of years. ‘‘bottom five percent,’’ a State would percent of schools in the Nation rather Accordingly, we have made these have had to consider both the absolute than on a State-by-State basis. The goal changes and incorporated the process performance of a school on the State’s was to identify a uniform measure that for determining the lowest-achieving assessments in reading/language arts could be applied easily by all States five percent of Title I schools in and mathematics and whether its gains using existing assessment data. We improvement, corrective action, or on those assessments for the ‘‘all started with Title I schools in restructuring—also known as Tier I students’’ group over a number of years improvement, corrective action, or schools for purposes of SIG funds—into were less than the average gains of restructuring as the initial universe from a new definition of persistently lowest- schools in the State for the ‘‘all which to select the lowest-achieving achieving schools in this notice. students’’ group. schools because those are the schools Changes: The Department has added Several commenters said this eligible to receive SIG funds. ESEA a definition of persistently lowest- proposed process was too prescriptive improvement categories were deemed achieving schools to this notice that and recommended that States have more too dependent on variations in incorporates the process described in flexibility in determining the lowest- individual subgroup performance, the SIG NPR for determining the lowest- achieving five percent. The commenters rather than the overall performance of achieving five percent of Title I schools specifically suggested permitting States an entire school, to reliably identify our in improvement, corrective action, or to restrict Tier I schools to schools in worst schools. A nationwide measure, restructuring (or the lowest-achieving restructuring if this group constitutes although appealing from the perspective five such schools, whichever number of more than five percent of a State’s of national education policy, would schools is greater) (‘‘Tier I’’ schools for identified schools; to apply a State’s likely have identified many schools in purposes of SIG). This new definition growth model; or to consider such other a handful of States and few or none in also includes any Title I high school in factors as measures of individual the majority of States, making it an improvement, corrective action, or student growth, writing samples, grades, inappropriate guide for the most restructuring that has had a graduation and portfolios. One commenter effective use of State formula grant rate of less than 60 percent over a suggested that the Department funds. number of years (as will the ‘‘Tier I’’ determine the lowest-achieving five In general, we believe that the definition for SIG purposes). We have percent of schools in the Nation rather changes and alternatives suggested by removed language in proposed section than have each State determine its own commenters would add complexity to I.A.1.a(ii) of the SIG NPR defining ‘‘a lowest-achieving five percent. Other the method for determining the lowest- school that has not made progress.’’ commenters recommended changes that achieving five percent of schools Comment: Numerous commenters include taking into account the length of without meaningfully improving the expressed support for including time a school has been designated for outcome. With the changes noted chronically low-achieving secondary restructuring, measuring gains related to subsequently, we believe the definition schools that are eligible for, but not English language proficiency, and proposed in the SIG NPR is receiving Title I funds as Tier II schools, including newly designated Title I straightforward, can be easily applied as proposed in section I.A.1.b in the SIG

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NPR, including one commenter who five such schools, whichever number of Comment: Several commenters suggested that LEAs be required to fund schools is greater) (‘‘Tier II’’ schools for suggested adding a fifth intervention Tier II schools. Other commenters, purposes of SIG). This new definition option. One commenter, for example, however, opposed the use of Title I also includes any high school that is suggested permitting States to propose funds in non-Title I schools and eligible for, but does not receive, Title an alternative, but rigorous, intervention recommended that other funding be I funds that has had a graduation rate of model for approval through a peer identified to serve those schools or less than 60 percent over a number of review process. The commenter noted stated that the inclusion of those years (as will the ‘‘Tier II’’ definition for that whatever accountability measure is schools is more appropriately addressed SIG purposes). We have removed adopted in the SIG notice of final in the Title I reauthorization. One language in proposed section I.A.1.b of requirements should serve to ensure commenter suggested that it would not the SIG NPR that required a comparison that the model is held accountable for be appropriate to provide Title I funds of the achievement of secondary schools results. Another commenter suggested a to such schools when the SIG NPR to Tier I schools. ‘‘scale up’’ model, in which an LEA would restrict the number of Title I could use SIG funds to expand General Comments on the Four schools that can be served in Tier I. interventions with documented success Intervention Models Discussion: We believe that low- in producing rapid improvement in achieving secondary schools often Comment: One commenter supported student achievement within that LEA or present unique resource, logistical, and the Secretary’s intent in proposing the in another LEA with similar pedagogical challenges that require four interventions in the SIG NPR. The demographics and challenges. Yet rigorous interventions to address. Yet, commenter noted that the majority of another commenter suggested adding a many such schools that are eligible to SIG funds are intended to target the very ‘‘supported transformation’’ model to receive Title I funds are not served lowest-achieving schools in the accommodate, in particular, the needs because of competing needs for Title I Nation—schools that have not just of children in low-achieving schools in funds within an LEA. The large amounts missed their accountability targets by small, rural communities that lack the of ARRA funds—available through narrow margins or in a single subgroup. capacity to transform their schools. The Stabilization, Race to the Top, and Rather, they are schools that have commenter identified the need for an SIG—present an opportunity to address ‘‘profoundly fail[ed]’’ their students ‘‘for SEA to build the capacity of struggling the needs of these low-achieving some time.’’ Accordingly, the LEAs by working to develop models for secondary schools. Accordingly, we commenter acknowledged that the four intervention, to identify specific have continued in this notice to include interventions are appropriately designed evidence-based intervention strategies, secondary schools that are eligible for, to engage these schools in bold, and to provide ongoing, intensive but do not receive, Title I funds in the dramatic changes or else to close their technical, pedagogical, and practical definition of the persistently lowest- doors. assistance so as to increase LEAs’ achieving schools in a State. Conversely, several commenters capacity to assist their low-achieving As proposed in the SIG NPR, such suggested that the four interventions are schools. secondary schools would have been eligible if they were equally as low- too prescriptive and do not leave room Discussion: We included the four achieving as a Tier I school. We realized for State innovation and discretion to school intervention models in the SIG that this standard was too vague, fashion similarly rigorous interventions NPR after an extensive examination of particularly in light of the rigorous that may be more workable in a available research and literature on interventions that would be required if particular State. The commenters noted school turnaround strategies and after an SEA identified, and an LEA decided that for some school districts, outreach to practitioners. Our goal, to serve, such a school. As a result, we particularly the most rural districts, which we believe was achieved, was to have changed the definition to include none of the interventions may be identify fundamental, disruptive secondary schools that are eligible for, feasible solutions. In addition, several changes that LEAs could make in order but do not receive, Title I funds and that commenters rejected the idea that there to finally break the long cycle of are among the lowest-achieving five should be any Federal requirements educational failure—including the percent of such schools in a State (or the governing struggling schools. The failure of previous reforms—in the lowest five such schools, whichever commenters suggested that schools in Nation’s persistently lowest-achieving number of schools is greater). An SEA need of improvement be permitted to schools. We also believe that these must identify these schools using the engage in self-improvement strategies models, despite their limited number, same criteria as it uses to identify the tailored to each individual school’s potentially encompass a wide range of lowest-achieving Title I schools in needs as determined at the local level specific reform approaches, thus improvement, corrective action, and based on local data, rather than being negating the need for a ‘‘fifth model.’’ restructuring. mandated to adopt specific models by We understand, for example, that school For the reasons noted earlier in this the Federal Government. closure may not work in some LEAs, but notice, we have also included in the Discussion: We disagree that the four that leaves the turnaround, restart, or definition any high school that is models limit State innovation. Each transformation models as possible eligible for, but does not receive, Title model provides flexibility and permits options for them. We also know that not I funds and that has had a graduation LEAs to develop approaches that are all States have a charter school law, rate that is less than 60 percent over a tailored to the needs of their schools limiting the restart options available to number of years. within the broad context created by LEAs in such States. However, even Changes: The Department has added each model’s requirements. We do not where charter schools are not an option, a definition of persistently lowest- believe that any one model is an LEA could work with an Education achieving schools to this notice that appropriate for all schools; rather, it is Management Organization (EMO) to incorporates the lowest-achieving five the Department’s intention that LEAs restart a failed school or could pursue percent of secondary schools in a State select the model that is appropriate for one of the other three intervention that are eligible for, but do not receive, each particular school. models. And we understand that some Title I funds (or the lowest-achieving Changes: None. rural areas may face unique challenges

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in turning around low-achieving ARRA SIG funds to leverage the believed a stable and consistent staff is schools, but note that the significant adoption of the more far-reaching a key factor in school improvement. amount of funding available to reforms required by the four school Discussion: We understand that implement the four models will help to intervention models, we note that Part replacing leadership and staff is one of overcome the many resource limitations A of Title I of the ESEA continues to the most difficult aspects of the four that previously have hindered make available nearly $15 billion models; however, we also know that successful rural school reform in many annually, as well as an additional $10 many of our lowest-achieving schools areas. billion in fiscal year 2009 through the have failed to improve despite the The four school intervention models ARRA, that SEAs and LEAs may use to repeated use of many of the strategies described in the SIG NPR also are develop and implement virtually any suggested by the commenters. The internally flexible, permitting LEAs to reform strategy that they believe will emphasis of the ARRA on turning develop their own approaches in the significantly improve student around struggling schools also reflects, broad context created by the models’ achievement and other important in part, an acknowledgement by the requirements. For example, the educational outcomes in Title I schools. Congress that past efforts have had turnaround and restart models focus on In particular, we would applaud State limited or no success in breaking the governance and leadership changes, and local efforts to use existing Title I cycle of chronic educational failure in leaving substantial flexibility and funds to scale up successful the Nation’s persistently lowest- autonomy for new leadership teams to interventions or to build State and local achieving schools. develop and implement their own capacity to develop and implement Accordingly, the Department believes comprehensive improvement plans. other promising school intervention that dramatic and wholesale changes in Even the transformation model includes models. For all of these reasons, we leadership, staffing, and governance— a wide variety of permissible activities decline to add a fifth school such as those required by the from which LEAs may choose to intervention model to this notice. turnaround model—are an appropriate supplement required elements, which Changes: None. intervention option for creating an are primarily focused on creating the entirely new school culture that breaks conditions to support effective school Turnaround Model a system of institutionalized failure. turnarounds rather than the specific Principal and Staff Replacement Although we acknowledge the methods and activities targeting the possibility that the turnaround model academic needs of the students in the Comment: Many commenters opposed could discourage some principals and school. replacing principals and staff as part of teachers from working in the lowest- We also note that over the course of the turnaround model. Although several achieving schools, others will likely be the past eight years, States and LEAs commenters acknowledged that poor attracted by the opportunity to have had considerable time, and have leadership and ineffective staff participate in a school turnaround with been able to tap new resources, to contribute to a school’s low other committed staff. In addition, other identify and implement effective school performance, a majority claimed that Federal programs, such as the Teacher turnaround strategies. Yet they have staff replacement has not been Incentive Fund and Race to the Top demonstrated little success in doing so, established as an effective reform programs, are helping to create particularly in the Nation’s persistently strategy, others stated that such a incentives and provide resources that lowest-achieving schools, including an strategy is not a realistic option in many can be used to attract and reward estimated 2,000 ‘‘dropout factories.’’ communities that already face teacher effective teachers and principals and Under the ESEA, States have been and principal shortages, and one improve strategies for recruitment, required to set up statewide systems of commenter suggested that replacement retention, and professional support for LEA and school requirements associated with development. improvement; to identify low-achieving turnaround plans would discourage Changes: None. schools for a range of improvement, teachers and principals from working in Comment: A number of commenters corrective action, and restructuring struggling schools. recommended changes to the principal activities; and to use the school In addition, many commenters and staff replacement requirements. One improvement reservation under section opposed sanctioning principals and commenter proposed a detailed ‘‘fifth 1003(a) of the ESEA to fund such staff, partly because, as one commenter model’’ that focused upon providing improvement activities. However, the claimed, the turnaround model assumes additional support to teachers by overall number of schools identified for that most problems in a school are improving working conditions, such as improvement, corrective action, and attributable to these individuals. One reducing class size and providing restructuring continues to grow; in stated that principals face ‘‘trying’’ professional development opportunities. particular, the number of chronically circumstances and another stated that Others recommended (1) providing a low-achieving Title I schools identified the proposed requirements ignore the principal with the autonomy to make for restructuring has roughly tripled ‘‘vital role’’ that principals play in high- his or her own firing and hiring over the past three years to more than need schools. These commenters stated decisions instead of requiring the 5,000 schools. SEAs have thus far that other factors—such as poverty, lack replacement of 50 percent of the staff; helped no more than a handful of these of proper support, and tenure and (2) allowing staff to reapply for their schools to successfully restructure and collective bargaining laws—should be positions; (3) retaining principals who exit improvement status, in large part, addressed before decisions are made to were recently hired; (4) providing we believe, because of an unwillingness replace principals and staff. One principals with a ‘‘window’’ of to undertake the kind of radical, commenter claimed that principals and opportunity to improve their schools fundamental reforms necessary to teachers in low-achieving schools could before being replaced; (5) suggesting improve the persistently lowest- perform their jobs if they are given that the replacement requirement achieving schools. adequate training and support and extend to superintendents and boards of Finally, although we believe this working conditions are improved. education; (6) retaining at least 50 recent history of failed school Another opposed the replacement percent of current staff who reapply and improvement efforts justifies using requirement because the commenter meet all of the requirements of the

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redesigned school; and (7) focusing on comprehensive approach in order to without consideration of such factors as staff qualifications and putting in place substantially improve student years of experience and district-level effective staff rather than on a particular achievement outcomes and increase support, recommended a three-year target level of replacements. high school graduation rates.’’ As window in which to make replacement Discussion: We agree with some of the described earlier, we have also revised decisions based upon multiple changes to the turnaround model paragraph (a)(1)(ii) to require that an measures, and suggested the provision suggested by commenters. For example, LEA use locally adopted competencies of high-quality professional new language in paragraph (a)(1)(i) of to measure the effectiveness of staff who development before replacing any staff. the turnaround model recognizes the can work within the turnaround Discussion: We recognize that the vital role played by the principal and environment to meet the needs of replacement requirement will present acknowledges that new principals need students. In addition, instead of the challenges for LEAs, particularly in authority to make key changes required requirement that an LEA replace ‘‘at rural areas, where highly effective to turn around a failing school. Under least 50 percent of the staff’’ in a principals and teachers capable of this new language, the new principal of turnaround school, paragraph leading educational transformation may a turnaround school would have (a)(1)(ii)(A) of the definition requires an be in short supply; however, the ‘‘sufficient operational flexibility LEA to screen and rehire ‘‘no more than difficulty of identifying new qualified (including in staffing, calendars/time, 50 percent’’ of the existing staff. teachers and school leaders for a and budgeting) to implement fully a Comment: Numerous commenters turnaround school must be measured comprehensive approach to expressed concerns that a national against the enormous human and substantially improve student shortage of principals and teachers economic cost of accepting the status achievement outcomes and increase would prevent successful quo for the Nation’s persistently lowest- high school graduation rates.’’ implementation of the turnaround achieving schools. We simply cannot We also recognize that the staff model. Two commenters stated that, in afford to continue graduating hundreds selected for a turnaround school must order to replace half of the staff as of thousands of students annually who have the skill and expertise to be required by the turnaround model, an are unprepared for either further effective in this context. We are adding LEA would likely be forced to hire less education or the workforce, or to permit language clarifying that all personnel experienced teachers and rely on roughly one million students to drop must be screened and selected based on emergency credentials or licensure to out of high school each year, many of locally adopted competencies to fully staff a turnaround school. One them never to return to school. Instead, measure their effectiveness in a commenter claimed that research shows States and LEAs must work together to turnaround environment. that large pools of available applicants In addition, while the SIG NPR would recruit, place, and retain the effective are essential for successful replacement principals and staff needed to have required an LEA to replace at least of principals and teachers. Another implement the turnaround model. The 50 percent of the staff of a turnaround commenter stated that there is a Department is supporting these efforts school, new paragraph (a)(1)(ii)(A) of ‘‘national shortage of transformational through Federal grant programs that can the turnaround model requires an LEA, leaders’’ who can lead turnaround provide resources for improving after screening all staff using locally schools. Further, many commenters strategies used to recruit effective adopted competencies, to rehire no claimed that replacing half of a school’s principals and teachers, such as the more than 50 percent of the school’s staff would be difficult or even Teacher Incentive Fund program, which staff. Further, some commenters appear impossible in rural schools and small helps increase the number of effective to have overlooked proposed section communities. One commenter asserted teachers teaching poor, minority, and I.B.1 in the SIG NPR, which would give that the shortage of teachers in rural LEAs flexibility to continue areas would disqualify these LEAs from disadvantaged students in hard-to-staff implementing interventions begun applying for school improvement funds. subjects and schools. within the last two years that meet, in Another stated that even with Finally, we wish to clarify that the whole or in part, the requirements of the recruitment incentives it would be requirements for the turnaround model turnaround, restart, or transformation difficult to fill staff vacancies. One do not require ‘‘blanket firings’’ of staff. models and, thus, would in many cases commenter urged the Secretary to take The Department agrees that staff should allow an LEA to retain a recently hired such shortages into account before be carefully evaluated before any principal in a turnaround school. We requiring ‘‘blanket firings’’ of teachers. replacement decisions are made and has are retaining this flexibility provision in In addition, several commenters added new language requiring LEAs to this notice. observed that chronically low- use ‘‘locally adopted competencies to Finally, the turnaround model performing schools already suffer from measure the effectiveness of staff who includes significant provisions aimed at a number of vacancies due to high staff can work within the turnaround supporting teachers. For example, the turnover rates. In fact, one commenter environment to meet the needs of SIG NPR called for ‘‘ongoing, high- believed replacing 50 percent of the staff students.’’ If required by State laws or quality, job-embedded professional was not a ‘‘tough’’ consequence because union contracts, principals and staff development to staff,’’ as well as these schools already experience high may have to be reassigned to other increased time for collaboration and turnover. schools as necessary. professional development for staff. These concerns led several Changes: As described earlier, we These supports for teachers and other commenters to recommend flexibility have revised paragraph (a)(1)(ii) to staff are retained in this final notice. regarding the staff replacement require that an LEA use locally adopted Changes: We have modified the requirement of the turnaround model, competencies to measure the provisions in the turnaround model in including the opportunity to request a effectiveness of staff who can work paragraph (a)(1)(i) to give the new waiver if an LEA could demonstrate an within the turnaround environment to principal of a turnaround school inability to fill vacancies, and a required meet the needs of students. The LEA ‘‘sufficient operational flexibility evaluation before principals and staff must then screen all existing staff before (including in staffing, calendars/time, can be replaced. Other commenters rehiring no more than 50 percent of and budgeting) to implement fully a opposed the replacement of principals them.

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Comment: Numerous commenters noted that the Department would have no single group of adults in the school claimed that there is little research to provide ‘‘involuntary transfer is responsible for a culture of persistent supporting the replacement of authority’’ to LEAs in order for them to failure. For this reason, our general leadership and staff in school implement the turnaround model in guidance is that an LEA should define turnaround efforts. One commenter collective bargaining States. ‘‘staff’’ broadly in developing and cited a 2008 Institute of Education Several commenters called for the implementing a turnaround model. The Sciences (IES) report, ‘‘Turning Around Department to foster collaboration with Department declines to define the term Chronically Low-Performing Schools,’’ teacher unions as well as the larger ‘‘staff’’ in this notice, but plans to issue that, according to the commenter, community. One of these commenters guidance that will clarify this and other recommends that decisions to remove claimed that collaboration ‘‘increases issues related to the turnaround model. staff should be made on an individual leadership and builds professionalism’’ As for the term ‘‘governance,’’ the basis. Several others also asserted that and recommended that evidence of language in paragraph (a)(1)(v) suggests the proposed requirement to replace at collaboration be documented. Another a number of possible governance least 50 percent of staff was arbitrary, asserted the involvement of school- alternatives that may be adopted in the with two commenters recommending based personnel in decision-making is context of a turnaround model. The instead that the Department ‘‘empower key to the successful implementation of Department declines to provide a more the turnaround principal with the school interventions. Another specific definition in order to permit autonomy to hire, based on merit, for recommended that an LEA seek LEAs the flexibility needed to adopt a every position in the school.’’ ‘‘feedback’’ from all stakeholders, turnaround governance structure that Discussion: We are not claiming that including students, parents, and unions, meets their local needs and merely replacing a principal and 50 as to whether an intervention is circumstances. percent of a school’s staff is sufficient to ‘‘feasible or warranted.’’ Changes: None. turn around a low-achieving school. Discussion: We recognize that Comment: Several commenters asked Although principal and staff collective bargaining agreements and that the Department consider the replacement are key features of the union contracts may present barriers to possible negative consequences of turnaround model proposed in the SIG implementation of the turnaround replacing staff on a school and NPR, they are not the only features. The model; however, we do not believe community, with one commenter strength of the turnaround model lies in these barriers are insurmountable. In suggesting that replacing half of the staff its comprehensive combination of particular, drawing upon pockets of could result in more damage ‘‘to a significant staffing and governance success in cities and States across the fragile school than no change at all.’’ changes, an improved instructional country, the Secretary believes LEAs Another commenter stated that program, ongoing high-quality and unions can work together to bring maintaining a consistent staff is a key to professional development, the use of about dramatic, positive changes in our school success. data to drive continuous improvement, persistently lowest-achieving schools. Discussion: The Secretary disagrees increased time for learning and for staff Accordingly, the Department that implementing a turnaround model collaboration, and appropriate supports encourages collaborations and would be worse than ‘‘no change at all.’’ for students. The staffing and partnerships between LEAs and teacher The schools that would implement a governance changes are intended unions and teacher membership turnaround model have, by definition, primarily to create the conditions associations to resolve issues created by persistently failed our children for within a school, including school school intervention models in the years, and dramatic and fundamental climate and culture, that will permit context of existing collective bargaining change is warranted. In addition, as effective implementation of the other agreements. We also encourage LEAs to stated elsewhere in this notice, the elements of the turnaround model. collaborate with stakeholders in schools commenters overlook the fact that the Dramatic changes in leadership, staff, and in the larger community as they other options—the transformation, and governance structure help lay the implement school interventions. school closure, and restart models—do groundwork to create the conditions for Changes: None. not require replacement of 50 percent of autonomy and flexibility that are Comment: Many commenters stated a school’s staff. If an LEA believes that associated with successful turnaround that the term ‘‘staff’’ was not clearly it cannot successfully meet the efforts. Accordingly, we decline to defined. One commenter presumed it requirements of the turnaround model, remove the requirement for replacing excluded maintenance, food services, we recommend that it consider one of staff in a turnaround model. and other support staff. Another stated the other three options. Changes: None. that the Department should allow LEAs Changes: None. Comment: Many commenters claimed to develop their own definition of Comment: Numerous commenters that teacher tenure, State collective ‘‘staff,’’ and permit LEAs to determine stated that decisions regarding school bargaining laws, and union contracts whether non-instructional staff should restructuring are best decided on the prevent school administrators from be included in the replacement local, rather than the Federal, level. One replacing staff as required by the calculus. Two commenters also commenter opposed the requirements turnaround model. Several commenters requested greater clarity regarding the for the turnaround model as being too stated that union contracts would force meaning of ‘‘new governance.’’ prescriptive, and another recommended school administrators to reassign Discussion: We believe that, in high- that the local school board be provided dismissed teaching staff to other achieving schools facing the most with the discretion to determine how schools, and the turnaround model challenging of circumstances, every best to implement the turnaround would not solve the problem of adult in the school contributes to the model. One commenter agreed that removing ineffective teachers from the school’s success, including the ‘‘ineffective staff and leadership should classroom. One commenter asked if an principal, teachers, non-certificated be replaced in order for school LEA would have to negotiate staff staff, custodians, security guards, food improvement to work,’’ but stated that replacement with the union or if the service staff, and others working in the the turnaround model’s ‘‘one-size-fits- Federal grant requirements supersede school. Conversely, in a persistently all formula may not be the best State due process laws. One commenter lowest-achieving school, we believe that approach for all schools.’’ Two

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commenters specifically stated that the Discussion: We agree that the displace students and disrupt existing decision to remove a principal and staff turnaround model in the SIG NPR efforts to build community schools; should be determined by a local school lacked clarity and potentially created another commenter recommended that board. Similarly, another commenter confusion about whether applicants any planning and reorganization for a noted that decisions to replace a could draw upon permissible activities restart model take place during the principal and staff should be based described in the transformation model. school year, while students remain in upon ‘‘local data’’ rather than Federal The Department did not intend to limit the school, so that there would be no requirements that are not tailored to an LEA discretion in adapting elements of disruption in services if the school were individual school’s needs. One of these the transformation model to the closed and then reopened as a restart commenters stated that local decision- turnaround model. Accordingly, we are school. making is particularly important if a adding new language in paragraph Discussion: We acknowledge that the school has been underperforming for a (a)(2)(i) to clarify that an LEA available research on the effectiveness period longer than the ‘‘principal’s implementing the turnaround model of charter schools in raising student tenure or if the principal has begun a may implement any of the required and achievement is mixed, that some State transformative process that could be permissible activities under the laws significantly limit the creation or harmed by a leadership change.’’ transformation model. expansion of charter schools, and that Discussion: An LEA is free to exercise Changes: We have clarified in smaller communities, particularly in local control and use local data and paragraph (a)(2)(i) that an LEA rural areas, may not have sufficient leadership to determine which of the implementing a turnaround model may access to providers or teachers to four school intervention models to also implement other strategies such as support the creation of charter schools. follow in turning around a persistently ‘‘[a]ny of the required and permissible However, there are many examples of lowest-achieving school. However, after activities under the transformation high-quality charter schools, and the nearly a decade of broad State and local model.’’ In addition, we have made Secretary believes very strongly that discretion in implementing, with little changes in the turnaround model that high-achieving charter schools can be a success, the school improvement correspond to changes we made in significant educational resource in provisions of the ESEA, the Department response to comments on the communities with chronically low- believes, for the purpose of this transformation model. The specific achieving regular public schools that program, it is appropriate and necessary changes are noted subsequently in this have failed to improve after years of notice in our discussion of comments on conventional turnaround efforts. to limit that discretion and require the the transformation model. Although they are not a ‘‘silver bullet’’ use of a carefully developed set of for failing schools or communities, a school intervention models in the Restart Model more balanced view of the results Nation’s lowest-achieving schools. In Comment: Many commenters opposed produced by charter schools suggests particular, the turnaround and the restart model described in the SIG that they offer promising and proven transformation models include a NPR because, they claimed, charter options for breaking the cycle of combination of staffing, governance, and schools generally do not perform better educational failure and fully merit structural changes with specific than regular public schools. In inclusion in the restart model. comprehensive instructional reforms particular, these commenters cited The Department also recognizes the that the Department believes hold great recent research from the Center for concerns expressed by commenters promise for effective investment of the Research on Education Outcomes about the potential disruption to $3 billion provided for the SIG program (CREDO) at Stanford University students, parents, and communities that by the ARRA. showing that fewer than one-fifth of may be connected with a restart plan Changes: None. charter schools demonstrated gains in that involves closing and then Relationship Between Turnaround and student achievement that exceeded reopening a school. To help address this Transformation Models those of traditional public schools. One concern, we are adding language to this commenter also mentioned a RAND notice allowing a school conversion— Comment: Several commenters study highlighting the low performance and not just closing and reopening a believed the turnaround model lacked of charter schools in Texas and a study school—to qualify as an acceptable sufficient detail and did not provide by researchers at Johns Hopkins restart model. adequate direction to LEAs attempting University showing that most EMO- At the same time, the Department to implement the model. In contrast, operated schools were outperformed by emphasizes that just as the restart model several commenters appreciated the traditional public schools. Most of these is one of four school intervention level of detail contained in the commenters proposed broadening or models supported by this notice, charter transformation model and suggested strengthening the restart option, but one schools are just one option under the that the turnaround model provide a commenter recommended removing it restart model. Contracting with an EMO similar level of detail. Some of these from the list of permitted school is another restart option that may commenters recommended that the intervention models. One commenter provide sufficient flexibility in States turnaround model incorporate some of claimed that, where charter schools had without charter school laws or in rural the specific provisions contained in the raised student achievement, in most areas where few charter schools operate. transformation model. For example, one cases it was attributable to high student An EMO also may be able to develop commenter suggested that the attrition rates brought about by and implement a plan that permits turnaround model include the demanding school schedules and students to stay in their school while transformation model’s provisions behavioral rules that did not work for all undergoing a restart. For example, some regarding implementation of students. A few commenters noted EMOs hired to turn around a low- instructional changes. Another either that some States do not allow achieving school may begin planning for commenter specifically recommended charter schools or that the restart model the turnaround in late winter or early that the turnaround model incorporate would be unlikely to work in rural spring, hire and train staff in late spring the transformation model’s criteria for areas. Several commenters also opposed and early summer, reconfigure and re- teacher effectiveness. the restart model because it might equip the school—including the

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acquisition of curricular materials and include charter schools operated or Flexibility Under the Restart Model technology—during the summer, and managed by an LEA in the definition of Comment: Several commenters then reopen promptly in the fall, CMO. One commenter also urged the recommended greater flexibility for resulting in minimal, if any, disruption Department to establish reporting LEAs implementing the restart model, to students and parents. requirements for CMOs and EMOs, including options to create magnet Changes: We have changed the including data on student achievement, schools or ‘‘themed’’ schools. Another language in paragraph (b) to define a the impact of reforms on student commenter, claiming that few charter restart model as one in which an LEA achievement, information on how CMOs school operators, CMOs, or EMOs have converts a school or closes and reopens and EMOs serve students with experience in ‘‘whole school takeover,’’ a school under a charter school disabilities, and other accountability recommended permitting a phase-in operator, a charter management data. Finally, two commenters also approach to charter schools that would organization (CMO), or an EMO that has suggested that the Department award allow a charter school operator to start been selected through a rigorous review funding directly to CMOs and EMOs to process. with two or three early grades and pay for planning, outreach, and training gradually ‘‘take over’’ an entire school. Defining Rigorous Review staff for a restart effort. Discussion: We believe that Comment: Several commenters Discussion: We included definitions considerable flexibility regarding the supported the requirement in the SIG of CMO and EMO in the preamble of the type of school program offered is NPR that LEAs select a charter school SIG NPR and are adding these inherent in the restart model, which operator, a CMO, or an EMO through a definitions in the definition of restart focuses on management and not on ‘‘rigorous review process.’’ In general, model for clarification purposes. We academic or curricular requirements. these commenters viewed this agree that the definition of CMO should For example, restart operators would be requirement as essential to ensuring the include organizations that operate or free to create ‘‘themed’’ schools, so long quality of a restart model. Commenters manage charter schools and have made as those schools permit enrollment, also asked for clarification of how such this change to the CMO definition in within the grades they serve, of any a review would be conducted, including this notice accordingly. Although a former student who wishes to attend. guidance for SEAs and LEAs and charter school may exist as part of an Additionally, LEAs have the flexibility opportunities for parent and community LEA, it is unlikely that the LEA would to work with providers to develop the involvement in reviewing and selecting be responsible for operating or appropriate sequence and timetable for a restart school operator. One managing the charter school. Therefore, a restart partnership. Whether through commenter raised a concern about how we have not expressly included LEAs in ‘‘phase-in’’ models or complete it would be possible to review the definition of CMO. We are retaining conversions, the Department encourages rigorously a new charter school the EMO definition from the SIG NPR, SEAs and LEAs to take into account operator, CMO, or EMO. and believe the emphasis on ‘‘whole- local context and need in making these Discussion: We believe that SEAs and school operation’’ is sufficient to decisions. LEAs should have flexibility to develop distinguish EMOs from other providers Changes: None. their own review processes for charter that may help with certain specific Comment: Many commenters asked school operators, CMOs, and EMOs, aspects of school operation and for clarification regarding various based both on local circumstances and management, but that do not assume aspects of the restart model, including on their experiences in authorizing full responsibility for the entire school, whether it includes conversion of charter schools. We will provide as is required by the restart model. existing schools, who would have authority over the operator of restart guidance and technical assistance in The Department does not believe it is this area, but will leave final decisions schools (e.g., LEA, SEA, independent necessary to add new or additional governing board, or a State or local on review requirements to SEAs and reporting requirements for EMOs and LEAs. We believe flexibility in defining authorizer), and whether a group of CMOs, as their performance will be individuals (e.g., teachers) could ‘‘rigorous review’’ is warranted because captured by the reporting metrics of the wide variation in local need and manage a restart school. established in the final SIG notice. More Discussion: We have changed the community context as well as in the specifically, SEAs and LEAs already size, structure, and experience of charter definition of restart model to clarify that must report on the intervention model it includes conversion of an existing school operators, CMOs, and EMOs. used for each persistently lowest- Changes: None. school and not just strategies involving achieving school, as well as outcome closing and reopening a school. In Clarifying Restart Operator Definitions data for those schools, including particular, we believe that conversion Comment: One commenter outcome data disaggregated by student approaches may permit implementation recommended that the Department subgroups. As for providing SIG funding of a restart model with minimal provide a definition of CMO and EMO, directly to CMOs and EMOs, the SIG disruption for students, parents, and while other commenters suggested program is a State formula grant communities. In general, an LEA would changes or requested clarification of the program, and the Department must be responsible for authorizing or definitions of CMO and EMO provided allocate funds to States in accordance contracting with charter school in the SIG NPR. One commenter with the requirements of section 1003(g) operators, CMOs, or EMOs for recommended defining a CMO as an of the ESEA. Moreover, the only eligible implementation of a restart model. The organization that ‘‘operates or manages SIG subgrantees are LEAs. precise form of this contract or a school or schools’’ rather than, as in Changes: We have included the agreement would be up to State or local the SIG NPR, ‘‘operates charter definitions of CMO and EMO in the authorities and could include each of schools.’’ This commenter also urged definition of restart model. We have the alternatives mentioned by the the Department to define ‘‘whole school also modified the definition of CMO commenters. However, regardless of the operations’’ as applied to the definition slightly to reflect the fact that a CMO lines of authority, autonomy and of EMO. Another commenter may either operate or manage charter freedom to operate independently from recommended that the Department schools. the State or LEA are essential elements

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of the restart model. A group of proficient students. Another commenter non-traditional but skilled teachers and individuals, including teachers, would suggested that the review process by extending the length of the school be eligible to manage a restart school so include examining the extent to which day. The Department believes that the long as they met the local requirements a restart operator sought to ensure that outcome metrics established in the final of the rigorous review process included restart schools would serve all former SIG notice will ensure accountability for in the restart model. students by requiring States to collect the performance of restart schools. Changes: We have revised the first data on the number of students from Changes: None. sentence of the definition of restart low-income families, students with Comment: One commenter expressed model to read as follows: ‘‘A restart disabilities, and limited English concern that LEAs could use the restart model is one in which an LEA converts proficient students served by a restart model to close an existing charter a school or closes and reopens a school school compared with the number of school that, while successful in raising under a charter school operator, a those students served by the school it student achievement, remained in charter management organization replaced. school improvement status under (CMO), or an education management Discussion: Restart operators, by section 1116 of the ESEA. organization (EMO) that has been definition, have almost complete Discussion: An existing charter school selected through a rigorous review freedom to develop and implement their that is raising student achievement process.’’ own curricula and staffing plans, and would be unlikely, under the Comment: Several commenters the Department declines to place limits requirements for identifying a State’s recommended that the Department in this area in recognition of the core persistently lowest-achieving schools, to include specific elements of the emphasis of the restart model on be identified for school intervention, turnaround and transformation models outcomes rather than inputs. The because those requirements include not in the restart model, including requirement to enroll any former only low levels of achievement, but also improved curricula and instruction, student who wishes to attend the school making little or no progress on student supports, extended learning will help to ensure that charter school improving those low levels of time, community involvement, and operators, CMOs, and EMOs include achievement in recent years. Moreover, partnering with community-based serving all existing groups of students in this notice, as did the SIG NPR, organizations. Similarly, one commenter their restart plans. Moreover, the provides flexibility for a school, such as noted that a restart model might permit effectiveness of these curricula and staff a recently converted charter school that a school to reopen as a charter school changes in meeting the needs of meets the requirements of the restart while changing little inside the school subgroups of students, including model, to use SIG funds to continue or and urged the Department to require students with disabilities and limited complete reforms it began within the restart schools to use a model of reform English proficient students, will be prior two years. On the other hand, it is that has been proven effective or that measured by the metrics in the final SIG possible, and in some cases appropriate, includes evidence-based strategies. notice, which will include disaggregated for an LEA to close a charter school that Another commenter urged the achievement data by student subgroup. is not serving its students well and Department to encourage use of the We encourage SEAs and LEAs to implement a new intervention model in restart model to better serve high-risk analyze these data to ensure that the school. students and help dropouts reconnect to subgroups of students are properly Changes: None. school. included in restart schools and that School Closure Discussion: We note that restart their needs are addressed. models could include nearly all of the Changes: None. Comment: A number of commenters specific reform elements identified Comment: A few commenters expressed their general views regarding under the turnaround and expressed concern that charter schools whether closing schools is an transformation models, but decline to are not subject to the same oversight, appropriate intervention for raising require the use of any particular element regulation, or accountability as are student achievement. Although no or strategy. The restart model is regular public schools. Other commenter advocated extensive use of specifically intended to give operators commenters emphasized the this intervention, several acknowledged flexibility and freedom to implement importance, particularly in the case of that school closure is sometimes their own reform plans and strategies. charter school conversions, of ensuring necessary, particularly for schools with The required rigorous review process autonomy, flexibility, and freedom from a long history of very low achievement, permits an LEA to examine those plans district rules and collective bargaining and noted that some States and LEAs and strategies—and helps prevent an agreements, so that charter schools can have used this strategy successfully. operator from assuming control of a implement their own cultures and Other commenters, however, expressed school without a meaningful plan for practices. a number of logistical concerns with turning it around—but should not Discussion: The restart model is this intervention. Some noted that involve mandating or otherwise specifically intended to give providers closing schools is often not feasible in requiring specific reform activities. freedom from the rules and regulations rural areas in which the distance However, the review process may governing regular public schools, in between schools is too great to make require operators to demonstrate that recognition of the fact that, while such practical enrolling students from a their strategies are informed by research rules and regulations may be effective in closed school in higher-achieving and other evidence of past success. requiring certain kinds of inputs, such schools. Others noted that many LEAs Changes: None. as teacher qualification requirements or do not have multiple schools at the Comment: One commenter a uniform length of the school day or same grade level in which to enroll recommended requiring the review year, they have not been demonstrated students from a closed school. Still process for CMOs and EMOs to include to have a significant impact on others noted capacity issues that would curriculum and staffing plans for educational outcomes. Moreover, many prevent schools from accommodating meeting the needs of subgroups of successful charter schools have additional students or the lack of high- students, including students with achieved outstanding results by achieving schools in which to enroll disabilities and limited English changing these inputs, such as by hiring students from a closed school. One

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commenter noted that this intervention before a school is closed, and one so by implementing a turnaround, would not be feasible on a large scale in suggested that an LEA have a detailed restart, or transformation model. large, urban LEAs with limited plan demonstrating how support would Changes: None. resources and substantial numbers of be provided to students and their Comment: Several commenters low-achieving students. Another families transitioning to different recommended that a school not be commenter recommended that this schools. Several commenters suggested closed unless an LEA opens a new intervention be limited to those LEAs that the final requirements provide for school in its place. One commenter with the capacity to enroll affected parent and community input before a specifically suggested closing a school students in other, higher-achieving school is closed. in phases and reopening it as a new schools. Discussion: The Department school. Under this concept, an LEA Discussion: School closure is just one recognizes and understands that school would permit both students and staff of four school intervention models from closures, by definition, displace who choose to do so to remain in the which an LEA may choose to turn students and disrupt communities and school but the school would enroll no around or close its persistently lowest- are among the most difficult decisions new students. At the same time, achieving schools, and the Department faced by local authorities. However, according to the commenter, other recognizes that it may not be each of the four school intervention schools would be better prepared to appropriate or workable in all models is predicated on the potentially absorb students who wish to transfer, circumstances. To clarify this, we have positive impact of ‘‘disruptive change’’ logistical and facility issues would be revised the definition of school closure on student educational opportunities, minimized, and the new school would in this notice to clarify that this option achievement, and other related have adequate time to recruit and train is viable when there are re-enrollment outcomes. Schools targeted for closure high-quality staff and develop its options in higher-achieving schools in under this notice will likely have served instructional program. Discussion: The Department has the LEA that are within reasonable their communities poorly for many revised the language in the definition of proximity to the closed school that can years, if not decades, as measured by school closure to recognize the need to accommodate the students from the such factors as student achievement, have available options for closed school. To make this option more graduation rates, and college enrollment accommodating the educational needs viable, we have changed ‘‘high- rates. Moreover, such schools also will of the students in a closed school, but achieving schools’’ to ‘‘higher-achieving likely have proven impervious to does not believe it is necessary to schools.’’ positive change despite years of Changes: We have included the require an LEA to open a new school in identification for improvement, following clarifying language in the place of the closed school. Many LEAs corrective action, or restructuring under definition of school closure: ‘‘School participating in the SIG program have the ESEA as well as other previous closure occurs when an LEA closes a under-utilized or under-enrolled reform efforts. The Department believes school and enrolls the students who schools that may readily accommodate that, when such schools prove attended that school in other schools in students from a closed school; requiring unwilling or unable to change, closure the LEA that are higher achieving. These such LEAs to open new schools simply must be considered. Many communities other schools should be within does not make sense. However, an LEA have experience in closing, reasonable proximity to the closed that chooses to reopen a new school consolidating, or otherwise changing the school and may include, but are not would be free to do so, either on its own structure of their existing schools and limited to, charter schools or new or as part of a turnaround or restart have their own processes and schools for which achievement data are model. not yet available.’’ procedures for obtaining public input Changes: None. Comment: A number of commenters and approval for such changes, Comment: One commenter suggested expressed the opinion that a school including assessment of the impact on that the Department provide incentives should never be closed if that option students, families, neighborhoods, other for the development of successful displaces students and disrupts schools, and transportation charter schools in the areas in which communities. The commenters noted requirements, as well as for developing schools are closed. Specifically, the the importance of having a plans to facilitate smooth transitions for commenter recommended that the neighborhood school that serves as the everyone involved. Although the Department require that an LEA that cornerstone of a community. One Department encourages LEAs and SEAs partners with a CMO in order to serve commenter noted that, when students to involve students, parents, educators, the area in which the LEA is closing are moved to a school in a new the community, and other stakeholders schools receive a priority for SIG funds. neighborhood, parents often find it more in the process, we decline to add any Discussion: SIG funds are intended to difficult to feel a sense of belonging at additional requirements in this area of provide support to LEAs for school the school or ownership of their child’s appropriate local discretion. improvement efforts targeted primarily education. Another commenter noted To address the disruptiveness school at the persistently lowest-achieving that school closings often anger parents, closure may cause to a community, we schools in a State, and not at providing exacerbate overcrowding, increase have modified the definition of school incentives for the creation of new safety and security concerns in closure, as noted in response to the prior schools, charter or otherwise, that serve neighboring schools, and place students comment, to clarify that closure should the same general attendance area. who need specific supports in schools entail re-enrolling students from the However, the restart model (as defined that may not be able to provide those closed school in other schools in the in this notice) may be used by LEAs in supports. One commenter expressed LEA that are within reasonable situations where the goal is to replace a concern that closing a school may not proximity to the closed school. Finally, persistently lowest-achieving school address the educational needs of we note that school closure is just one with a charter school. specific students, which may be masked of the four school intervention models Changes: None. within a higher-achieving school. available under the terms of this notice. Comment: One commenter suggested Another commenter suggested the need LEAs and communities that wish to that, in highlighting which schools may for an ‘‘educational impact statement’’ preserve a neighborhood school may do be available to enroll students from a

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closed school, the Department Discussion: LEAs may use SIG funds manner in which the ‘‘other’’ specifically mention magnet schools to pay reasonable and necessary costs restructuring option in section 1116 of along with charter schools. related to closing a persistently lowest- the ESEA has often been implemented. Discussion: Decisions about the achieving school, including the costs Changes: To strengthen the schools to which students from closed associated with parent and community transformation model, we have made a schools may transfer are best left to the outreach. However, SIG funds may not number of changes that we discuss in LEAs selecting the school closure be used to serve students, struggling or the following paragraphs in our option. The language in the definition of otherwise, in the schools to which they responses to specific comments. school closure, as in the SIG NPR, transfer, unless those schools are Title I Comment: One commenter specifically mentions charter schools schools. The Department will include recommended affording greater only because not all available charter additional examples of permissible uses flexibility to LEAs in implementing the schools might be operated by the LEA of SIG funds in closing a school in transformation model by allowing them that is closing a neighborhood public guidance accompanying the application to choose which activities are school and, thus, might not be initially package for SIG funds. ‘‘required’’ and which are ‘‘permissible’’ included in an LEA’s plan for Changes: None. within the four components. The transferring students from the closed commenter noted that LEAs with school. This is not a concern for magnet Transformation Model persistently lowest-achieving schools schools and, thus, the Department General Comments may not have the teacher or leader declines to make the requested change. capacity or system to support, monitor, Changes: None. Comment: Many commenters and sustain reforms across all of their Comment: One commenter expressed strong support for the schools. The commenter advocated for recommended that the Department transformation model. One commenter, creating systems at the district level that require that, before an LEA may enroll for example, described it as ‘‘a balanced, enable LEAs to provide support at each students from a closed school in another comprehensive approach,’’ and another school. school, the LEA require a prospective described it as ‘‘a supportive and Discussion: We decline to make the receiving school, including a charter constructive approach.’’ Still another requested changes. We have carefully school, to demonstrate a record of commenter stated that it ‘‘provides the reviewed the required activities within effectiveness in educating its existing greatest hope for promoting genuine the four components of the students and the capacity to integrate school improvement.’’ Several transformation model and have and educate new students from closed commenters noted that the concluded that each is necessary to schools. The commenter emphasized transformation model would be, in ensure the rigor and effectiveness of the the importance of this latter point, reality, the only choice among the four model; therefore, we continue to require noting that merely because a school is proposed interventions, especially for each one. An LEA, of course, may high-achieving does not mean that it is many rural school districts. implement any or all of the permissible equipped to help additional students A few commenters responded that the activities as well as other activities not from the lowest-achieving schools transformation model would still not described in this notice. succeed while maintaining the quality enable some communities, particularly In anticipation of receiving of its current educational program. those with difficult demographics, to unprecedented amounts of SIG funds, Discussion: The Department believes make adequate yearly progress. Other SEAs and LEAs should begin now to that the requirement to enroll students commenters worried that, if not plan for how they can use those funds from a closed school in a higher- monitored carefully, the transformation most effectively by putting in place the achieving school responds to the model would become like the ‘‘other’’ systems and conditions necessary to concerns of this commenter. The restructuring option under section support reform in their persistently Department believes that such higher- 1116(b)(8)(B)(v) of the ESEA, perceived lowest-achieving schools. Despite the achieving schools are likely in nearly all as the easiest (but least meaningful) way best preparation, however, we know circumstances, to provide a better to intervene in a struggling school. One that not every LEA with persistently education for any new students than of these commenters recommended lowest-achieving schools has the was available in the closed school. adding strong language to make clear capacity to implement one of the four Changes: We have added language to that the transformation model is not an interventions in this notice in each such the definition of school closure incremental approach and that, except school. As indicated in the SIG NPR, clarifying that school closure entails re- in the area of changing staff, the model therefore, an LEA that lacks the capacity enrolling students from the closed is as rigorous as the turnaround model. to implement an intervention in each school in other schools in the LEA that Discussion: We appreciate the persistently lowest-achieving school are higher achieving. We have also commenters’ support. We believe the may apply to the SEA to implement an added clarifying language that such transformation model holds tremendous intervention in just some of those schools may be new schools for which promise for reforming persistently schools. achievement data are not available. lowest-achieving schools by developing Changes: None. Comment: Several commenters and increasing teacher and school Comment: One commenter questioned how SIG funds may be used leader effectiveness, implementing recommended adding ‘‘graduation in closing a school. One commenter comprehensive instructional reform rates,’’ rated equally with test scores, to noted the importance of gaining strategies, increasing learning time and assess student achievement in community input and that the costs for creating community-oriented schools, evaluating staff, ensuring that a school’s closing a school may include costs and providing operating flexibility and curriculum is implemented with associated with conducting parent and sustained support. Assuming the fidelity, and providing operating community meetings. Another activities that support these components flexibility. The commenter also commenter recommended that are implemented with fidelity, the recommended making increasing allowable costs include academic transformation model represents a graduation rates a required activity. supports for struggling students who are rigorous and wholesale approach to Discussion: We agree with the enrolled in new schools. reforming a struggling school, unlike the commenter that increasing high-school

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graduation rates is vital to improving effective staff; increasing rigor through, commenter suggested that a principal student achievement, particularly in our for example, early-college high schools; not be removed until the principal’s Nation’s ‘‘dropout factories.’’ We are, extending learning time; emphasizing performance has been reviewed. Others accordingly, adding increasing high community-oriented schools; increased suggested that, rather than replacing the school graduation rates in three operating flexibility; and sustained principal immediately, the requirements provisions of the transformation model support from the LEA and SEA. permit an LEA to offer comprehensive to make clear that it is also a goal of the Discussion: The Secretary appreciates support and leadership training for interventions in this notice. We are also the commenters’ support. school leaders and other staff to assist making a corresponding change in the Changes: None. them in making the significant changes turnaround model. In addition, we are Comment: One commenter suggested needed to transform a school. Several defining ‘‘persistently lowest-achieving adding the word ‘‘ensuring’’ in the commenters suggested removing the schools’’ to include high schools that heading of the component of the principal unless the person commits to have had a graduation rate below 60 transformation model that requires and is held accountable for a percent over a number of years. Through developing teacher and school leader turnaround plan that requires, for these changes, we hope to identify high effectiveness. Another suggested example, working with a partner schools with low graduation rates that changing the heading to ‘‘providing management organization or other entity would implement one of the teachers and school leaders with the skilled in turning around struggling interventions in this notice. resources and tools needed to be schools. Another commenter suggested Changes: We have added increasing effective.’’ permitting flexibility with respect to high school graduation rates in three Discussion: We decline to make these removing the principal in cases provisions of the transformation model: changes. First, we do not believe that a warranted by, for example, the size and paragraphs (d)(1)(i)(B)(1); (d)(1)(i)(C); school can ensure teacher and school geography of a school or LEA, the cause and (d)(4)(i)(A). We also made a leader effectiveness. We do believe, of the academic failure, the specific corresponding change to the turnaround however, that a school can take steps to solutions being sought, or other barriers model in paragraph (a)(1)(i). In addition, improve teacher and leader to removal. we have included high schools that effectiveness. Second, we note that Discussion: We refer readers to the have had a graduation rate below 60 eligible schools in LEAs that receive SIG earlier section of these comments and percent over a number of years in the funds—all of which are among the responses titled ‘‘Principal and Staff definition of persistently lowest- lowest-achieving schools in a State— Replacement’’ in which we respond to achieving schools. will have very large amounts of similar public comments about the Comment: One commenter resources to implement the principal replacement requirement recommended that the Department transformation model or one of the other under the turnaround model. require an LEA to set up an school intervention models. Changes: None. organizational entity within the LEA to Accordingly, we do not believe lack of Comment: One commenter be responsible and held accountable for resources will be a barrier for reforming recommended a three-pronged approach rapid improvement in student the persistently lowest-achieving to defining principal effectiveness: achievement in schools implementing schools in a State. Moreover, there is a evidence of improved student the transformation model in order to significant requirement that an LEA achievement; changes in the number ‘‘expedite the clearing of bureaucratic provide ongoing, high-quality, job- and percentage of teachers rated as underbrush’’ that can impede the embedded professional development for effective and highly effective; and model’s effectiveness. all staff in a school implementing the assessment of a principal’s highest Discussion: Although nothing in this transformation model. Principals, priority actions and practices. notice would preclude an LEA from teachers, and school leaders, therefore, Discussion: Generally, the Department establishing an organizational entity should have sufficient support to do agrees that multiple measures, including responsible for ensuring rapid their jobs. the use of student achievement data, improvement in student achievement in Changes: We have revised the heading should be used to evaluate principal schools implementing the in paragraph (d)(1) to read: ‘‘Developing effectiveness. Accordingly, we have transformation model, we decline to and improving teacher and school revised proposed section I.A.2.d.i.A.1 in require the establishment of such an leader effectiveness.’’ the SIG NPR (new paragraph entity. Evidence of an LEA’s Comment: Many commenters, many (d)(1)(i)(B)(1) to allow an LEA to use, in commitment to support its schools in of whom were principals or represented additional to data on student growth, carrying out the required elements of principals, opposed the requirement to observation-based assessments and the transformation model is a factor that replace the principal. A number of ongoing collections of professional an SEA must consider in evaluating the commenters commented that such a practice that reflect student LEA’s application for SIG funds. decision should be made locally, based achievement and increased high-school Changes: None. on local data and circumstances in graduation rates to evaluate principal individual schools, rather than being effectiveness. Developing and Increasing Teacher and mandated by the Federal Government. Changes: We have modified School Leader Effectiveness One commenter, although paragraph (d)(1)(i)(B)(1) regarding Comment: A number of commenters acknowledging the importance of evaluation systems for teachers and supported the emphasis in the effective school leadership, asserted that principals to require that those systems transformation model on strong a school’s underperformance should not take into account student growth data as principals and teachers, noting that they necessarily be blamed on the principal. a significant factor as well as other are critical to transforming a low- The commenter cited other salient factors ‘‘such as multiple observation- achieving school. Commenters cited factors, such as whether the principal based assessments of performance and specific provisions that they supported, has the authority needed to turn a ongoing collections of professional such as ongoing, high-quality job- school around or whether the principal practice reflective of student embedded professional development; is laying a foundation for improvements achievement and increased high-school strategies to recruit, place, and retain not yet reflected in test scores. One graduation rates.’’

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Comment: Several commenters cited towards student achievement. Two evaluation systems for teachers and the shortage of principals, particularly commenters argued that State principals in several respects. First, we in rural areas, as a reason to eliminate assessments do not provide information modified paragraph (d)(1)(i)(B) to the requirement to remove the principal about the conditions in which learning require that evaluation systems be in a school using the transformation occurs and over which a teacher has no rigorous, transparent, and equitable. model. One commenter suggested hiring control, such as class size, student Second, we modified paragraph a ‘‘turnaround leader’’ or contracting demographics, or instructional (d)(1)(i)(B)(1) to require that those with an external lead partner instead of resources. One commenter asserted that systems take into account student replacing the principal. State assessments fail to capture growth data as a significant factor but Discussion: We refer readers to the academic growth with respect to also include other factors ‘‘such as earlier section of these comments and students with disabilities. A number of multiple observation-based assessments responses titled ‘‘Principal and Staff commenters proposed other academic of performance and ongoing collections Replacement’’ where we respond to and nonacademic measures for of professional practice reflective of public comments about the principal evaluating teachers and school leaders, student achievement and increased high replacement requirement under the such as standards-based evaluations of school graduation rates.’’ Third, we turnaround model. practice that include such criteria as added paragraph (d)(1)(i)(B)(2) to Changes: None. observations of lesson preparation, require that evaluation systems be Comment: A number of commenters content, and delivery; innovation in designed and developed with teacher suggested that a principal who has been teaching practices; analyses of student and principal involvement. recently hired to turn around a school work and other measures of student Comment: A number of commenters should not be removed. learning, such as writing samples, raised issues related to collective Discussion: The commenters might grades, goals in individualized bargaining and the transformation have overlooked the fact that proposed education programs for students with model. Several commenters objected to section I.B.1 in the SIG NPR allowed disabilities, and ‘‘capstone’’ projects the perceived requirement to establish a schools that have ‘‘implemented, in such as end-of-course research papers; performance pay plan based on student whole or in part within the last two assessment of commitment and ability outcomes, noting that collective years, an intervention that meets the to use feedback and data to learn and bargaining agreements and, in some requirements of the turnaround, restart, improve practices; one-on-one teaching; cases, State laws often prohibit such a or transformation models’’ to ‘‘continue staff leadership and mentoring skills; plan. Two others noted that, because or complete the intervention being conflict resolution skills; crisis union contracts limit a principal’s implemented.’’ Thus, a recently hired management experience; extra- control over staffing, principals should principal who was hired to implement curricular roles and contributions to a not be held accountable for school a school intervention model that meets school; and relationships with parents performance results. At least one some or all of the elements of one of the and the community. commenter expressed concern that these interventions in this notice would not Discussion: We respect and agree with collective bargaining barriers could have to be replaced for purposes of a the commenters’ concerns that student preclude implementation of the transformation model. We have retained achievement data alone should not be transformation model. this flexibility in this notice. used as the sole means to evaluate Discussion: In general, we refer Changes: None. teachers and principals. We must readers to the earlier section of these Comment: Many commenters reacted develop and support better measures comments and responses titled to the requirement in the SIG NPR to that take into account student ‘‘Principal and Staff Replacement’’ use evaluations that are based in achievement and more accurately where we respond to similar public significant measure on student growth measure teacher and principal comments regarding collective to improve teachers’ and school leaders’ performance. Accordingly, we have bargaining as it relates to the turnaround performance. A few commenters revised the transformation model’s model. In addition, we note that the supported the requirement; most evaluation systems provision to require transformation model does not require opposed it for a number of reasons. that these systems take into account that an LEA establish a performance pay Many commenters objected specifically student growth data as a significant plan for teachers or principals. Rather, to assessing teacher effectiveness using factor, but also include other factors an LEA must identify and reward school testing instruments not designed for that ‘‘such as multiple observation-based leaders, teachers, and other staff who, in purpose. One commenter noted that assessments of performance and implementing the transformation model, standardized assessments are designed ongoing collections of professional have increased student achievement and to measure students’ ready retrieval of practice reflective of student graduation rates. One way of meeting knowledge and do not accurately achievement and increased high-school this requirement would be through attribute student learning to particular graduation rates.’’ We have also clarified performance pay. An LEA has the lessons, pedagogical strategies, or that those systems must be rigorous, flexibility to devise other means that individual teachers. In addition, the transparent, and equitable and that they meet this requirement. commenter noted that such assessments must be designed and developed with Changes: None. do not measure qualities like student teacher and principal involvement. Comment: One commenter, motivation, intellectual readiness, Nonetheless, it is important to note responding to the proposed requirement persistence, creativity, or the ability to that the Secretary believes that student to remove staff who fail to contribute to apply knowledge and work productively achievement data must be included as a raising student achievement, with others. One commenter asserted significant factor in evaluations of recommended that this provision be that State assessments are generally of teacher and principal effectiveness. We deleted. The commenter noted that this low quality and measure a narrow range are confident that the legitimate provision would make it very difficult of student learning. The commenter also concerns of the commenters regarding to attract the most highly qualified noted that assessments do not use of student data can be addressed. teachers and principals to the acknowledge the contributions (or lack Changes: We have modified persistently lowest-achieving schools. thereof) of others, such as prior teachers, paragraph (d)(1)(i)(B) regarding The commenter suggested that extensive

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professional development, rather than English proficient students; creating professional development, such as removal, be required for staff in schools professional learning communities subject-specific pedagogy and in which achievement does not within a school; providing mentoring; differentiated instruction, are directly improve. involving parents in their child’s related to improving the instruction a Discussion: In general, we refer education, especially parents of limited teacher provides. Third, professional readers to the section of these comments English proficient students and development must be aligned with the and responses titled ‘‘Principal and Staff immigrant children; understanding and school’s comprehensive instructional Replacement’’ where we respond to using data and assessments to improve program. Finally, the articulated similar comments regarding removal of and personalize classroom practice; and purpose of professional development in the staff replacement requirement under implementing adolescent literacy and paragraph (d)(1)(i)(D) of the the turnaround model. mathematics initiatives. transformation model is to ensure that a Changes: We have modified Discussion: We appreciate the many teacher is ‘‘equipped to facilitate paragraph (d)(1)(i)(C) regarding excellent suggestions for additional effective teaching and learning’’ and has removing staff who, in implementing a areas on which professional the ‘‘capacity to successfully implement transformation model, have not development should focus. With one school reform strategies.’’ Although we contributed to increased student exception, we decline to add examples. believe that instituting a system for achievement and high school graduation We could never list all relevant topics measuring changes in instructional rates to make clear that removal should for strong professional development, practices resulting from professional only occur after an individual has had which must be tailored to the needs of development can be valuable, we multiple opportunities to improve his or staff in particular schools, and we decline to require it as part of this her professional practice and has still would not want to suggest that topics program. We believe that the specificity not contributed to increased student not listed were, thus, less worthy of in the nature of the professional achievement and increased high school addressing. development required for a graduation rates. Changes: We have added a transformation model is sufficient to Comment: Several commenters permissible activity in paragraph ensure that it, in fact, results in objected to the Secretary’s proposal to (d)(2)(ii)(C) under ‘‘comprehensive improved instruction. require an LEA to make ‘‘high-stakes’’ instructional reform strategies’’ to Changes: None. tenure and compensation decisions highlight the need for additional Comment: One commenter through which the LEA would ‘‘identify supports and professional development recommended that the Department add and reward school leaders, teachers, and for teachers and principals in a requirement that professional other staff who improve student implementing effective strategies to development be designed to ensure that achievement outcomes and identify and educate students with disabilities in the staff of a school using the remove those who do not.’’ The least restrictive environment and to transformation model can work commenters thought this standard was ensure that limited English proficient effectively with families and community too imprecise. They noted that teacher students acquire language skills partners. The commenter reasoned that, compensation, tenure, and dismissal necessary to master academic content. given the emphasis on working with are, for the most part, governed by State Comment: One commenter noted that families and community partners to laws and/or collective bargaining the requirement to provide staff with improve the academic achievement of agreements that cannot be simply ongoing, high-quality, job-embedded students in a school, staff must know overturned by a Federal grant program. professional development was silent how to work with them. One of the commenters suggested that with respect to the impact of Discussion: We decline to make the this provision be modified by adding, at professional development on suggested change. We agree with the the end, the phrase ‘‘in full accordance instruction. The commenter pointed to commenter that family and community with local and State laws, including an apparent inconsistency with the involvement in a school is critical to the collective bargaining agreements.’’ emphasis in the permissible activity that school’s ultimate success and have Discussion: In general, we refer suggested that LEAs be required to included, as both required and readers to the section of these comments institute a system for measuring changes permissible activities, a variety of and responses titled ‘‘Principal and Staff in instructional practices resulting from provisions to address this important Replacement’’ where we respond to professional development. Because the need. We would expect professional similar comments regarding collective commenter values professional development to include appropriate bargaining issues as they relate to the development designed to improve training to ensure, as the commenter turnaround model. In addition, we note instruction, the commenter suggests, that staff are well equipped to that no LEA is required to apply for a recommended that the Secretary require facilitate family and community School Improvement Grant. Those that a school to have a system for measuring involvement. We do not believe, do will receive significant resources to changes in instructional practices however, that we should try to expressly support their efforts to reform their most resulting from professional development highlight each and every appropriate struggling schools, but they also must in order to evaluate its efficacy. topic of high-quality professional have the ability to implement the Discussion: We believe that the development in this notice. required components of whichever requirement to provide ongoing, high- Changes: None. intervention they choose. Accordingly, quality, job-embedded professional Comment: One commenter suggested we decline to make the recommended development to staff in a school is that financial incentives are not changes. clearly tied to improving instruction in necessarily the most motivating factor in Changes: None. multiple ways. First, the requirement retaining high-quality staff. Rather, the Comment: A number of commenters that professional development be ‘‘job- commenter stated that the culture of a provided additional examples of what embedded’’ connotes a direct school—i.e., quality relationships with professional development of staff under connection between a teacher’s work in other teachers, the school climate, the the transformation model should entail, the classroom and the professional leadership of the principal, and the such as: addressing the needs of development the teacher receives. potential for professional growth—is students with disabilities and limited Second, the examples of topics for often a greater motivator.

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Discussion: We agree that financial Changes: None. instruction must be promoted to meet incentives are not the only motivating Comment: One commenter the academic needs of individual factor in attracting staff to a school or recommended that the Secretary add a students. We made a corresponding retaining them in the school. We hope requirement that, in the event budget change in paragraph (a)(1)(vii) regarding that changes in the culture of a school cuts occur, a principal be allowed to lay the turnaround model. that result from implementing the off teachers on the basis of performance Comment: One commenter noted that interventions established in this notice rather than seniority. The commenter requiring instructional programs to be play a large role in attracting, placing, noted that this provision could be an ‘‘evidence-based’’ instead of ‘‘research- and retaining high-quality staff. As a important lever for obtaining positive based’’ would enable the use of result, in both the transformation and changes to collective bargaining programs for which there is turnaround models, we have provided agreements that would help low- accumulated evidence that does not examples of several strategies to recruit, achieving schools attract and retain meet the current ESEA definition of place, and retain high-quality staff. effective staff. ‘‘scientifically based research.’’ Changes: We have added examples of Discussion: We decline to make the Discussion: We agree with the strategies designed to recruit, place, and suggested change. Although we support commenter that an LEA should only retain staff, including ‘‘financial the need to modify collective bargaining implement instructional programs for incentives, increased opportunities for agreements if they impede efforts to which there is a sufficient body of promotion and career growth, and more attract and retain qualified staff in the evidence supporting improved student flexible work conditions’’ in paragraphs persistently lowest-achieving schools, achievement. We do not believe a (d)(1)(i)(E), with respect to the we do not believe we can or should change is necessary, however, because transformation model, and (a)(1)(iii), prescribe the specific terms of those we do not use the term ‘‘scientifically with respect to the turnaround model. agreements. based research’’ and, therefore, do not We have also made clear that those Changes: None. invoke the stringent requirements in strategies must be designed to recruit, Comprehensive Instructional Reform section 9101(37) of the ESEA. Changes: None. place, and retain staff who have the Strategies skills necessary to meet the needs of the Comment: One commenter students in the schools implementing a Comment: Several commenters recommended that the Department add transformation or turnaround model, suggested that the Department revise the a provision that would require a school respectively. comprehensive instructional reform to identify ‘‘off-track and out-of-school Comment: Several commenters component of the transformation model youth, through analysis and supported the concept of ‘‘mutual by modifying or expanding the segmentation of student data,’’ and consent’’—that is, ensuring that a school provision requiring the use of develop and implement education is not required to accept a teacher individualized student data to inform options to put them back on track to without the mutual consent of the and differentiate instruction. One graduate. The commenter stated that, teacher and the principal, regardless of commenter suggested clarifying that once students are off track to graduating the teacher’s seniority. One commenter individualized student data are to be on time, their likelihood of graduating is recommended making ‘‘mutual used to meet students’ academic needs often as low as 20 percent. Moreover, in consent’’ a required component of both while another commenter suggested the 2,000 high schools in the Nation the turnaround model and the clarifying that the data should be used with four-year graduation rates of 60 transformation model. Other to address the needs of ‘‘individual’’ percent or less, up to 80 percent of ninth commenters, however, opposed any students. Other commenters suggested graders are significantly behind in skills mention of ‘‘mutual consent,’’ even as a expanding this provision to include or credits. Several other commenters permissible activity. One asserted that non-academic data such as chronic suggested including stronger support for the concept conflicts with the provision absenteeism, truancy, health (vision, re-enrolling youth who have left high in section 1116(d) of the ESEA that hearing, dental, and access to primary school as a critical part of increasing precludes interventions in Title I care), safety, family engagement and graduation rates. schools from affecting the rights, well-being, and housing. The Discussion: We agree that programs remedies, and procedures afforded commenter suggested that these data be and strategies designed to re-engage school employees under Federal, State, used, in partnership with parents and youth who have dropped out of high or local laws or under the terms of other community partners, to address school without receiving a diploma are collective bargaining agreements, other student needs. necessary in increasing graduation rates. memoranda of understanding, or other Discussion: The purpose of this Accordingly, we are modifying the agreements between employees and section of the transformation model is to notice to address this need. We also their employers. improve instruction, and we agree that hope that an LEA’s extension or Discussion: Like several commenters, adding the word ‘‘academic’’ is a restructuring of the school day to add the Secretary supports and encourages helpful clarification. Although we also time for strategies such as advisory the use of mutual consent. The agree that non-academic data can play periods to build relationships between Secretary considers mutual consent to an important role in identifying other students, faculty, and other staff will be a positive example of LEAs’ student needs that can affect learning, help to identify students who are partnering with unions to bring change local school administrators, working struggling and to secure for them the to the Nation’s persistently lowest- with parents and community partners, necessary supports sufficiently early to achieving schools. That said, we decline are in the best position to determine prevent their dropping out of school. to require mutual consent as a part of how to address those needs. Therefore, Finally, as noted earlier, we have added the transformation model because we decline to add a requirement that a references to increased high school mutual consent policies and other school examine non-academic data. graduation rates in four provisions to similar agreements are best resolved at Changes: We have added the word make clear that implementation of the the State and local levels in the context ‘‘academic’’ in paragraph (d)(2)(i)(B) to models in high schools must focus on of existing collective bargaining clarify that the continuous use of increasing graduation rates as well as agreements. student data to inform and differentiate improved student achievement.

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Changes: We have modified solutions to the list of permissible Race to the Top programs, rather than paragraph (d)(2)(ii)(E)(3) to add re- activities, while another commenter listing them as specific elements of the engagement strategies as an example of recommended that the Department add ‘‘increasing learning time and creating a way to increase high school online instructional services offered by community-oriented schools’’ graduation rates. We have also added a for-profit or non-profit entity as an component. They have no less paragraph (d)(2)(ii)(E)(4) suggesting that example of a comprehensive, research- importance, however. permissible comprehensive based instructional program. Changes: We have included in the instructional reform strategies may Discussion: The Secretary agrees that notice a definition of increased learning include establishing early-warning technology can be an important tool for time that includes opportunities for systems to identify students who may be supporting instruction, and we are enrichment activities for students, such at risk of failing to achieve to high adding as a permissible activity the as service learning and community standards or graduate. suggestion to use and integrate service. Comment: A number of commenters technology-based supports and Comment: Several commenters suggested that the Department include interventions as part of a school’s suggested that the Department highlight additional required or permissible instructional program. Although online the importance of certain activities by activities for carrying out instructional programs might be part of revising the heading of this component. comprehensive instructional reform a school’s system of technology-based For example, one commenter suggested strategies. Specifically, two commenters supports, we decline to mention it revising the heading to emphasize recommended that the Department specifically. Online instructional family involvement while another require schools to conduct periodic programs, if research-based, are one of commenter suggested revising it to reviews so as to ensure that the many ways to meet the needs of specifically reference students’ social curriculum is being implemented with students in struggling schools, and emotional needs. A third fidelity (rather than merely permitting particularly to provide courses or commenter suggested expanding the this activity) and improve school library programs that schools in rural or remote title to include ‘‘using research-based programs. Other commenters suggested areas cannot otherwise provide. We methods to deliver comprehensive expanding the permissible activities in cannot mention in this notice, however, services to students.’’ secondary schools to include learning each and every type of instructional Discussion: We decline to make these opportunities that reflect the context of program. changes. Although we embrace the need the community in which the school is Changes: We have added as a to address not just the academic needs located, such as service learning, place- permissible activity in paragraph of students but also how their social and based education, and civic and (d)(2)(ii)(D) using and integrating emotional needs affect their learning environmental education. The technology-based supports and and to emphasize the importance of commenters also recommended interventions as part of a school’s family involvement, we believe it is clarifying that improving students’ instructional program. preferable to keep the heading for this transition from middle to high schools Comment: One commenter component more general. The headings should include family outreach and recommended that the Department add for each of the components in the parent education. Another commenter to the transformation model the strategy transformation model are deliberately suggested that the Department expand to reorganize the school with a new broad so as to cover a number of the list of permissible activities in purpose and structure it as a magnet important activities, and the fact that a elementary schools to include providing school, a thematic school, or a school- specific activity is not in a heading is opportunities for students to attend community partnership. foreign language immersion programs. Discussion: We decline to include this not a reflection of that activity’s Discussion: The Secretary agrees that change in the transformation model, a importance. We believe the list of there are any number of important model that uses the existing staff in a permissible activities illustrates various activities that would be appropriate to school and who would likely not have ways in which a school can address address in a transformation model. As the expertise to implement an students’ social and emotional needs described in this notice, the instructional program with a whole new and involve families in their child’s transformation model, by necessity, purpose. education. focuses on several broad strategies. Changes: None. However, we have Changes: None. However, nothing precludes local clarified in paragraph (a)(2)(ii) that a Comment: Several commenters school leaders from expanding the turnaround model may include a new suggested that the Department highlight model as necessary to address other school model (e.g., themed, dual the importance of certain activities by factors needed to respond to the specific language academy). making them required. For example, needs of students in the school. some commenters recommended Changes: We have included in this Increasing Learning Time and Creating expanding the required activities to notice a definition of increased learning Community-Oriented Schools include a comprehensive guidance time that would permit many, if not all, Comment: Several commenters curriculum delivered by a school of the commenters’ suggestions. For expressed support overall and for counselor who is certified by the State example, that definition makes clear various activities of the ‘‘Increasing department of education; partnering that a school may increase time to teach learning time and creating community- with parents, faith-based and core academic subjects, including, for oriented schools’’ component of the community-based organizations, and example, civics and foreign languages, transformation model, including the others to provide comprehensive and to provide enrichment activities references to school climate, student services; more time for social such as service learning and internships, and community service. and emotional learning; and improving experiential and work-based learning Discussion: We appreciate the school climate. Another commenter opportunities. commenters’ support. We are including recommended requiring that the Comment: One commenter some of these activities in the definition transformation model include the recommended that the Department add of increased learning time that also components of the Comprehensive the implementation of technology-based applies to the Stabilization Phase II and School Reform Demonstration program.

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Other commenters suggested adding youth’’ to the list of entities with which Discussion: We agree that there are references to high school study-abroad an LEA or school may choose to partner any number of important activities that programs as an example of a student in providing enrichment activities could support increased family and enrichment activity and activities during extended learning time. community engagement. The reference designed to reduce out-of-school Discussion: In the SIG NPR, we listed to family and community engagement in suspensions and expulsions as a universities, businesses, and museums this notice is deliberately broad so as to strategy for addressing school climate. as examples of entities with which a provide maximum flexibility in Discussion: As we noted earlier, we school could partner in providing determining how best to address local agree that there are any number of enrichment activities during extended needs. However, there is nothing to important activities that would be learning time. In this final notice, we are prevent local school leaders from appropriate to address in a instead including a definition of incorporating any of the strategies transformation model. As described in increased learning time that applies to mentioned or other strategies that will this notice, the transformation model, the Stabilization Phase II, Race to the lead to effective family and community by necessity, focuses on several broad Top, and SIG programs. That definition engagement. strategies. However, there is nothing to no longer includes examples of Changes: None. prevent local school leaders from appropriate partnership entities, Comment: One commenter expanding the model as necessary to because there may be any number of recommended that the Department address other factors needed to respond organizations or entities in a particular include language to make clear that to the specific needs of students in the community that might be appropriate extending learning time can be school. partners. accomplished by adding a preschool Changes: None. Changes: In the definition of program prior to school entry. Comment: One commenter suggested Discussion: The Secretary agrees that increased learning time, we have that the Department define preschool education is very important included the following: ‘‘(b) instruction ‘‘community-oriented schools’’ as in ensuring that children enter in other subjects and enrichment schools that partner with community- kindergarten with the skills necessary to activities that contribute to a well- based organizations to provide succeed in school. He also agrees that rounded education, including, for necessary services to students and preschool education is an effective way example, physical education, service families using research-based methods, to increase learning time. which might include: a school-based, learning, and experiential and work- Changes: We have added, as a on-site coordinator; comprehensive based learning opportunities that are permissible activity in paragraph school- and student-level needs provided by partnering, as appropriate, (d)(3)(ii)(D), expanding the school assessments; community-assets with other organizations;’’. program to offer full-day kindergarten or assessments and identification of Comment: One commenter suggested pre-kindergarten. potential partners; annual plans for that the reference to ‘‘parents,’’ in the Comment: Several commenters school-level prevention and individual list of entities with which schools might suggested that the Department clarify intervention strategies; delivery of an partner to create safe school that increased learning time includes appropriate mix of prevention and environments that meet students’ social, summer school, after-school programs, intervention services; data collection emotional, and health needs, should and other instruction during non-school and evaluation over time, with on-going include ‘‘parent organizations.’’ hours. Several other commenters modifications of services; and/or other Discussion: We agree with this suggested increasing instructional time research-based components. Another suggestion and are adding a reference to during the school day and the need to commenter suggested removing the parent organizations. make existing time more effective, word ‘‘oriented’’ and using the term Changes: We have revised the including through the use of technology. ‘‘community-schools,’’ which the permissible activity in paragraph Another commenter suggested clarifying commenter indicated is more commonly (d)(3)(ii)(A) regarding creating safe that extended learning time should be known. school environments to include a beyond the current State-mandated Discussion: Although we appreciate reference to partnering with parents and instructional time. the commenters’ interest in ensuring ‘‘parent organizations,’’ along with faith- Discussion: We have added in this greater clarity on the concept of and community-based organizations, notice a definition of increased learning ‘‘community-oriented schools,’’ we health clinics, other State and local time that applies to the Stabilization decline to make the suggested changes. agencies, and others. Phase II, Race to the Top, and SIG The components of ‘‘community- Comment: One commenter programs. Under that definition, oriented schools’’ will vary school by recommended that the Department increased learning time means using a school depending on student and define ‘‘family engagement’’ and longer school day, week, or year community needs and resources. There requiring the use of certain family- schedule to significantly increase the is nothing in the notice that would engagement mechanisms, including total number of school hours to include prevent local school leaders from family-engagement coordinators at additional time for instruction in core undertaking any of the strategies in the school sites, home visitation programs, academic subjects; time for instruction definition the commenters proposed if family literacy programs, and parent in other subjects and enrichment necessary to respond to the specific leadership programs. Another activities that contribute to a well- needs of students in the school. commenter recommended defining rounded education; and time for Changes: None. ‘‘community engagement’’ as systemic teachers to collaborate, plan, and engage Comment: Some commenters efforts to involve parents, community in professional development within and suggested that the Department add residents, members of school across grades and subjects. ‘‘community-based organization’’ and communities, community partners, and Changes: We have revised the notice ‘‘workforce systems, specifically other stakeholders in exploring student to define increased learning time. The nonprofit and community-based and school needs and, working together, full definition is as follows: organizations providing employment, developing a plan to address those Increased learning time means using training, and education services to needs. a longer school day, week, or year

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schedule to significantly increase the transformation model receive principal performance is evaluated; and total number of school hours to include coordinated ongoing technical the distribution of performance additional time for (a) instruction in assistance and reflects the belief that an evaluation ratings or levels among core academic subjects including SEA, LEA, or external lead partner teachers and principals. Specifically, a English; reading or language arts; organization would be in the best State must— mathematics; science; foreign languages; position to integrate services at the Indicator (a)(1). Confirm, for the State, civics and government; economics; arts; school level. This notice does not the number and percentage (including history; and geography; (b) instruction preclude the involvement of entities numerator and denominator) of core in other subjects and enrichment other than those mentioned so long as academic courses taught, in the highest- activities that contribute to a well- they fulfill the role of a lead partner in poverty and lowest-poverty schools, by rounded education, including, for integrating services and supports for the teachers who are highly qualified example, physical education, service school. consistent with section 9101(23) of the learning, and experiential and work- Changes: None. Elementary and Secondary Education based learning opportunities that are Comment: One commenter cautioned Act of 1965, as amended (ESEA); provided by partnering, as appropriate, about the use of ‘‘weighted per-pupil Indicator (a)(2). Confirm whether the with other organizations; and (c) school-based budgeting,’’ noting that State’s Teacher Equity Plan (as part of teachers to collaborate, plan, and engage early research indicates this practice the State’s Highly Qualified Teacher in professional development within and undermines cross-school cooperation by Plan) fully reflects the steps the State is across grades and subjects.9 promoting competition among schools currently taking to ensure that students for students and the resources or from low-income families and minority Providing Operating Flexibility and liabilities they may represent. Sustained Support students are not taught at higher rates Discussion: We note that than other students by inexperienced, Comment: One commenter suggested implementing a per-pupil school-based unqualified, or out-of-field teachers (as that the Department add a requirement budget formula that is weighted based required in section 1111(b)(8)(C) of the that a school implementing the on student needs is listed as a ESEA); transformation model be required to permissible, not required, activity to Descriptor (a)(1). Describe, for each present a plan for how the various give schools operational flexibility. We local educational agency (LEA) in the elements of the model are aligned and believe allocating funds based on State, the systems used to evaluate the coordinated to improve student student characteristics and then giving performance of teachers and the use of achievement and other indicators of schools broad flexibility to use those results from those systems in decisions student growth (such as health and civic funds to meet their respective needs is regarding teacher development, competencies). one way to provide incentives for compensation, promotion, retention, Discussion: We decline to make the schools to use their cumulative and removal; resources in innovative ways to meet suggested change. We are confident that Indicator (a)(3). Indicate, for each the needs of their student population. If a school implementing the LEA in the State, whether the systems an LEA determines such budgeting is transformation model would have a used to evaluate the performance of not appropriate in the context of its plan without the need for the teachers include student achievement schools, it need not implement this Department to require it. outcomes or student growth data as an Changes: None. activity. Changes: None. evaluation criterion; Comment: One commenter Indicator (a)(4). Provide, for each LEA recommended that the list of potential Final Requirements in the State whose teachers receive technical assistance providers in performance ratings or levels through an proposed section I.A.d.iv.A.2 of the SIG The Secretary establishes the following requirements for the evaluation system, the number and NPR be expanded to include percentage (including numerator and ‘‘professional organizations that have a Stabilization program. We may apply these requirements in any year in which denominator) of teachers rated at each track record of turning around low- performance rating or level; performing schools.’’ this program is in effect. Indicator (a)(5). Indicate, for each Discussion: This provision is intended I. Assurance Indicators and LEA in the State whose teachers receive to ensure that schools implementing the Descriptors: In general, a State must collect and publicly report (as defined performance ratings or levels through an evaluation system, whether the number 9 Research supports the effectiveness of well- in this notice) data and other designed programs that expand learning time by a information for the following indicators and percentage (including numerator minimum of 300 hours per school year. (See and descriptors regarding the assurances and denominator) of teachers rated at Frazier, Julie A.; Morrison, Frederick J. ‘‘The that the State has provided in order to each performance rating or level are Influence of Extended-year Schooling on Growth of publicly reported for each school in the Achievement and Perceived Competence in Early receive funds under the Stabilization Elementary School.’’ Child Development. Vol. 69 program. LEA; (2), April 1998, pp. 495–497 and research done by (a) Achieving equity in teacher Descriptor (a)(2). Describe, for each Mass2020.) Extending learning into before- and distribution. A State must collect and LEA in the State, the systems used to after-school hours can be difficult to implement evaluate the performance of principals effectively, but is permissible under this definition publicly report data and other with encouragement to closely integrate and information on the extent to which and the use of results from those coordinate academic work between in-school and students in high- and low-poverty systems in decisions regarding principal out-of school. (See James-Burdumy, Susanne; schools in the State have access to development, compensation, promotion, Dynarski, Mark; Deke, John. ‘‘When Elementary retention, and removal; Schools Stay Open Late: Results from The National highly qualified teachers; steps the State Evaluation of the 21st Century Community Learning is currently taking to ensure that Indicator (a)(6). Indicate, for each Centers Program.’’ http:// students from low-income families and LEA in the State, whether the systems www.mathematica-mpr.com/publications/ minority students are not taught at used to evaluate the performance of redirect_PubsDB.asp?strSite=http:// epa.sagepub.com/cgi/content/abstract/29/4/296. higher rates than other students by principals include student achievement Educational Evaluation and Policy Analysis, Vol. 29 inexperienced, unqualified, or out-of- outcomes or student growth data as an (4), December 2007, Document No. PP07–121.) field teachers; on how teacher and evaluation criterion; and

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Indicator (a)(7). Provide, for each LEA for students with disabilities that are numerator and denominator) who enroll in the State whose principals receive approved by the Department; in an institution of higher education performance ratings or levels through an Indicator (c)(3). Confirm whether the (IHE) (as defined in section 101(a) of the evaluation system, the number and State’s alternate assessments for Higher Education Act of 1965, as percentage (including numerator and students with disabilities, if approved amended (HEA)) within 16 months of denominator) of principals rated at each by the Department, are based on grade- receiving a regular high school diploma; performance rating or level; level, modified, or alternate academic and (b) Improving collection and use of achievement standards; Indicator (c)(12). Provide, for the data. A State must collect and publicly Indicator (c)(4). Indicate whether the State, for each LEA in the State, for each report information on the elements of its State has completed, within the last two high school in the State and, at each of statewide longitudinal data system, on years, an analysis of the appropriateness these levels, by student subgroup whether teachers receive data on and effectiveness of the (consistent with section student growth in a manner that is accommodations it provides students 1111(b)(2)(C)(v)(II) of the ESEA), of the timely and informs instructional with disabilities to ensure their students who graduate from high school programs, and on whether teachers meaningful participation in State consistent with 34 CFR 200.19(b)(1)(i) receive reports of individual teacher assessments; who enroll in a public IHE (as defined impact on student achievement. Indicator (c)(5). Confirm the number in section 101(a) of the HEA) in the Specifically, a State must— and percentage (including numerator State within 16 months of receiving a Indicator (b)(1). Indicate which of the and denominator) of students with regular high school diploma, the 12 elements described in section disabilities who are included in State number and percentage (including 6401(e)(2)(D) of the America reading/language arts and mathematics numerator and denominator) who COMPETES Act are included in the assessments; complete at least one year’s worth of State’s statewide longitudinal data Indicator (c)(6). Indicate whether the college credit (applicable to a degree) system; State has completed, within the last two within two years of enrollment in the Indicator (b)(2). Indicate whether the years, an analysis of the appropriateness IHE. State provides student growth data on and effectiveness of the (d) Supporting struggling schools. A their current students and the students accommodations it provides limited State must collect and publicly report they taught in the previous year to, at English proficient students to ensure data and other information on the a minimum, teachers of reading/ their meaningful participation in State progress of certain groups of schools in language arts and mathematics in grades assessments; the State on State assessments in in which the State administers Indicator (c)(7). Confirm whether the reading/language arts and mathematics; assessments in those subjects in a State provides native language versions on the extent to which reforms to manner that is timely and informs of State assessments for limited English improve student academic achievement instructional programs; and proficient students that are approved by are implemented in the persistently Indicator (b)(3). Indicate whether the the Department; lowest-achieving schools in the State; State provides teachers of reading/ Indicator (c)(8). Confirm the number and on the extent to which charter language arts and mathematics in grades and percentage (including numerator schools are operating in the State. in which the State administers and denominator) of limited English Specifically, a State must— assessments in those subjects with proficient students who are included in Indicator (d)(1). Provide, for the State, reports of individual teacher impact on State reading/language arts and the average statewide school gain in the student achievement on those mathematics assessments; ‘‘all students’’ category and the average assessments. Indicator (c)(9). Confirm that the statewide school gain for each student (c) Standards and assessments. A State’s annual State Report Card (under subgroup (as under section State must collect and publicly report section 1111(h)(1) of the ESEA) contains 1111(b)(2)(C)(v) of the ESEA) on the data and other information on whether the most recent available State reading State assessments in reading/language students are provided high-quality State and mathematics National Assessment arts and for the State and for each LEA assessments; whether students with of Educational Progress (NAEP) results in the State, the number and percentage disabilities and limited English as required by 34 CFR 200.11(c); (including numerator and denominator) proficient students are included in State Indicator (c)(10). Provide, for the of Title I schools in improvement, assessment systems; whether the State State, for each LEA in the State, for each corrective action, or restructuring that makes information available regarding high school in the State and, at each of have made progress (as defined in this student academic performance in the these levels, by student subgroup notice) on State assessments in reading/ State compared to the academic (consistent with section language arts in the last year; performance of students in other States; 1111(b)(2)(C)(v)(II) of the ESEA), the Indicator (d)(2). Provide, for the State, and the extent to which students number and percentage (including the average statewide school gain in the graduate from high school in four years numerator and denominator) of students ‘‘all students’’ category and the average with a regular high school diploma and who graduate from high school using a statewide school gain for each student continue on to pursue a college four-year adjusted cohort graduation subgroup (as under section education. Specifically, a State must— rate as required by 34 CFR 1111(b)(2)(C)(v) of the ESEA) on State Indicator (c)(1). Confirm the approval 200.19(b)(1)(i); assessments in mathematics and for the status, as determined by the Indicator (c)(11). Provide, for the State and for each LEA in the State, the Department, of the State’s assessment State, for each LEA in the State, for each number and percentage (including system under section 1111(b)(3) of the high school in the State and, at each of numerator and denominator) of Title I ESEA with respect to reading/language these levels, by student subgroup schools in improvement, corrective arts, mathematics, and science (consistent with section action, or restructuring that have made assessments; 1111(b)(2)(C)(v)(II) of the ESEA), of the progress on State assessments in Indicator (c)(2). Confirm whether the students who graduate from high school mathematics in the last year; State has developed and implemented consistent with 34 CFR 200.19(b)(1)(i), Descriptor (d)(1). Provide the valid and reliable alternate assessments the number and percentage (including definition of ‘‘persistently lowest-

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achieving schools’’ (consistent with the was for financial, enrollment, academic, (B) The date by which the State requirements for defining this term set or other reasons. expects to reach each milestone; and forth in this notice) that the State uses II. State Plans: A State receiving funds (C) Any obstacles that may prevent to identify such schools; under the Stabilization program must the State from developing and Indicator (d)(3). Provide, for the State, develop and submit to the Department implementing those means by the number and identity of the schools a comprehensive plan that includes the September 30, 2011, including but not that are Title I schools in improvement, following information. limited to requirements and corrective action, or restructuring, that (a) Indicator and descriptor prohibitions of State law and policy; are identified as persistently lowest- requirements. Except as discussed in (ii) The nature and frequency of achieving schools; paragraphs (c) and (d) of this section, reports that the State will provide to the Indicator (d)(4). Provide, for the State, the State must collect and publicly public regarding its progress in of the persistently lowest-achieving report the data or other information developing and implementing those schools that are Title I schools in required by an assurance indicator or means; and improvement, corrective action, or descriptor. To this end, the State must (iii) The amount of funds the State is restructuring, the number and identity describe, for each assurance indicator or using or will use to develop and of those schools that have been turned descriptor— implement those means, and whether around, restarted, closed, or transformed (1) The State’s current ability to fully the funds are or will be Federal, State, (as defined in this notice) in the last collect the required data or other or local funds. year; information at least annually; (b) Data or other information. If the Indicator (d)(5). Provide, for the State, (2) The State’s ability to fully publicly State is currently able to fully collect the number and identity of the schools report the required data or other and publicly report the data or other that are secondary schools that are information, at least annually through information required by the indicator or eligible for, but do not receive, Title I September 30, 2011; descriptor, the State must provide the funds, that are identified as persistently (3) If the State is not currently able to most recent data or information with its lowest-achieving schools; fully collect, at least annually, the data plan and publicly report that plan. Indicator (d)(6). Provide, for the State, or other information required by the (c) Requirements for indicators in of the persistently lowest-achieving indicator or descriptor— reform area (b) (improving collection schools that are secondary schools that (i) The State’s process and timeline and use of data). are eligible for, but do not receive, Title for developing and implementing, as (1) With respect to Indicator (b)(1), the I funds, the number and identity of soon as possible but no later than State must develop and implement a those schools that have been turned September 30, 2011, the means to fully statewide longitudinal data system that around, restarted, closed, or transformed collect the data or information, includes each of the 12 elements in the last year; including— described in section 6401(e)(2)(D) of the Indicator (d)(7). Provide, for the State (A) The milestones that the State America COMPETES Act. To this end, and, if applicable, for each LEA in the establishes toward developing and the State must, in its plan— State, the number of charter schools that implementing those means; (i) Indicate which of the 12 elements are currently permitted to operate under (B) The date by which the State are currently included in the State’s State law; expects to reach each milestone; and statewide longitudinal data system; and Indicator (d)(8). Confirm, for the State (C) Any obstacles that may prevent (ii) If the State’s statewide and for each LEA in the State that the State from developing and longitudinal data system does not operates charter schools, the number of implementing those means by currently include all 12 elements, charter schools currently operating; September 30, 2011, including but not describe— Indicator (d)(9). Provide, for the State limited to requirements and (A) The State’s process and timeline and for each LEA in the State that prohibitions of State law and policy; for developing and implementing, as operates charter schools, the number (ii) The nature and frequency of soon as possible but no later than and percentage of charter schools that reports that the State will provide to the September 30, 2011, a statewide have made progress on State public regarding its progress in longitudinal data system that fully assessments in reading/language arts in developing and implementing those includes all 12 elements, including the the last year; means; and milestones that the State establishes Indicator (d)(10). Provide, for the (iii) The amount of funds the State is toward developing and implementing State and for each LEA in the State that using or will use to develop and such a system, the date by which the operates charter schools, the number implement those means, and whether State expects to reach each milestone, and percentage of charter schools that the funds are or will be Federal, State, and any obstacles that may prevent the have made progress on State or local funds; and State from developing and assessments in mathematics in the last (4) If the State is not able to fully implementing such a system by year; publicly report, at least annually September 30, 2011 (including but not Indicator (d)(11). Provide, for the through September 30, 2011, the data or limited to requirements and State and for each LEA in the State that other information required by the prohibitions of State law and policy); operates charter schools, the number indicator or descriptor— (B) The nature and frequency of and identity of charter schools that have (i) The State’s process and timeline reports that the State will provide to the closed (including schools that were not for developing and implementing, as public regarding its progress in reauthorized to operate) within each of soon as possible but no later than developing and implementing such a the last five years; and September 30, 2011, the means to fully system; and Indicator (d)(12). Indicate, for each publicly report the data or information, (C) The amount of funds the State is charter school that has closed (including including— using or will use to develop and a school that was not reauthorized to (A) The milestones that the State implement such a system, and whether operate) within each of the last five establishes toward developing and the funds are or will be Federal, State, years, whether the closure of the school implementing those means; or local funds.

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(2) With respect to Indicator (b)(2), the implement those means, and whether Final Definitions State must provide student growth data the funds are or will be Federal, State, The Secretary establishes the on their students to, at a minimum, or local funds. following definitions for Stabilization teachers of reading/language arts and (d) Requirements for Indicators (c)(11) program terms not defined in the ARRA mathematics in grades in which the and (c)(12). With respect to Indicators (or, by reference, in the ESEA or the State administers assessments in those (c)(11) and (c)(12), the State is required HEA). We may apply these definitions subjects, in a manner that is timely and to, at a minimum, possess the ability to in any year in which this program is in informs instructional programs. To this collect and publicly report the data. As effect. end, the State must— a result, the requirements of paragraph For the purposes of this program, (i) Indicate whether the State provides (a) of this section apply to these publicly report means that the data or teachers with such data; and indicators, at a minimum, with respect information required for an indicator or (ii) If the State does not provide to the State’s development of the means descriptor are made available to anyone teachers with such data, describe— to collect and to publicly report the (A) The State’s process and timeline with access to an Internet connection data. Accordingly— without having to submit a request to for developing and implementing, as (1) If, for either of these indicators, a the entity that maintains the data and soon as possible but no later than State will develop but not implement information in order to access that data September 30, 2011, the means to the means to collect and publicly report and information. Therefore, States are provide teachers with such data, the data (i.e., the State will not collect required to maintain a public Web site including the milestones that the State and publicly report the data) by that provides the data and information establishes toward developing and September 30, 2011, the State— implementing those means, the date by (i) Must submit a plan with respect to that are responsive to the indicator and which the State expects to reach each the indicator that addresses the descriptor requirements. If a State does milestone, and any obstacles that may requirements of paragraph (a) only with not currently provide the required data prevent the State from developing and respect to the State’s development of the or information, it must provide on this implementing those means by means to collect and to publicly report Web site its plan with respect to the September 30, 2011 (including but not the data, and not the State’s indicator or descriptor and its reports on limited to requirements and implementation of those means; and its progress in implementing that plan. With respect to the requirement that prohibitions of State law and policy); (ii) If submitting a plan in this (B) The nature and frequency of manner, must include in its plan a a State collect and publicly report on reports that the State will provide to the description of the evidence it will the extent to which students in high- public regarding its progress in provide to the Department of Education, and low-poverty schools in the State developing and implementing those by September 30, 2011, to demonstrate have access to highly qualified teachers, means; and that it has developed the means to highest-poverty school means, (C) The amount of funds the State is collect and publicly report that data. consistent with section using or will use to develop and (2) If, however, for either of these 1111(h)(1)(C)(viii) of the ESEA, a school implement those means, and whether indicators, a State will develop and in the highest quartile of schools (at the the funds are or will be Federal, State, implement those means (i.e., the State State and LEA levels, respectively) or local funds. will collect and publicly report the data) using a measure of poverty determined (3) With respect to Indicator (b)(3), the by September 30, 2011, the State must by the State. Similarly, lowest-poverty State must— submit a plan with respect to the school means, consistent with section (i) Indicate whether it provides indicator that fully addresses the 1111(h)(1)(C)(viii) of the ESEA, a school teachers of reading/language arts and requirements of paragraph (a). in the lowest quartile of schools (at the mathematics in grades in which the (e) General requirements. The State State and LEA levels, respectively) State administers assessments in those must describe— using a measure of poverty determined subjects with reports of individual (1) The agency or agencies in the State by the State. teacher impact on student achievement responsible for the development, With respect to the requirements that on those assessments; and execution, and oversight of the plan, a State indicate whether the systems (ii) If the State does not provide those including the institutional infrastructure used to evaluate the performance of teachers with such reports, describe— and capacity of the agency or agencies teachers and principals include student (A) The State’s process and timeline as they relate to each of those tasks; achievement outcomes as an evaluation for developing and implementing the (2) The agency or agencies, criterion, student achievement means to provide those teachers with institutions, or organizations, if any, outcomes means outcomes including, at such reports, including the milestones providing technical assistance or other a minimum, one of the following: that the State establishes toward support in the development, execution, student performance on summative developing and implementing those and oversight of the plan, and the nature assessments, or on assessments means, the date by which the State of such technical assistance or other predictive of student performance on expects to reach each milestone, and support; summative assessments, in terms of any obstacles that may prevent the State (3) The overall budget for the absolute performance, gains, or growth; from developing and implementing development, execution, and oversight student grades; and rates at which those means (including but not limited of the plan; students are on track to graduate from to requirements and prohibitions of (4) The processes the State employs to high school with a regular high school State law and policy); review and verify the required data and diploma. (B) The nature and frequency of other information; and With respect to the requirements that reports that the State will provide to the (5) The processes the State employs to a State indicate whether teacher and public regarding its progress in ensure that, consistent with 34 CFR principal evaluation systems include developing and implementing those 99.31(b), the required data and other student growth data as an evaluation means; and information are not made publicly criterion and whether the State provides (C) The amount of funds the State is available in a manner that personally such data to, at a minimum, teachers of using or will use to develop and identifies students, where applicable. reading/language arts and mathematics

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in grades in which the State administers 200.19(b) that is less than 60 percent facilitate effective teaching and learning assessments in those subjects, student over a number of years; and and have the capacity to successfully growth means the change in (2) Any secondary school that is implement school reform strategies; achievement for an individual student eligible for, but does not receive, Title (v) Adopt a new governance structure, between two or more points in time. For I funds that— which may include, but is not limited grades in which the State administers (i) Is among the lowest-achieving five to, requiring the school to report to a summative assessments in reading/ percent of secondary schools or the new ‘‘turnaround office’’ in the LEA or language arts and mathematics, student lowest-achieving five secondary schools SEA, hire a ‘‘turnaround leader’’ who growth data must be based on a in the State that are eligible for, but do reports directly to the Superintendent or student’s score on the State’s assessment not receive, Title I funds, whichever Chief Academic Officer, or enter into a under section 1111(b)(3) of the ESEA. A number of schools is greater; or multi-year contract with the LEA or SEA State may also include other measures (ii) Is a high school that has had a to obtain added flexibility in exchange that are rigorous and comparable across graduation rate as defined in 34 CFR for greater accountability; classrooms. 200.19(b) that is less than 60 percent (vi) Use data to identify and With respect to the requirement that over a number of years. implement an instructional program a State collect and publicly report the (b) To identify the lowest-achieving that is research-based and ‘‘vertically number of high-school graduates who schools, a State must take into account aligned’’ from one grade to the next as enrolled in a public IHE in the State both— well as aligned with State academic who complete at least one year’s worth (1) The academic achievement of the standards; of college credit (applicable to a degree) ‘‘all students’’ group in a school in (vii) Promote the continuous use of within two years of enrollment, college terms of proficiency on the State’s student data (such as from formative, credit (applicable to a degree) is used as assessments under section 1111(b)(3) of interim, and summative assessments) to that term is defined by the IHE granting the ESEA in reading/language arts and inform and differentiate instruction in such credit. mathematics combined; and order to meet the academic needs of With respect to the requirements that (2) The school’s lack of progress on individual students; a State collect and publicly report the those assessments over a number of (viii) Establish schedules and numbers and percentages of certain years in the ‘‘all students’’ group. implement strategies that provide With respect to the requirements that groups of schools that have made increased learning time (as defined in a State collect and publicly report, of progress on State assessments in this notice); and the persistently lowest-achieving (ix) Provide appropriate social- reading/language arts and in schools, the number and identity of emotional and community-oriented mathematics in the last year, school that schools that have been turned around, services and supports for students. has made progress means a school restarted, closed, or transformed (2) A turnaround model may also whose gains on the assessment, in the through one of the following in the last implement other strategies such as— ‘‘all students’’ category and for each year— (i) Any of the required and student subgroup (as under section (a) Turnaround model. (1) A permissible activities under the 1111(b)(2)(C)(v) of the ESEA), are equal turnaround model is one in which an transformation model; or to or greater than the average statewide LEA must— (ii) A new school model (e.g., themed, school gains in the State on that (i) Replace the principal and grant the dual language academy). assessment, in the ‘‘all students’’ principal sufficient operational (b) Restart model. A restart model is category and for each student subgroup, flexibility (including in staffing, one in which an LEA converts a school except that if the average statewide calendars/time, and budgeting) to or closes and reopens a school under a school gains in the State on that implement fully a comprehensive charter school operator, a charter assessment are equal to or less than approach in order to substantially management organization (CMO), or an zero, the gains of the school must be improve student achievement outcomes education management organization greater than zero. and increase high school graduation (EMO) that has been selected through a With respect to the requirements that rates; rigorous review process. (A CMO is a a State collect and publicly report data (ii) Using locally adopted non-profit organization that operates or and information on the persistently competencies to measure the manages charter schools by centralizing lowest-achieving schools that are Title I effectiveness of staff who can work or sharing certain functions and schools in improvement, corrective within the turnaround environment to resources among schools. An EMO is a action, or restructuring or secondary meet the needs of students, for-profit or non-profit organization that schools that are eligible for, but do not (A) Screen all existing staff and rehire provides ‘‘whole-school operation’’ receive, Title I funds, persistently no more than 50 percent; and services to an LEA.) A restart model lowest-achieving schools means, as (B) Select new staff; must enroll, within the grades it serves, determined by the State— (iii) Implement such strategies as any former student who wishes to (a)(1) Any Title I school in financial incentives, increased attend the school. improvement, corrective action, or opportunities for promotion and career (c) School closure. School closure restructuring that— growth, and more flexible work occurs when an LEA closes a school and (i) Is among the lowest-achieving five conditions that are designed to recruit, enrolls the students who attended that percent of Title I schools in place, and retain staff with the skills school in other schools in the LEA that improvement, corrective action, or necessary to meet the needs of the are higher achieving. These other restructuring or the lowest-achieving students in the turnaround school; schools should be within reasonable five Title I schools in improvement, (iv) Provide staff with ongoing, high- proximity to the closed school and may corrective action, or restructuring in the quality, job-embedded professional include, but are not limited to, charter State, whichever number of schools is development that is aligned with the schools or new schools for which greater; or school’s comprehensive instructional achievement data are not yet available. (ii) Is a high school that has had a program and designed with school staff (d) Transformation model. A graduation rate as defined in 34 CFR to ensure that they are equipped to transformation model is one in which

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an LEA implements each of the mutual consent of the teacher and competency-based instruction and following strategies: principal, regardless of the teacher’s performance-based assessments, and (1) Developing and increasing teacher seniority. acceleration of basic reading and and school leader effectiveness. (2) Comprehensive instructional mathematics skills; or (i) Required activities. The LEA reform strategies. (4) Establishing early-warning systems must— (i) Required activities. The LEA to identify students who may be at risk (A) Replace the principal who led the must— of failing to achieve to high standards or school prior to commencement of the (A) Use data to identify and graduate. transformation model; implement an instructional program (3) Increasing learning time and (B) Use rigorous, transparent, and that is research-based and ‘‘vertically creating community-oriented schools. equitable evaluation systems for aligned’’ from one grade to the next as (i) Required activities. The LEA teachers and principals that— well as aligned with State academic must— (1) Take into account data on student standards; and (A) Establish schedules and growth (as defined in this notice) as a (B) Promote the continuous use of implement strategies that provide significant factor as well as other factors student data (such as from formative, increased learning time (as defined in such as multiple observation-based interim, and summative assessments) to this notice); and assessments of performance and inform and differentiate instruction in (B) Provide ongoing mechanisms for ongoing collections of professional order to meet the academic needs of family and community engagement. practice reflective of student individual students. (ii) Permissible activities. An LEA achievement and increased high-school (ii) Permissible activities. An LEA may also implement other strategies that graduation rates; and may also implement comprehensive extend learning time and create (2) Are designed and developed with instructional reform strategies, such community-oriented schools, such as— teacher and principal involvement; as— (A) Partnering with parents and (C) Identify and reward school (A) Conducting periodic reviews to parent organizations, faith- and leaders, teachers, and other staff who, in ensure that the curriculum is being community-based organizations, health implementing this model, have implemented with fidelity, is having the clinics, other State or local agencies, increased student achievement and intended impact on student and others to create safe school high-school graduation rates and achievement, and is modified if environments that meet students’ social, identify and remove those who, after ineffective; emotional, and health needs; ample opportunities have been provided (B) Implementing a schoolwide (B) Extending or restructuring the for them to improve their professional ‘‘response-to-intervention’’ model; school day so as to add time for such practice, have not done so; (C) Providing additional supports and strategies as advisory periods that build (D) Provide staff with ongoing, high- professional development to teachers relationships between students, faculty, quality, job-embedded professional and principals in order to implement and other school staff; development (e.g., regarding subject- effective strategies to support students (C) Implementing approaches to specific pedagogy, instruction that with disabilities in the least restrictive improve school climate and discipline, reflects a deeper understanding of the environment and to ensure that limited such as implementing a system of community served by the school, or English proficient students acquire positive behavioral supports or taking differentiated instruction) that is aligned language skills to master academic steps to eliminate bullying and student with the school’s comprehensive content; harassment; or instructional program and designed (D) Using and integrating technology- (D) Expanding the school program to with school staff to ensure they are based supports and interventions as part offer full-day kindergarten or pre- equipped to facilitate effective teaching of the instructional program; and kindergarten. and learning and have the capacity to (E) In secondary schools— (4) Providing operational flexibility successfully implement school reform (1) Increasing rigor by offering and sustained support. strategies; and opportunities for students to enroll in (i) Required activities. The LEA (E) Implement such strategies as advanced coursework (such as must— financial incentives, increased Advanced Placement or International (A) Give the school sufficient opportunities for promotion and career Baccalaureate; or science, technology, operational flexibility (such as staffing, growth, and more flexible work engineering, and mathematics courses, calendars/time, and budgeting) to conditions that are designed to recruit, especially those that incorporate implement fully a comprehensive place, and retain staff with the skills rigorous and relevant project-, approach to substantially improve necessary to meet the needs of the inquiry-, or design-based contextual student achievement outcomes and students in a transformation school. learning opportunities), early-college increase high school graduation rates; (ii) Permissible activities. An LEA high schools, dual enrollment programs, and may also implement other strategies to or thematic learning academies that (B) Ensure that the school receives develop teachers’ and school leaders’ prepare students for college and careers, ongoing, intensive technical assistance effectiveness, such as— including by providing appropriate and related support from the LEA, the (A) Providing additional supports designed to ensure that low- SEA, or a designated external lead compensation to attract and retain staff achieving students can take advantage partner organization (such as a school with the skills necessary to meet the of these programs and coursework; turnaround organization or an EMO). needs of the students in a (2) Improving student transition from (ii) Permissible activities. The LEA transformation school; middle to high school through summer may also implement other strategies for (B) Instituting a system for measuring transition programs or freshman providing operational flexibility and changes in instructional practices academies; intensive support, such as— resulting from professional (3) Increasing graduation rates (A) Allowing the school to be run development; or through, for example, credit-recovery under a new governance arrangement, (C) Ensuring that the school is not programs, re-engagement strategies, such as a turnaround division within required to accept a teacher without the smaller learning communities, the LEA or SEA; or

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(B) Implementing a per-pupil school- (1) Whether the plan clearly and (iii) Whether the reports that the State based budget formula that is weighted accurately describes the State’s abilities will provide to the public will be based on student needs. to collect and to publicly report the data appropriately accessible and will If a school identified as a persistently or other information required by an sufficiently indicate the State’s progress lowest-achieving school has assurance indicator and descriptor; and in developing and implementing the implemented, in whole or in part within (2) If the State is not currently able to means to comply with the requirement. the last two years, an intervention that fully collect and publicly report the data (c) Adequacy of the State plan. In meets the requirements of the or information required by an indicator determining the adequacy of the plan turnaround, restart, or transformation or descriptor— submitted by a State, we consider the models, the school may continue or (i) Whether the timeline and process following: complete the intervention being for developing and implementing the (1) Whether the institutional implemented. means to fully collect and publicly infrastructure and capacity of the With respect to the requirement that report the data or information are agency or agencies responsible for the schools using a turnaround model or a reasonable and sufficient to comply development, implementation, and transformation model have increased with the requirement; oversight of the plan, together with any learning time, increased learning time (ii) Whether any obstacles identified technical assistance or other support means using a longer school day, week, by the State as preventing it from provided by other agencies, institutions, or year schedule to significantly developing and implementing the or organizations, are adequate to comply increase the total number of school means to fully collect and publicly with the indicator and descriptor hours to include additional time for (a) report the data or information by requirements individually and as a instruction in core academic subjects, September 30, 2011 are sufficient to whole; (2) Whether the funds the State is including English, reading or language justify a delay in complying with the using or will use are adequate to comply arts; mathematics; science; foreign requirement; and languages; civics and government; with the indicator and descriptor (iii) Whether the reports that the State requirements both individually and as a economics; arts; history; and geography; will provide to the public will be (b) instruction in other subjects and whole; appropriately accessible and will (3) Whether the processes the State enrichment activities that contribute to sufficiently indicate the State’s progress a well-rounded education, including, for employs to review and verify the in developing and implementing the required data and information are example, physical education, service means to comply with the requirement. learning, and experiential and work- adequate to ensure that the data and (b) Quality of the State plan with information are accurate and of high based learning opportunities that are respect to indicators in reform area (b) provided by partnering, as appropriate, quality; and (improving collection and use of data). (4) Whether the processes the State with other organizations; and (c) In determining the quality of the plan employs are adequate to ensure that, teachers to collaborate, plan, and engage submitted by a State as it relates to the where applicable, the required data and in professional development within and indicators in reform area (b), we other information are not made publicly across grades and subjects.10 consider the following: available in a manner that personally Final Approval Criteria (1) Whether the plan clearly and identifies students. accurately describes the State’s ability to The Secretary establishes the Executive Order 12866: meet the plan requirement for the Under Executive Order 12866, the following criteria for approving the plan indicator (i.e., in the case of Indicator Secretary must determine whether this of a State receiving funds under the (b)(1), the requirement to develop and regulatory action is ‘‘significant’’ and Stabilization program. We may apply implement a statewide longitudinal data therefore subject to the requirements of one or more of these criteria in any year system that includes each of the 12 the Executive Order and subject to in which this program is in effect. elements described in section review by OMB. Section 3(f) of (a) Quality of the State plan. Except 6401(e)(2)(D) of the America Executive Order 12866 defines a as described in paragraph (b), in COMPETES Act; and in the case of ‘‘significant regulatory action’’ as an determining the quality of the plan Indicator (b)(2), the requirement to action likely to result in a rule that may submitted by a State, we consider the provide student growth data on their (1) have an annual effect on the following: students to, at a minimum, teachers of economy of $100 million or more, or reading/language arts and mathematics 10 Research supports the effectiveness of well- adversely affect a sector of the economy, designed programs that expand learning time by a in grades in which the State administers productivity, competition, jobs, the minimum of 300 hours per school year. (See assessments in those subjects, in a environment, public health or safety, or Frazier, Julie A.; Morrison, Frederick J. ‘‘The manner that is timely and informs State, local or tribal governments, or Influence of Extended-year Schooling on Growth of instructional programs); and Achievement and Perceived Competence in Early communities in a material way (also Elementary School.’’ Child Development. Vol. 69 (2) If the State does not currently meet referred to as an ‘‘economically (2), April 1998, pp. 495–497 and research done by the plan requirement for the indicator— significant’’ rule); (2) create serious Mass2020.) Extending learning into before- and (i) Whether the timeline and process inconsistency or otherwise interfere after-school hours can be difficult to implement for developing and implementing the effectively, but is permissible under this definition with an action taken or planned by with encouragement to closely integrate and means to meet the requirement are another agency; (3) materially alter the coordinate academic work between in school and reasonable and sufficient to comply budgetary impacts of entitlement grants, out of school. (See James-Burdumy, Susanne; with the requirement; user fees, or loan programs or the rights Dynarski, Mark; Deke, John. ‘‘When Elementary Schools Stay Open Late: Results from The National (ii) Excluding Indicator (b)(3), and obligations of recipients thereof; or Evaluation of the 21st Century Community Learning whether any obstacles identified by the (4) raise novel legal or policy issues Centers Program.’’ http://www.mathematica- State as preventing it from developing arising out of legal mandates, the mpr.com/publications/ and implementing the means to meet President’s priorities, or the principles redirect_PubsDB.asp?strSite=http:// epa.sagepub.com/cgi/content/abstract/29/4/296. the requirement by September 30, 2011 set forth in the Executive Order. Educational Evaluation and Policy Analysis, Vol. 29 are sufficient to justify a delay in Pursuant to the Executive Order, it has (4), December 2007, Document No. PP07–121.) complying with the requirement; and been determined that this regulatory

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action will have an annual effect on the in which the State administers Department’s centralized data collection economy of more than $100 million assessments in those subjects, in a and warehousing system), for the State because the amount of government manner that is timely and informs as a whole and for each LEA, the transfers provided through SFSF will instructional programs, reflects a need number and percentage of core exceed that amount. Therefore, this to ensure that teachers have better data academic courses taught, in the highest- action is ‘‘economically significant’’ and on how well they are educating their poverty and lowest-poverty schools, by subject to OMB review under section students, and that school and LEA teachers who are highly qualified. 3(f)(1) of the Executive Order. leaders have valuable information that Indicator (a)(1) requires that they The costs of this regulatory action they can use in developing and confirm the data they have reported, have been reviewed in accordance with providing professional development which should not be a time-consuming Executive Order 12866. Under the terms opportunities, assigning teachers, and responsibility. As a second example, the of the Order, the Department has implementing compensation and other requirement to confirm the approval assessed the costs and benefits of this human capital policies. status of the State’s assessment system regulatory action. The definitions included in this under section 1111(b)(3) of the ESEA, as In assessing the potential costs and notice are necessary to give clearer determined by the Department, should benefits—both quantitative and meaning to some of the terms used in also require minimal effort. qualitative—of these requirements, the the descriptions of the requirements and Department has determined that the approval criteria. The approval criteria General Discussion of Comments benefits of the requirements exceed the themselves are needed in order to Other requirements will impose costs. The Department also has provide for a clear and objective set of significant new costs. Many commenters determined that this regulatory action standards that the Secretary will use in asserted that the volume of the proposed does not unduly interfere with State, ensuring that each State, before data collection requirements would local, and tribal governments in the receiving the remainder of its constitute an unreasonable, unrealistic exercise of their governmental Stabilization program allocation, has in task for States and LEAs, particularly in functions. place a plan for collecting and publicly light of strained budgets and reductions in personnel. Two commenters Need for Federal Regulatory Action reporting the required data and meeting the other requirements in this notice. acknowledged that some data These requirements, definitions, and requirements would be appropriate in approval criteria are needed to Regulatory Alternatives Considered light of such an investment as the SFSF; implement the State Fiscal Stabilization A likely alternative to promulgation of they contended, however, that the Fund program in a manner that the the types of requirements, definitions, proposed requirements would go Secretary believes will best enable the and approval criteria in this notice beyond what they considered program to achieve its objectives of would be for the Secretary to release the appropriate. Commenters variously supporting meaningful education remaining Stabilization program funds recommended generally reducing the reforms in the States while helping to without establishing specific reporting data requirements, allowing sampling, stabilize State and local budgets and or other requirements. Under such a increasing reporting time, and adding minimize reductions in education and scenario, participating States would still support for school and LEA capacity- other essential services. In particular, be required to meet the statutory building specifically to meet data the requirements, definitions, and requirements (that is, to take actions to collection and reporting requirements. approval criteria included in this notice improve teacher effectiveness and the One commenter argued that, while the are necessary to advance the four key equitable distribution of highly commenter’s State could complete the educational reforms listed in the ARRA, qualified teachers, establish statewide plan as required, the State could not particularly by ensuring better reporting longitudinal data systems that include actually carry out all data collection and more public availability of the elements specified in the America activities in the plan. information on the progress of COMPETES Act, enhance the quality of While we understand the fiscal implementation in each of the four their standards and assessments, ensure challenges that face numerous States reform areas. The requirement for each the inclusion of students with and LEAs, we strongly believe that the State to establish a longitudinal data disabilities and limited English benefits to the public of these system that includes the elements proficient students in their assessments, requirements outweigh the State and specified in the America COMPETES and take steps to improve consistently local implementation costs. Specifically, Act will have an especially significant low-performing schools), but there the major benefit of these requirements, impact on the availability of data that would be no assurance of consistent and taken in their totality, is better and more can be used in developing and complete reporting of States’ progress publicly available information on the improving programs; targeting services; and no uniform mechanism for status of activities related to the reform developing better linkages between measuring and comparing States’ areas identified in the authorizing preschool, elementary and secondary performance. Additionally, the need for statute for the Stabilization program. As schools, and postsecondary systems, teachers to obtain better information on described in detail later in this section, agencies, and institutions; and holding their students’ educational progress research indicates or suggests that schools, LEAs, and institutions would likely be unfulfilled. progress on each of the reforms will accountable for their performance. contribute to improved student Establishment of such a system by each Summary of Costs and Benefits outcomes. The provision of better participating State is also required The Department has analyzed the information (on teacher qualifications, under the ARRA. costs of complying with these final teacher and principal evaluation Further, the requirement for each requirements. Some of the costs will be systems, State student longitudinal data State to provide student growth data on minimal and others more significant. As systems, State standards and assessment their current students and the students an example of a requirement that will systems, student success in high-school they taught in the previous year to, at result in minimal burden and cost, and postsecondary education, efforts to a minimum, teachers of reading/ States are currently required to report turn around persistently lowest- language arts and mathematics in grades annually, through EDFacts (the achieving schools, and charter school

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reforms) to policymakers, educators, SFSF funds have provided to LEAs, but from other programs, including Title II, parents, and other stakeholders will noted that States received no portion of Part A, can be used as appropriate to assist in their efforts to further the the Education Fund resources. The meet these requirements. Two reforms. In addition, State reporting of Department appreciates the perspective additional commenters urged the these data will help the Department captured in these comments but Department to allow States to report that determine the impact of the continues to believe that Stabilization they will use funds from Race to the unprecedented level of funding made funds should be used to save and create Top to comply with the requirements available by the ARRA. Further, the data jobs as well as to advance education established in this notice; the and plans that States submit will inform reform, and has clearly stated those Department encourages States that Federal education policy, including the objectives since the passage of the apply for Race to the Top grants to upcoming reauthorization of the ESEA. ARRA. As stated earlier, the Department consider how those funds may be used While several commenters expressed is requiring States to report on the to meet these requirements while also concern regarding the lack of funds particular indicators and descriptors meeting the criteria for Race to the Top. available to States to comply with the presented in this notice in the interest The following is a detailed analysis of data requirements, emphasizing that of advancing reform in a transparent the estimated costs of implementing the States have recently had to make severe manner. specific final requirements, followed by budget cuts, States will be able to draw The Department recognizes, however, a discussion of the anticipated benefits. on Federal resources in meeting some of that the proposed requirements would The costs of implementing specific the requirements. For example, the have required more effort than may be paperwork-related requirements are also requirements that would result in the reasonable for States at this time. shown in the tables in the Paperwork most significant costs are related to the Therefore, the Department has made a Reduction Act of 1995 section of this implementation of a State data system key change from the proposed notice. that can track individual student requirements to reduce the estimated transitions from high school to college. cost of the final requirements. In the Distribution of Highly Qualified As one commenter noted, Federal funds NPR, the Department proposed to Teachers that States receive from the Statewide require each State to provide teachers of Section 14005(d)(2) of the ARRA Longitudinal Data Systems Grant reading/language arts and mathematics requires a State receiving funds under program, through which the Department with data on the performance of their the Stabilization program to assure, in has made over $187 million available students that includes estimates of the Stabilization program application, since fiscal year 2005, may be used to individual teacher impact on student that it will address inequities in the meet this requirement. The ARRA achievement and, if the State does not distribution of highly qualified teachers. provided an additional $250 million for do so, to describe a process and timeline In response to this requirement, the that program, and the Administration’s for doing so by September 30, 2011. The Department is requiring States to budget request for fiscal year 2010 final requirements provide, instead, for confirm, for the State and for each LEA includes an additional $65 million. In States to provide student growth data to, in the State, the number and percentage addition, it is important to note that at a minimum, teachers of reading/ of core academic courses taught, in the States may use funds available through language arts and mathematics in grades highest-poverty and lowest-poverty the Stabilization program’s Government in which the State administers schools, by teachers who are highly Services Fund (over $8.8 billion) to assessments in those subjects, in a qualified. Because States will have develop and implement the systems manner that is timely and informs previously submitted this information to necessary to report on these instructional programs.11 The the Department through the EDFacts performance indicators. Department expects that this system, we anticipate that the costs of Some commenters argued that the requirement will be significantly less complying with this requirement would Stabilization Government Services Fund costly to implement. be minimal. A State likely would need will not be sufficient to cover the One commenter warned that, without only to ensure that it had correctly expenses of complying with these ongoing funds to maintain, for example, aggregated and reported data received requirements. Three commenters added the longitudinal data system, the from its LEAs. The Department expects that the Department should not add data modifications to student assessments, or that each State would require one hour requirements unknown at the time the Federal reporting requirements, of staff time to complete this effort, at States obligated the Stabilization funds. these requirements will create a a cost of $30 per hour.12 For the 50 A few commenters contended that, in ‘‘funding cliff’’ in fiscal year 2011. The States, the District of Columbia, and accordance with congressional intent, Department encourages States to States have used or will use SFSF funds Puerto Rico, the total estimated level of consider ways that these funds may be to help avoid severe reductions in State effort would be 52 hours at a cost of invested so as to minimize the impact services and layoffs of State-funded $1,560. In addition, the final of the end of the period of availability employees, including in the educational requirements provide for States to of the Stabilization funds, and disagrees system. One of these commenters indicate whether the State’s Teacher further explained that, even with with another commenter who argued Equity Plan (a part of the State’s Highly Stabilization funds, the LEAs in the that these requirements constitute an Qualified Teacher Plan) has been commenter’s State must still implement unfunded mandate. States and LEAs updated to fully reflect the steps the severe budget cuts. Another explained may use a share of these or other State is currently taking to ensure that that other Federal programs requiring resources to respond to these 12 States to collect data provide requirements, and the Department Some commenters argued that we should use expects that Government Services funds a higher estimate than $30 per hour of State effort administrative funds for this purpose. but did not provide specific alternate estimates. We Numerous commenters asserted that as well as State administrative funds believe that $30 is a reasonable estimate of the much time has already been spent national average cost of staff time in State 11 The final requirements, however, still require educational agencies; it is also the estimate the collecting and reporting data related to States to indicate whether they provide reports of Department has used in other regulatory cost SFSF Phase I. Two commenters individual teacher impact on student achievement estimates. We recognize, however, that actual costs expressed appreciation for the relief and, if they do not, to provide a plan for doing so. will vary across States.

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students from low-income families and would not be involved in the response and removal. Finally, the Department is minority students are not taught at to these requirements. requiring States to indicate, for each higher rates than other students by In the 40 States that do not have LEA in the State whose teachers receive inexperienced, unqualified, or out-of- statewide teacher and principal performance ratings or levels through an field teachers. The Department expects evaluation systems in place, the level of evaluation system, whether the number that this will require an hour of effort, effort required would likely be and percentage of teachers rated at each for a total estimated burden of 52 hours significantly higher. For each of these performance rating or level are publicly at a cost of $1,560. States, the Department estimates that reported for each school in the LEA. 360 hours would be required at the State One commenter expressed the belief Teacher and Principal Evaluation level to develop and administer a survey that LEAs will have to develop Web Systems of LEAs (including designing the survey sites to post information on their Section 14005(d)(2) also requires instrument, disseminating it, providing evaluation systems. The Department States to take actions to improve teacher training or other technical assistance to expects that many LEAs that make this effectiveness. To accomplish that goal, LEAs on completing the survey, information publicly available will States must first have a means of collecting the data and other choose to do so on their pre-existing assessing teacher success. A limited information, checking accuracy, and Web site; if any LEAs currently do not number of States have implemented public reporting), which would amount have Web sites, they may create a Web statewide teacher and principal to a total of 14,400 hours and a total site or may publicly report this evaluation systems, while in the other estimated State cost of $432,000 information in another easily accessible States the responsibility for evaluating (assuming, again, a cost per hour of format. teachers and principals rests with the $30). While one commenter asserted We were unable to find nationally LEAs or schools. Little is known about that a survey will not suffice to collect representative information on whether the design of these systems across the these data annually, the Department LEAs will have information on their Nation, but the collection and reporting expects that a survey is all that would teacher and principal evaluation of additional information would create be necessary for a State to collect this systems readily available in a a resource that additional States and information. The 12,368 LEAs located in centralized database and, therefore, LEAs can draw on in building their own these States would bear the cost of invited comment on this issue. Though systems. The Department, therefore, collecting and reporting the data to their at least one commenter asserted that the request was reasonable, many proposes to require States to collect and States. For the purpose of the burden commenters argued that the cost and publicly report information about these estimates in this section, the time to comply with these data evaluation systems. Department estimates that 75 percent of requirements would far exceed the Specifically, the Department is these LEAs (9,276) have centralized estimates in the NPR. One commenter requiring that States describe, for each teacher and principal evaluation directed us to a study by the New LEA in the State, the systems used to systems in place. For those LEAs, we Teacher Project (NTP),14 which evaluate the performance of teachers estimate that 3 hours would be required analyzed the teacher evaluation systems and principals. Further, the Department to respond to these requirements. For of a sample of 12 LEAs. Of those 12 proposes to require States to indicate, the estimated 3,092 LEAs that do not LEAs, only 4 tracked teacher evaluation for each LEA in the State, whether the have a centralized evaluation system in results electronically. Although the NTP systems used to evaluate the place, we estimate that 2 hours would report examined only a small number of performance of teachers and principals be required because we expect that LEAs, which were not nationally include student achievement outcomes these systems are less complex than representative, we base our cost or student growth data as an evaluation centralized systems. The Department, estimates on this finding, as it is the criterion. thus, estimates that LEAs would need to only source of information available. The level of effort required to respond spend a total of 34,012 hours to respond Thus, we assume that 33 percent of to these requirements would likely vary to these proposed requirements at a total LEAs will have information on the depending on the types of teacher and cost of $850,300. In the NPR, we invited teacher and principal evaluation results principal evaluation systems in place in commenters to provide information on in a central database.15 Applying this a given State or LEA. The Department the prevalence of these systems in LEAs percentage to the estimated 11,908 LEAs believes that, if a system is in place at (so that we could further refine our that have in place a centralized system the State level, the response burden estimates) and on the potential costs of to evaluate teacher and principal would be low, because the State will meeting the requirements for LEAs that performance (which includes the 2,632 have the required information readily have or do not have such a system, but LEAs in States with statewide systems, available. According to the National we did not receive any comments on as well as the estimated 9,276 LEAs in Council on Teacher Quality, 12 States these issues. As a result, we are other States that have their own local require LEAs to use a State-developed retaining the estimates that we included systems), the Department estimates that instrument to evaluate teachers or to in the NPR for these metrics. 3,930 LEAs would need to spend 3 develop an equivalent instrument that The Department is also requiring hours each to respond to these must be approved by the State.13 For States to provide, for each LEA in the requirements for a total burden of these 12 States, the Department State whose teachers and principals estimates that a total of 72 hours (6 receive performance ratings or levels 14 See http://widgeteffect.org/downloads/ hours per State) would be required to through an evaluation system, the TheWidgetEffect.pdf. number and percentage of teachers and 15 It is important to note that this study includes respond to these requirements, for a in its sample only medium-size and large LEAs and, total cost, at $30 per hour, of $2,160. principals rated at each performance therefore, that the actual percentage of LEAs with The 2,632 LEAs located in these States rating or level, as well as a description teacher and principal evaluation results in a central of how each LEA uses results from those database may be lower than 33 percent. We also systems in decisions regarding teacher believe, however, that small LEAs with fewer 13 State Teacher Policy Yearbook: 2008, page 68. teachers and principals would require less effort http://www.nctq.org/stpy08/reports/ and principal development, than a medium-size or large LEA to comply with stpy_national.pdf. compensation, promotion, retention, these requirements.

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11,790 hours and $294,750. One and principal development, evaluation systems and provide States commenter suggested that the compensation, promotion, retention, with a tool for collecting the teacher and Department include in this estimate the and removal. principal data. The Department may, in cost of LEAs participating in training The Department, therefore, estimates the future, assess teacher and principal from the State on how to respond to the total LEA burden for these evaluation systems, but does not believe these requirements; this estimate of 3 requirements to be 317,987 hours across State collection and reporting of data on hours includes 1 hour per LEA for such the Nation at an estimated total cost of their systems should await completion training. The Department downwardly $7,949,675 (assuming a cost per hour of of such an effort. revised the LEA-level estimate of $25). Two commenters expressed particular burden for these LEAs from 5 hours per States would then need to collect concern for the effort required of small, LEA in the NPR to 3 hours per LEA these data, most likely by including rural LEAs, but we expect that because we are now assuming that these these items in the survey instrument collecting this information will be a LEAs not only have this information that they will develop to respond to the simple process for small LEAs (which available in the central office but also other requirements in this section, and typically operate few schools and that the information is available will then need to aggregate and publicly employ few teachers and principals), so electronically, which would further report the data on their Web site. We we do not provide separate estimates for simplify the process. estimate that these activities will require them here. Lastly, two commenters We estimate that each of the other 8 hours of effort per State, for a total contended that the estimates do not 7,978 LEAs will require significantly burden of 416 hours at a cost of $12,480. account for the data systems that LEAs more time to respond. One commenter We further estimate that it will cost each will have to develop to collect this suggested that we estimate LEA burden State $10,000 to establish and maintain information. We assume that LEAs will for the requirements regarding the a Web site to which it will post all of add a data element to an existing data number and percentage of teachers and the data required by this notice, system and, therefore, do not believe principals rated at each performance including the requirements in this that it is appropriate to assume the need rating or level by considering the section. While one commenter for development of data systems for the number of teachers, assuming that all expressed concern for States with large purpose of these estimates. evaluation results would need to be numbers of LEAs, the 8-hour estimate For more detailed estimates of costs entered and aggregated at the LEA level, reflects average burden across all States, for these requirements, please see the which would require ten minutes per including those with high and low tables in the Paperwork Reduction Act individual. This commenter also numbers of LEAs. of 1995 section of this notice. Many commenters reported that recommended that we use the estimate State Data Systems of 3.6 million public school teachers complying with the teacher and nationwide to determine the level of principal evaluation data requirements Section 14005(d)(3) requires States to LEA effort required. We agree with this will significantly burden States and assure that they will establish a commenter’s point that the estimate of LEAs. One commenter emphasized that longitudinal data system that includes LEA burden for these requirements the commenter’s State does not the elements described in section should consider the number of teachers currently collect any of the information 6401(e)(2)(D) of the America in the LEA; however, according to the included in these requirements. Some COMPETES Act. To track State progress Digest of Education Statistics, there are commenters elaborated that collecting in this reform area, the Department approximately 3.2 million teachers and these data will require extensive requires each State to indicate which of 87,620 principals in public elementary communication and follow-up between the 12 elements are included in the and secondary schools.16 17 Based on States and LEAs. One commenter State’s statewide longitudinal data this figure, we estimate that an average recommended that States be permitted system. The costs of reporting this LEA employs 213 teachers and 6 to sample their LEAs, and another information should be minimal. principals. Applying this number of commenter suggested that, while the Moreover, most States are already teachers and principals to the estimated estimates may be fairly accurate, these reporting information on ten of the 12 7,978 LEAs nationwide that do not have data requirements will negatively affect elements to the Data Quality Campaign, this information electronically in a a State’s ability to complete the a national effort to encourage State central system, we estimate that these application within the required policymakers to use high-quality LEAs will need to enter data for timeframe. education data to improve student 1,699,314 teachers and 47,868 The Department agrees that States and achievement. The Department expects principals into their existing personnel LEAs will be required to make an effort that States will be able to readily systems. Using the commenter’s to meet these requirements, and that the provide information on whether the two estimate that LEAs could enter level of effort will vary across the States remaining elements are included in information for 6 individuals per hour, and their LEAs. We believe that the their data systems and that it should we estimate that these LEAs would have availability of these data will benefit take little time for the States that have a combined burden of 291,197 hours at parents and their children and that the not been reporting to the Data Quality a cost of $7,279,925. benefits of collecting and reporting this Campaign to provide information on We further estimate that all 15,000 information outweigh the costs. Further, their data systems. We, therefore, LEAs would each require 1 hour to we believe that parents with children in estimate that States would need only 2 describe how they use results from every LEA across the Nation deserve to hours to respond to this requirement, for teacher and principal evaluation have access to this information and, a total level of effort of 104 hours at an systems in decisions regarding teacher therefore, decline to allow States or estimated cost of $3,120. LEAs to sample their teachers and The Department is also requiring that 16 See http://nces.ed.gov/programs/digest/d08/ principals in responding to these States report whether the State provides tables/dt08_004.asp?referrer=list. The most recent requirements. student growth data on their current data available is from 2006. Another commenter recommended students and the students they taught in 17 See http://nces.ed.gov/programs/digest/d08/ tables/dt08_086.asp. The most recent data available that the Department identify the most the previous year to, at a minimum, is for the 2003–04 school year. effective teacher and principal teachers of reading/language arts and

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mathematics in grades in which the whether the State has completed, within First, the Department requires each State administers assessments in those the last two years, an analysis of the State to publicly report, for the State subjects in a manner that is timely and appropriateness and effectiveness of the and each LEA and high school in the informs instructional programs. The accommodations it provides students State and, at each of these levels, by Department believes that making such with disabilities to ensure their student subgroup,18 the number and information available would help meaningful participation in State percentage of students who graduate improve the quality of instruction and assessments; indicate whether the State from high school as determined using the quality of teacher evaluation and has completed, within the last two the four-year adjusted cohort graduation compensation systems. Under the State years, an analysis of the appropriateness rate. The Department believes that State Plan section, we discuss the costs of and effectiveness of the efforts to comply with the Department’s developing systems for the provision of accommodations it provides limited October 29, 2008 regulation requiring student growth data in all States. We are English proficient students to ensure the use of a four-year adjusted cohort also requiring States to indicate whether their meaningful participation in State graduation rate in the determination of the State provides teachers of reading/ assessments; and confirm whether the adequate yearly progress under Title I of language arts and mathematics in grades State provides native language versions the ESEA are now underway (see 34 in which the State administers of State assessments for limited English CFR 200.19(b)(1)(i)). Some additional assessments in those subjects with proficient students. To respond to these effort would be required to collect and reports of individual teacher impact on five indicators, the Department report these data for all schools as the student achievement on those estimates that the 50 States, the District current regulations apply only to Title I assessments. The costs of merely of Columbia, and Puerto Rico would schools. publicly reporting on whether a State each require five hours, for a total cost Based on the Data Quality Campaign’s currently provides this information to of $7,800. 2008 survey of the 50 States and the teachers should be minimal. We In addition, the Department requires District of Columbia, which found that estimate that each State would spend that States confirm the number and 42 States have the capacity to calculate the National Governors Association one hour to publicly report this percentage of students with disabilities longitudinal graduation rate,19 the information, for a total level of effort of and limited English proficient students Department believes that most States are 52 hours at a cost of $1,560. who are included in State reading/ well-situated to collect and publicly language arts and mathematics State Assessments report these data, or have the processes assessments. The Department expects In response to the requirement in underway to make such reporting that each State would, on average, section 14005(d)(4)(A) of the ARRA that possible by September 30, 2011. In require one hour of staff time to States enhance the quality of their fulfillment of the requirement, the complete this effort, at a cost of $30 per student assessments, the Department Department estimates that States would hour. The burden estimated for this requires that the States confirm certain need to distribute to non-Title I LEAs existing data and other information and requirement is minimal because the the survey instrument they are using to submit some new information about States will have already submitted this collect this information from Title I their assessment systems. Specifically, information to the Department through LEAs and to input the data from these the Department requires each State to the EDFacts system. For the 50 States, surveys, which would require an confirm the approval status, as the District of Columbia, and Puerto estimated 8 hours per State. The new determined by the Department, of the Rico, the total estimated level of effort LEA burden to respond to this indicator State’s assessment system (with respect would be 52 hours at cost of $1,560. would be limited to the approximately to reading/language arts, mathematics, High School and Postsecondary Success 976 LEAs that do not receive Title I and science assessments). In addition, funds.20 The Department estimates that States will confirm that their annual Section 14005(d)(4)(C) of the ARRA these LEAs would spend an average of State Report Card (issued pursuant to requires States to assure, in their 40 hours to respond to this indicator for the requirements of section 1111(h) of Stabilization Fund applications, that a total LEA effort of 39,040 hours. The the ESEA) contains the most recent they take steps to improve their State total estimated cost is, therefore, available State reading and mathematics academic content standards and student $976,000. NAEP results. The Department estimates academic achievement standards In addition, the Department is that each State would require two hours consistent with section 6401(e)(1)(A)(ii) requiring States to publicly report, for to respond to these requirements, for a of the COMPETES Act, which calls for the State, for each LEA in the State, for total cost of $3,120. States to identify and make any each high school in the State and, at Section 14005(d)(4)(B) requires States necessary changes to their secondary each of these levels, by student to assure that they will administer valid school graduation requirements, subgroup, the number and percentage of and reliable assessments for children academic content standards, academic students who graduate from high school with disabilities and limited English achievement standards, and the consistent with 34 CFR 200.19(b)(1)(i) proficient students. To measure State assessments students take preceding who enroll in an IHE within 16 months progress on this assurance, the graduation from secondary school in of receiving a regular high school Department requires States to: confirm order to align those requirements, diploma and, of those students who whether the State has developed and standards, and assessments with the implemented valid and reliable knowledge and skills necessary for 18 As noted earlier in this notice, the student alternate assessments for students with success in academic credit-bearing subgroups include: economically disadvantaged students, students from major racial and ethnic disabilities that have been approved by coursework in postsecondary education, groups, students with limited English proficiency, the Department; confirm whether the in the 21st century workforce, and in and students with disabilities. State’s alternative assessments for the Armed Forces without the need for 19 http://www.dataqualitycampaign.org/survey. students with disabilities, if approved remediation. Several of the indicators 20 According to data States submitted to the by the Department, are based on grade- and descriptors in this notice are Department through the Consolidated State Performance Report 2007–08, there are a total of level, modified, or alternate academic aligned with this provision of the 15,016 LEAs across the Nation, 14,040 of which achievement standards; indicate America COMPETES Act. receive Title I, Part A funds.

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enroll in a public IHE within the State, enrollment and degree verification Education Data System (IPEDS), Spring the number and percentage who services, demonstrate that there is 2007,23 the Department estimates that complete at least one year’s worth of significant interest in information 2,018,520 first-time freshmen (81 college credit (applicable to a degree) sharing between IHEs and LEAs; more percent of all first-time freshmen who within two years of enrollment in the than 3,300 colleges (which enroll over graduated from public high schools) IHE. The requirements would entail 92 percent of college students) and enroll in IHEs in their home State. The considerable coordination among high hundreds of LEAs participate in the Department estimates that IHEs will be schools, LEAs, SEAs, and IHEs. The NSC’s efforts. The Department expects able to confirm enrollment for 20 Department expects that SEAs would that LEAs and IHEs that currently students per hour, for a total of 100,926 have to develop a system to make this provide data to this system may require hours of IHE effort at a total cost of data collection and sharing possible, less effort to respond to this $2,523,150 (assuming a cost of $25 per which they could at least partially requirement. hour).24 achieve by establishing a longitudinal Two commenters requested that States will also likely need to request data system that includes the elements States be allowed to use the NSC to that IHEs outside the State confirm the described in section 6401(e)(2)(D) of the reduce burden; however, one enrollment of students who indicated COMPETES Act. As discussed earlier, commenter reported that use of the NSC that they would enroll in those section 14005(d)(3) of the ARRA would increase the cost of meeting these institutions. Again, based on data from requires States to assure, in their requirements. One commenter noted the 2006 IPEDS, Spring 2007, the Stabilization Fund application, that they that the NSC collects only enrollment Department estimates that 473,480 will establish such a data system. data. It is important to note that the students who graduate from public high One commenter expressed concern Department mentions the NSC as a schools each year enroll in IHEs in that, according to the 2008 Data Quality potential resource, but that States and States outside their home State. The Campaign survey, only 28 States IHEs are not encouraged or required to Department estimates that it will take reported the ability to share data with use it to meet these requirements. States 30 minutes per student to postsecondary institutions. While that With respect to the requirement on complete this process, including may be true, several of the data elements publicly reporting postsecondary contacting out-of-State IHEs, obtaining described in section 6401(e)(2)(D) of the enrollment, the Department expects that the necessary information from them, COMPETES Act require data systems to LEAs will need to enter, into their and including data on those students in include linkages to postsecondary State’s statewide longitudinal data their public reports. One commenter institutions, and States assured that they system, data on each high-school argued that the estimate provided in the would implement a data system with graduate’s plans after high school, NPR accounts only for the data to be these elements in place when they including the IHE where the student entered, whereas the burden relates applied for Phase I Stabilization funds. intends to enroll, if applicable. more to obtaining the information rather Several commenters contended that According to the Digest of Education than entering the data. However, our many LEAs currently lack the Statistics, approximately 2,492,000 estimates include the effort involved in infrastructure and data collection students who graduated from public obtaining the data as well as entering it systems necessary to comply with the high schools enrolled in IHEs as first- into the system. This element of the requirements proposed in the NPR. One time freshmen in fall 2007.22 Holding requirement, therefore, will result in a commenter explained that many of the that number constant, the Department national total of 236,740 hours of State requirements presume that States estimates that LEAs will be able to enter effort at a total cost of $7,102,200. As already have P–20 data systems in data for these students at a pace of 20 with students who enroll in IHEs in place. These commenters correctly state students per hour which will result in their home State, the Department that we do not include the costs of a total level of LEA effort of 124,600 estimates that IHEs will be able to establishing such a system in the costs hours at a cost of $3,115,000. One confirm enrollment for 20 students per of these requirements. This exclusion is commenter correctly pointed out that hour, for a total of 23,674 hours of IHE warranted because the requirement to the tables in the Paperwork Reduction effort at a total cost of $591,850. establish such a system flows from the Act of 1995 section in the NPR did not Finally, to meet the requirement that ARRA, not from these requirements.21 include this $3,115,000 in LEA burden; they publicly report the number of In addition, States will be able to use the Department has added this item to students who enroll in IHEs, States will Government Services funds that they the table in this notice. need to aggregate the data received from receive as part of their Stabilization The State will then likely need to all IHEs and will then need to run allocation to support these efforts, and request that each IHE in the State analyses and publicly report the data for may compete for funds from the confirm a student’s enrollment, using the State, for each LEA, for each high Department’s Statewide Longitudinal the statewide longitudinal data system school and, at each of these levels, by Data Systems Grant program. Further, to obtain data on students who intended student subgroup. The Department the efforts of the National Student to enroll within the State. Based on data estimates that each State will need 40 Clearinghouse (NSC), a non-profit from the 2006 Integrated Postsecondary hours to conduct these analyses and organization that provides student publicly report these data, for a total 22 According to the Digest of Education Statistics, State burden of 2,080 hours at a cost of 21 We do acknowledge, however, that although 2008, almost 2.8 million first-time freshmen $62,400. the statute does not set a deadline for State enrolled in IHEs in fall 2007. See http:// The requirement that States publicly establishment of the required data systems, nces.ed.gov/programs/digest/d08/tables/ report the number of students enrolling paragraph (c)(2)(ii)(A) under the section of this dt08_198.asp. Also according to the Digest, in fall notice entitled ‘‘State Plans’’ would require States 2005, 6,073,240 students were enrolled in private to have in place statewide longitudinal data systems elementary and secondary schools. At that time, 23 http://nces.ed.gov/programs/digest/d08/tables/ that fully include all 12 elements described in the enrollment in public elementary and secondary dt08_223.asp. COMPETES Act by September 30, 2011. Putting a schools was 49,113,298. Extrapolating from those 24 Note that a table in the Paperwork Reduction full system in place by that date might increase data, the Department estimates that 11 percent of Act of 1995 section of this notice provides the costs to States or, alternatively, might reduce costs all first-time postsecondary students graduated from burden estimates by IHE, but that this narrative (if the more rapid establishment of a system results private schools. See http://nces.ed.gov/programs/ provides national estimates using the total number in efficiencies). digest/d08/tables/dt08_058.asp. of students included in the data requirement.

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in a public, in-State IHE who complete estimates in the notice, but they did not to run new analyses of the data. at least one year’s worth of college provide alternate estimates. Further, one However, the Department expects that credit applicable toward a degree within commenter questioned whether or not, States will have to collect new data on two years of enrollment at the IHE will after requiring States to invest the schools in improvement, corrective also entail a collaborative process significant cost and time building the action, or restructuring (in general and between SEAs and IHEs. Again, based capacity to collect these data, the in the persistently lowest-achieving on data from the Digest of Education Department would require States to schools) that have been turned around, Statistics, the Department estimates that submit them beyond 2011; the restarted, closed, or transformed. (In 2,018,520 first-time freshmen enroll in Department is not requiring States to addition, the State will need to define IHEs in their home State. Based on submit data beyond 2011 at this time. the term ‘‘persistently lowest-achieving additional data from the Digest of One commenter detailed the necessary schools.’’) We estimate that this data Education Statistics, we further estimate one-time development and planning, collection will entail two hours of effort that 74 percent of students enrolled in and annual, activities that collection of in each of the 1,173 LEAs (the number degree-granting IHEs are enrolled in these data would require and contended of LEAs that, according to data reported public IHEs.25 We therefore estimate that were not accounted for in the to EDFacts, had at least one school in that 1,493,705 first-time freshmen enroll Department’s cost estimate. The improvement, corrective action, or in public IHEs in their home State. Department considers these costs to be restructuring in the 2007–08 school Further, the Department estimates that, requirements of maintaining a high- year). As a result, the Department once a State has established a system for quality longitudinal data system and, estimates that the total LEA burden for the collection and reporting of these therefore, does not include the effort this requirement will be 2,346 hours at data, IHEs will be able to enter data for involved in these steps in the burden a cost of $58,650. States will then need 20 students an hour; thus, the total estimates for these requirements. to aggregate these data, in addition to estimated level of effort to respond to Supporting Struggling Schools the effort they will spend responding to this requirement will be approximately the other indicators that relate to 74,685 hours of IHE effort at an A key goal of the ARRA is to ensure struggling schools. The Department estimated cost of $1,867,131, assuming that States and LEAs provide targeted, estimates that each State will require 25 a cost of $25 per hour. intensive support and effective Finally, as with the previous interventions to turn around the hours of effort to respond to these indicator, States will need to aggregate persistently lowest-achieving schools in requirements, for a total cost of $39,000. the data received from all IHEs and will the State. Section 14005(d)(5) requires In addition, the Department is then need to run analyses and publicly States to ensure compliance with the requiring States to provide, for the State, report the data for the State, LEA, and Title I requirements in this area. To the number and identity of the school levels and at each of these levels, track State progress, the Department is secondary schools that are eligible for, by student subgroup. The Department requiring States to provide, for each but do not receive, Title I funds, that are estimates that each State will need 40 LEA in the State and aggregated at the identified as persistently lowest- hours to conduct these analyses and State level, the number and percentage achieving schools, and, of these schools, publicly report these data, for a total of schools in improvement, corrective the number and identity of schools that State burden of 2,080 hours at a cost of action, or restructuring that have made have been turned around, restarted, $62,400. progress on State assessments in closed, or transformed in the last year. Many commenters opposed the reading/language arts and mathematics The Department expects that some, but proposed requirements to collect in the last year, and, for the State, in the not all, States have the data required to information on high-school student ‘‘all students’’ category and for each determine the identity of secondary college enrollment and course student subgroup (as under section schools that are eligible for, but do not completion, particularly for those 1111(b)(2)(C)(v) of the ESEA), and, of receive, Title I funds, but that they may students enrolling in and completing the Title I schools in improvement, have to run new analyses of the data to courses at out-of-State IHEs. The corrective action, or restructuring, the determine which of these schools have Department strongly believes that the number and identity of the persistently been turned around, restarted, closed, or indicators in this section provide the lowest-achieving schools as defined by transformed in the last year. Other best gauge for the extent to which the State. The State is also required to States may have to include an item in students graduate from high school in provide the definition that it uses to the LEA survey that they will be identify its ‘‘persistently lowest- four years with a regular high school distributing to respond to several of achieving schools.’’ States are also diploma and continue on to pursue a these requirements. The Department required to publicly report the number college education. This information estimates that each State will require an and identity of their Title I schools in should be a central factor in evaluating average of 16 hours of effort to respond improvement, corrective action, or the effectiveness of high schools in to these two requirements, for a total preparing young people for successful restructuring that are identified as persistently lowest-achieving and, of cost of $24,960. We further estimate that futures. However, to reduce the overall the 1,173 affected LEAs will need a total burden of complying with these those schools, the number and identity of schools that have been turned of 4 hours to respond to these two requirements, the Department has survey items. removed the requirement that course around, restarted, closed, or transformed completion data for students enrolling in the last year. Two commenters asserted that the out-of-State be collected and reported. The Department believes that States cost and time to comply with the Several commenters asserted that the will already have available the data supporting struggling schools data cost and time to comply with the college needed to report on the indicators requirements would exceed the enrollment and course completion data related to the total number and estimates in the NPR. The Department requirements would far exceed the percentage of schools in improvement, declines to adjust these burden corrective action, or restructuring that estimates as these commenters did not 25 See http://nces.ed.gov/programs/digest/d08/ have made progress on State provide specific recommended tables/dt08_192.asp. assessments, although they might need revisions.

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Charter Schools publicly report the required data or higher rates than other students by The Department believes that the other information, the plan must inexperienced, unqualified, or out-of- creation and maintenance of high- describe the process that the State will field teachers, the State must do so as quality charter schools is a key strategy undertake in order to have the means to soon as possible but no later than for promoting successful models of fully collect and publicly report such September 30, 2011. Accordingly, the school reform. To determine the level of data or information as soon as possible State must provide the date by which it State effort in this area, the Department but no later than September 30, 2011. will make its updated Teacher Equity As a part of this plan, the State will proposes to require States to provide, at Plan available to the public. The need to establish milestones and a date the State level and, if applicable, for Department assumes that all States will by which the State expects to reach each need to revise their plan to reflect efforts each LEA in the State, the number of milestone, describe the nature and they have made in this area as a result charter schools that are currently frequency of publicly available reports of the funds available to them through permitted to operate under State law that the State will publish on its this program and estimates that the and the number that are currently progress, and identify the amount and revisions will take 80 hours per State. operating. We expect that this source (i.e., whether Federal, State or The total State effort involved in information will be readily available local) of funds that will support the meeting this requirement is, therefore, and that States will need only a total of efforts necessary to collect and publicly 4,160 hours at a total cost of $124,800 one hour to respond to these two report the data or information. The level (assuming $30 per hour of State effort). requirements. of effort involved in preparing these In addition, as part of the planning In addition, the Department will elements of the plan will vary from requirements, the Department is require States to provide, for the State State to State based on individual State requiring each State to indicate whether and for each LEA in the State that progress in each reform area. For it provides student growth data to, at a operates charter schools, the number example, according to the Data Quality minimum, teachers of reading/language and percentage (including numerator Campaign’s 2008 survey of the 50 States arts and mathematics in grades in which and denominator) of charter schools that and the District of Columbia, 48 States the State administers assessments in have made progress on State have ‘‘a unique statewide student those subjects, in a manner that is assessments in reading/language arts identifier that connects student data timely and informs instructional and mathematics in the last year. across key databases across years,’’ 28 programs and, if the State does not Finally, the Department is requiring States have the ‘‘[a]bility to match currently do so, to describe a process States to provide, for the State and for student-level pre-K–12 and higher and timeline for doing so by September each LEA in the State that operates education data,’’ and 21 States have a 30, 2011. The Department understands charter schools, the number and identity ‘‘statewide teacher identifier with a that at least 15 States currently provide of charter schools that have closed teacher-student match.’’ States that have this type of information to their (including schools that were not taken these steps have built a teachers; the 15 States have been reauthorized to operate) within each of foundation for the efforts that will be approved to use ‘‘growth models’’ to the last five years and to indicate, for necessary to meet some of the inform determinations of adequate each such school, whether the closure requirements and will likely need to yearly progress under the ESEA. was for financial, enrollment, academic, spend less time completing these However, additional States are or other reasons. The Department elements of their plans. The Department implementing growth models for State- believes that SEAs will likely also have estimates that, in total, each of the 15 level accountability purposes, and most this information readily available States that currently provides student other States that are developing State (although some may need to obtain growth information to teachers will longitudinal data systems have included additional information from their LEAs) need an average of 439 hours to prepare teacher identifiers in those systems and, and will need eight hours to publicly these sections of the plan, and that the thus, have part of the infrastructure to report it. The Department assumes that other 37 States will require 547 hours; produce and report these data. the effort to respond to these thus, the total hours that will be The Department contacted several requirements will be limited to the 42 necessary to meet this requirement for experts in an effort to accurately States (including the District of the 50 States, the District of Columbia, estimate the State cost of calculating Columbia and Puerto Rico) that allow and Puerto Rico would be 26,824 hours, student growth data. According to these charter schools. The Department thus for a total cost of $804,720. For more experts, the State cost is not a function estimates that the State effort required to detailed estimates of costs for each of the student enrollment in a State; the respond to these indicators will total specific requirement, please see the two drivers of cost are an alignment 336 hours at a cost of $10,080. tables in the Paperwork Reduction Act analysis of the proficiency levels of the State assessments and the new State Plans of 1995 section of this notice. The final requirements provide for programming required in the State These requirements require States, as States to include in their plan under this assessment results database to enable a condition of receiving their remaining program the State’s Teacher Equity Plan the State to generate growth estimates funding for the Stabilization program, to if it was updated to fully reflect the for individual students. These experts submit a plan to the Department that steps the State is currently taking to estimated that the cost per State would describes the State’s current ability to ensure that students from low-income range from $100,000 to $500,000. Using fully collect and publicly report data for families and minority students are not these figures, the Department estimates the indicators and descriptors at least taught at higher rates than other that the total cost across the 37 States annually. If the State is currently able to students by inexperienced, unqualified, that the Department has not approved to fully collect and publicly report the data or out-of-field teachers. If the State has implement growth models would range or other information required by the not updated the State’s Teacher Equity from $3,700,000 to $18,500,000. indicator or descriptor, the State must Plan to fully reflect the steps the State In the NPR, the Department estimated provide the most recent data or is currently taking to ensure that that the State cost of estimating information with its plan. If a State is students from low-income families and individual teacher impact on student not currently able to fully collect and minority students are not taught at achievement, including the cost of

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analyzing the data, verifying with least $34,000,000 and up to almost review and verify the required data and teachers that the correct teacher-subject- $49,000,000 (from $52,672,000 if we other information; and the processes the student connection is made in the had required States to provide teachers State employs to ensure that, consistent system, and publishing the information with estimates of their impact, to with 34 CFR 99.31(b), the required data online in a user-friendly format would between $3,700,000 and $18,500,000 and other information are not made be 2 dollars per student. Two now that we have changed the publicly available in a manner that commenters suggested that the cost of requirement to have States provide personally identifies students, where providing reading/language arts and teachers with student growth data). applicable. The Department estimates mathematics teachers with student The Department is, however, that this management and oversight performance data is closer to $4 per requiring States to indicate whether section of the plan will require 80 hours student rather than the $2 per student they provide teachers of reading/ per State, for a total national estimate of estimated in the NPR, but these language arts and mathematics in grades 4,160 hours at a cost of $124,800. The commenters included the cost of the in which the State administers total estimated cost to States of data system in the $4 per student figure. assessments in those subjects with preparing the plans is, thus, $742,560. reports of individual teacher impact on As noted earlier, these estimates do not Total Estimated Costs include the cost of the data system as student achievement on those that requirement flows from the ARRA, assessments, and, if the State does not The Department estimates that the not these requirements. As a result, the provide those teachers with such total burden of responding to these Department considers that the estimate reports, describe the State’s process and requirements will be 294,076 hours and of $2 per affected student is a fair timeline for developing and between $13,042,280 and $27,842,280 estimate of the cost of implementing the implementing the means to provide for SEAs, 522,677 hours and proposed requirement. those teachers with such reports, $13,066,925 for LEAs, and 199,285 In addition, the Department estimated including the milestones that the State hours and $4,982,131 for IHEs, for a that 30 percent of all K–12 public school establishes toward developing and total burden of 1,016,038 hours at a cost teachers are teaching reading/language implementing those means, the date by of between $31,091,336 and arts or mathematics in the grades in which the State expects to reach each $45,891,336. Several commenters which the State administers assessments milestone, and any obstacles that may argued that the cost and time to comply and used this assumption to estimate prevent the State from developing and with the data requirements would far exceed the estimates in the notice. that the State assessment results for implementing those means. In addition, Another commenter asserted that the approximately 14,790,000 students (30 we are requiring States to describe the Department underestimated the burden percent of all students enrolled in nature and frequency of reports that the for the writing of a State plan, and public elementary and secondary State will provide to the public another that the Department schools) would be included in the regarding its progress in developing and underestimated the burden for calculations necessary for States to meet implementing those means and the preparing the application. As noted this requirement.26 Based on data on amount of funds the State is using or elsewhere in this section of the notice, public elementary and secondary will use to develop and implement we revised our estimates of the burden student enrollment by grade, however, those means, and whether the funds are involved in responding to Indicators the Department now estimates that or will be Federal, State, or local funds. We estimate that these sections of the (a)(4) and (a)(7). As these particular approximately 25,836,000 students are State plan will require an average of 129 commenters did not provide alternate in tested grades.27 Applying the revised hours for States to complete at a cost per estimates of the effort involved with number of students in tested grades to State of $3,870. These amounts are drafting a State plan or completing the this estimate, the total State cost of this included in the total estimated State application, we decline to revise our requirement would have been burden of completing the plan. estimates of those requirements. Many $51,672,000. The Department understands that an commenters expressed concern that the In the interest of reducing the overall important element of State efforts to estimates did not account for the costs of these requirements, the inform teachers of the estimated impact development of or enhancements to Department has decided to require of their teaching on student current State and LEA data systems and States to provide (in a manner that is achievement is providing professional software necessary to collect and report timely and informs instructional development for principals and teachers the data. We believe, however, that our programs) student growth data, rather on the interpretation and use of those estimates include the effort involved than estimates of individual teacher data in raising student achievement. with collecting and reporting the data, impact on student achievement to, at a However, since the planning and have added the estimate that States minimum, teachers of reading/language requirements would not require States would need to spend an average of arts and mathematics in grades in which to provide this professional $10,000 to develop and maintain a Web the State administers assessments in development, we have not included its site on which to post this information. those subjects. The Department cost in the estimated costs of these estimates that this change from the requirements. Benefits proposed to the final requirement in this In addition, the Department is The principal benefits of the section reduces the State burden by at requiring States to describe in their requirements are those resulting from plans the following: The entities the reporting and public availability of 26 According to the Digest of Education Statistics, responsible for the development, information on each State’s progress in 49,298,945 students were enrolled in public elementary and secondary schools in fall 2006. See execution, and oversight of the plan; the the four reform areas described in the http://nces.ed.gov/programs/digest/d08/tables/ agencies or organizations that will ARRA. The Department believes that the dt08_033.asp. provide any technical assistance or information gathered and reported as a 27 See http://nces.ed.gov/programs/digest/d08/ other support that is necessary; the result of these requirements will tables/dt08_034.asp. To determine the number of students in tested grades, we used the total number overall budget for the development, improve public accountability for of public school students enrolled in grades 3 execution, and oversight of the plan; the performance, help States, LEAs, and through 8, as well as grade 10, in fall of 2006. processes that the State employs to schools learn from one another and

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make improvements in what they are leadership, as a component of regulatory action. Expenditures are doing, and inform the ESEA performance-based compensation classified as transfers to States. reauthorization process. systems, or to identify schools in need A second major benefit is that better of improvement or teachers who may TABLE—ACCOUNTING STATEMENT public information on State and local require additional training or CLASSIFICATION OF ESTIMATED EX- progress in the four reform areas will professional development.30 PENDITURES likely spur more rapid progress on those A few commenters questioned the reforms, because States and LEAs that utility of the data to be collected. Category Transfers appear to be lagging in one or more Specifically, one commenter noted that areas may see a need to redouble their lack of context on teacher/principal Annual Monetized $11,500,425,885. Transfers. efforts. The Department believes that evaluation systems will render that data more rapid progress on the essential From Whom to Whom Federal Government minimally meaningful to the end user. to States. educational reforms will have major Another commenter cautioned that benefits nationally, and that these inconsistencies between States limit the The Stabilization program provides reforms have the potential to drive comparability of the data and effectively approximately $48.6 billion in formula dramatic improvements in student reduce the value of data collection grants to States.31 As previously noted, outcomes. efforts. A third commenter argued more the Department is awarding For example, statewide longitudinal generally that, while data-driven data systems are essential tools in Stabilization program funds in two decision making constitutes a priority advancing education reform. With these phases. In the first phase, the for the commenter’s State, much of the systems in place, States can use this Department awarded 67 percent of a data required would not contribute to data to evaluate the effectiveness of State’s Education Stabilization Fund improved educational outcomes for specific interventions, schools, allocation, unless the State students and, in fact, would divert principals, and teachers by tracking demonstrated that additional funds attention from developing the individual student achievement, high- were required to restore fiscal year 2009 infrastructure and relationships school graduation, and postsecondary State support for education, in which necessary to improve education. The enrollment and credit. They can, for case the Department awarded the State Department continues to believe, example, track the academic up to 90 percent of that allocation. In achievement of individual students over however, that the requirements will addition, the Department awarded 100 time, even if those students change have additional benefits to the extent percent of each State’s Government schools within the State during the that they provide States with incentives Services Fund allocation in Phase I. The course of their education. By analyzing to address inequities in the distribution Department will award the remainder of this information, decision-makers can of effective teachers, improve the a State’s Education Stabilization Fund determine if a student’s ‘‘achievement quality of State assessments, and allocation in the second phase. trajectory’’ will result in his or her being undergo intensive efforts to improve Approximately $11.5 billion will be college- or career-ready and can better struggling schools. Numerous studies available in Phase II. document the substantial impact of target services based on the student’s Paperwork Reduction Act of 1995 28 improved teaching on educational academic needs. This notice contains information The Department also believes that outcomes and the need to take action to collection requirements that are subject States’ implementation of these turn around the lowest-performing to review by the Office of Management requirements will lead to more schools, including high schools (and and Budget (OMB) under the Paperwork widespread development and their feeder middle schools) that enroll Reduction Act of 1995 (44 U.S.C. 3501– implementation of better teacher and a disproportionate number of the 3520). The Department has received principal evaluation systems. In students who fail to complete a high- particular, the availability of accurate, school education and receive a regular emergency approval for the information complete, and valid achievement data is high-school diploma. The Department collections described below under essential to implementing better systems believes that more widespread adoption Information Collection Reference of teacher and principal evaluation. of these reforms would have a Number 200910–1810–003. A description of the specific Value-added models, for example, can significant, positive impact on student information collection requirements is provide an objective estimate of the achievement. provided in the following tables along impact of teachers on student learning Although these benefits are not easily with estimates of the annual and achievement.29 Further, they can be quantified, the Department believes they recordkeeping burden for these used by schools, LEAs, or States to will exceed the projected costs. requirements. Included in an estimate is reward excellence in teaching or school Accounting Statement the time for collecting and tracking data, maintaining records, calculations, and 28 For example, see http:// As required by OMB Circular A–4 reporting. The first table presents the dataqualitycampaign.org/files/publications- (available at http:// _ _ estimated indicators burden for SEAs, dqc academic growth-100908.pdf and http:// www.Whitehouse.gov/omb/Circulars/ www.dataqualitycampaign.org/files/Meetings- the second table presents the estimated _ _ _ _ a004/a-4.pdf), in the following table, we DQC Quarterly Issue Brief 092506.pdf. indicators burden for LEAs, the third 29 have prepared an accounting statement See: Braun, Henry I. Using Student Progress To table presents the estimated indicators Evaluate Teachers: A Primer on Value-Added showing the classification of the burden for IHEs, and the fourth table Models. Educational Testing Service, Policy expenditures associated with the Information Center, 2005; Marsh, Julie A.; Pane, presents the estimated State plan provisions of this regulatory action. This John F.; Hamilton, Laura S. Making Sense of Data- burden for SEAs. Driven Decision Making in Education: Evidence table provides our best estimate of the BILLING CODE 4000–01–P from Recent RAND Research. Santa Monica, CA: Federal payments to be made to States RAND Corporation, 2006; and Sanders, William L. under this program as a result of this ‘‘Value-Added Assessment from Student 31 A table listing the allocations to States under Achievement Data: Opportunities and Hurdles.’’ the Stabilization program is available at: http:// Journal of Personnel Evaluation in Education, Vol. 30 Center for Educator Compensation Reform: www.ed.gov/programs/statestabilization/ 14, No. 4, p. 329–339, 2000. http://cecr.ed.gov/. funding.html.

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BILLING CODE 4000–01–C significant economic impact on a receiving funds under this program and Regulatory Flexibility Act Certification substantial number of small entities. small IHEs. The small entities that this regulatory This regulatory action will not have a The Secretary certifies that this action will affect are small LEAs significant economic impact on small regulatory action will not have a LEAs because they will be able to meet

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the costs of compliance with this public IHEs (9,187), the Department outcomes. The requirements that apply regulatory action using the funds estimates that small IHEs will be to IHEs should, in particular, spur more provided under this program. required to report credit completion rapid implementation of pre-K–16 State With respect to small IHEs, the U.S. data for a total of 7,442 students. For longitudinal data systems. Small Business Administration Size this requirement, the Department also Assessment of Educational Impact Standards define these institutions as estimates that IHEs will be able to report ‘‘small entities’’ if they are for-profit or the credit completion status of 20 first- In the NPR and in accordance with nonprofit institutions with total annual time freshmen per hour. Again, section 411 of the General Education revenue below $5,000,000 or if they are applying this data entry rate to the Provisions Act, 20 U.S.C. 1221e–4, we institutions controlled by small estimated number of first-time freshmen requested comment on whether these governmental jurisdictions, which are at small public IHEs in their home State, requirements do not require comprised of cities, counties, towns, the Department estimates that these transmission of information that any townships, villages, school districts, or IHEs will need to spend 372 hours to other agency or authority of the United special districts, with a population of respond to this requirement at a total States gathers or makes available. less than 50,000. Based on data from the cost of $9,300. The total cost of these Based on the response to the NPR and Department’s Integrated Postsecondary requirements for small IHEs is, on our review, we have determined that Education Data System (IPEDS), up to therefore, $39,950; $19,310 of this cost these final requirements do not require 532 small IHEs with revenues of less will be borne by small private IHEs, and transmission of information that any than $5 million may be affected by this $20,640 of the cost will be borne by other agency or authority of the United requirement; only 100 of these IHEs are small public IHEs. Based on the total States gathers or makes available. public. These small IHEs represent only number of small IHEs across the Nation, 15 percent of degree-granting IHEs. In the estimated cost per small private IHE Intergovernmental Review addition, only 161,155 students (0.7 is $45, and the estimated cost per small This program is subject to Executive percent) enrolled in degree-granting public IHE is $206. The Department has, Order 12372 and the regulations in 34 IHEs in fall 2007 attended these small therefore, determined that the CFR part 79. One of the objectives of the institutions; just 60,391 of these requirements will not represent a Executive Order is to foster an students are enrolled in small, degree- significant burden on small not-for- intergovernmental partnership and a granting public IHEs. As the burden for profit IHEs. It is also important to note strengthened federalism. The Executive indicators (c)(11) and (c)(12) is driven that States may use their Government Order relies on processes developed by by the number of students for whom Services Fund allocations to help small State and local governments for IHEs would be required to submit data, IHEs meet the costs of complying with coordination and review of proposed small IHEs will require significantly less the requirements that affect them, and Federal financial assistance. effort to adhere to these requirements public IHEs may use Education than will be the case for larger IHEs. Stabilization Fund dollars they receive This document provides early Based on IPEDS data, the Department for that purpose. notification of our specific plans and estimates that 24,517 of these students In addition, the Department believes actions for this program. are first-time freshmen. As stated earlier the benefits provided under this Accessible Format: Individuals with in the Summary of Costs and Benefits regulatory action will outweigh the disabilities can obtain this document in section of this notice, the Department burdens on these institutions of an accessible format (e.g., braille, large estimates that, as required by indicator complying with the requirements. One print, audiotape, or computer diskette) (c)(11), IHEs will be able to confirm the of these benefits will be the provision of on request to the program contact enrollment of 20 first-time freshmen per better information on student success in person listed under FOR FURTHER hour. Applying this estimate to the postsecondary education to INFORMATION CONTACT. estimated number of first-time freshmen policymakers, educators, parents, and Electronic Access to This Document: at small IHEs, the Department estimates other stakeholders. The Department You can view this document, as well as that these IHEs will need to spend 1,226 believes that the information gathered all other documents of this Department hours to respond to this requirement at and reported as a result of these published in the Federal Register, in a total cost of $30,650 (assuming a cost requirements will improve public text or Adobe Portable Document of $25 per hour). accountability for performance; help Format (PDF) on the Internet at the The effort involved in reporting the States, LEAs, and schools learn from following site: http://www.ed.gov/news/ number of students enrolling in a public one another and improve their decision- fedregister. To use PDF you must have IHE in their home State who complete making; and inform Federal Adobe Acrobat Reader, which is at least one year’s worth of college policymaking. available free at this site. credit applicable toward a degree within A second major benefit is that better Note: The official version of this document two years as required by indicator public information on State and local is the document published in the Federal (c)(12) will also apply to small IHEs, but progress in the four reform areas will Register. Free Internet access to the official will be limited to students who enroll likely spur more rapid progress on those edition of the Federal Register and the Code in public IHEs in their home State. As reforms, because States and LEAs that of Federal Regulations is available on GPO discussed earlier in the Summary of appear to be lagging in one area or Access at: http://www.gpoaccess.gov/nara/ Costs and Benefits section of this notice, another may see a need to redouble their index.html. the Department estimates that 81 efforts. The Department believes that percent of first-time freshmen who more rapid progress on the essential Dated: November 6, 2009. graduate from public high schools enroll educational reforms will have major Arne Duncan, in IHEs in their home State. Applying benefits nationally, and that these Secretary of Education. this percentage to the estimated number reforms have the potential to drive [FR Doc. E9–27161 Filed 11–9–09; 11:15 am] of first-time freshmen enrolled in small dramatic improvements in student BILLING CODE 4000–01–P

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Part IV

The President Proclamation 8451—Honoring the Victims of the Tragedy at Fort Hood, Texas Proclamation 8452—World Freedom Day, 2009

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Federal Register Presidential Documents Vol. 74, No. 217

Thursday, November 12, 2009

Title 3— Proclamation 8451 of November 6, 2009

The President Honoring the Victims of the Tragedy at Fort Hood, Texas

By the President of the United States of America

A Proclamation Our Nation’s thoughts and prayers are with the service members, civilians, and families affected by the tragic events at Fort Hood, Texas. The brave victims, who risked their lives to protect their fellow countrymen, serve as a constant source of strength and inspiration to all Americans. We ask God to watch over the fallen, the wounded, and all those who are suffering at this difficult hour. As a mark of respect honoring the victims of the tragedy at Fort Hood, Texas, I hereby order, by the authority vested in me by the Constitution and the laws of the United States of America, that the flag of the United States shall be flown at half-staff at the White House and upon all public buildings and grounds, at all military posts and naval stations, and on all naval vessels of the Federal Government in the District of Columbia and throughout the United States and its Territories and possessions until sunset, Tuesday, November 10, 2009. I also direct that the flag shall be flown at half-staff for the same length of time at all United States embassies, legations, consular offices, and other facilities abroad, including all military facilities and naval vessels and stations. IN WITNESS WHEREOF, I have hereunto set my hand this sixth day of November, in the year of our Lord two thousand nine, and of the Independ- ence of the United States of America the two hundred and thirty-fourth.

[FR Doc. E9–27364 Filed 11–10–09; 11:15 am] Billing code 3195–W9–P

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Proclamation 8452 of November 9, 2009

World Freedom Day, 2009

By the President of the United States of America

A Proclamation Twenty years ago today, the Wall came down in Berlin and both a country and a continent came together. After thousands of East Berliners flooded through checkpoints into West Berlin, border restrictions dissolved across Eastern Bloc countries. The Iron Curtain that divided Europe for decades finally fell, ushering in a new era of freedom and cooperation. On this anniversary, we are reminded that no challenge is too great for a world united in common purpose. After the Berlin Wall fell, oppressive regimes across the globe gave way. From Kiev to Cape Town, prison camps closed and democracy’s doors were unlocked for millions who had known only tyranny. Markets opened too, spreading information and technology that empowered once-insolvent nations to achieve prosperity. Twenty years later, our world is more inter- connected than at any time in human history, giving rise to new opportunities for shared progress. Today, the barriers that challenge our world are not walls of cement and iron, but ones of fear, irresponsibility, and indifference. History reminds us that such walls can be torn down, but where they still exist we must work with all nations to strengthen civil societies, support democratic institu- tions and the rule of law, and promote free and fair electoral processes. Upholding these principles into the 21st century will require America’s enduring commitment and steady leadership. From our first days as a Nation, Americans have felt a sense of urgency and determination to promote liberty and release the potential within each individual to contribute to the common good. On World Freedom Day, we celebrate the thriving democracies of Central and Eastern Europe, and we honor their citizens’ right to choose their own destinies and contribute to their nations’ future success. NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim November 9, 2009, as World Freedom Day. I call upon the people of the United States to observe this day in fellowship with other nations and people of the world with appropriate ceremonies and activities, reaffirming our dedication to freedom and democracy.

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IN WITNESS WHEREOF, I have hereunto set my hand this ninth day of November, in the year of our Lord two thousand nine, and of the Independ- ence of the United States of America the two hundred and thirty-fourth.

[FR Doc. E9–27366 Filed 11–10–09; 11:15 am] Billing code 3195–W9–P

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Reader Aids Federal Register Vol. 74, No. 217 Thursday, November 12, 2009

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING NOVEMBER

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. 14 CFR Presidential Documents 2 CFR Executive orders and proclamations 741–6000 382...... 58189 23...... 57060 25...... 56702, 56706 The United States Government Manual 741–6000410 vc 3 CFR 39 ...... 56710, 56713, 56717, Other Services Proclamations: 57402, 57405, 57408, 57411, Electronic and on-line services (voice) 741–6020 8444...... 57225 57559, 57561, 57564, 57567, Privacy Act Compilation 741–6064 8445...... 57227 57571, 57574, 57577, 57578, Public Laws Update Service (numbers, dates, etc.) 741–6043 8446...... 57229 58191, 58195 8447...... 57231 71...... 57246 TTY for the deaf-and-hard-of-hearing 741–6086 8448...... 57233 97...... 58200, 58202 8449...... 57235 Proposed Rules: ELECTRONIC RESEARCH 8450...... 57237 39 ...... 56748, 57264, 57266, 8451...... 58529 World Wide Web 57268, 57271, 57273, 57277 8452...... 58531 71 ...... 57616, 57617, 57618, Full text of the daily Federal Register, CFR and other publications Executive Orders: 57620, 57621 is located at: http://www.gpoaccess.gov/nara/index.html 13183 (amended by Federal Register information and research tools, including Public 13517) ...... 57239 15 CFR Inspection List, indexes, and links to GPO Access are located at: 13462 (amended by 744...... 57061 http://www.archives.gov/federallregister 13516) ...... 57241 774...... 57581 E-mail 13494 (amended by 13517) ...... 57239 16 CFR FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 13516...... 56521, 57241 Proposed Rules: an open e-mail service that provides subscribers with a digital 13517...... 57239 305...... 57950 form of the Federal Register Table of Contents. The digital form Administrative Orders: of the Federal Register Table of Contents includes HTML and Memorandums: 17 CFR PDF links to the full text of each document. Memo. of Nov. 5, 4...... 57585 To join or leave, go to http://listserv.access.gpo.gov and select 2009 ...... 57881 211...... 57062 Online mailing list archives, FEDREGTOC-L, Join or leave the list Notices: 248...... 58204 (or change settings); then follow the instructions. Notice of Nov. 6, 18 CFR PENS (Public Law Electronic Notification Service) is an e-mail 2009 ...... 58187 service that notifies subscribers of recently enacted laws. 5 CFR 375...... 57246 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html Proposed Rules: 19 CFR and select Join or leave the list (or change settings); then follow 731...... 56747 Proposed Rules: the instructions. 1604...... 57125 113...... 57125 FEDREGTOC-L and PENS are mailing lists only. We cannot 1651...... 57125 191...... 57125 respond to specific inquiries. 1653...... 57125 1690...... 57125 20 CFR Reference questions. Send questions and comments about the Federal Register system to: [email protected] 7 CFR 1910...... 57883 Proposed Rules: The Federal Register staff cannot interpret specific documents or 11...... 57401 404 ...... 57970, 57971, 57972 regulations. 301...... 57243 319...... 56523 Reminders. Effective January 1, 2009, the Reminders, including 21 CFR 354...... 57057 Rules Going Into Effect and Comments Due Next Week, no longer 966...... 57057 73...... 57248 appear in the Reader Aids section of the Federal Register. This 983...... 56526, 565231 528...... 58205 information can be found online at http://www.regulations.gov. 984...... 56693 Proposed Rules: CFR Checklist. Effective January 1, 2009, the CFR Checklist no 987...... 56697 4...... 57973 longer appears in the Federal Register. This information can be 1710...... 56542 26 CFR found online at http://bookstore.gpo.gov/. Proposed Rules: 920...... 58216 1...... 57251, 57252 FEDERAL REGISTER PAGES AND DATE, NOVEMBER 1710...... 56569 602...... 57252 29 CFR 56521–56692...... 2 9 CFR 56693–57056...... 3 78...... 57245 Proposed Rules: 57057–57238...... 4 1202...... 56750, 57427 10 CFR 1206...... 56750, 57427 57239–57400...... 5 Proposed Rules: 1910...... 57278, 57976 57401–57558...... 6 430...... 56928 1915...... 57278 57559–57882...... 9 431...... 57738 1926...... 57278 57883–58188...... 10 58189–58532...... 12 13 CFR 31 CFR 126...... 56699 285...... 56719

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501...... 57593 3001...... 57252 424...... 58078 54...... 57982 3004...... 57252 484...... 58078 73 ...... 57281, 57282, 57283 32 CFR 3020...... 56544 Proposed Rules: 311...... 58205 Proposed Rules: 410...... 57127 49 CFR 806b...... 57414 3050...... 57280 413...... 57127 564...... 58213 414...... 57127 Proposed Rules: 571...... 58213 806b...... 57427 40 CFR Proposed Rules: 51...... 56721 44 CFR 571...... 57623 33 CFR 52 ...... 56721, 57048, 57051, 65...... 57921 633...... 57986 117 ...... 57884, 58209, 58210 57074, 57612, 57904, 57907 67 ...... 57923, 57928, 57944 165 ...... 57070, 57415, 57886, 141...... 57908 Proposed Rules: 57888, 58211 180 ...... 57076, 57078, 57081 67...... 57979 50 CFR Proposed Rules: 261...... 57418 17...... 56978 117...... 57975 300...... 57085 45 CFR 20...... 57615 161...... 58223 721...... 57424 82...... 58189 300...... 57105 165...... 57427, 58223 Proposed Rules: 622...... 57261 51...... 57126 46 CFR 648...... 56562 34 CFR 52 ...... 56754, 57049, 57055, Proposed Rules: 660...... 57117, 57425 Chapter 2...... 58436 57126, 57622, 57978 540...... 56756 679 ...... 56728, 56734, 57262, 70...... 57126 57949 47 CFR 38 CFR 71...... 57126 Proposed Rules: 3...... 57072, 58232 721...... 57430 2...... 57092 17 ...... 56757, 56770, 57804, 200...... 57608 25...... 57092 57987 42 CFR 73 ...... 56726, 56727, 57103, 223...... 57436 39 CFR 34...... 56547 57104, 57260 224...... 57436 20...... 57890 52...... 57918 Proposed Rules: 635...... 57128 111...... 57899 409...... 58078 36...... 57982 648...... 57134, 58234

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text will also be made United States posthumously. available on the Internet from (Nov. 6, 2009; 123 Stat. 2999) LIST OF PUBLIC LAWS GPO Access at http:// S. 832/P.L. 111–95 www.gpoaccess.gov/plaws/ Public Laws Electronic This is a continuing list of index.html. Some laws may To amend title 36, United Notification Service public bills from the current not yet be available. States Code, to grant a (PENS) session of Congress which Federal charter to the Military have become Federal laws. It H.R. 1209/P.L. 111–91 Officers Association of may be used in conjunction Medal of Honor America, and for other with ‘‘P L U S’’ (Public Laws Commemorative Coin Act of purposes. (Nov. 6, 2009; 123 PENS is a free electronic mail Update Service) on 202–741– 2009 (Nov. 6, 2009; 123 Stat. Stat. 3001) 6043. This list is also 2980) notification service of newly enacted public laws. To available online at http:// H.R. 3548/P.L. 111–92 S. 1694/P.L. 111–96 subscribe, go to http:// www.archives.gov/federal- Worker, Homeownership, and To allow the funding for the register/laws.html. Business Assistance Act of interoperable emergency listserv.gsa.gov/archives/ publaws-l.html The text of laws is not 2009 (Nov. 6, 2009; 123 Stat. communications grant program published in the Federal 2984) established under the Digital Register but may be ordered H.R. 3606/P.L. 111–93 Television Transition and Note: This service is strictly in ‘‘slip law’’ (individual Credit CARD Technical Public Safety Act of 2005 to for E-mail notification of new pamphlet) form from the Corrections Act of 2009 (Nov. remain available until laws. The text of laws is not Superintendent of Documents, 6, 2009; 123 Stat. 2998) expended through fiscal year available through this service. U.S. Government Printing H.J. Res. 26/P.L. 111–94 2012, and for other purposes. PENS cannot respond to Office, Washington, DC 20402 Proclaiming Casimir Pulaski to (Nov. 6, 2009; 123 Stat. 3005) specific inquiries sent to this (phone, 202–512–1808). The be an honorary citizen of the Last List November 5, 2009 address.

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