9–28–10 Tuesday Vol. 75 No. 187 Sept. 28, 2010

Pages 59605–59932

VerDate Mar 15 2010 18:26 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00001 Fmt 4710 Sfmt 4710 E:\FR\FM\28SEWS.LOC 28SEWS hsrobinson on DSK69SOYB1PROD with PROPOSALS6 II Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010

The FEDERAL REGISTER (ISSN 0097–6326) is published daily, SUBSCRIPTIONS AND COPIES Monday through Friday, except official holidays, by the Office of the Federal Register, National Archives and Records PUBLIC Administration, Washington, DC 20408, under the Federal Register Subscriptions: Act (44 U.S.C. Ch. 15) and the regulations of the Administrative Paper or fiche 202–512–1800 Committee of the Federal Register (1 CFR Ch. I). The Assistance with public subscriptions 202–512–1806 Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402 is the exclusive distributor of the official General online information 202–512–1530; 1–888–293–6498 edition. Periodicals postage is paid at Washington, DC. Single copies/back copies: The FEDERAL REGISTER provides a uniform system for making Paper or fiche 202–512–1800 available to the public regulations and legal notices issued by Assistance with public single copies 1–866–512–1800 Federal agencies. These include Presidential proclamations and (Toll-Free) Executive Orders, Federal agency documents having general FEDERAL AGENCIES applicability and legal effect, documents required to be published Subscriptions: by act of Congress, and other Federal agency documents of public interest. Paper or fiche 202–741–6005 Documents are on file for public inspection in the Office of the Assistance with Federal agency subscriptions 202–741–6005 Federal Register the day before they are published, unless the issuing agency requests earlier filing. For a list of documents FEDERAL REGISTER WORKSHOP currently on file for public inspection, see www.federalregister.gov. The seal of the National Archives and Records Administration THE FEDERAL REGISTER: WHAT IT IS AND HOW TO USE IT authenticates the Federal Register as the official serial publication FOR: Any person who uses the Federal Register and Code of established under the Federal Register Act. Under 44 U.S.C. 1507, Federal Regulations. the contents of the Federal Register shall be judicially noticed. The Federal Register is published in paper and on 24x microfiche. WHO: Sponsored by the Office of the Federal Register. It is also available online at no charge as one of the databases WHAT: Free public briefings (approximately 3 hours) to present: on GPO Access, a service of the U.S. Government Printing Office. 1. The regulatory process, with a focus on the Federal The online edition of the Federal Register, www.gpoaccess.gov/ Register system and the public’s role in the develop- nara, available through GPO Access, is issued under the authority of the Administrative Committee of the Federal Register as the ment of regulations. official legal equivalent of the paper and microfiche editions (44 2. The relationship between the Federal Register and U.S.C. 4101 and 1 CFR 5.10). It is updated by 6 a.m. each day Code of Federal Regulations. the Federal Register is published and includes both text and graphics from Volume 59, Number 1 (January 2, 1994) forward. 3. The important elements of typical Federal Register doc- uments. For more information about GPO Access, contact the GPO Access User Support Team, call toll free 1-888-293-6498; DC area 202- 4. An introduction to the finding aids of the FR/CFR sys- 512-1530; fax at 202-512-1262; or via e-mail at [email protected]. tem. The Support Team is available between 7:00 a.m. and 9:00 p.m. WHY: To provide the public with access to information nec- Eastern Time, Monday–Friday, except official holidays. essary to research Federal agency regulations which di- The annual subscription price for the Federal Register paper rectly affect them. There will be no discussion of spe- edition is $749 plus postage, or $808, plus postage, for a combined cific agency regulations. Federal Register, Federal Register Index and List of CFR Sections Affected (LSA) subscription; the microfiche edition of the Federal llllllllllllllllll Register including the Federal Register Index and LSA is $165, plus postage. Six month subscriptions are available for one-half WHEN: Tuesday, October 5, 2010 the annual rate. The prevailing postal rates will be applied to 9 a.m.–12:30 p.m. orders according to the delivery method requested. The price of a single copy of the daily Federal Register, including postage, WHERE: Office of the Federal Register is based on the number of pages: $11 for an issue containing Conference Room, Suite 700 less than 200 pages; $22 for an issue containing 200 to 400 pages; 800 North Capitol Street, NW. and $33 for an issue containing more than 400 pages. Single issues of the microfiche edition may be purchased for $3 per copy, Washington, DC 20002 including postage. Remit check or money order, made payable RESERVATIONS: (202) 741–6008 to the Superintendent of Documents, or charge to your GPO Deposit Account, VISA, MasterCard, American Express, or Discover. Mail to: U.S. Government Printing Office—New Orders, P.O. Box 979050, St. Louis, MO 63197-9000; or call toll free 1- 866-512-1800, DC area 202-512-1800; or go to the U.S. Government Online Bookstore site, see bookstore.gpo.gov. There are no restrictions on the republication of material appearing in the Federal Register. How To Cite This Publication: Use the volume number and the page number. Example: 75 FR 12345. Postmaster: Send address changes to the Superintendent of Documents, Federal Register, U.S. Government Printing Office, Washington, DC 20402, along with the entire mailing label from the last issue received.

.

VerDate Mar 15 2010 18:26 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00002 Fmt 4710 Sfmt 4710 E:\FR\FM\28SEWS.LOC 28SEWS hsrobinson on DSK69SOYB1PROD with PROPOSALS6 III

Contents Federal Register Vol. 75, No. 187

Tuesday, September 28, 2010

African Development Foundation Commission of Fine Arts NOTICES NOTICES Meetings: Meetings: Board of Directors, 59679 Commission of Fine Arts, 59697–59698

Agriculture Department Commodity Futures Trading Commission See Animal and Plant Health Inspection Service PROPOSED RULES See Foreign Agricultural Service Agricultural Swaps, 59666–59670 See Forest Service NOTICES Comptroller of the Currency Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 59679–59680 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 59799 Air Force Department RULES Personnel Review Boards, 59613–59616 Defense Department See Air Force Department NOTICES Alcohol and Tobacco Tax and Trade Bureau Establishments of Federal Advisory Committees: NOTICES Task Force on Care, Management, and Transition of Agency Information Collection Activities; Proposals, Recovering Wounded, Ill, and Injured Member of Submissions, and Approvals, 59797–59798 Armed Forces, 59698–59699

Animal and Plant Health Inspection Service Education Department RULES NOTICES National Veterinary Accreditation Program: Funding Opportunities: Currently Accredited Veterinarians Performing Technology and Media Services for Individuals with Accredited Duties and Electing to Participate, 59605– Disabilities, 59699–59704 59606 Performance Review Board Membership, 59704–59705 Centers for Disease Control and Prevention Energy Department NOTICES See Federal Energy Regulatory Commission Meetings: PROPOSED RULES Disease, Disability, and Injury Prevention and Control Energy Efficiency Program for Certain Commercial and Special Emphasis Panel, 59731–59732 Industrial Equipment: Public Health and Chemical Exposures Leadership Commercial and Industrial Electric Motors; Document Council, 59727–59728 Availability; Meetings, 59657–59658 NOTICES Children and Families Administration Meetings: NOTICES Hydrogen and Fuel Cell Technical Advisory Committee, Agency Information Collection Activities; Proposals, 59705 Submissions, and Approvals: Innovative Strategies for Increasing Self-Sufficiency, Environmental Protection Agency 59726 RULES Supplemental Determinations for Renewable Fuels Coast Guard Produced under Final RFS2 Program from Canola Oil, RULES 59622–59634 Notification of Arrival in U.S. Ports; Certain Dangerous PROPOSED RULES Cargoes, 59617–59620 Public Hearing Locations for Proposed Fuel Economy Safety Zones: Labels, 59673–59674 Natchez Fireworks; Lower Mississippi River, Mile Marker NOTICES 365.5 to Mile Marker 363, Natchez, MS, 59620–59622 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Commerce Department Aerospace Manufacturing and Rework Industry, 59710– See Foreign-Trade Zones Board 59711 See International Trade Administration Confidentiality Rules (Renewal), 59708–59710 See National Oceanic and Atmospheric Administration Audit Program for Texas Flexible Permit Holders, 59711– NOTICES 59716 Meetings: Draft Toxicological Reviews: National Advisory Council on Innovation and Urea; Support of Summary Information on Integrated Entrepreneurship, 59685–59686 Risk Information System (IRIS), 59716–59717

VerDate Mar<15>2010 18:27 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00001 Fmt 4748 Sfmt 4748 E:\FR\FM\28SECN.SGM 28SECN hsrobinson on DSK69SOYB1PROD with PROPOSALS5 IV Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Contents

Federal Aviation Administration Federal Trade Commission RULES RULES Airworthiness Directives: Regulations under 1986 Comprehensive Smokeless Tobacco Pacific Aerospace Limited Models FU24–954 and Health Education Act, 59609–59610 FU24A–954 Airplanes, 59606–59608 NOTICES Amendments of Class D and E Airspace; Establishments of Proposed Consent Agreements: Class E Airspace: US Search, Inc. and US Search, LLC; Analysis of Patuxent River, MD, 59608–59609 Proposed Consent Order to Aid Public Comment, PROPOSED RULES 59718–59720 Airworthiness Directives: SOCATA Model TBM 700 Airplanes, 59658–59661 Fine Arts Commission Update of Overflight Fees, 59661–59666 See Commission of Fine Arts Federal Communications Commission Fish and Wildlife Service RULES RULES Radio Broadcast Services and Multichannel Video and Endangered and Threatened Wildlife and Plants: Cable Television Service: Determination of Endangered Status for African Penguin, Clarification Regarding Information Collection 59645–59656 Requirements, 59645 PROPOSED RULES Endangered and Threatened Wildlife and Plants: Federal Emergency Management Agency Determination for the Gunnison Sage-grouse as a RULES Threatened or Endangered Species, 59804–59863 Final Flood Elevation Determinations, 59634–59645 NOTICES Food and Drug Administration Agency Information Collection Activities; Proposals, RULES Submissions, and Approvals: Implantation and Injectable Dosage Form New Animal Federal Emergency Management Agency Individual Drugs: Assistance Customer Satisfaction Surveys, 59732– Firocoxib, 59610–59611 59733 Microbiology Devices: Reclassification of Herpes Simplex Virus Types 1 and 2 Federal Energy Regulatory Commission Serological Assays; Confirmation of Effective Date, NOTICES 59611 Baseline Filings: PROPOSED RULES SourceGas Distribution LLC; Bay Gas Storage, LLC; Immunology and Microbiology Devices: Enterprise Texas Pipeline LLC et al., 59705 Reclassification of Herpes Simplex Virus Serological Preliminary Permit Applications Accepted for Filing and Assay Device, 59670–59672 Soliciting Comments, Motions to Intervene, etc.: NOTICES Coastal Hydropower, LLC, 59706 Agency Information Collection Activities; Proposals, Preliminary Permit Applications: Submissions, and Approvals: Coastal Hydropower, LLC, 59707 Designated New Animal Drugs for Minor Use and Minor Medicine Bow Hydro, LLC, 59706–59707 Species, 59721–59722 Rate Elections: Preparing Claim of Categorical Exclusion or Public Service Co. of Colorado, 59707 Environmental Assessment for Submission, etc., Revocations of Market-Based Rate Authority: 59722–59723 Electric Quarterly Reports, BM2 LLC and DJGW, LLC, Draft Guidance for Industry and Food and Drug 59707–59708 Administration Staff: Class II Special Controls Guidance Document; Herpes Federal Highway Administration Simplex Virus Types 1 and 2 Serological Assays; NOTICES Availability, 59726–59727 Agency Information Collection Activities; Proposals, Meetings: Submissions, and Approvals, 59782–59784 Anesthetic and Life Support Drugs and Drug Safety and Limitations on Claims for Judicial Reviews of Actions by Risk Management Advisory Committees, 59730– FHWA and Other Federal Agencies: 59731 Final Federal Agency Actions on Proposed Highway in Gastrointestinal Drugs Advisory Committee, 59732 New Hampshire, 59787–59788 Vaccines and Related Biological Products Advisory Committee, 59729–59730 Federal Motor Carrier Safety Administration NOTICES Foreign Agricultural Service Changes in Application Due Dates: NOTICES Fiscal Year 2011 Safety Grants and Solicitation for Trade Adjustment Assistance for Farmers: Applications, 59784–59787 100 Percent Puerto Rico Coffee Export Board, Inc.; Coffee Qualifications Of Drivers: Filed under 2011 Fiscal Year (FY) Program, 59684 Diabetes Mellitus; Exemption Applications, 59788–59792 Kansas Sheep Association; Wool filed under 2011 Fiscal Vision; Exemption Applications, 59793–59795 Year (FY) Program, 59684–59685 Kona Coffee Farmers Association; Coffee Filed under Federal Reserve System 2011 Fiscal Year (FY) Program, 59683–59684 NOTICES Lamb Producers from Idaho, Utah, and Wyoming; Lamb Agency Information Collection Activities; Proposals, Filed under 2011 Fiscal Year (FY) Program, 59681– Submissions, and Approvals, 59717–59718 59682

VerDate Mar<15>2010 18:27 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00002 Fmt 4748 Sfmt 4748 E:\FR\FM\28SECN.SGM 28SECN hsrobinson on DSK69SOYB1PROD with PROPOSALS5 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Contents V

Lamb Producers from Ohio; Lamb Filed under 2011 Housing and Urban Development Department Program, 59685 NOTICES Maine State Pomological Society; Apples Filed under Agency Information Collection Activities; Proposals, 2011 Fiscal Year (FY) Program, 59684 Submissions, and Approvals: Montana Wool Growers Association; Lamb Filed under Application for Insurance of Advance of Mortgage 2011 Fiscal Year (FY) Program, 59681 Proceeds, 59734–59735 Prune Bargaining Association; Dried Prunes Filed under Record of Employee Interview, 59735 2011 Fiscal Year (FY) Program, 59683 Privacy Act; Systems of Records, 59735–59738 Wool Producers from Idaho, Utah, and Wyoming; Wool Filed under 2011 Fiscal Year (FY) Program, 59682 Indian Affairs Bureau Wool Producers from Montana and Montana Wool PROPOSED RULES Growers Association; Wool Filed under 2011 Fiscal No Child Left Behind School Facilities and Construction Year (FY) Program, 59682–59683 Negotiated Rulemaking Committee; Meeting, 59672– Wool Producers from Ohio; Wool Filed under 2011 Fiscal 59673 Year (FY) Program, 59682 Interior Department See Fish and Wildlife Service Foreign Assets Control Office See Indian Affairs Bureau RULES See Land Management Bureau Iranian Transactions Regulations, 59611–59613 See Reclamation Bureau

International Trade Administration Foreign-Trade Zones Board NOTICES NOTICES Court Decisions Not in Harmony with Final Results of Applications for Reorganization and Expansion under Administrative Reviews: Alternative Site Framework: Certain Hot-Rolled Carbon Steel Flat Products from India, Foreign-Trade Zone 203, Moses Lake, WA, 59688–59689 59689–59690 Extensions Of Subzones: Foreign-Trade Zone 169 – Manatee County, FL; Aso LLC, International Trade Commission Sarasota County, FL, 59695–59696 NOTICES Determinations to Conduct Full Five-Year Reviews Forest Service Concerning Countervailing and Antidumping Duty NOTICES Orders: Meetings: Stainless Steel Plate from Belgium, Italy, Korea, South El Dorado County Resource Advisory Committee, 59680– Africa, and Taiwan, 59744 59681 Determinations to Conduct Full Five-Year Reviews Eleven Point Resource Advisory Committee, 59680 Concerning Countervailing Duty Orders: Stainless Steel Sheet and Strip from Germany, Italy, Japan, Korea, Mexico, and Taiwan (Second Review), Government Accountability Office 59744–59745 NOTICES Investigations: Letters Of Nomination: Certain Components for Installation of Marine Autopilots Methodology Committee of Patient-Centered Outcomes with GPS OR IMU, 59745–59746 Research Institute (PCORI), 59720 Justice Department NOTICES Health and Human Services Department Agency Information Collection Activities; Proposals, See Centers for Disease Control and Prevention Submissions, and Approvals: See Children and Families Administration Request for Registration under 1962 Gambling Devices See Food and Drug Administration Act, 59746 See Health Resources and Services Administration Lodging of Proposed Consent Decrees: See National Institutes of Health United States v. Appleton Papers Inc., 59746–59747 PROPOSED RULES Negotiated Rulemaking Committee on Designation of Land Management Bureau Medically Underserved Populations and Health NOTICES Professional Shortage Areas: Proposed Reinstatements of Terminated Oil and Gas Leases: Meeting, 59674 MAB Resources LLC, 59741 Proposed Withdrawals of Public Lands from Settlement, Health Resources and Services Administration Sale and Entry: NOTICES Montana; Opportunity for Public Meeting, 59741–59742 Agency Information Collection Activities; Proposals, Public Land Orders: Submissions, and Approvals, 59720–59721 No. 7750; Oregon; Partial Revocation of Secretarial Order (Dated January 20, 1910), 59743–59744 No. 7751; Michigan; Revocation of Withdrawal Homeland Security Department Established by Executive Order (Dated January 19, See Coast Guard 1861), 59743 See Federal Emergency Management Agency No. 7752; Washington; Partial Revocation of Light Station See U.S. Customs and Border Protection Reservation, 59742–59743

VerDate Mar<15>2010 18:27 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00003 Fmt 4748 Sfmt 4748 E:\FR\FM\28SECN.SGM 28SECN hsrobinson on DSK69SOYB1PROD with PROPOSALS5 VI Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Contents

Maritime Administration Postal Regulatory Commission NOTICES NOTICES Agency Information Collection Activities; Proposals, Meetings; Sunshine Act, 59750 Submissions, and Approvals: America’s Marine Highway Program, 59784 Public Debt Bureau NOTICES National Aeronautics and Space Administration Senior Executive Service Members, Public Debt NOTICES Performance Review Board, 59800 Meetings: NASA Advisory Council, 59747 Reclamation Bureau NOTICES Agency Information Collection Activities; Proposals, National Highway Traffic Safety Administration Submissions, and Approvals, 59738–59741 PROPOSED RULES Make Inoperative Exemptions: Securities and Exchange Commission Vehicle Modifications to Accommodate People with RULES Disabilities, Side Impact Protection, 59674–59678 Commission Guidance on Presentation of Liquidity and Public Hearing Locations for Proposed Fuel Economy Capital Resources Disclosures in Managements Labels, 59673–59674 Discussion and Analysis, 59894–59897 PROPOSED RULES National Institutes of Health Short–Term Borrowings Disclosure, 59866–59891 NOTICES NOTICES Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals, Submissions, and Approvals: Submissions, and Approvals, 59750–59752 Testing Successful Health Communications Surrounding Fifteenth Charges Amendment to the Second Restatement Aging-Related Issues, etc., 59723–59724 of the Consolidated Tape Association Plan, 59752– Transfusion-transmitted Retrovirus and Hepatitis Virus 59753 Rates and Risk Factors, etc., 59724–59725 Self-Regulatory Organizations; Proposed Rule Changes: Meetings: BATS Exchange, Inc.; Chicago Board Options Exchange, Center for Scientific Review, 59728–59729 Inc.; Chicago Stock Exchange, Inc. et al., 59755– National Institute of Mental Health, 59731 59771 Chicago Board Options Exchange, Inc., 59773–59777 National Oceanic and Atmospheric Administration Financial Industry Regulatory Authority, Inc., 59771– PROPOSED RULES 59772 Endangered and Threatened Wildlife and Plants: NASDAQ OMX BX, Inc., 59777–59779 Proposed Rulemaking to Designate Critical Habitat for NYSE Amex LLC, 59753–59755, 59772–59773 Black Abalone, 59900–59931 Options Clearing Corp., 59779–59780 NOTICES Agency Information Collection Activities; Proposals, Small Business Administration Submissions, and Approvals: NOTICES Alaska Region Bering Sea and Aleutian Islands (BSAI) Disaster Declarations: Crab Economic Data Reports, 59687 Iowa (Amendment 5), 59750 Coast Pilot Report, 59686 Comprehensive Data Collection on Fishing Dependence Social Security Administration of Alaska Communities, 59687–59688 NOTICES NOAA Space-Based Data Collection System (DCS) Privacy Act; Systems of Records, 59780–59781 Agreements, 59686–59687 State Department Endangered and Threatened Wildlife: 90-Day Finding on Petition to List Warsaw Grouper as NOTICES Threatened or Endangered, 59690–59695 Culturally Significant Objects Imported for Exhibition Final Approvals and Availabilities of Revised Management Determinations: Plans: Imagining Past in France (1250–1500), 59781 National Estuarine Research Reserves; Narragansett Bay, Waivers Of Restrictions: RI and Tijuana River, CA, 59696 Assistance to Government of Saudi Arabia, 59782 Meetings: Thrift Supervision Office Hydrographic Services Review Panel, 59697 NOTICES National Sea Grant Advisory Board, 59697 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Neighborhood Reinvestment Corporation Purchase of Branch Office(s) and/or Transfer of Assets/ NOTICES Liabilities, 59799–59800 Meetings; Sunshine Act, 59747–59748 Transportation Department Nuclear Regulatory Commission See Federal Aviation Administration NOTICES See Federal Highway Administration License Amendments: See Federal Motor Carrier Safety Administration Sequoyah Fuels Corp. Facility, Gore, OK, 59748–59749 See Maritime Administration Meetings; Sunshine Act, 59749–59750 See National Highway Traffic Safety Administration

VerDate Mar<15>2010 18:27 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00004 Fmt 4748 Sfmt 4748 E:\FR\FM\28SECN.SGM 28SECN hsrobinson on DSK69SOYB1PROD with PROPOSALS5 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Contents VII

Treasury Department Part III See Alcohol and Tobacco Tax and Trade Bureau Securities and Exchange Commission, 59866–59891 See Comptroller of the Currency See Foreign Assets Control Office See Public Debt Bureau Part IV See Thrift Supervision Office Securities and Exchange Commission, 59894–59897 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 59795–59797 Part V Commerce Department, National Oceanic and Atmospheric U.S. Customs and Border Protection Administration, 59900–59931 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Arrival and Departure Record and Electronic System for Reader Aids Travel Authorization, 59733–59734 Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, Veterans Affairs Department and notice of recently enacted public laws. NOTICES Privacy Act; Systems of Records, 59800–59801 To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http:// Separate Parts In This Issue listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change Part II settings); then follow the instructions. Interior Department, Fish and Wildlife Service, 59804– 59863

VerDate Mar<15>2010 18:27 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00005 Fmt 4748 Sfmt 4748 E:\FR\FM\28SECN.SGM 28SECN hsrobinson on DSK69SOYB1PROD with PROPOSALS5 VIII Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Contents

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.

9 CFR 161...... 59605 10 CFR Proposed Rules: 431...... 59657 14 CFR 39...... 59606 71...... 59608 Proposed Rules: 39...... 59658 187...... 59661 16 CFR 307...... 59609 17 CFR 211...... 59894 231...... 59894 241...... 59894 Proposed Rules: 35...... 59666 229...... 59866 249...... 59866 21 CFR 522...... 59610 866...... 59611 Proposed Rules: 866...... 59670 25 CFR Proposed Rules: Ch. I ...... 59672 31 CFR 560...... 59611 32 CFR 865...... 59613 33 CFR 104...... 59617 105...... 59617 160...... 59617 165...... 59620 40 CFR 80...... 59622 Proposed Rules: 85...... 59673 86...... 59673 600...... 59673 42 CFR Proposed Rules: 5...... 59674 44 CFR 67...... 59634 47 CFR 73...... 59645 76...... 59645 49 CFR Proposed Rules: 575...... 59673 595...... 59674 50 CFR 17...... 59645 Proposed Rules: 17...... 59804 226...... 59900

VerDate Mar 15 2010 18:28 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00001 Fmt 4711 Sfmt 4711 E:\FR\FM\28SELS.LOC 28SELS hsrobinson on DSK69SOYB1PROD with PROPOSALS4 59605

Rules and Regulations Federal Register Vol. 75, No. 187

Tuesday, September 28, 2010

This section of the FEDERAL REGISTER Accreditation Program, VS, APHIS, of the end of the notification period, or contains regulatory documents having general 4700 River Road Unit 200, Riverdale, their accredited status will expire. applicability and legal effect, most of which MD 20737; (301) 851-3401. Paragraph (d) of § 161.3 goes on to are keyed to and codified in the Code of SUPPLEMENTARY INFORMATION: The state that when APHIS receives notice Federal Regulations, which is published under from an accredited veterinarian that he 50 titles pursuant to 44 U.S.C. 1510. regulations in 9 CFR chapter I, subchapter J (parts 160 through 162, or she elects to participate, APHIS will The Code of Federal Regulations is sold by referred to below as the regulations), notify the accredited veterinarian of his the Superintendent of Documents. Prices of govern the accreditation of veterinarians or her date for first renewal. The new books are listed in the first FEDERAL and the suspension and revocation of accredited veterinarian must then REGISTER issue of each week. such accreditation. These regulations complete all the training requirements are the foundation for the National for renewal, as described in § 161.3, by Veterinary Accreditation Program his or her first renewal date. The DEPARTMENT OF AGRICULTURE (NVAP). Accredited veterinarians are notification of the first renewal date was approved by the Administrator of the thus intended to be the means by which Animal and Plant Health Inspection APHIS notifies an accredited Service Animal and Plant Health Inspection Service (APHIS), U.S. Department of veterinarian that we have received notice that he or she has elected to 9 CFR Part 161 Agriculture, to perform certain regulatory tasks to control and prevent participate and can thus continue [Docket No. APHIS-2006-0093] the spread of animal diseases performing accredited duties. To date, approximately 50,000 RIN 0579-AC04 throughout the United States and internationally. veterinarians have elected to continue to National Veterinary Accreditation On December 9, 2009 (74 FR 64998- participate, and another 10,000 are Program; Currently Accredited 65013, Docket No. APHIS-2006-0093), expected to do so. Processing these Veterinarians Performing Accredited we published a final rule in the Federal elections to continue to participate Duties and Electing to Participate Register that amended the regulations to involves many steps to verify, clarify, establish two accreditation categories in and proofread the information provided. AGENCY: Animal and Plant Health place of the former single category, to At times, we have needed to contact Inspection Service, USDA. add requirements for supplemental State boards, area offices of the ACTION: Final rule; extension of period training and renewal of accreditation, Veterinary Services program, and the for election to participate. and to offer program certifications. The accredited veterinarians themselves. As final rule was effective February 1, much as possible, we want to clear up SUMMARY: We are announcing to the 2010, a date intended to give us time to any omissions or potential errors so that public that veterinarians who are prepare to implement the new we have correct information for all currently accredited in the National regulations, which affect about 71,000 accredited veterinarians in our database. Veterinary Accreditation Program veterinarians who are currently Accredited veterinarians provide (NVAP) may continue to perform accredited. valuable regulatory services to their accredited duties and to elect to Section 161.3 of the final rule communities, allowing agricultural continue to participate in the NVAP contained the requirements for commerce to continue and ensuring that until further notice. The regulations supplemental training and renewal of travelers can meet regulatory indicate that currently accredited accreditation. Because accredited requirements for pets. It is important veterinarians must elect to continue veterinarians have not previously been that those services continue to be their participation in the NVAP in order required to renew their accreditation or provided. to maintain their accredited status, after complete supplemental training, we As a result, we have not yet been able which we will confirm their continued established in paragraph (d) of § 161.3 a to review all of the forms submitted by participation and notify them of their process allowing currently accredited accredited veterinarians to elect to first renewal date. Various logistical veterinarians to determine whether they continue to participate, ensure that the obstacles have prevented us from wished to continue to participate in the forms accurately reflect the processing in a timely manner the NVAP. veterinarians’ intent and situation, and elections to participate that we have Paragraph (d) of § 161.3 states that provide notice to the veterinarians of received. Allowing currently accredited veterinarians who are accredited as of their first renewal date. This process is veterinarians to continue to perform February 1, 2010, may continue to expected to take several more months, accredited duties and to elect to perform accredited duties between during which we will continue to need participate will ensure that we obtain an February 1, 2010, and the date of their veterinarians to perform accredited accurate and complete record of first renewal. In accordance with duties. accredited veterinarian participation paragraph (d), APHIS provided notice In addition, we stated in the while continuing to allow veterinarians for 3 months to accredited veterinarians Background section of the final rule that to provide accredited services to the who were accredited as of February 1, we will notify veterinarians who public. 2010, to notify them that they must elect routinely perform accredited EFFECTIVE DATE: September 28, 2010. to participate in the NVAP as a Category veterinarian duties and have not yet I or Category II veterinarian. Paragraph elected to continue participating as FOR FURTHER INFORMATION CONTACT: Dr. (d) requires veterinarians to elect to accredited veterinarians, to ensure that Todd Behre, National Veterinary continue to participate within 3 months such veterinarians do not inadvertently

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES 59606 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations

let their accreditation lapse. We have Investigation of a recent accident has command to ensure that the aircraft is loaded discovered that we need additional time indicated it is possible to exceed the aircraft within the approved weight and balance to reach out to such veterinarians to aft C of G limits during parachute operations. limitations and these limitations are not ensure that they are aware of the new It is the responsibility of the pilot in exceeded throughout the flight. command to ensure that the aircraft is loaded requirements. We have also found that The MCAI requires amending the within the approved weight and balance airplane flight manual (AFM) to restrict some veterinarians who received limitations and these limitations are not notification did not understand what exceeded throughout the flight. maximum occupancy of the cabin aft of the notification meant, and we plan to F.S 118.84 to 6 persons and requires work to clarify the new requirements for This AD requires actions that are doing a weight and balance calculation currently accredited veterinarians in the intended to address the unsafe for any parachuting operation to ensure coming months. condition described in the MCAI. the aircraft center of gravity (C of G) will Therefore, this document announces DATES: This AD becomes effective remain within AFM limits for the that currently accredited veterinarians October 18, 2010. duration of the flight. You may obtain may continue to perform accredited We must receive comments on this further information by examining the duties until further notice, even if they AD by November 12, 2010. MCAI in the AD docket. have not received a date for their first ADDRESSES: You may send comments by FAA’s Determination and Requirements accreditation renewal from APHIS. We any of the following methods: of the AD will also allow currently accredited • Federal eRulemaking Portal: Go to veterinarians to continue to elect to http://www.regulations.gov. Follow the This product has been approved by participate in the NVAP. instructions for submitting comments. the aviation authority of another We currently expect to be able to • Fax: (202) 493–2251. country, and is approved for operation process all the elections to participate • Mail: U.S. Department of in the United States. Pursuant to our we have received by March 2011. When Transportation, Docket Operations, bilateral agreement with this State of we are closer to reaching this goal, we M–30, West Building Ground Floor, Design Authority, they have notified us will publish another document in the Room W12–140, 1200 New Jersey of the unsafe condition described in the Federal Register that will amend Avenue, SE., Washington, DC 20590. MCAI and service information § 161.3(d) to indicate the date by which • Hand Delivery: U.S. Department of referenced above. We are issuing this veterinarians must elect to continue to Transportation, Docket Operations, AD because we evaluated all participate in the NVAP. M–30, West Building Ground Floor, information provided by the State of Done in Washington, DC, this 17th day Room W12–140, 1200 New Jersey Design Authority and determined the of September 2010. Avenue, SE., Washington, DC 20590, unsafe condition exists and is likely to between 9 a.m. and 5 p.m., Monday exist or develop on other products of the Kevin Shea, through Friday, except Federal holidays. same type design. Acting Administrator, Animal and Plant Health Inspection Service. Examining the AD Docket Differences Between This AD and the MCAI [FR Doc. 2010–24294 Filed 9–27–10; 8:45 am] You may examine the AD docket on BILLING CODE 3410–34–S the Internet at http:// We have reviewed the MCAI and, in www.regulations.gov; or in person at the general, agree with its substance. But we Docket Management Facility between 9 might have found it necessary to use different words from those in the MCAI DEPARTMENT OF TRANSPORTATION a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD to ensure the AD is clear for U.S. Federal Aviation Administration docket contains this AD, the regulatory operators and is enforceable. In making evaluation, any comments received, and these changes, we do not intend to differ 14 CFR Part 39 other information. The street address for substantively from the information the Docket Office (telephone (800) 647– provided in the MCAI. [Docket No. FAA–2010–0941; Directorate We might have also required different 5527) is in the ADDRESSES section. Identifier 2010–CE–051–AD; Amendment actions in this AD from those in the Comments will be available in the AD 39–16453; AD 2010–20–18] MCAI in order to follow FAA policies. docket shortly after receipt. Any such differences are described in a RIN 2120–AA64 FOR FURTHER INFORMATION CONTACT: Karl separate paragraph of the AD. These Schletzbaum, Aerospace Engineer, FAA, Airworthiness Directives; Pacific requirements take precedence over Small Airplane Directorate, 901 Locust, Aerospace Limited Models FU24–954 those copied from the MCAI. Room 301, Kansas City, Missouri 64106; and FU24A–954 Airplanes telephone: (816) 329–4146; fax: (816) FAA’s Determination of the Effective AGENCY: Federal Aviation 329–4090. Date Administration (FAA), DOT. SUPPLEMENTARY INFORMATION: An unsafe condition exists that requires the immediate adoption of this ACTION: Final rule; request for Discussion comments. AD. The FAA has found that the risk to The Civil Aviation Authority (CAA), the flying public justifies waiving notice SUMMARY: We are adopting a new which is the aviation authority for New and comment prior to adoption of this airworthiness directive (AD) for the Zealand, has issued AD DCA/FU24/179, rule because a recent accident indicates products listed above. This AD results dated September 10, 2010 (referred to it is possible to exceed the aircraft aft C from mandatory continuing after this as ‘‘the MCAI’’), to correct an of G limits during parachute-drop airworthiness information (MCAI) unsafe condition for the specified operations. Exceeding C of G limits issued by the aviation authority of products. The MCAI states: could result in loss of control of the another country to identify and correct Investigation of a recent accident has aircraft. Therefore, we determined that an unsafe condition on an aviation indicated it is possible to exceed the aircraft notice and opportunity for public product. The MCAI describes the unsafe aft C of G limits during parachute operations. comment before issuing this AD are condition as: It is the responsibility of the pilot in impracticable and that good cause exists

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations 59607

for making this amendment effective in (2) Is not a ‘‘significant rule’’ under gravity (C of G) will remain within AFM fewer than 30 days. DOT Regulatory Policies and Procedures limits for the duration of the flight. (44 FR 11034, February 26, 1979); and Actions and Compliance Comments Invited (3) Will not have a significant This AD is a final rule that involves (f) Unless already done, do the following economic impact, positive or negative, actions: requirements affecting flight safety, and on a substantial number of small entities (1) Before further parachute-drop we did not precede it by notice and under the criteria of the Regulatory operations as of October 18, 2010 (the opportunity for public comment. We Flexibility Act. effective date of this AD) do the following: invite you to send any written relevant We prepared a regulatory evaluation (i) Amend the airplane flight manual data, views, or arguments about this AD. of the estimated costs to comply with (AFM) to restrict maximum occupancy of the Send your comments to an address this AD and placed it in the AD docket. cabin aft of F.S 118.84 to 6 persons. This may listed under the ADDRESSES section. be done by inserting a copy of this AD into Include ‘‘Docket No. FAA–2010–0941; List of Subjects in 14 CFR Part 39 the AFM adjacent to the applicable supplement for parachuting operations; and Directorate Identifier 2010–CE–051–AD’’ Air transportation, Aircraft, Aviation (ii) Fabricate a placard at least 2 by 4 at the beginning of your comments. We safety, Safety. inches (using at least 1⁄8 inch letters) and specifically invite comments on the Adoption of the Amendment install the placard in 2 places, one on each overall regulatory, economic, side of the aft cabin, nominally in view of all environmental, and energy aspects of ■ Accordingly, under the authority occupants as they enter and occupy the cabin this AD. We will consider all comments delegated to me by the Administrator, which states the following: Maximum received by the closing date and may the FAA amends 14 CFR part 39 as occupancy of this cabin limited to 6 persons amend this AD because of those follows: for parachuting operations. Weight and Balance must be confirmed for each flight. comments. PART 39—AIRWORTHINESS (2) Before any parachute-drop operation as We will post all comments we of October 18, 2010 (the effective date of this receive, without change, to http:// DIRECTIVES AD) the weight and balance calculation must www.regulations.gov, including any ■ 1. The authority citation for part 39 comply with the following limitations and personal information you provide. We continues to read as follows: establish that the aircraft C of G will remain will also post a report summarizing each within AFM limits for the duration of the substantive verbal contact we receive Authority: 49 U.S.C. 106(g), 40113, 44701. flight: about this AD. (i) Use actual weights for all occupants and § 39.13 [Amended] their equipment to do the calculation; Authority for This Rulemaking ■ 2. The FAA amends § 39.13 by adding (ii) Account for the positions of all the following new AD: occupants in the calculation. Do the Title 49 of the United States Code calculation with the occupants’ (parachuting specifies the FAA’s authority to issue 2010–20–18 Pacific Aerospace Limited: group) positions at the most aft positions that rules on aviation safety. Subtitle I, Amendment 39–16453; Docket No. result from the rearmost members of the section 106, describes the authority of FAA–2010–0941; Directorate Identifier group sitting against the aft cabin wall and the FAA Administrator. ‘‘Subtitle VII: 2010–CE–051–AD. subsequent occupants located immediately Aviation Programs,’’ describes in more Effective Date forward of them, unless a means of restraint detail the scope of the Agency’s is provided to prevent the occupants moving (a) This airworthiness directive (AD) rearwards from their normal position; and authority. becomes effective October 18, 2010. We are issuing this rulemaking under (iii) Keep a record of the C of G the authority described in ‘‘Subtitle VII, Affected ADs determination for each parachuting operation. Part A, Subpart III, Section 44701: (b) None. ’’ FAA AD Differences General requirements. Under that Applicability section, Congress charges the FAA with Note: This AD differs from the MCAI as promoting safe flight of civil aircraft in (c) This AD applies to Pacific Aerospace Limited Models FU24–954 and FU24A–954 follows: No differences. air commerce by prescribing regulations airplanes, all serial numbers, that are: Other FAA AD Provisions for practices, methods, and procedures (1) Certificated in any category; and the Administrator finds necessary for (2) Modified to conduct parachute (g) The following provisions also apply to safety in air commerce. This regulation operations. this AD: is within the scope of that authority (1) Alternative Methods of Compliance Subject because it addresses an unsafe condition (AMOCs): The Manager, Standards Office, that is likely to exist or develop on (d) Air Transport Association of America FAA, has the authority to approve AMOCs (ATA) Code 8: Leveling and Weighing. for this AD, if requested using the procedures products identified in this rulemaking found in 14 CFR 39.19. Send information to action. Reason ATTN: Karl Schletzbaum, Aerospace Regulatory Findings (e) The mandatory continuing Engineer, FAA, Small Airplane Directorate, airworthiness information (MCAI) states: 901 Locust, Room 301, Kansas City, Missouri We determined that this AD will not Investigation of a recent accident has 64106; telephone: (816) 329–4146; fax: (816) have federalism implications under indicated it is possible to exceed the aircraft 329–4090. Before using any approved AMOC Executive Order 13132. This AD will aft C of G limits during parachute operations. on any airplane to which the AMOC applies, not have a substantial direct effect on It is the responsibility of the pilot in notify your appropriate principal inspector the States, on the relationship between command to ensure that the aircraft is loaded (PI) in the FAA Flight Standards District the national government and the States, within the approved weight and balance Office (FSDO), or lacking a PI, your local or on the distribution of power and limitations and these limitations are not FSDO. exceeded throughout the flight. (2) Airworthy Product: For any requirement responsibilities among the various The MCAI requires amending the airplane in this AD to obtain corrective actions from levels of government. flight manual (AFM) to restrict maximum a manufacturer or other source, use these For the reasons discussed above, I occupancy of the cabin aft of F.S 118.84 to actions if they are FAA-approved. Corrective certify that this AD: 6 persons and requires doing a weight and actions are considered FAA-approved if they (1) Is not a ‘‘significant regulatory balance calculation for any parachuting are approved by the State of Design Authority action’’ under Executive Order 12866; operation to ensure the aircraft center of (or their delegated agent). You are required

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES 59608 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations

to assure the product is airworthy before it History incorporated by reference in 14 CFR is returned to service. 71.1. The Class D and Class E airspace (3) Reporting Requirements: For any On August 9, 2010, the FAA published in the Federal Register a designations listed in this document reporting requirement in this AD, under the will be published subsequently in the provisions of the Paperwork Reduction Act notice of proposed rulemaking to amend (44 U.S.C. 3501 et seq.), the Office of Class D and E airspace, and establish Order. Management and Budget (OMB) has Class E surface airspace at Patuxent The FAA has determined that this approved the information collection River NAS (Trapnell Field), Patuxent regulation only involves an established requirements and has assigned OMB Control River, MD (75 FR 47736) Docket No. body of technical regulations for which Number 2120–0056. FAA–2010–0428. Subsequent to frequent and routine amendments are Related Information publication the FAA received a request necessary to keep them operationally (h) Refer to MCAI Civil Aviation Authority from the National Aeronautical current, is non-controversial and of New Zealand AD DCA/FU24/179, dated Navigation Services to correct the unlikely to result in adverse or negative September 10, 2010, for related information. geographic coordinates of the airfield, comments. It, therefore, (1) Is not a Issued in Kansas City, Missouri, on and for charting purposes, combine two ‘‘significant regulatory action’’ under September 21, 2010. closely located descriptions in both Executive Order 12866; (2) is not a Patrick R. Mullen, Class E airspace areas at Patuxent River ‘‘significant rule’’ under DOT Regulatory Acting Manager, Small Airplane Directorate, NAS, Patuxent River, MD. This action Policies and Procedures (44 FR 11034; Aircraft Certification Service. makes these corrections. With the February 26, 1979); and (3) does not [FR Doc. 2010–24117 Filed 9–27–10; 8:45 am] exception of editorial changes, and the warrant preparation of a Regulatory BILLING CODE 4910–13–P changes described above this rule is the Evaluation as the anticipated impact is same as that proposed in the NPRM. so minimal. Since this is a routine Interested persons were invited to matter that will only affect air traffic DEPARTMENT OF TRANSPORTATION participate in this rulemaking effort by procedures and air navigation, it is submitting written comments on the certified that this rule, when Federal Aviation Administration proposal to the FAA. No comments promulgated, will not have a significant were received. Class D and E airspace economic impact on a substantial 14 CFR Part 71 designations are published in paragraph number of small entities under the [Docket No. FAA–2010–0428; Airspace 5000, 6002, and 6004 of FAA Order criteria of the Regulatory Flexibility Act. Docket No. 10–AEA–13] 7400.9U dated August 18, 2010, and The FAA’s authority to issue rules effective September 15, 2010, which is regarding aviation safety is found in Amendment of Class D and E incorporated by reference in 14 CFR Title 49 of the United States Code. Airspace; Establishment of Class E 71.1. The Class D and E airspace Subtitle I, section 106 describes the Airspace; Patuxent River, MD designations listed in this document authority of the FAA Administrator. will be published subsequently in the AGENCY: Federal Aviation Subtitle VII, Aviation Programs, Order. Administration (FAA), DOT. describes in more detail the scope of the agency’s authority. ACTION: Final rule. The Rule This amendment to Title 14, Code of This rulemaking is promulgated SUMMARY: This action amends Class D under the authority described in subtitle and E Airspace at Patuxent River Naval Federal Regulations (14 CFR) part 71 amends Class D airspace and Class E VII, part A, subpart I, section 40103. Air Station (NAS), Patuxent River, MD, Under that section, the FAA is charged to reflect the part-time operating status airspace designated as an extension to Class D surface area at Patuxent River with prescribing regulations to assign of the control tower, and establishes the use of airspace necessary to ensure Class E airspace designated as surface NAS (Trapnell Field), Patuxent River, MD, to reflect the part-time operations the safety of aircraft and the efficient areas to accommodate Standard use of airspace. This regulation is Instrument Approach Procedures of the airport control tower, establishing in advance the dates and times by a within the scope of that authority as it (SIAPs) developed for the NAS. This amends Class D and existing Class E action also corrects the geographical Notice to Airmen, and establishes Class E surface area airspace to provide airspace and establishes Class E airspace coordinates of the NAS and combines designated as surface areas at Patuxent two airspace descriptions. This action controlled airspace required to support the SIAPs developed for Patuxent River River NAS (Trapnell Field), Patuxent will enhance the safety and River, MD. management of IFR operations at NAS. The geographic coordinates of Patuxent River NAS (Trapnell Field). Patuxent River NAS (Trapnell Field) Lists of Subjects in 14 CFR Part 71 will be corrected to coincide with the DATES: Effective 0901 UTC, January 13, FAA’s National Aeronautical Navigation Airspace, Incorporation by reference, 2011. The Director of the Federal Services. The Class E surface area Navigation (Air). Register approves this incorporation by airspace and Class E airspace designated reference action under title 1, Code of Adoption of the Amendment as extensions to Class D surface area Federal Regulations, part 51, subject to 233° and the 235° radials will be the annual revision of FAA Order ■ In consideration of the foregoing, the combined to coincide with aeronautical 7400.9 and publication of conforming Federal Aviation Administration charting. amends 14 CFR part 71 as follows: amendments. Class D airspace designations, Class E FOR FURTHER INFORMATION CONTACT: surface airspace designations and Class PART 71—DESIGNATION OF CLASS A, Melinda Giddens, Operations Support E airspace designations as extensions to B, C, D, AND CLASS E AIRSPACE Group, Eastern Service Center, Federal a Class D surface area are published in AREAS; AIR TRAFFIC SERVICE Aviation Administration, P.O. Box Paragraph 5000, 6002, and 6004 ROUTES; AND REPORTING POINTS 20636, Atlanta, Georgia 30320; respectively, of FAA Order 7400.9U, telephone (404) 305–5610. dated August 18, 2010, and effective ■ 1. The authority citation for part 71 SUPPLEMENTARY INFORMATION: September 15, 2010, which is continues to read as follows:

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations 59609

Authority: 49 U.S.C. 106(g); 40103, 40113, AEA MD E4 Patuxent River, MD Division of Advertising Practices, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– [AMENDED] Bureau of Consumer Protection, Federal 1963 Comp., p. 389. Patuxent River NAS (Trapnell Field), MD Trade Commission, 600 Pennsylvania ° ′ ″ ° ′ ″ § 71.1 [Amended] (Lat. 38 17 10 N., long. 76 24 42 W.) Avenue, N.W., Washington, D.C., 20580. Patuxent VORTAC ■ 2. The incorporation by reference in (Lat. 38°17′16″ N., long. 76°24′01″ W.) SUPPLEMENTARY INFORMATION: 14 CFR 71.1 of Federal Aviation Patuxent River NDB I. Background Administration Order 7400.9U, (Lat. 38°17′09″ N., long. 76°24′11″ W.) Airspace Designations and Reporting That airspace extending upward from the The Comprehensive Smokeless Points, dated August 18, 2010, effective surface within 1.8 miles each side of the Tobacco Health Education Act of 1986 ° September 15, 2010, is amended as Patuxent VORTAC 045 radial extending (‘‘Smokeless Tobacco Act’’), Pub. L. 99- from the 4.5-mile radius of Patuxent River 252, 100 Stat. 30 (1986), required follows: NAS (Trapnell Field) to 6.1 miles northeast of the VORTAC; and within 1.8 miles north manufacturers, importers, and packagers Paragraph 5000 Class D Airspace. of and 2.0 miles south of the Patuxent of smokeless tobacco products to * * * * * VORTAC 235° radial extending from the 4.5- display on a rotating basis one of three statutory health warnings on product AEA MD D Patuxent River, MD mile radius to 6.6 miles southwest of the VORTAC; and within 1.8 miles each side of [AMENDED] packages and in most advertising (other the Patuxent VORTAC 140° radial extending than billboards). The Smokeless Patuxent River NAS (Trapnell Field), MD from the 4.5-mile radius to 10.5 miles (Lat. 38°17′10″ N., long. 76°24′42″ W.) Tobacco Act also directed the FTC to southeast of the VORTAC, excluding that issue implementing regulations Chesapeake Ranch Airpark, MD airspace within Restricted Areas R–4005 and (Lat. 38°21′40″ N., long. 76°24′19″ W.) R–4007 when active. This Class E airspace governing the format and display of the That airspace extending upward from the area is effective during specific dates and health warnings, and to review and surface to and including 2,500 feet MSL times established in advance by a Notice to approve (if appropriate) plans within a 4.5-mile radius of Patuxent River Airmen. The effective date and time will specifying how smokeless tobacco NAS (Trapnell Field) and within a .5-mile thereafter be continuously published in the companies planned to comply with the radius of Chesapeake Ranch Airpark Airport Facility Directory. rotational warning requirements excluding that airspace within Restricted Issued in College Park, Georgia, on specified in the Smokeless Tobacco Act Areas R–4005 and R–4007 when active. This September 17, 2010. Class D airspace area is effective during the and the implementing regulations. 15 specific dates and times established in Myron A. Jenkins, U.S.C. 4402 (1986) (amended 2009). The advance by a Notice to Airmen. The effective Acting Manager, Operations Support Group, Commission issued its smokeless date and time will thereafter be continuously Eastern Service Center, Air Traffic tobacco regulations, 16 CFR Part 307, on published in the Airport Facility Directory. Organization. November 4, 1986.1 51 FR 40015. [FR Doc. 2010–24110 Filed 9–27–10; 8:45 am] * * * * * II. Basis for Removal of Regulations BILLING CODE 4910–13–P Paragraph 6002 Class E Airspace Designated as Surface Areas. On June 22, 2009, President Obama signed into law the Family Smoking * * * * * FEDERAL TRADE COMMISSION Prevention and Tobacco Control Act, AEA MD E2 Patuxent River, MD [NEW] Pub. L. No. 111-31, 123 Stat. 1776 Patuxent River NAS (Trapnell Field), MD 16 CFR Part 307 (2009) (‘‘Family Smoking Prevention ° ′ ″ ° ′ ″ (Lat. 38 17 10 N., long. 76 24 42 W.) [RIN 3084-AB23] Act’’). The Family Smoking Prevention Patuxent VORTAC Act, among other things, amended the ° ′ ″ ° ′ ″ (Lat. 38 17 16 N., long. 76 24 01 W.) Rescission of Regulations Under the Smokeless Tobacco Act to change the Patuxent River NDB Comprehensive Smokeless Tobacco language of the existing three statutory (Lat. 38°17′09″ N., long. 76°24′11″ W.) Chesapeake Ranch Airpark, MD Health Education Act of 1986 health warnings and add a fourth ° ′ ″ ° ′ ″ warning, and to require new size, (Lat. 38 21 40 N., long. 76 24 19 W.) AGENCY: Federal Trade Commission. format, and display requirements for the That airspace extending upward from the ACTION: Final rule. surface within a 4.5-mile radius of Patuxent statutory health warnings. Family River NAS (Trapnell Field) and within 1.8 SUMMARY: The Federal Trade Smoking Prevention Act, § 204. The miles each side of the Patuxent VORTAC Commission (‘‘FTC’’ or ‘‘Commission’’) is Family Smoking Prevention Act also 045° radial extending from the 4.5-mile gave the Secretary of DHHS authority to radius of Patuxent River NAS to 6.1 miles rescinding its smokeless tobacco regulations. Recent legislation change the warning statements and the northeast of the VORTAC; and within 1.8 size, format, and display requirements miles north of and 2.0 miles south of the transferred the FTC’s authority for those Patuxent VORTAC 235° radial extending regulations to the Secretary of the of those warnings, and transferred from the 4.5-mile radius to 6.6 miles Department of Health and Human authority over the review and approval southwest of the VORTAC; and within 1.8 Services (‘‘DHHS’’). DHHS will now of rotational warning plans from the miles each side of the Patuxent VORTAC Commission to the Secretary. Family ° review and approve rotational warning 140 radial extending from the 4.5-mile plans for these products. Smoking Prevention Act, § 205. These radius to 10.5 miles southeast of the amendments to the Smokeless Tobacco EFFECTIVE DATE: September 28, 2010. VORTAC; and within a .5-mile radius of Act became effective on June 22, 2010. Chesapeake Ranch Airpark, excluding that ADDRESSES: Copies of this document are airspace within Restricted Areas R–4005 and available from: Public Reference Branch, Earlier this year, the Commission R–4007 when active. This Class E airspace Room 130, Federal Trade Commission, terminated its regulatory review of the area is effective during those times when the 600 Pennsylvania Avenue, N.W., smokeless tobacco regulations, citing Class D airspace is not in effect. Washington, DC 20580. Copies of this the enactment of the Family Smoking * * * * * document are also available on the Prevention Act. 75 FR 3665 (Jan. 22, Paragraph 6004 Class E Airspace Areas Internet at the Commission’s website: 1 Designated as an Extension to a Class D (http://www.ftc.gov). The regulations were amended in 1991 to Surface Area. include provisions for the rotation and display of FOR FURTHER INFORMATION CONTACT: the statutory warnings on utilitarian items. 56 FR * * * * * Shira Modell, (202) 326-3116, Attorney, 11654 (Mar. 20, 1991).

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES 59610 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations

2010). The regulations themselves, intent of Congress to provide the publish any initial or final regulatory however, remain in place. Secretary with the authority to flexibility analysis under the Regulatory The Commission has now concluded promulgate such regulations and to Flexibility Act as part of such action. that, in light of the amendments to the approve the related rotational plans. See 5 U.S.C. 603(a), 604(b). Smokeless Tobacco Act, the regulations Therefore, immediate rescission of the List of Subjects in 16 CFR Part 307 in 16 CFR Part 307 no longer serve any outdated rules will help avoid purpose and actually conflict with the confusion as to which agency has Advertising, Labeling Smokeless new statutory provisions. As noted proper authority to promulgate these Tobacco, Tobacco, Trade Practices. above, the Family Smoking Prevention rules and to approve related rotational ■ Accordingly, for the reasons set forth Act revised the language of the plans.2 For all of these reasons, the above, and under the authority of 15 smokeless tobacco health warning Commission finds that public notice U.S.C. 4402 and 5 U.S.C. 553(d)(1), the statements and adopted new and comment are not necessary in Commission amends Title 16, Code of requirements for the format, size, and rescinding 16 CFR Part 307. Federal Regulations, by removing and location of those statements on In addition, the Commission finds reserving part 307. smokeless tobacco packaging and in ads that, under 5 U.S.C. 553(d)(1), the for smokeless tobacco products. These rescission may take effect immediately PART 307—REMOVED AND requirements supersede those adopted upon publication of this notice in the RESERVED by the Commission pursuant to the 1986 Federal Register. The removal of the By direction of the Commission. statute. Accordingly, the Commission regulations is exempt from the usual 30- concludes that its regulations day notice requirement as it merely Donald S. Clark, implementing the Smokeless Tobacco ‘‘relieves a restriction’’ from FTC Secretary. Act should be removed. Indeed, requirements. 5 U.S.C. 553(d)(1); see [FR Doc. 2010–24220 Filed 9–27–10; 8:45 am] retention of these regulations could also Indep. U.S. Tanker Owners Comm. BILLING CODE 6750–01–S generate confusion if some smokeless v. Skinner, 884 F.2d 587, 591 (D.C. Cir. tobacco manufacturers and importers 1989). The 30-day notice requirement mistakenly believe that they reflect does not apply under these DEPARTMENT OF HEALTH AND current legal requirements. circumstances, in which the Family HUMAN SERVICES Under 5 U.S.C. 553(b)(B), an agency Smoking Prevention Act has required may promulgate a rule without prior the submission of rotational warning Food and Drug Administration notice and an opportunity for public plans to DHHS since June 22, 2010. comment if the agency finds for good Therefore, affected companies do not 21 CFR Part 522 cause that this procedure is need time to prepare for or take any unnecessary. Nat’l Customs Brokers & action with regard to the rescission. See [Docket No. FDA–2010–N–0002] Forwarders Ass’n v. United States, 59 Daniel Int’l Corp. v. Occupational Safety F.3d 1219, 1223-1224 (Fed. Cir. 1995). Implantation and Injectable Dosage & Health Review Com., 656 F.2d 925, Form New Animal Drugs; Firocoxib In rescinding 16 CFR Part 307, the 931 (4th Cir. 1981) (‘‘The purpose of the Commission finds that public comment 30-day notice requirement in § 553(d) is AGENCY: Food and Drug Administration, is unnecessary because the FTC is to ‘afford persons affected a reasonable HHS. rescinding its regulations in response to time to prepare for the effective date of ACTION: Final rule. the transfer of its underlying regulatory a rule or rules or to take any other action authority to the Secretary of DHHS. which the issuance of rules may SUMMARY: The Food and Drug Since the FTC has no discretion in that prompt.’ Administrative Procedure Act Administration (FDA) is amending the matter, there is no reason or need for Legislative History, 79th Cong., 2d Sess. animal drug regulations to reflect public comment on this regulatory 201 (1946)’’). approval of an original new animal drug action. The Family Smoking Prevention application (NADA) filed by Merial Ltd. Act amended 15 U.S.C. 4402 by III. Paperwork Reduction Act The NADA provides for the veterinary repealing the Commission’s authority to The Commission’s regulations prescription use of firocoxib injectable promulgate rules implementing the implementing the Smokeless Tobacco solution in horses for the control of pain smokeless tobacco labels and related Act impose reporting requirements that and inflammation associated with rotational plans. That Act provides the constitute a ‘‘collection of information’’ osteoarthritis. Secretary of DHHS the authority to under the Paperwork Reduction Act, 44 DATES: This rule is effective September promulgate rules regarding the U.S.C. 3501 et seq. Accordingly, smokeless tobacco labels and the 28, 2010. removal of these regulations will FOR FURTHER INFORMATION CONTACT: authority to approve related rotational eliminate any burden on the public plans. Therefore, as of June 22, 2010, the Melanie R. Berson, Center for Veterinary previously imposed by those Medicine (HFV–110), Food and Drug effective date of Congress’s requirements. amendments, the Commission’s rules Administration, 7500 Standish Pl., under 16 CFR Part 307 were no longer IV. Regulatory Flexibility Act Rockville, MD 20855, 240–276–8337, authorized by statute. Although 15 Because the Commission has email: [email protected]. U.S.C. 4404(b) continues to refer to determined that it may remove these SUPPLEMENTARY INFORMATION: Merial ‘‘[r]egulations issued by the Federal regulations without public comment, Ltd., 3239 Satellite Blvd., Bldg. 500, Trade Commission under [15 U.S.C. the Commission is also not required to Duluth, GA 30096–4640 filed NADA 4402],’’ it is clear from the amendments 141–313 that provides for veterinary to 15 U.S.C. 4402 that the Commission 2 Although the Commission no longer has the prescription use of EQUIOXX (firocoxib) no longer has the authority to authority to promulgate regulations implementing Injection in horses for the control of promulgate such regulations. Moreover, the smokeless tobacco labels or to approve related pain and inflammation associated with rotational plans, the Commission continues to have the Commission’s rules under 16 CFR authority to bring enforcement actions with respect osteoarthritis. The NADA is approved as Part 307, if left intact, would conflict to violations of 15 U.S.C. 4402 under 15 U.S.C. of August 20, 2010, and the regulations with the unambiguously expressed 4404(a). are amended in 21 CFR part 522 by

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations 59611

adding new § 522.930 to reflect the (2) Indications for use. For the control and under authority delegated to the approval. of pain and inflammation associated Commissioner of Food and Drugs, 21 In accordance with the freedom of with osteoarthritis. CFR part 866 is amended. Accordingly, information provisions of 21 CFR part (3) Limitations. Do not use in horses the amendments issued thereby are 20 and 21 CFR 514.11(e)(2)(ii), a intended for human consumption. effective. summary of safety and effectiveness Federal law restricts this drug to use by Dated: September 16, 2010. or on the order of a licensed data and information submitted to Leslie Kux, support approval of this application veterinarian. Acting Assistant Commissioner for Policy. may be seen in the Division of Dockets Dated: September 21, 2010. [FR Doc. 2010–23638 Filed 9–27–10; 8:45 am] Management (HFA–305), Food and Drug Bernadette Dunham, BILLING CODE 4160–01–S Administration, 5630 Fishers Lane, rm. Director, Center for Veterinary Medicine. 1061, Rockville, MD 20852, between 9 [FR Doc. 2010–24254 Filed 9–27–10; 8:45 am] a.m. and 4 p.m., Monday through Friday. BILLING CODE 4160–01–S DEPARTMENT OF THE TREASURY The agency has determined under 21 Office of Foreign Assets Control CFR 25.33 that this action is of a type DEPARTMENT OF HEALTH AND that does not individually or HUMAN SERVICES 31 CFR Part 560 cumulatively have a significant effect on the human environment. Therefore, Food and Drug Administration Iranian Transactions Regulations neither an environmental assessment nor an environmental impact statement 21 CFR Part 866 AGENCY: Office of Foreign Assets is required. Control, Treasury. [Docket No. FDA–2009–N–0344] Under section 512(c)(2)(F)(ii) of the ACTION: Final rule. Federal Food, Drug, and Cosmetic Act Microbiology Devices; Reclassification SUMMARY: The Department of the (21 U.S.C. 360b(c)(2)(F)(ii)), this of Herpes Simplex Virus Types 1 and approval qualifies for 3 years of Treasury’s Office of Foreign Assets 2 Serological Assays; Confirmation of Control (‘‘OFAC’’) is amending the marketing exclusivity beginning on the Effective Date date of approval. Iranian Transactions Regulations in the This rule does not meet the definition AGENCY: Food and Drug Administration, Code of Federal Regulations to remove of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because HHS. general licenses authorizing the it is a rule of ‘‘particular applicability.’’ ACTION: Direct final rule; confirmation of importation into the United States of, Therefore, it is not subject to the effective date. and dealings in, certain foodstuffs and congressional review requirements in 5 carpets of Iranian origin and related U.S.C. 801–808. SUMMARY: The Food and Drug services, and to implement the import Administration (FDA) is confirming the and export prohibitions in section 103 List of Subjects in 21 CFR Part 522 effective date of December 7, 2009, for of the Comprehensive Iran Sanctions, Animal drugs. the direct final rule that appeared in the Accountability, and Divestment Act of Federal Register of August 25, 2009 (74 2010. ■ Therefore, under the Federal Food, FR 42773). The direct final rule corrects Drug, and Cosmetic Act and under DATES: Effective Date: September 29, the regulation classifying herpes authority delegated to the Commissioner 2010. simplex virus (HSV) serological assays of Food and Drugs and redelegated to by removing the reference to HSV FOR FURTHER INFORMATION CONTACT: the Center for Veterinary Medicine, 21 serological assays other than type 1 and Assistant Director for Compliance, CFR part 522 is amended as follows: type 2. This document confirms the Outreach & Implementation, tel.: 202/ effective date of the direct final rule. 622–2490, Assistant Director for PART 522—IMPLANTATION OR Licensing, tel.: 202/622–2480, Assistant DATES: Effective date confirmed: INJECTABLE DOSAGE FORM NEW Director for Policy, tel.: 202/622–4855, December 7, 2009. ANIMAL DRUGS Office of Foreign Assets Control, or FOR FURTHER INFORMATION CONTACT: Chief Counsel (Foreign Assets Control), ■ 1. The authority citation for 21 CFR Scott McFarland, Center for Devices and tel.: 202/622–2410, Office of the General part 522 continues to read as follows: Radiological Health, Food and Drug Counsel, Department of the Treasury Authority: 21 U.S.C. 360b. Administration, 10903 New Hampshire (not toll free numbers). Ave., Bldg. 66, rm. 5543, Silver Spring, ■ 2. Add § 522.930 to read as follows: SUPPLEMENTARY INFORMATION: MD 20993–0002, 301–796–6217. § 522.930 Firocoxib. SUPPLEMENTARY INFORMATION: In the Electronic and Facsimile Availability (a) Specifications. Each milliliter of Federal Register of August 25, 2009 (74 This document and additional solution contains 20 milligrams (mg) FR 42773), FDA solicited comments information concerning OFAC are firocoxib. concerning the direct final rule for a 44- available from OFAC’s Web site (http:// (b) Sponsors. See No. 050604 in day period ending October 8, 2009. FDA www.treas.gov/ofac). Certain general § 510.600(c) of this chapter. stated that the effective date of the information pertaining to OFAC’s (c) Conditions of use in horses—(1) direct final rule would be on December sanctions programs also is available via Amount. Administer 0.04 mg/pound (lb) 7, 2009, 60 days after the end of the facsimile through a 24-hour fax-on- (0.09 mg/kilogram (kg)) of body weight comment period, unless any significant demand service, tel.: 202/622–0077. (BW) intravenously, once daily, for up adverse comment was submitted to FDA to 5 days. If further treatment is needed, during the comment period. FDA did Background firocoxib oral paste can be administered not receive any significant adverse On July 1, 2010, the President signed at a dosage of 0.045 mg/lb (0.1 mg/kg) comments. into law the Comprehensive Iran of BW for up to an additional 9 days of ■ Authority: Therefore, under the Sanctions, Accountability, and treatment. Federal Food, Drug, and Cosmetic Act

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES 59612 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations

Divestment Act of 2010 (Pub. L. 111– import and export prohibitions in foodstuffs and carpets of third-country 195) (‘‘CISADA’’). Subsection 103(a) of subsection 103(b) of CISADA. This origin that are transshipped through CISADA provides that, in addition to extends to general and specific licenses Iran become goods of Iranian-origin. any other sanction in effect, the authorizing transactions that are beyond Therefore, the revocation of the general economic sanctions described in those specified in the exceptions set licenses in sections 560.534 and 560.535 subsection 103(b) of CISADA shall forth in subsections 103(b)(1) and (b)(2) of the ITR also will affect the specified apply with respect to Iran beginning 90 of CISADA and that otherwise would be foodstuffs and carpets of third-country days after the date of CISADA’s prohibited by CISADA. origin that are transshipped through enactment. The economic sanctions Conversely, to the extent that the Iran for importation into the United described in subsections 103(b)(1) and transactions described in CISADA’s States. (b)(2) include prohibitions on the exceptions are neither exempt from nor Section 560.534 of the ITR authorized importation of goods or services of authorized in or pursuant to the ITR, both the commercial and Iranian origin directly or indirectly into those transactions will remain noncommercial importation into the the United States and on the exportation prohibited pursuant to the ITR and, United States of certain foodstuffs and of U.S.-origin goods, services, or inter alia, IEEPA. In an explanatory carpets of Iranian origin. As a result of technology from the United States or by statement, the Committee of Conference the revocation of sections 560.534 and a United States person, wherever on CISADA stated that notwithstanding 560.535 of the ITR, the noncommercial located, to Iran. OFAC will implement the exceptions in CISADA, any importation of certain foodstuffs and these prohibitions through an requirement under IEEPA to seek a carpets of Iranian origin into the United amendment to the Iranian Transactions license for the transactions described in States and related services would also Regulations, 31 CFR Part 560 (the those exceptions remains in effect. be prohibited by section 560.201 of the ‘‘ITR’’), which already implement, CISADA states in subsection 103(a) that ITR, unless otherwise authorized or pursuant to, inter alia, the International the sanctions imposed by subsection exempt. One such authorization is the Emergency Economic Powers Act (50 103(b) are ‘‘in addition to any other general license for the importation of U.S.C. 1701–1706) (‘‘IEEPA’’), sanction in effect.’’ Accordingly, a Iranian-origin household goods and prohibitions similar to those set forth in specific license from OFAC is required personal effects set forth in section subsections 103(b)(1) and (b)(2) of to engage in transactions described in 560.524(b) of the ITR. That general CISADA. Consequently, OFAC is CISADA’s exceptions if such license continues in effect. OFAC notes amending the ITR by adding CISADA to transactions are neither exempt from that U.S. Customs and Border Protection the ITR’s authority citations. nor authorized in or pursuant to the (CBP) Form 3299, ‘‘Declaration for Free Notwithstanding the ITR’s ITR. Entry of Unaccompanied Articles,’’ is prohibitions of imports and exports, Subsection 103(d)(2) of CISADA used to enter Iranian-origin household OFAC authorizes certain otherwise strengthens the current trade embargo and personal effects into the United prohibited transactions through general against Iran by providing that no States. licenses set forth in the ITR and specific exception to the import prohibition in licenses issued pursuant to the ITR. In subsection 103(b)(1) of CISADA may be Public Participation addition, the ITR contain certain made for the commercial importation of Because the Regulations involve a exemptions from its prohibitions of an Iranian-origin good described in foreign affairs function, the provisions imports and exports. Similarly, section 560.534(a) of the ITR, i.e., of Executive Order 12866 and the subsections 103(b)(1) and (b)(2) of foodstuffs intended for human Administrative Procedure Act (5 U.S.C. CISADA include a number of exceptions consumption that are classified under 553) requiring notice of proposed to CISADA’s prohibitions of imports chapters 2–23 of the Harmonized Tariff rulemaking, opportunity for public and exports, respectively. The Schedule of the United States and participation, and delay in effective date exceptions to CISADA’s prohibitions carpets and other textile floor coverings are inapplicable. Because no notice of differ in some cases from the and carpets used as wall hangings that proposed rulemaking is required for this exemptions and authorizations are classified under chapter 57 or rule, the Regulatory Flexibility Act (5 contained in or issued pursuant to the heading 9706.00.0060 of the U.S.C. 601–612) does not apply. ITR. Harmonized Tariff Schedule of the To the extent that the ITR exemptions United States. Accordingly, as of Paperwork Reduction Act and licenses authorize import and September 29, 2010 (i.e., the date that is The collections of information related export transactions beyond CISADA’s 90 days after the date of CISADA’s to the Regulations are contained in 31 exceptions, subsection 103(d)(1) of enactment), sections 560.534 and CFR part 501 (the ‘‘Reporting, CISADA provides the authority to 560.535 of the ITR will be revoked, and Procedures and Penalties Regulations’’). resolve these differences. That OFAC will no longer authorize, by Pursuant to the Paperwork Reduction subsection authorizes the President to general or specific license, the Act of 1995 (44 U.S.C. 3507), those prescribe regulations to carry out commercial importation into the United collections of information have been section 103 and specifically states that States of these foodstuffs and carpets of approved by the Office of Management these regulations may include Iranian-origin. Any such goods and Budget under control number 1505– regulatory exceptions to the sanctions imported into the United States 0164. An agency may not conduct or described in subsection 103(b). pursuant to sections 560.534 and sponsor, and a person is not required to Therefore, except with respect to 560.535 of the ITR must be entered for respond to, a collection of information sections 560.534 and 560.535 of the ITR, consumption prior to that date. unless the collection of information which are being removed (see below), In addition, section 560.306 of the ITR displays a valid control number. OFAC is relying on the authority of defines the terms goods of Iranian origin subsection 103(d)(1) of CISADA to and Iranian-origin goods to include: (1) List of Subjects in 31 CFR Part 560 maintain in effect the general and Goods grown, produced, manufactured, Administrative practice and specific licenses set forth in or issued extracted, or processed in Iran and (2) procedure, Banks, Banking, Brokers, pursuant to the ITR, and to treat those goods which have entered into Iranian Foreign trade, Investments, Loans, licenses as regulatory exceptions to the commerce. Based on this definition, Securities, Iran.

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations 59613

■ For the reasons set forth in the SUPPLEMENTARY INFORMATION: The (1) The States; preamble, the Department of the proposed rule was published in the (2) The relationship between the Treasury’s Office of Foreign Assets Federal Register on July 15, 2009 (74 FR National Government and the States; or Control amends 31 CFR part 560 as 34279–34283). No comments were (3) The distribution of power and follows: received. responsibilities among the various levels of government. PART 560—IRANIAN TRANSACTIONS Executive Order 12866, ‘‘Regulatory REGULATIONS Planning and Review’’ List of Subjects in 32 CFR Part 865 It has been determined that 32 CFR Administrative practices and ■ 1. Revise the authority citation to part part 865 is not a significant regulatory procedures, Military personnel, 560 to read as follows: action. This rule does not: Records. Authority: 3 U.S.C. 301; 18 U.S.C. 2339B, (1) Have an annual effect on the ■ Accordingly, 32 CFR part 865 is 2332d; 22 U.S.C. 2349aa–9; 22 U.S.C. 7201– economy of $100 million or more or amended as follows: 7211; 31 U.S.C. 321(b); 50 U.S.C. 1601–1651, adversely affect in a material way the 1701–1706; Pub. L. 101–410, 104 Stat. 890 (28 U.S.C. 2461 note); Pub. L. 110–96, 121 economy, a sector of the economy, PART 865—PERSONNEL REVIEW Stat. 1011 (50 U.S.C. 1705 note); Pub. L. 111– productivity, competition, jobs, the BOARDS environment, public health or safety, or 195, 124 Stat. 1312 (22 U.S.C. 8501–8551); ■ E.O. 12613, 52 FR 41940, 3 CFR, 1987 Comp., state, local, or tribal governments or 1. The authority citation for 32 CFR p. 256; E.O. 12957, 60 FR 14615, 3 CFR, 1995 communities; part 865 continues to read as follows: Comp., p. 332; E.O. 12959, 60 FR 24757, 3 (2) Create a serious inconsistency or Authority: 10 U.S.C. 1034, 1552.2. CFR, 1995 Comp., p. 356; E.O. 13059, 62 FR otherwise interfere with an action taken ■ 2. Revise Subpart A to read as follows: 44531, 3 CFR, 1997 Comp., p. 217. or planned by another agency; (3) Materially alter the budgetary Subpart A—Air Force Board for Correction Subpart E—License, Authorizations, impact of entitlements, grants, user fees, of Military Records and Statements of Licensing Policy or loan programs, or the rights and Sec. §§ 560.534 and 560.535 [Removed and obligations of the recipients thereof; or 865.0 Purpose. reserved] (4) Raise novel legal or policy issues 865.1 Setup of the Board. arising out of legal mandates, the 865.2 Board responsibilities. ■ 2. Remove and reserve §§ 560.534 and President’s priorities, or the principles 865.3 Application procedures. 560.535. set forth in this Executive Order. 865.4 Board actions. Dated: September 22, 2010. 865.5 Decision of the Secretary of the Air Unfunded Mandates Reform Act (Sec. Force. Adam J. Szubin, 202, Pub. L. 104–4) 865.6 Reconsideration of applications. Director, Office of Foreign Assets Control. It has been certified the 32 CFR part 856.7 Action after final decision. [FR Doc. 2010–24211 Filed 9–27–10; 8:45 am] 865.8 Miscellaneous provisions. 865 does not contain a Federal Mandate BILLING CODE 4810–AL–P that may result in the expenditure by Subpart A—Air Force Board for State, local and tribal governments, in Correction of Military Records aggregate, or by the private sector, of DEPARTMENT OF DEFENSE $100 million or more in any one year. § 865.0 Purpose. This subpart sets up procedures for Department of the Air Force Public Law 96–354, ‘‘Regulatory correction of military records to remedy Flexibility Act’’ (5 U.S.C. 601) 32 CFR Part 865 error or injustice. It tells how to apply It has been determined that this rule for correction of military records and [Docket No. USAF–2008–0002] is not subject to the Regulatory how the Air Force Board for Correction RIN 0701–AA74 Flexibility Act (5 U.S.C. 601) because it of Military Records (AFBCMR, or the would not, if promulgated, have a Board) considers applications. It defines Personnel Review Boards significant economic impact on a the Board’s authority to act on substantial number of small entities. applications. It directs collecting and AGENCY: Department of the Air Force, maintaining information subject to the DoD. Public Law 95–511, ‘‘Paperwork Reduction Act’’ (44 U.S.C. Chapter 35) Privacy Act of 1974 authorized by 10 ACTION: Final rule. U.S.C. 1034 and 1552. System of It has been certified that 32 CFR part Records notice F035 SAFCB A, Military SUMMARY: The Department of the Air 865 does not impose any additional Force is amending its regulations Records Processed by the Air Force reporting or recordkeeping requirements Correction Board, applies. concerning the Air Force Board for under the Paperwork Reduction Act of Correction of Military Records. The 1995 (44 U.S.C. Chapter 35). Existing § 865.1 Setup of the Board. regulations being revised establish reporting and recordkeeping The AFBCMR operates within the procedures for the consideration of requirements approved under OMB Office of the Secretary of the Air Force applications for the correction of Control Number 0704–0003, according to 10 U.S.C. 1552. The Board military records and provides guidance Application for Correction of Military consists of civilians in the executive to applicants and others interested in Record Under the Provisions of Title 10, part of the Department of the Air Force the process. This revision incorporates U.S. Code, Section 1552, will be used. who are appointed and serve at the format changes and clarifies various pleasure of the Secretary of the Air minor provisions of the subpart. Federalism (Executive Order 13132) Force. Three members constitute a DATES: Effective Date: This rule is It has been certified that 32 CFR part quorum of the Board. effective October 28, 2010. 865 does not have federalism FOR FURTHER INFORMATION CONTACT: Mr implications, as set forth in Executive § 865.2 Board responsibilities. Algie Walker Jr. at (240) 857–5380, Order 13132. This rule does not have (a) Considering applications. The [email protected]. substantial direct effects on: Board considers all individual

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES 59614 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations

applications properly brought before it. (1) Any Air Force Military Personnel (h) Counsel representation. In appropriate cases, it directs Flight (MPF) or publications Applicants may be represented by correction of military records to remove distribution office. counsel, at their own expense. an error or injustice, or recommends (2) Most veterans’ service (1) The term ‘‘counsel’’ includes such correction. organizations. members in good standing of the bar of (b) Recommending action. When an (3) The Air Force Review Boards any state, accredited representatives of applicant alleges reprisal under the Office, SAF/MRBR, 550 C Street West, veterans’ organizations recognized Military Whistleblowers Protection Act, Suite 40, Randolph AFB TX 78150– under by the Secretary of Veterans 10 U.S.C. 1034, the Board may 4742. Affairs pursuant to 38 U.S.C. 5902(a)(1), (4) The AFBCMR, 1535 Command recommend to the Secretary of the Air and other persons determined by the Drive, EE Wing 3rd Floor, Andrews AFB Force that disciplinary or administrative Executive Director of the Board to be MD 20762–7002. competent to represent the interests of action be taken against those (5) Thru the Internet at http://www. responsible for the reprisal. the applicant. dtic.mil/whs/directives/infomgt/forms/ (2) See DoDD 7050.06, Military (c) Deciding cases. The Board eforms/dd0149.pdf (DD Form 149) and Whistleblower Protection 1 and AFI 90– normally decides cases on the evidence http://www.e-publishing.af.mil/shared/ 301, Inspector General Complaints of the record. It is not an investigative media/epubs/AFPAM36–2607.pdf (Air Resolution, for special provisions for body. However, the Board may, in its Force Pamphlet 36–2607). counsel in cases processed under 10 discretion, hold a hearing or call for (c) Preparation. Before applying, U.S.C. 1034. additional evidence or opinions in any applicants should: (i) Page limitations on briefs. Briefs in case. (1) Review Air Force Pamphlet support of applications: 36–2607. § 865.3 Application procedures. (2) Discuss their concerns with MPF, (1) May not exceed 25 double-spaced finance office, or other appropriate typewritten pages. (a) Who may apply: (2) Must be typed on one side of a (1) In most cases, the applicant is a officials. Errors can often be corrected administratively without resort to the page only with not more than 12 member or former member of the Air characters per inch. Force, since the request is personal to Board. (3) Exhaust other available (3) Must be assembled in a manner the applicant and relates to his or her that permits easy reproduction. military records. administrative remedies (otherwise the Board may return the request without (4) Responses to advisory opinions (2) An applicant with a proper considering it). must not exceed 10 double-spaced interest may request correction of (d) Submitting the application. typewritten pages and meet the other another person’s military records when Applicants should complete all requirements for briefs. that person is incapable of acting on his applicable sections of the DD Form 149, (5) These limitations do not apply to or her own behalf, is missing, or is including at least: supporting documentary evidence. deceased. Depending on the (1) The name under which the (6) In complex cases and upon circumstances, a child, spouse, civilian member served. request, the Executive Director of the employee or former civilian employee, (2) The member’s social security Board may waive these limitations. former spouse, parent or other close number or Air Force service number. (j) Withdrawing applications. relative, an heir, or a legal (3) The applicant’s current mailing Applicants may withdraw an representative (such as a guardian or address. application at any time before the executor) of the member or former (4) The specific records correction Board’s decision. Withdrawal does not member may be able to show a proper being requested. stay the 3-year time limit. interest. Applicants will send proof of (5) Proof of proper interest if (k) Authority to reject applications. proper interest with the application requesting correction of another The Executive Director may return an when requesting correction of another person’s records. application without action, if, after person’s military records. An (6) The applicant’s original signature. consultation with legal counsel, he or application may be returned when (e) Applicants should mail the she determines that the application is proper interest has not been shown. original signed DD Form 149 and any clearly frivolous, or the remedy that is supporting documents to the Air Force (3) A member, former member, requested is beyond the authority of the address on the back of the form. employee or former employee, Board. This authority may not be (f) Meeting time limits. Ordinarily, delegated. dependent, and current or former applicants must file an application spouse may apply to correct a document within 3 years after the error or injustice § 865.4 Board actions. or other record of any other military was discovered, or, with due diligence, (a) Board information sources. The matter that affects them (This does not should have been discovered. In applicant has the burden of providing include records pertaining to civilian accordance with federal law, time on sufficient evidence of material error or employment matters). Applicants will active duty is not included in the 3 year injustice. However, the Board: send proof of the effect of the document period. An application filed later is (1) May get additional information or record upon them with the untimely and may be denied by the and advisory opinions on an application application when requesting a Board on that basis. from any Air Force organization or correction under this provision. (1) The Board may excuse untimely official. (b) Getting forms. Applicants may get filing in the interest of justice. (2) May ask the applicant to furnish a DD Form 149, ‘‘Application for (2) If the application is filed late, additional information regarding Correction of Military Record Under the applicants should explain why it would matters before the Board. Provisions of Title 10 U.S.C. 1552,’’ and be in the interest of justice for the Board (b) Applicants will be given an Air Force Pamphlet 36–2607, to waive the time limits. opportunity to review and comment on ‘‘Applicants’ Guide to the Air Force (g) Stay of other proceedings. Board for Correction of Military Records Applying to the AFBCMR does not stay 1 Available via the Internet at http://www.dtic. (AFBCMR),’’ from: other proceedings. mil/whs/directives/corres/pdf/705006p.pdf.

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations 59615

advisory opinions and additional See DoDD 7050.06, Military (3) Briefs and written arguments. information obtained by the Board. Whistleblower Protection 2, and AFI 90– (4) Documentary evidence. They will also be provided with a copy 301, Inspector General Complaints (5) A hearing transcript if a hearing of correspondence to or from the Air Resolution. was held. Force Review Boards Agency with an (g) The Board will not deny or (6) Advisory opinions and the entity outside the Air Force Review recommend denial of an application on applicant’s related comments. Boards Agency in accordance with the the sole ground that the issue already (7) The findings, conclusions, and provisions of 10 U.S.C. 1556. has been decided by the Secretary of the recommendations of the Board. (c) Consideration by the Board. A Air Force or the President of the United (8) Minority reports, if any. (9) Other information necessary to panel consisting of at least three board States in another proceeding. members considers each application. (h) Board decisions. The panel’s show a true and complete history of the proceedings. One panel member serves as its chair. majority vote constitutes the action of (j) Minority reports. A dissenting The panel’s actions and decisions the Board. The Board will make panel member may prepare a minority constitute the actions and decisions of determinations on the following issues the Board. report which may address any aspect of in writing: the case. (d) The panel may decide the case in (1) Whether the provisions of the executive session or authorize a hearing. (k) Separate communications. The Military Whistleblowers Protection Act Board may send comments or When a hearing is authorized, the apply to the application. This procedures in § 865.4(f), of this part, recommendations to the Secretary of the determination is needed only when the Air Force as to administrative or apply. applicant invokes the protection of the (e) Board deliberations. Normally disciplinary action against individuals Act, or when the question of its found to have committed acts of reprisal only members of the Board and Board applicability is otherwise raised by the staff will be present during prohibited by the Military evidence. Whistleblowers Protection Act and on deliberations. The panel chair may (2) Whether the application was permit observers for training purposes other matters arising from an timely filed and, if not, whether the application not directly related to the or otherwise in furtherance of the applicant has demonstrated that it functions of the Board. requested correction of military records. would be in the interest of justice to Such comments and recommendations (f) Board hearings. The Board in its excuse the untimely filing. When the sole discretion determines whether to will be separately communicated and Board determines that an application is will not be included in the record of grant a hearing. Applicants do not have not timely, and does not excuse its a right to a hearing before the Board. proceedings or given to the applicant or untimeliness, the application will be counsel. (1) The Executive Director will notify denied on that basis. the applicant or counsel, if any, of the (l) Final action by the Board. The (3) Whether the applicant has Board acts for the Secretary of the Air time and place of the hearing. Written exhausted all available and effective notice will be mailed 30 days in Force and its decision is final when it: administrative remedies. If the applicant (1) Denies any application (except advance of the hearing unless the notice has not, the application will be denied under 10 U.S.C. 1034). period is waived by the applicant. The on that basis. (2) Grants any application in whole or applicant will respond not later than 15 (4) Whether the applicant has part when the relief was recommended days before the hearing date, accepting demonstrated the existence of a material by the official preparing the advisory or declining the offer of a hearing and, error or injustice that can be remedied opinion, was unanimously agreed to by if accepting, provide information effectively through correction of the the panel, and does not affect an pertaining to counsel and witnesses. applicant’s military record and, if so, appointment or promotion requiring The Board will decide the case in what corrections are needed to provide confirmation by the Senate, and does executive session if the applicant full and effective relief. not affect a matter for which the declines the hearing or fails to appear. (5) In Military Whistleblowers Secretary of the Air Force or his or her (2) When granted a hearing, the Protection Act cases only, whether to delegee has withheld decision authority applicant may appear before the Board recommend to the Secretary of the Air or required notification before final with or without counsel and may Force that disciplinary or administrative decision. present witnesses. It is the applicant’s action be taken against any Air Force (3) The Board sends the record of responsibility to notify witnesses, official whom the Board finds to have proceedings on all other applications to arrange for their attendance at the committed an act of reprisal against the the Secretary of the Air Force or his or hearing, and pay any associated costs. applicant. Any determination on this her designee for final decision. (3) The panel chair conducts the issue will not be made a part of the (m) The Board may identify DoD or hearing, maintains order, and ensures Board’s record of proceedings and will Air Force policies, instructions, the applicant receives a full and fair not be given to the applicant, but will guidance or practices that are leading to, opportunity to be heard. Formal rules of be provided directly to the Secretary of or likely to lead to unsound business evidence do not apply, but the panel the Air Force under separate cover (Sec decisions, unfair results, waste of observes reasonable bounds of 865.2b, of this part). government funds or public criticism. competency, relevancy, and materiality. (i) Record of proceedings. The Board The Board will forward such Witnesses other than the applicant will staff will prepare a record of observations directly to the appropriate not be present except when testifying. proceedings following deliberations offices of the Secretariat and/or Air Staff Witnesses will testify under oath or which will include: for review and evaluation. Such affirmation. A recorder will record the (1) The name and vote of each Board observations will not be included in the proceedings verbatim. The chair will member. record of proceedings. normally limit hearings to 2 hours but (2) The application. may allow more time if necessary to § 865.5 Decision of the Secretary of the Air Force. ensure a full and fair hearing. 2 Copies may be obtained via the Internet at (4) Additional provisions apply to http://www.dtic.mil/whs/directives/corres/pdf/ (a) The Secretary may direct such cases processed under 10 U.S.C. 1034. 705006p.pdf. action as he or she deems appropriate

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES 59616 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations

on each case, including returning the § 865.6 Reconsideration of applications. information to DFAS to establish their case to the Board for further (a) The Board may reconsider an status as proper parties to the claim and consideration. Cases returned to the application if the applicant submits to aid in deciding amounts due. Board for further reconsideration will be newly discovered relevant evidence that (3) Earnings received from civilian accompanied by a brief statement of the was not reasonably available when the employment during any period for reasons for such action. If the Secretary application was previously considered. which active duty pay and allowances does not accept the Board’s The Executive Director or Team Chiefs are payable will be deducted from the recommendation, the Secretary’s will screen each request for decision will be in writing and will reconsideration to determine whether it settlement. Amounts found due will be include a brief statement of the grounds contains new evidence. New arguments offset by the amount of any existing for his/her final decision. about, or analysis of, evidence already indebtedness to the government in compliance with the Debt Collection (b) Decisions in cases under the considered, and additional statements Act of 1982 or successor statutes. Military Whistleblowers Protection Act. which are cumulative to those already The Secretary will issue decisions on in the record of proceedings will not be (c) Public access to decisions. After such cases within 180 days after receipt considered new evidence. deletion of personal information, of the case and will, unless the full (b) If the request contains new AFBCMR decisions will be made relief requested is granted, inform evidence, the Executive Director or available for review and copying at an applicants of their right to request his/her designee will refer it to a panel electronic public reading room. review of the decision by the Secretary of the Board for a decision. The Board of Defense (SecDef). Applicants will will decide the relevance and weight of § 865.8 Miscellaneous provisions. also be informed: any new evidence, whether it was reasonably available to the applicant (a) At the request of the Board, all Air (1) Of the name and address of the when the application was previously Force activities and officials will furnish official to whom the request for review considered, and whether it was the Board with: must be submitted. submitted in a timely manner. The (1) All available military records (2) That the request for review must Board may deny reconsideration if the pertinent to an application. be submitted within 90 days after request does not meet the criteria for (2) An advisory opinion concerning receipt of the decision by the Secretary reconsideration. Otherwise the Board of the Air Force. an application. The advisory opinion will reconsider the application and will include an analysis of the facts of (3) That the request for review must decide the case either on timeliness or the case and of the applicant’s be in writing and include the merit as appropriate. applicant’s name, address, and (c) If the request does not contain new contentions, a statement of whether or telephone number; a copy of the evidence, the Executive Director or not the requested relief can be done application to the AFBCMR and the his/her designee will return it to the administratively, and a recommendation final decision of the Secretary of the Air applicant without referral to the Board. on the timeliness and merit of the Force; and a statement of the specific request. Regardless of the reasons the applicant is not satisfied § 856.7 Action after final decision. recommendation, the advisory opinion with the decision of the Secretary of the (a) Action by the Executive Director. will include instructions on specific Air Force. The Executive Director or his/her corrective action to be taken if the Board (4) That the request must be based on designee will inform the applicant or grants the application. counsel, if any, of the final decision on the Board record; requests for review (b) Access to records. Applicants will the application. If any requested relief based on factual allegations or evidence have access to all records considered by not previously presented to the Board was denied, the Executive Director will advise the applicant of reconsideration the Board, except those classified or will not be considered under this privileged. To the extent practicable, paragraph but may be the basis for procedures and, for cases processed under the Military Whistleblowers applicants will be provided unclassified reconsideration by the Board under or nonprivileged summaries or extracts § 865.6. Protection Act, review by the SecDef. The Executive Director will send of such records considered by the (c) In cases under § 865.5(b) of this decisions requiring corrective action to Board. part which involve additional issues not the Chief of Staff, U.S. Air Force, for (c) Payment of expenses. The Air cognizable under that paragraph, the necessary action. Force has no authority to pay expenses additional issues may be considered (b) Settlement of claims. The Air separately by the Board under § 865.3 of any kind incurred by or on behalf of Force is authorized, under 10 U.S.C. an applicant in connection with a and § 865.4 of this part. The special time 1552, to pay claims for amounts due to limit in § 865.5 (b) does not apply to the correction of military records under 10 applicants as a result of correction of U.S.C. 1034 or 1552. decision concerning these additional military records. issues. (1) The Executive Director will (d) Form adopted: DD Form 149. (d) Decisions in high profile or furnish the Defense Finance and Bao-Anh Trinh, sensitive cases. Prior to taking final Accounting Service (DFAS) with action on a BCMR application that has AFBCMR decisions potentially affecting Air Force Federal Register Liaison Officer. generated, or is likely to generate, monetary entitlement or benefits. DFAS [FR Doc. 2010–24118 Filed 9–27–10; 8:45 am] significant public or Congressional will treat such decisions as claims for BILLING CODE 5001–10–P interest, the Secretarial designee will payment by or on behalf of the provide the case record of proceedings applicant. through Secretarial channels to OSAF so (2) DFAS settles claims on the basis that the Secretary can determine of the corrected military record. whether to decide the case personally or Computation of the amount due, if any, take other action the Secretary deems is a function of DFAS. Applicants may appropriate. be required to furnish additional

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00012 Fmt 4700 Sfmt 9990 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations 59617

DEPARTMENT OF HOMELAND Docket Operations, telephone 202–366– • Adding a definition of ‘‘CDC residue’’ SECURITY 9826. that identified certain dry cargo in bulk SUPPLEMENTARY INFORMATION: that, at or below specified quantities, Coast Guard did not trigger NOA requirements. The Table of Contents for Preamble 2005 definition of CDC residue only 33 CFR Parts 104, 105, and 160 I. Abbreviations included residue quantities of bulk [Docket No. USCG–2004–19963] II. Regulatory History ammonium nitrate or ammonium nitrate III. Basis and Purpose fertilizer that remained onboard after RIN 1625–AA93 IV. Background the vessel discharges all saleable cargo; V. Discussion of Comments and Changes Notification of Arrival in U.S. Ports; VI. Regulatory Analyses no other cargo residues fell within the Certain Dangerous Cargoes A. Regulatory Planning and Review interim rule definition of CDC residue. B. Small Entities In response to the 2005 interim rule, AGENCY: Coast Guard, DHS. C. Assistance for Small Entities the Coast Guard received a comment ACTION: Final rule. D. Collection of Information from the Chemical Transportation E. Federalism SUMMARY: The Coast Guard is adopting, F. Unfunded Mandates Reform Act Advisory Committee (CTAC) suggesting with changes, an interim rule published G. Taking of Private Property that the Coast Guard revise the December 16, 2005, regarding certain H. Civil Justice Reform definition of CDC residue to include dangerous cargo (CDC) and notice of I. Protection of Children some bulk liquids and liquefied gases. arrival requirements. The interim rule J. Indian Tribal Governments The Coast Guard requested CTAC’s K. Energy Effects defined certain dangerous cargo residue Hazardous Cargoes Transportation L. Technical Standards Security Subcommittee to assist in our (CDC residue) as limited to certain dry M. Environment cargo and made other changes to rulemaking. They reviewed the current requirement that a CDC vessel remain a regulations in 33 CFR parts 104, 105, I. Abbreviations and 160. After reviewing comments on CDC vessel until the removal of all bulk the interim rule, the Coast Guard issued CDC Certain dangerous cargo liquid and liquefied gas CDC cargoes, CDC residue Certain dangerous cargo including residue quantities of such a notice of proposed rulemaking in 2009 residue that proposed to change the CDC cargoes, from the vessel. The Committee CFR Code of Federal Regulations completed its recommendation on residue definition to include certain CTAC Chemical Transportation Advisory bulk liquids and liquefied gases in Committee August 24, 2006, and submitted it to the residue quantities, revise the definition DHS Department of Homeland Security Coast Guard for review and of CDC to reflect the proposed change in FR Federal Register consideration. (See the CTAC the CDC residue definition, and adopt NOA Notice of arrival Recommendations Related to Residues other changes introduced by the 2005 NPRM Notice of proposed rulemaking of CDC Cargoes, August 24, 2006, which interim rule. This final rule will relieve OMB Office of Management and Budget is available in the docket for this TSAC Towing Safety Advisory Committee rulemaking.) The Coast Guard an unnecessary burden on industry by U.S.C. United States Code including more lower-risk cargoes in the concurred with CTAC’s recommendations to— CDC residue category and thereby II. Regulatory History reducing the number of notice of arrival • Keep cargoes of Anhydrous The Coast Guard published an interim submissions required based on the cargo Ammonia, Chlorine, Ethane, Ethylene a vessel is carrying. rule on December 16, 2005, titled ‘‘Notification of Arrival in U.S. Ports; Oxide, Methane (LNG), Methyl DATES: This final rule is effective Certain Dangerous Cargoes; Electronic Bromide, Sulfur Dioxide, and Vinyl October 28, 2010. Submission’’ (70 FR 74663). That Chloride as CDC at all times, even when ADDRESSES: Comments and material interim rule adopted the definition of only residue quantities remain onboard. received from the public, as well as certain dangerous cargo (CDC), which a • Allow other cargoes that would be documents mentioned in this preamble 2004 temporary final rule (69 FR 51176, considered CDC in larger quantities to as being available in the docket, are a August 18, 2004) introduced. By be defined as CDC residue if the amount part of docket USCG–2004–19963 and revising § 104.105 in Title 33 of the that remains onboard in a cargo system are available for inspection or copying Code of Federal Regulations (33 CFR), after discharge is not accessible through at the Docket Management Facility (M– the interim rule also made permanent normal transfer procedures. 30), U.S. Department of Transportation, the application of vessel security West Building Ground Floor, Room The Coast Guard took steps to requirements in 33 CFR part 104 to implement these recommendations. On W12–140, 1200 New Jersey Avenue, SE., barges carrying CDC. The interim rule, Washington, DC 20590, between 9 a.m. December 23, 2009, we published a however, removed the remainder of the notice of proposed rulemaking (NPRM) and 5 p.m., Monday through Friday, temporary changes made to 33 CFR except Federal holidays. You may also titled ‘‘Notification of Arrival in U.S. parts 104 and 105 because they involved Ports; Certain Dangerous Cargoes’’ (74 find this docket on the Internet by going past submission and compliance to http://www.regulations.gov, inserting FR 68208). In it, the Coast Guard deadlines and were no longer necessary. proposed to amend the definitions of USCG–2004–19963 in the ‘‘Keyword’’ The interim rule also introduced box, and then clicking ‘‘Search.’’ CDC and CDC residue in accordance changes that were not included in the with CTAC’s recommendation. With the FOR FURTHER INFORMATION CONTACT: If 2004 temporary final rule, including— exception of the revision of these two you have questions on this rule, call or • Adding another optional method, via definitions, the NPRM proposed to e-mail Lieutenant Sharmine Jones, Microsoft InfoPath, for electronic Office of Vessel Activities, Coast Guard; submission of notices of arrival (NOAs). adopt the current regulations introduced telephone 202–372–1234, e-mail • Clarifying that Coast Guard NOA by the interim rule in 2005 as final. [email protected]. If you have regulations in 33 CFR part 160, subpart We received two comments on the questions on viewing the docket, call C, do not apply to U.S. recreational proposed rule. No public meeting was Renee V. Wright, Program Manager, vessels. requested and none was held.

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES 59618 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations

III. Basis and Purpose CDC so that residue quantities of some VI. Regulatory Analyses Under authority of the Ports and chemicals are not classified as CDC. We developed this rule after Waterways Safety Act (see, specifically, This commenter commended the Coast considering numerous statutes and 33 U.S.C. 1223 and 1231) and the Guard for working with CTAC to executive orders related to rulemaking. Maritime Transportation Security Act develop ‘‘this more sophisticated and Below we summarize our analyses (46 U.S.C. Chapter 701), as delegated by nuanced approach to security based on 13 of these statutes or Department of Homeland Security requirements for CDCs in residue form.’’ executive orders. First, the commenter concurred with Delegation No. 0170.1, the Coast Guard A. Regulatory Planning and Review is adopting, with changes, the interim the Coast Guard’s proposal that eight rule published on December 16, 2005 CDCs—anhydrous ammonia, chlorine, This rule is not a significant (70 FR 74663) regarding CDC and NOA ethane, ethylene oxide, methane (LNG), regulatory action under section 3(f) of requirements. This final rule reflects the methyl bromide, sulfur dioxide, and Executive Order 12866, Regulatory adoptions and changes as proposed in vinyl chloride—should maintain their Planning and Review, and does not the Coast Guard’s 2009 NPRM (74 FR CDC classification when in residue require an assessment of potential costs 68208). This rule will also relieve an form. Regardless of how small the and benefits under section 6(a)(3) of that unnecessary burden on industry by quantities of these eight substances that Order. Accordingly, OMB has not including more lower-risk cargoes in the remain onboard in a cargo system after reviewed it under that Order. In the NPRM, published on December CDC residue category and reducing the discharge are, they will still be defined 23, 2009 (74 FR 68208, 68212), we number of NOA submissions required as CDC. Second, as manifested in our estimated that there are on average based on the cargo a vessel is carrying. revised definition of CDC residue, the 2,800 vessels currently carrying CDCs Additionally, it will complete this commenter also believed that in the case that make approximately 25,000 port rulemaking, which has already of all other CDCs, industry practices are arrivals a year. With this rule, some of introduced existing requirements into sufficiently effective in diluting CDC these vessels will no longer be required 33 CFR parts 104, 105, and 160. residues, that it is prudent for the Coast Guard to develop a different set of to submit NOAs when transporting IV. Background security requirements for vessels with residue quantities of certain CDCs. As detailed in the NPRM, we estimate a 5 NOA regulations require the these types of residues onboard. percent annual reduction in the number submission of information about certain The Coast Guard agrees with the of NOAs submitted as a result of this vessels and their voyages, including assessment to change the definition of final rule, which is equivalent to a cargoes, crews, and other persons CDC residue and to exclude certain $22,000 decrease in cost burden for onboard to the Coast Guard’s National CDCs from that definition. Because of vessel operators that transport certain Vessel Movement Center before those this change, fewer vessels carrying only lower-risk cargoes will trigger NOA or CDCs in residue status. vessels arrive at a port or place in the We received no public comments or United States. The Coast Guard uses the other security requirements that apply to vessels carrying CDC. additional information that would alter information contained in the NOA to our assessment of the impacts presented This commenter also noted that while implement appropriate safety and in the NPRM. security measures, including security standing by her recommendation, she screening and escorts into port. does not want her ‘‘endorsement of the B. Small Entities In 2003, the Coast Guard became revised definition of CDC residue [to] be Under the Regulatory Flexibility Act concerned about the potential security seen as an endorsement of the current (5 U.S.C. 601–612), we have considered hazards of bulk ammonium nitrate and process for submitting NOAs generally.’’ whether this rule would have a propylene oxide cargoes transported on The commenter encourages the Coast significant economic impact on a U.S. waters. After consultation with Guard to use these two parallel substantial number of small entities. CTAC and the Towing Safety Advisory rulemakings ‘‘to seriously evaluate the The term ‘‘small entities’’ comprises Committee (TSAC), (see, e.g., TSAC impractical process requiring operators small businesses, not-for-profit Report on Task 03–03, Recommendation to submit NOAs to * * * the National organizations that are independently 124, which is available in the docket for Vessel Movement Center and the Inland owned and operated and are not this rulemaking), the Coast Guard River Vessel Movement Center[], dominant in their fields, and determined that these substances should depending on a vessel’s position on the governmental jurisdictions with be considered CDC (69 FR 51176, 51177, inland river system.’’ populations of less than 50,000. August 18, 2004) and, as noted, The NOA CDC NPRM focused on In the NPRM, we certified that under published a temporary final rule in 2004 changing the definition of CDC residue. 5 U.S.C. 605(b) the proposed rule would (69 FR 51176), followed by an interim Revising where vessels should report not have a significant economic impact rule in 2005 (70 FR 74663). The Coast based on requirements in both 33 CFR on a substantial number of small Guard’s definition of CDC appears in 33 parts 160 and 165 is beyond the scope entities. We received no public CFR 160.204. CDC includes substances of this rulemaking. The Coast Guard comments or additional information or materials that have been determined will address this comment about the that would alter our certification of the to pose an unreasonable risk to health, National Vessel Movement Center and rule. safety, and property if improperly the Inland River Vessel Movement This rule will not increase the NOA handled. Existing regulations require Center in its broader, ‘‘Vessel reporting costs to vessel operators most vessels carrying CDC to submit Requirements for Notices of Arrival and shipping CDC. We estimate that this NOAs. Departure, and Automatic Identification rule will reduce the burden to vessel System’’ (RIN 1625–AA99) rulemaking. operators shipping residue quantities of V. Discussion of Comments and The Coast Guard did not make any certain CDCs. Therefore, the Coast Changes changes from the NOA CDC proposed Guard certifies that under 5 U.S.C. The Coast Guard received one letter rule based on these comments. This 605(b) this final rule will not have a containing two comments on the final rule remains the same as proposed significant economic impact on a proposal to change the definition of in the NPRM. substantial number of small entities.

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations 59619

C. Assistance for Small Entities F. Unfunded Mandates Reform Act require a Statement of Energy Effects Under section 213(a) of the Small The Unfunded Mandates Reform Act under Executive Order 13211. Business Regulatory Enforcement of 1995 (2 U.S.C. 1531–1538) requires L. Technical Standards Fairness Act of 1996 (Pub. L. 104–121), Federal agencies to assess the effects of The National Technology Transfer we offered to assist small entities in their discretionary regulatory actions. In and Advancement Act (15 U.S.C. 272 understanding the rule so that they particular, the Act addresses actions note) directs agencies to use voluntary could better evaluate its effects on them that may result in the expenditure by a consensus standards in their regulatory and participate in the rulemaking. The State, local, or tribal government, in the activities unless the agency provides Coast Guard will not retaliate against aggregate, or by the private sector of Congress, through the Office of small entities that question or complain $100,000,000 (adjusted for inflation) or Management and Budget, with an about this rule or any policy or action more in any one year. Though this rule explanation of why using these of the Coast Guard. will not result in such an expenditure, standards would be inconsistent with Small businesses may send comments we do discuss the effects of this rule applicable law or otherwise impractical. on the actions of Federal employees elsewhere in this preamble. who enforce, or otherwise determine Voluntary consensus standards are compliance with, Federal regulations to G. Taking of Private Property technical standards (e.g., specifications the Small Business and Agriculture This rule will not cause a taking of of materials, performance, design, or Regulatory Enforcement Ombudsman private property or otherwise have operation; test methods; sampling and the Regional Small Business taking implications under Executive procedures; and related management Regulatory Fairness Boards. The Order 12630, Governmental Actions and systems practices) that are developed or Ombudsman evaluates these actions Interference with Constitutionally adopted by voluntary consensus annually and rates each agency’s Protected Property Rights. standards bodies. This rule does not use technical responsiveness to small business. If you H. Civil Justice Reform standards. Therefore, we did not wish to comment on actions by consider the use of voluntary consensus employees of the Coast Guard, call This rule meets applicable standards standards. 1–888–REG–FAIR (1–888–734–3247). in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to M. Environment D. Collection of Information minimize litigation, eliminate We have analyzed this rule under This rule calls for no new collection ambiguity, and reduce burden. Department of Homeland Security of information under the Paperwork I. Protection of Children Management Directive 023–01 and Reduction Act of 1995 (44 U.S.C. 3501– Commandant Instruction M16475.lD, 3520). In our NPRM, however, we noted We have analyzed this rule under which guide the Coast Guard in it would modify an existing collection Executive Order 13045, Protection of complying with the National under OMB Control Number 1625–0100, Children from Environmental Health Environmental Policy Act of 1969 Advance Notice of Vessel Arrival, by Risks and Safety Risks. This rule is not (NEPA) (42 U.S.C. 4321–4370f), and reducing the number of responses. We an economically significant rule and have concluded that this action is one received no public comments or does not create an environmental risk to of a category of actions which does not additional information that would alter health or risk to safety that may individually or cumulatively have a our estimates in the NPRM of the disproportionately affect children. significant effect on the human burden imposed by this rule through the J. Indian Tribal Governments environment. This rule is categorically ANOA collection of information. As required by 44 U.S.C. 3507(d), we This rule does not have tribal excluded under section 2.B.2, figure submitted a copy of the proposed rule implications under Executive Order 2–1, paragraph (34)(a) and (d) of the to the Office of Management and Budget 13175, Consultation and Coordination Instruction. An environmental analysis (OMB) for its review of the collection of with Indian Tribal Governments, checklist and a categorical exclusion information. We received no comments because it does not have a substantial determination are available in the from either OMB or the public on the direct effect on one or more Indian docket where indicated under collection of information portion of our tribes, on the relationship between the ADDRESSES. NPRM, and we have made no changes Federal Government and Indian tribes, List of Subjects to the final rule from what we proposed or on the distribution of power and in the NPRM. responsibilities between the Federal 33 CFR Part 104 On January 29, 2010, OMB approved Government and Indian tribes. Maritime security, Reporting and collection 1625–0100 until January 31, K. Energy Effects recordkeeping requirements, Security 2012, without change. You are not measures, Vessels. required to respond to a collection of We have analyzed this rule under information unless it displays a Executive Order 13211, Actions 33 CFR Part 105 currently valid OMB control number. Concerning Regulations That Maritime security, Reporting and Significantly Affect Energy Supply, recordkeeping requirements, Security E. Federalism Distribution, or Use. We have measures. A rule has implications for federalism determined that it is not a ‘‘significant under Executive Order 13132, energy action’’ under that order because 33 CFR Part 160 Federalism, if it has a substantial direct it is not a ‘‘significant regulatory action’’ Administrative practice and effect on State or local governments and under Executive Order 12866 and is not procedure, Harbors, Hazardous would either preempt State law or likely to have a significant adverse effect materials transportation, Marine safety, impose a substantial direct cost of on the supply, distribution, or use of Navigation (water), Reporting and compliance on them. We have analyzed energy. The Administrator of the Office recordkeeping requirements, Vessels, this rule under that Order and have of Information and Regulatory Affairs Waterways. determined that it does not have has not designated it as a significant ■ For the reasons discussed in the implications for federalism. energy action. Therefore, it does not preamble, the Coast Guard adopts the

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES 59620 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations

amendments to 33 CFR parts 104, 105, carried under 46 CFR 151.50–31 or Avenue, SE., Washington, DC 20590, and 160 introduced by the interim rule listed in 46 CFR 154.7: between 9 a.m. and 5 p.m., Monday published at 70 FR 74669 on December (i) Ammonia, anhydrous; through Friday, except Federal holidays. 16, 2005, as final with the following (ii) Chlorine; FOR FURTHER INFORMATION CONTACT: If changes: (iii) Ethane; you have questions on this temporary (iv) Ethylene oxide; rule, call or e-mail Lieutenant Junior PART 160—PORTS AND WATERWAYS (v) Methane (LNG); Grade Jason Erickson, Coast Guard; SAFETY—GENERAL (vi) Methyl bromide; telephone 901–521–4753, e-mail ■ 1. The authority citation for part 160 (vii) Sulfur dioxide; and [email protected]. If you have continues to read as follows: (viii) Vinyl chloride. questions on viewing the docket, call * * * * * Renee V. Wright, Program Manager, Authority: 33 U.S.C. 1223, 1231; 46 U.S.C. Docket Operations, telephone 202–366– Dated: September 20, 2010. Chapter 701; Department of Homeland 9826. Security Delegation No. 0170.1. Subpart C is Kevin S. Cook, SUPPLEMENTARY INFORMATION: also issued under the authority of 33 U.S.C. Rear Admiral, U.S. Coast Guard, Director of 1225 and 46 U.S.C. 3715. Prevention Policy. Regulatory Information ■ 2. In § 160.204, revise paragraphs (7) [FR Doc. 2010–24221 Filed 9–27–10; 8:45 am] The Coast Guard is issuing this through (9) of the definition for ‘‘Certain BILLING CODE 9110–04–P temporary final rule without prior dangerous cargo (CDC)’’ and the entire notice and opportunity to comment ‘‘ definition of Certain dangerous cargo pursuant to authority under section 4(a) ’’ residue (CDC residue) to read as DEPARTMENT OF HOMELAND of the Administrative Procedure Act follows: SECURITY (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule § 160.204 Definitions. Coast Guard * * * * * without prior notice and opportunity to comment when the agency for good Certain dangerous cargo (CDC) *** 33 CFR Part 165 cause finds that those procedures are * * * * * [Docket No. USCG–2010–0872] ‘‘impracticable, unnecessary, or contrary (7) All bulk liquefied gas cargo carried ’’ RIN 1625–AA00 to the public interest. Under 5 U.S.C. under 46 CFR 151.50–31 or listed in 46 553(b)(B), the Coast Guard finds that CFR 154.7 that is flammable and/or Natchez Fireworks Safety Zone; Lower good cause exists for not publishing a toxic and that is not carried as certain notice of proposed rulemaking (NPRM) dangerous cargo residue (CDC residue). Mississippi River, Mile Marker 365.5 to Mile Marker 363, Natchez, MS with respect to this rule because (8) The following bulk liquids except immediate action is needed to protect when carried as CDC residue: AGENCY: Coast Guard, DHS. the participants in the fireworks (i) Acetone cyanohydrin; ACTION: Temporary final rule. display, spectators, and mariners from (ii) Allyl alcohol; the safety hazards associated with a (iii) Chlorosulfonic acid; SUMMARY: The Coast Guard is fireworks display taking place on a (iv) Crotonaldehyde; establishing a temporary safety zone for confined waterway. (v) Ethylene chlorohydrin; all waters of the Lower Mississippi Under 5 U.S.C. 553(d)(3), the Coast (vi) Ethylene dibromide; River from mile marker 365.5 to 363 Guard finds that good cause exists for (vii) Methacrylonitrile; extending the entire width of the river. making this rule effective less than 30 (viii) Oleum (fuming sulfuric acid); This safety zone is needed to protect days after publication in the Federal and persons and vessels from the potential Register. This is because immediate (ix) Propylene oxide, alone or mixed safety hazards associated with a action is needed to protect the with ethylene oxide. fireworks display. Entry into this zone participants in the fireworks display, (9) The following bulk solids: is prohibited to all vessels, mariners, spectators, and mariners from the safety (i) Ammonium nitrate listed as a and persons unless specifically hazards associated with a fireworks Division 5.1 (oxidizing) material in 49 authorized by the Captain of the Port display taking place on a confined CFR 172.101 except when carried as (COTP) Lower Mississippi River or a waterway. CDC residue; and designated representative. The COTP Basis and Purpose (ii) Ammonium nitrate based fertilizer Lower Mississippi River or a designated listed as a Division 5.1 (oxidizing) representative must authorize vessels On September 13, 2010, the Coast material in 49 CFR 172.101 except when that desire to operate in this zone. Guard received an Application for carried as CDC residue. DATES: This rule is effective from 8 p.m. Approval of Marine Event for a Certain dangerous cargo residue (CDC fireworks display on the Lower residue) includes any of the following: through 8:30 p.m. on September 28, 2010. Mississippi River. This safety zone is (1) Ammonium nitrate in bulk or needed to protect participants, ammonium nitrate based fertilizer in ADDRESSES: Documents indicated in this spectators, and other mariners from the bulk remaining after all saleable cargo is preamble as being available in the possible hazards associated with a discharged, not exceeding 1,000 pounds docket are part of docket USCG–2010– fireworks show taking place on the in total and not individually 0872 and are available online by going Lower Mississippi River. The fallout accumulated in quantities exceeding to http://www.regulations.gov, inserting zone extends into the navigable channel two cubic feet. USCG–2010–0872 in the ‘‘Keyword’’ of the river. (2) For bulk liquids and liquefied box, and then clicking ‘‘Search.’’ They gases, the cargo that remains onboard in are also available for inspection or Discussion of Rule a cargo system after discharge that is not copying at the Docket Management The Coast Guard is establishing a accessible through normal transfer Facility (M–30), U.S. Department of temporary safety zone for all waters of procedures, with the exception of the Transportation, West Building Ground the Lower Mississippi from mile marker following bulk liquefied gas cargoes Floor, Room W12–140, 1200 New Jersey 365.5 to 363 extending the entire width

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations 59621

of the river. Entry into this zone is for one hour on the day the event is $100,000,000 (adjusted for inflation) or prohibited to all vessels, mariners, and occurring. In addition, the common more in any one year. Though this rule persons unless specifically authorized vessel traffic in this area is limited will not result in such an expenditure, by the COTP Lower Mississippi River or almost entirely to recreational vessels we do discuss the effects of this rule a designated representative. and commercial towing vessels. elsewhere in this preamble. The COTP may be contacted by If you think that your business, telephone at (901) 521–4822. The COTP organization, or governmental Taking of Private Property Lower Mississippi River or a designated jurisdiction qualifies as a small entity This rule will not cause a taking of representative will inform the public and that this rule would have a private property or otherwise have through broadcast notice to mariners of significant economic impact on it, taking implications under Executive changes in the effective period for the please submit a comment (see Order 12630, Governmental Actions and safety zone. This rule is effective from ADDRESSES) explaining why you think it Interference with Constitutionally 8 p.m. to 8:30 p.m., local time, on qualifies and how and to what degree Protected Property Rights. September 28, 2010. this rule would economically affect it. Civil Justice Reform Regulatory Analyses Assistance for Small Entities This rule meets applicable standards We developed this rule after Under section 213(a) of the Small in sections 3(a) and 3(b)(2) of Executive considering numerous statutes and Business Regulatory Enforcement Order 12988, Civil Justice Reform, to executive orders related to rulemaking. Fairness Act of 1996 (Pub. L. 104–121), minimize litigation, eliminate Below we summarize our analyses we offer to assist small entities in ambiguity, and reduce burden. based on 13 of these statutes or understanding the rule so that they can Protection of Children executive orders. better evaluate its effects on them and participate in the rulemaking process. We have analyzed this rule under Regulatory Planning and Review Small businesses may send comments Executive Order 13045, Protection of This rule is not a significant on the actions of Federal employees Children from Environmental Health regulatory action under section 3(f) of who enforce, or otherwise determine Risks and Safety Risks. This rule is not Executive Order 12866, Regulatory compliance with, Federal regulations to an economically significant rule and Planning and Review, and does not the Small Business and Agriculture does not create an environmental risk to require an assessment of potential costs Regulatory Enforcement Ombudsman health or risk to safety that may and benefits under section 6(a)(3) of that and the Regional Small Business disproportionately affect children. Order. The Office of Management and Regulatory Fairness Boards. The Indian Tribal Governments Budget has not reviewed it under that Ombudsman evaluates these actions Order. annually and rates each agency’s This rule does not have tribal This rule will only be in effect for a responsiveness to small business. If you implications under Executive Order short period of time and notifications to wish to comment on actions by 13175, Consultation and Coordination the marine community will be made employees of the Coast Guard, call with Indian Tribal Governments, through broadcast notice to mariners. 1–888–REG–FAIR (1–888–734–3247). because it does not have a substantial The impacts on routine navigation are The Coast Guard will not retaliate direct effect on one or more Indian expected to be minimal. against small entities that question or tribes, on the relationship between the Federal Government and Indian tribes, Small Entities complain about this rule or any policy or action of the Coast Guard. or on the distribution of power and Under the Regulatory Flexibility Act responsibilities between the Federal (5 U.S.C. 601–612), we have considered Collection of Information Government and Indian tribes. whether this rule would have a This rule calls for no new collection Energy Effects significant economic impact on a of information under the Paperwork substantial number of small entities. Reduction Act of 1995 (44 U.S.C. 3501– We have analyzed this rule under The term ‘‘small entities’’ comprises 3520). Executive Order 13211, Actions small businesses, not-for-profit Concerning Regulations That organizations that are independently Federalism Significantly Affect Energy Supply, owned and operated and are not A rule has implications for federalism Distribution, or Use. We have dominant in their fields, and under Executive Order 13132, determined that it is not a ‘‘significant governmental jurisdictions with Federalism, if it has a substantial direct energy action’’ under that order because populations of less than 50,000. effect on State or local governments and it is not a ‘‘significant regulatory action’’ The Coast Guard certifies under 5 would either preempt State law or under Executive Order 12866 and is not U.S.C. 605(b) that this rule will not have impose a substantial direct cost of likely to have a significant adverse effect a significant economic impact on a compliance on them. We have analyzed on the supply, distribution, or use of substantial number of small entities. this rule under that Order and have energy. The Administrator of the Office This rule will affect the following determined that it does not have of Information and Regulatory Affairs entities, some of which may be small implications for federalism. has not designated it as a significant entities: the owners or operators of energy action. Therefore, it does not Unfunded Mandates Reform Act vessels intending to transit the Lower require a Statement of Energy Effects Mississippi River between mile marker The Unfunded Mandates Reform Act under Executive Order 13211. 363 and mile marker 365.5, effective of 1995 (2 U.S.C. 1531–1538) requires from 8 p.m. to 8:30 p.m., local time, on Federal agencies to assess the effects of Technical Standards September 28, 2010. their discretionary regulatory actions. In The National Technology Transfer This safety zone will not have a particular, the Act addresses actions and Advancement Act (NTTAA) (15 significant economic impact on a that may result in the expenditure by a U.S.C. 272 note) directs agencies to use substantial number of small entities State, local, or tribal government, in the voluntary consensus standards in their because this rule will only be in effect aggregate, or by the private sector of regulatory activities unless the agency

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES 59622 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations

provides Congress, through the Office of Mississippi River, beginning at mile rulemaking process. This supplemental Management and Budget, with an marker 363 and ending at mile marker final rule describes a final GHG analysis explanation of why using these 365.5, extending the entire width of the for canola oil biodiesel. It also finalizes standards would be inconsistent with river. our regulatory determination that canola applicable law or otherwise impractical. (b) Effective dates. This section is oil biodiesel meets the biomass-based Voluntary consensus standards are effective from 8 p.m. through 8:30 p.m., diesel and advanced biofuel GHG technical standards (e.g., specifications local time, on September 28, 2010. reduction thresholds of 50% as of materials, performance, design, or (c) Regulations. (1) In accordance with compared to the baseline petroleum fuel operation; test methods; sampling the general regulations of this part, entry it will replace, petroleum diesel. This procedures; and related management into this zone is prohibited unless final rules will allow producers or systems practices) that are developed or authorized by the Captain of the Port importers of canola oil biodiesel fuel to adopted by voluntary consensus Lower Mississippi River or a designated generate biomass-based diesel standards bodies. representative. Renewable Identification Numbers This rule does not use technical (2) Persons or vessels requiring entry (RINs), providing that the fuel meets standards. Therefore, we did not into or passage through the zone must other definitional criteria for renewable consider the use of voluntary consensus request permission from the Captain of fuel (e.g., produced from renewable standards. the Port Lower Mississippi River or a biomass as defined in the RFS2 designated representative. They may be Environment regulations, and used to reduce or contacted on VHF–FM channels 16 or replace petroleum-based transportation We have analyzed this rule under by telephone at (901) 521–4822. fuel, heating oil or jet fuel). In addition, Department of Homeland Security (3) All persons and vessels shall this rule includes a new regulatory Management Directive 023–01 and comply with the instructions of the provision establishing a temporary and Commandant Instruction M16475.lD, Captain of the Port Lower Mississippi limited means for producers or which guide the Coast Guard in River and designated personnel. importers of canola oil biodiesel to complying with the National Designated personnel include generate RINs for qualifying biofuel Environmental Policy Act of 1969 commissioned, warrant, and petty produced or imported between July 1, (NEPA) (42 U.S.C. 4321–4370f), and officers of the U.S. Coast Guard. 2010, and the effective date of this rule. have concluded this action is one of a (d) Informational Broadcasts: The category of actions that do not Captain of the Port, Lower Mississippi DATES: This final rule is effective on individually or cumulatively have a River will inform the public when safety September 28, 2010. zones have been established via significant effect on the human ADDRESSES: EPA has established a Broadcast Notice to Mariners. environment. This rule is categorically docket for this action under Docket ID excluded, under figure 2–1, paragraph Dated: September 16, 2010. No. EPA–HQ–OAR–2010–0133. All (34)(g), of the Instruction. This rule Michael Gardiner, documents in the docket are listed on involves the establishment of a safety Captain, U.S. Coast Guard, Captain of the the http://www.regulations.gov web site. zone. Port, Lower Mississippi River. Although listed in the index, some An environmental analysis checklist [FR Doc. 2010–24237 Filed 9–27–10; 8:45 am] information is not publicly available, and a categorical exclusion BILLING CODE 9110–04–P e.g., confidential business information determination are available in the (CBI) or other information whose docket where indicated under disclosure is restricted by statute. ADDRESSES. ENVIRONMENTAL PROTECTION Certain other material, such as List of Subjects in 33 CFR Part 165 AGENCY copyrighted material, is not placed on the Internet and will be publicly Harbors, Marine safety, Navigation 40 CFR Part 80 available only in hard copy form. (water), Reporting and recordkeeping [EPA–HQ–OAR–2010–0133; FRL–9207–1] Publicly available docket materials are requirements, Security measures, available either electronically through Waterways. RIN 2060–AQ35 http://www.regulations.gov or in hard ■ For the reasons discussed in the copy at the Air and Radiation Docket preamble, the Coast Guard is amending Supplemental Determination for and Information Center, EPA/DC, EPA 33 CFR part 165 as follows: Renewable Fuels Produced Under the West, Room 3334, 1301 Constitution Final RFS2 Program From Canola Oil Ave., NW., Washington, DC 20004. The PART 165—REGULATED NAVIGATION Public Reading Room is open from 8:30 AREAS AND LIMITED ACCESS AREAS AGENCY: Environmental Protection Agency (EPA). a.m. to 4:30 p.m., Monday through ■ 1. The authority citation for part 165 ACTION: Final rule. Friday, excluding legal holidays. The continues to read as follows: telephone number for the Public SUMMARY: Reading Room is (202) 566–1744, and Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. On March 26, 2010, the Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; Environmental Protection Agency the telephone number for the Air Docket 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. published final changes to the is (202) 566–1742. Renewable Fuel Standard (RFS) 107–295, 116 Stat. 2064; Department of FOR FURTHER INFORMATION CONTACT: Homeland Security Delegation No. 0170.1 program as required by the Energy Doris Wu, Office of Transportation and Independence and Security Act (EISA) ■ 2. A new temporary § 165.T08–0872 is Air Quality, Transportation and Climate of 2007. In the preamble to the final added to read as follows: Division, Environmental Protection rule, EPA indicated that it had not Agency, 2000 Traverwood Drive, Ann § 165.T08–0872 Natchez Fireworks Safety completed the lifecycle greenhouse gas Arbor, MI 48105; telephone number: Zone; Lower Mississippi River, Mile Marker (GHG) emissions impact analysis for 734–214–4923; fax number: 734–214– 365.5 to Mile Marker 363, Natchez, MS several specific biofuel production 4958; e-mail address: [email protected]. (a) Location. The following area is a pathways but that this work would be safety zone: those waters of the Lower completed through a supplemental final SUPPLEMENTARY INFORMATION:

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations 59623

I. General Information production, distribution, and sale of as ethanol and biodiesel. Regulated transportation fuels, including gasoline categories include: A. Does this action apply to me? and diesel fuel or renewable fuels such Entities potentially affected by this action are those involved with the

Category NAICS 1 codes SIC 2 codes Examples of potentially regulated entities

Industry ...... 324110 2911 Petroleum Refineries. Industry ...... 325193 2869 Ethyl alcohol manufacturing. Industry ...... 325199 2869 Other basic organic chemical manufacturing. Industry ...... 424690 5169 Chemical and allied products merchant wholesalers. Industry ...... 424710 5171 Petroleum bulk stations and terminals Chemical and allied products merchant wholesalers. Industry ...... 424720 5172 Petroleum and petroleum products merchant wholesalers. Industry ...... 454319 5989 Other fuel dealers. 1 North American Industry Classification System (NAICS). 2 Standard Industrial Classification (SIC) system code.

This table is not intended to be K. Congressional Review Act We issued a notice of data availability exhaustive, but rather provides a guide VI. Statutory Provisions and Legal Authority (NODA) on July 26, 2010 which for readers regarding entities likely to be described the methodology and I. Executive Summary regulated by the RFS2 program. This modeling assumptions, and proposed table lists the types of entities that EPA On March 26, 2010, the lifecycle GHG assessment, for canola oil is now aware of that could potentially Environmental Protection Agency biodiesel. EPA provided a 30-day public be regulated under the program. To published final changes to the comment period on the NODA. In determine whether your activities Renewable Fuel Standard (RFS) addition, we sought input from several would be regulated, you should program as required by the Energy stakeholders during the development of carefully examine the applicability Independence and Security Act (EISA) this rule and have worked closely with criteria in 40 CFR part 80, Subpart M. of 2007. EISA increased the volume of other Federal agencies, in particular the If you have any questions regarding the renewable fuel required to be blended U.S. Departments of Energy and applicability of this action to a into transportation fuel to 36 billion Agriculture. In general, the public particular entity, consult the person gallons by 2022. Furthermore, the Act comments received supported our listed in the preceding section. established new eligibility requirements proposed lifecycle analysis, and we are for four categories of renewable fuel, finalizing the proposal without Outline of This Preamble modification. each with their own annual volume The agency continues to recognize I. Executive Summary mandates. The eligibility requirements II. Lifecycle Analysis of Greenhouse Gas that lifecycle GHG assessment of Emissions for Canola Oil Biodiesel include minimum lifecycle greenhouse biofuels is an evolving discipline. As we A. Methodology and Key Assumptions gas (GHG) reduction thresholds for each noted in the final RFS2 rule, EPA will 1. Models category of renewable fuel. EPA revisit our lifecycle analyses in the 2. Scenarios Modeled conducted lifecycle GHG analyses for a future as new information becomes 3. Year of Analysis number of biofuel feedstocks and available. In addition, EPA is moving 4. Biodiesel Processing Assumptions production pathways for the final rule. 5. Other Assumptions forward with plans to ask the National In the preamble to that final rule, EPA Academy of Sciences to make B. Threshold Determination and indicated that it had not completed the Assignment of Pathways recommendations for these future III. Delayed RIN Generation for New lifecycle greenhouse gas emissions lifecycle GHG assessments. This current Pathways impact analysis for certain biofuel canola analysis and subsequent IV. Public Participation production pathways but that this work supplemental analysis being conducted V. Statutory and Executive Order Reviews would be completed through a will continue to use the same lifecycle A. Executive Order 12866: Regulatory supplemental final rulemaking process. modeling approach as used for the RFS2 Planning and Review This supplemental final rule describes a final rule and will be revisited along B. Paperwork Reduction Act final GHG analysis for canola oil with other fuels as part of any future C. Regulatory Flexibility Act biodiesel. It also finalizes our regulatory lifecycle updates as appropriate. D. Unfunded Mandates Reform Act determination that canola oil biodiesel E. Executive Order 13132: Federalism In addition, on July 20, 2010, EPA F. Executive Order 13175: Consultation qualifies as biomass-based biodiesel and issued a Notice of Proposed Rulemaking and Coordination With Indian Tribal advanced biofuel under RFS2 regulatory (NPRM) for the 2011 renewable fuel Governments provisions, providing that the fuel meets standards.1 This NPRM included a G. Executive Order 13045: Protection of other definitional criteria for renewable proposed provision to allow the Children From Environmental Health fuel (e.g., produced from renewable temporary and limited generation of and Safety Risks biomass as defined in the RFS2 ‘‘delayed RINs’’ by renewable fuel H. Executive Order 13211: Actions That regulations, and used to reduce or producers using fuel production Significantly Affect Energy Supply, replace petroleum-based transportation pathways approved for RIN generation Distribution, or Use fuel, heating oil or jet fuel). EPA on or after July 1, 2010 and before I. National Technology Transfer and Advancement Act currently intends to issue additional January 1, 2011. Under the proposal, J. Executive Order 12898: Federal Actions supplemental final rules to address delayed RINs could be generated after To Address Environmental Justice in other biofuel production pathways, the effective date of a rule adding a new Minority Populations and Low-Income including those involving palm oil, Populations woody biomass and sorghum. 1 75 FR 42238.

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES 59624 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations

pathway to Table 1 to § 80.1426 for Responses to comments that were associated with canola oil biodiesel, as qualifying fuel produced between July critical of certain elements of the we had done for other biofuels in the 1, 2010 and the effective date of that proposal are included in the following RFS2 final rule. The commenter stated rule, even if the fuel had been sections. EPA has decided to finalize the that use of 2022 is inappropriate since transferred to another party. In addition, proposed lifecycle GHG assessment for that is ‘‘the year that the RFS ends’’ and the proposed rule included provisions canola oil biodiesel without that GHGs are emitted in the present as allowing fuel producers who are modification. the feedstock and fuel is produced and grandfathered under the provisions of combusted. The commenter suggested 1. Models § 80.1403 to exchange higher-value that EPA instead use a year for its delayed RINs for RINs generated under The analysis EPA has prepared for analyses that better reflects the ‘‘average the grandfathering provisions that have canola oil biodiesel uses the same set of performance of the RFS,’’ such as 2012, a D code of 6. We are finalizing this models that was used for the final RFS2 with a commitment to update the provision in today’s rule. Since the only rule, including the Forestry and analysis regularly to reflect documented pathway we are approving in today’s Agricultural Sector Optimization Model changes in technologies and practices, action is biodiesel and renewable diesel (FASOM) developed by Texas A&M as well as better information on trends produced from canola oil, the delayed University and others and the Food and in land use and associated emissions. RINs provision will only be applicable Agricultural Policy and Research In response, EPA first notes that the to this pathway. Institute international models as commenter is incorrect in assuming that Today’s rule does not add significant maintained by the Center for the RFS program ends in 2022. That is environmental or economic impacts Agricultural and Rural Development the year when the full 36 billion gallons beyond those already addressed in the (FAPRI–CARD) at Iowa State University. specifically required by EISA is to be used, but EPA is directed to set final RFS2 rule published on March 26, The models require a number of inputs renewable fuel volume requirements, 2010. The new delayed RINs provision that are specific to the pathway being and implement associated percentages provides additional flexibility to certain analyzed, for example, inputs include standards, indefinitely into the future biofuel producers, and the new canola projected yield of feedstock per acre after 2022. Thus, no single year can oil biodiesel pathway provides an planted, projected fertilizer use, energy reasonably be assumed to reflect an additional basis for biofuel producers to use in feedstock processing and energy ‘‘average performance’’ of a fuel under generate RINs. Today’s actions will not use in fuel production. The docket the RFS program. increase overall burdens on any includes detailed information on model inputs, assumptions, calculations, and As described in our final RFS2 rule, regulatory party and will impose no there were two main reasons for our additional costs. the results of our modeling for canola oil biodiesel. focus on 2022.3 The first reason is that II. Lifecycle Analysis of Greenhouse it is appropriate to select a single year Gas Emissions for Canola Oil Biodiesel 2. Volume Scenarios Modeled to analyze. The lifecycle GHG analysis The RFS2 final rulemaking is based on the use of various economic A. Methodology and Key Assumptions established reference and control cases models, both domestic and EISA establishes specific lifecycle to assess the impacts of an increase in international. These models estimate greenhouse gas (GHG) emissions renewable fuel volume from business- economic impacts on relevant sectors reduction thresholds for each of four as-usual. That is, EPA compared what is over a multi-year time period, and rely categories of renewable fuels (i.e., 60% likely to have occurred without EISA to on assumptions or projections as to the for cellulosic biofuel, 50% for biomass- the increased volume necessary to meet various biofuel volumes out into the based diesel and advanced biofuel, and the EISA mandates. For the canola future. The results are dependent in part 20% for other renewable fuels). EPA biodiesel assessment, we determined on the biofuel volumes that are used, employed the methodology described in that an incremental impact of an and the modeling requires a stable the RFS2 final rule (published March increase of 200 million gallons of prediction of the specific volumes and 26, 2010) to analyze the lifecycle GHG biodiesel from canola per year in 2022 types of fuels used from year to year. emissions of the canola oil biodiesel was an appropriate volume to model. This reflects the current status of the pathway, as described in the NODA This assumed a 2022 reference case of models available to perform this issued on May 26, 2010. This section zero canola oil biodiesel volume and a analysis. If there were changes in briefly describes the methodological 2022 control case of 200 million gallons volumes in interim years in the approach as well as the key assumptions canola oil biodiesel volume. For more modeling, this would have impacts on that were used in the lifecycle modeling detail on our rationale for volumes the later years of the modeling. The lack of canola oil biodiesel. modeled (which were based in part on of a stable projection or assumption in the year to year fuel volumes would The public comments received on the consultation with USDA experts and industry representatives) please refer to make it impossible to accurately model canola oil biodiesel NODA generally the predicted lifecycle GHG reductions supported our proposed lifecycle GHG the inputs and assumptions document that is available through the docket. We for the different fuels. Analytically it analysis. For instance, several would not be possible to model in commenters stated that they support the did not receive any comments on our proposed use of this volume scenario advance the GHG impacts and make determination that canola oil biodiesel lifecycle determinations on biofuels for meets or exceeds the 50% biomass- and are therefore using the same volume scenario for our final modeling. different years over the life of the based diesel lifecycle GHG reduction program. requirement and requested that EPA 3. Year of Analysis Thus it would not be possible using formally approve canola for RIN We received a comment disagreeing our current methodology to use more generation as expeditiously as possible.2 with our proposal to use the year 2022 to model and evaluate GHG emissions 3 See Renewable Fuel Standard Program (RFS2) 2 See comments EPA–HQ–OAR–2010–0133–0079 Summary and Analysis of Comments, EPA–420–R– (Embassy of Canada), EPA–HQ–OAR–2010–0133– 10–003, February 2010, see page 7–18, 7–19 & 7– 0080 (Sustainable Biodiesel Alliance), EPA–HQ– Department of Commerce), EPA–HQ–OAR–2010– 31. Also, see preamble to final RFS2 rule in Chapter OAR–2010–0133–0082 (Washington State 0133–0083 (U.S. Canola Association). V. Lifecycle Analysis of Greenhouse Gas Emissions.

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations 59625

than one year to determine the life-cycle impact of biofuels on land use in an assumptions. The inputs and assessment, as recommended by the early year such as 2012 would assumptions are based on our commenter. They recommend that we underestimate the full land use impact understanding of the industry, analysis assess biofuel GHG performance early in of the greater biofuel volumes required of relevant literature, public comments, the RFS2 implementation schedule, in later years. Additionally, such an and recommendations of experts within using a year such as 2012 as the year, early assessment would not reflect the the canola and biodiesel industries and and then make periodic GHG impact anticipated technology changes and those from USDA as well as the experts reassessments prior to 2022 with expanded use of valuable co-products at Texas A&M and Iowa State threshold determinations on the basis of such as DGS. In this way, an early Universities who have designed the these reassessments. However, if a analysis would give a false picture of FASOM and FAPRI models. biofuel met a certain GHG performance the anticipated emission reductions The glycerin produced from canola oil threshold in some years while not in from individual biofuels. In contrast, biodiesel production is equivalent to the others, this would affect the volumes of EPA feels that the 2022 analysis glycerin produced from the existing different types of fuels produced to meet represents an appropriate estimate of biodiesel pathways (based on soy oil, RFS2 requirements. A change in a GHG impacts as it represents the full etc.) that were analyzed as part of the threshold determination would lead to adoption of statutorily-prescribed RFS2 final rule. Therefore the same changes in investments and in the biofuel volumes and thus their assumptions and co-product credit was market, producing a new mix of biofuels feedstock demand on land use and applied to canola oil biodiesel as was that we are not able to predict and use otherwise appropriately assesses the used for the biodiesel pathways in the lifecycle modeling. This use of GHG impacts of the program when fully modeled for the RFS2 final rule. The more than one year can lead to changes implemented. An earlier assessment assumption is that the GHG reductions in the interim years’ biofuel volumes year would underestimate the full associated with the replacement of that we are not in a position to model volumes required by EISA and therefore residual oil on an energy equivalent or project. Based on the inability to not appropriately account for the full basis represents an appropriate mid- determine the impact of these iterative impact of the program. Furthermore, we range co-product credit of biodiesel changes in the market resulting from note that the RFS2 requirements do not produced glycerin. The U.S. Canola changes in the GHG threshold decision end in 2022, rather it would continue in Association supported this approach in over time, we would be unable to years to follow. Since trends which its comments, stating that ‘‘EPA properly develop a valid year by year projection might impact a 2022 assessment considered glycerin as a co-product, and of biofuel volumes for the subsequent compared to earlier years such as conservatively assumed that the lifecycle modeling. EPA is also improvements in crop yield or glycerin would be used as a fuel source concerned that this approach would production technology would be in place of residual oil.’’ However, we produce significantly increased expected to continue after 2022, also received comments that this uncertainty in the biofuels industry and selecting 2022 as a preferred year of approach overestimates the GHG could affect investment decisions and assessment represents a more reasonable reduction benefits of glycerin co- thus the ability of the industry to single year for assessment of the product because the glycerin would produce sufficient complying biofuels to expected GHG performance of a biofuel actually replace less than an energy meet the goals of EISA. This increased during the RFS2 program than an equivalent amount of residual oil. The commenter, Clean Air Task Force uncertainty about future decisions is not assessment early in the program such as (CATF), makes the argument that while warranted in a situation where the 2012. Finally, a 2022 assessment for the glycerin use would lower the modeling tools available to the agency canola oil biodiesel is consistent with demand for residual oil, it would also could not be used to produce consistent the 2022 assessments for all other reduce the price of residual oil fuel, and results over multiple years when biofuel biofuel pathways adopted in RFS2. EPA this lowered price would increase volume predictions are not stable due to believes that it is best to use similar somewhat the demand and use of changing threshold determinations from assessment techniques across all biofuel pathways. residual oil above the levels we year to year. As such, EPA’s position is assumed in our analysis. According to that it is more appropriate to rely on 4. Biodiesel Processing Assumptions the commenter, this assumed rebound modeling centered on a single year. We analyzed the lifecycle GHG effect should decrease the credit we The second reason to focus on 2022, emission impacts of producing biodiesel provide in our analysis for biodiesel- the final year of ramp up in the required using canola oil as a feedstock assuming produced glycerin. volumes of renewable fuel, is that the same biodiesel production facility EPA feels that the proposed approach, modeling that uses the year 2022 allows designs and conversion efficiencies as which it is finalizing today, provides an the total fuel volumes specified in EISA modeled for biodiesel produced from appropriate estimate of credit for the to be incorporated into the analysis. soybean oil. Canola oil biodiesel is glycerin co-product produced from the Modeling an early year such as 2012 produced using the same methods as canola biodiesel pathway. As part of our would result in almost all of the volume soybean oil biodiesel, therefore plant RFS2 proposal we assumed the glycerin being made up of traditional biofuels designs are assumed to not significantly would have no value and would such as ethanol from corn or biodiesel differ between these two feedstocks. As effectively receive no co-product credits from soy. We note also that much of the was the case for soybean oil biodiesel, in the soy biodiesel pathway. We 2012 production capacity is already in production technology for canola oil received numerous comments, however, place and thus allowed to meet the biodiesel is mature and we have not as part of the RFS2 final rule stating that overall renewable fuel standard under projected in our assessment of canola oil the glycerin would have a beneficial use its grandfathering provisions (for which biodiesel any significant improvements and should generate co-product no GHG assessment if required). We are in plant technology. Unanticipated benefits. Therefore, the biodiesel more interested in modeling the GHG energy saving improvements would glycerin co-product determination made performance of future production further improve GHG performance of as part of the RFS2 final rule took into capacity likely to come on board after the fuel pathway. Refer to the docket for consideration the possible range of co- 2012. Additionally, assessment of the more details on these model inputs and product credit results. The actual co-

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES 59626 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations

product benefit will be based on what any potential rebound impact in the with the canola industry on the lifecycle products are replaced by the glycerin, or residual oil market would not occur to analysis performed for this rulemaking what new uses the co-product glycerin the extent described in the CATF and will continue to work with them on is applied to. The total amount of comment as they assumed the total any future analysis. The state of glycerin produced from the biodiesel amount of glycerin would be used as a Washington specifically referenced a industry will actually be used across a residual oil replacement. Furthermore, concern with the diesel fuel number of different markets with while including rebound effects and consumption rate in our analysis. The different GHG impacts. This could other indirect impacts for residual oil concern is that the total change in diesel include for example, replacing that is replaced by biodiesel co-product use divided by the total acreage change petroleum glycerin, replacing fuel glycerin could possibly lower reduction across the entire U.S. agricultural sector products (residual oil, diesel fuel, credits, that would not be true for all as a result of an increase in canola oil natural gas, etc.), or being used in new replacement products. For example, biodiesel production results in a diesel products that don’t have a direct including indirect impacts for glycerin use figure that is higher than the rate of replacement, but may nevertheless have that is used in new markets could tend diesel fuel used to produce canola. The indirect effects on the extent to which to increase estimated emission commenter indicates that this appears to existing competing products are used. reductions. Without indirect impacts represent an error in the EPA lifecycle The more immediate GHG reductions the co-product assessment for glycerin analysis. EPA disagrees that this from glycerin co-product use will likely used in new markets would assume that represents an error in the modeling. As range from fairly high reductions when it did not have a replacement value and mandated by EISA, and as was done for petroleum glycerin is replaced to lower would therefore generate no credits. If the other biofuels analyzed as part of the reduction credits if it is used in new indirect impacts were taken into RFS2 final rule, EPA’s lifecycle analysis markets that have no direct replacement account it could be that the new takes into account the full direct as well product, and therefore no replaced products would actually have impacts as significant indirect impacts of canola emissions. EPA does not have sufficient in other markets that were not direct oil biodiesel production. As described information (and the commenter replacements but generate GHG benefits. in the RFS2 final rulemaking, this supplied none) on which to allocate Given the varying impacts of including means that for the agricultural sector we glycerin use across the range of likely the type of factors CATF mentions in consider the full impacts across the uses. Also, if additional residual oil is their comments would have across the entire sector due to canola oil biodiesel used as predicted by the commenter, its full range of possible glycerin production including not only the use would presumably replace some replacements, and the fundamental impacts on canola acres and diesel fuel other product (e.g., perhaps replacing difficulty of predicting possible glycerin input, but also the impacts of crop coal in some cases) which would also uses and impacts of those uses many shifting and changes in livestock have a secondary GHG impact which years into the future under different production with associated impacts on could be in a positive direction (i.e., a market conditions, EPA believes it is feed crops and other crop production lowering of GHG emissions). Again, reasonable to finalize its more with associated diesel fuel use. EPA does not have sufficient simplified approach to calculating co- Therefore the diesel fuel use figure that information on which to base such product GHG benefit associated with the state of Washington cites does not market movements and their GHG glycerin production. represent just the change from canola impact. Therefore, EPA believes that its 5. Other Assumptions acres but shifts in all crop acres across proposed approach of picking a We received comments from the U.S. all regions as described in the surrogate use for modeling purposes in Canola Association supported by the agricultural sector model results the mid-range of likely glycerin uses, State of Washington Department of included in the docket to this and focusing on the more immediate Commerce that the GHG impacts of rulemaking. The shifts of all these GHG emissions results tied to such use, canola oil biodiesel as proposed in our different crop acres with associated is reasonable. The replacement of an Notice of Data Availability diesel fuel use results in the correct energy equivalent amount of residual oil overestimated the GHG emissions of diesel use figure used by EPA. is a simplifying assumption determined canola production and therefore canola The state of Washington also has by EPA to reflect the mid-range of oil biodiesel has a greater than 50% comments specifically referencing possible glycerin uses in terms of GHG lifecycle GHG reduction compared to regional data on canola production that credits, and EPA believes that it is the baseline petroleum diesel fuel is not reflective of the national and appropriately representative of GHG baseline. The U.S. Canola Association international analysis that EPA reduction credit across the possible plans to submit more detailed technical performed for canola oil biodiesel, as range without necessarily biasing the analysis to EPA for consideration in any mandated by EISA and as was done for results toward high or low GHG impact. updated analysis of canola oil biodiesel. all feedstocks considered as part of the EPA feels that the comments from the Because comments suggesting that EPA final RFS2 rulemaking. While regional CATF do not change the overestimated lifecycle GHG emissions specific data was included in the appropriateness of using at this time an from canola oil biodiesel do not impact analysis the full lifecycle impacts of assumption of residual oil replaced on today’s regulatory determination that canola oil biodiesel as mentioned above an energy equivalent basis (without any canola oil biodiesel achieves at least a were determined based on adjustment for possible global rebound 50% lifecycle GHG reduction, and comprehensive national and effect) as a representative biodiesel because those who submitted such international changes in agriculture and glycerin co-product credit. Since we are comments have asked that EPA expedite associated GHG impacts and therefore not actually assuming all of the its qualification action for canola oil the data described in the State of biodiesel glycerin produced replaces biodiesel under RFS2, we believe it is Washington comments would not residual oil (it will likely replace a mix most appropriate that EPA consider impact our determination that canola oil of products with a range of GHG these comments in detail at such time biodiesel qualifies under the 50% GHG impacts but residual oil is used as the as we prepare an updated analysis of threshold for biomass-based diesel and representative GHG reduction credit), canola oil biodiesel. We worked closely advanced biofuel. Furthermore, the

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations 59627

State of Washington comments paper is that past approaches to document (e.g., crop yield projections, encourage EPA to extend this increasing yields may be reaching the fertilizer use, agricultural energy use, rulemaking to other oilseeds in the ceiling of potential effectiveness, but the etc.) and detailed results spreadsheets family Brassicaceae such as camelina. author notes many other avenues that (e.g., foreign agricultural impacts, Today’s action is limited to canola, so the author believes can and should be foreign agricultural energy use, FASOM this comment raises issues beyond the pursued to increase yield. Thus, even and FAPRI model results) used to scope of this rulemaking. Parties seeking for the crops that have experienced a generate the results presented above. EPA analysis of additional fuel drop in yield increases, the study does B. Threshold Determination and pathways are urged to follow the not necessarily suggest that this will Assignment of Pathways petition process specified in 40 CFR remain the case if appropriate research 80.1416. as suggested by the paper is conducted. As part of this final rule, EPA is We received comment from the Clean Given the uncertain nature of scientific making a lifecycle GHG threshold Air Task Force objecting to EPA’s advancement and possible future effects determination based on its final assumptions regarding likely related to climate change, EPA believes lifecycle GHG analysis for canola oil improvements in canola yields in the that its approach of looking at yield biodiesel. Figure II–1 shows the results future. According to the commenter, trends on a crop by crop basis based on of the modeling. It shows the percent there is ‘‘recent evidence [which] past historical and verifiable data difference between lifecycle GHG significantly undermines any provides the most reasonable approach emissions for 2022 canola oil biodiesel expectation that crop yields will available at this time to predicting as compared to the 2005 petroleum increase in the future.’’ The commenter future yields. diesel fuel baseline. In the figure, the EPA bases its crop yields on bases this statement on a study zero on the x-axis represents the projecting long-term trends based on suggesting that ‘‘the effects of climate lifecycle GHG emissions equivalent to historical data for each crop using the change could decrease agricultural the 2005 petroleum diesel fuel baseline. same methodology. EPA’s approach is yields’’ and ‘‘further research is needed The y-axis on the chart represents the consistent with USDA’s future to identify how crop yields will respond likelihood that possible results would projections of crop yield changes over to increased levels of carbon dioxide’’. have a specific GHG reduction value time. On the other end of the spectrum, However, we note that the authors of the shown. The area under the curve we note that during the proposal to the study cited by commenters do not draw represents all the possible results. The final RFS2 rule we received comments results for canola biodiesel are that the definitive conclusions, but phrase their that EPA’s crop yields were actually too statements cautiously, including, for midpoint of the range of results is a 50% low and that yields will continue to reduction in GHG emissions compared examples, statements such as yields increase due to improvements in seed ‘‘ ’’ to the diesel fuel baseline. The 95% may have reached their ceiling. In the technology.4 Those commenters would study, the authors look principally at confidence interval around that argue that higher yields than used by midpoint results in range of a 20% two crops, wheat and rice, as these EPA should be adopted. We believe that crops have had declined gains in yield. reduction to a 75% reduction compared our assumptions are reasonably to the 2005 petroleum diesel fuel However, the study also notes that justifiable and do not differ from past maize has ‘‘maintained the rate of baseline. These results justify long-term trend yield performance. authorizing the generation of biomass- increase of the 1970s and 1980s into the The docket includes a useful based diesel RINs for fuel produced by most recent decade.’’ This seems to go memorandum which summarizes the canola oil biodiesel pathway against the commenter’s point that relevant materials used for the canola modeled, assuming that the fuel meets ‘‘recent evidence significantly biodiesel pathways analysis including the other definitional criteria for undermines any expectation that crop detailed information on the assumptions renewable fuel (e.g., produced from yields will increase in the future.’’ For used in our lifecycle modeling. renewable biomass, and used to reduce crops that are not part of these three Described in the memorandum, for or replace petroleum-based most important grains, no comparison example, are the input and assumptions has been made in the study. Thus, the transportation fuel, heating oil or jet study does not directly address canola. 4 See RFS2 Summary and Analysis of Comments, fuel) specified in EISA. Finally, we note that the thrust of the e.g., pg. 7–17, 7–37, 7–149. BILLING CODE 6560–50–P

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES 59628 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations

BILLING CODE 6560–50–C emissions profile compared to natural 50% lifecycle GHG emissions as Table II–1 breaks down by stage the gas use. Thus, the GHG emissions compared to baseline fuel. This is also lifecycle GHG emissions for canola oil threshold determination would apply to true for biodiesel pathways using biodiesel and the 2005 diesel baseline. facilities using biomass or natural gas as soybean oil and other feedstocks. The biodiesel production process reflected in this table assumes that an energy source. We have clarified in However, at this time we are not natural gas is used for process energy the Table 1 to 80.1426 that canola oil amending Table 1 to § 80.1426 to and accounts for co-product glycerin biodiesel facilities seeking to generate specify the required process energy displacing residual oil. This table biomass-based diesel or advanced source(s) for soybean oil and other demonstrates the contribution of each biofuel RINs must use either natural gas biodiesel feedstocks because this rule is stage and its relative significance. or biomass. Other process energy focused on canola. We commit to As a sensitivity case, we also looked sources (such as coal) have not been updating Table 1 to § 80.1426 at a future at the use of biomass as an energy modeled, but are likely to result in time to include this energy use source and determined that this would additional GHG emissions that would stipulation for other biodiesel further improve the GHG lifecycle result in the pathway failing to provide feedstocks.

TABLE II–1—LIFECYCLE GHG EMISSIONS FOR CANOLA OIL BIODIESEL, 2022

[kgCO2e/mmBTU]

Canola oil 2005 Diesel Fuel type biodiesel baseline

Net Domestic Agriculture (w/o land use change) ...... 8 ...... Net International Agriculture (w/o land use change) ...... 0 ...... Domestic Land Use Change ...... 3 ...... International Land Use Change, Mean (Low/High) ...... 31 (7/61) ......

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES ER28SE10.002 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations 59629

TABLE II–1—LIFECYCLE GHG EMISSIONS FOR CANOLA OIL BIODIESEL, 2022—Continued

[kgCO2e/mmBTU]

Canola oil 2005 Diesel Fuel type biodiesel baseline

Fuel Production ...... 3 18 Fuel and Feedstock Transport ...... 2 * Tailpipe Emissions ...... 1 79

Total Emissions, Mean (Low/High) ...... 48 (25/78) 97 * Emissions included in fuel production stage.

Based on the above analyses, canola thresholds (50%) applicable to the eligible for the D-Codes specified in oil biodiesel has been found to comply biomass-based diesel and advanced Table II–2. with the lifecycle GHG reduction biofuel categories and are therefore

TABLE II–2—D–CODE DESIGNATIONS

Fuel type Feedstock Production process requirements D-Code

Biodiesel ...... Canola oil...... Trans-Esterification using natural 4 (biomass-based diesel). gas or biomass for process en- ergy.

III. Delayed RIN Generation for New RFS1 and was also expected to indicated in the preamble to the Pathways participate in the RFS2 program at the proposal that we intended to apply the In a Notice of Proposed Rulemaking program’s inception. delayed RINs provision to only the four (NPRM) published on July 20, 2010 (75 Following release of the final RFS2 pathways under consideration prior to FR 42238), we proposed a new rule, we determined that the lifecycle July 1, 2010 (grain sorghum ethanol, regulatory provision that would allow assessments for these additional pulpwood biofuel, palm oil biodiesel, RINs to be generated for fuel produced pathways would not be completed by and canola oil biodiesel) if any of these on or after July 1, 2010 representing July 1, 2010, the start of the RFS2 pathways are determined to meet the certain fuel pathways that were not in program. While some producers of these applicable GHG thresholds prior to Table 1 to § 80.1426 as of July 1, 2010, biofuels could continue to generate RINs January 1, 2011, and the provision but were added to Table 1 by January 1, under the RFS2 ‘‘grandfathering’’ would apply only for renewable fuel 2011. Under the proposal, RINs could be provisions, they would have no produced in 2010. generated only if the pathways were approved means for generating higher- In response to the NPRM, most indeed approved as valid RIN- value RINs (i.e. cellulosic biofuel, commenters supported such a generating pathways, and only for biomass-based diesel, or advanced provision. However, the American volumes of fuel produced between July biofuel) 5. Knowing that this Petroleum Institute and the National 1, 2010 and the effective date of a new circumstance had the potential to Petrochemical Refiners Association pathway added to Table 1 to § 80.1426. adversely impact these producers as opposed the proposal, stating that In today’s rule, we are finalizing well as to reduce the number of RINs retroactively applicable actions are regulatory provisions for ‘‘delayed RINs’’ available in the market relative to inappropriate and that delayed RINs with certain modifications as described biofuel volume, in the July 20, 2010 would create more uncertainty for below only for biodiesel produced from NPRM, we proposed a new regulatory obligated parties. However, we continue canola oil since today’s action adds only provision for delayed RINs that would to believe that the delayed RINs this new RIN-generating pathway to allow certain renewable fuel producers provision is both appropriate and will Table 1 to § 80.1426. to generate higher-value RINs for all fuel actually help obligated parties to For the RFS2 final rule (75 FR 14670), they produce and sell between July 1, comply with the applicable standards. we attempted to evaluate and model as 2010, and the effective date of the new Since the delayed RINs provision will many pathways as possible so that pathway, if applicable pathways are increase the likelihood that higher-value producers and importers could generate ultimately approved for RIN generation RINs will be generated in 2010, more RFS2 RINs beginning on July 1, 2010. after July 1, 2010 and by December such RINs may be available to obligated However, we were not able to complete 31,2010. This proposed provision was parties for compliance purposes. the evaluation of all pathways that we designed to allow biofuel producers to Delayed RINs can be bought and sold had planned. In the final RFS2 participate in the RFS2 program as fully independently of renewable fuel rulemaking we announced our intention as possible as it gets underway even volumes, making them more easily to complete the evaluation of three though we were not able to complete the marketable and more directly available specific pathways after release of the evaluation of a number of pathways to obligated parties than RINs assigned RFS2 final rule: Grain sorghum ethanol, prior to July 1. However, we also to renewable fuel. In addition, while pulpwood biofuel, and palm oil this provision will allow RINs to be biodiesel (see Section V.C of the RFS2 5 Grandfathered facilities could generate generated after the associated renewable renewable fuel RINs with a D code of 6 beginning final rule, 75 FR 14796). To this list we on July 1, 2010, but many of these producers fuel has been produced and sold, it does added biodiesel produced from canola believed that their biofuel should be qualified for not constitute an impermissibly oil as this biofuel was produced under generating RINs with D codes other than 6. retroactive provision. Producers who

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES 59630 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations

generate delayed RINs will do so appropriate to allow producers IV. Public Participation voluntarily, and after the effective date additional time to complete necessary Many interested parties participated of the new pathway. No additional transactions. Therefore, today’s final in the rulemaking process that burdens will be placed upon obligated rule provides that all delayed RINs for culminates with this final rule. The parties and the rule will have no impact a given pathway must be generated public had an opportunity to submit on any settled transactions of an within 60-days of the effective date of both written and oral comments on the obligated party. Moreover, RINs already either a qualifying rule adding that proposed RFS2 final rule published on generated and accepted in EMTS will pathway to Table 1 to § 80.1426, or of May 26, 2009 (74 FR 24904), and has not be affected. The D code assigned to a qualifying action on a petition had an opportunity to submit additional any given RIN will not change, and RINs pursuant to § 80.1416. comments following publication of the owned by any party can be retained by Notice of Data Availability (NODA) for them for compliance purposes or sold as As described in the RFS2 final rule, grandfathered producers can generate canola oil biodiesel that was published they wish. on July 26, 2010 (75 FR 43522). We have Finally, to the extent that the RINs for their renewable fuel starting on considered these comments in provision could be seen as having July 1, 2010, but must designate the D developing today’s final rule. retroactive impacts, EPA believes its code as 6 for such fuel, and they must transfer those RINs with renewable fuel One commenter on the canola oil action is authorized by CAA section ‘‘ they sell. Under today’s rule, such biodiesel NODA objected to EPA’s 211(o)(2)(A)(iii), providing that finalization of a petition process to ‘‘ grandfathered producers who qualify for regardless of the date of promulgation, generate RINs for additional fuels or the generation of delayed RINs, and who the regulations * * * shall contain additional fuel pathways without compliance provisions applicable to wish to avail themselves of the providing an adequate opportunity for refineries, blenders, distributors, and opportunity, will be required to acquire notice and comment.’’ The comment importers, as appropriate, to ensure that and retire RINs from the open market apparently relates to the process the requirements’’ of the Act relating to with a D code of 6 prior to the established in the RFS2 final rule, in use of specified volumes of renewable generation of delayed RINs. The number § 80.1416, for parties to petition EPA to fuel are satisfied. The delayed RINs of RINs retired in this fashion must be evaluate the lifecycle GHG reductions provision is a ‘‘compliance provision’’ no greater than the number they associated with additional biofuel because it relates to RINs, and RINs are generated in 2010 in the time period production pathways beyond those the currency by which obligated parties between July 1, 2010 and the effective already covered in Table 1 to § 80.1426. demonstrate compliance. The delayed date of the new approved pathway for RINs provision relates to ensuring that EPA notes that today’s action on canola biodiesel made from canola oil. Once oil biodiesel was not made pursuant to the volumes of renewable fuel specified those RINs are retired, an equivalent in the statute are met, by allowing this petition process, so this comment is number of delayed RINs with a different not relevant to this proceeding. The producers to generate appropriate RINs D code can be generated and sold. One for canola oil biodiesel that reflects its commenter also states, more generally, commenter requested that the that EPA is required ‘‘to conduct a proper identification as biomass based regulations allow delayed RINs to be diesel under the statute. notice and comment rulemaking before generated and sold before, rather than approving any biofuel under EISA,’’ and Two commenters requested that the after, the producer retires an equivalent provision for delayed RINs be made that although the commenter number of RINs with a D code of 6. The appreciates that EPA has provided applicable to other pathways as well, commenter argued that this approach such as pathways utilizing camelina and through issuance of the NODA an would allow producers to generate and winter barley. Since the only new opportunity for public comment with sell delayed RINs as quickly as possible, pathway that we approving for RIN respect to the canola oil biodiesel and would also allow the producer to generation in today’s action is biodiesel analysis, that ‘‘EPA was required to use the proceeds from the sale of produced from canola oil, we are comply with the full procedural delayed RINs to purchase and retire finalizing the delayed RINs provision requirements of section 307(d) of the only for this pathway in today’s action. RINs with a D code of 6. However, Clean Air Act.’’ EPA responds here only The application of delayed RINs to other despite these advantages to producers, to these comments as they relate to pathways does not need to be addressed we continue to believe that delayed today’s final action with respect to in this action, as it does not affect the RINs should only be generated after canola oil biodiesel. EPA’s proposed decision on delayed RINs for biodiesel RINs with a D code of 6 are retired. In RFS2 rule would have qualified all produced from canola oil. order to ensure that the number of RINs ‘‘biodiesel made from ‘‘soybean oil and Several commenters responded to our in the market accurately reflects biofuel other virgin plant oils’’ through a proposed 30-day deadline for generation produced or imported to represent those transesterification process as renewable of delayed RINs by saying that RINs, the number of delayed RINs fuel with a D code of 4. See proposed additional time is necessary to allow generated must be equivalent to the Table 1 to § 80.1426 (74 FR 25119, May grandfathered producers to acquire and number of RINs with a D code of 6 that 26, 2009). Canola oil is a virgin plant oil retire an appropriate number of general are retired. If a producer were to within the scope of this proposal. The renewable fuel (D code of 6) RINs. We generate and sell delayed RINs prior to public was afforded an opportunity to proposed the 30-day limit because we retiring RINs with a D code of 6, the submit written comments on this believe that the deadline for the producer would be forced to estimate proposal, and also an opportunity to generation of delayed RINs should be the appropriate number of delayed RINs present oral comments during a public set such that they are entering the to generate, and there would be no hearing held on June 9, 2009. In the market as close as possible to the date recourse for correcting an final RFS2 rule published on March 26, of production of the renewable fuel that overestimation. By requiring RINs with 2010, EPA did not take final action on they represent. However, we agree with a D code of 6 to be retired first, the the component of its proposal that the commenters that 60-days is a producer will know exactly how many related to ‘‘other virgin plant oils’’ such reasonable timeframe consistent with delayed RINs he is permitted to as canola biodiesel. See final Table 1 to this consideration, and that it is generate. § 80.1426 (75 FR 14872). Instead it has

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations 59631

conducted additional analytical work economic impact on a substantial uniquely affect small governments. EPA and provided an additional opportunity number of small entities. Small entities has determined that this rule imposes for comment on that work as described include small businesses, small no enforceable duty on any State, local in the NODA EPA views this final organizations, and small governmental or tribal governments. In addition this action as a continuation of the jurisdictions. rule will not result in expenditures to rulemaking process initiated in the May For purposes of assessing the impacts State, local, and tribal governments, in 26, 2009 proposal, and believes it has of today’s rule on small entities, small the aggregate, or to the private sector, of fully complied with all procedural entity is defined as: (1) A small business $100 million or more in any one year. as defined by the Small Business requirements of Section 307(d) of the E. Executive Order 13132: Federalism Clean Air Act. Administration’s (SBA) regulations at 13 CFR 121.201; (2) a small governmental Executive Order 13132, entitled V. Statutory and Executive Order jurisdiction that is a government of a ‘‘Federalism’’ (64 FR 43255, August 10, Reviews city, county, town, school district or 1999), requires EPA to develop an A. Executive Order 12866: Regulatory special district with a population of less accountable process to ensure Planning and Review than 50,000; and (3) a small ‘‘meaningful and timely input by State organization that is any not-for-profit and local officials in the development of This action is not a ‘‘significant enterprise which is independently regulatory policies that have federalism regulatory action’’ under the terms of owned and operated and is not implications.’’ ‘‘Policies that have Executive Order (EO)12866 (58 FR dominant in its field. federalism implications’’ is defined in 51735, October 4, 1993) because it is not After considering the economic the Executive Order to include likely to have an annual effect on the impacts of today’s rule on small entities, regulations that have ‘‘substantial direct economy of $100 million or more, not we certify that this proposed action will effects on the States, on the relationship likely to create a serious inconsistency not have a significant economic impact between the national government and or otherwise interfere with an action on a substantial number of small the States, or on the distribution of taken or planned by another agency, not entities. This rule does not impose a power and responsibilities among the likely to materially alter the budgetary new burden but creates a new various levels of government.’’ impacts of entitlements, grants, user opportunity to generate RINs. Therefore, This final rule does not have fees, or loan programs, and not likely to there should be no adverse impacts on federalism implications. It will not have raise novel legal or policy issues arising small businesses. In determining substantial direct effects on the States, out of legal mandates, the President’s whether a rule has a significant on the relationship between the national priorities, or the principles set forth in economic impact on a substantial government and the States, or on the the EO. Therefore, this rule is not number of small entities, the impact of distribution of power and subject to review under the EO. concern is any significant adverse responsibilities among the various B. Paperwork Reduction Act economic impact on small entities, levels of government, as specified in since the primary purpose of the Executive Order 13132. Thus, Executive This action does not impose any new regulatory flexibility analyses is to Order 13132 does not apply to this rule. information collection burden. Parties identify and address regulatory who are affected by today’s regulation alternatives ‘‘which minimize any F. Executive Order 13175: Consultation are already covered by the registration, significant economic impact of the rule and Coordination With Indian Tribal recordkeeping and reporting provisions on small entities.’’ 5 U.S.C. 603 and 604. Governments of the RFS2 regulations. The new canola Thus, an agency may certify that a rule This action does not have tribal oil biodiesel pathway provides an will not have a significant economic implications, as specified in Executive additional means for generating RINs, impact on a substantial number of small Order 13175 (65 FR 67249, November 9, but does not add any new information entities if the rule relieves regulatory 2000). This rule will be implemented at collection burden. The Office of burden, or otherwise has a positive the Federal level and impose Management and Budget (OMB) has economic effect on all of the small compliance costs only on transportation previously approved the information entities subject to the rule. fuel refiners, blenders, marketers, collection requirements contained in the distributors, importers, and exporters. RFS2 regulations at 40 CFR Part 80, D. Unfunded Mandates Reform Act Tribal governments would be affected subpart M, under the provisions of the Title II of the Unfunded Mandates only to the extent they purchase and use Paperwork Reduction Act, 44 U.S.C. Reform Act of 1995 (UMRA), 2 U.S.C. regulated fuels. Thus, Executive Order 3501 et seq. and has assigned the 1531–1538, requires Federal agencies, 13175 does not apply to this action. following OMB control numbers 2060– unless otherwise prohibited by law, to 0637 (‘‘Renewable Fuels Standard assess the effects of their regulatory G. Executive Order 13045: Protection of Program, Petition and Registration’’) and actions on State, local, and tribal Children From Environmental Health 2060–0640 (‘‘Renewable Fuels governments and the private sector. and Safety Risks Standard’’). The OMB control numbers Under section 202 of the UMRA, EPA EPA interprets EO 13045 (62 FR for EPA’s regulations in 40 CFR are generally must prepare a written 19885, April 23, 1997) as applying only listed in 40 CFR part 9. statement, including a cost-benefit to those regulatory actions that concern analysis, for proposed and final rules health or safety risks, such that the C. Regulatory Flexibility Act with ‘‘Federal mandates’’ that may result analysis required under section 5–501 of The Regulatory Flexibility Act (RFA) in expenditures to State, local, and the EO has the potential to influence the generally requires an agency to prepare tribal governments, in the aggregate, or regulation. This action is not subject to a regulatory flexibility analysis of any to the private sector, of $100 million or EO 13045 because it does not establish rule subject to notice and comment more in any one year. an environmental standard intended to rulemaking requirements under the This rule is not subject to the mitigate health or safety risks and Administrative Procedure Act or any requirements of section 203 of UMRA because it implements specific other statute unless the agency certifies because it contains no regulatory provisions established by Congress in that the rule will not have a significant requirements that might significantly or statutes.

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES 59632 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations

H. Executive Order 13211: Actions That as appropriate, disproportionately high recordkeeping requirements, come from Significantly Affect Energy Supply, and adverse human health or Sections 114, 208, and 301(a) of the Distribution, or Use environmental effects of their programs, Clean Air Act, 42 U.S.C. 7414, 7542, and This rule is not subject to Executive policies, and activities on minority 7601(a). populations and low-income Order 13211 (66 FR 28355 (May 22, List of Subjects in 40 CFR Part 80 2001)), because it only provides new populations in the United States. opportunities for RIN generation, and EPA lacks the discretionary authority Environmental protection, thus is not likely to have a significant to address environmental justice in this Administrative practice and procedure, adverse effect on the supply, rulemaking since the Agency is Agriculture, Air pollution control, distribution, or use of energy. Therefore, implementing specific standards Confidential business information, we have concluded that this rule is not established by Congress in statutes. Diesel fuel, Energy, Forest and forest subject to the EO. Although EPA lacks authority to modify products, Fuel additives, Gasoline, today’s regulatory action on the basis of Imports, Labeling, Motor vehicle I. National Technology Transfer and environmental justice considerations, pollution, Penalties, Petroleum, Advancement Act EPA nevertheless determined that this Reporting and recordkeeping Section 12(d) of the National rule does not have a disproportionately requirements. Technology Transfer and Advancement high and adverse human health or Dated: September 22, 2010. Act of 1995 (‘‘NTTAA’’), Public Law environmental impact on minority or Lisa P. Jackson, 104–113, 12(d) (15 U.S.C. 272 note) low-income populations. Administrator. directs EPA to use voluntary consensus K. Congressional Review Act standards in its regulatory activities ■ For the reasons set forth in the unless to do so would be inconsistent The Congressional Review Act, 5 preamble, 40 CFR part 80 is amended as with applicable law or otherwise U.S.C. 801 et seq., as added by the Small follows: impractical. Voluntary consensus Business Regulatory Enforcement standards are technical standards (e.g., Fairness Act of 1996, generally provides PART 80—REGULATION OF FUELS materials specifications, test methods, that before a rule may take effect, the AND FUEL ADDITIVES sampling procedures, and business agency promulgating the rule must ■ practices) that are developed or adopted submit a rule report, which includes a 1. The authority citation for part 80 by voluntary consensus standards copy of the rule, to each House of the continues to read as follows: bodies. NTTAA directs EPA to provide Congress and to the Comptroller General Authority: 42 U.S.C. 7414, 7542, 7545, and Congress, through OMB, explanations of the United States. A major rule 7601(a). cannot take effect until 60 days after it when the Agency decides not to use ■ 2. Section 80.1426 is amended by is published in the Federal Register. available and applicable voluntary revising paragraph (e)(1) and Table 1 to EPA will submit a report containing this consensus standards. This rulemaking § 80.1426 following paragraph (f)(1), and rule and other required information to does not adopt or change any technical adding paragraph (g) to read as follows: standards, so the EO is not applicable to the U.S. Senate, the U.S. House of this rule. Representatives, and the Comptroller § 80.1426 How are RINs generated and General of the United States prior to assigned to batches of renewable fuel by J. Executive Order 12898: Federal publication of the rule the Federal renewable fuel producers or importers? Actions To Address Environmental Register. This action is not a ‘‘major Justice in Minority Populations and * * * * * rule’’ as defined by 5 U.S.C. 804(2). Low-Income Populations (e) * * * (1) Except as provided in paragraph Executive Order (EO) 12898 (59 FR VI. Statutory Provisions and Legal (g) of this section for delayed RINs, the 7629 (Feb. 16, 1994)) establishes federal Authority producer or importer of renewable fuel executive policy on environmental Statutory authority for the rule must assign all RINs generated to justice. Its main provision directs finalized today can be found in section volumes of renewable fuel. federal agencies, to the greatest extent 211 of the Clean Air Act, 42 U.S.C. practicable and permitted by law, to 7545. Additional support for the * * * * * make environmental justice part of their procedural and compliance related (f) * * * mission by identifying and addressing, aspects of today’s rule, including the (1) * * *

TABLE 1 TO § 80.1426—APPLICABLE D CODES FOR EACH FUEL PATHWAY FOR USE IN GENERATING RINS

Fuel type Feedstock Production process requirements D-Code

Ethanol ...... Corn starch ...... All of the following: 6 Dry mill process, using natural gas, biomass, or biogas for process energy and at least two ad- vanced technologies from Table 2 to this section. Ethanol ...... Corn starch ...... All of the following: 6 Dry mill process, using natural gas, biomass, or biogas for process energy and at least one of the advanced technologies from Table 2 to this section plus drying no more than 65% of the distillers grains with solubles it markets annually. Ethanol ...... Corn starch ...... All of the following: 6 Dry mill process, using natural gas, biomass, or biogas for process energy and drying no more than 50% of the distillers grains with solubles it markets annually.

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations 59633

TABLE 1 TO § 80.1426—APPLICABLE D CODES FOR EACH FUEL PATHWAY FOR USE IN GENERATING RINS—Continued

Fuel type Feedstock Production process requirements D-Code

Ethanol ...... Corn starch...... Wet mill process using biomass or biogas for 6 process energy. Ethanol ...... Starches from crop residue and annual covercrops Fermentation using natural gas, biomass, or 6 biogas for process energy. Biodiesel, and renewable Soy bean oil; One of the following: 4 diesel. Oil from annual covercrops; Trans-Esterification Algal oil; Hydrotreating Biogenic waste oils/fats/greases; Excluding processes that co-process renewable Non-food grade corn oil biomass and petroleum Biodiesel ...... Canola oil ...... Trans-Esterification using natural gas or biomass 4 for process energy. Biodiesel, and renewable Soy bean oil; One of the following: 5 diesel. Oil from annual covercrops; Trans-Esterification Algal oil; Hydrotreating Biogenic waste oils/fats/greases; Includes only processes that co-process renew- Non-food grade corn oil able biomass and petroleum Ethanol ...... Sugarcane ...... Fermentation ...... 5 Ethanol ...... Cellulosic Biomass from crop residue, slash, pre- Any ...... 3 commercial thinnings and tree residue, annual covercrops, switchgrass, and miscanthus; cellu- losic components of separated yard waste; cel- lulosic components of separated food waste; and cellulosic components of separated MSW. Cellulosic Diesel, Jet Fuel Cellulosic Biomass from crop residue, slash, pre- Any ...... 7 and Heating Oil. commercial thinnings and tree residue, annual covercrops, switchgrass, and miscanthus; cellu- losic components of separated yard waste; cel- lulosic components of separated food waste; and cellulosic components of separated MSW. Butanol ...... Corn starch ...... Fermentation; dry mill using natural gas, biomass, 6 or biogas for process energy. Cellulosic Naphtha ...... Cellulosic Biomass from crop residue, slash, pre- Fischer-Tropsch process ...... 3 commercial thinnings and tree residue, annual covercrops, switchgrass, and miscanthus; cellu- losic components of separated yard waste; cel- lulosic components of separated food waste; and cellulosic components of separated MSW. Ethanol, renewable diesel, The non-cellulosic portions of separated food Any ...... 5 jet fuel, heating oil, and waste. naphtha. Biogas ...... Landfills, sewage waste treatment plants, manure Any ...... 5 digesters.

* * * * * generate delayed RINs, and electing to (4) For parties that retire RINs (g) Delayed RIN generation. (1) Parties do so, who generated RINs pursuant to pursuant to paragraph (g)(3) of this who produce or import renewable fuel 80.1426(f)(6) and transferred those RINs section, the number of delayed gallon- may elect to generate delayed RINs to with renewable fuel volumes between RINs generated shall be equal to the represent renewable fuel volumes that July 1, 2010 and September 28, 2010 number of gallon-RINs retired. have already been transferred to another inclusive, must retire a number of (5) A party authorized pursuant to party if those renewable fuel volumes gallon-RINs prior to generating delayed paragraph (g)(1) of this section to meet all of the following criteria. RINs. generate delayed RINs, and electing to (i) The renewable fuel is biodiesel that (i) The number of gallon-RINs retired do so, who did not generate RINs is made from canola oil and described pursuant to 80.1426(f)(6) for renewable by a pathway in Table 1 to § 80.1426; by a party pursuant to this paragraph must not exceed the number of gallon- fuel produced or imported between July and 1, 2010 and September 28, 2010 (ii) The fuel was produced or RINs originally generated by the party to inclusive, may generate a number of imported between July 1, 2010, and represent fuel described in paragraph delayed gallon-RINs for that renewable September 28, 2010 inclusive. (g)(1)(i) of this section that was (2) Delayed RINs must be generated produced or imported, and transferred fuel in accordance with paragraph (f) of no later than the following deadline: to another party, between July 1, 2010 this section. (i) For renewable fuel that is biodiesel and September 28, 2010 inclusive. (i) The standardized volume of fuel that is made from canola oil and (ii) Retired RINs must have a D code (Vs) used by a party to determine the described by a pathway in Table 1 to of 6. RIN volume (VRIN) under paragraph (f) § 80.1426, no later than 60 days after of this section shall be the standardized (iii) Retired RINs must have a K code September 28, 2010. volume of the fuel described in (ii) [Reserved] of 2. paragraph (g)(1)(i) of this section that (3) A party authorized pursuant to (iv) Retired RINs must have been was produced or imported by the party, paragraph (g)(1) of this section to generated in 2010. and transferred to another party,

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES 59634 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations

between July 1, 2010 and September 28, DATES: The date of issuance of the Flood selected locations in each community 2010 inclusive Insurance Rate Map (FIRM) showing are shown. (ii) [Reserved] BFEs and modified BFEs for each National Environmental Policy Act. (6) The renewable fuel for which community. This date may be obtained This final rule is categorically excluded delayed RINs are generated must be by contacting the office where the maps from the requirements of 44 CFR part described by the new pathway are available for inspection as indicated 10, Environmental Consideration. An described in paragraph (g)(1) of this in the table below. environmental impact assessment has section. ADDRESSES: The final BFEs for each not been prepared. (7) All delayed RINs generated by a Regulatory Flexibility Act. As flood renewable fuel producer or importer community are available for inspection at the office of the Chief Executive elevation determinations are not within must be generated on the same date. the scope of the Regulatory Flexibility (8) Delayed RINs shall be generated as Officer of each community. The Act, 5 U.S.C. 601–612, a regulatory assigned RINs in EMTS, and then respective addresses are listed in the flexibility analysis is not required. immediately separated by the RIN table below. generator. FOR FURTHER INFORMATION CONTACT: Roy Regulatory Classification. This final (9) The D code that shall be used in E. Wright, Deputy Director, Risk rule is not a significant regulatory action delayed RINs shall be the D code which Analysis Division, Federal Insurance under the criteria of section 3(f) of corresponds to the new pathway. and Mitigation Administration, Federal Executive Order 12866 of September 30, Emergency Management Agency, 500 C 1993, Regulatory Planning and Review, [FR Doc. 2010–24310 Filed 9–27–10; 8:45 am] 58 FR 51735. BILLING CODE 6560–50–P Street, SW., Washington, DC 20472, (202) 646–3461, or (e-mail) Executive Order 13132, Federalism. [email protected]. This final rule involves no policies that have federalism implications under DEPARTMENT OF HOMELAND SUPPLEMENTARY INFORMATION: The Executive Order 13132. SECURITY Federal Emergency Management Agency Executive Order 12988, Civil Justice (FEMA) makes the final determinations Reform. This final rule meets the Federal Emergency Management listed below for the modified BFEs for Agency applicable standards of Executive Order each community listed. These modified 12988. elevations have been published in 44 CFR Part 67 newspapers of local circulation and List of Subjects in 44 CFR Part 67 [Docket ID FEMA–2010–0003] ninety (90) days have elapsed since that Administrative practice and publication. The Deputy Federal procedure, Flood insurance, Reporting Final Flood Elevation Determinations Insurance and Mitigation Administrator and recordkeeping requirements. has resolved any appeals resulting from AGENCY: Federal Emergency ■ this notification. Accordingly, 44 CFR part 67 is Management Agency, DHS. amended as follows: This final rule is issued in accordance ACTION: Final rule. with section 110 of the Flood Disaster PART 67—[AMENDED] SUMMARY: Base (1% annual-chance) Protection Act of 1973, 42 U.S.C. 4104, Flood Elevations (BFEs) and modified and 44 CFR part 67. FEMA has ■ 1. The authority citation for part 67 BFEs are made final for the developed criteria for floodplain continues to read as follows: communities listed below. The BFEs management in floodprone areas in Authority: 42 U.S.C. 4001 et seq.; and modified BFEs are the basis for the accordance with 44 CFR part 60. Reorganization Plan No. 3 of 1978, 3 CFR, floodplain management measures that Interested lessees and owners of real 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, each community is required either to property are encouraged to review the 3 CFR, 1979 Comp., p. 376. adopt or to show evidence of being proof Flood Insurance Study and FIRM § 67.11 [Amended] already in effect in order to qualify or available at the address cited below for remain qualified for participation in the each community. The BFEs and ■ 2. The tables published under the National Flood Insurance Program modified BFEs are made final in the authority of § 67.11 are amended as (NFIP). communities listed below. Elevations at follows:

* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities above ground affected ∧ Elevation in meters (MSL) Modified

Napa County, California, and Incorporated Areas Docket No.: FEMA–B–1072

Napa Creek ...... At the confluence with the Napa River ...... +18 City of Napa. Approximately 100 feet upstream of Jefferson Street ...... +34 Napa River (With Levee) ...... Approximately 715 feet west of the State Route 121/East +27 City of Napa, Unincorporated Avenue intersection. Areas of Napa County. Approximately 1,530 feet southwest of the intersection of +29 State Route 121 and Woodland Drive. Napa River (Without Levee) ..... Approximately 0.5 mile downstream of Imola Avenue ...... +12 City of Napa, Unincorporated Areas of Napa County.

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations 59635

* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities above ground affected ∧ Elevation in meters (MSL) Modified

Approximately 1,230 feet downstream of the confluence +46 with Soda Creek. Napa River Oxbow Overflow .... At the confluence with Tulucay Creek ...... +16 City of Napa, Unincorporated Areas of Napa County. Approximately 0.39 mile upstream of Soscol Avenue ...... +19 Ponding Areas with elevations Extensive ponding areas, in roadways south of Salvador +39 City of Napa, Unincorporated determined (AH Zones). Creek (lowest elevation). Areas of Napa County. Extensive ponding areas, in roadways south of Salvador +76 Creek (highest elevation). Salvador Creek ...... At the confluence with the Napa River ...... +31 City of Napa, Unincorporated Areas of Napa County. Approximately 100 feet upstream of State Route 29 ...... +75 Salvador Creek North Branch .. At the confluence with Salvador Creek ...... +75 City of Napa, Unincorporated Areas of Napa County. Approximately 0.8 mile upstream of the confluence with +93 Salvador Creek. Salvador Creek South Branch .. At the confluence with Salvador Creek ...... +75 City of Napa. Approximately 1,365 feet upstream of Salvador Creek ...... +76 Shallow Flooding (AO Zone) .... Approximately 425 feet northeast of the Imola Avenue/ #1 City of Napa. Gasser Drive intersection. Approximately 1,400 feet northeast of the Imola Avenue/ #2 Gasser Drive intersection. Tulucay Creek ...... At the confluence with the Napa River ...... +15 City of Napa, Unincorporated Areas of Napa County. Approximately 560 feet upstream of Shurtleff Avenue ...... +38

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES City of Napa Maps are available for inspection at the Public Works Department, 1600 1st Street, Napa, CA 94559. Unincorporated Areas of Napa County Maps are available for inspection at the Napa County Public Works Department, 1195 3rd Street, Napa, CA 94559.

Walton County, Florida, and Incorporated Areas Docket No.: FEMA–B–7792

Bay Branch ...... At the confluence with Bruce Creek ...... +106 City of De Funiak Springs, Unincorporated Areas of Walton County. Approximately 900 feet upstream of U.S. Route 331 ...... +125 Black Creek ...... At County Road 3280 ...... +7 Unincorporated Areas of Walton County. Approximately 1,570 feet upstream of County Road 3280 +7 Bruce Creek ...... Approximately 1,100 feet downstream of the confluence +72 City of De Funiak Springs, with Mill Creek. Unincorporated Areas of Walton County. Approximately 6,700 feet upstream of the confluence with +114 Bay Branch. Camp Creek ...... At the confluence with Black Creek ...... +7 Unincorporated Areas of Walton County. Approximately 5,400 feet upstream of the confluence with +7 Black Creek. Gum Creek ...... At the confluence with the Shoal River ...... +150 Unincorporated Areas of Walton County. Approximately 12,700 feet upstream of the confluence +156 with the Shoal River. Lafayette Creek ...... At State Road 20 ...... +10 City of Freeport, Unincor- porated Areas of Walton County. Approximately 4,000 feet upstream of J.W. Hollington +58 Road. Mill Creek ...... At the confluence with Bruce Creek ...... +73 Unincorporated Areas of Walton County.

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES 59636 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations

* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities above ground affected ∧ Elevation in meters (MSL) Modified

Approximately 75 feet upstream of Edgewood Circle ...... +146 Mill Creek Unnamed Tributary .. At the confluence with Mill Creek ...... +124 Unincorporated Areas of Walton County. Approximately 200 feet upstream of Edgewood Circle ...... +175 Pate Branch ...... At the confluence with Camp Creek ...... +7 Unincorporated Areas of Walton County. Approximately 3,900 feet upstream of the confluence with +7 Camp Creek. Shoal River ...... At the Okaloosa/Walton county boundary ...... +111 Unincorporated Areas of Walton County. At the confluence with Gum Creek ...... +150

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES City of De Funiak Springs Maps are available for inspection at City Hall, 71 U.S. Route 90 West, De Funiak Springs, FL 32433. City of Freeport Maps are available for inspection at the Planning and Zoning Department, 112 U.S. Route 20 West, Freeport, FL 32439. Unincorporated Areas of Walton County Maps are available for inspection at the Walton County Planning and Development Department, South Walton County Courthouse Annex, 31 Coastal Centre Boulevard, Santa Rosa Beach, FL 32459.

McDuffie County, Georgia, and Incorporated Areas Docket No.: FEMA–B–1072

Boggy Gut Creek ...... Approximately 2.35 miles upstream of Harlem Wrens +429 Unincorporated Areas of Road. McDuffie County. Approximately 3.13 miles upstream of Harlem Wrens +483 Road.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES Unincorporated Areas of McDuffie County Maps are available for inspection at 504 Railroad Street, Thomson, GA 30824.

Murray County, Georgia, and Incorporated Areas Docket No.: FEMA–B–1072

Holly Creek ...... Approximately 0.77 mile downstream of CSX Railroad ...... +717 City of Chatsworth. Approximately 0.4 mile upstream of State Route 52/U.S. +730 Route 76. Mill Creek ...... Approximately 2.6 miles downstream of U.S. Route 411 ... +702 City of Chatsworth, Town of Eton. Approximately 1,300 feet upstream of State Route 286/ +733 Old CCC Camp Road.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES City of Chatsworth Maps are available for inspection at City Hall, 400 North 3rd Avenue, Chatsworth, GA 30705. Town of Eton Maps are available for inspection at the Town Hall, 3464 Highway 411 North, Eton, GA.

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations 59637

* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities above ground affected ∧ Elevation in meters (MSL) Modified

Cass County, Illinois, and Incorporated Areas Docket No.: FEMA–B–1053

Illinois River ...... At the confluence with Camp Creek in Brown County, ap- +448 City of Beardstown, Unincor- proximately 2,185 feet upstream of the Morgan County porated Areas of Cass boundary. County. At the downstream end of Elm Island in Schuyler County, +452 approximately 650 feet upstream of the Cass/Mason county boundary. Illinois River (backwater on the At the confluence with the Illinois River ...... +451 Unincorporated Areas of Sangamon River). Cass County. Approximately 12 miles upstream of the confluence with +452 the Illinois River. Panther Creek ...... Approximately 3,220 feet downstream of State Route 78 .. +458 Unincorporated Areas of Cass County. Approximately 3,660 feet upstream of Main Street ...... +472 Sangamon River ...... Approximately 285 feet upstream of Old River Road ...... +456 City of Beardstown, Unincor- porated Areas of Cass County. Approximately 1,600 feet upstream of State Route 78 ...... +461

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES City of Beardstown Maps are available for inspection at City Hall, 105 West 3rd Street, Beardstown, IL 62618. Unincorporated Areas of Cass County Maps are available for inspection at the Cass County Courthouse, 100 East Springfield Street, Virginia, IL 62691.

Adams County, Indiana, and Incorporated Areas Docket No.: FEMA–B–7737

Borum Run ...... At the confluence with the St. Mary’s River ...... +791 City of Decatur, Unincor- porated Areas of Adams County. Approximately 5,125 feet upstream of High Street ...... +791 Holthouse Ditch ...... At the confluence with the St. Mary’s River ...... +787 City of Decatur, Unincor- porated Areas of Adams County. Approximately 4,700 feet upstream of Washington Street +787 Kohne Drain No. 1 ...... At the confluence with Holthouse Ditch ...... +787 City of Decatur, Unincor- porated Areas of Adams County. Approximately 1,350 feet upstream of Meibers Street ...... +787 Koos Ditch ...... At the confluence with the St. Mary’s River ...... +789 City of Decatur, Unincor- porated Areas of Adams County. Approximately 1,550 upstream of Piqua Road ...... +789 St. Mary’s River ...... Approximately 14,750 feet downstream of County Road +778 City of Decatur, Unincor- 350 West. porated Areas of Adams County. Approximately 16,650 feet upstream of State Road 101 ... +794 Yellow Creek ...... At the confluence with the St. Mary’s River ...... +791 Unincorporated Areas of Adams County. Approximately 1,750 feet upstream of Norfolk and West- +791 ern Railway.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES City of Decatur Maps are available for inspection at 225 West Monroe Street, Decatur, IN 46733.

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES 59638 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations

* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities above ground affected ∧ Elevation in meters (MSL) Modified

Unincorporated Areas of Adams County Maps are available for inspection at 313 West Jefferson Street, Suite 338, Decatur, IN 46733.

Calloway County, Kentucky, and Incorporated Areas Docket No.: FEMA–B–1069

Anderson Creek ...... From the confluence with Kentucky Lake to approximately +375 Unincorporated Areas of 0.7 mile upstream of the confluence with Kentucky Lake Calloway County. (backwater effects from Kentucky Lake). Bailey Hollow ...... From the confluence with Kentucky Lake to approximately +375 Unincorporated Areas of 0.5 mile upstream of the confluence with Kentucky Lake Calloway County. (backwater effects from Kentucky Lake). Bee Creek ...... Just upstream of the confluence with the Clarks River ...... +457 City of Murray, Unincor- porated Areas of Calloway County. Just downstream of railroad ...... +463 Beechy Creek ...... From the confluence with Kentucky Lake to approximately +375 Unincorporated Areas of 1.5 mile upstream of the confluence with Kentucky Lake Calloway County. (backwater effects from Kentucky Lake). Blood River ...... From the confluence with Kentucky Lake to approximately +375 Unincorporated Areas of 2.8 miles upstream of the confluence with Kentucky Calloway County. Lake (backwater effects from Kentucky Lake). Blood River Tributary 1 ...... From the confluence with Kentucky Lake to approximately +375 Unincorporated Areas of 0.7 mile upstream of the confluence with Kentucky Lake Calloway County. (backwater effects from Kentucky Lake). Blood River Tributary 5 ...... From the confluence with Kentucky Lake to approximately +375 Unincorporated Areas of 0.6 mile upstream of the confluence with Kentucky Lake Calloway County. (backwater effects from Kentucky Lake). Brush Creek ...... From the confluence with Kentucky Lake to approximately +375 Unincorporated Areas of 0.4 mile upstream of the confluence with Kentucky Lake Calloway County. (backwater effects from Kentucky Lake). Clarks River ...... Approximately 0.75 mile upstream of the confluence with +437 City of Murray, Unincor- Clarks River Tributary 14. porated Areas of Calloway County. At the confluence with the East and Middle Fork Clarks +479 River. Clayton Creek ...... From the confluence with the Clarks River to approxi- +468 Unincorporated Areas of mately 0.7 mile upstream of the confluence with the Calloway County. Clarks River (backwater effects from Clarks River). Dog Creek ...... From the confluence with the Blood River to approxi- +375 Unincorporated Areas of mately 0.8 mile upstream of the confluence with the Calloway County. Blood River (backwater effects from Kentucky Lake). East Fork Clarks River ...... At the confluence with the Clarks River and Middle Fork +479 City of Murray, Unincor- Clarks River. porated Areas of Calloway County. Approximately 0.9 mile upstream of the confluence with +482 the Middle Fork Clarks River. Goose Creek ...... From the confluence with Dog Creek to approximately 0.2 +375 Unincorporated Areas of mile upstream of the confluence with Dog Creek (back- Calloway County. water effects from Kentucky Lake). Grindstone Creek ...... From the confluence with Blood River Tributary 1 to ap- +375 Unincorporated Areas of proximately 0.2 mile upstream of the confluence with Calloway County. Blood River Tributary 1 (backwater effects from Ken- tucky Lake). Jonathan Creek ...... From the Calloway County boundary to approximately 1 +375 Unincorporated Areas of mile upstream of the county boundary (backwater ef- Calloway County. fects from Kentucky Lake). Kentucky Lake ...... Entire shoreline of Kentucky Lake ...... +375 Unincorporated Areas of Calloway County. Ledbetter Creek ...... From the confluence with Kentucky Lake to approximately +375 Unincorporated Areas of 0.6 mile upstream of the confluence with Kentucky Lake Calloway County. (backwater effects from Kentucky Lake). Little Sugar Creek ...... From the confluence with Kentucky Lake to approximately +375 Unincorporated Areas of 0.5 mile upstream of the confluence with Kentucky Lake Calloway County. (backwater effects from Kentucky Lake).

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations 59639

* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities above ground affected ∧ Elevation in meters (MSL) Modified

Middle Fork Clarks River ...... At the confluence with the Clarks River and East Middle +479 City of Murray, Unincor- Fork Clarks River. porated Areas of Calloway County. Approximately 1,000 feet downstream of U.S. Route 641 +481 Panther Creek ...... From the confluence with Kentucky Lake to approximately +375 Unincorporated Areas of 1.1 mile upstream of the confluence with Kentucky Lake Calloway County. (backwater effects from Kentucky Lake). Shannon Creek ...... From the confluence with Kentucky Lake to approximately +375 Unincorporated Areas of 0.6 mile upstream of the confluence with Kentucky Lake Calloway County. (backwater effects from Kentucky Lake). Snipe Creek ...... From the confluence with Kentucky Lake to approximately +375 Unincorporated Areas of 0.4 mile upstream of the confluence with Kentucky Lake Calloway County. (backwater effects from Kentucky Lake). Sugar Creek ...... From the confluence with Kentucky Lake to approximately +375 Unincorporated Areas of 0.8 mile upstream of the confluence with Kentucky Lake Calloway County. (backwater effects from Kentucky Lake). Sugar Creek Tributary 2 ...... From the confluence with Kentucky Lake to approximately +375 Unincorporated Areas of 0.5 mile upstream of the confluence with Kentucky Lake Calloway County. (backwater effects from Kentucky Lake). Tan Branch ...... From the confluence with Kentucky Lake to approximately +375 Unincorporated Areas of 0.7 mile upstream of the confluence with Kentucky Lake Calloway County. (backwater effects from Kentucky Lake). Tennessee River Tributary 75 .. From the confluence with Kentucky Lake to approximately +375 Unincorporated Areas of 0.7 mile upstream of the confluence with Kentucky Lake Calloway County. (backwater effects from Kentucky Lake). Tennessee River Tributary 91 .. From the confluence with Kentucky Lake to approximately +375 Unincorporated Areas of 0.5 mile upstream of the confluence with Kentucky Lake Calloway County. (backwater effects from Kentucky Lake). Tributary 1 to Clarks River ...... At the confluence with the Clarks River ...... +470 Unincorporated Areas of Calloway County. Approximately 1,800 feet upstream of the confluence with +473 the Clarks River. Tributary to Middle Fork Clarks At the confluence with the Middle Fork Clarks River ...... +479 Unincorporated Areas of River. Calloway County. Approximately 1,700 feet upstream of the confluence with +484 the Middle Fork Clarks River. Wildcat Creek ...... From the confluence with Kentucky Lake to approximately +375 Unincorporated Areas of 1.2 mile upstream of the confluence with Kentucky Lake Calloway County. (backwater effects from Kentucky Lake). Yellow Spring Branch ...... From the confluence with Kentucky Lake to approximately +375 Unincorporated Areas of 0.4 mile upstream of the confluence with Kentucky Lake Calloway County. (backwater effects from Kentucky Lake).

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES City of Murray Maps are available for inspection at 104 North 5th Street, Murray, KY 42071. Unincorporated Areas of Calloway County Maps are available for inspection at 101 South 5th Street, Murray, KY 42071.

Jones County, Mississippi, and Incorporated Areas Docket No.: FEMA–B–1051

Tallahala Creek ...... Approximately 800 feet upstream of Luther Hill Road ...... +219 City of Laurel, Unincor- porated Areas of Jones County. Approximately 1,000 feet upstream of U.S. Route 84 ...... +228

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter.

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES 59640 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations

* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities above ground affected ∧ Elevation in meters (MSL) Modified

ADDRESSES City of Laurel Maps are available for inspection at the City Clerk’s Office, 401 North 5th Avenue, Laurel, MS 39440. Unincorporated Areas of Jones County Maps are available for inspection at the Jones County Courthouse, 415 North 5th Avenue, Laurel, MS 39440.

Laclede County, Missouri, and Incorporated Areas Docket No.: FEMA–B–1043

Radio Tower Branch ...... Approximately 2,300 feet upstream of the confluence with +1166 City of Lebanon. Goodwin Hallow. Approximately 3,150 feet upstream of the confluence with +1170 Goodwin Hallow.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES City of Lebanon Maps are available for inspection at 400 South Madison Avenue, Lebanon, MO 65536.

Lincoln County, Missouri, and Incorporated Areas Docket No.: FEMA–B–1057

Cuivre River ...... At the confluence with the Mississippi River at East Syca- +444 City of Old Monroe, Unincor- more Road, east of the City of Old Monroe. porated Areas of Lincoln County. McLean Creek ...... At the confluence with the Mississippi River, just east of +445 City of Winfield, Unincor- the City of Winfield. porated Areas of Lincoln County. Mississippi River ...... At the southern Lincoln County boundary, east of the City +444 City of Elsberry, City of of Old Monroe. Foley, City of Old Monroe, City of Winfield, Unincor- porated Areas of Lincoln County. At the northern Lincoln County boundary, at Dameron +450 Road. Sandy Creek ...... At the confluence with the Mississippi River, east of the +446 City of Foley, Unincorporated City of Foley. Areas of Lincoln County.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES City of Elsberry Maps are available for inspection at 201 Broadway Street, Elsberry, MO 63343. City of Foley Maps are available for inspection at 617 Elm Street, Foley, MO 63347. City of Old Monroe Maps are available for inspection at 151 Main Street, Old Monroe, MO 63369. City of Winfield Maps are available for inspection at 51 Old Troy Highway, Winfield, MO 63389. Unincorporated Areas of Lincoln County Maps are available for inspection at 201 Main Street, Troy, MO 63379.

Sequoyah County, Oklahoma, and Incorporated Areas Docket No.: FEMA–B–1060

Hog Creek ...... Just upstream of East 1040 Road ...... +577 Unincorporated Areas of Sequoyah County. Approximately 0.85 mile upstream of East 1040 Road ...... +619 Sewage Disposal Pond ...... Approximately 0.47 mile downstream of Union Pacific +481 Town of Gore. Railroad.

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations 59641

* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities above ground affected ∧ Elevation in meters (MSL) Modified

Just downstream of Union Pacific Railroad ...... +481

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES Town of Gore Maps are available for inspection at 201 North Main Street, Gore, OK 74435. Unincorporated Areas of Sequoyah County Maps are available for inspection at 117 South Oak Street, Salisaw, OK 74955.

Brown County, South Dakota, and Incorporated Areas Docket No.: FEMA–B–1053

James River ...... Approximately 3.8 miles downstream of 147th Street ...... +1275 Unincorporated Areas of Brown County. Approximately 6,260 feet upstream of 101st Street ...... +1296

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES Unincorporated Areas of Brown County Maps are available for inspection at 25 Market Street, Aberdeen, SD 57401.

Davison County, South Dakota, and Incorporated Areas Docket No.: FEMA–B–1054

Dry Run Creek ...... Approximately 1,554 feet downstream of SD Highway 38 +1254 City of Mitchell, Unincor- porated Areas of Davison County. Approximately 2,578 feet upstream of 407th Avenue ...... +1303

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES City of Mitchell Maps are available for inspection at 612 North Main Street, Mitchell, SD 57301. Unincorporated Areas of Davison County Maps are available for inspection at 200 East 4th Avenue, Mitchell, SD 57301.

Clay County, Tennessee, and Incorporated Areas Docket No.: FEMA–B–1074

Cumberland River ...... Approximately 3.5 miles downstream of State Route 52 ... +508 City of Celina, Unincor- porated Areas of Clay County. Approximately 4.8 miles upstream of State Route 52 ...... +518

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES City of Celina Maps are available for inspection at City Hall, 143 Cordell Hull Drive, Celina, TN 38551. Unincorporated Areas of Clay County Maps are available for inspection at the Clay County Public Library, 116 Guffey Street, Celina, TN 38551.

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES 59642 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations

* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities above ground affected ∧ Elevation in meters (MSL) Modified

Perry County, Tennessee, and Incorporated Areas Docket No.: FEMA–B–1068

Tennessee River ...... Approximately 15 miles downstream of U.S. Route 412 .... +375 Unincorporated Areas of Perry County. Approximately 18.2 miles upstream of U.S. Route 412 ..... +386

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES Unincorporated Areas of Perry County Maps are available for inspection at 121 East Main Street, Linden, TN 37096.

Rusk County, Texas, and Incorporated Areas Docket No.: FEMA–B–1043

Unnamed Stream off of Turkey At the confluence with Turkey Creek ...... +329 City of Henderson. Creek. Approximately 110 feet downstream of Florence Street .... +336

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES City of Henderson Maps are available for inspection at City Hall, 400 West Main Street, Henderson, TX 75652.

Box Elder County, Utah, and Incorporated Areas Docket No.: FEMA–B–1065

Box Elder Creek ...... Just upstream of Watery Lane ...... +4236 City of Brigham City. Upstream extent of Mayor’s Pond spillway ...... +4541

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES City of Brigham City Maps are available for inspection at 20 North Main Street, Brigham City, UT 84302.

Bedford County, Virginia, and Incorporated Areas Docket Nos.: FEMA–B–1066 and FEMA–B–7768

Ivy Creek...... Approximately 1,430 feet downstream of Hawkins Mill +679 Unincorporated Areas of Road. Bedford County. Approximately 2,200 feet downstream of Tabernacle Lane +829 Johns Creek ...... At the confluence with the Little Otter River ...... +732 City of Bedford, Unincor- porated Areas of Bedford County. Approximately 1,800 feet downstream of Independence +818 Boulevard. Approximately 445 feet downstream of Independence +828 Boulevard. Approximately 740 feet upstream of Independence Boule- +842 vard. Approximately 3,400 feet upstream of Independence Bou- +861 levard. At East Main Street ...... +939 Lick Run ...... Approximately 5.2 miles above the confluence with the +727 Unincorporated Areas of Big Otter River. Bedford County. Just downstream of U.S. Route 460 ...... +756

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations 59643

* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities above ground affected ∧ Elevation in meters (MSL) Modified

Little Otter River ...... At Big Island Highway ...... +792 Unincorporated Areas of Bedford County. At Route 43 ...... +839 Tributary No. 10 to Ivy Creek ... At the confluence with Ivy Creek ...... +700 Unincorporated Areas of Bedford County. Approximately 500 feet downstream of Forest Road ...... +838 Tributary No. 11 to Ivy Creek ... Approximately 850 feet upstream of the confluence with +696 Unincorporated Areas of Ivy Creek. Bedford County. Just downstream of Forest Road ...... +801 Tributary No. 14 to Ivy Creek ... At the confluence with Ivy Creek ...... +683 Unincorporated Areas of Bedford County. Approximately 1,500 feet upstream of McIntosh Drive ...... +812 Tributary No. 15 to Ivy Creek ... At the City of Lynchburg/Bedford County boundary ...... +671 Unincorporated Areas of Bedford County. Approximately 1 mile upstream of Hawkins Mill Road ...... +800 Tributary No. 8 to Little Otter At the confluence with the Little Otter River ...... +797 City of Bedford, Unincor- River. porated Areas of Bedford County. Approximately 500 feet downstream of Longwood Avenue +932 Tributary No. 8A to Little Otter At the confluence with Tributary No. 8 to Little Otter River +824 City of Bedford, Unincor- River. porated Areas of Bedford County. Approximately 0.5 mile upstream of the confluence with +914 Tributary No. 8 to Little Otter River. Tributary No. 9 to Little Otter At the confluence with the Little Otter River ...... +826 City of Bedford, Unincor- River. porated Areas of Bedford County. Approximately 2,400 feet upstream of Whitfield Drive ...... +940 Tributary No. 10 to Little Otter At the confluence with the Little Otter River ...... +839 City of Bedford, Unincor- River. porated Areas of Bedford County. At Lake Drive ...... +867

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES City of Bedford Maps are available for inspection at the Municipal Offices, 215 East Main Street, Bedford, VA 24523. Unincorporated Areas of Bedford County Maps are available for inspection at the Office of the Bedford County Administrator, 122 East Main Street, Suite 2002, Bedford, VA 24523.

Dickenson County, Virginia, and Incorporated Areas Docket No.: FEMA–B–1061

Frying Pan Creek ...... At the confluence with Russell Fork ...... +1293 Unincorporated Areas of Dickenson County. Approximately 1,400 feet downstream of the intersection +1316 with Sandlick Road and Frying Pan Road. Greenbriar Creek ...... At the confluence with Russell Prater Creek ...... +1418 Unincorporated Areas of Dickenson County. Approximately 1,400 feet downstream of the intersection +1426 of Winchester Drive and Greenbrier Road. Lick Creek ...... At the confluence with Russell Fork ...... +1289 Unincorporated Areas of Dickenson County. Approximately 1,000 feet upstream of the intersection of +1559 Aily Road and Ransom Road. McClure Creek ...... Approximately 1,800 feet upstream of the confluence with +1520 Unincorporated Areas of Open Fork and the McClure River. Dickenson County. Approximately 1,100 feet downstream of the intersection +1598 of Wakenva Hollow Road and Dante Mountain Road. McClure River ...... At the confluence with Russell Fork ...... +1273 Town of Clinchco, Town of Haysi, Unincorporated Areas of Dickenson Coun- ty.

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES 59644 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations

* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities above ground affected ∧ Elevation in meters (MSL) Modified

Approximately 300 feet downstream of the intersection of +1518 Doctor Ralph Stanley Highway and Dante Mountain Road. Mill Creek ...... At the confluence with the McClure River ...... +1403 Town of Clinchco, Unincor- porated Areas of Dickenson County. Approximately 400 feet upstream of Chevy Drive ...... +1622 Open Fork ...... At the confluence with the McClure River ...... +1518 Unincorporated Areas of Dickenson County. Approximately 1,000 feet upstream of the intersection with +1581 Neece Creek Road and Brushy Ridge Road. Russell Fork ...... Approximately 1,300 feet downstream of Bartlick Road ..... +1190 Town of Haysi, Unincor- porated Areas of Dickenson County. Approximately 160 feet downstream of Sandlick Road ...... +1437 Russell Prater Creek ...... At the confluence with Russell Fork ...... +1275 Town of Haysi, Unincor- porated Areas of Dickenson County. At the confluence with Greenbriar Creek ...... +1418 Spring Fork ...... Just downstream of the railroad crossing ...... +1557 Unincorporated Areas of Dickenson County. Approximately 850 feet upstream of the intersection of +1577 Rebel Drive and Doctor Ralph Stanley Highway.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES Town of Clinchco Maps are available for inspection at the Town Office, 156 Main Street, Clinchco, VA 24226. Town of Haysi Maps are available for inspection at the Town Administrative Offices, 322 Haysi Main Street, Haysi, VA 24256. Unincorporated Areas of Dickenson County Maps are available for inspection at Dickenson County Courthouse, 293 Clintwood Main Street, Clintwood, VA 24228.

Randolph County, West Virginia, and Incorporated Areas Docket No.: FEMA–B–1066

Backwater flooding from Tygart At the area bounded by Robert E. Lee Avenue, +1914 City of Elkins. Valley River. Whisperwood Drive and the railroad. At the corporate limits paralleling Sunset Drive ...... +1914 Craven Run ...... At the downstream corporate limits of the City of Elkins .... +1913 City of Elkins. Approximately 630 feet downstream of Virginia Avenue .... +1913

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES City of Elkins Maps are available for inspection at City Hall, 401 Davis Avenue, 2nd Floor, Elkins, WV 26241.

Upshur County, West Virginia, and Incorporated Areas Docket No.: FEMA–B–1074

Brushy Fork (backwater effects At County Route 7/1 (Left Branch of Brushy Fork) ...... +1415 Unincorporated Areas of from Buckhannon River). Upshur County. Approximately 700 feet upstream of County Route 7⁄1 +1415 (Left Branch of Brushy Fork). Fink Run (backwater effects Just upstream of Old Weston Road ...... +1415 Unincorporated Areas of from Buckhannon River). Upshur County. Approximately 2,100 feet upstream of the intersection of +1415 Old Weston Road and County Route 5/7 (Mudlick Run).

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations 59645

* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities above ground affected ∧ Elevation in meters (MSL) Modified

Unnamed Tributary No. 1 to At the area bounded by U.S. Route 33, Wabash Avenue, +1415 Unincorporated Areas of Fink Run (Backwater effects and County Route 33/1. Upshur County. from Buckhannon River).

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES Unincorporated Areas of Upshur County Maps are available for inspection at the Upshur County Courthouse Annex, 38 West Main Street, Buckhannon, WV 26201.

(Catalog of Federal Domestic Assistance No. 76.913(b)(1)—62 FR 6495, February 12, collection requirements that are subject 97.022, ‘‘Flood Insurance.’’) 1997. to OMB approval. Dated: September 21, 2010. 76.924(e)(1)(iii) and (e)(2)(iii)—61 FR [FR Doc. 2010–24203 Filed 9–27–10; 8:45 am] Edward L. Connor, 9367, March 8, 1996. BILLING CODE 6712–01–P Acting Federal Insurance and Mitigation 76.925—60 FR 52119, October 5, 1995. Administrator, Department of Homeland 76.942(f)—60 FR 52120, October 5, Security, Federal Emergency Management 1995. DEPARTMENT OF THE INTERIOR Agency. 76.944(c)—60 FR 52121, October 5, [FR Doc. 2010–24326 Filed 9–27–10; 8:45 am] 1995. Fish and Wildlife Service BILLING CODE 9110–12–P 76.957—60 FR 52121, October 5, 1995. 76.1504(e)—61 FR 43176, August 26, 50 CFR Part 17 1996. FEDERAL COMMUNICATIONS [Docket No. FWS–R9–IA–2008–0068; 92210– 76.1511—61 FR 43177, August 21, 1996. 0–0010–B6] COMMISSION 76.1512—61 FR 43177, August 21, 1996. RIN 1018–AV60 47 CFR Parts 73 and 76 76.1514—61 FR 43176, August 21, 1996. FOR FURTHER INFORMATION CONTACT: Endangered and Threatened Wildlife Radio Broadcast Services and Shirley Suggs, (202) 418–1568, Media and Plants; Determination of Multichannel Video and Cable Bureau. Endangered Status for the African Television Service; Clarification Penguin Regarding Information Collection SUPPLEMENTARY INFORMATION: The Requirements Commission published several AGENCY: Fish and Wildlife Service, documents in the Federal Register Interior. AGENCY: Federal Communications identifying rules that required OMB ACTION: Final rule. Commission. approval. After further review, we have ACTION: Final rule; clarification. found OMB approval is not required. SUMMARY: We, the U.S. Fish and The affected CFR sections are as Wildlife Service, determine endangered SUMMARY: The Federal Communications follows: Commission has published a number of status for the African penguin requirements related to Radio Broadcast Marlene H. Dortch, (Spheniscus demersus) under the Services and Multichannel Video and Secretary, Federal Communications Endangered Species Act of 1973, as Cable Television Service, which were Commission. amended. This final rule implements the Federal protections provided by the determined to contain information ■ For the reasons stated in the preamble, Act for this species. collection requirements that were and under the authority at 47 U.S.C. subject to OMB review. After further 154, 303, 334, 336 and 339; 47 U.S.C. DATES: This rule becomes effective review, we have found OMB approval is 151, 152, 153, 154, 301, 302, 302a, 303, October 29, 2010. not required. This document intends to 303a, 307, 308, 309, 312, 315, 317, 325, ADDRESSES: This final rule is available provide clarification that these rules are 339, 340, 341, 503, 521, 522, 531, 532, on the Internet at http:// effective and that it has been 534, 535, 536, 537, 543, 544, 544a, 545, www.regulations.gov and comments and determined that these provisions are not 548, 549, 552, 554, 556, 558, 560, 561, materials received, as well as supporting subject to OMB review. 571, 572, and 573 * * *, the Federal documentation used in the preparation DATES: Effective September 28, 2010, the Communications Commission has of this rule, will be available for public following regulations are no longer determined that the regulations at inspection, by appointment, during pending OMB approval for the sections §§ 73.6027, 76.5(ll), 76.913(b)(1), normal business hours at: U.S. Fish and listed: 76.924(e)(1)(iii) and (e)(2)(iii), 76.925, Wildlife Service, 4401 N. Fairfax Drive, 73.6027—69 FR 69331, November 29, 76.942(f), 76.944(c), 76.957, 76.1504(e), Suite 400, Arlington, VA 22203. 2004. 76.1511, 76.1512, and 76.1514 are FOR FURTHER INFORMATION CONTACT: 76.5(ll)—61 FR 6137, February 16, 1996. effective and do not contain information Janine Van Norman, Chief, Branch of

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES 59646 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations

Foreign Species, Endangered Species we attended the International Penguin new information regarding the proposed Program, U.S. Fish and Wildlife Service, Conference in Hobart, Tasmania, listing of this species, and we address 4401 North Fairfax Drive, Room 420, Australia, a quadrennial meeting of those comments below. Overall, the Arlington, VA 22203; telephone 703– penguin scientists from September 3–7, commenters and peer reviewers 358–2171; facsimile 703–358–1735. If 2007, to gather information and to supported the proposed listing. Four you use a telecommunications device ensure that experts were aware of the comments from the public included for the deaf (TDD), call the Federal status review. We also consulted with additional information for Information Relay Service (FIRS) at other agencies and range countries in an consideration; all other comments 800–877–8339. effort to gather the best available simply supported the proposed listing SUPPLEMENTARY INFORMATION: scientific and commercial information without providing scientific or on these species. commercial data. Background On December 3, 2007, the Service The Endangered Species Act of 1973, received a 60-day Notice of Intent to Sue Peer Review as amended (Act) (16 U.S.C. 1531 et from CBD. On February 27, 2008, CBD In accordance with our policy seq.) is a law that was passed to prevent filed a complaint against the published on July 1, 1994 (59 FR extinction of species by providing Department of the Interior for failure to 34270), we solicited expert opinions measures to help alleviate the loss of make a 12-month finding (status from four individuals with scientific species and their habitats. Before a plant determination) on the petition. On expertise that included familiarity with or animal species can receive the September 8, 2008, the Service entered the species, the geographic region in protection provided by the Act, it must into a settlement agreement with CBD, which the species occurs, and first be added to the Federal Lists of in which we agreed to submit to the conservation biology principles. We Threatened and Endangered Wildlife Federal Register 12-month findings for received responses from two of the peer and Plants; section 4 of the Act and its the 10 species of penguins, including reviewers from whom we requested implementing regulations at 50 CFR part the African penguin, on or before comments. They generally agreed that 424 set forth the procedures for adding December 19, 2008. the description of the biology and species to these lists. On December 18, 2008, the Service habitat for the species was accurate and published in the Federal Register a Previous Federal Action based on the best available information. warranted 12-month finding and rule New or additional information on the On November 29, 2006, the U.S. Fish proposing to list the African penguin as biology and habitat of the African and Wildlife Service (Service) received an endangered species under the Act (73 penguin and threats was provided and a petition from the Center for Biological FR 77332). We implemented the incorporated into the rulemaking as Diversity (CBD) to list 12 penguin Service’s peer review process and appropriate. In some cases, it has been species under the Act: Emperor penguin opened a 60-day comment period to indicated in the citations by ‘‘personal (Aptenodytes forsteri), southern solicit scientific and commercial communication’’ (pers. comm.), which rockhopper penguin (Eudyptes information on the species from all could indicate either an e-mail or chrysocome), northern rockhopper interested parties following publication penguin (Eudyptes moseleyi), Fiordland telephone conversation; while in other of the proposed rule. cases, the research citation is provided. crested penguin (Eudyptes On March 9, 2010, CBD filed a pachyrhynchus), snares crested penguin complaint against the Service for failure Peer Reviewer Comments (Eudyptes robustus), erect-crested to issue a final listing determination for (1) Comment: One peer reviewer penguin (Eudyptes sclateri), macaroni seven penguin species, including found the proposed rule to be thorough, penguin (Eudyptes chrysolophus), royal African penguin, within 12 months of covered the main threats to the African penguin (Eudyptes schlegeli), white- the proposals to list the species. In a penguin, and used the best information flippered penguin (Eudyptula minor court-approved settlement agreement, to accurately describe the biology, albosignata), yellow-eyed penguin the Service agreed to submit a final habitat, population trends, and (Megadyptes antipodes), African listing determination for the African distribution of the species. This peer penguin (Spheniscus demersus), and penguin to the Federal Register by reviewer also provided a few technical Humboldt penguin (Spheniscus September 30, 2010. humboldti). On July 11, 2007, we corrections. published in the Federal Register a 90- Summary of Comments and Our Response: We thank the peer day finding (72 FR 37695) in which we Recommendations reviewer for providing comments on the determined that the petition presented We base this finding on a review of proposed rule. Most of the technical substantial scientific or commercial the best scientific and commercial corrections that were provided were information indicating that listing 10 of information available, including all minor and did not significantly change the penguin species as endangered or information received during the public the information already provided in the threatened may be warranted, but comment period. In the December 18, proposed rule, but rather provided more determined that the petition did not 2008, proposed rule, we requested that accuracy or clarity. Technical and provide substantial scientific or all interested parties submit information grammatical corrections have been commercial information indicating that that might contribute to development of incorporated into this final rule and listing the snares crested penguin and a final rule. We also contacted have been indicated in the citation as a the royal penguin as threatened or appropriate scientific experts and personal communication. endangered species may be warranted. organizations and invited them to (2) Comment: One peer reviewer Following the publication of our 90- comment on the proposed listings. We noted that relevant key literature was day finding on this petition, we initiated received 604 comments: 602 from not cited and provided a list of 18 a status review to determine if listing members of the public and 2 from peer additional references for review and each of the 10 species was warranted, reviewers. requested that we incorporate the new and sought information from the public We reviewed all comments we data and information into this final rule and interested parties on the status of received from the public and peer and consider it in making our listing the 10 species of penguins. In addition, reviewers for substantive issues and determination.

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations 59647

Our Response: We reviewed all 18 cholera has had a minimal effect on although limited, information. None of references and have incorporated African penguins. During an outbreak in the information, however, changed our relevant information and additional 1991 on eight islands off western South determination that listing this species as citations into this final rule. Africa, mortality was recorded for small endangered is warranted. (3) Comment: One peer reviewer numbers of African penguins on Dassen Species Information stated that it would be incorrect to say and Dyer islands (Crawford et al. 1992, that half the population of seals starved p. 237). From 2002 to 2006, there were The African penguin is known by during the last two documented El Nin˜ o annual outbreaks of avian cholera on three other common names: jackass events, although it was doubtless many Dyer Island. A characteristic of the penguin, cape penguin, and black- did. avian cholera outbreaks was significant footed penguin. The ancestry of the Our Response: This information came mortality in the Cape cormorant genus Spheniscus is estimated at 25 from an online science magazine, (Phalacrocorax capensis) with little million years, following a split between Science in Africa (2004, p. 2), which impact on other species (Waller and Spheniscus and Eudyptula from the stated that during the last two Underhill 2007, p. 109). During the basal lineage Aptenodytes (the ‘‘great documented events, the seal population 2004–2005 outbreak, which was the penguins,’’ emperor and king). was almost halved after many adult largest outbreak, only one African Speciation within Spheniscus is recent, seals succumbed to starvation, and the penguin death was recorded (Waller and with the two species pairs originating entire cohort of pups either died or Underhill 2007, p. 107). However, almost contemporaneously in the aborted. The peer reviewer did not human presence during the avian Pacific and Atlantic Oceans in include any citations on the impact the cholera outbreaks may disturb African approximately the last 4 million years El Nin˜ o events had on the seal penguins causing them to abandon (Baker et al. 2006, p. 15). population, therefore, we did not revise nests, leaving eggs and chicks African penguins are the only nesting this portion of the rule. vulnerable to predation (Waller and penguins found on the African (4) Comment: One peer reviewer Underhill 2007, p. 109). We have added continent. Their breeding range is from provided additional information on more information regarding the effects Hollamsbird Island, Namibia, to Bird factors contributing to the failure of of human presence during avian cholera Island, Algoa Bay, South Africa sardine stocks to recover; including outbreaks to Factor E. Other Natural or (Whittington et al. 2000, p. 8), where environmental anomalies and Manmade Factors Affecting the penguins form colonies (rookeries) for overfishing. In addition, the peer Continued Existence of the Species. breeding and molting. Outside the reviewer stated that, although horse breeding season, African penguins mackerel (Trachurus trachurus) may Public Comments occupy areas throughout the breeding have benefitted from the decline in (6) Comment: Several commenters range and farther to the north and east. sardine stocks, its increase in provided supporting data and Vagrants have occurred north to Sette abundance does not appear to be information regarding the biology, Cama (2 degrees and 32 minutes South detrimental to the sardine and should ecology, life history, population (2°32′ S)), Gabon, on Africa’s west coast not be regarded as ‘‘replacing’’ sardine, estimates, threat factors affecting this and to Inhaca Island (26°58′ S) and the as we indicated in the proposed rule. penguin species, and current Limpopo River mouth (24°45′ S), Our Response: We have added conservation efforts. Mozambique, on the east coast of Africa additional information regarding the Our Response: We thank all the (Shelton et al. 1984, p. 219; Hockey et effects of overfishing and environmental commenters for their interest in the al. 2005, p. 632). As a coastal species, anomalies in the Benguela system on conservation of this species and thank they are generally spotted within 7.5 sardine stocks to Factor A. The Present those commenters who provided miles (mi) (12 kilometers (km)) of the or Threatened Destruction, information for our consideration in shore. Modification, or Curtailment of African making this listing determination. Most There has been abandonment of Penguin’s Habitat or Range below. information submitted was duplicative breeding colonies and establishment of Although horse mackerel stocks have of the information contained in the new colonies within the range of the increased, it is likely due to the decrease proposed rule; however, some species. Within the Western Cape region in sardine stocks caused by high fishing comments contained information which in southwestern South Africa, for pressure. Mackerels were able to take provided additional clarity or support example, penguin numbers at the two advantage of this decrease in a to, but did not substantially change, the easternmost colonies (on Dyer and competitor for zooplankton and information already contained in the Geyser Islands) and three northernmost increased while sardine stocks proposed rule. This information has colonies (on Lambert’s Bay and Malgas stabilized at a lower abundance. been incorporated into our finding. and Marcus Islands) decreased, while Therefore, it is competition with the the population more than doubled over Summary of Changes From Proposed increased horse-mackerel stocks for the 1992–2003 period at five other Rule zooplanton, rather than actual colonies, including the two largest replacement, that is a concern for the We fully considered comments from colonies at Dassen and Robben Islands sardine as a vital food source for the the public and peer reviewers on the (du Toit et al. 2003, p. 1). The most African penguin. We have revised our proposed rule to develop this final significant development between 1978 statement that horse mackerel has listing of the African penguin. This final and the 1990s was the establishment of replaced sardines. rule incorporates changes to our three colonies that did not exist earlier (5) Comment: One peer reviewer proposed listing based on the comments in the 20th century—Stony Point, stated that avian cholera (Pasteurella that we received that are discussed Boulder’s Beach in False Bay, and multocida) has been reported to affect above and newly available scientific and Robben Island, which now supports the African penguins and could have commercial information. Reviewers third largest colony for the species (du catastrophic consequences for the generally commented that the proposed Toit et al. 2003, p. 1; Kemper et al. species. rule was very thorough and 2007c, p. 326). Our Response: After reviewing comprehensive. We made some Although African penguins are pertinent literature, we found that avian technical corrections based on new, generally colonial breeders, many also

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES 59648 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations

breed solitarily or in small, loose groups 252). The male carries out nest site anchovy became the dominate prey of (Kemper 2009, pers. comm.; Kemper et selection, while nest building is by both African penguins following the collapse al. 2007a, p. 89). They breed mainly on sexes. Penguins lay a two-egg clutch of the sardine stock in the 1960s rocky offshore islands, either nesting in (Kemper 2009, unpaginated; Randall (Kemper 2009, pers. comm.; Randall burrows they excavate themselves or 1989, p. 247). 1989, p. 251). Studies conducted under boulders or bushes, manmade Although population statistics vary between 1953 and 1992 showed that structures, or large items of jetsam from year to year, studies at a number anchovies and sardines contributed 50 (Kemper et al. 2007a, p. 89), sometimes of breeding islands revealed mean to 90 percent by mass of the African in depressions under these structures reported adult survival values per year penguin’s diet (Crawford et al. 2006, p. (Crawford 2009, pers. comm.). of 0.81 (Crawford et al. 2006, p. 121). 120) and 83 to 85 percent by number of Historically, they dug nests in the layers African penguins have an average prey items in studies conducted of sun-hardened guano (bird excrement) lifespan of 10–11 years in the wild. The between 1977 and 1985 (Crawford et al. that existed on most islands. However, highest recorded age in the wild is 2006, p. 120). In Namibia, pilchard in the 19th century, European and North greater than 27 years (Whittington et al. (Sardinops ocellata) were the dominate American traders exploited guano as a 2000, p. 81); however, several prey species of African penguins until source of nitrogen, denuding islands of individual birds have lived to be up to the collapse of the sardine stock in the their layers of guano (Hockey et al. 40 years of age in captivity. late 1960s to early 1970s (Kemper et al. 2005, p. 633; du Toit et al. 2003, p. 3). Feeding habitats of the African 2001, p. 432; Crawford et al. 1985, pp. Large-scale removal of guano from the penguin are dictated by the unique 225–226). Following the collapse, Namibian islands has resulted in a marine ecosystem of the coast of South pilchard were replaced as dominate majority of the penguins having to now Africa and Namibia. The Benguela prey by pelagic goby (Sufflogobius breed on the surface (Kemper 2009, ecosystem, encompassing one of the bibarbatus) at Mercury and Ichaboe pers. comm.; Kemper et al. 2007b, p. four major coastal upwelling ecosystems islands and by cephalopods at Halifax 101; Kemper et al. 2007a, p. 89; in the world, is situated along the coast and Possession islands (Kemper 2009, Shannon and Crawford 1999, pg. 119). of southwestern Africa. It stretches from pers. comm.; Ludynia 2007, pp. 27–28; African penguins have an extended east of the Cape of Good Hope in the Kemper et al. 2001, p. 432; Crawford et breeding season; colonies are observed south to the Angola Front to the north, al. 1985, pp. 225–226). Trends in to breed year-round on offshore islands where the Angola Front separates the regional populations of the African (Brown et al. 1982, p. 77). Broad warm water of the Angola current from penguin have been shown to be related regional differences do exist, though. the cold Benguela water (Fennel 1999, to long-term changes in the abundance The peak of the breeding season in p. 177). The Benguela ecosystem is an and distribution of these sardines and Namibia generally occurs between important center of marine biodiversity anchovies (Crawford 1998, p. 355; and marine food production, and is one October and February, with a secondary Crawford et al. 2006, p. 122). peak between June and October of the most productive ocean areas in (Kemper 2009, unpaginated), but the world, with a mean annual primary Most spawning by anchovy and variations occur between locations: On productivity about six times higher than sardine takes place on the Agulhas Mercury Island, peaks occur between that of the North Sea ecosystem. The Bank, which is to the southeast of October and January; on Ichaboe Island, rise of cold, nutrient-rich waters from Robben Island, from August to February peaks occur between October and the ocean depths to the warmer, sunlit (Hampton 1987, p. 908). Young-of-the- December; on Halifax Island, breeding zone at the surface in the Benguela year migrate southward along the west peaks between July and August and produces rich feeding grounds for a coast of South Africa from March until early December; and on Possession variety of marine and avian species. The September, past Robben Island to join Island, breeding peaks between Benguela ecosystem historically shoals of mature fish over the Agulhas November and January (Kemper et al. supports a globally significant biomass Bank (Crawford 1980, p. 651). The 2007a, pp. 89 and 91). In South Africa, of zooplankton, fish, sea birds, and southern Benguela upwelling system off breeding peaks differ from those in marine mammals, including the African the west coast of South Africa is Namibia: Peak breeding on Dassen and penguin’s main diet of anchovy characterized by strong seasonal Robben islands occurs between April (Engraulis encrasicolus) and Pacific patterns in prevailing wind direction, and August; on Malgas and Marcus sardine (Sardinops sagax) (Berruti et al. which result in seasonal changes in islands and Stony Point, peak breeding 1989, pp. 273–335). upwelling intensity. To produce occurs between February and August; The principal upwelling center in the adequate survival of their young, fish and on St. Croix Island, peak breeding Benguela ecosystem is situated in reproductive strategies are generally occurs during January with secondary southern Namibia, and is the most well-tuned to the seasonal variability of peaks in March through June (Kemper et concentrated and intense found in any their environment (Lehodey et al. 2006, al. 2007a, p. 95). upwelling regime. It is unique in that it p. 5011). In the southern Benguela, The timing of breeding is thought to is bounded at both northern and intense wind-mixing transport of coincide with availability of local food southern ends by warm water systems, surface waters creates an unfavorable sources (Kemper 2009, unpaginated; in the eastern Atlantic and the Indian environment for fish to breed. As a Kemper et al. 2007a, p. 95; Randall Ocean’s Agulhas current, respectively. result, both anchovy and sardine 1989, p. 247). Breeding pairs are Sharp horizontal gradients (fronts) exist populations have developed a novel considered monogamous; about 80 to 90 at these boundaries with adjacent ocean reproductive strategy that is tightly percent of pairs remain together in systems (Berruti et al. 1989, p. 276). linked to the seasonal dynamics of consecutive breeding seasons. The same African penguins, in general, feed on major local environmental processes— pair will generally return to the same small fish, cephalopods, and to a lesser spatial separation between spawning colony, and often the same nest site extent, squid (Crawford 2007, p. 229; and nursery grounds. For both species, each year. The average age at first Ludynia 2007, p. 27; Crawford et al. eggs spawned over the western Agulhas breeding is between 3 and 6 years old 2006, p. 120; Petersen et al. 2006, pp. Bank (WAB) are transported to the (Kemper et al. 2008, p. 810; Whittington 14, 18; Randall 1989, p. 251; Crawford productive west coast nursery grounds et al. 2005, p. 227; Randall 1989, p. et al. 1985, p. 215). In South Africa, via a coastal jet, which acts like a

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations 59649

‘‘conveyor belt’’ to transport early life Africa is perhaps related to a slight decline, most likely due to commercial stages from the WAB spawning area to trend toward earlier molting seasons fisheries and shifts in prey populations, the nursery grounds (Lehodey et al. (Underhill et al. 2007, p. 65). with no signs of reversing (BirldLife 2006, p. 5011). There has been a severe historical International 2010, unpaginated). The distance that African penguins decline in African penguin numbers in Breeding no longer occurs at seven have to travel to find food varies both both the South African and Namibian localities where it formerly occurred or temporally and spatially according to populations. This decline is accelerating has been suspected to occur—Seal, the season. Off western South Africa, at the present time. The species North Long, North Reef, and Albatross the mean foraging range of penguins declined from millions of birds in the Islands in Namibia, and Jacobs Reef, that are feeding chicks has been early 1900s (1.4 million adult birds at Quoin, and Seal (Mossel Bay) Islands in recorded to be 5.7 to 12.7 mi (9 to 20 Dassen Island alone in 1910) (Ellis et al. South Africa (Kemper 2009, pers. km) (Petersen et al. 2006, p. 14), mostly 1998, p. 116) to 141,000 pairs in 1956– comm.; Kemper et al. 2007c, p. 326; within 1.9 mi (3 km) off the coast 1957 to 69,000 pairs in 1979–1980 to Crawford et al. 1995a, p. 269). In the (Berruti et al. 1989, p. 307). Foraging 57,000 pairs in 2004–2005, and to about 1980s, breeding started at two mainland duration during chick provisioning may 36,188 pairs in 2006 (Kemper et al. sites in South Africa (Boulder’s Beach last anywhere from 8 hours to 3 days, 2007c, pp. 327). Crawford (2007, in litt.) and Stony Point) for which no earlier the average duration being around 10– reported that from 2006–2007, the records of breeding exist. There is no 13 hours (Petersen et al. 2006, p. 14). A overall population declined by 12 breeding along the coast of South recent study revealed greater foraging percent to 31,000 to 32,000 pairs. The Africa’s Northern Cape Province, which ranges between 8.8 and 19.8 mi (14 and 2009 global population was estimated at lies between Namibia and Western Cape 32 km) for African penguins on Mercury 25,262 pairs; equating to a decline of Province (Ellis et al. 1998, p. 115). Island and an average trip duration of 13 60.5 percent over 28 years (three Summary of Factors Affecting the hours (Ludynia 2007, pp. 17–18). generations) (BirdLife International Species Ludynia (2007, pp. 28, 30) also reported 2010, unpaginated). foraging ranges between 3.9 and 7.1 mi The species is distributed in about 32 Section 4 of the Act (16 U.S.C. 1533) (6 and 11 km) for three African colonies in three major clusters. In and its implementing regulations at 50 penguins on Possession Island and South Africa in 2006, there were 11,000 CFR 424 set forth the procedures for foraging ranges between 3.3 and 8.2 mi pairs in the first cluster at the Eastern adding species to the Federal Lists of (5 and 13 km) for two African penguins Cape, and about 21,000 in the second Endangered and Threatened Wildlife on Halifax Island; trip duration ranges cluster at the Western Cape colonies, and Plants. A species may be between 8–27.5 hours and 3.5–12 hours, with 13,283 of these pairs at Dassen determined to be an endangered or respectively. Travel distance from the Island and 3,697 at Robben Island. threatened species due to one or more breeding colony is more limited when South African totals were down from of the five factors described in section feeding young. Outside the breeding 32,786 pairs in 2006 to 28,000 pairs in 4(a)(1) of the Act. The five factors are: season, adults generally remain within 2007. There were about 3,402 pairs in (A) The present or threatened 248 mi (400 km) of their breeding the third major cluster in Namibia. The destruction, modification, or locality, while juveniles regularly move Namibian population has declined by curtailment of its habitat or range; (B) in excess of 621 mi (1,000 km) from more than 75 percent since the mid-20th overutilization for commercial, their natal island (Randall 1989, p. 250). century (from 42,000 pairs in 1956–57) recreational, scientific, or educational During the non-breeding season, some and has been decreasing 2.5 percent per purposes; (C) disease or predation; (D) African penguins forage on the Agulhas year between 1990 (when there were the inadequacy of existing regulatory Bank (Crawford 2009, pers. comm.). 7,000 to 8,000 pairs) and 2005 (Kemper mechanisms; and (E) other natural or Underhill et al. (2007, p. 65) et al. 2007c, p. 327; Underhill et al. manmade factors affecting its continued suggested that the molt period of 2007, p. 65; Roux et al. 2007a, p. 55). existence. These factors and their African penguins is closely tied to the On the 2007 International Union for application to the African penguin are spawning period of sardine and Conservation of Nature (IUCN) Red List, discussed below. anchovy at the Agulhas Bank. Pre-molt the African penguin was listed as birds travel long distances to the bank ‘‘Vulnerable’’ on the basis of steep Factor A. The Present or Threatened to fatten up during this time of the most population declines (Birdlife Destruction, Modification, or predictable food supply of the year. This International 2007, p. 1). Given the Curtailment of African Penguin’s reliable food source, and the need to decline observed over 3 generations, a Habitat or Range gain energy prior to molting, is 2007 revision of the conservation status The habitat of the African penguin hypothesized to be the most important of the species discussed changing that consists of terrestrial breeding and factor dictating the annual cycle of Red List status to ‘‘Endangered’’ if the molting sites and the marine penguins. In fact, adult birds have been declines continued (Kemper et al. environment, which serves as a foraging observed to abandon large chicks in 2007c, p. 327). That same assessment, range both during and outside of the order to move into this critical pre-molt based on 2006 data, concluded that the breeding season. foraging mode; this is known to occur Namibian population should already be Modification of their terrestrial regularly and often at a large scale at regarded as Red List ‘‘Endangered’’ by habitat is a continuing threat to African Dyer Island (Kemper 2009, pers. IUCN criteria with the probability of penguins. This began in the mid-1880s comm.). The South African National extinction of the African penguin from with the mining of seabird guano at Foundation for the Conservation of this northern cluster during the 21st islands colonized by the African Coastal Birds (SANCCOB) rescue facility century rated as high (Kemper et al. penguin and other seabirds in both took in over 700 orphaned penguin 2007c, p. 327). In June of 2010, the South Africa and Namibia. Harvesting of chicks from Dyer Island in 2005–2006. African penguin was uplisted from the guano cap began in 1845 (du Toit et Parents abandoned chicks as they began ‘‘Vulnerable’’ to ‘‘Endangered’’ on the al. 2003, p. 3; Griffin 2005, p. 16) and to molt (SANCCOB 2006, p. 1; 2010 IUCN Red List. The change in continued over decades, denuding the SANCCOB 2007a, p. 1). The increasing status was based on recent data islands of guano. Deprived of their observation of abandonment in South revealing a continuing rapid population primary nest-building material, the

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES 59650 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations

penguins were forced to nest on the cover had better overall breeding African penguin population located in surface in the open, where their eggs success than exposed nests. that region (Crawford et al. 2007a, p. 8). and chicks are more vulnerable to In Namibia, low-lying African From 1997 to the present, the predators such as kelp gulls (Larus penguin breeding habitat is being lost distribution of sardine concentrations dominicanus), disturbance, heat stress, due to flooding from increased coastal off South Africa has steadily shifted to and flooding (Kemper et al. 2007b, p. rainfall and sea level rise of 0.07 inches the south and east, from its long-term 101; Griffin 2005, p. 16; Shannon and (1.8 millimeters) a year over the past 30 location off colonies at Robben Island to Crawford 1999, p. 119). years (Roux et al. 2007b, east of Cape Infanta on the southern Without cover provided by burrows p. 6). Almost 11 percent of the nests on coast of South Africa east of Cape excavated in the guano, birds are more the four major breeding islands (which Agulhas, 248 mi (400 km) from the likely to flee from aerial predators or contain 96 percent of the Namibian former center of abundance (Crawford et disturbance caused by humans, leaving population) are experiencing a moderate al. 2007a, p. 1). the nests exposed (Kemper et al. 2007b, to high risk of flooding (Roux et al. This shift is having severe p. 104). Additionally, instead of being 2007b, p. 6). Continued increases in consequences for penguin populations. able to burrow into the guano, where coastal flooding from rising sea levels Off western South Africa, the foraging temperature extremes are ameliorated, predicted by global and regional climate range of penguins that are feeding penguins nesting in the open are change models (Bindoff et al. 2007, p. chicks is estimated to be 5.7 to 12.7 mi subjected to heat stress (Kemper et al. 409, 412) are predicted to increase the (9 to 20 km) (Petersen et al. 2006, p. 14), 2007b, p. 101; Shannon and Crawford number and proportion of breeding sites and while foraging they generally stay 1999, p. 119). Kemper et al. (2007b, p. at risk and lead to continued trends of within 1.9 mi (3 km) of the coast 101) noted an event in which the air decreased survival and decreased (Berruti et al. 1989, p. 307). The temperature rose to 98.6 degrees breeding success (Roux et al. 2007b, southeasternmost Western Cape Fahrenheit (°F) (37 degrees Celsius (°C)), p. 6). Colonies occur at Dyer Island, which is resulting in the death of 68 chicks Competition for breeding habitat with southeast of Cape Town and about 47 constituting 37 percent of the surface- Cape fur seals (Arctocephalus pusillus mi (75 km) northwest of Cape Agulhas. nesting chicks. Adapted for life in cold pusillus) has been cited as a reason for Therefore, the current sardine temperate waters, penguins have abandonment of breeding at five former concentrations are out of the foraging insulating fatty deposits to prevent breeding colonies in Namibia and South range of breeding adults at the Western hypothermia and black-and-white Africa, and expanding seal herds have Cape breeding colonies (Crawford et al. coloring that provides camouflage from displaced substantial numbers of 2007a, p. 8), which between 2004 and predators at sea. These adaptations breeding penguins at other colonies 2006 made up between 79 and 68 cause problems of overheating while (Ellis et al. 1998, p. 120; Crawford et al. percent of the rapidly declining South they are on land incubating eggs and 1995a, p. 271). African population (Crawford et al. brooding chicks during the breeding Changes to the marine habitat present 2007a, p. 7). season. Furthermore, rainstorms are a significant threat to populations of Further, as described in Crawford uncommon, however, they can be severe African penguins. African penguins (1998, p. 360), penguin abundances at and flooding of nests may occur have a long history of shifting colonies these Western Cape colonies have (Kemper et al. 2007b, p. 101). and fluctuations in numbers at historically shifted north and south Although guano harvesting is now individual colonies in the face of according to sardine and anchovy prohibited in penguin colonies, it shifting food supplies (Crawford 1998, abundance and accessibility from continues sporadically at Ichaboe Island p. 362). These shifts are related to the breeding colonies, but the current prey (Kemper 2009, unpaginated), and many dynamics between prey species and to shift is to a new center of abundance penguins continue to suffer from the ecosystem changes, such as reduced or outside the historic breeding range of lack of protection and heat stress due to enhanced upwelling (sometimes this penguin species. Although one new the loss of this optimal breeding habitat associated with El Nin˜ o events), changes colony has appeared east of existing substrate. We have not identified in sea surface temperature, or movement Western Cape colonies, more information on how quickly guano of system boundaries. In addition to significantly, there has been a deposits may build up again to depths such continuing cyclical events, the significant decrease in annual survival which provide suitable burrowing marine habitats of the Western Cape and rate for adult penguins from 0.82 to 0.72 substrate; however, since guano Namibian populations of African (Crawford et al. 2008, p. 181) in scraping ceased, the accumulation of penguins are currently experiencing addition to the 45 percent decrease in penguin guano has been minimal directional ecosystem changes breeding pairs in the Western Cape because the population is small (Waller attributable to global climate change; Province. Exacerbating the problem of and Underhill 2007, p. 109), and the overall sea surface temperature shifting prey, the authors reported that more the population decreases, the increases occurred during the 1900s the fishing industry, which is tied to slower the guano will build (Kemper and, as detailed above, sea level has local processing capacity in the Western 2009, pers. comm.). Because penguins been rising steadily in the region over Cape, is competing with the penguins are now forced to nest on the surface the past 30 years (Bindoff et al. 2007, p. for the fish that remain in the west, and natural features available for cover 391; Fidel and O’Toole 2007, p. 22, 27; rather than following the larger sardine (e.g., bushes and rock overhangs) are Roux et al. 2007a, p. 55). concentrations to the east (See Factor E) limited, penguins may also use At the Western Cape of South Africa, (Crawford et al. 2007a, pp. 9–10). abandoned buildings for protection. a shift in sardine distribution to an area Changes in the northern Benguela However, these sites provide poor outside the current breeding range of the ecosystem are also affecting the less lighting and damp conditions often with African penguin led to a 45 percent numerous Namibian population of the flea and tick infestations, and chicks decrease, between 2004 and 2006, in the African penguin. Over the past 3 appear in poor condition at these number of penguins breeding in the decades, sea surface temperatures have locations (Kemper et al. 2007b, p. 105). Western Cape and increased adult steadily increased and upwelling Kemper et al. (2007b, p. 104) noted that, mortality as the availability of sardine intensity has decreased in the northern excluding nests in buildings, nests with decreased for the major portion of the Benguela region. These long-term

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00046 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations 59651

changes have been linked to declines in With increasing temperatures associated impact the species in the immediate penguin recruitment at the four main with climate change in the northern coming years and into the future. On the breeding islands from 1993–2004 (Roux Benguela ecosystem, the frequency and basis of this analysis, we find that the et al. 2007a, p. 55). Weakened intensity of Benguela Nin˜ o events and present and threatened destruction, upwelling conditions have a particular their concomitant effects on the habitat modification, or curtailment of both its impact on post-fledge young penguins of the African penguin are predicted to terrestrial and marine habitats is a threat during their first year at sea, explaining increase in the immediate upcoming to the African penguin. years as new Benguela Nin˜ o events 65 percent of the variance in Factor B. Overutilization for recruitment during that period (Roux et emerge (Roux et al. 2007b, p. 5). A third factor in the marine habitat of Commercial, Recreational, Scientific, or al. 2007b, p. 9). These young penguins Educational Purposes are particularly impacted by the Namibian populations is the extent increasingly scarce or hard-to-find prey. of sulfide eruptions during different The current use of African penguins Even after heavy fishing pressure was oceanographic conditions. Hydrogen for commercial, recreational, scientific, eased in this region in the 1990s, sulfide accumulates in bottom or educational purposes is generally sardine stocks in Namibia have failed to sediments and erupts to create hypoxic low. Prior estimates of commercial recover, causing economic shifts for (a reduced concentration of dissolved collection of eggs for food from Dassen humans and foraging difficulties for oxygen in a water body leading to stress Island alone were 500,000 in 1925, and penguins. Remaining sardine stocks in and death in aquatic organisms) or even more than 700,000 were collected from Namibia have contracted to the north anoxic (lacking oxygen) conditions over a number of localities in 1897 (Shelton out of reach of breeding penguins tied large volumes of the water column et al. 1984, p. 256). Since 1968, to the vicinity of their breeding (Ludynia et al. 2007, p. 43; Fidel and however, commercial collection of locations (Kemper 2009, pers. comm.; O’Toole 2007 p. 9). Penguins, whose penguin eggs for food has ceased. There are unconfirmed reports of Kemper et al. 2001, p. 432). This failure foraging range is restricted by the penguins being killed as use for bait in to recover has been attributed to oxygen- central place of their breeding colony rock-lobster traps. Apparently, they are poor conditions (Sakko 1998, p. 428); El location (Petersen et al. 2006, p. 24), are attractive as bait because their flesh and Nin˜ os, which have resulted in failed forced to forage in these areas, but their skin is relatively tough compared to that recruitment of sardines and mass preferred prey of sardines and of fish and other baits. The extent of this mortality of sardines and other pelagic anchovies is unable to survive in these practice is unknown, and most reports fish (Kemper 2009, pers. comm.; Roux et conditions. African penguins foraging in emanate from the Namibian islands al. 2007b p. 12; Sakko 1998, p. 428); areas of sulfide eruptions expend greater amounts of energy through benthic (Ellis et al. 1998, p. 121). Use for years of poor recruitment exacerbated nonlethal, scientific purposes is highly by continued fishing pressure (Kemper dives in pursuit of available food tolerant of low-oxygen conditions, regulated and does not pose a threat to 2009, pers. comm.; Boyer et al. 2001, populations (See analysis under Factor pp. 67, 81–83); competition with horse primarily the pelagic goby (Sufflogobius bibarbatus), which has lower energy D). mackerel (Trachurus trachurus) In 1975, the African penguin was (Kemper 2009, pers. comm.; Shannon et content than the penguins’ preferred prey of anchovies and sardines (Ludynia listed on Appendix II of the Convention al. 2000, p. 721); and the continuing on International Trade in Endangered warming trend (Benguela Current Large 2007, pp. 45–58; Crawford et al. 1985, p. 224). The Namibian population of Species of Wild Fauna and Flora Marine Ecosystem (BCLME) 2007, pp. African penguins, restricted in their (CITES). CITES is an international 2–3). breeding locations, will continue to be agreement between governments to El Nin˜ o events also impact the negatively impacted by this ongoing ensure that the international trade of Benguela marine ecosystem on a regime shift away from sardines and CITES-listed plant and animal species decadal frequency (Benguela Nin˜ o). anchovies to pelagic goby and jellyfish. does not threaten species’ survival in These occur when warm seawater from Like Benguela Nin˜ os events, these the wild. There are currently 175 CITES the equator moves along the southwest sulphide eruptions are predicted to Parties (member countries or signatories coast of Africa towards the pole and increase with continuing climate change to the Convention). Under this treaty, penetrates the cold up-welled Benguela (Ludynia et al. 2007, p. 43); eruptions CITES Parties regulate the import, current. During the 1995 event, for appear to be coincident with increased export, and reexport of CITES-protected example, the entire coast from Angola’s intensity of wind-driven coastal plants and animal species (also see Cabinda province to central Namibia upwelling and low-pressure weather Factor D). Trade must be authorized was covered by abnormally warm cells (e.g., sudden warming of sea through a system of permits and water—in places up to 14.4 °F (8 °C) surface and interruption of coastal certificates that are provided by the above average—to a distance up to 186 upwelling), both of which can be designated CITES Scientific and mi (300 km) offshore (Science in Africa affected by climate change (Weeks et al. Management Authorities of each CITES 2004, p. 2). During the last two 2004, p. 153). Furthermore, these Party (CITES 2010a, unpaginated). documented events, there have been sulphide eruptions could potentially Between the time the African penguin mass mortalities of penguin prey contribute to climate change through was listed in CITES in 1975 and 2008, species, prey species recruitment additional emissions of methane gas 299 CITES-permitted shipments have failures, and mass mortalities of into the atmosphere; however, further been reported to the United Nations predator populations, including studies are needed to determine the Environment Programme-World starvation of over half of the seal extent of the effects on climate change Conservation Monitoring Center population. The penguin data sets are (Bakun and Weeks 2004, pp. 1,021– (UNEP–WCMC). Of these shipments, 80 not adequate to estimate the effects of 1,022). (27 percent) were reportedly imported Benguela Nin˜ o events at present, but We have identified a number of into the United States and 25 (8 percent) based on previous observations of threats to the coastal and marine habitat were shipments permitted for export impact on the entire food web of the of the African penguin that have from the United States (UNEP–WCMC northern Benguela, they are most likely operated in the past, are impacting the 2010, unpaginated). With the to be negative (Roux et al. 2007b, p. 12). species now, and will continue to information given in the UNEP–WCMC

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES 59652 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations

database, between 1975 and 1993, penguins. Although avian malaria does (Mercury, Ichaboe, and Possession approximately 30 shipments (275 not normally occur in wild populations, islands) in Namibia (Kemper 2009, pers. individuals) of live African penguins of there is a high prevalence of the disease comm.); however, it should be noted unknown origin were traded. Between in birds held in captivity. The absence that 40 percent of the Namibia seal 1994 and 2003, approximately 7 of avian malaria in wild penguins can population has shifted north of its shipments (42 individuals) of live, wild be explained by factors such as age- breeding range away from penguin African penguins were traded for the related immunity to malarias, mosquito- breeding locations and main foraging following purposes: scientific, personal, impeding feathers, and escape from areas (Kemper 2009, pers. comm.; biomedical, commercial, zoological mosquitoes into the water (Graczyk et Kemper et al. 2007c, p. 339). display, and reintroduction or al. 1995, p. 704). Those penguins held Predation on eggs and small chicks of introduction into the wild. There has in captivity are subject to more intense African penguins by kelp gulls is a been no trade in live, wild African exposure to malarial parasites, but also, concern brought on through human penguins reported since 2003. The other most of the birds in captivity are being disturbance. As described under Factor 262 shipments involved trade in live rehabilitated from exposure to oil A, the historic harvesting of guano pre-Convention (20 specimens) or pollution, which can immobilize deprived African penguins of their captive-born/captive-bred penguins (952 penguins and impair the feather barrier primary nest-building material, forcing specimens) and trade in parts and and make the bird more vulnerable to them to nest on the surface in the open products (2,738 scientific specimens, 39 mosquito attacks (Graczyk et al. 1995, where birds are more likely to flee from bodies, 121 feathers, 16 skeletons, 6 pp. 705–706). Release of infected aerial predators and human disturbance skins, 8 skulls, and 4 personal sport- rehabilitated birds could pose a hazard (see Factor E), leaving their eggs and hunted trophies). to wild penguins once they are released chicks more vulnerable to predators As a species listed in Appendix II of (Graczyk et al. 1995, p. 703). However, such as kelp gulls (Kemper et al. 2007b, CITES, commercial trade is allowed. we could not find any information on pp. 101, 104; Griffin 2005, p. 16; However, CITES requires that before an the large-scale effect of avian malaria on Shannon and Crawford 1999, p. 119). export can occur, a determination must African penguin populations. The On the basis of this information, we be made that the specimens were legally primary concern is preventing the find that predation, in particular by obtained (in accordance with national transmission of disease from the large Cape Fur Seals that prey on significant laws) and that the export will not be numbers of African penguins numbers of African penguins at their detrimental to the survival of the rehabilitated after oiling to wild breeding colonies, is a threat to the species in the wild. Based on the low populations (Graczyk et al. 1995, African penguin, and we have no reason numbers of live, wild African penguins p. 706). to believe the threat will be ameliorated in trade since 1994 and that the trade in in the foreseeable future. parts and products from wild specimens Predation by Cape fur seals of protected avian species has become an Factor D. Inadequacy of Existing is primarily scientific samples, we Regulatory Mechanisms believe that international trade issue of concern to marine and coastal controlled via valid CITES permits is managers in the Benguela ecosystem as The African penguin is listed on not a threat to the species. these protected seals have rebounded to Appendix II of CITES. CITES, an On the basis of this analysis, we find become abundant (1.5 to 2 million international treaty among 175 nations, that overutilization for commercial, animals) (David et al. 2003, pp. 289– including Namibia, South Africa, recreational, scientific, or educational 292). Not all seals feed on penguins, Congo, Gabon, Mozambique, and the purposes is not a threat to the African usually just subadult male individuals United States, entered into force in penguin now or in the foreseeable (Kemper 2009, pers. comm.; Mecenero 1975. In the United States, CITES is future. et al. 2005, p. 510; du Toit et al. 2004, implemented through the U.S. pp. 45, 50). Although only a few Endangered Species Act. The Secretary Factor C. Disease or Predation individuals may be responsible for of the Interior has delegated the African penguins are hosts to a variety predation on African penguins, they can Department’s responsibility for CITES to of parasites and diseases (Ellis 1998, pp. have a detrimental effect on small the Director of the Service and 119–120), including avian cholera colonies (Mecenero et al. 2005, pp. 509, established the CITES Scientific and (Pasteurella multocida) and avian 511). At Dyer Island, 842 penguins in a Management Authorities to implement malaria (Plasmodium relictum). During colony of 9,690 individuals (8.7 percent) the treaty. an outbreak of avian cholera in 1991 on were killed in 1995–1996 (Marks et al. CITES provides varying degrees of eight islands off western South Africa, 1997, p. 11). At Lambert’s Bay, seals kill protection to more than 32,000 species mortality was recorded for small 4 percent of adult African penguins of animals and plants that are traded as numbers of African penguin on Dassen annually (Crawford et al. 2006, p. 124; whole specimens, parts, or products. and Dyer islands (Crawford et al. 1992, Crawford et al. 2001, p. 440). The Under this treaty, member countries p. 237). From 2002 to 2006, there were practice of removing problem work together to ensure that annual outbreaks of avian cholera on individuals has been advocated in international trade in animal and plant Dyer Island; however, a characteristic of South Africa’s Policy on the species is not detrimental to the survival the avian cholera outbreaks was Management of Seals, Seabirds, and of wild populations by regulating the significant mortality for a single species Shorebirds, which allows for the culling import, export, and reexport of CITES- (Cape cormorant Phalacrocorax of specific seals responsible for the listed animal and plant species (USFWS capensis) with little impact on other predation of seabirds of conservation 2010, unpaginated). Under CITES, a species (Waller and Underhill 2007, p. concern (Kemper 2009, pers. comm.; species is listed at one of three levels of 109). During the 2004–2005 outbreak, Department of Environmental Affairs protection (i.e., regulation of which was the largest in extent, only and Tourism 2007, p. 6). Some seals international trade), which have one African penguin death was recorded killing penguins have been removed different permit requirements (CITES (Waller and Underhill 2007, p. 107). from South African localities (Crawford 2010b, unpaginated). Appendix II Therefore, we find that avian cholera 2009, pers. comm.), and confirmed includes species requiring regulation of has had a minimal effect on African problem seals are culled at three islands international trade in order to ensure

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00048 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations 59653

that trade of the species is compatible Conservation Laws Amendment Act tourism activities, and impacts from with the species’ survival. International 2000, p. 88), providing protection from unregulated, scientific research trade in specimens of Appendix-II hunting or requiring a permit for activities. species is authorized when the possession of the species. According to The South African Marine Pollution permitting authority has determined Ellis et al. (1998, p. 115), this status (Control and Civil Liability) Act (No. 6 that the export will not be detrimental applies to the Northern Cape, Western of 1981) (SAMPA) provides for the to the survival of the species in the wild Cape, and Eastern Cape Provinces as protection of the marine environment and that the specimens to be exported well. (the internal waters, territorial waters, were legally acquired (CITES 2010a, In Namibia, the African penguin is and exclusive economic zone) from unpaginated). As discussed under listed as a ‘‘Specially Protected Bird,’’ pollution by oil and other harmful Factor B, we do not consider under the draft Parks and Wildlife substances, and is focused on international trade to be a threat Management Bill 2001, due to the recent preventing pollution and determining impacting the African penguin. rapid decline (Kemper 2009, liability for loss or damage caused by Therefore, protection under this Treaty unpaginated; Ministry of Fisheries and the discharge of oil from ships, tankers, is an adequate regulatory mechanism. Marine Resources 2009, p. 22; Kemper and offshore installations. The SAMPA This species is also included under et al. 2007c, p. 326); however, we could prohibits the discharge of oil into the Appendix II of the Convention on not find any information indicating this marine environment, sets requirements Migratory Species (CMS), of which bill has been finalized. Under the for reporting discharge or likely South Africa is a Party. Inclusion in Namibian Marine Resources Act of 2000 discharge and damage, and designates Appendix II encourages multistate and (Part IV, 18(1)(b) and (c)), except in the South African Maritime Safety regional cooperation for conservation terms of an exploratory right or an Authority the powers of authority to (CMS 2009, p. 6). The African-Eurasian exemption, a person may not kill, take steps to prevent pollution in the Waterbird Agreement (AEWA) was disturb, or maim any penguin or harvest case of actual or likely discharge and to developed under CMS auspices and any bird on any island, rock, or guano remove pollution should it occur, became effective on November 1, 1999. platform in Namibian waters, or on the including powers of authority to direct The Agreement covers 119 Range States shore seaward of the high-water mark, ship masters and owners in such in Africa, Europe, parts of Canada, or in the air above such areas. This Act situations. The SAMPA also contains Central Asia, and the Middle East and also addresses discharge of injurious liability provisions related to the costs focuses on 255 waterbird species, substances into the marine environment of any measures taken by the authority including the African penguin (AEWA and killing or disabling of marine to reduce damage resulting from 2010, p. 10; AEWA 2008, p. 1). Parties animals (Ministry of Fisheries and discharge (Marine Pollution (Control to the Agreement are encouraged to Marine Resources 2009, p. 43). and Civil Liability) Act of 1981 2000, engage in a wide range of conservation Additionally, all Namibian breeding pp. 1–22). actions provided in a comprehensive locations for the African penguin fall South Africa is a signatory to the 1992 Action Plan (2009–2012). These actions within the recently proclaimed International Convention on Civil address species and habitat Namibian Island’s Marine Protected Liability for Oil Pollution Damages and conservation, management of human Area (MPA) (Kemper 2009, pers. its Associate Fund Convention activities, research and monitoring, comm.). One of the key goals of the (International Fund for Animal Welfare education and information, and MPA is to provide greater protection to (IFAW) 2005, p. 1), and southern South implementation (AEWA 2010, p. 11). the breeding and foraging habitat of African waters have been designated as Under South Africa’s Biodiversity Act endangered seabirds, including the a Special Area by the International of 2004, the African penguin is African penguin. The MPA will provide Maritime Organization, providing classified as a protected species, defined high protection status for specific measures to protect wildlife and the as an indigenous species of ‘‘high islands and, among other marine-related marine environment in an ecologically conservation value or national issues, addresses landing on islands, important region used intensively by importance’’ that requires national guano scraping, mining, boat-based eco- shipping (International Convention for protection (Republic of South Africa tourism, and risks associated with the Prevention of Pollution from Ships 2004, p. 52; Republic of South Africa shipping-related threats, such as oil (MARPOL) 2006, p. 1). One of the 2007, p. 10). Activities that may be spills (Ministry of Fisheries and Marine prohibitions in such areas is on oil carried out with respect to such species Resources 2009, pp. 51–88). tankers washing their cargo tanks. are restricted and cannot be undertaken Kemper et al. (2007c, p. 326) reported Despite these existing regulatory without a permit (Republic of South that African penguin colonies in South mechanisms, the African penguin Africa 2004, p. 50). Restricted activities Africa are all protected under continues to decline due to the effects include among other things: Hunting, authorities ranging from local, to of habitat destruction, predation, and oil capturing, or killing living specimens of provincial, to national park status, and pollution. We find that these regulatory listed species by any means; collecting all Namibian breeding colonies are and conservation measures have been specimens of such species (including under some protection, from restricted insufficient to significantly reduce or the animals themselves, eggs, or access to national park status. While we remove the threats to the African derivatives or products of such species); have no information that allows us to penguin and, therefore, that the importing, exporting, or reexporting; evaluate their overall effectiveness, inadequacy of existing regulatory having such specimens within one’s these national, regional, and local mechanisms is a threat to this species. physical control; or selling or otherwise measures to prohibit activities involving trading in such specimens (Republic of African penguins without permits Factor E. Other Natural or Manmade South Africa 2004, p. 18). issued by government authorities and to Factors Affecting the Continued The species is classified as control or restrict access to African Existence of the Species ‘endangered’ in Nature and penguin colonies are appropriate to Over the period from 1930 to the Environmental Conservation Ordinance, protecting African penguins from land- present, fisheries harvest by man and No. 19 of the Province of the Cape of based threats, such as harvest of more recently competition from Good Hope (Western Cape Nature penguins or their eggs, disturbance from fisheries, as well as seals, have hindered

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES 59654 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations

the African penguin’s historical ability combined spawner biomass of fish prey been frequently impacted by both major to rebound from oceanographic changes was less than 2 million T (1.8 million and minor oil spills. Since 1948, there and prey regime shifts. The reduced t), pairs of African penguins fledged an have been 13 major oil spill events in carrying capacity of the Benguela average of only 0.46 chicks annually. South Africa, each of which oiled from ecosystem presents a significant threat When it was above 2 million T (1.8 500 to 19,000 African penguins. Nine of to survival of African penguins million t), annual breeding success had these involved tanker collisions or (Crawford et al. 2007b, p. 574). a mean value of 0.73 chicks per pair groundings, three involved oil of Crawford (1998, pp. 355–364) (Crawford et al. 2006, p. 119). The unknown origins, and one involved an described the historical response of significant relationships obtained oil supply pipeline bursting in Cape African penguins to regime shifts between breeding success of African Town harbor (Underhill 2001, pp. 2–3). between their two primary prey species, penguins and estimates of the biomass In addition to these major events, which sardines and anchovies, both in terms of of their fish prey confirm that are described in detail below, there are numbers and colony distribution from reproduction is influenced by the a significant number of smaller spill the 1950s through the 1990s. There was abundance of food (Adams et al. 1992, events, impacting smaller number of a repeated pattern of individual colony p. 969; Crawford et al. 1999, p. 143). birds. These smaller incidental spills collapse in some areas and, as the new The levels of breeding success recorded result in about 1,000 oiled penguins food source became dominant, new in the most recent studies of the African being brought to SANCCOB, which has colony establishment and population penguin were found to be inadequate to facilities to clean oiled birds, over the increase in other areas. Crawford (1998, sustain the African penguin population course of each year (Adams 1994, pp. p. 362) hypothesized that African (Crawford et al. 2006, p. 119). 37–38; Underhill 2001, p. 1). Overall, penguins have coped successfully with In addition to guano collection, as from 1968 to the present, SANCCOB many previous sardine-anchovy shifts. described in Factor A, disturbance of (2007b, p. 2), has handled more than Specific mechanisms, such as the breeding colonies may arise from other 83,000 oiled sea birds, including many emigration of first-time breeders from human activities such as tourism (Ellis African penguins. natal colonies to areas of greater forage et al. 1998, p. 121). Such disturbances The most recent oil spill occurred in abundance may have historically helped can cause the penguins to panic and April 2009 when oil began leaking from them successfully adapt to changing desert their nesting sites. In both South the hull of a fishing trawler, Meob Bay, prey location and abundance. However, Africa and Namibia, there is increasing which sank in June 2002. over the period from the 1930s to the pressure to open penguin viewing areas 1990s, competition for food from for tourism. Although this type of Approximately 62 mi (100 km) of increased commercial fish harvest and tourism is currently occurring, it is in coastline, from Possession Island to from burgeoning fish take by recovering Boulders, South Africa, where penguins Mercury Island (prime breeding populations of the Cape fur seal appears are used to human presence, and the locations), were affected. At least 160 to have overwhelmed the ability of tourism is being conducted in a African penguins were rescued and African penguins to compete; the take of controlled manner (Kemper 2009, pers. taken to rehabilitation facilities to be fish and cephalopods by man and seals comm.). Unless other areas identified treated (Bause 2009, unpaginated). The increased by 2 million tons (T) (1.8 for tourism development are carefully most serious event occurred on June 23, million tonnes (t)) per year from the controlled, the disturbance could be 2000, when the iron ore carrier Treasure 1930s to the 1980s (Crawford 1998, p. detrimental to breeding success sank between Robben and Dassen 362). Crawford et al. (2007b, p. 574) (Kemper 2009, pers. comm.). Islands, where the largest and third- conclude that due to the increased Exploitation and disturbance by humans largest colonies of African penguin competition with purse-seine (net) is probably the reason for penguins occur (Crawford et al. 2000, pp. 1–4). fisheries and abundant fur seal ceasing to breed at four colonies, one of Large quantities of oil came ashore at populations, the carrying capacity of the which has since been re-colonized both islands. South Africa launched a Benguela ecosystem for African (Crawford et al. 1995b, p. 112). Burrows concerted effort to collect and clean penguins has declined by 80 to 90 can be accidentally destroyed by oiled birds, to move nonoiled birds percent from the 1920s to the present humans walking near breeding sites, away from the region, to collect penguin day. In the face of increased competition leading to penguin mortality. In chicks for artificial rearing, and to clean and reduced prey resources, African addition, human-caused disturbance up oiled areas. Nineteen thousand oiled penguin populations are no longer during avian cholera outbreaks may African penguins were brought for rebounding successfully from affect African penguins. Although avian cleaning to the SANCCOB facility. An underlying prey shifts and have cholera mainly affects Cape cormorants, additional 19,500 penguins were experienced sharply decreased human presence to remove carcasses, in relocated to prevent them from being reproductive success. Kemper (2009, an effort to reduce the spread of the oiled. In total, 38,500 birds were pers. comm.; Kemper et al. 2007c, p. disease, is considered a high handled in the context of this major oil 339) has noted, however, that the disturbance activity and has caused spill. The last oil was removed from Namibian Cape fur seal population is penguins to move from nests exposing Treasure on July 18, 2000. Two months shifting north, away from penguin eggs and chicks to predation by kelp after the spill, mortality of African breeding and foraging areas. gulls (Waller and Underhill 2007, p. penguins from the spill stood at 2,000 These negative effects of decreased 109). adults and immature birds and 4,350 prey availability on reproductive Oil and chemical spills can have chicks (Crawford et al. 2000, p. 9). The success and on population size have direct effects on the African penguin. Avian Demography Unit (ADU) of the been documented. Breeding success of Based on previous incidents and despite University of Cape Town has African penguins was measured at national and international measures to undertaken long-term monitoring of Robben Island from 1989 to 2004 prevent and respond to oil spills penguins released after spill incidents. (Crawford et al. 2006, p. 119) in concert referenced in Factor D, we consider this Response in the Treasure spill and with hydro-acoustic surveys to estimate to be a significant threat to the species. success in rehabilitation have shown the spawner biomass of anchovy and African penguins live along the major that response efforts have improved sardine off South Africa. When the global transport route for oil and have dramatically.

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations 59655

The next most serious spill of the in upwelling intensities and increased Conclusion and Determination for the Apollo Sea, which occurred in June sea surface temperatures. These changes African Penguin 1994, released about 2,401 T (2,177 t) of have hampered the recovery of sardine We have carefully assessed the best fuel oil near Dassen Island. About and anchovy populations in the region scientific and commercial information 10,000 penguins were contaminated even as fishing pressure on those available regarding the threats faced by with only 50 percent of these birds species has been relaxed, forcing this species. The African penguin is in successfully de-oiled and put back in penguins to shift to a less nutritious serious decline throughout all of its the wild. Over the 10 years following prey, the pelagic goby. The changes range, and the decline is currently this spill, the ADU followed banded have also forced a regime shift in the accelerating. This decline is due to released birds to monitor their survival Benguela ecosystem to other fish threats of a high magnitude—(1) The and reproductive histories (Wolfaardt et species, which are not the prey of immediate impacts of a reduced al. 2007, p. 68). They found that success African penguins. The phenomenon of carrying capacity for the African in restoring oiled birds to the point that sulfide eruption has further hampered penguin throughout its range due to they attempt to breed after release has the recovery of the food base. food base declines and competition for steadily improved. The breeding success In the Western Cape, in addition to food with Cape fur seals (severely of restored birds and the growth rates of the severe fisheries declines and severe exacerbated by rapid ongoing ecosystem their chicks, however, are lower than for reduction of the carrying capacity of the changes in the marine environment at nonoiled birds. Nevertheless, because marine environment, the primary food the northern end of the penguin’s adults could be returned successfully to source of African penguins has, the breeding population, they beginning in 1997, shifted consistently distribution and by major shifts of prey concluded that de-oiling and eastward to areas east of the resources to outside of the accessible reintroduction of adults are effective southernmost tip of South Africa. Over foraging range of breeding penguins at conservation interventions (Wolfaardt et the past decade, the primary food base the southern end of distribution); (2) the al. 2007, p. 68). for the most populous African penguin continued threats to African penguins Therefore, we find that immediate colonies in South Africa has shifted on land throughout their range from and ongoing competition for food outside the accessible foraging range for habitat modification and destruction, resources with fisheries and other those colonies. This shift has led to facilitating predation; and (3) the species, overall decreases in food declines in penguin recruitment and immediate and ongoing threat of oil abundance, and ongoing severe direct significant decreases in adult survival spills and oil pollution to the African and indirect threat of oil pollution are and represents an additional significant penguin. The severity of these threats to threats to the African penguin. immediate threat to the West Cape the African penguin within its breeding populations of the African penguin. and foraging range puts the species in African Penguin Finding On land, the historical effects of danger of extinction. Therefore, we find The African penguin is presently in a guano removal from penguin breeding that the African penguin is in danger of serious, accelerating decline throughout islands continue to be felt in lack of extinction throughout all of its range. its range, with a 60.5 percent decline predator protection and heat stress in Available Conservation Measures over 28 years (three generations). This breeding birds. Predation on penguins verified, accelerating, and immediate by Cape fur seals and kelp gulls has Conservation measures provided to decline across all areas inhabited by become a predominant threat factor. In species listed as endangered or African penguin populations are Namibia, where African penguin threatened under the Act include directly attributable to ongoing threats numbers are lowest, with only 3,402 recognition, requirements for Federal that are severely impacting the species pairs, low-lying islands have protection, and prohibitions against at this time. Historical threats to experienced flooding from increased certain practices. Recognition through terrestrial habitat, such as destruction of rainfall and rising sea-levels, listing results in public awareness, and nesting areas for guano collection and threatening 10 percent of the nests in encourages and results in conservation the threat of direct harvest, have been the four major breeding colonies, further actions by Federal governments, private overtaken by long-term competition for stressing a species under severe agencies and groups, and individuals. prey from human fisheries beginning in immediate threat from factors in the Section 7(a) of the Act, as amended, the 1930s. The impact of competition marine environment. and as implemented by regulations at 50 from fisheries is now exacerbated by the Finally, the marine and coastal habitat CFR part 402, requires Federal agencies increased role of abundant Cape fur seal of the African penguin lies on one of the to evaluate their actions within the populations throughout the range in world’s busiest sea lanes. Despite United States or on the high seas with competing for the prey of the African improvements in oil spill response respect to any species that is proposed penguin (Crawford 1998, p. 362). In capability and global recognition of the or listed as endangered or threatened, combination, competition with fisheries importance of protecting these waters and with respect to its critical habitat, and fur seals have reduced the carrying from the impacts of oil, catastrophic and if any is being designated. However, capacity of the marine environment for chronic spills have been and continue to given that the African penguin is not African penguins to 10 to 20 percent of be the norm. The most recent native to the United States, critical its 1920s value and by themselves catastrophic spill in 2000 in South habitat is not being designated for this represent significant immediate threats Africa resulted in the oiling of 19,000 species under section 4 of the Act. to the African penguin throughout all of penguins and the translocation of Section 8(a) of the Act authorizes its range. 19,500 more birds in direct danger from limited financial assistance for the Changes in the different portions of the spill. With the global population at development and management of the range of the African penguin are a historical low (between 31,000 and programs that the Secretary of the adding additional stressors to the 32,000 pairs), future oil spills, which Interior determines to be necessary or overall declines in the prey of African consistent experience shows may occur useful for the conservation of penguins. In Namibia, the fisheries at any time, pose a significant and endangered and threatened species in declines in the marine environment are immediate threat to the species foreign countries. Sections 8(b) and 8(c) being exacerbated by long-term declines throughout all of its range. of the Act authorize the Secretary to

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES 59656 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations

encourage conservation programs for endangered species, and at 17.32 for Author foreign endangered species and to threatened species. With regard to The primary author of this final rule provide assistance for such programs in endangered wildlife, a permit must be is staff of the Branch of Foreign Species, the form of personnel and the training issued for the following purposes: for Endangered Species Program, U.S. Fish of personnel. scientific purposes, to enhance the and Wildlife Service, 4401 N. Fairfax The Act and its implementing propagation or survival of the species, Drive, Arlington, Virginia 22203. regulations set forth a series of general and for incidental take in connection prohibitions and exceptions that apply with otherwise lawful activities. List of Subjects in 50 CFR Part 17 to all endangered and threatened Endangered and threatened species, wildlife. As such, these prohibitions Required Determinations Exports, Imports, Reporting and would be applicable to the African National Environmental Policy Act recordkeeping requirements, penguin. These prohibitions, under 50 (NEPA) Transportation. CFR 17.21, make it illegal for any person subject to the jurisdiction of the United We have determined that Regulation Promulgation States to ‘‘take’’ (take includes harass, environmental assessments and ■ Accordingly, we amend part 17, harm, pursue, hunt, shoot, wound, kill, environmental impact statements, as subchapter B of chapter I, title 50 of the trap, capture, collect, or to attempt any defined under the authority of the Code of Federal Regulations, as set forth of these) within the United States or National Environmental Policy Act of below: upon the high seas, import or export, 1969 (42 U.S.C. 4321 et seq.), need not deliver, receive, carry, transport, or ship be prepared in connection with PART 17—[AMENDED] in interstate or foreign commerce in the regulations adopted under section 4(a) ■ 1. The authority citation for part 17 course of a commercial activity, or to of the Act. We published a notice sell or offer for sale in interstate or continues to read as follows: outlining our reasons for this foreign commerce, any endangered Authority: 16 U.S.C. 1361–1407; 16 U.S.C. determination in the Federal Register wildlife species. It also is illegal to 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– on October 25, 1983 (48 FR 49244). possess, sell, deliver, carry, transport, or 625, 100 Stat. 3500; unless otherwise noted. ship any such wildlife that has been References Cited ■ 2. Amend § 17.11(h) by adding a new taken in violation of the Act. Certain ‘‘ ’’ A complete list of all references cited entry for Penguin, African, in exceptions apply to agents of the alphabetical order under BIRDS to the in this final rule is available on the Service and State conservation agencies. List of Endangered and Threatened Internet at http://www.regulations.gov We may issue permits to carry out Wildlife to read as follows: otherwise prohibited activities or upon request from the Endangered involving endangered and threatened Species Program, U.S. Fish and Wildlife § 17.11 Endangered and threatened wildlife species under certain Service (see the FOR FURTHER wildlife. circumstances. Regulations governing INFORMATION CONTACT section). * * * * * permits are codified at 50 CFR 17.22 for (h) * * *

Species Vertebrate popu- Historic range lation where endan- Status When listed Critical Special Common name Scientific name gered or threatened habitat rules

******* BIRDS

******* Penguin, African .... Spheniscus Atlantic Ocean— Entire ...... E 775 NA NA demersus. South Africa, Na- mibia.

*******

* * * * * Dated: September 9, 2010. Paul R. Schmidt, Acting Director, U.S. Fish and Wildlife Service. [FR Doc. 2010–24338 Filed 9–27–10; 8:45 am] BILLING CODE 4310–55–P

VerDate Mar<15>2010 15:19 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00052 Fmt 4700 Sfmt 9990 E:\FR\FM\28SER1.SGM 28SER1 WReier-Aviles on DSKGBLS3C1PROD with RULES 59657

Proposed Rules Federal Register Vol. 75, No. 187

Tuesday, September 28, 2010

This section of the FEDERAL REGISTER given at the public meeting before 4 the transcript of the public meeting, or contains notices to the public of the proposed p.m., Monday, October 11th, 2010. DOE comments received, go to the U.S. issuance of rules and regulations. The will accept written comments, data, and Department of Energy, Resource Room purpose of these notices is to give interested information regarding the framework of the Building Technologies Program, persons an opportunity to participate in the document before and after the public Sixth Floor, 950 L’Enfant Plaza, SW., rule making prior to the adoption of the final rules. meeting, but no later than October 28, Washington, DC 20024, (202) 586–2945, 2010. between 9 a.m. and 4 p.m., Monday ADDRESSES: The public meeting will be through Friday, except Federal holidays. DEPARTMENT OF ENERGY held at the U.S. Department of Energy, Please call Ms. Brenda Edwards first at Forrestal Building, Room 8E089, 1000 the above telephone number for 10 CFR Part 431 Independence Avenue, SW., additional information regarding visiting the Resource Room. [Docket No. EERE–2010–BT–STD–0027] Washington, DC 20585–0121. Please note that foreign nationals planning to FOR FURTHER INFORMATION CONTACT: Mr. RIN 1904–AC28 participate in the public meeting are James Raba, U.S. Department of Energy, Office of Energy Efficiency and Energy Efficiency Program for Certain subject to advance security screening procedures. If a foreign national wishes Renewable Energy, Building Commercial and Industrial Equipment: Technologies Program, EE–2J, 1000 Public Meeting and Availability of the to participate in the public meeting, please inform DOE as soon as possible Independence Avenue, SW., Framework Document for Commercial Washington, DC 20585–0121, (202) 586– and Industrial Electric Motors by contacting Ms. Brenda Edwards at (202) 586–2945 so that the necessary 8654, e-mail: [email protected]. AGENCY: Office of Energy Efficiency and procedures can be completed. Ms. Ami Grace-Tardy, U.S. Renewable Energy, Department of Additionally, DOE plans to conduct the Department of Energy, Office of General Energy. public meeting via webinar. The Counsel, GC–71, 1000 Independence ACTION: Notice of public meeting and registration information and participant Avenue, SW., Washington, DC 20585– availability of the framework document. instructions will be available on the 0121, (202) 586–5709, e-mail: product Web page. [email protected]. SUMMARY: The U.S. Department of Interested parties may submit For information on how to submit or Energy (DOE) is initiating the comments, identified by docket number review public comments and on how to rulemaking to amend the energy EERE–2010–BT–STD–0027 and/or participate in the public meeting, conservation standards for certain Regulation Identifier Number (RIN) contact Ms. Brenda Edwards, U.S. commercial and industrial electric 1904–AC28, by any of the following Department of Energy, Office of Energy motors under section 342(b) of the methods: Efficiency and Renewable Energy, Energy Policy and Conservation Act • Federal eRulemaking Portal: http:// Building Technologies Program, EE–2J, (EPCA). DOE will hold an informal www.regulations.gov. Follow the 1000 Independence Avenue, SW., public meeting to discuss and receive instructions for submitting comments. Washington, DC 20585–0121, (202) 586– comments on its planned analytical • E-mail: ElecMotors-2010-STD- 2945, e-mail: approach and the issues it will address [email protected]. Include docket [email protected]. during this rulemaking. DOE welcomes number EERE–2010–BT–STD–0027 SUPPLEMENTARY INFORMATION: Part A of written comments from the public on and/or RIN 1904–AC28 in the subject the Energy Policy and Conservation Act any subject within the scope of this line of the message. of (EPCA) established the ‘‘Energy rulemaking. To inform interested parties • Mail: Ms. Brenda Edwards, U.S. Conservation Program for Consumer and to facilitate this process, DOE has Department of Energy, Building Products Other Than Automobiles,’’ a prepared a framework document that Technologies Program, Mailstop EE–2J, program covering most major household details the analytical approach that DOE Framework Document for Electric appliances. (42 U.S.C. 6291–6309) will use and identifies several issues on Motors, Docket No. EERE–2010–BT– Over time, amendments to EPCA have which DOE is particularly interested in STD–0027 and/or RIN 1904–AC28, 1000 given DOE expanded authority to receiving comment. A copy of the Independence Avenue, SW., regulate the energy efficiency of certain framework document is available at: Washington, DC 20585–0121. Please commercial and industrial equipment, http://www1.eere.energy.gov/buildings/ submit one signed paper original. Due to including the electric motors that are appliance_standards/commercial/ the potential delays in DOE’s receipt the focus of this notice. Amendments to electric_motors.html. For information and processing of mail sent through the EPCA in the Energy Policy Act of 1992 on obtaining a copy of the framework U.S. Postal Service, DOE encourages (EPACT 1992) (Pub. L. 102–486) document, see the supplementary respondents to submit comments prescribed energy conservation information section. electronically to ensure timely receipt. standards for certain electric motors. DATES: DOE will hold a public meeting • Hand Delivery/Courier: Ms. Brenda (42 U.S.C. 6313(b)(1)) on Monday, October 18th, 2010, from Edwards, U.S. Department of Energy, In addition, section 313 of the Energy 9 a.m. to 4 p.m. in Washington, DC. Building Technologies Program, Suite Independence and Security Act of 2007 DOE must receive requests to speak at 600, 950 L’Enfant Plaza, SW., (EISA 2007) (Pub. L. 110–140) amends the public meeting before 4 p.m., Washington, DC 20024. Please submit EPCA by updating the standards Monday, October 4th, 2010. DOE must one signed paper original. established by EPACT 1992. The receive a signed original and an Docket: For access to the docket to amendments redefine the term ‘‘electric electronic copy of the statement to be read background documents, a copy of motor’’ and add energy conservation

VerDate Mar<15>2010 15:21 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 E:\FR\FM\28SEP1.SGM 28SEP1 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS 59658 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

standards for the following categories of scope of coverage. DOE invites all DEPARTMENT OF TRANSPORTATION electric motors: U-Frame, Design C, interested parties, whether or not they close-coupled pump, footless, vertical participate in the public meeting, to Federal Aviation Administration solid shaft normal thrust, 8-pole (900 submit comments and information on rpm), and polyphase motors with a matters addressed in the framework 14 CFR Part 39 voltage of not more than 600 volts (other document and on other matters relevant [Docket No. FAA–2010–0948; Directorate than 230 or 460 volts). (42 U.S.C. to DOE’s consideration of amended Identifier 2010–CE–041–AD] 6311(13)) standards for electric motors in writing EPCA also directs DOE to publish a RIN 2120–AA64 by October 28, 2010. final rule determining whether to amend existing electric motors The public meeting will be conducted Airworthiness Directives; SOCATA standards within 24 months of the in an informal, facilitated, conference Model TBM 700 Airplanes effective date of the previous final style. There shall be no discussion of AGENCY: Federal Aviation electric motors rule. (42 U.S.C. proprietary information, costs or prices, Administration (FAA), Department of 6313(b)(4)(B)) The most recent electric market shares, or other commercial Transportation (DOT). motors standards set out in EISA 2007 matters regulated by U.S. antitrust laws. ACTION: Notice of proposed rulemaking and codified in the Code of Federal A court reporter will record the (NPRM). Regulations (CFR) on March 23, 2009, proceedings of the public meeting, after go into effect on December 19, 2010, which a transcript will be available on SUMMARY: We propose to adopt a new under section 313(b)(2) of EISA 2007. the DOE Web site at: http:// airworthiness directive (AD) for the Therefore, DOE must publish a final www1.eere.energy.gov/buildings/ products listed above that would rule determining whether to amend the appliance_standards/commercial/ supersede an existing AD. This electric motors standards by December electric_motors.html and for purchase proposed AD results from mandatory 19, 2012. (42 U.S.C. 6313(b)(4)(B)) Any from the court reporter. continuing airworthiness information amended standards established (MCAI) originated by an aviation pursuant to this rulemaking would After the public meeting and the close authority of another country to identify apply to products manufactured five of the comment period on the and correct an unsafe condition on an years or more after the effective date of framework document, DOE will begin aviation product. The MCAI describes the previous electric motors standard. conducting the analyses discussed in the unsafe condition as: (42 U.S.C. 6313(b)(4)(B)(i)) Any the framework document and reviewing Following the rupture of an alternator and amended standards that result from this the public comments received. vapour cycle cooling system pulley drive rulemaking process, therefore, would DOE considers public participation to assembly, the AD 2008–0067–E was have a compliance date of December 19, be a very important part of the process published to require the replacement of the 2015. (42 U.S.C. 6313(b)(4)(B)) DOE is, pulley drive assembly by a new one of an for setting energy conservation therefore, beginning a rulemaking improved design. process to consider further amending standards. DOE actively encourages the Later on, cases of rupture of the alternator these standards with a framework participation and interaction of the and vapour cycle cooling system compressor document for electric motors describing public during the comment period in drive shaft and of cracks on the standby- the procedural and analytical each stage of the rulemaking process. alternator and compressor support were reportedly found. approaches DOE anticipates using in its Beginning with the framework document, and during each subsequent Such failures could lead to the loss of the evaluation. alternator and of the vapour cycle cooling The focus of the public meeting noted public meeting and comment period, systems, and could also cause mechanical above will be to discuss the analyses interactions with and between members damage inside the power plant compartment. presented and issues identified in the of the public provide a balanced To address this condition, the AD 2008– framework document. At the public discussion of the issues to assist DOE in 0129–E superseded AD 2008–0067–E and meeting, DOE will make a number of the standards rulemaking process. mandates the removal, as a temporary presentations, invite discussion on the Accordingly, anyone who wishes to measure, of the compressor drive belt and of the torque limiter, the conditional rulemaking process as it applies to participate in the public meeting, electric motors, and solicit comments, replacement of the pulley drive shear shaft, receive meeting materials, or be added and repetitive inspections for cracks of the data, and information from participants to the DOE mailing list to receive future pulley drive assembly and of the alternator/ and other interested parties. DOE notices and information about this compressor support. encourages those who wish to rulemaking should contact Ms. Brenda participate in the public meeting to The proposed AD would require actions Edwards at (202) 586–2945, or via obtain the framework document and to that are intended to address the unsafe e-mail at [email protected]. be prepared to discuss its contents. A condition described in the MCAI. copy of the draft framework document Issued in Washington, DC, on September DATES: We must receive comments on is available at: http:// 16, 2010. this proposed AD by November 12, www1.eere.energy.gov/buildings/ Cathy Zoi, 2010. _ appliance standards/commercial/ Assistant Secretary, Energy Efficiency and ADDRESSES: You may send comments by _ electric motors.html. Renewable Energy. any of the following methods: Public meeting participants need not • [FR Doc. 2010–24288 Filed 9–27–10; 8:45 am] Federal eRulemaking Portal: Go to limit their comments to the issues http://www.regulations.gov. Follow the BILLING CODE 6450–01–P identified in the framework document. instructions for submitting comments. DOE is also interested in comments on • Fax: (202) 493–2251. other relevant issues that participants • Mail: U.S. Department of believe would affect energy Transportation, Docket Operations, conservation standards for this M–30, West Building Ground Floor, equipment, applicable test procedures, Room W12–140, 1200 New Jersey or the preliminary determination on the Avenue, SE., Washington, DC 20590.

VerDate Mar<15>2010 15:21 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 E:\FR\FM\28SEP1.SGM 28SEP1 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59659

• Hand Delivery: U.S. Department of for the Member States of the European Differences Between This Proposed AD Transportation, Docket Operations, Community, has issued EASA AD No.: and the MCAI or Service Information M–30, West Building Ground Floor, 2010–0130, dated June 29, 2010, to We have reviewed the MCAI and Room W12–140, 1200 New Jersey correct an unsafe condition for the related service information and, in Avenue, SE., Washington, DC 20590, specified products. The MCAI states: general, agree with their substance. But between 9 a.m. and 5 p.m., Monday Following the rupture of an alternator and we might have found it necessary to use through Friday, except Federal holidays. vapour cycle cooling system pulley drive different words from those in the MCAI Examining the AD Docket assembly, the AD 2008–0067–E was to ensure the AD is clear for U.S. published to require the replacement of the operators and is enforceable. In making You may examine the AD docket on pulley drive assembly by a new one of an these changes, we do not intend to differ the Internet at http:// improved design. substantively from the information www.regulations.gov; or in person at the Later on, cases of rupture of the alternator provided in the MCAI and related Docket Management Facility between and vapour cycle cooling system compressor service information. 9 a.m. and 5 p.m., Monday through drive shaft and of cracks on the standby- alternator and compressor support were We might also have proposed Friday, except Federal holidays. The AD reportedly found. different actions in this AD from those docket contains this proposed AD, the Such failures could lead to the loss of the in the MCAI in order to follow FAA regulatory evaluation, any comments alternator and of the vapour cycle cooling policies. Any such differences are received, and other information. The systems, and could also cause mechanical highlighted in a Note within the damage inside the power plant compartment. street address for the Docket Office proposed AD. (telephone (800) 647–5527) is in the To address this condition, the AD 2008– ADDRESSES section. Comments will be 0129–E superseded AD 2008–0067–E and Costs of Compliance available in the AD docket shortly after mandates the removal, as a temporary measure, of the compressor drive belt and of We estimate that this proposed AD receipt. the torque limiter, the conditional will affect 66 products of U.S. registry. FOR FURTHER INFORMATION CONTACT: replacement of the pulley drive shear shaft, We also estimate that it would take Albert Mercado, Aerospace Engineer, and repetitive inspections for cracks of the about 8 work-hours per product to FAA, Small Airplane Directorate, 901 pulley drive assembly and of the alternator/ comply with the basic requirements of Locust, Room 301, Kansas City, compressor support. this proposed AD. The average labor Missouri 64106; telephone: (816) 329– Revision 1 of the AD 2008–0129–E introduced an alternative temporary solution rate is $85 per work-hour. Required 4119; fax: (816) 329–4090. with the aim to restore the capability to make parts would cost about $0 per product. SUPPLEMENTARY INFORMATION: use of the air conditioning system. This Where the service information lists required parts costs that are covered Comments Invited solution consists in replacing the original pulley drive assembly by a time-limited under warranty, we have assumed that We invite you to send any written assembly of a new design, corresponding to there will be no charge for these costs. relevant data, views, or arguments about the SOCATA modification MOD 70–0240–21. As we do not control warranty coverage this proposed AD. Send your comments A definitive solution has been released to for affected parties, some parties may to an address listed under the production aeroplanes by implementation of SOCATA modification MOD 70–0243–21 or incur costs higher than estimated here. ADDRESSES ‘‘ section. Include Docket No. Service Bulleting (SB) 70–176–21 for in- Based on these figures, we estimate FAA–2010–0948; Directorate Identifier service aeroplanes. the cost of the proposed AD on U.S. 2010–CE–041–AD’’ at the beginning of This AD which supersedes EASA AD operators to be $44,880, or $680 per your comments. We specifically invite 2008–0129R1–E retaining its requirements, product. comments on the overall regulatory, limits the AD applicability and requires Authority for This Rulemaking economic, environmental, and energy accomplishment of the terminating action. aspects of this proposed AD. We will You may obtain further information by Title 49 of the United States Code consider all comments received by the examining the MCAI in the AD docket. specifies the FAA’s authority to issue closing date and may amend this rules on aviation safety. Subtitle I, proposed AD because of those Relevant Service Information section 106, describes the authority of comments. SOCATA has issued SB 70–176, the FAA Administrator. ‘‘Subtitle VII: We will post all comments we Amendment 1, dated February 2010. Aviation Programs,’’ describes in more receive, without change, to http:// The actions described in this service detail the scope of the Agency’s regulations.gov, including any personal information are intended to correct the authority. information you provide. We will also unsafe condition identified in the We are issuing this rulemaking under post a report summarizing each MCAI. the authority described in ‘‘Subtitle VII, Part A, Subpart III, Section 44701: substantive verbal contact we receive FAA’s Determination and Requirements about this proposed AD. General requirements.’’ Under that of the Proposed AD section, Congress charges the FAA with Discussion This product has been approved by promoting safe flight of civil aircraft in On September 8, 2008, we issued AD the aviation authority of another air commerce by prescribing regulations 2008–19–06, Amendment 39–15673 (73 country, and is approved for operation for practices, methods, and procedures FR 54067; September 18, 2008). That in the United States. Pursuant to our the Administrator finds necessary for AD required actions intended to address bilateral agreement with this State of safety in air commerce. This regulation an unsafe condition on the products Design Authority, they have notified us is within the scope of that authority listed above. of the unsafe condition described in the because it addresses an unsafe condition Since we issued AD 2008–19–06, a MCAI and service information that is likely to exist or develop on terminating action has been developed referenced above. We are proposing this products identified in this rulemaking through installation of newly designed AD because we evaluated all action. alternator/compressor support and information and determined the unsafe pulley drive assemblies. condition exists and is likely to exist or Regulatory Findings The European Aviation Safety Agency develop on other products of the same We determined that this proposed AD (EASA), which is the Technical Agent type design. would not have federalism implications

VerDate Mar<15>2010 15:21 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 E:\FR\FM\28SEP1.SGM 28SEP1 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS 59660 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

under Executive Order 13132. This Following the rupture of an alternator and (5) Insert EADS SOCATA SB 70–161, proposed AD would not have a vapour cycle cooling system pulley drive amendment 2, dated June 2008, in the substantial direct effect on the States, on assembly, the AD 2008–0067–E was limitations section of the pilot’s operating the relationship between the national published to require the replacement of the handbook and install on the instrument pulley drive assembly by a new one of an panel and in the pilot’s primary field of government and the States, or on the improved design. vision a placard with the following text: distribution of power and Later on, cases of rupture of the alternator ‘‘AIR COND’’ INOPERATIVE responsibilities among the various and vapour cycle cooling system compressor levels of government. drive shaft and of cracks on the standby- RECOMMENDED ‘‘AIR COND’’ SWITCH For the reasons discussed above, I alternator and compressor support were POSITION: ‘‘MANUAL’’ certify this proposed regulation:g reportedly found. and insert EADS SOCATA SB 70–161–21, 1. Is not a ‘‘significant regulatory Such failures could lead to the loss of the amendment 2, dated June 2008, in the action’’ under Executive Order 12866; alternator and of the vapour cycle cooling limitations section of the pilot’s operating 2. Is not a ‘‘significant rule’’ under the systems, and could also cause mechanical handbook. damage inside the power plant compartment. (g) For all S/N airplanes; DOT Regulatory Policies and Procedures To address this condition, the AD 2008– (44 FR 11034, February 26, 1979); and (1) Within 100 hours TIS after September 0129–E superseded AD 2008–0067–E and 18, 2008 (the effective date of AD 2008–19– 3. Will not have a significant mandates the removal, as a temporary 06), and repetitively thereafter at intervals economic impact, positive or negative, measure, of the compressor drive belt and of not to exceed 100 hours TIS, inspect for the torque limiter, the conditional on a substantial number of small entities cracks on the pulley drive surfaces and the replacement of the pulley drive shear shaft, under the criteria of the Regulatory alternator/compressor support welds, and repetitive inspections for cracks of the Flexibility Act. following EADS SOCATA Mandatory TBM We prepared a regulatory evaluation pulley drive assembly and of the alternator/ compressor support. Aircraft Alert Service Bulletin SB 70–161, of the estimated costs to comply with Revision 1 of the AD 2008–0129–E amendment 2, dated July 2008. this proposed AD and placed it in the introduced an alternative temporary solution (i) For airplanes S/Ns 434 through 459, the AD docket. with the aim to restore the capability to make inspection required in paragraph (f)(2) of this use of the air conditioning system. This AD is considered the initial inspection List of Subjects in 14 CFR Part 39 solution consists in replacing the original required in paragraph (g)(1) of this AD. Air transportation, Aircraft, Aviation pulley drive assembly by a time-limited (ii) For accomplishment of the repetitive safety, Incorporation by reference, assembly of a new design, corresponding to inspections required by paragraph (g)(1) of this AD, paragraph C.2 of the Safety. the SOCATA modification MOD 70–0240–21. A definitive solution has been released to accomplishment instructions of EADS The Proposed Amendment production aeroplanes by implementation of SOCATA Mandatory TBM Aircraft Alert Service Bulletin SB 70–161, amendment 2, Accordingly, under the authority SOCATA modification MOD 70–0243–21 or Service Bulleting (SB) 70–176–21 for in- dated July 2008, does not apply since the delegated to me by the Administrator, service aeroplanes. torque limiter has already been removed. the FAA proposes to amend 14 CFR part This AD which supersedes EASA AD (2) If cracks are found during any of the 39 as follows: 2008–0129R1–E retaining its requirements, inspections required in paragraph (g)(1) of limits the AD applicability and requires this AD, before further flight, replace the PART 39—AIRWORTHINESS accomplishment of the terminating action. assembly following SOCATA Mandatory DIRECTIVES TBM Aircraft Service Bulletin SB 70–176, Actions and Compliance amendment 1, dated February 2010. 1. The authority citation for part 39 (f) For airplanes S/Ns 434 through 459 (h) At the next annual inspection or within continues to read as follows: only, unless already done, before further 5 months after the effective date of this AD, Authority: 49 U.S.C. 106(g), 40113, 44701. flight as of September 18, 2008 (the effective whichever occurs first, replace the alternator/ date of AD 2008–19–06), do the following compressor support and pulley drive § 39.13 [Amended] actions following EADS SOCATA Mandatory assemblies with P/N T700G215500700100 2. The FAA amends § 39.13 by TBM Aircraft Alert Service Bulletin SB 70– (alternator/compressor support) and P/N 161, amendment 2, dated July 2008: T700G215513500000 (Pulley drive removing Amendment 39–15673 (73 FR (1) Remove the pulley drive assembly, the assembly), following the accomplishment 54067; September 18, 2008), and adding torque limiter, the compressor drive belt, and instructions of SOCATA SB 70–176, the following new AD: the alternator/compressor support. amendment 1, dated February 2010. SOCATA: Docket No. FAA–2010–0948; (2) Inspect for cracks on the pulley drive (1) After the effective date of this AD, do Directorate Identifier 2010–CE–041–AD. surfaces and the alternator/compressor not install alternator/compressor support support welds. P/N T700G215500700000 and a pulley drive Comments Due Date (i) If any crack is detected, before further assembly P/N T700G215510000000. (a) We must receive comments by flight, replace the pulley drive assembly (2) Accomplishment of corrective actions November 12, 2010. following the accomplishment instructions in as required by paragraph (f)(2)(i), paragraph SOCATA Mandatory TBM Aircraft Service (g)(2), or paragraph (h) of this AD terminates Affected ADs Bulletin SB 70–176, amendment 1, dated the actions required in paragraphs (f) and (g) (b) This AD supersedes AD 2008–19–06, February 2010. of this AD. Amendment 39–15673. (ii) Replacement of the assembly Note 2: SOCATA SB 70–161–21 incorporates replacement of the pulley drive Applicability amendment 4, dated October 2009, has been sheer shaft required by paragraph (f)(3) of published by SOCATA in order to close the (c) This AD applies to SOCATA TBM 700 this AD for airplanes with 30 hours time-in- range of airplane S/Ns concerned by airplanes, serial numbers (S/Ns) 434 through service (TIS) or more with the torque limiter temporary actions. 509, 511 through 516, 519, 520, and 522 installed on the pulley drive shear shaft. through 525, certificated in any category. (3) Replace any pulley drive shear shaft FAA AD Differences that has accumulated 30 hours TIS or more Subject with the torque limiter installed. This action Note 3: This AD differs from the MCAI (d) Air Transport Association of America is not required if you replaced the whole and/or service information as follows: No (ATA) Code 21: Air Conditioning. assembly per paragraph (f)(2)(i) of this AD. differences. (4) Re-install the pulley drive assembly and Reason the alternator/compressor support, without Other FAA AD Provisions (e) The mandatory continuing re-installing the compressor drive belt or the (i) The following provisions also apply to airworthiness information (MCAI) states: torque limiter. this AD:

VerDate Mar<15>2010 15:21 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 E:\FR\FM\28SEP1.SGM 28SEP1 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59661

(1) Alternative Methods of Compliance FAA cost accounting data and air traffic Office of Financial Controls, Financial (AMOCs): The Manager, Standards Office, activity data. This action is necessary Analysis Division (AFC 300), Federal FAA, has the authority to approve AMOCs because operational costs for providing Aviation Administration, 800 for this AD, if requested using the procedures air traffic control and related services Independence Avenue, SW., found in 14 CFR 39.19. Send information to ATTN: Albert Mercado, Aerospace Engineer, for Overflights have increased steadily Washington, DC 20591; telephone (202) FAA, Small Airplane Directorate, 901 Locust, since the fees were established in 2001. 267–9759 facsimile (202) 267–5271, Room 301, Kansas City, Missouri 64106; The adjustment of Overflight Fees e-mail to [email protected]. For telephone: (816) 329–4119; fax: (816) 329– would result in an increased level of legal questions concerning this 4090. Before using any approved AMOC on cost recovery for the services being proposed rule contact Michael Chase, any airplane to which the AMOC applies, provided. AGC–240, Office of Chief Counsel, notify your appropriate principal inspector Regulations Division, Federal Aviation (PI) in the FAA Flight Standards District DATES: Send your comments on or before December 27, 2010. Administration, 800 Independence Office (FSDO), or lacking a PI, your local Avenue, SW., Washington, DC 20591; FSDO. ADDRESSES: You may send comments (2) Airworthy Product: For any telephone: (202) 267–3110; e-mail to identified by Docket Number FAA– [email protected]. requirement in this AD to obtain corrective 2010–0326 using any of the following actions from a manufacturer or other source, methods: SUPPLEMENTARY INFORMATION: Later in use these actions if they are FAA-approved. • Federal eRulemaking Portal: Go to this preamble under the Additional Corrective actions are considered FAA- Information section, we discuss how approved if they are approved by the State http://www.regulations.gov and follow of Design Authority (or their delegated the online instructions for sending your you can comment on this proposal and agent). You are required to assure the product comments electronically. how we will handle your comments. is airworthy before it is returned to service. • Mail: Send comments to Docket Included in this discussion is related (3) Reporting Requirements: For any Operations, M–30; U.S. Department of information about the docket, privacy, reporting requirement in this AD, under the Transportation, 1200 New Jersey and the handling of proprietary or provisions of the Paperwork Reduction Act Avenue, SE., Room W12–140, West confidential business information. We (44 U.S.C. 3501 et seq.), the Office of Building Ground Floor, Washington, DC also discuss how you can get a copy of Management and Budget (OMB) has 20590–0001. related rulemaking documents. approved the information collection • requirements and has assigned OMB Control Hand Delivery or Courier: Take Authority for This Rulemaking Number 2120–0056. comments to Docket Operations in Room W12–140 of the West Building The FAA’s authority to establish these Special Flight Permit Ground Floor at 1200 New Jersey fees is found in Title 49 of the United (j) We are allowing permission to ferry an Avenue, SE., Washington, DC, between States Code. This rulemaking is airplane to a maintenance location to 9 a.m. and 5 p.m., Monday through promulgated under the authority accomplish actions required by paragraph (1) Friday, except Federal holidays. described in Chapter 453, Section 45301 of this AD provided that the air conditioning • et seq. Under that Chapter, the FAA is is switched off during the entire flight Fax: Fax comments to Docket Operations at 202–493–2251. charged with prescribing regulations for duration. the collection of fees for air traffic For more information on the rulemaking Related Information control and related services provided to process, see the SUPPLEMENTARY aircraft, other than military and civilian (k) Refer to MCAI EASA AD No.: 2010– INFORMATION section of this document. 0130, dated June 29, 2010; and SOCATA aircraft of the United States government Service Bulletin SB 70–176, amendment 1, Privacy: We will post all comments or a foreign government, that transit dated February 2010, for related information. we receive, without change, to http:// U.S.-controlled airspace, but neither www.regulations.gov, including any Issued in Kansas City, Missouri, on take off from nor land in the United September 22, 2010. personal information you provide. States (‘‘Overflights’’). This proposed Using the search function of our docket Patrick R. Mullen, regulation is within the scope of that web site, anyone can find and read the authority. Acting Manager, Small Airplane Directorate, electronic form of all comments Aircraft Certification Service. received into any of our dockets, I. Background [FR Doc. 2010–24248 Filed 9–27–10; 8:45 am] including the name of the individual The FAA’s Overflight Fees were BILLING CODE 4910–13–P sending the comment (or signing the initially authorized in the Federal comment for an association, business, Aviation Reauthorization Act of 1996 labor union, etc.). You may review DEPARTMENT OF TRANSPORTATION (Pub. L. 104–264, enacted October 9, DOT’s complete Privacy Act Statement 1996). Overflight Fees are charges for Federal Aviation Administration in the Federal Register published on aircraft flights that transit U.S.- April 11, 2000 (65 FR 19477–78) or you controlled airspace, but neither land in 14 CFR Part 187 may visit http://DocketsInfo.dot.gov. nor depart from the United States. Docket: To read background Following enactment of the initial fee [Docket No. FAA–2010–0326; Notice No. 10– documents or comments received, go to authority, and as mandated by that 12] http://www.regulations.gov at any time authority, the FAA issued an Interim RIN 2120–AJ68 and follow the online instructions for Final Rule (IFR), ‘‘Fees for Air Traffic accessing the docket, or, go to Docket Services for Certain Flights through U.S. Update of Overflight Fees Operations in Room W12–140 of the Controlled Airspace’’ (62 FR 13496), on West Building Ground Floor at 1200 AGENCY: Federal Aviation March 20, 1997. Under the terms of the Administration (FAA), DOT. New Jersey Avenue, SE., Washington, IFR, the FAA sought public comment on DC, between 9 a.m. and 5 p.m., Monday ACTION: the IFR while concurrently beginning to Notice of proposed rulemaking through Friday, except Federal holidays. (NPRM). assess Overflight Fees 60 days after its FOR FURTHER INFORMATION CONTACT: For publication, on May 19, 1997. SUMMARY: This NPRM proposes to adjust technical questions concerning this On July 17, 1997, petitions for judicial existing Overflight Fees by using current proposed rule contact David Lawhead, review of the IFR were filed in the U.S.

VerDate Mar<15>2010 15:21 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 E:\FR\FM\28SEP1.SGM 28SEP1 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS 59662 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

Court of Appeals for the District of nearing completion of a Final Rule that to the FAA) and to submit a report to Columbia (the Court) by the Air would address these issues in the Congress addressing the issues that had Transport Association of Canada disposition of public comments section been in dispute in the litigation before (ATAC) and seven foreign air carriers. of its preamble. resuming the billing and collection of Those petitions were consolidated into The FAA therefore proceeded on two the Overflight Fees. a single case (Asiana Airlines v. FAA, fronts. It successfully petitioned the Because there were ambiguous and 134 F.3d 393 (D.C. Cir. 1998)). The Court not to vacate the IFR while it potentially conflicting provisions in litigation proceeded throughout the proceeded concurrently with issuance Vision 100 concerning Overflight Fees, remainder of 1997 while the FAA of the Final Rule (‘‘Fees for FAA the Administrator issued an Order on continued to collect fees pursuant to the Services for Certain Flights,’’ 66 FR July 21, 2004, that set forth her statute. 43680) on August 20, 2001, with revised interpretation of the language of the On January 30, 1998, the Court issued fees effective immediately. In addition statute and, based on that interpretation, a decision, upholding the FAA on three to addressing the public comments made determinations as to the ultimate process and procedure issues, but received on the IFR, the Final Rule disposition of Overflight Fees collected vacating the Rule because the Court reduced fees by about 15 percent due to by the FAA under both the 2000 IFR found that the methodology the FAA adjustments in the original cost data. A and the 2001 Final Rule. The FAA used to allocate costs did not conform new challenge to the revised fees was retained a portion of the funds collected to the statute. The FAA immediately brought after the issuance of the Final under the Final Rule, while either suspended billing operations, and Rule by ATAC and the same group of air refunding or providing credits to the eventually refunded nearly $40 million carriers. The two cases, one challenging airlines for all of the fees collected in fees that had then been collected. the IFR (65 FR 36002) issued in 2000 under the IFR and a portion of the fees Although the 1997 IFR (62 FR 13496) and the other challenging the Final Rule collected under the Final Rule. A copy had been set aside by the Court, the (66 FR 43680) issued in 2001, were of that Order, ‘‘Order Directing the statutory requirement that the FAA combined by the Court into a single Disposition of Certain Fees Collected by establish Overflight Fees through an IFR case. the Federal Aviation Administration remained in effect. One of the principal While the litigation was still pending, Pursuant to 49 U.S.C. Section 45301,’’ criticisms the FAA had received from on November 19, 2001, Congress has been placed in the docket. the public commenters on its 1997 IFR enacted the Aviation and Transportation The FAA met with users in September concerned the quality of the cost Security Act (ATSA), which included a 2004 and submitted a report to Congress information upon which the Overflight provision that amended the Overflight at the same time, as mandated by the Fees were based. The FAA had already Fee authorization (1) To require that the Vision 100 statute. This cleared the way begun developing a new Cost fees be ‘‘reasonably’’ (rather than for the FAA to resume the billing and Accounting System (CAS) in 1996. Early ‘‘directly’’) related to costs, (2) to clarify collection of Overflight Fees. In most data from the new CAS was becoming that the Administrator has sole cases, amounts previously collected by available in 1998. Thus, when the FAA authority to determine the costs upon the FAA under the IFR and under the decided, following the initial litigation, which the fees are based, and (3) to state Final Rule up until the date of the to issue a new IFR, a key element of that explicitly that such cost determinations ATSA enactment were provided as decision was that the fees would be by the Administrator are not subject to credits to frequent payers. These derived from cost data from the new judicial review. Meanwhile, the amounts were, in most cases, roughly CAS. litigation proceeded into 2003, with the offset by amounts owed by the carriers A new IFR was published in the FAA continuing to collect the fees as and other users for the one-year period Federal Register on June 6, 2000 (65 FR required by statute. from March 2003 through February 36002), with fees scheduled to go into On April 8, 2003, the Court issued a 2004. The carriers had not been billed effect on August 1, 2000. This new IFR decision setting aside the Final Rule and for this period while the litigation was was challenged in court by the ATAC remanding it back to the FAA, finding ongoing, but were ultimately and a slightly different group of seven that the agency had not adequately determined by the Administrator to be foreign air carriers. The FAA began explained its handling of controller liable for those fees. assessing and collecting the new labor costs in deriving the fees. Air Since that time, the FAA has followed Overflight Fees as scheduled on August Transport Association of Canada v. the normal process of issuing monthly 1, 2000, while public comments were FAA, 323 F.3d 1093 (D.C. Cir. 2003). bills for the services provided to still being received by the FAA on its The Court also found that the Overflight Overflights. The fees currently being second IFR. The litigation proceeded Fees amendments in the ATSA statute charged were derived from cost and concurrently, with oral arguments held were inapplicable because of a generic activity data for FY 1999. This NPRM on May 14, 2001. ‘‘savings’’ provision in the ATSA proposes to update the existing fees by On July 13, 2001, the Court again legislation that stated that nothing using cost and activity data for FY 2008 vacated the FAA’s IFR, this time enacted in ATSA was applicable to any to derive the fees. The cost methodology because the Court believed the FAA had litigation ongoing prior to the date of applied in this NPRM is applied in the failed to explain a key assumption in its enactment of ATSA. Fee collections same manner as in 2001, except that costing methodology. (Air Transport were immediately suspended. overhead has been included in the cost Association of Canada v. FAA; 00–1344, On December 12, 2003, Congress base for the fees this time as a direct July 13, 2001). Under the Court’s order, enacted VISION 100—CENTURY OF result of the ATSA amendment that there were 45 days before the IFR was AVIATION REAUTHORIZATION ACT, changed the previous statutory to be vacated. As noted above, the FAA (Vision 100). Section 229 of that Act requirement that fees be ‘‘directly’’ had solicited public comment on the explicitly ‘‘adopted, legalized, and related to costs to a less stringent IFR at the time it was published. The confirmed’’ both the IFR published in requirement that the fees be FAA had received many comments on 2000 and the Final Rule published in ‘‘reasonably’’ related to costs. the several issues raised in the 2001. In addition, the FAA was directed The FAA’s CAS has been evolving litigation. At the time the Court’s to hold a consultation meeting with and improving over time. The CAS has decision was issued, the FAA was users (those who pay the Overflight Fees always relied on the best available data,

VerDate Mar<15>2010 15:21 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 E:\FR\FM\28SEP1.SGM 28SEP1 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59663

and as new systems and techniques the FAA on the updating of its The FAA believes that the ARC have evolved, the quality and accuracy Overflight Fees. The Overflight Fees recommendations are a reasonable of the data has improved. There are ARC met several times in 2009 and approach to move forward on a areas, such as the reporting of labor issued its report and recommendations consensus basis to update its Overflight costs, where costs were allocated or to the FAA on August 26, 2009. A copy Fees. This NPRM proposes to assigned in the past based on estimates, of this report has been placed in the implement the recommendations of the but today are determined by actual data. docket. The report contains three ARC. It should be noted that the annual This is not a difference in how the data principal recommendations: increases recommended by the ARC is gathered, but rather an improvement 1. That the FAA pursue the updating (14% for the Enroute fee and 8% for the in the quality and accuracy of the basic of its Overflight Fees through the Oceanic fee) were derived from data. A detailed explanation of how the normal notice and comment type of information presented to the ARC by the CAS data was assembled can be found rulemaking, rather than through the FAA. The FAA had shown the ARC in the ‘‘Costing Methodology Report, FY interim final rule process previously that, in order for the FAA to approach 2008,’’ which has been placed in the mandated by Congress; the cost recovery called for by Federal docket for this rulemaking. 2. That, in updating the fees, the FAA policy guidance on user fees, based on abide by the policies of the International actual cost and activity data for FY Civil Aviation Organization (ICAO), Overflight Fees Aviation Rulemaking 2008, fee increases of approximately whereby the principle of gradualism is Committees (ARC) 69% and 36%, respectively, for Enroute applied so that any substantial fee and Oceanic, would be necessary. In 2004, the FAA established an increase (as in this case where a 9-year Spreading this increase over 4 years Overflight Fees ARC. That Committee update is involved) is spread over produces the recommended levels of held two meetings in early 2005, but several years; and never issued a report or made a 3. That, in this instance, the specific 14% per year, compounded, for Enroute recommendation to the FAA before its increases be accomplished over 4 and 8% per year, compounded, for Charter expired. Subsequently, on increments, on October 1st of each year Oceanic. December 17, 2008, the FAA issued a from 2011 through 2014, with annual The actual dollar amounts of each fee new Charter for an Overflight Fees ARC increases of 14% for Enroute and 8% for as of each of the four October 1st fee to advise and make recommendations to Oceanic. revision dates would be as follows:

Enroute Oceanic (per 100 (per 100 Time period nautical nautical miles) miles)

October 1, 2011 ...... $38.44 $17.22 October 1, 2012 ...... 43.82 18.60 October 1, 2013 ...... 49.95 20.09 October 1, 2014 ...... 56.86 21.63

II. Discussion of the Proposal Separate overflight fees have been Paperwork Reduction Act established, and are currently in effect, The Paperwork Reduction Act of 1995 The proposed rule would update the for flights that transit U.S.-controlled (44 U.S.C. 3507(d)) requires that the FAA’s existing Overflight Fees, which airspace in each of two operational FAA consider the impact of paperwork are presently based on Fiscal Year (FY) environments—Enroute and Oceanic— 1999 cost and activity data. The fees and other information collection without either taking off from or landing burdens imposed on the public. The have not been updated since they were in the United States. The updated initially established on August 20, 2001. FAA has determined that there would Enroute fee would be derived by taking be no new requirement for information The current fees are derived (from CAS) the total costs incurred in collection associated with this proposed arithmetically from final FAA CAS data the Enroute environment in FY 2008 rule. The FAA information used to track for FY 1999 and from the Enhanced and dividing that number by the and bill overflights (including the Traffic Management System (ETMS) number of miles flown in U.S.- information collection necessary to data for the same year. The updated fees controlled Enroute airspace in FY 2008. implement this proposal) is accessed would be derived using basically the This would produce a per-mile cost that from flight plans filed with the FAA. same methodology as in 2001, but would be levied as a charge per 100 The collection of Domestic and would be derived from final, audited nautical miles flown, using Great Circle International Flight Plans is approved CAS data and ETMS data for FY 2008. Distance (GCD), from point of entry into, under OMB collection Control # 2120– The only difference would be that the to point of exit from, U.S.-controlled 0026. The FAA seeks comment on updated fees would include overhead in airspace. The separate Oceanic fee is whether a revision to this information the cost base. Overhead originally was determined in precisely the same collection would be necessary as a excluded from the cost base for the manner, by dividing total Oceanic costs result of this proposal. existing fees, but would be included in for FY 2008 by the total number of International Compatibility the derivation of the updated fees as the Oceanic miles flown in FY 2008. The result of the previously discussed actual step-by-step derivation of these In keeping with U.S. obligations change in the applicable statutory fees, using actual numbers for FY 2008, under the Convention on International authority (changing the requirement that is shown in the ‘‘Overflight Fee Civil Aviation, it is FAA policy to ‘‘ ’’ fees be directly related to costs to a Development Report’’ which is included comply with International Civil requirement that the fees be in the docket for this rulemaking. Aviation Organization (ICAO) Standards ‘‘reasonably’’ related to costs). and Recommended Practices to the

VerDate Mar<15>2010 15:21 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 E:\FR\FM\28SEP1.SGM 28SEP1 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS 59664 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

maximum extent practicable. The FAA or more annually (adjusted for inflation directive, transfers are not considered a has reviewed the corresponding ICAO with base year of 1995). This portion of societal cost. Therefore, this rule Standards and Recommended Practices the preamble summarizes the FAA’s imposes no costs. We do provide an and has identified no differences with analysis of the economic impacts of this estimate of the transfers. There would these proposed regulations. proposed rule. be a 4-year phase-in of fees with yearly Department of Transportation Order increases (14% Enroute and 8% III. Regulatory Evaluation, Regulatory DOT 2100.5 prescribes policies and Oceanic). Increases would begin in 2011 Flexibility Determination, and procedures for simplification, analysis, Unfunded Mandates Assessment and end in 2014. We have determined and review of regulations. If the that approximately 80% of Overflight expected cost impact is so minimal that Changes to Federal regulations must Fees for domestic operators would be a proposed or final rule does not undergo several economic analyses. Enroute and 20% would be Oceanic. warrant a full evaluation, this order First, Executive Order 12866 directs that (See Table 1.) permits that a statement to that effect each Federal agency shall propose or and the basis for it to be included in the Most of the transfers from this adopt a regulation only upon a reasoned preamble if a full regulatory evaluation proposed rule would be borne by determination that the benefits of the of the cost and benefits is not prepared. foreign operators. The estimated intended regulation justify its costs. Such a determination has been made for transfers from foreign operators to the Second, the Regulatory Flexibility Act this proposed rule. The reasoning for FAA are about $73 million ($52 million, of 1980 (Pub. L. 96–354) requires this determination follows: present value). (See Table 2.) agencies to analyze the economic impact of regulatory changes on small Benefit Using the preceding information, the entities. Third, the Unfunded Mandates The benefit of this proposed rule FAA estimates that the total transfers Reform Act of 1995 (Pub. L. 104–4) would be that the overflight fees will be resulting from this proposed rule from requires agencies to prepare a written more closely related to the actual costs U.S. entities to the FAA over 5 years assessment of the costs, benefits, and of providing FAA’s services for these would be about $1.1 million ($0.8 other effects of proposed or final rules flights. million, present value). Again, that include a Federal mandate likely to government fees and taxes are result in the expenditure by State, local, Costs considered transfers and not societal or tribal governments, in the aggregate, Taxes and government fees are a costs, so this proposed rule does not or by the private sector, of $100 million transfer payment, and, by OMB increase society’s costs.

The FAA has, therefore, determined economically ‘‘significant regulatory action’’ for other reasons as defined in that this proposed rule is not an action’’, but is a ‘‘significant regulatory section 3(f) of Executive Order 12866

VerDate Mar<15>2010 15:21 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 E:\FR\FM\28SEP1.SGM 28SEP1 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS EP28SE10.001 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59665

and is ‘‘significant’’ as defined in DOT’s Executive Order 13132, Federalism Additional Information Regulatory Policies and Procedures. The FAA has analyzed this proposed Comments Invited Regulatory Flexibility Determination rule under the principles and criteria of Executive Order 13132, Federalism. We The FAA invites interested persons to The Regulatory Flexibility Act of 1980 participate in this rulemaking by (RFA) establishes ‘‘as a principle of determined that this action would not have a substantial direct effect on the submitting written comments, data, or regulatory issuance that agencies shall views. We also invite comments relating endeavor, consistent with the objective States, on the relationship between the to the economic, environmental, energy, of the rule and of applicable statutes, to national government and the States, or or federalism impacts that might result fit regulatory and informational on the distribution of power and from adopting the proposals in this requirements to the scale of the responsibilities among the various business, organizations, and levels of government, and, therefore, document. The most helpful comments governmental jurisdictions subject to would not have federalism implications. reference a specific portion of the proposal, explain the reason for any regulation.’’ To achieve that principle, Environmental Analysis the RFA requires agencies to solicit and recommended change, and include consider flexible regulatory proposals FAA Order 1050.1E identifies FAA supporting data. To ensure the docket and to explain the rationale for their actions that are categorically excluded does not contain duplicate comments, actions. The RFA covers a wide-range of from preparation of an environmental please send only one copy of written small entities, including small assessment or environmental impact comments, or if you are filing comments businesses, not-for-profit organizations statement under the National electronically, please submit your and small governmental jurisdictions. Environmental Policy Act in the comments only one time. absence of extraordinary circumstances. Agencies must perform a review to We will file in the docket all The FAA has determined this proposed determine whether a proposed or final comments we receive, as well as a rule will have a significant economic rulemaking action qualifies for the categorical exclusion identified in report summarizing each substantive impact on a substantial number of small public contact with FAA personnel entities. If the agency determines that it paragraph 312d and involves no extraordinary circumstances. concerning this proposed rulemaking. will, the agency must prepare a Before acting on this proposal, we will regulatory flexibility analysis as Regulations That Significantly Affect consider all comments we receive on or described in the Act. Energy Supply, Distribution, or Use before the closing date for comments. The FAA ranked in descending order The FAA has analyzed this NPRM We will consider comments filed after all domestic entities based on their the comment period has closed if it is Overflight Fees. Then we identified 5 under Executive Order 13211, Actions possible to do so without incurring small entities having publicly-available Concerning Regulations that expense or delay. We may change this financial information (using a size Significantly Affect Energy Supply, proposal in light of the comments we standard of 1,500 or fewer employees) Distribution, or Use (May 18, 2001). We in the top 20 percent of the ranking. We have determined that it is not a receive. ‘‘ ’’ retrieved their annual revenue from significant regulatory action under the Proprietary or Confidential Business executive order because, while it is a World Aviation Directory and compared Information it to their annualized compliance costs. ‘‘significant regulatory action’’ under Of these 5 entities, all of them have DOT’s Regulatory Policies and Do not file in the docket information annualized compliance costs as a Procedures, it is not likely to have a that you consider to be proprietary or percentage of annual revenues lower significant adverse effect on the supply, confidential business information. Send than 0.1 percent. We believe this distribution, or use of energy. or deliver this information directly to economic impact is not significant. Plain English the person identified in the FOR FURTHER Consequently, the FAA certifies that the INFORMATION CONTACT section of this proposed rule would not have a Executive Order 12866 (58 FR 51735, document. You must mark the significant economic impact on a Oct. 4, 1993) requires each agency to information that you consider substantial number of small entities. write regulations that are simple and proprietary or confidential. If you send easy to understand. We invite your Unfunded Mandates Assessment the information on a disk or CD–ROM, comments on how to make these mark the outside of the disk or CD–ROM Title II of the Unfunded Mandates proposed regulations easier to and also identify electronically within Reform Act of 1995 (Pub. L. 104–4) understand, including answers to the disk or CD–ROM the specific requires each Federal agency to prepare questions such as the following: information that is proprietary or • a written statement assessing the effects Are the requirements in the confidential. of any Federal mandate in a proposed or proposed regulations clearly stated? Under 14 CFR 11.35(b), when we are final agency rule that may result in an • Do the proposed regulations contain expenditure of $100 million or more (in aware of proprietary information filed unnecessary technical language or with a comment, we do not place it in 1995 dollars) in any one year by State, jargon that interferes with their clarity? local, and tribal governments, in the the docket. We hold it in a separate file • Would the regulations be easier to aggregate, or by the private sector; such to which the public does not have understand if they were divided into a mandate is deemed to be a ‘‘significant access, and we place a note in the more (but shorter) sections? regulatory action.’’ The FAA currently docket that we have received it. If we • uses an inflation-adjusted value of Is the description in the preamble receive a request to examine or copy $143.1 million in lieu of $100 million. helpful in understanding the proposed this information, we treat it as any other This proposed rule does not contain regulations? request under the Freedom of such a mandate; therefore, the Please send your comments to the Information Act (5 U.S.C. 552). We requirements of Title II of the Act do not address specified in the Addresses process such a request under the DOT apply. section of this preamble. procedures found in 49 CFR part 7.

VerDate Mar<15>2010 15:21 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 E:\FR\FM\28SEP1.SGM 28SEP1 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS 59666 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

Availability of Rulemaking Documents eRulemaking Portal referenced in (e) * * * paragraph (1). (2) A User (operator of an Overflight) is You can get an electronic copy of assessed a fee for each 100 nautical miles (or rulemaking documents using the List of Subjects in 14 CFR Part 187 portion thereof) flown in each segment and Internet by— Administrative practice and type of U.S.-controlled airspace. Separate 1. Searching the Federal eRulemaking procedure, Air transportation. calculations are made for transiting Enroute Portal (http://www.regulations.gov); and Oceanic airspace. The total fee charged The Proposed Amendment for an Overflight between any entry and exit 2. Visiting the FAA’s Regulations and In consideration of the foregoing, the point is equal to the sum of these two Policies Web page at http:// charges. This relationship is summarized as: _ Federal Aviation Administration www.faa.gov/regulations policies; or Rij = X*DEij + Y*DOij, proposes to amend Chapter I of Title 14, 3. Accessing the Government Printing Where: Office’s Web page at http:// Code of Federal Regulations, as follows: Rij = the fee charged to aircraft flying www.gpoaccess.gov/fr/index.html. PART 187—FEES between entry point i and exit point j, You can also get a copy by sending a DEij = total great circle distance traveled in request to the Federal Aviation 1. The authority citation for part 187 each segment of U.S.-controlled Enroute Administration, Office of Rulemaking, continues to read as follows: airspace expressed in hundreds of ARM–1, 800 Independence Avenue, Authority: 31 U.S.C. 9701, 49 U.S.C. nautical miles for aircraft flying between SW., Washington, DC 20591, or by 106(g), 49 U.S.C. 106(l)((6), 40104–401–5, entry point i and exit point j for each calling (202) 267–9680. Make sure to 40109, 40113–40114, 44702. segment of Enroute airspace. identify the docket number or notice DOij = total great circle distance traveled in 2. In part 187, Appendix B is each segment of U.S.-controlled Oceanic number of this rulemaking. amended by revising paragraph (e)(2) to airspace expressed in hundreds of You may access all documents the read as follows: nautical miles for aircraft flying between FAA considered in developing this entry point i and exit point j for each proposed rule, including economic Appendix B to Part 187—Fees for FAA segment of Oceanic airspace. Services for Certain Flights analyses and technical reports, from the X and Y = the values respectively set forth Internet through the Federal * * * * * in the following schedule:

Time period X (Enroute) Y (Oceanic)

Through September 30, 2011 ...... $33.72 $15.94 October 1, 2011 through September 30, 2012 ...... 38.44 17.22 October 1, 2012 through September 30, 2013 ...... 43.82 18.60 October 1, 2013 through September 30, 2014 ...... 49.95 20.09 October 1, 2014 and beyond ...... 56.86 21.63

* * * * * regulation or order of the Commission Web site, without review and without Issued in Washington, DC, on September adopted pursuant to section 4(c) of the removal of personally identifying 22, 2010. Commodity Exchange Act (‘‘CEA’’ or information. All comments are subject Carl W. Burrus, ‘‘Act’’). This advance notice of proposed to the CFTC privacy policy. ‘‘ ’’ Director, Office of Financial Controls. rulemaking ( ANPRM ) requests FOR FURTHER INFORMATION CONTACT: comment on the appropriate conditions, [FR Doc. 2010–24342 Filed 9–27–10; 8:45 am] Donald Heitman, Senior Special restrictions or protections to be Counsel, (202) 418–5041, BILLING CODE 4910–13–P included in any such rule, regulation or [email protected], or Ryne Miller, order governing the trading of Attorney Advisor, (202) 418–5921, agricultural swaps. [email protected], Division of Market COMMODITY FUTURES TRADING Oversight, Commodity Futures Trading COMMISSION DATES: Comments must be received on or before October 28, 2010. The Commission, Three Lafayette Centre, 17 CFR Part 35 Commission is not inclined to grant 1155 21st Street, NW., Washington, DC extensions of this comment period. 20581. Agricultural Swaps ADDRESSES: You may submit comments, SUPPLEMENTARY INFORMATION: AGENCY: Commodity Futures Trading identified with ‘‘Agricultural Swaps I. Background Commission. ANPRM’’ in the subject line, by any of the following methods: On July 21, 2010, President Obama ACTION: Advanced notice of proposed • E-mail for comments: signed the Dodd-Frank Wall Street rulemaking and request for comment. 1 [email protected]. Reform and Consumer Protection Act. Title VII of the Dodd-Frank Act 2 SUMMARY: The Commodity Futures • Mail: David A. Stawick, Secretary of amended the CEA3 to establish a ‘‘ ’’ the Commission, Commodity Futures Trading Commission ( Commission or comprehensive new regulatory ‘‘ ’’ Trading Commission, Three Lafayette CFTC ) is charged with proposing rules framework for swaps and security-based to implement new statutory provisions Centre, 1155 21st Street, NW., enacted by Title VII of the Dodd-Frank Washington, DC 20581. • 1 See Dodd-Frank Wall Street Reform and Wall Street Reform and Consumer Hand Delivery/Courier: Same as Consumer Protection Act, Public Law 111–203, 124 Protection Act (‘‘Dodd-Frank Act’’). mail above. Stat. 1376 (2010). The text of the Dodd-Frank Act Section 723(c)(3) of the Dodd-Frank Act All comments must be submitted in may be accessed at http://www.cftc.gov./ provides that swaps in an ‘‘agricultural English, or if not, accompanied by an LawRegulation/OTCDERIVATIVES/index.htm. 2 Pursuant to § 701 of the Dodd-Frank Act, Title commodity’’ (as defined by the English translation. All comments VII may be cited as the ‘‘Wall Street Transparency Commission) are prohibited unless provided in any electronic form or on and Accountability Act of 2010.’’ entered into pursuant to a rule, paper will be published on the CFTC 3 7 U.S.C. 1 et seq.

VerDate Mar<15>2010 15:21 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 E:\FR\FM\28SEP1.SGM 28SEP1 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59667

swaps. The legislation was enacted to Modernization Act of 2000 (‘‘CFMA’’).6 an ‘‘excluded commodity’’ or an ‘‘agricultural reduce risk, increase transparency, and However, current § 2(g) specifically commodity.’’ For purposes of this definition, promote market integrity within the excludes an ‘‘agreement, contract, or the Committee intends ‘‘agricultural transaction’’ in an ‘‘agricultural commodity’’ to include all agricultural financial system by, among other things: commodities, whether or not such (1) Providing for the registration and commodity’’ from the CFMA swaps agricultural commodities are specifically comprehensive regulation of swap exemption. enumerated in the definition of ‘‘commodity’’ dealers and major swap participants; (2) While the term ‘‘agricultural in section 1a[4] of the CEA.11 commodity’’ is not specifically defined imposing clearing and trade execution Notably, the definition of exempt in the Act, it is used in the Act in requirements on standardized derivative commodity did not change from H.R. conjunction with the definition of the products; (3) creating robust 4541 to H.R. 5660, the final version of recordkeeping and real-time reporting term ‘‘exempt commodity,’’ which is ‘‘ the CFMA as enacted into law. regimes; and (4) enhancing the defined as neither an agricultural The effect of excluding agricultural ’’ ‘‘ Commission’s rulemaking and commodity nor an excluded commodities from current CEA § 2(g) ’’ 7 enforcement authorities with respect to, commodity. There is limited was that swaps involving exempt and among others, all registered entities and legislative history regarding the CFMA excluded commodities were allowed to intermediaries subject to the to explain Congress’ intent in excluding transact largely outside of the Commission’s oversight. ‘‘agricultural commodities’’ from the 8 Commission’s jurisdiction or oversight, Section 723(c)(3) of the Dodd-Frank § 2(g) swaps exemption. However, the while swaps involving agricultural legislative history of H.R. 4541, the Act provides that swaps in an 9 commodities, including both the ‘‘agricultural commodity’’ (as defined by predecessor to the CFMA (H.R. 5660), enumerated agricultural commodities the Commission) are prohibited unless which included the same basic structure and other non-enumerated agricultural entered into pursuant to a rule, of excluded and exempt commodities, commodities, remained subject to the regulation or order of the Commission indicates that Congress did not intend Commission’s pre-CFMA swaps ‘‘ ’’ adopted pursuant to § 4(c) of the that the term agricultural commodity regulations as set forth in 17 CFR part be limited to those commodities Commodity Exchange Act. This ANPRM 35.12 enumerated in the definition of the term reviews the current statutory and ‘‘commodity’’ in current CEA § 1a(4).10 Options regulatory framework governing The House Committee on Agriculture agricultural swaps, as well as the Dodd- The Dodd-Frank Act defines the term stated the following: Frank Act provisions applicable to ‘‘swap’’ to include not only the various agricultural swaps. The ANPRM then The Committee notes that the term ‘‘exempt types of swaps listed in the definition, requests comment on the appropriate commodity’’ means a commodity other than including commodity swaps and conditions, restrictions or protections to agricultural swaps, but also OTC 6 Current CEA § 2(g) was added to the CEA as options of any kind.13 Commodity be included in any Commission rule, § 105(b) of the CFMA, enacted as Appendix E to PL regulation or order governing the 106–554. options are subject to the Commission’s 14 trading of agricultural swaps. 7 ‘‘The term ‘exempt commodity’ means a plenary authority under CEA § 4c(b). commodity that is not an excluded commodity or Based on § 4c(b)’s general prohibition of A. Current Statutory Framework for an agricultural commodity.’’ Current CEA § 1a(14). any option transactions contrary to any OTC Agricultural Swaps, Including An ‘‘excluded commodity’’ is defined in current CEA § 1a(13) to include financial commodities such Options Swaps 11 as interest rates, currencies, economic indexes, and H.R. Rep. No. 106–711, Part 1, at 33 (June 29, other similar items. As noted above, of the three 2000). Since 2000, bilateral over-the-counter 12 Notably, current CEA § 2(g) is not the only 4 operative terms, only ‘‘agricultural commodity’’ is (‘‘OTC’’) swaps between certain not defined. statutory provision that excludes or exempts sophisticated counterparties have been 8 H.R. 5660, the final version of the CFMA, which bilateral swaps between eligible contract generally exempted from the was enacted into law as an appendix to Public Law participants from the Commission’s jurisdiction. No. 106–554, the Consolidated Appropriations Act, Current CEA § 2(d)(1) excludes any such bilateral Commission’s jurisdiction pursuant to ‘‘agreement, contract, or transaction’’ in excluded 5 2001, was not accompanied by congressional current CEA § 2(g), which was added to committee reports. commodities from Commission jurisdiction, while the CEA by the Commodity Futures 9 H.R. 4541, also titled the Commodity Futures CEA § 2(h)(1) creates a similar exemption for a Modernization Act of 2000, was reported by all ‘‘contract, agreement or transaction’’ in exempt commodities. The overlap between these two 4 Prior to the Dodd-Frank Act, the Commission three committees of jurisdiction (Agriculture, Commerce, and Banking and Financial Services) in provisions and the swap exemption in CEA § 2(g) had defined a ‘‘swap’’ as follows: ‘‘A swap is a serves to reinforce Congress’ clear intent to not privately negotiated exchange of one asset or cash the House of Representatives and was passed by the House on October 19, 2000 by a vote of 377 yeas exclude agricultural swaps from the Commission’s flow for another asset or cash flow. In a commodity jurisdiction through the CFMA. swap [including an agricultural swap], at least one to 4 nays. On December 14, 2000, H.R. 5660 was 13 Exchange-traded futures and options on futures of the assets or cash flows is related to the price introduced and contained major provisions of the are specifically excluded from the Dodd-Frank of one or more commodities.’’ (See 72 FR 66099, House-passed version of H.R. 4541. swaps definition. See new CEA § 1a(47)(B), as note 7 (November 27, 2007)). See new CEA § 1a(47) 10 Current CEA § 1a(4) defines the term added to the CEA by § 721 of the Dodd-Frank Act. for the statutory definition of a ‘‘swap,’’ as added to ‘‘commodity’’ to include wheat, cotton, rice, corn, 14 the CEA by § 721 of the Dodd-Frank Act. oats, barley, rye, flaxseed, grain sorghums, mill Section 4c(b) provides: 5 Current § 2(g) provides: feeds, butter, eggs, Solanum tuberosum (Irish Regulated option trading Excluded swap transactions. potatoes), wool, wool tops, fats and oils (including No person shall offer to enter into, enter into or lard, tallow, cottonseed oil, peanut oil, soybean oil, confirm the execution of, any transaction involving No provision of this chapter (other than section and all other fats and oils), cottonseed meal, any commodity regulated under this Act which is 5a (to the extent provided in section 5a(g)), 5b, 5d, cottonseed, peanuts, soybeans, soybean meal, of the character of, or is commonly known to the or 12(e)(2)) shall apply to or govern any agreement, livestock, livestock products, and frozen trade as, an ‘‘option’’, ‘‘privilege’’, ‘‘indemnity’’, contract, or transaction in a commodity other than concentrated orange juice, and all other goods and ‘‘bid’’, ‘‘offer’’, ‘‘put’’, ‘‘call’’, ‘‘advance guaranty’’, or an agricultural commodity if the agreement, articles, except onions as provided in Public Law ‘‘decline guaranty’’, contrary to any rule, regulation, contract, or transaction is— 85–839 (7 U.S.C. 13–1), and all services, rights, and or order of the Commission prohibiting any such (1) Entered into only between persons that are interests in which contracts for future delivery are transaction or allowing any such transaction under eligible contract participants at the time they enter presently or in the future dealt in.’’ 7 U.S.C. 1a(4). such terms and conditions as the Commission shall into the agreement, contract, or transaction; The agricultural commodities specifically identified prescribe. Any such order, rule, or regulation may (2) subject to individual negotiation by the in current CEA § 1a(4) are often referred to as the be made only after notice and opportunity for parties; and ‘‘enumerated’’ agricultural commodities. The Dodd- hearing, and the Commission may set different (3) not executed or traded on a trading facility. Frank Act redesignates current CEA § 1a(4) as new terms and conditions for different markets. CEA CEA § 2(g), 7 U.S.C. 2(g). CEA § 1a(9). § 4c(b); 7 U.S.C. 6c(b).

VerDate Mar<15>2010 15:21 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 E:\FR\FM\28SEP1.SGM 28SEP1 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS 59668 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

Commission rule, regulation or order Part 35 is the sole authority under offered to a commercial (‘‘a producer, prohibiting options, or allowing them which market participants may transact processor, or commercial user of, or a under such conditions as the agricultural swaps that are not options. merchant handling’’ the underlying Commission may prescribe, the only commodity); (2) the commercial enters Options options currently authorized under the the transaction solely for purposes CEA are those specifically provided for As noted above, the Commission related to its business as such; and (3) in the Commission’s regulations. maintains plenary authority over each party to the option contract has a options pursuant to CEA § 4c(b). It has net worth of not less than $10 million. B. Current Regulatory Framework used that authority to, among other In either case (whether transacted Swaps things, issue Part 32 of the pursuant to the ATOM registration Commission’s regulations, which As mentioned previously, Part 35 of scheme or accomplished via the includes a general ban on OTC the Commission’s regulations provides a exemption at § 32.13(g)), the phrase options,18 but allows for OTC option broad-based exemption for certain swap ‘‘agricultural trade option’’ refers transactions under certain conditions. agreements. Adopted by the specifically to an OTC option on an Part 32 allows OTC options on Commission under its § 4(c) exemptive enumerated agricultural commodity. agricultural commodities in two In addition to the § 32.13(g) ATO authority in 1993,15 Part 35 allows for instances.19 exemption, Part 32 includes, at § 32.4, a swaps to transact OTC if certain Rule 32.13 establishes rules for basic trade option exemption applicable conditions are met: (1) The swap trading OTC options on the to options on commodities other than agreements are entered into solely ‘‘enumerated’’ agricultural commodities the enumerated agricultural between eligible swap participants; (2) (‘‘agricultural trade options’’ or ‘‘ATOs’’) commodities. The terms of the § 32.4 the swap agreements are not part of a whereby ATOs may only be sold by an exemption are essentially the same as fungible class of agreements that are Agricultural Trade Option Merchant those of the § 32.13(g) exemption with standardized as to their material (‘‘ATOM’’), who must first register with one significant difference. Under § 32.4, economic terms; (3) the the Commission as such pursuant to the option must be offered to a creditworthiness of any party having an CFTC rule 3.13. Since its 1998 adoption producer, processor, or commercial user actual or potential obligation under the and one amendment in 1999,20 the of, or a merchant handling, the swap agreement must be a material ATOM registration scheme has attracted commodity, who enters into the consideration in entering into or only one registrant, which registrant has commodity option transaction solely for determining the terms of the swap since withdrawn its ATOM registration. purposes related to its business as such. agreement, including pricing, cost, or Accordingly, ATOs currently may only However, § 32.4 does not include any credit enhancement terms; and (4) the be transacted pursuant to an exemptive net worth requirement. swap agreement is not entered into and provision found at § 32.13(g)(1). The Because the term ‘‘agricultural traded on or through a multilateral commodity’’ in the Act refers to more transaction execution facility.16 exemption at § 32.13(g)(1) allows ATOs than just the enumerated commodities, After the CFMA amendments to the to be sold when: (1) The option is the Commission recognizes that certain CEA, which excluded swaps on options authorized under § 32.4 (e.g. ‘‘exempt’’ and ‘‘excluded’’ commodities Exchange Act, Permitting Certain Customer Positions in the Foregoing Swaps and Associated options on coffee, sugar, cocoa, and from virtually all of the Commission’s Property To Be Commingled With Other Property other agricultural products that do not jurisdiction, Part 35 remained relevant Held in Segregated Accounts, 73 FR 77015 (Dec. 18, appear in the enumerated commodity only for agricultural swaps. With the 2008); list) would also fall under the Dodd- exception of three outstanding § 4(c) Order (1) Pursuant to Section 4(c) of the Commodity Exchange Act, Permitting the Chicago Frank Act’s general prohibition of exemptions related to cleared Mercantile Exchange to Clear Certain Over-the- agricultural swaps (see discussion agricultural basis and calendar swaps,17 Counter Agricultural Swaps and (2) Pursuant to below of the Dodd-Frank rules for Section 4d of the Commodity Exchange Act, agricultural swaps and their implication 15 See 58 FR 5587 (Jan. 22, 1993). Note that Permitting Customer Positions in Such Cleared- because Part 35 was implemented pursuant to a Only Contracts and Associated Funds To Be for the existing agricultural swaps § 4(c) exemption, agricultural swaps that rely on Commingled With Other Positions and Funds Held markets, including OTC options on Part 35 for their legal authority will continue to be in Customer Segregated Accounts, 74 FR 12316 agricultural commodities). permitted under the Dodd-Frank language whereby (March 24, 2009); and existing agricultural swaps provisions adopted Order (1) Pursuant to Section 4(c) of the C. Dodd-Frank Provisions pursuant to § 4(c), including Part 35, are Commodity Exchange Act, Permitting the Kansas grandfathered. This is discussed more fully at City Board of Trade Clearing Corporation To Clear Non-Agricultural Swaps section C, below. Over-the-Counter Wheat Calendar Swaps and (2) 16 See id. at 5590–5591; see also 17 C.F.R. Pursuant to Section 4d of the Commodity Exchange Under the CEA, as amended by the § 35.2(a)–(d). Act, Permitting Customer Positions in Such Dodd-Frank Act, only eligible contract 17 Part 35, at § 35.2(d), also provides that ‘‘any Cleared-Only Swaps and Associated Funds To Be participants (‘‘ECPs’’) 21 may enter into a person may apply to the Commission for exemption Commingled With Other Positions and Funds Held swap, unless such swap is entered into from any of the provisions of the Act (except in Customer Segregated Accounts, 75 FR 34983 (June 21, 2010). on a designated contract market 2(a)(1)(B) [liability of principal for act of agent]) for 22 other arrangements or facilities, on such terms and 18 See Commission regulation 32.11, 17 CFR (‘‘DCM’’), in which case any person 23 conditions as the Commission deems appropriate, 32.11. may enter into the swap. including but not limited to, the applicability of 19 Note that Part 32 was not issued under the New CEA § 2(h), as added by other regulatory regimes.’’ See 17 CFR 35.2(d). The Commission’s § 4(c) exemptive authority. After the § 723(a)(3) of the Dodd-Frank Act, Commission has granted three such exemptions, effective date of the Dodd-Frank Act, options on establishes a clearing requirement for which have in each instance been styled as § 4(c) agricultural commodities will also fall under the exemptive orders. See: Dodd-Frank Act’s provisions governing the trading Order: (1) Pursuant to Section 4(c) of the of swaps (and, specifically, agricultural swaps) 21 ‘‘Eligible contract participant’’ is defined in Commodity Exchange Act (a) Permitting Eligible since options on commodities fall within the Act’s current CEA § 1a(12). Generally speaking, an Swap Participants To Submit for Clearing and ICE definition of a swap. Accordingly, it is important eligible contract participant is considered to be a Clear U.S., Inc. and Futures Commission Merchants to identify what options on agricultural sophisticated investor. To Clear Certain Over-The-Counter Agricultural commodities are currently being traded pursuant to 22 A designated contract market is a board of trade Swaps and (b) Determining Certain Floor Brokers part 32. designated as a contract market under CEA § 5. and Traders To Be Eligible Swap Participants; and 20 63 FR 18821 (April 16, 1998); and 64 FR 68011 23 See new CEA § 2(e) as added by § 723(a)(2) of (2) Pursuant to Section 4d of the Commodity (December 6, 1999), respectively. the Dodd-Frank Act.

VerDate Mar<15>2010 15:21 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 E:\FR\FM\28SEP1.SGM 28SEP1 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59669

swaps. Under that subsection, the § 4(c); and (3) any agreement, contract, Commission to impose such terms and Commission would determine, based on or transaction affected by the exemption conditions as it deems appropriate in factors listed in the statute, whether a would not have a material adverse effect order for a person to enter into or swap, or a group, category, type, or class on the ability of the Commission or any execute an agricultural swap. The of swaps, should be required to be contract market to discharge its Commission is requesting input on the cleared. A swap entered into by a regulatory or self-regulatory duties following questions: commercial end user 24 is not subject to under the CEA. the mandatory clearing requirement; Section 723(c)(3) includes a Current Agricultural Swaps Business however an end user may opt to submit ‘‘grandfather’’ clause that provides that 1. How big is the current agricultural the swap for clearing. A swap that is any rule, regulation, or order regarding swaps business—including both required to be cleared must be executed agricultural swaps that was issued agricultural swaps trading under current on a DCM or a swap execution facility pursuant to § 4(c), and that was in effect part 35 and ATOs under §§ 32.4 and (‘‘SEF’’),25 if a DCM or SEF makes the on the date of enactment of the Dodd- 32.13(g) of the Commission’s swap available for trading. Swaps that Frank Act, would continue to be regulations? are not required to be cleared may be permitted. Such rules, regulations or 2. What types of entities are executed bilaterally OTC. orders would include Part 35 with participating in the current agricultural Section 731 of the Dodd-Frank Act respect to agricultural swaps and the swaps business? adds a new § 4s to the CEA that agricultural basis and calendar swaps 3. Are agricultural swaps/ATO provides for the registration and noted above, but would not include participants significantly different than regulation of swap dealers and major options entered into pursuant to Part 32. the types of entities participating in swap participants.26 The new D. Agricultural Commodities Definition other physical commodity swaps/trade requirements for swap dealers and options? major swap participants include, in As noted above, § 723(c)(3) of the Agricultural Swaps Clearing part, capital and margin requirements, Dodd-Frank Act applies to any swap in business conduct standards, and an agricultural commodity ‘‘as defined 4. What percentage of existing reporting, recordkeeping, and by the Commodity Futures Trading agricultural swaps trading is cleared vs. documentation requirements. Commission.’’ The Commission plans to non-cleared? Section 737 of the Dodd-Frank Act publish a proposed definition of the 5. What percentage of existing amends current CEA § 4a regarding term ‘‘agricultural commodity’’ in the agricultural swaps would be eligible for position limits. Under the Dodd-Frank near future. That proposed definition the commercial end-user exemption provisions, the Commission must adopt will cover all such commodities that from the mandatory clearing position limits for futures, exchange- are, or could in the future be, traded requirement? traded options, and swaps that are pursuant to a swap or futures contract. 6. What percentage of trading would economically equivalent to futures and However, for purposes of commenting be subject to the Dodd-Frank clearing exchange-traded options within 180 on this ANPRM, commenters may requirement, if that requirement applied days of the date of enactment of the assume that ‘‘agricultural commodity’’ automatically to agricultural swaps Dodd-Frank Act for exempt includes the following commodities that (other than those eligible for the commodities and within 270 days of the are currently the subject of derivatives commercial end-user exemption)? date of enactment of the Dodd-Frank trading, whether listed for trading on a 7. What would be the practical and Act for agricultural commodities. futures exchange or traded bilaterally economic effect of a rule requiring OTC: (1) The enumerated commodities agricultural swaps transactions (other Agricultural Swaps that are listed in current § 1a(4) of the than those eligible for the commercial Under § 723(c)(3) of the Dodd-Frank CEA (e.g., corn, wheat, soybeans, end-user exemption) generally to be Act, swaps in an ‘‘agricultural livestock, cotton); (2) the international cleared? The Commission is interested commodity’’ (as defined by the ‘‘soft commodities’’ (e.g., coffee, sugar, in the views of agricultural swaps Commission) are prohibited unless the cocoa); (3) lumber, plywood and similar market participants (both users and swap is entered into pursuant to an wood-derived commodities; (4) swap dealers) regarding a potential exemption granted under CEA § 4(c). contracts based on underlying clearing requirement for agricultural Generally speaking, § 4(c) provides that, commodities listed in (1)–(3) (e.g., corn swaps. in order to grant an exemption, the and wheat basis swaps and calendar 8. What would be the practical and Commission must determine that: swaps); and (5) other commodities economic effect of requiring agricultural (1) The exemption would be consistent derived from living organisms, swaps to be cleared under the Dodd- with the public interest and the including plant, animal or aquatic life, Frank clearing regime? purposes of the CEA; (2) any agreement, that are used for human food, animal Trading contract, or transaction affected by the feed or fiber, and that currently are the exemption would be entered into by subject of derivatives trading. To the 9. Have current agricultural swaps/ ‘‘appropriate persons’’ as defined in extent that any commenter is aware of ATO participants experienced any any agricultural commodity that is not significant trading problems, including: 24 Generally, a commercial end user is described currently the subject of derivatives (a) economic problems (i.e., contracts in new CEA § 2(h)(7) as a non-financial entity that trading, but which they anticipate may not providing an effective hedging is using swaps to hedge or mitigate commercial risk mechanism, or otherwise not and that notifies the Commission as to how it be so traded in the future, and which generally meets its financial obligations associated might be affected by potential rules performing as expected); (b) fraud or with entering into non-cleared swaps. governing the trading of agricultural other types of abuse; or (c) difficulty 25 The requirements for SEFs are set forth in new swaps, the Commission would welcome gaining access to the agricultural swaps CEA § 5h. comments regarding such commodity. market? 26 ‘‘Swap dealer’’ is defined in new CEA § 1a(49), as added by § 721(a)(21) of the Dodd-Frank Act. Part II—Questions for Comment Agricultural Swaps Purchasers ‘‘Major swap participant’’ is defined in new CEA § 1a(33), as added by § 721(a)(16) of the Dodd-Frank Section 723(c)(3) of the Dodd-Frank 10. Do agricultural swaps/ATO Act. Act and CEA § 4(c) authorize the purchasers need more protections than

VerDate Mar<15>2010 15:21 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 E:\FR\FM\28SEP1.SGM 28SEP1 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS 59670 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

participants in other physical DEPARTMENT OF HEALTH AND Written Submissions commodity swaps/trade options? HUMAN SERVICES Submit written submissions in the 11. If so, why, and what should those following ways: protections be? Food and Drug Administration • FAX: 301–827–6870. • 12. Would additional protections for Mail/Hand delivery/Courier [For agricultural swaps purchasers unduly 21 CFR Part 866 paper, disk, or CD–ROM submissions]: restrict their risk management [Docket No. FDA–2010–N–0429] Division of Dockets Management (HFA– opportunities? 305), Food and Drug Administration, 13. Should the Commission consider Immunology and Microbiology 5630 Fishers Lane, rm. 1061, Rockville, rules to make it easier for agricultural Devices; Reclassification of the Herpes MD 20852. producers to participate in agricultural Simplex Virus Serological Assay To ensure more timely processing of swaps—for example, by allowing Device comments, FDA is no longer accepting comments submitted to the agency by producers who do not qualify as ECPs AGENCY: Food and Drug Administration, to purchase agricultural swaps? email. FDA encourages you to continue HHS. to submit electronic comments by using Designated Contract Markets ACTION: Proposed rule. the Federal eRulemaking Portal, as ADDRESSES 14. Should agricultural swaps SUMMARY: The Food and Drug described previously, in the transactions be permitted to trade on Administration (FDA) is proposing to portion of this document under DCMs to the same extent as all other amend the special controls for the Electronic Submissions. swaps are permitted on DCMs? herpes simplex virus (HSV) serological Instructions: All submissions received must include the agency name and 15. If yes, why? assay device type, which is classified as class II (special controls). These device Docket No(s). and Regulatory 16. If no, what other requirements, Information Number (RIN) (if a RIN conditions or limitations should apply? types are devices that consist of antigens and antisera used in various serological number has been assigned) for this Swap Execution Facilities tests to identify antibodies to herpes rulemaking. All comments received may simplex virus in serum, and the devices be posted without change to http:// 17. Should agricultural swaps www.regulations.gov, including any transactions be permitted on SEFs to the that consist of herpes simplex virus antisera conjugated with a fluorescent personal information provided. For same extent as all other swaps are additional information on submitting permitted to transact on SEFs? dye (immunofluorescent assays) used to identify herpes simplex virus directly comments, see the ‘‘Comments’’ heading 18. If yes, why? from clinical specimens or tissue of the SUPPLEMENTARY INFORMATION 19. If no, what other requirements, culture isolates derived from clinical section of this document. conditions or limitations should apply? specimens. Elsewhere in this issue of Docket: For access to the docket to Trading Outside of DCMs and SEFs the Federal Register, FDA is read background documents or announcing the availability of the comments received, go to http:// 20. Should agricultural swaps be revised draft guidance document www.regulations.gov and insert the permitted to trade outside of a DCM or entitled ‘‘Class II Special Controls docket number(s), found in brackets in SEF to the same extent as all other Guidance Document: Herpes Simplex the heading of this document, into the swaps? Virus Types 1 and 2 Serological Assays’’ ‘‘Search’’ box and follow the prompts 21. If yes, why? that would serve as the special control and/or go to the Division of Dockets 22. If no, what other requirements, for the device, if FDA amends the Management, 5630 Fishers Lane, rm. conditions or limitations should apply? special controls. Because FDA is 1061, Rockville, MD 20852. 23. Should agricultural swaps be proposing to amend the special control FOR FURTHER INFORMATION CONTACT: Haja permitted to trade outside of a DCM or for this device type, the agency is Sittana El Mubarak, Center for Devices SEF to a different extent than other publishing the proposed rule that and Radiological Health, Bldg. 66, rm. swaps due to the nature of the products designates the revised guidance 5519, Food and Drug Administration, and/or participants in the agricultural document as the special control for HSV 10903 New Hampshire Ave., Silver swaps market? serological devices. Spring, MD 20993–0002, 301–796–6193. 24. In general, should agricultural DATES: Submit written or electronic SUPPLEMENTARY INFORMATION: swaps be treated like all other physical comments on the proposed rule by I. Regulatory Authorities commodity swaps under Dodd-Frank? November 29, 2010. 25. If yes, why? ADDRESSES: You may submit comments, The act (21 U.S.C. 301 et seq.), as 26. If no, are there any additional identified by Docket No. FDA–2010–N– amended by the Medical Device requirements, conditions or limitations 0429, by any of the following methods, Amendments of 1976 (the 1976 not already discussed in other answers except that comments on information amendments) (Public Law 94–295), Safe that should apply? collection issues under the Paperwork Medical Devices Act (SMDA) (Public 27. If agricultural swaps are generally Reduction Act of 1995 must be Law 101–629), Food and Drug treated like swaps in other physical submitted to the Office of Regulatory Administration Modernization Act commodities, are there specific Affairs, Office of Management and (FDAMA) (Public Law 105–115), and agricultural commodities that would Budget (OMB) (see the ‘‘Paperwork the Medical Device User Fee and require special or different protections? Reduction Act of 1995’’ section of this Modernization Act (MDUFMA) (Public document). Law 107–250), established a Issued in Washington, DC, on September Electronic Submissions comprehensive system for the regulation 21, 2010, by the Commission. Submit electronic comments in the of medical devices intended for human David A. Stawick, following way: use. Section 513 of the Federal Food, Secretary of the Commission. • Federal eRulemaking Portal: http:// Drug, and Cosmetic Act (the FD&C Act) [FR Doc. 2010–24198 Filed 9–27–10; 8:45 am] www.regulations.gov. Follow the (21 U.S.C. 360c) established three BILLING CODE 6351–01–P instructions for submitting comments. categories (classes) of devices, defined

VerDate Mar<15>2010 15:21 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 E:\FR\FM\28SEP1.SGM 28SEP1 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59671

by the regulatory controls needed to recommendations, and any other would use as the special control for this provide reasonable assurance of their appropriate actions the Agency deems device. safety and effectiveness. The three necessary (section 513(a)(1)(B) of the The revised draft class II special categories of devices are class I (general FD&C Act). controls guidance document sets forth controls), class II (special controls), and the information FDA believes should be II. Regulatory Background of the Device class III (premarket approval). included in premarket notification Under section 513 of the FD&C Act, In the Federal Register of April 3, submissions (510(k)s) for HSV 1 and 2 FDA refers to devices that were in 2007 (72 FR 15830), FDA published a serological assays. FDA believes that commercial distribution before May 28, final rule to reclassify HSV 1 and 2 addressing these risks to health in a 1976 (the date of enactment of the 1976 serological assays into class II. These 510(k) in the manner identified in the amendments), as preamendments assays are used as an aid in the clinical revised class II special controls devices. FDA classifies these devices laboratory diagnosis of diseases caused guidance document, or in an acceptable after it takes the following steps: (1) by HSV 1 and 2. FDA identified the alternative manner, is necessary to Receives a recommendation from a guidance document entitled ‘‘Class II provide reasonable assurance of the device classification panel (an FDA Special Controls Guidance Document: safety and effectiveness of the device. advisory committee); (2) publishes the Herpes Simplex Virus Types 1 and 2 panel’s recommendation for comment, Serological Assays’’ as the special V. FDA’s Findings along with a proposed regulation control. As discussed previously in this classifying the device; and (3) publishes III. Summary of the Reasons for document, FDA believes HSV 1 and 2 a final regulation classifying the device. Revising Special Controls serological assays should be classified FDA has classified most into class II because special controls, in preamendments devices under these FDA believes that the special controls addition to general controls, provide procedures. for HSV 1 and 2 serological assays reasonable assurance of the safety and Devices that were not in commercial should be revised because the new effectiveness of the device and because distribution before May 28, 1976, special controls, in addition to general there is sufficient information to generally referred to as postamendments controls, would provide reasonable establish special controls to provide devices are classified automatically by assurance of the safety and effectiveness such assurance. FDA, therefore, is statute (section 513(f) of the FD&C Act) of the device. FDA believes there is proposing to establish the revised draft into class III without any FDA sufficient additional safety and efficacy class II special controls guidance rulemaking process. Those devices profile information to justify revising document as a special control for the remain in class III until FDA does the the special controls to better provide device. following: (1) Reclassifies the device such assurance. We have revised the Section 510(m) of the FD&C Act into class I or II; (2) issues an order existing guidance by rewriting the provides that a class II device may be classifying the device into class I or II method comparison section and the exempt from the premarket notification in accordance with section 513(f)(2) of sample selection inclusion and requirements under section 510(k) of the the FD&C Act; or (3) issues an order exclusion criteria section. The revisions FD&C Act, if the Agency determines that finding the device to be substantially defined and differentiated the required premarket notification is not necessary equivalent, in accordance with section studies and the study populations for to provide reasonable assurance of the 513(i) of the FD&C Act, to a legally the assessment of the safety and safety and effectiveness of the device. marketed device that has been classified effectiveness of the different types of For this device, FDA believes that into class I or class II. The Agency HSV 1 and HSV 2 serological assays. premarket notification is necessary to determines whether new devices are Additionally, we made several provide reasonable assurance of safety substantially equivalent to previously corrections and clarifications and effectiveness and, therefore, does marketed devices by means of throughout the document to ensure not intend to exempt the device from premarket notification procedures in accuracy, consistency, and ease of the premarket notification requirements. section 510(k) of the FD&C Act (21 reading. U.S.C. 360(k)) and 21 CFR part 807 of VI. Effective Date IV. Special Controls the regulations. FDA proposes that any final Under the 1976 amendments, class II In addition to general controls, FDA regulation based on this proposal devices were defined as devices for believes that the revised draft guidance become effective 30 days after its date which there was insufficient document entitled ‘‘Class II Special of publication in the Federal Register. information to show that general Controls Guidance Document: Herpes controls themselves would provide Simplex Virus Types 1 and 2 VII. Environmental Impact reasonable assurance of safety and Serological Assays’’ (the class II special The agency has determined under 21 effectiveness, but for which there was controls guidance document) is a CFR 25.34(b) that this proposed sufficient information to establish special control that is adequate to reclassification action is of a type that performance standards to provide such address the risks to health associated does not individually or cumulatively assurance. SMDA broadened the with the use of the device. FDA believes have a significant effect on the human definition of class II devices to mean that the revised class II special controls environment. Therefore, neither an those devices for which the general guidance document, which incorporates environmental assessment nor an controls by themselves are insufficient voluntary consensus standards and environmental impact statement is to provide reasonable assurance of describes labeling recommendations, in required. safety and effectiveness, but for which addition to general controls, provides there is sufficient information to reasonable assurance of the safety and VIII. Analysis of Impacts establish special controls to provide effectiveness of the device. Elsewhere in FDA has examined the impacts of the such assurance, including performance this issue of the Federal Register, FDA proposed rule under Executive Order standards, postmarket surveillance, is publishing a notice of availability of 12866 and the Regulatory Flexibility Act patient registries, development and the revised draft class II special controls (5 U.S.C. 601–612), and the Unfunded dissemination of guidelines, guidance document that the Agency Mandates Reform Act of 1995 (Public

VerDate Mar<15>2010 15:21 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 E:\FR\FM\28SEP1.SGM 28SEP1 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS 59672 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

Law 104–4). Executive Order 12866 preemption provision that preempts PART 866—IMMUNOLOGY AND directs agencies to assess all costs and certain state requirements ‘‘different MICROBIOLOGY DEVICES benefits of available regulatory from or in addition to’’ certain Federal alternatives and, when regulation is requirements applicable to devices. (See 1. The authority citation for 21 CFR part 866 continues to read as follows: necessary, to select regulatory section 521 of the FD&C Act (21 U.S.C. approaches that maximize net benefits 360k); Medtronic v. Lohr 518 U.S. 470 Authority: 21 U.S.C. 351, 360, 360c, 360e, (including potential economic, (1996); and Riegel v. Medtronic, 128 S. 360j, 371. environmental, public health and safety, Ct. 999 (2008)). If this proposed rule is 2. Revise § 866.3305 to read as and other advantages; distributive made final, the special controls follows: impacts; and equity). The Agency established by the final rule would believes that this proposed rule is not a § 866.3305 Herpes simplex virus create ‘‘requirements’’ for specific serological assays. significant regulatory action as defined medical devices under 21 U.S.C. 360k, by the Executive order. (a) Identification. Herpes simplex The Regulatory Flexibility Act even though product sponsors have virus serological assays are devices that requires agencies to analyze regulatory some flexibility in how they meet those consist of antigens and antisera used in options that would minimize any requirements (see Papike v. Tambrands, various serological tests to identify significant impact of a rule on small Inc., 107 F.3d 737, 740–742 (9th Cir. antibodies to herpes simplex virus in entities. Because the changes to the 1997)). serum. Additionally, some of the assays consist of herpes simplex virus antisera guidance are minimal, the Agency X. Paperwork Reduction Act of 1995 proposes to certify that the final rule conjugated with a fluorescent dye will not have a significant economic FDA tentatively concludes that this (immunofluorescent assays) used to impact on a substantial number of small proposed rule contains no new identify herpes simplex virus directly entities. collections of information. Therefore, from clinical specimens or tissue Section 202(a) of the Unfunded clearance by OMB under the Paperwork culture isolates derived from clinical Mandates Reform Act of 1995 requires Reduction Act of 1995 (the PRA) (44 specimens. The identification aids in that agencies prepare a written U.S.C. 3501–3520) is not required. the diagnosis of diseases caused by statement, which includes an herpes simplex viruses and provides assessment of anticipated costs and This proposed rule designates a epidemiological information on these benefits, before proposing ‘‘any rule that revised guidance document as a special diseases. Herpes simplex viral includes any Federal mandate that may control. FDA also tentatively concludes infections range from common and mild result in the expenditure by State, local, that the revised draft special control lesions of the skin and mucous and tribal governments, in the aggregate, guidance document does not contain membranes to a severe form of or by the private sector, of $100,000,000 new information collection provisions encephalitis (inflammation of the brain). or more (adjusted annually for inflation) that are subject to review and clearance Neonatal herpes virus infections range in any one year.’’ The current threshold by OMB under the PRA. Elsewhere in from a mild infection to a severe after adjustment for inflation is $135 this issue of the Federal Register, FDA generalized disease with a fatal million, using the most current (2009) is publishing a notice announcing the outcome. Implicit Price Deflator for the Gross availability of that revised draft Domestic Product. FDA does not expect guidance document entitled ‘‘Class II (b) Classification. Class II (special this proposed rule to result in any 1- Special Controls Guidance Document: controls). The device is classified as year expenditure that would meet or Herpes Simplex Virus Types 1 and 2 class II (special controls). The special exceed this amount. Serological Assays,’’ which contains an control for the device is FDA’s revised The changes to the guidance include analysis of the paperwork burden for the guidance document entitled ‘‘Class II adding specific recommendations on draft guidance. Special Controls Guidance Document: appropriate comparators for tests for Herpes Simplex Virus Types 1 and 2 antibodies and antigens, as well as XI. Comments Serological Assays.’’ For availability of recommendations for sample selection the revised guidance document, see Interested persons may submit to the inclusion and exclusion criteria to § 866.1(e). define the target populations for HSV 1 Division of Dockets Management (see Dated: September 16, 2010. and HSV 2 serological assays. These ADDRESSES) either electronic or written recommended changes would increase comments regarding this document. It is Leslie Kux, the usefulness of the guidance while only necessary to send one set of Acting Assistant Commissioner for Policy. imposing a minimal burden. comments. It is no longer necessary to [FR Doc. 2010–23639 Filed 9–27–10; 8:45 am] send two copies of mailed comments. BILLING CODE 4160–01–S IX. Federalism Identify comments with the docket FDA has analyzed this proposed rule number found in brackets in the in accordance with the principles set heading of this document. Received forth in Executive Order 13132. Section comments may be seen in the Division DEPARTMENT OF THE INTERIOR 4(a) of the Executive order requires of Dockets Management between 9 a.m. Bureau of Indian Affairs agencies to ‘‘construe * * * a Federal and 4 p.m., Monday through Friday. statute to preempt State law only where the statute contains an express List of Subjects in 21 CFR Part 866 25 CFR Chapter I preemption provision or there is some Medical devices. No Child Left Behind School Facilities other clear evidence that the Congress and Construction Negotiated Therefore, under the Federal Food, intended preemption of State law, or Rulemaking Committee—Notice of Drug, and Cosmetic Act and under where the exercise of State authority Meeting conflicts with the exercise of Federal authority delegated to the Commissioner authority under the Federal statute.’’ of Food and Drugs, it is proposed that AGENCY: Bureau of Indian Affairs, Federal law includes an express 21 CFR part 866 be amended as follows: Interior.

VerDate Mar<15>2010 15:21 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 E:\FR\FM\28SEP1.SGM 28SEP1 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59673

ACTION: Negotiated Rulemaking FOR FURTHER INFORMATION CONTACT sessions will be from 12 p.m. to 4 p.m. Committee meeting. section above. All meetings are open to and 6 p.m. to 10 p.m. local time and the public; however, transportation, continue until everyone has had a SUMMARY: In accordance with the lodging, and meals are the responsibility chance to speak. Note that the times Federal Advisory Committee Act, the of the participating public. have changed from those indicated in Bureau of Indian Affairs is announcing the proposed rule. that the No Child Left Behind School Dated: September 20, 2010. ADDRESSES: Facilities and Construction Negotiated Larry Echo Hawk, NHTSA and EPA will Rulemaking Committee will hold its Assistant Secretary—Indian Affairs. jointly hold two public hearings at the following locations: Wyndham Hotel, fourth meeting in Bloomington, [FR Doc. 2010–24107 Filed 9–27–10; 8:45 am] 633 North St. Clair St., Chicago, Illinois Minnesota. The purpose of the meeting BILLING CODE 4310–W7–P is to continue working on reports and 60611 on Thursday, October 14, 2010; recommendations to Congress and the and Sheraton Los Angeles Downtown Hotel, 711 South Hope Street, Los Secretary as required under the No ENVIRONMENTAL PROTECTION Child Left Behind Act of 2001. Angeles, California 90017 on Thursday, AGENCY October 21, 2010. DATES: The Committee’s fourth meeting will begin at 8 a.m. on October 12, 2010, 40 CFR Parts 85, 86, and 600 FOR FURTHER INFORMATION CONTACT: and end at 12:30 p.m. on October 15, EPA: Lucie Audette, Office of 2010. DEPARTMENT OF TRANSPORTATION Transportation and Air Quality, Assessment and Standards Division, ADDRESSES: The meeting will be held at Environmental Protection Agency, 2000 the Ramada Mall of America Hotel, 2300 National Highway Traffic Safety Administration Traverwood Drive, Ann Arbor, MI East American Boulevard, Bloomington, 48105; telephone number: 734–214– Minnesota 55425. 49 CFR Part 575 4850; fax number: 734–214–4816; e-mail FOR FURTHER INFORMATION CONTACT: The address: [email protected], or Designated Federal Official, Michele F. [EPA–HQ–OAR–2009–0865; FRL–9208–1; Assessment and Standards Division Singer, Director, Office of Regulatory NHTSA–2010–0087] Hotline; telephone number (734) 214– Affairs and Collaborative Action, Office RIN 2060–AQ09; RIN 2127–AK73 4636; e-mail address: [email protected]. of the Assistant Secretary—Indian NHTSA: Gregory Powell, National Affairs, 1001 Indian School Road, NW., Public Hearing Locations for the Highway Traffic Safety Administration, Suite 312, Albuquerque, NM 87104; Proposed Fuel Economy Labels 1200 New Jersey Avenue, SE., telephone (505) 563–3805; fax (505) Washington, DC 20590. Telephone: 563–3811. AGENCY: Environmental Protection (202) 366–5206; Fax: (202) 493–2990; e- SUPPLEMENTARY INFORMATION: The No Agency (EPA). mail address: [email protected]. Child Left Behind School Facilities and ACTION: Notice of public hearings. SUPPLEMENTARY INFORMATION: The Construction Negotiated Rulemaking purpose of the public hearings is to SUMMARY: Committee was established to prepare EPA and NHTSA are obtain public testimony or comment on and submit to the Secretary a catalog of announcing the location addresses for the Agency’s proposed revisions and the conditions at Bureau-funded the public hearings to be held for additions to the motor vehicle fuel schools, and to prepare reports covering: ‘‘Revisions and Additions to Motor economy label.1 If you would like to The school replacement and new Vehicle Fuel Economy Label,’’ present testimony at the public construction needs at Bureau-funded published in the Federal Register on hearings, we ask that you notify the EPA school facilities; a formula for the September 23, 2010. The goal of a and NHTSA contact persons listed equitable distribution of funds to revised label will be to provide under FOR FURTHER INFORMATION address those needs; a list of major and consumers with simple, straightforward CONTACT at least ten days before the minor renovation needs at those comparisons across all vehicles types, hearing. Once EPA and NHTSA learn facilities; and a formula for equitable including electric vehicles (EV), plug-in how many people have registered to distribution of funds to address those hybrid electric vehicles (PHEV), and speak at the public hearing, we will needs. The reports are to be submitted conventional gasoline and diesel allocate an appropriate amount of time to Congress and to the Secretary. The vehicles. NHTSA and EPA are to each participant, allowing time for Committee also expects to draft proposing these changes in compliance necessary breaks throughout the proposed regulations covering with the Energy Independence and hearing. For planning purposes, each construction standards for heating, Security Act (EISA) of 2007, which speaker should anticipate speaking for lighting, and cooling in home-living imposes several new labeling approximately ten minutes, although we (dormitory) situations. requirements. Also, the agencies believe may need to adjust the time for each The following items will be on the that the current labels can be improved speaker if there is a large turnout. We agenda: to help consumers make more informed • suggest that you bring copies of your Review and approve July 2010 vehicle purchase decisions and to statement or other material for the EPA meeting summary; address the entrance of advanced • and NHTSA panels and the audience. It General update from September technology vehicles into the U.S. would also be helpful if you send us a group meeting and progress made; market. The new labels are proposed to • Discussion of workgroup drafts, copy of your statement or other be displayed on new vehicles beginning including a section-by-section analysis materials before the hearing. To with the 2012 model year. and organization of content; accommodate as many speakers as • Drafting of full report; DATES: NHTSA and EPA will jointly possible, we prefer that speakers not use • Planning for January 2011 meeting; hold two public hearings on the technological aids (e.g., audio-visuals, and following dates: Thursday, October 14, computer slideshows). However, if you • Public comments. 2010, in Chicago, Illinois, and Written comments may be sent to the Thursday, October 21, 2010, in Los 1 FR–9197–3; EPA–HQ–OAR–2009–0865; Designated Federal Official listed in the Angeles, California. The hearing NHTSA–2010–0087.

VerDate Mar<15>2010 15:21 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 E:\FR\FM\28SEP1.SGM 28SEP1 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS 59674 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

plan to do so, you must notify the 14, 2010, 9 a.m. to 4:30 p.m.; and opportunity to provide comments at the contact persons in the FOR FURTHER October 15, 2010, 9 a.m. to 12 p.m. Friday morning meeting. INFORMATION CONTACT section above. ADDRESSES: Meetings will be held at the Dated: September 21, 2010. You also must make arrangements to Legacy Hotel and Meeting Centre, Sahira Rafiullah, provide your presentation or any other Georgetown Room, 1775 Rockville Pike, Director, Division of Policy and Information aids to NHTSA and EPA in advance of Rockville, Maryland 20852, (301) 881– Coordination. the hearing in order to facilitate set-up. 2300. In addition, we will reserve a block of [FR Doc. 2010–24207 Filed 9–27–10; 8:45 am] time for anyone else in the audience FOR FURTHER INFORMATION CONTACT: For BILLING CODE 4165–15–P who wants to give testimony. more information, please contact Nicole The hearing will be held at a site Patterson, Office of Shortage accessible to individuals with Designation, Bureau of Health DEPARTMENT OF TRANSPORTATION disabilities. Individuals who require Professions, Health Resources and National Highway Traffic Safety accommodations such as sign language Services Administration, Room 9A–18, Administration interpreters should contact the persons Parklawn Building, 5600 Fishers Lane, listed under FOR FURTHER INFORMATION Rockville, Maryland 20857, Telephone 49 CFR Part 595 CONTACT section above no later than ten (301) 443–9027, E-mail: days before the date of the hearing. [email protected] or visit http:// [Docket No. NHTSA–2010–0133] NHTSA and EPA will conduct the bhpr.hrsa.gov/shortage/. RIN 2127–AK77 hearing informally, and technical rules SUPPLEMENTARY INFORMATION: Status: of evidence will not apply. We will The meeting will be open to the public. Make Inoperative Exemptions; Vehicle arrange for a written transcript of the Purpose: The purpose of the Modifications To Accommodate People hearing and keep the official record of Negotiated Rulemaking Committee on With Disabilities, Side Impact the hearing open for 30 days to allow Designation of Medically Underserved Protection you to submit supplementary Populations and Health Professional information. You may make Shortage Areas is to establish a AGENCY: National Highway Traffic arrangements for copies of the transcript comprehensive methodology and Safety Administration (NHTSA), directly with the court reporter. criteria for Designation of Medically Department of Transportation (DOT). Dated: September 24, 2010. Underserved Populations and Primary ACTION: Notice of proposed rulemaking Lori Stewart, Care Health Professional Shortage (NPRM). Acting Director, Office of Transportation and Areas, using a Negotiated Rulemaking (NR) process. It is hoped that use of the SUMMARY: This NPRM proposes to Air Quality, Environmental Protection amend our regulations to correct and Agency. NR process will yield a consensus among technical experts and expand a reference in an exemption Dated: September 23, 2010. relating to the Federal motor vehicle Joseph S. Carra, stakeholders on a new rule, which will then be published as an Interim Final safety standard for side impact Acting Associate Administrator, Office of protection. The expanded exemption Rulemaking, National Highway Traffic Safety Rule in accordance with Section 5602 of Public Law 111–148, the Patient would facilitate the mobility of Administration, Department of physically disabled drivers and Transportation. Protection and Affordable Care Act of 2010. passengers. This document responds to [FR Doc. 2010–24409 Filed 9–27–10; 8:45 am] a petition from Bruno Independent BILLING CODE 6560–50–P Agenda: The meeting will be held on Wednesday, October 13, Thursday, Living Aids. October 14 and Friday, October 15. It DATES: You should submit your will include a discussion of the various comments early enough to ensure that DEPARTMENT OF HEALTH AND components of a possible methodology the Docket receives them not later than HUMAN SERVICES for identifying areas of shortage and October 28, 2010. underservice, based on the ADDRESSES: 42 CFR Part 5 You may submit comments recommendations of the Committee in to the docket number identified in the Negotiated Rulemaking Committee on the previous meeting. The Friday heading of this document by any of the Designation of Medically Underserved morning meeting will include following methods: • Populations and Health Professional development of the agenda for the next Federal eRulemaking Portal: Go to Shortage Areas; Notice of Meeting meeting, as well as an opportunity for http://www.regulations.gov. Follow the public comment. online instructions for submitting AGENCY: Health Resources and Services Requests from the public to make oral comments. Administration, HHS. comments or to provide written • Mail: Docket Management Facility: ACTION: Negotiated Rulemaking comments to the Committee should be U.S. Department of Transportation, 1200 Committee meeting. sent to Nicole Patterson at the contact New Jersey Avenue, SE., West Building address above at least 10 days prior to Ground Floor, Room W12–140, SUMMARY: In accordance with section the meeting. The meetings will be open Washington, DC 20590–0001. 10(a)(2) of the Federal Advisory to the public as indicated above, with • Hand Delivery or Courier: 1200 Committee Act (Pub. L. 92–463), notice attendance limited to space available. New Jersey Avenue, SE., West Building is hereby given of the following meeting Individuals who plan to attend and Ground Floor, Room W12–140, between of the Negotiated Rulemaking need special assistance, such as sign 9 a.m. and 5 p.m. ET, Monday through Committee on Designation of Medically language interpretation or other Friday, except Federal holidays. Underserved Populations and Health reasonable accommodations, should • Fax: 202–493–2251. Professional Shortage Areas. notify the Contact Person listed above at Instructions: For detailed instructions DATES: Meetings will be held on October least 10 days prior to the meeting. on submitting comments and additional 13, 2010, 9:30 a.m. to 5 p.m.; October Members of the public will have the information on the rulemaking process,

VerDate Mar<15>2010 15:21 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 E:\FR\FM\28SEP1.SGM 28SEP1 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59675

see the Public Participation heading of that take the vehicles out of compliance was redesignated as S7 and upgraded the SUPPLEMENTARY INFORMATION section with certain FMVSSs when the vehicles with the adoption of new technically- of this document. Note that all are modified to be used by persons with advanced test dummies representing a comments received will be posted disabilities after the first retail sale of 5th percentile adult female and a 50th without change to http:// the vehicle for purposes other than percentile adult male and enhanced www.regulations.gov, including any resale. The regulation was promulgated injury criteria. personal information provided. Please to facilitate the modification of motor In addition, the final rule added a see the Privacy Act heading below. vehicles so that persons with disabilities new vehicle-to-pole test to the standard Privacy Act: Anyone is able to search can drive or ride in them. The (see S9, 49 CFR 571.214). The pole test the electronic form of all comments regulation involves information and simulates a vehicle crashing sideways received into any of our dockets by the disclosure requirements and limits the into narrow fixed objects, such as utility name of the individual submitting the extent of modifications that may be poles and trees. The pole test requires comment (or signing the comment, if made. vehicle manufacturers to assure head submitted on behalf of an association, Under the regulation, a motor vehicle and improved chest protection in side business, labor union, etc.). You may repair business that modifies a vehicle crashes for a wide range of occupant review DOT’s complete Privacy Act to enable a person with a disability to sizes and over a broad range of seating Statement in the Federal Register operate or ride as a passenger in the positions. Manufacturers will likely published on April 11, 2000 (65 FR motor vehicle and that avails itself of meet the upgraded requirements of the 19477–78). the exemption provided by 49 CFR part standard by vehicle modifications that For access to the docket to read 595 subpart C must register itself with include installing side air bags in background documents or comments NHTSA. The modifier is exempted from vehicle seats and/or door panels and received, go to http:// the make inoperative provision of the side roof rails. The phase-in of the www.regulations.gov or the street Safety Act, but only to the extent that upgraded MDB and pole test address listed above. Follow the online the modifications affect the vehicle’s requirements began September 1, 2010. instructions for accessing the dockets. compliance with the FMVSSs specified Petition for Rulemaking FOR FURTHER INFORMATION CONTACT: in 49 CFR 595.7(c) and only to the Shelley Bolbrugge, NHTSA Office of extent specified in 595.7(c). On February 12, 2009, Bruno Crash Avoidance Standards, NVS–123 Modifications that would take the Independent Living Aids (Bruno) (telephone 202–366–9146) (fax 202– vehicle out of compliance with any submitted a petition for rulemaking to 493–2739), or Deirdre Fujita, NHTSA other FMVSS, or with an FMVSS listed expand the specified requirements of Office of Chief Counsel, NCC–112 in 595.7(c) but in a manner not specified FMVSS No. 214 referenced in § 595.7. (telephone 202–366–2992) (fax 202– in that paragraph are not exempted by Bruno manufactures a product line 366–3820). The mailing address for the regulation. The modifier must affix called ‘‘Turning Automotive Seating these officials is: National Highway a permanent label to the vehicle (TAS).’’ A TAS seat replaces the seat Traffic Safety Administration, 1200 New identifying itself as the modifier and the installed by the original equipment Jersey Avenue, SE., Washington, DC vehicle as no longer complying with all manufacturer (OEM). Bruno states that 20590. FMVSS in effect at original the purpose of the TAS is— manufacture, and must provide and SUPPLEMENTARY INFORMATION: to provide safe access to private motor retain a document listing the FMVSSs vehicles for mobility-impaired drivers or Background with which the vehicle no longer passengers, semi-ambulatory or transferring complies and indicating any reduction from a wheelchair. The National Traffic and Motor The Bruno TAS replaces the OEM seat in Vehicle Safety Act (49 U.S.C. Chapter in the load carrying capacity of the vehicle of more than 100 kilograms (220 a sedan, minivan, van, pickup, or SUV. In its 301) (‘‘Safety Act’’) and NHTSA’s various configurations the Bruno TAS seat regulations require vehicle pounds). pivots from the forward-facing driving manufacturers to certify that their Current Exemption in Part 595 position to the side-facing entry position, vehicles comply with all applicable Regarding Side Impact Protection extends outward and lowers to a suitable Federal motor vehicle safety standards transfer height, providing the driver and/or Currently, 49 CFR part 595 subpart C (FMVSSs) (see 49 U.S.C. 30112; 49 CFR passengers a convenient and safe entry into sets forth an exemption from ‘‘S5 of 49 part 567). A vehicle manufacturer, the vehicle. The transfer into the seat takes CFR 571.214 [FMVSS No. 214] for the place safely, while outside the vehicle, and distributor, dealer, or repair business designated seating position modified, in the occupant remains in the seat during the generally may not knowingly make any cases in which the restraint system entry process, using the OEM seatbelts while inoperative any part of a device or and/or seat at that position must be traveling in the vehicle. Exiting the vehicle element of design installed in or on a changed to accommodate a person with is accomplished by reversing the process. A motor vehicle in compliance with an further TAS option is a mobility base, which a disability.’’ 49 CFR 595.7(c)(15). converts the automotive seat into a applicable FMVSS (see 49 U.S.C. The reference to S5 of FMVSS No. 214 30122). NHTSA has the authority to wheelchair, that eliminates a need for is outdated. S5 had referred to the transferring from the seat altogether. issue regulations that exempt regulated dynamic performance requirements that entities from the ‘‘make inoperative’’ vehicles must meet when subjected to a The petitioner believes that this provision (49 U.S.C. 30122(c)). The moving deformable barrier (MDB) test. method of vehicle entry and exit is safer agency has used that authority to The MDB test simulates an intersection than using a platform lift to enter a promulgate 49 CFR part 595, subpart C, collision with one vehicle being struck vehicle or entering and exiting ‘‘Make Inoperative Exemptions, Vehicle in the side by another vehicle. In 2007, unassisted. Bruno states in its petition ‘‘ Modifications to Accommodate People NHTSA upgraded FMVSS No. 214 and that: * * * torso side air bags are commonly installed in the outboard side with Disabilities.’’ reorganized the standard.1 The MDB test 49 CFR part 595 subpart C sets forth of the OEM seat backrest’’ and would be exemptions from the make inoperative 1 72 FR 51908, September 11, 2007; response to removed when installing a TAS system provision to permit, under limited petitions for reconsideration, 73 FR 32473, June 9, requiring the exemption. Bruno seeks a circumstances, vehicle modifications 2003; 75 FR 12123, March 15, 2010. part 595 exemption similar to the

VerDate Mar<15>2010 15:21 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 E:\FR\FM\28SEP1.SGM 28SEP1 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS 59676 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

existing exemption from the MDB test. occupant at the OEM seating position However, we recognize that the Additionally, Bruno seeks to expand that may no longer be as protective at petitioner’s request presents a trade-off part 595 to allow an exemption from the the position at which the seat is placed of substantial side impact protection in new S9 Vehicle-To-Pole test after the modification. exchange for continued mobility for requirements. people with disabilities and some Pole Test Requirements enhancement in easier and possibly Response to Petition We propose to expand § 595.7(c)(15) safer vehicle entry and exit.2 Comments NHTSA has decided to grant Bruno’s to include an exemption for are requested on the proposed petition. We propose to amend modifications that affect the vehicle’s exemption. To achieve the maximum § 595.7(c)(15) to reference the upgraded compliance with the pole test safety benefit of the regulations, it is our MDB requirements and to expand the requirements of FMVSS No. 214 (set desire to provide the narrowest exemption to include the pole test forth in S9 of the standard) in any case exemption possible to accommodate the requirements. in which the restraint system and/or needs of disabled persons, without MDB Test Requirements seat at that position must be changed to unreasonably expanding its use to accommodate a person with a disability. situations where the benefits of the The September 11, 2007 FMVSS No. The pole test applies to the driver and exemption may be outweighed by the 214 final rule redesignated the MDB right front seat passenger seating drawbacks of nonconformance with the requirements as S7. Because positions. When NHTSA issued the safety standard. We seek comment on § 595.7(c)(15)’s reference to S5 is no final rule upgrading FMVSS No. 214, whether an exemption is needed to longer valid, today’s NPRM would the agency believed that the upgraded make inoperative side curtain and torso change that paragraph’s reference from requirements will ‘‘lead to the air bags that are not located in the seat, S5 to S7. i.e., side air bags that are found, for We believe that there is a continuing installation of new technologies, such as side curtain air bags and torso side air example, in door panels, pillars, or roof need for the exemption from the MDB headliners. Could the vehicle seating requirements. The original make bags.’’ The countermeasure most likely to be used in the foreseeable future to system be removed or modified without inoperative exemption for the MDB negatively affecting the crash sensing requirements was granted because meet the pole test requirements is side air bag technology incorporated in the system for door-mounted side air bags NHTSA was aware of drivers or or roof-mounted window curtains? passengers who needed to have a vehicle’s roof rail (side air bag curtain), door, and/or the vehicle seat. NHTSA would like to know if keeping modifier change the restraint system or air bags and activation systems that are vehicle seat to accommodate a disability In our NPRM preceding the make inoperative exemption final rule (63 FR not contained in the OEM seating (66 FR 12637). At the time of the final systems would be compatible with rule we allowed the exemption because 51547, September 28, 1998), NHTSA stated the following when addressing adaptive seating currently in use. Would we determined that a change in the these modifications affect another restraint system or seat location could frontal air bag technology. The agency explained that, when a vehicle is designated seating position? What types affect the measurement of the injury of modifications would be necessary? criteria specified in the standard. The modified to accommodate a person with upgraded FMVSS No. 214 incorporates a disability, typically the nature of the Dates enhanced MDB requirements that could work that is done requires the air bag or We are limiting the comment period likewise be affected by an alteration of some part of the crash sensing system to 30 days because the upgraded FMVSS the restraint system and/or seat at the connected to it to be removed. The make No. 214 requirements have begun designated seating position being inoperative exemption was needed phasing in September 1, 2010. NHTSA modified. when the OEM-supplied seat had to be would like to consider the comments The enhanced MDB requirements will removed or work done to disengage or and complete this response to the improve head, chest, and pelvic possibly affect the performance of the petition as quickly as possible. protection in side crashes. Data from air bag system. In view of the September 1, 2010 tests conducted pursuant to the These same considerations apply to phase-in date for the FMVSS No. 214 September 2007 FMVSS No. 214 final the side air bag systems. Removing an amendments, and because this rule showed that many vehicles will OEM seat that has a side air bag and rulemaking would remove a restriction depend on side impact air bag replacing it with an aftermarket seat that on the modification of vehicles for technology to meet all of the injury does not would likely make inoperative persons with disabilities, if a final rule criteria of the standard when tested with the system installed in compliance with is issued NHTSA anticipates making the the 5th percentile female and 50th FMVSS No. 214. Making some other amendment effective in less than 180 percentile male dummies. If the side air substantive modification of the OEM days following publication of the rule. seat or restraint system to accommodate bags in vehicles designed to the new Rulemaking Analyses and Notices requirements were removed, modifiers a person with a disability could also will take the vehicles out of compliance affect the measurement of the injury Executive Order 12866 and DOT with the MDB test. criteria specified in the standard. We Regulatory Policies and Procedures The agency also tentatively believes tentatively believe that an exemption NHTSA has considered the impact of that the compliance with the injury from the make inoperative provision this rulemaking action under E.O. 12866 criteria for the MDB test could be with regard to the pole test in FMVSS and the Department of Transportation’s affected even if vehicle seats with seat- No. 214 is needed to permit regulatory policies and procedures. This mounted air bags are not removed but modification of the vehicle’s seating are instead changed in a less significant system to accommodate a person with a 2 NHTSA estimated in the FMVSS No. 214 way to accommodate a person with a disability. This is comparable to the rulemaking that side head and torso air bags result disability (e.g., an OEM seat is mounted position taken by NHTSA with regard to in a 24 percent reduction in fatality risk for nearside the make inoperative exemption for occupants and an estimated 14 percent reduction in on a 6-way power seat base). This is fatality risk by torso bags alone. See Docket No. because there could be countermeasures frontal air bags required by FMVSS No. NHTSA–29134, NHTSA’s Final Regulatory Impact that were designed to protect the 208. See 595.7(c)(14). Analysis.)

VerDate Mar<15>2010 15:21 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 E:\FR\FM\28SEP1.SGM 28SEP1 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59677

rulemaking document was not reviewed accommodate individuals with Order 12988 to make every reasonable by the Office of Management and disabilities. I certify that this proposed effort to ensure that the regulation, as Budget under E.O. 12866, ‘‘Regulatory rule would not have a significant appropriate: (1) Specifies in clear Planning and Review.’’ It is not economic impact on a substantial language the preemptive effect; (2) considered to be significant under E.O. number of small entities. While most specifies in clear language the effect on 12866 or the Department’s Regulatory dealers and repair businesses would be existing Federal law or regulation, Policies and Procedures (44 FR 11034; considered small entities, the proposed including all provisions repealed, February 26, 1979). NHTSA has exemption would not impose any new circumscribed, displaced, impaired, or determined that the effects are so minor requirements, but would instead modified; (3) provides a clear legal that a regulatory evaluation is not provide additional flexibility. Therefore, standard for affected conduct rather needed to support the subject the impacts on any small businesses than a general standard, while rulemaking. This rulemaking would affected by this rulemaking would not promoting simplification and burden impose no costs on the vehicle be substantial. reduction; (4) specifies in clear language modification industry. If anything, there the retroactive effect; (5) specifies Executive Order 13132 (Federalism) could be a cost savings due to the whether administrative proceedings are proposed exemptions. NHTSA has examined today’s to be required before parties may file Modifying a vehicle in a way that proposed rule pursuant to Executive suit in court; (6) explicitly or implicitly makes inoperative the performance of Order 13132 (64 FR 43255; Aug. 10, defines key terms; and (7) addresses side impact air bags could be 1999) and concluded that no additional other important issues affecting clarity detrimental for the occupants of the consultation with States, local and general draftsmanship of vehicle in a side crash. However, the governments, or their representatives is regulations. number of vehicles potentially modified mandated beyond the rulemaking Pursuant to this Order, NHTSA notes would be very few in number. This is process. The agency has concluded that as follows. The preemptive effect of this essentially the trade-off that NHTSA is the proposed rule does not have proposed rule is discussed above. faced with when increasing mobility for sufficient federalism implications to NHTSA notes further that there is no persons with disabilities: When warrant consultation with State and requirement that individuals submit a necessary vehicle modifications are local officials or the preparation of a petition for reconsideration or pursue made, some safety may unavoidably be federalism summary impact statement. other administrative proceeding before lost to gain personal mobility. We have The proposal does not have ‘‘substantial they may file suit in court. requested comments on how the agency direct effects on the States, on the National Technology Transfer and may make the exemption as narrow as relationship between the national Advancement Act reasonably possible. government and the States, or on the distribution of power and Under the National Technology Regulatory Flexibility Act responsibilities among the various Transfer and Advancement Act of 1995 Pursuant to the Regulatory Flexibility levels of government.’’ This proposed (NTTAA) (Pub. L. 104–113), ‘‘all Federal Act (5 U.S.C. 601 et seq., as amended by rule would not impose any agencies and departments shall use the Small Business Regulatory requirements on anyone. This proposal technical standards that are developed Enforcement Fairness Act (SBREFA) of would lessen a burden on modifiers. or adopted by voluntary consensus 1996), whenever an agency is required NHTSA rules can have preemptive standards bodies, using such technical to publish a notice of proposed effect in two ways. First, the National standards as a means to carry out policy rulemaking or final rule, it must prepare Traffic and Motor Vehicle Safety Act objectives or activities determined by and make available for public comment contains an express preemption the agencies and departments.’’ a regulatory flexibility analysis that provision: Voluntary consensus standards are describes the effect of the rule on small When a motor vehicle safety standard is in technical standards (e.g., materials entities (i.e., small businesses, small effect under this chapter, a State or a political specifications, test methods, sampling organizations, and small governmental subdivision of a State may prescribe or procedures, and business practices) that jurisdictions). The Small Business continue in effect a standard applicable to are developed or adopted by voluntary Administration’s regulations at 13 CFR the same aspect of performance of a motor consensus standards bodies, such as the part 121 define a small business, in part, vehicle or motor vehicle equipment only if Society of Automotive Engineers (SAE). as a business entity ‘‘which operates the standard is identical to the standard The NTTAA directs us to provide primarily within the United States.’’ (13 prescribed under this chapter. Congress, through OMB, explanations CFR 121.105(a)). No regulatory 49 U.S.C. 30103(b)(1). This provision is when we decide not to use available and flexibility analysis is required if the not relevant to this rulemaking as it applicable voluntary consensus head of an agency certifies the rule will does not involve the establishing, standards. No voluntary standards exist not have a significant economic impact amending or revoking or a Federal regarding this proposed exemption for on a substantial number of small motor vehicle safety standard. modification of vehicles to entities. SBREFA amended the Second, the Supreme Court has accommodate persons with disabilities. Regulatory Flexibility Act to require recognized the possibility, in some Unfunded Mandates Reform Act Federal agencies to provide a statement instances, of implied preemption of of the factual basis for certifying that a State requirements imposed on motor The Unfunded Mandates Reform Act rule will not have a significant vehicle manufacturers, including of 1995 requires agencies to prepare a economic impact on a substantial sanctions imposed by State tort law. We written assessment of the costs, benefits number of small entities. are unaware of any State law or action and other effects of proposed or final NHTSA has considered the effects of that would prohibit the actions that this rules that include a Federal mandate this proposed rule under the Regulatory proposed rule would permit. likely to result in the expenditure by Flexibility Act. Most dealerships and State, local or tribal governments, in the repair businesses are considered small Civil Justice Reform aggregate, or by the private sector, of entities, and a substantial number of When promulgating a regulation, more than $100 million annually these businesses modify vehicles to agencies are required under Executive (adjusted for inflation with base year of

VerDate Mar<15>2010 15:21 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 E:\FR\FM\28SEP1.SGM 28SEP1 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS 59678 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

1995). This proposed exemption would • Are the requirements in the rule In consideration of the foregoing, we not result in expenditures by State, local clearly stated? propose to amend 49 CFR part 595 to or tribal governments, in the aggregate, • Does the rule contain technical read as follows: or by the private sector in excess of $100 language or jargon that isn’t clear? PART 595—MAKE INOPERATIVE million annually. • Would a different format (grouping EXEMPTIONS National Environmental Policy Act and order of sections, use of headings, paragraphing) make the rule easier to 1. The authority citation for part 595 NHTSA has analyzed this rulemaking understand? continues to read as follows: action for the purposes of the National • Would more (but shorter) sections Environmental Policy Act. The agency Authority: 49 U.S.C. 322, 30111, 30115, be better? 30117, 30122 and 30166; delegation of has determined that implementation of • authority at 49 CFR 1.50. this action would not have any Could we improve clarity by adding significant impact on the quality of the tables, lists, or diagrams? 2. Amend § 595.7 by revising human environment. • What else could we do to make the paragraph (c)(15) to read as follows: rule easier to understand? Paperwork Reduction Act § 595.7 Requirements for vehicle If you have any responses to these modifications to accommodate people with Under the Paperwork Reduction Act questions, please include them in your disabilities. of 1995 (PRA), a person is not required comments on this proposal. * * * * * to respond to a collection of information (c) by a Federal agency unless the Regulation Identifier Number (RIN) * * * * * collection displays a valid OMB control The Department of Transportation (15) S7 and S9 of 49 CFR 571.214, for number. This proposal does not contain assigns a regulation identifier number the designated seating position new reporting requirements or requests (RIN) to each regulatory action listed in modified, in any cases in which the for information beyond what is already the Unified Agenda of Federal restraint system and/or seat at that required by 49 CFR Part 595 Subpart C. Regulations. The Regulatory Information position must be changed to Plain Language Service Center publishes the Unified accommodate a person with a disability. Agenda in April and October of each * * * * * Executive Order 12866 requires each year. You may use the RIN contained in agency to write all rules in plain the heading at the beginning of this Issued on: September 23, 2010. language. Application of the principles document to find this action in the Joseph S. Carra, of plain language includes consideration Unified Agenda. Acting Associate Administrator for of the following questions: Rulemaking. List of Subjects in 49 CFR Part 595 • Have we organized the material to [FR Doc. 2010–24344 Filed 9–27–10; 8:45 am] suit the public’s needs? Motor vehicle safety, Motor vehicles. BILLING CODE 4910–59–P

VerDate Mar<15>2010 15:21 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00022 Fmt 4702 Sfmt 9990 E:\FR\FM\28SEP1.SGM 28SEP1 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS 59679

Notices Federal Register Vol. 75, No. 187

Tuesday, September 28, 2010

This section of the FEDERAL REGISTER methodology and assumptions used; (c) especially ‘‘tweens’’ (aged 9–12) to eat contains documents other than rules or ways to enhance the quality, utility and more healthfully and be more physically proposed rules that are applicable to the clarity of the information to be active. The statutory requirements for public. Notices of hearings and investigations, collected; (d) ways to minimize the this collection can be found in the committee meetings, agency decisions and burden of the collection of information Department of Agriculture Organic Act rulings, delegations of authority, filing of petitions and applications and agency on those who are to respond, including of 1862, 7 U.S.C. 2201, the National statements of organization and functions are through the use of appropriate Agricultural Research, Extension, and examples of documents appearing in this automated, electronic, mechanical, or Teaching Policy Act of 1977 and the section. other technological collection National Nutrition Monitoring and techniques or other forms of information Related Research Act of 1990. technology should be addressed to: Desk Need and use of the information: The AFRICAN DEVELOPMENT Officer for Agriculture, Office of information will be collected from FOUNDATION Information and Regulatory Affairs, individuals, companies, organizations, Office of Management and Budget and government agencies to create Board of Directors Meeting (OMB), challenges and award prizes for solving [email protected] or problems. The purpose of the contest is MEETING: African Development fax (202) 395–5806 and to Departmental to develop new and innovative Foundation, Board of Directors Meeting. Clearance Office, USDA, OCIO, Mail technology to reach children, ages 9–12, TIME: Tuesday, October 19, 2010 8:30 Stop 7602, Washington, DC 20250– either directly or through their parents a.m. to 1 p.m. 7602. Comments regarding these using the MyPyramid Dataset. This PLACE: African Development information collections are best assured initiative will not only increase access Foundation, Conference Room, 1400 I of having their full effect if received to socially relevant technologies that Street, NW., Suite 1000, Washington, within 30 days of this notification. seek to improve eating and physical DC 20005 Copies of the submission(s) may be activity behaviors among children but DATE: Tuesday, October 19, 2010. obtained by calling (202) 720–8958. could also expand the tools available STATUS: An agency may not conduct or through the MyPyramid Web site. The 1. Open session, Tuesday, October 19, sponsor a collection of information contest will explore ways to address the 2010, 8:30 a.m. to 12 p.m.; and unless the collection of information following behavioral objectives: (1) 2. Closed session, Tuesday, October displays a currently valid OMB control Increase consumption of whole grains, 19, 2010, 12 p.m. to 1 p.m. number and the agency informs fruit and vegetables, low-or non-fat Due to security requirements and potential persons who are to respond to milk, and lean sources of protein; (2) limited seating, all individuals wishing the collection of information that such Develop temporary and relevant to attend the open session of the persons are not required to respond to nutrition education tools for kids; (3) meeting must notify Michele M. Rivard the collection of information unless it Address calorie intake and food portion at (202) 673–3916 or [email protected] displays a currently valid OMB control sizes; (4) Increase physical activity. of your request to attend by 5 p.m. on number. Inability to collect this information will Thursday, October 14, 2010. Food and Nutrition Service result in a decrease in effort for Lloyd O. Pierson, Title: Innovation for Healthy Kids contributing to the goal of achieving the President & CEO, USADF. Challenge to Promote the Open President’s Open Government Initiative. Description of respondents: [FR Doc. 2010–24325 Filed 9–27–10; 8:45 am] Government Initiative. Individuals or household; Business or BILLING CODE P OMB control number: 0584–0555. Summary of collection: The demand other for-profit; Not-for-profit for innovative and relevant nutrition institutions. Number of respondents: 100. DEPARTMENT OF AGRICULTURE education technologies is needed to address the epidemic rates of obesity Frequency of responses: Third Party Submission for OMB Review; within the U.S. population and address disclosure; Reporting: Annually: Comment Request the promotion of the most recent Total burden hours: 5,525. version of the Dietary Guidelines for Ruth Brown, September 22, 2010. Americans. The Center for Nutrition The Department of Agriculture has Departmental Information Collection Policy and Promotion (CNPP) of the Clearance Officer. submitted the following information U.S. Department of Agriculture invites [FR Doc. 2010–24298 Filed 9–27–10; 8:45 am] collection requirement(s) to OMB for developers, programmers, highly review and clearance under the motivated gamers and the general public BILLING CODE 3410–30–P Paperwork Reduction Act of 1995, to develop creative and educational Public Law 104–13. Comments games and applications that are based DEPARTMENT OF AGRICULTURE regarding (a) Whether the collection of on the Food Nutrition and Consumer information is necessary for the proper Services Dataset. With childhood Submission for OMB Review; performance of the functions of the obesity continuing to rise, the goal of Comment Request agency, including whether the the Challenge is to motivate talented information will have practical utility; individuals to create innovative, fund, September 22, 2010. (b) the accuracy of the agency’s estimate and engaging applications or games that The Department of Agriculture has of burden including the validity of the encourage parents and children, submitted the following information

VerDate Mar<15>2010 16:59 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00001 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59680 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

collection requirement(s) to OMB for trained food animal veterinarians in Comments may also be sent via e-mail review and clearance under the shortage situations and provide USDA to [email protected] or via Paperwork Reduction Act of 1995, with a pool of veterinary specialists to facsimile to 573–364–6844. Public Law 104–13. Comments assist in the control and eradication of All comments, including names and regarding (a) Whether the collection of animal disease outbreaks. addresses when provided, are placed in information is necessary for the proper Need and Use of the Information: The the record and are available for public performance of the functions of the National Institute of Food and inspection and copying. The public may agency, including whether the Agriculture (NIFA) will collect inspect comments received at Mark information will have practical utility; information using the Application Twain National Forest Supervisors (b) the accuracy of the agency’s estimate forms. The information collected from Office, 401 Fairgrounds Road, Rolla, of burden including the validity of the applicants relates to their eligibility, MO. Visitors are encouraged to call methodology and assumptions used; (c) qualifications, career interests and ahead to 573–341–7404 to facilitate ways to enhance the quality, utility and recommendations necessary to evaluate entry into the building. clarity of the information to be their applications for repayment of FOR FURTHER INFORMATION CONTACT: collected; (d) ways to minimize the education indebtedness in return for Richard Hall, Eleven Point Resource burden of the collection of information agreeing to provide veterinary services Advisory Committee Coordinator, Mark on those who are to respond, including in veterinarian shortage situations. The Twain National Forest, 573–341–7404. through the use of appropriate information will also be used to Individuals who use automated, electronic, mechanical, or determine an applicant’s eligibility for telecommunication devices for the deaf other technological collection participation in the program. (TDD) may call the Federal Information techniques or other forms of information Description of Respondents: State, Relay Service (FIRS) at 1–800–877–8339 technology should be addressed to: Desk Local or Tribal Government. between 8:00 a.m. and 8:00 p.m., Officer for Agriculture, Office of Number of Respondents: 1,260. Eastern Standard Time, Monday Information and Regulatory Affairs, Frequency of Responses: Reporting: through Friday. Office of Management and Budget Biennially. SUPPLEMENTARY INFORMATION: The (OMB), Pamela_Beverly_OIRA_ Total Burden Hours: 2,280. meeting is open to the public. The [email protected] or fax Ruth Brown, following business will be conducted: (202) 395–5806 and to Departmental Departmental Information Collection The meeting will begin to focus on the Clearance Office, USDA, OCIO, Mail Clearance Officer. Stop 7602, Washington, DC 20250– potential projects that the RAC will be [FR Doc. 2010–24303 Filed 9–27–10; 8:45 am] 7602. Comments regarding these reviewing. Persons who wish to bring information collections are best assured BILLING CODE 3410–09–P related matters to the attention of the of having their full effect if received Committee may file written statements with David Whittekiend (address above) within 30 days of this notification. DEPARTMENT OF AGRICULTURE Copies of the submission(s) may be before or after the meeting. obtained by calling (202) 720–8958. Forest Service Dated: September 23, 2010. An agency may not conduct or David Whittekiend, sponsor a collection of information Eleven Point Resource Advisory Forest Supervisor. unless the collection of information Committee [FR Doc. 2010–24245 Filed 9–27–10; 8:45 am] displays a currently valid OMB control BILLING CODE 3410–11–P number and the agency informs AGENCY: Forest Service, USDA. potential persons who are to respond to ACTION: Notice of meeting. the collection of information that such SUMMARY: The Eleven Point Resource DEPARTMENT OF AGRICULTURE persons are not required to respond to Advisory Committee will meet in the collection of information unless it Winona, Missouri. The committee is Forest Service displays a currently valid OMB control meeting as authorized under the Secure number. El Dorado County Resource Advisory Rural Schools and Community Self- Committee National Institute of Food and Determination Act (Pub. L. 110–343) Agriculture and in compliance with the Federal AGENCY: Forest Service, USDA. Title: Veterinary Medicine Loan Advisory Committee Act. The purpose ACTION: Notice of meeting. Repayment Program Application. of the meeting is initiate review of SUMMARY: OMB Control Number: 0524–0047. proposed forest management projects so The El Dorado County Summary of Collection: In January that recommendations may be made to Resource Advisory Committee will meet 2003, the National Veterinary Medical the Forest Service on which should be in Placerville, California. The committee Service Act (NVMSA) was passed into funded through Title II of the Secure is meeting as authorized under the law adding section 1415A to the Rural Schools and Community Self Secure Rural Schools and Community National Agricultural Research, Determination Act of 2000, as amended Self-Determination Act (Pub. L. 110– Extension, and Teaching Policy Act of in 2008. 343) and in compliance with the Federal 1997. This law established a new DATES: The meeting will be held Advisory Committee Act. The Agenda Veterinary Medicine Loan Repayment Tuesday, October 19th, 2010, 6:30 p.m. for the meeting includes review of the Program (VMLRP) (7 U.S.C. 3151a) ADDRESSES: The meeting will be held at October field trip, administrative costs authorizing the Secretary of Agriculture the Twin Pines Conservation Education update and a report out on outreach for to carry out a program of entering into Center located on US Highway 60, Rt 1, proposals. agreements with veterinarians under Box 1998, Winona, MO. Written DATES: The meeting will be held on which they agree to provide veterinary comments should be sent to David October 18, 2010 at 6 p.m.– 9 p.m. services in veterinarian shortage Whittekiend, Designated Federal ADDRESSES: The meeting will be held at situations. The purpose of the program Official, Mark Twain National Forest, the El Dorado Center of Folsom Lake is to assure an adequate supply of 401 Fairgrounds Road, Rolla, MO. College, Community Room, 6699

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00002 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59681

Campus Drive, Placerville, CA 95667. of the Trade Act of 2002 (Pub. L. 107– DEPARTMENT OF AGRICULTURE Written comments should be sent to 210) states that petitions must Frank Mosbacher, Forest Supervisor’s demonstrate, using data for the most Foreign Agricultural Service Office, 100 Forni Road, Placerville, CA recent, full marketing year or full Trade Adjustment Assistance for 95667. Comments may also be sent via official marketing season, a greater than Farmers e-mail to [email protected], or via 15-percent decline in at least one of the facsimile to 530–621–5297. All following factors: national average price, AGENCY: Foreign Agricultural Service, comments, including names and quantity of production, value of USDA. addresses when provided, are placed in production, or cash receipts. ACTION: Notice. the record and are available for public inspection and copying. The public may According to the statute, it is also The Administrator of the Foreign inspect comments received at 100 Forni necessary for the petition to Agricultural Service (FAS) has denied a Road, Placerville, CA 95667. Visitors are demonstrate that an increase in imports petition (No. 2011004) for trade encouraged to call ahead to 530–622– of like or directly competitive articles, adjustment assistance for lamb filed 5061 to facilitate entry into the building. during the same marketing period, under the fiscal year (FY) 2011 program FOR FURTHER INFORMATION CONTACT: contributed importantly to the decrease by lamb producers from Idaho, Utah, Frank Mosbacher, Public Affairs Officer, in one of the above factors for the and Wyoming. The petition was Eldorado National Forest Supervisor’s agricultural commodity. accepted for review by USDA on July Office, 530–621–5230. All petitions were analyzed by 23, 2010. Individuals who use USDA’s Economic Research Service and SUPPLEMENTARY INFORMATION: To qualify telecommunication devices for the deaf reviewed by the Trade Adjustment under the program, Subtitle C of Title I (TDD) may call the Federal Information Assistance (TAA) for Farmers Program of the Trade Act of 2002 (Pub. L. 107– Relay Service (FIRS) at 1–800–877–8339 Review Committee, comprised of 210) states that petitions must between 8 a.m. and 8 p.m., Eastern representatives from USDA’s Office of demonstrate, using data for the most Standard Time, Monday through Friday. the Chief Economist, Farm Service recent, full marketing year or full SUPPLEMENTARY INFORMATION: The Agency, Agricultural Marketing Service, official marketing season, a greater than meeting is open to the public. The and FAS. After a review, the 15-percent decline in at least one of the following business will be conducted: Administrator determined that the following factors: national average price, quantity of production, value of Review of the October field trip; petition was unable to demonstrate the production, or cash receipts. administrative costs update and a report ‘greater than 15-percent decline’ According to the statute, it is also out on outreach for proposals. More criterion, because it showed a 6-percent information will be posted on the necessary for the petition to decline in the quantity of production for demonstrate that an increase in imports Eldorado National Forest Web site 2009, when compared to the previous 3- @http://www.fs.fed.us/r5/Eldorado. A of like or directly competitive articles, year period. Additionally, the import public comment opportunity will be during the same marketing period, data provided for the same time periods made available following the business contributed importantly to the decrease activity. Future meetings will have a showed a 10.9-percent decrease, instead in one of the above factors for the formal public input period for those of the required increase, under the agricultural commodity. following the yet to be developed public program. All petitions were analyzed by input process. Because the petition was unable to USDA’s Economic Research Service and reviewed by the Trade Adjustment Dated: September 23, 2010. meet the ‘greater than 15-percent decline’ criterion and the ‘increase in Assistance for Farmers Program Review Ramiro Villalvazo, Committee, comprised of Forest Supervisor. imports’ criterion, the Administrator was not able to certify the petition, representatives from USDA’s Office of [FR Doc. 2010–24250 Filed 9–27–10; 8:45 am] making lamb producers in Montana the Chief Economist, Farm Service BILLING CODE 3410–11–P Agency, Agricultural Marketing Service, ineligible for trade adjustment and FAS. After a review, the assistance in FY 2011. Administrator determined that the DEPARTMENT OF AGRICULTURE FOR FURTHER INFORMATION CONTACT: petition was unable to demonstrate the Trade Adjustment Assistance for ‘greater than 15-percent decline’ Foreign Agricultural Service Farmers Program Staff, Office of Trade criterion, because it showed only a 6- Trade Adjustment Assistance for Programs, FAS, USDA; or by phone at percent decline in the quantity of Farmers (202) 720–0638 or (202) 690–0633; or by production for 2009, when compared to e-mail at: the previous 3-year period. AGENCY: Foreign Agricultural Service, [email protected]; or visit Additionally, the import data provided USDA. the TAA for Farmers’ Web site at: for the same time period showed a 10.9- ACTION: Notice. http://www.fas.usda.gov/itp/taa. percent decrease, instead of the required increase, under the program. The Administrator of the Foreign Dated: September 20, 2010. Because the petition was unable to Agricultural Service (FAS) has denied a John D. Brewer, meet the ‘greater than 15-percent petition (No. 2011029) for trade Administrator, Foreign Agricultural Service. decline’ criterion and the ‘increase in adjustment assistance for lamb filed [FR Doc. 2010–24320 Filed 9–27–10; 8:45 am] imports’ criterion, the Administrator under the fiscal year (FY) 2011 program was not able to certify the petition, BILLING CODE 3410–10–P by the Montana Wool Growers making lamb producers in Idaho, Utah, Association. The petition was accepted and Wyoming ineligible for trade for review by USDA on July 23, 2010. adjustment assistance in FY 2011. SUPPLEMENTARY INFORMATION: To qualify FOR FURTHER INFORMATION CONTACT: under the program, Subtitle C of Title I Trade Adjustment Assistance for

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00003 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59682 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

Farmers Program staff, Office of Trade provided for the same time period representatives from USDA’s Office of Programs, FAS, USDA; or by phone at showed a 37.2-percent decrease, instead the Chief Economist, Farm Service (202) 720–0638 or (202) 690–0633; or by of the required increase, under the Agency, Agricultural Marketing Service, e-mail at: program. and FAS. After a review, the [email protected]; or visit Because the petition was unable to Administrator determined that the the TAA for Farmers’ Web site at: http: meet the ‘increase in imports’ criterion, petitions demonstrated the ‘greater than //www.fas.usda.gov/itp/taa. the Administrator was not able to certify 15-percent decline’ criterion, because Dated: September 20, 2010. the petition, making wool producers in they showed a 15.9-percent decline in Idaho, Utah, and Wyoming ineligible for John D Brewer, the value of wool production for 2009, trade adjustment assistance in FY 2011. when compared to the previous 3-year Administrator, Foreign Agricultural Service. FOR FURTHER INFORMATION CONTACT: period. However, the import data [FR Doc. 2010–24332 Filed 9–27–10; 8:45 am] Trade Adjustment Assistance for provided for the same time periods BILLING CODE 3410–10–P Farmers Program Staff, Office of Trade showed a 37.2-percent decrease, instead Programs, FAS, USDA, or by phone at of the required increase, under the program. DEPARTMENT OF AGRICULTURE (202) 720–0638 or (202) 690–0633, or by e-mail at: Because the petitions were unable to Foreign Agricultural Service [email protected]; or visit meet the ‘increase in imports’ criterion, the TAA for Farmers’ Web site at: http: the Administrator was not able to certify Trade Adjustment Assistance for //www.fas.usda.gov/itp/taa. them, making wool producers in Ohio Farmers ineligible for trade adjustment Dated: September 20, 2010. assistance in FY 2011. John D. Brewer, AGENCY: Foreign Agricultural Service, FOR FURTHER INFORMATION CONTACT: USDA. Administrator, Foreign Agricultural Service. Trade Adjustment Assistance for ACTION: Notice. [FR Doc. 2010–24322 Filed 9–27–10; 8:45 am] Farmers Program Staff, Office of Trade BILLING CODE 3410–10–P The Administrator of the Foreign Programs, FAS, USDA; or by phone at Agricultural Service (FAS) has denied a (202) 720–0638 or (202) 690–0633; or by e-mail at: petition (No. 2011005) for trade DEPARTMENT OF AGRICULTURE adjustment assistance for wool filed [email protected]; or visit under the fiscal year (FY) 2011 program Foreign Agricultural Service the TAA for Farmers’ Web site at: by wool producers from Idaho, Utah, http://www.fas.usda.gov/itp/taa. and Wyoming. The petition was Trade Adjustment Assistance for Dated: September 20, 2010. accepted for review by USDA on July Farmers John D Brewer, 21, 2010. AGENCY: Foreign Agricultural Service, Administrator, Foreign Agricultural Service. SUPPLEMENTARY INFORMATION: To qualify USDA. [FR Doc. 2010–24330 Filed 9–27–10; 8:45 am] under the program, Subtitle C of Title I ACTION: Notice. BILLING CODE 3410–10–P of the Trade Act of 2002 (Pub. L. 107– 210) states that petitions must The Administrator of the Foreign demonstrate, using data for the most Agricultural Service (FAS) has denied DEPARTMENT OF AGRICULTURE recent, full marketing year or full petitions (Nos. 2011023–2011027) for official marketing season, a greater than trade adjustment assistance for wool Foreign Agricultural Service filed under the fiscal year (FY) 2011 15-percent decline in at least one of the Trade Adjustment Assistance for program by wool producers from Ohio. following factors: national average price, Farmers quantity of production, value of The petitions were accepted for review production, or cash receipts. by USDA on July 26, 2010. AGENCY: Foreign Agricultural Service, According to the statute, it is also SUPPLEMENTARY INFORMATION: To qualify USDA. necessary for the petition to under the program, Subtitle C of Title I ACTION: Notice. demonstrate that an increase in imports of the Trade Act of 2002 (Pub. L. 107– of like or directly competitive articles, 210) states that petitions must The Administrator of the Foreign during the same marketing period, demonstrate, using data for the most Agricultural Service (FAS) has denied contributed importantly to the decrease recent, full marketing year or full petitions (No.’s 2011006–2011011, in one of the above factors for the official marketing season, a greater than 2011028) for trade adjustment assistance agricultural commodity. 15-percent decline in at least one of the for wool filed under the fiscal year (FY) All petitions were analyzed by following factors: National average 2011 program by wool producers from USDA’s Economic Research Service and price, quantity of production, value of Montana and the Montana Wool reviewed by the Trade Adjustment production, or cash receipts. Growers Association. The petitions were Assistance for Farmers Program Review According to the statute, it is also accepted for review by USDA on July Committee, comprised of necessary for petitions to demonstrate 26, 2010. representatives from USDA’s Office of that an increase in imports of like or SUPPLEMENTARY INFORMATION: To qualify the Chief Economist, Farm Service directly competitive articles, during the under the program, Subtitle C of Title I Agency, Agricultural Marketing Service, same marketing period, contributed of the Trade Act of 2002 (Pub. L. 107– and FAS. After a review, the importantly to the decrease in one of the 210) states that petitions must Administrator determined that the above factors for the agricultural demonstrate, using data for the most petition demonstrated the ‘greater than commodity. recent, full marketing year or full 15-percent decline’ criterion, because it All petitions were analyzed by official marketing season, a greater than showed a 15.9-percent decline in the USDA’s Economic Research Service and 15-percent decline in at least one of the value of wool production for 2009, reviewed by the Trade Adjustment following factors: national average price, when compared to the previous 3-year Assistance for Farmers Program Review quantity of production, value of period. However, the import data Committee, comprised of production, or cash receipts.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00004 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59683

According to the statute, it is also SUPPLEMENTARY INFORMATION: To qualify Farmers Program Staff, Office of Trade necessary for the petitions to under the program, Subtitle C of Title I Programs, FAS, USDA; or by phone at demonstrate that an increase in imports of the Trade Act of 2002 (Pub. L. 107– (202) 720–0638, or (202) 690–0633; or of like or directly competitive articles, 210) states that petitions must by e-mail at: during the same marketing period, demonstrate, using data for the most [email protected]; or visit contributed importantly to the decrease recent, full marketing year or full the TAA for Farmers’ Web site at: http:// in one of the above factors for the official marketing season, a greater than www.fas.usda.gov/itp/taa. agricultural commodity. 15-percent decline in at least one of the Dated: September 20, 2010. All petitions were analyzed by following factors: National average John D. Brewer, USDA’s Economic Research Service and price, quantity of production, value of Administrator, Foreign Agricultural Service. reviewed by the Trade Adjustment production, or cash receipts. Assistance (TAA) for Farmers Program According to the statute, it is also [FR Doc. 2010–24318 Filed 9–27–10; 8:45 am] Review Committee, comprised of necessary for the petition to BILLING CODE 3410–10–P representatives from USDA’s Office of demonstrate that an increase in imports the Chief Economist, Farm Service of like or directly competitive articles, DEPARTMENT OF AGRICULTURE Agency, Agricultural Marketing Service, during the same marketing period, and FAS. After a review, the contributed importantly to the decrease Foreign Agricultural Service Administrator determined that the in one of the above factors for the petitions demonstrated the ‘greater than agricultural commodity. Trade Adjustment Assistance for 15-percent decline’ criterion, because All petitions were analyzed by Farmers they showed a 15.9-percent decline in USDA’s Economic Research Service and AGENCY: Foreign Agricultural Service, the value of wool production for 2009, reviewed by the Trade Adjustment USDA. when compared to the previous 3-year Assistance for Farmers Program Review period. However, the import data Committee, comprised of ACTION: Notice. provided for the same time periods representatives from USDA’s Office of The Administrator of the Foreign showed a 37.2-percent decrease, instead the Chief Economist, Farm Service Agricultural Service (FAS) has denied a of the required increase, under the Agency, Agricultural Marketing Service, petition (No. 2011020) for trade program. and FAS. After the review, the adjustment assistance for coffee filed Because the petitions were unable to Administrator determined that the under the fiscal year (FY) 2011 program meet the ‘increase in imports’ criterion, petition demonstrated the ‘greater than by the Kona Coffee Farmers Association. the Administrator was not able to certify 15-percent decline’ criterion, because it The petition was accepted for review by them, making wool producers in showed a 17.1-percent decline in the USDA on July 21, 2010. Montana ineligible for trade adjustment average annual price for 2009/2010, SUPPLEMENTARY INFORMATION: To qualify assistance in FY 2011. when compared to the previous 3-year under the program, Subtitle C of Title I FOR FURTHER INFORMATION CONTACT: period. Additionally, the import data of the Trade Act of 2002 (Pub. L. 107– Trade Adjustment Assistance for provided for the same time period 210) states that petitions must Farmers Program Staff, Office of Trade showed a 54.2-percent increase, meeting demonstrate, using data for the most Programs, FAS, USDA; or by phone at the ‘increase in imports’ criterion. recent, full marketing year or full (202) 720–0638, or (202) 690–0633; or However, while the petition was able official marketing season, a greater than by e-mail at: to demonstrate that California dried 15-percent decline in at least one of the [email protected]; or visit prunes met the ‘greater than 15-percent following factors: national average price, the TAA for Farmers’ Web site at: decline’ criterion and the ‘increase in quantity of production, value of http://www.fas.usda.gov/itp/taa. imports’ criterion, the import data, production, or cash receipts. Dated: September 20, 2010. along with historical import trends According to the statute, it is also John D. Brewer, showed no inverse correlation between necessary for the petition to Administrator, Foreign Agricultural Service. prices and the quantity of imported demonstrate that an increase in imports dried prunes and prune juice, a [FR Doc. 2010–24304 Filed 9–27–10; 8:45 am] of like or directly competitive articles, necessary requirement under the BILLING CODE 3410–10–P during the same marketing period, program. contributed importantly to the decrease As a result, it was determined that in one of the above factors for the DEPARTMENT OF AGRICULTURE imports were not an important factor in agricultural commodity. determining the average annual price of All petitions were analyzed by Foreign Agricultural Service California dried prunes in 2009/2010. USDA’s Economic Research Service and Instead, ERS found that changes in reviewed by the Trade Adjustment Trade Adjustment Assistance for domestic prune production, inventories, Assistance for Farmers Program Review Farmers exports, and domestic consumption Committee, comprised of were the factors affecting dried prune AGENCY: Foreign Agricultural Service, representatives from USDA’s Office of grower prices in 2009/2010. USDA. the Chief Economist, Farm Service Because the petition was unable to ACTION: Notice. Agency, Agricultural Marketing Service, demonstrate that the decline in average and FAS. After a review, the The Administrator for the Foreign annual price was importantly caused by Administrator determined that the Agricultural Service (FAS) has denied a an increase in imports, the petition demonstrated the ‘greater than petition (No. 2011014) for trade Administrator was not able to certify the 15-percent decline’ criterion, because it adjustment assistance for dried prunes petition, making dried prune producers showed a 19.6-percent decline in the filed under the fiscal year (FY) 2011 in California ineligible for trade average annual price for 2009/2010, program by the Prune Bargaining adjustment assistance in FY 2011. when compared to the previous 3-year Association. The petition was accepted FOR FURTHER INFORMATION, CONTACT: period. However, the import data for review by USDA on August 11, 2010. Trade Adjustment Assistance for

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00005 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59684 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

provided for the same time period representatives from USDA’s Office of price, quantity of production, value of showed a 6.1-percent decrease, instead the Chief Economist, Farm Service production, or cash receipts. of the required increase, under the Agency, Agricultural Marketing Service, According to the statute, it is also program. and FAS. After a review, the necessary for the petition to Because the petition was unable to Administrator determined that the demonstrate that an increase in imports meet the ‘increase in imports’ criterion, petition was unable to demonstrate the of like or directly competitive articles, the Administrator was not able to certify ‘greater than 15-percent decline’ during the same marketing period, the petition, making coffee producers in criterion, because it showed only a 12.5- contributed importantly to the decrease Hawaii ineligible for trade adjustment percent decline in the average annual in one of the above factors for the assistance in FY 2011. price for 2009/2010, when compared to agricultural commodity. FOR FURTHER INFORMATION CONTACT: the previous 3-year period. All petitions were analyzed by Trade Adjustment Assistance for Additionally, the import data provided USDA’s Economic Research Service and Farmers Program Staff, Office of Trade for the same time period showed a 6.1- reviewed by the Trade Adjustment Programs, FAS, USDA; or by phone at percent decrease, instead of the required Assistance for Farmers Program Review (202) 720–0638 or (202) 690–0633; or by increase, under the program. Committee, comprised of e-mail at: Because the petition was unable to representatives from USDA’s Office of [email protected]; or visit meet the ‘greater than 15-percent the Chief Economist, Farm Service the TAA for Farmers’ Web site at: http: decline’ criterion and the ‘increase in Agency, Agricultural Marketing Service, //www.fas.usda.gov/itp/taa. imports’ criterion, the Administrator and FAS. After a review, the Administrator determined that the Dated: September 20, 2010. was not able to certify the petition, making coffee producers in Puerto Rico petition was unable to demonstrate the John D. Brewer, ‘greater than 15-percent decline’ Administrator, Foreign Agricultural Service. ineligible for trade adjustment assistance in FY 2011. criterion, because it showed only a 7.2- [FR Doc. 2010–24316 Filed 9–27–10; 8:45 am] percent decline in the average annual FOR FURTHER INFORMATION CONTACT: BILLING CODE 3410–10–P price for 2009/2010, when compared to Trade Adjustment Assistance for the previous 3-year period. Farmers Program Staff, Office of Trade Additionally, the import data provided DEPARTMENT OF AGRICULTURE Programs, FAS, USDA; or by phone at for the same time period showed a 3.7- (202) 720–0638 or (202) 690–0633; or by percent decrease, instead of the required Foreign Agricultural Service e-mail at: increase, under the program. [email protected]; or visit Because the petition was unable to Trade Adjustment Assistance for the TAA for Farmers’ Web site at: http:// Farmers meet the ‘greater than 15-percent www.fas.usda.gov/itp/taa. decline’ criterion and the ‘increase in AGENCY: Foreign Agricultural Service, Dated: September 20, 2010. imports’ criterion, the Administrator USDA. John D. Brewer, was not able to certify the petition, ACTION: Notice. Administrator, Foreign Agricultural Service. making apple producers in Maine [FR Doc. 2010–24308 Filed 9–27–10; 8:45 am] ineligible for trade adjustment The Administrator of the Foreign assistance in FY 2011. Agricultural Service (FAS) has denied a BILLING CODE 3410–10–P FOR FURTHER INFORMATION, CONTACT: petition (No. 2011001) for trade Trade Adjustment Assistance for adjustment assistance for coffee filed DEPARTMENT OF AGRICULTURE Farmers Program staff, Office of Trade under the fiscal year (FY) 2011 program Programs, USDA; or by phone at (202) by 100% Puerto Rico Coffee Export Foreign Agricultural Service 720–0638 or (202) 690–0633; or by e- Board, Inc. The petition was accepted mail at: [email protected]; for review by USDA on July 21, 2010. Trade Adjustment Assistance for or visit the TAA for Farmers’ Web site SUPPLEMENTARY INFORMATION: To qualify Farmers at: http://www.fas.usda.gov/itp/taa. under the program, Subtitle C of Title I of the Trade Act of 2002 (Pub. L. 107– AGENCY: Foreign Agricultural Service, Dated: September 20, 2010 210) states that petitions must USDA. John D. Brewer, demonstrate, using data for the most ACTION: Notice. Administrator, Foreign Agricultural Service. recent, full marketing year or full [FR Doc. 2010–24306 Filed 9–27–10; 8:45 am] The Administrator of the Foreign official marketing season, a greater than BILLING CODE 3410–10–P 15-percent decline in at least one of the Agricultural Service (FAS) has denied a following factors: national average price, petition (No. 2011017) for trade quantity of production, value of adjustment assistance for apples filed DEPARTMENT OF AGRICULTURE production, or cash receipts. under the fiscal year (FY) 2011 program According to the statute, it is also by the Maine State Pomological Society. Foreign Agricultural Service necessary for the petition to The petition was accepted for review by demonstrate that an increase in imports USDA on August 12, 2010. Trade Adjustment Assistance for of like or directly competitive articles, SUPPLEMENTARY INFORMATION: To qualify Farmers during the same marketing period, under the program, Subtitle C of Title I AGENCY: Foreign Agricultural Service, contributed importantly to the decrease of the Trade Act of 2002 (Pub. L. 107– USDA. in one of the above factors for the 210) states that petitions must ACTION: Notice. agricultural commodity. demonstrate, using data for the most All petitions were analyzed by recent, full marketing year or full The Administrator, Foreign USDA’s Economic Research Service and official marketing season, a greater than Agricultural Service (FAS), denied a reviewed by the Trade Adjustment 15-percent decline in at least one of the petition (No. 2011021) for trade Assistance for Farmers Program Review following factors: National average adjustment assistance for wool filed Committee, comprised of under the fiscal year (FY) 2011 program

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00006 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59685

by the Kansas Sheep Association. The DEPARTMENT OF AGRICULTURE (202) 720–0638 or (202) 690–0633; or by petition was accepted for review by e-mail at: USDA on July 26, 2010. Foreign Agricultural Service [email protected]; or visit the TAA for Farmers’ Web site at: http: SUPPLEMENTARY INFORMATION: To qualify Trade Adjustment Assistance for //www.fas.usda.gov/itp/taa. under the program, Subtitle C of Title I Farmers of the Trade Act of 2002 (Pub. L. 107– Dated: September 20, 2010. AGENCY: Foreign Agricultural Service, 210) states that petitions must John D. Brewer, USDA. demonstrate, using data for the most Administrator, Foreign Agricultural Service. ACTION: recent, full marketing year or full Notice. [FR Doc. 2010–24323 Filed 9–27–10; 8:45 am] official marketing season, a greater than The Administrator of the Foreign BILLING CODE 3410–10–P 15-percent decline in at least one of the Agricultural Service (FAS) has denied following factors: national average price, petitions (Nos. 2011024, 2011025) for quantity of production, value of trade adjustment assistance for lamb DEPARTMENT OF COMMERCE production, or cash receipts. filed under the fiscal year (FY) 2011 Office of Innovation and According to the statute, it is also program by lamb producers from Ohio. Entrepreneurship; the National necessary for the petitions to The petitions were accepted for review Advisory Council on Innovation and demonstrate that an increase in imports by USDA on July 23, 2010. Entrepreneurship: National Advisory of like or directly competitive articles, SUPPLEMENTARY INFORMATION: To qualify Council on Innovation and during the same marketing period, under the program, Subtitle C of Title I Entrepreneurship contributed importantly to the decrease of the Trade Act of 2002 (Pub. L. 107– AGENCY: Office of Innovation and in one of the above factors for the 210) states that petitions must Entrepreneurship, U.S. Department of agricultural commodity. demonstrate, using data for the most recent, full marketing year or full Commerce. All petitions were analyzed by official marketing season, a greater than ACTION: Notice of an open meeting. USDA’s Economic Research Service and 15-percent decline in at least one of the reviewed by the Trade Adjustment following factors: national average price, SUMMARY: The National Advisory Assistance (TAA) for Farmers Program quantity of production, value of Committee on Innovation and Review Committee, comprised of production, or cash receipts. Entrepreneurship will hold a meeting representatives from USDA’s Office of According to the statute, it is also via conference call on Tuesday, October the Chief Economist, Farm Service necessary for the petitions to 12, 2010. The meeting will be Agency, Agricultural Marketing Service, demonstrate that an increase in imports conducted from 3 p.m. to 5 p.m. and will be opened to the public. The and FAS. After a review, the of like or directly competitive articles, Council was chartered on November 10, Administrator determined that the during the same marketing period, 2009, to advise the Secretary of petition demonstrated the ‘greater than contributed importantly to the decrease Commerce on matters relating to 15-percent decline’ criterion, because it in one of the above factors for the agricultural commodity. innovation and entrepreneurship in the showed a 15.9-percent decline in the United States. value of wool production for 2009, All petitions were analyzed by USDA’s Economic Research Service and DATES: October 12, 2010. when compared to the previous 3-year Time: 3 p.m.–5 p.m. (EDT). period. However, the import data reviewed by the Trade Adjustment Assistance for Farmers Program Review ADDRESSES: This program will be provided for the same time period Committee, comprised of conducted and available to the public showed a 37.2-percent decrease, instead representatives from USDA’s Office of via a listen-in conference number, 888– of the required increase, under the the Chief Economist, Farm Service 942–9574, and passcode, 6315042. program. Agency, Agricultural Marketing Service, Please specify any requests for Because the petition was unable to and FAS. After a review, the reasonable accommodation of auxiliary meet the ‘increase in imports’ criterion, Administrator determined that the aids at least five business days in the Administrator was not able to certify petitions were unable to demonstrate advance of the meeting. Last minute the petition, making wool producers in the ‘greater than 15-percent decline’ requests will be accepted, but may be Kansas ineligible for trade adjustment criterion, because they showed only a 6- impossible to fill. assistance in FY 2011. percent decline in the quantity of SUPPLEMENTARY INFORMATION: Agenda production for 2009, when compared to topics to be discussed include: FOR FURTHER INFORMATION CONTACT: the previous 3-year period. Impressions from the first NACIE Trade Adjustment Assistance for Additionally, the import data provided meeting, as well as NACIE strategies, Farmers Program Staff, Office of Trade for the same time periods showed a goals and processes for 2011. No time Programs, FAS, USDA, or by phone at 10.9-percent decrease, instead of the will be available for oral comments from (202) 720–0638, or (202) 690–0633, or required increase, under the program. members of the public listening to the by e-mail at: [email protected]. Because the petitions were unable to meeting. Any member of the public may gov; or visit the TAA for Farmers’ Web meet the ‘greater than 15-percent submit pertinent written comments site at: http://www.fas.usda.gov/itp/taa. decline’ criterion and the ‘increase in concerning the Council’s affairs at any Dated: September 20, 2010. imports’ criterion, the Administrator time before and after the meeting. was not able to certify them, making Comments may be submitted to Paul John D. Brewer, lamb producers in Ohio ineligible for Corson at the contact information Administrator, Foreign Agricultural Service. trade adjustment assistance in FY 2011. indicated below. Copies of Board [FR Doc. 2010–24302 Filed 9–27–10; 8:45 am] FOR FURTHER INFORMATION CONTACT: meeting minutes will be available BILLING CODE 3410–10–P Trade Adjustment Assistance for within 90 days of the meeting. Farmers Program Staff, Office of Trade FOR FURTHER INFORMATION CONTACT: Paul Programs, FAS, USDA; or by phone at J. Corson, Office of Innovation and

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00007 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59686 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

Entrepreneurship, Room 7019, 1401 II. Method of Collection respondent burden, invites the general Constitution Avenue, NW., Washington, A paper form is used. public and other Federal agencies to DC 20230, telephone: 202–482–2042, e- take this opportunity to comment on mail: [email protected]. Please III. Data proposed and/or continuing information reference, ‘‘NACIE October 12, 2010’’ in OMB Control Number: 0648–0007. collections, as required by the the subject line of your e-mail. Form Number: NOAA Form 77–6. Paperwork Reduction Act of 1995. Dated: September 24, 2010. Type of Review: Regular submission DATES: Written comments must be Esther Lee, (renewal of a currently approved submitted on or before November 29, 2010. Director, Office of Innovation and information collection). Entrepreneurship, U.S. Department of Affected Public: Individuals or ADDRESSES: Direct all written comments Commerce. households. to Diana Hynek, Departmental [FR Doc. 2010–24447 Filed 9–27–10; 8:45 am] Estimated Number of Respondents: Paperwork Clearance Officer, 50. BILLING CODE 3510–03–P Department of Commerce, Room 6616, Estimated Time per Response: 30 14th and Constitution Avenue, NW., minutes. Washington, DC 20230 (or via the DEPARTMENT OF COMMERCE Estimated Total Annual Burden Internet at [email protected]). Hours: 25. FOR FURTHER INFORMATION CONTACT: Estimated Total Annual Cost to National Oceanic and Atmospheric Requests for additional information or Public: $0. Administration copies of the information collection instrument and instructions should be Proposed Information Collection; IV. Request for Comments directed to Kay Metcalf, 301–817–4558 Comment Request; Coast Pilot Report Comments are invited on: (a) Whether the proposed collection of information or [email protected]. AGENCY: National Oceanic and is necessary for the proper performance SUPPLEMENTARY INFORMATION: Atmospheric Administration (NOAA), of the functions of the agency, including I. Abstract Commerce. whether the information shall have This notice is for renewal of an practical utility; (b) the accuracy of the ACTION: Notice. existing information collection. The agency’s estimate of the burden National Ocean and Atmospheric SUMMARY: The Department of (including hours and cost) of the Administration (NOAA) operates two Commerce, as part of its continuing proposed collection of information; (c) space-based data collection systems effort to reduce paperwork and ways to enhance the quality, utility, and (DCS), the Geostationary Operational respondent burden, invites the general clarity of the information to be Environmental Satellite (GOES) DCS public and other Federal agencies to collected; and (d) ways to minimize the and the Polar-Orbiting Operational take this opportunity to comment on burden of the collection of information Environmental Satellite (POES) DCS, proposed and/or continuing information on respondents, including through the also known as the Argos system. NOAA collections, as required by the use of automated collection techniques allows users access to the DCS if they Paperwork Reduction Act of 1995. or other forms of information meet certain criteria. The applicants DATES: Written comments must be technology. must submit information to ensure that submitted on or before November 29, Comments submitted in response to they meet these criteria. NOAA does not 2010. this notice will be summarized and/or approve agreements where there is a included in the request for OMB commercial service available to fulfill ADDRESSES: Direct all written comments approval of this information collection; the user’s requirements. to Diana Hynek, Departmental they also will become a matter of public Paperwork Clearance Officer, record. II. Method of Collection Department of Commerce, Room 6616, Dated: September 23, 2010. Submittal include Internet, facsimile 14th and Constitution Avenue, NW., Gwellnar Banks, transmission and postal mailing of Washington, DC 20230 (or via the paper forms. Internet at [email protected]). Management Analyst, Office of the Chief Information Officer. III. Data FOR FURTHER INFORMATION CONTACT: [FR Doc. 2010–24301 Filed 9–27–10; 8:45 am] Requests for additional information or OMB Control Number: 0648–0157. BILLING CODE 3510–JE–P copies of the information collection Form Number: None. instrument and instructions should be Type of Review: Regular submission (renewal of a currently approved directed to Thomas Loeper at 301–713– DEPARTMENT OF COMMERCE 2750 ext. 165, or [email protected]. collection). Affected Public: Not-for-profit SUPPLEMENTARY INFORMATION: National Oceanic and Atmospheric Administration institutions; Federal government; state, I. Abstract local, or tribal government; business or Proposed Information Collection; other for-profit organizations. NOAA publishes the United States Comment Request; NOAA Space- Estimated Number of Respondents: (U.S.) Coast Pilot, a series of nine books Based Data Collection System (DCS) 415. which supplement the suite of nautical Agreements Estimated Time Per Response: charts published by NOAA. The U.S. Estimated Total Annual Burden Hours: Coast Pilot contains information AGENCY: National Oceanic and One hour and eight minutes per essential to navigators plying U.S. Atmospheric Administration (NOAA). response. coastal and intracoastal waters which ACTION: Notice. Estimated Total Annual Burden cannot be readily displayed upon the Hours: 470. charts. The Coast Pilot Report is offered SUMMARY: The Department of Estimated Total Annual Cost to to the public as a means of facilitating Commerce, as part of its continuing Public: $0 in recordkeeping/reporting suggested changes. effort to reduce paperwork and costs.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00008 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59687

IV. Request for Comments instrument and instructions should be IV. Request for Comments Comments are invited on: (a) Whether directed to Patsy Bearden, (907) 586– Comments are invited on: (a) Whether the proposed collection of information 7008 or [email protected]. the proposed collection of information is necessary for the proper performance SUPPLEMENTARY INFORMATION: is necessary for the proper performance of the functions of the agency, including of the functions of the agency, including I. Abstract whether the information shall have whether the information shall have practical utility; (b) the accuracy of the This request is for an extension practical utility; (b) the accuracy of the agency’s estimate of the burden without change of a currently approved agency’s estimate of the burden (including hours and cost) of the information collection. The National (including hours and cost) of the proposed collection of information; (c) Marine Fisheries Service (NMFS) proposed collection of information; (c) ways to enhance the quality, utility, and manages the crab fisheries in the waters ways to enhance the quality, utility, and clarity of the information to be off the coast of Alaska under the Fishery clarity of the information to be collected; and (d) ways to minimize the Management Plan (FMP) for the Bering collected; and (d) ways to minimize the burden of the collection of information Sea and Aleutian Islands (BSAI) Crab. burden of the collection of information on respondents, including through the The Magnuson-Stevens Fishery on respondents, including through the use of automated collection techniques Conservation and Management Act, 16 use of automated collection techniques or other forms of information U.S.C. 1801 et seq. (Magnuson-Stevens or other forms of information technology. Act) mandated the Secretary of technology. Comments submitted in response to Commerce to implement the Crab Comments submitted in response to this notice will be summarized and/or Rationalization Program (CR Program) this notice will be summarized and/or included in the request for OMB for the BSAI Management Area (BSAI) included in the request for OMB approval of this information collection; crab fisheries. The CR Program allocates approval of this information collection; they also will become a matter of public BSAI crab resources among harvesters, they also will become a matter of public record. processors, and coastal communities record. Dated: September 21, 2010. and monitors the ‘‘economic stability for Dated: September 21, 2010. Gwellnar Banks, harvesters, processors, and coastal Gwellnar Banks, ’’ Management Analyst, Office of the Chief communities. The Magnuson-Stevens Management Analyst, Office of the Chief Information Officer. Act provides specific guidance on the Information Officer. CR Program’s mandatory economic data [FR Doc. 2010–24241 Filed 9–27–10; 8:45 am] [FR Doc. 2010–24240 Filed 9–27–10; 8:45 am] collection report (EDR) used to assess BILLING CODE 3510–HR–P the efficacy of the CR Program. Data BILLING CODE 3510–22–P from the EDR will directly contribute to DEPARTMENT OF COMMERCE ongoing evaluation of potential anti- DEPARTMENT OF COMMERCE trust and anti-competitive practices in National Oceanic and Atmospheric the crab industry. National Oceanic and Atmospheric Administration II. Method of Collection Administration Proposed Information Collection; Respondents have a choice of either Proposed Information Collection; Comment Request; Alaska Region electronic or paper forms. Methods of Comment Request; Comprehensive Bering Sea & Aleutian Islands (BSAI) submittal include e-mail of electronic Data Collection on Fishing Crab Economic Data Reports forms, online transmission, and mail Dependence of Alaska Communities transmission of paper forms. AGENCY: National Oceanic and AGENCY: National Oceanic and Atmospheric Administration (NOAA). III. Data Atmospheric Administration (NOAA). ACTION: ACTION: Notice. OMB Control Number: 0648–0518. Notice. SUMMARY: The Department of Form Number: None. SUMMARY: The Department of Commerce, as part of its continuing Type of Review: Regular submission Commerce, as part of its continuing effort to reduce paperwork and (extension without change of a currently effort to reduce paperwork and respondent burden, invites the general approved information collection). respondent burden, invites the general public and other Federal agencies to Affected Public: Business or other for- public and other Federal agencies to take this opportunity to comment on profit organizations; not-for-profit take this opportunity to comment on proposed and/or continuing information institutions. proposed and/or continuing information collections, as required by the Estimated Number of Respondents: collections, as required by the Paperwork Reduction Act of 1995. 131. Paperwork Reduction Act of 1995. DATES: Written comments must be Estimated Time Per Response: 7 DATES: Written comments must be submitted on or before November 29, hours, 30 minutes for annual catcher submitted on or before November 29, 2010. vessel EDR; 12 hours, 30 minutes for 2010. ADDRESSES: Direct all written comments annual catcher/processor EDR; 10 hours ADDRESSES: Direct all written comments to Diana Hynek, Departmental for annual stationary floating crab to Diana Hynek, Departmental Paperwork Clearance Officer, processor EDR; 10 hours for annual Paperwork Clearance Officer, Department of Commerce, Room 6616, shoreside processor EDR; and 3 hours Department of Commerce, Room 6616, 14th and Constitution Avenue, NW., for verification of data. 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Estimated Total Annual Burden Washington, DC 20230 (or via the Internet at [email protected]). Hours: 1,478. Internet at [email protected]). FOR FURTHER INFORMATION CONTACT: Estimated Total Annual Cost to FOR FURTHER INFORMATION CONTACT: Requests for additional information or Public: $150,606 in recordkeeping/ Requests for additional information or copies of the information collection reporting costs. copies of the information collection

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00009 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59688 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

instrument and instructions should be Form Number: None. operators/users located within a directed to Amber Himes, (206) 526– Type of Review: Regular submission. grantee’s ‘‘service area’’ in the context of 4221 or [email protected]. Affected Public: State, local, or tribal the Board’s standard 2,000-acre SUPPLEMENTARY INFORMATION: government. activation limit for a general-purpose Estimated Number of Respondents: zone project. The application was I. Abstract 524. submitted pursuant to the Foreign-Trade The purpose of this data collection Estimated Time Per Response: 1 hour. Zones Act, as amended (19 U.S.C. 81a– program is to improve commercial Estimated Total Annual Burden 81u), and the regulations of the Board fisheries socioeconomic data for North Hours: 524. (15 CFR part 400). It was formally filed Pacific fisheries, using the community Estimated Total Annual Cost to on September 23, 2010. as the unit of reporting and analysis. Public: $0 in recordkeeping/reporting FTZ 203 was approved by the Board Communities are often the focus of costs. on October 18, 1994 (Board Order 702, policy mandates (e.g. National Standard IV. Request for Comments 59 FR 54433, 10/31/94). The current 8 of the Magnuson-Stevens Fisheries zone project includes the following site: Comments are invited on: (a) Whether Management Act (MSA), social impact Site 1 (316 acres)—Port of Moses Lake the proposed collection of information assessments under the National Industrial Park, located within the Grant is necessary for the proper performance Environmental Policy Act and MSA, County International Airport complex, of the functions of the agency, including North Pacific Fishery Management Moses Lake, Washington. whether the information shall have Council (NPFMC) programmatic The grantee’s proposed service area management goals, etc.) and are practical utility; (b) the accuracy of the under the ASF would include all of frequently a recognized stakeholder in agency’s estimate of the burden Benton, Chelan, Columbia, Douglas, NPFMC deliberations and programs. (including hours and cost) of the Franklin, Grant, Kittitas, Lincoln and However, much of the existing proposed collection of information; (c) Walla Walla Counties, as well as commercial socioeconomic data is ways to enhance the quality, utility, and portions of Okanogan and Yakima collected and organized around clarity of the information to be Counties, Washington, as described in different units of analysis, such as collected; and (d) ways to minimize the the application. If approved, the grantee counties (boroughs), fishing firms, burden of the collection of information would be able to serve sites throughout vessels, sectors, and gear groups. It is on respondents, including through the the service area based on companies’ often difficult to aggregate or use of automated collection techniques needs for FTZ designation. The disaggregate these data for analysis at or other forms of information proposed service area is within and the individual community or regional technology. adjacent to the Moses Lake Customs and level. In addition, at present, some Comments submitted in response to Border Protection port of entry. relevant community level this notice will be summarized and/or The applicant is requesting authority socioeconomic data are simply not included in the request for OMB to reorganize its existing zone project to collected at all. The NPFMC, the Alaska approval of this information collection; include the existing site as a ‘‘magnet’’ Fisheries Science Center (AFSC), and they also will become a matter of public site. The ASF allows for the possible community stakeholder organizations, record. exemption of one magnet site from the have identified ongoing collection of Dated: September 21, 2010. ‘‘sunset’’ time limits that generally apply community level economic and Gwellnar Banks, to sites under the ASF, and the socioeconomic information, specifically Management Analyst, Office of the Chief applicant proposes that Site 1 be so related to commercial fisheries, as a Information Officer. exempted. The applicant is also priority. [FR Doc. 2010–24239 Filed 9–27–10; 8:45 am] requesting approval of the following initial ‘‘usage-driven’’ sites in Grant The proposed data collection will BILLING CODE 3510–22–P include information on community County: Proposed Site 2 (38 acres)—Zip revenues based in the fisheries Truck Line, Inc., 13957 Road 1.9 NE, economy, population fluctuations, DEPARTMENT OF COMMERCE Moses Lake; and, Proposed Site 3 (60 vessel expenditures in ports, fisheries acres)—SGL Automotive Carbon Fibers, infrastructure available in the Foreign-Trade Zones Board LLC, 8781 Randolph Road NE, Moses Lake. Because the ASF only pertains to community, support sector business [Docket 56–2010] operations in the community, establishing or reorganizing a general- community participation in fisheries Foreign-Trade Zone 203—Moses Lake, purpose zone, the application would management, effects of fisheries WA; Application for Reorganization have no impact on FTZ 203’s authorized management decisions on the and Expansion Under Alternative Site subzone. community, and demographic Framework In accordance with the Board’s information on commercial fisheries regulations, Christopher Kemp of the participants from the community. The An application has been submitted to FTZ Staff is designated examiner to information collected in this program the Foreign-Trade Zones (FTZ) Board evaluate and analyze the facts and will capture the most relevant and (the Board) by the Port of Moses Lake information presented in the application pressing types of data needed for Public Corporation, grantee of FTZ 203, and case record and to report findings socioeconomic analyses of requesting authority to reorganize and and recommendations to the Board. communities. expand the zone under the alternative Public comment is invited from site framework (ASF) adopted by the interested parties. Submissions (original II. Method of Collection Board (74 FR 1170, 1/12/09; correction and 3 copies) shall be addressed to the The method of data collection will be 74 FR 3987, 1/22/09). The ASF is an Board’s Executive Secretary at the a survey sent by mail (and by e-mail option for grantees for the establishment address below. The closing period for where possible). or reorganization of general-purpose their receipt is November 29, 2010. zones and can permit significantly Rebuttal comments in response to III. Data greater flexibility in the designation of material submitted during the foregoing OMB Control Number: None. new ‘‘usage-driven’’ FTZ sites for period may be submitted during the

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00010 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59689

subsequent 15-day period to December Countervailing Duty Administrative account for slurry pipe transporation 13, 2010. Review, 73 FR 40295 (July 14, 2008) cost to Vizag. A copy of the application will be (Final Results), and accompanying On July 15, 2010, the Department available for public inspection at the Issues and Decision Memorandum (I&D issued its final results of Office of the Executive Secretary, Memorandum). redetermination pursuant to Essar. The Foreign-Trade Zones Board, Room 2111, EFFECTIVE DATE: September 28, 2010. remand redetermination explained that, U.S. Department of Commerce, 1401 FOR FURTHER INFORMATION CONTACT: in accordance with the CIT’s Constitution Avenue, NW., Washington, Gayle Longest, AD/CVD Operations, instructions, the Department has made DC 20230–0002, and in the ‘‘Reading Office 3, Import Administration redeterminations with respect to the Room’’ section of the Board’s Web site, International Trade Administration, calculation of the government price for iron ore lumps and fines as well as which is accessible via http:// U.S. Department of Commerce, 14th Essar’s purchases of lumps and fines for www.trade.gov/ftz. For further Street and Constitution Avenue, NW, the following three issues. First, we information, contact Christopher Kemp Washington, DC, 20230; telephone (202) adjusted our iron ore calculations to at [email protected] or (202) 482–3338. 482–0862. measure the adequacy of remuneration SUPPLEMENTARY INFORMATION: of sales of lumps and fines by the GOI Dated: September 23, 2010. Background to Essar to include Central Sales Tax for Elizabeth Whiteman, Essar’s purchase of iron ore lumps and On July 14, 2008, the Department Acting Executive Secretary. high–grade iron ore fines from the published its final results in the [FR Doc. 2010–24319 Filed 9–27–10; 8:45 am] NMDC and to include import duties countervailing duty administrative BILLING CODE 3510–DS–P payable on iron ore with regard to the review of HRCS from India covering the corresponding benchmark prices. POR of January 1, 2006, through Second, we corrected the government DEPARTMENT OF COMMERCE December 31, 2006. See Final Results. In price for iron ore lumps and fines to the Final Results, the Department did address erroneous freight calculations International Trade Administration not include central sales taxes paid on for Essar’s purchases of iron ore from domestic purchases of iron ore lumps [C–533–821] NMDC. Third, for fines purchases from and for high–grade iron ore fines NMDC made on or after the date the Certain Hot-Rolled Carbon Steel Flat because we did not have information on slurry pipeline became operational, we Products From India: Notice of Court import duties and other taxes and fees have replaced the per metric ton (MT) Decision Not in Harmony with Final payable on imports of iron ore to be rail cost with the per MT slurry Results of Administrative Review included in the calculation of the transportation costs. The Department’s benchmark. See I&D Memorandum at redetermination resulted in changes to AGENCY: Import Administration, ‘‘Sale of High–Grade Iron Ore for Less the Final Results for Essar’s net subsidy International Trade Administration, Than Adequate Remuneration’’ section rate concerning the sale of iron ore for Department of Commerce. and Comment 4. In Essar, the CIT less than adequate remuneration SUMMARY: On September 13, 2010, the determined that the Department’s Final program from 13.21 percent to 19.35 United States Court of International Results were not supported by percent. Therefore, the Department’s Trade (CIT) sustained the Department of substantial evidence on the record, and redetermination resulted in the total net Commerce’s (the Department’s) results it remanded to the Department the issue countervailable subsidy rate received by of redetermination pursuant to the CIT’s of the deduction of Central Sales Tax Essar in the Final Results changing from remand in United States Steel from the government price in order for 17.50 percent to 23.64 percent. Corporation, et al. v. United States et al. the Department to reevaluate the record and Essar Steel Limited v. United States evidence supporting this decision. Timken Notice et al., Slip Op. 09–152, Remand Order Moreover, subsequent to the Final In its decision in Timken, 893 F.2d at (December 30, 2009)(Essar). See Final Results, we discovered that the 341, the CAFC held that, pursuant to Results of Redetermination Pursuant to transportation and delivery charges (i.e., section 516A(e) of the Tariff Act of Court Remand, dated July 15, 2010 all transportation and handling costs, 1930, as amended (the Act), the (found at http://ia.ita.doc.gov/remands); duties and fees) for iron ore lumps and Department must publish a notice of a and United States Steel Corporation, et fines from Vizag port to Hazira port had court decision that is not ‘‘in harmony’’ al. v. United States et al. and Essar Steel not been included in either the iron ore with a Department determination and Limited v. United States et al., Slip Op. lumps or fines calculations. Therefore, must suspend liquidation of entries 10–104 (September 13, 2010) (Essar). the we asked the court for a voluntary pending a ‘‘conclusive’’ court decision. Consistent with the decision of the remand to adjust Essar’s delivered The CIT’s decision in Essar on United States Court of Appeals for the purchase price for fines from NMDC to September 13, 2010, constitutes a final Federal Circuit (CAFC) in Timken Co. v. include missing delivery charges. In decision of that court that is not in United States, 893 F.2d 337 (Fed. Cir. Essar, the CIT granted the Department’s harmony with the Department’s Final 1990) (Timken), the Department is request for a voluntary remand to Results. This notice is published in notifying the public that the final correct the freight calculations for fulfillment of the publication judgment in this case is not in harmony Essar’s purchases of iron ore fines from requirements of Timken. Accordingly, with the Department’s final results of the National Mineral Development the Department will continue the the administrative review of the Corporation (NMDC). Specifically, the suspension of liquidation of the subject countervailing duty order on certain CIT ordered the Department to adjust merchandise pending the expiration of hot–rolled carbon steel flat products the government price for iron ore lumps the period of appeal or, if appealed, (HRCS) from India covering the period and fines used in the price comparison pending a final and conclusive court of review (POR) of January 1, 2006, to measure the adequacy of decision. In the event the CIT’s ruling is through December 31, 2006. See Certain remuneration (1) to correct freight not appealed or, if appealed, upheld by Hot–Rolled Carbon Steel Flat Products calculations for Essar’s purchases of the CAFC, the Department will issue an from India: Final Results of iron ore fines from the NMDC and (2) to amended final results consistent with

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00011 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59690 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

these redeterminations and instruct U.S. under the ESA. Copies of this petition affecting the species’ existence (16 Customs and Border Protection to assess are available from us (see ADDRESSES, U.S.C. 1533(a)(1)). countervailing duties on entries of the above). ESA-implementing regulations issued subject merchandise during the POR jointly by NMFS and the U.S. Fish and ESA Statutory and Regulatory from Essar based on the revised Wildlife Service (USFWS; 50 CFR Provisions and Evaluation Framework assessment rates calculated by the 424.14(b)) define ‘‘substantial Department. Section 4(b)(3)(A) of the ESA of 1973, information’’ in the context of reviewing This notice is issued and published in as amended (U.S.C. 1531 et seq.), a petition to list, delist, or reclassify a accordance with section 516A(e)(1) of requires, to the maximum extent species as the amount of information the Tariff Act of 1930, as amended. practicable, that within 90 days of that would lead a reasonable person to believe that the measure proposed in the Dated: September 22, 2010. receipt of a petition to list a species as petition may be warranted. In evaluating Ronald K. Lorentzen, threatened or endangered, the Secretary of Commerce make a finding on whether whether substantial information is Deputy Assistant Secretary for Import contained in a petition, the Secretary Administration. that petition presents substantial scientific or commercial information must consider whether the petition: (1) [FR Doc. 2010–24312 Filed 9–27–10; 8:45 am] indicating that the petitioned action Clearly indicates the administrative BILLING CODE 3510–DS–S may be warranted, and to promptly measure recommended and gives the publish such finding in the Federal scientific and any common name of the species involved; (2) contains detailed DEPARTMENT OF COMMERCE Register (16 U.S.C. 1533(b)(3)(A)). When it is found that substantial scientific or narrative justification for the recommended measure, describing, National Oceanic and Atmospheric commercial information in a petition based on available information, past and Administration indicates the petitioned action may be warranted (a ‘‘positive 90-day finding’’), present numbers and distribution of the [Docket No. 100604243–0430–02] we are required to promptly commence species involved and any threats faced by the species; (3) provides information RIN 0648–XW88 a review of the status of the species concerned during which we will regarding the status of the species over Endangered and Threatened Wildlife; conduct a comprehensive review of the all or a significant portion of its range; Notice of 90-Day Finding on a Petition best available scientific and commercial and (4) is accompanied by the To List Warsaw Grouper as Threatened information. In such cases, within 1 appropriate supporting documentation or Endangered Under the Endangered year of receipt of the petition, we shall in the form of bibliographic references, Species Act (ESA) conclude the review with a finding as to reprints of pertinent publications, whether, in fact, the petitioned action is copies of reports or letters from AGENCY: National Marine Fisheries warranted. Because the finding at the authorities, and maps (50 CFR Service (NMFS), National Oceanic and 424.14(b)(2)). 12-month stage is based on a more Atmospheric Administration (NOAA), To make a 90-day finding on a thorough review of the available Department of Commerce. petition to list a species, we evaluate information, as compared to the narrow ACTION: Notice of 90-day petition whether the petition presents scope of review at the 90-day stage, a substantial scientific or commercial finding. ‘‘ ’’ may be warranted finding does not information indicating the subject prejudge the outcome of the status SUMMARY: We (NMFS) announce a 90- species may meet the ESA’s definition review. day finding on a petition to list warsaw of either an endangered or a threatened grouper (Epinephelus nigritus) as Under the ESA, a listing species, and that such status may be the threatened or endangered under the determination may address a ‘‘species,’’ result of one or a combination of the ESA. We find that the petition does not which is defined to also include factors listed under section 4(a)(1) of the present substantial scientific or subspecies and, for any vertebrate ESA. Thus, we first evaluate whether commercial information indicating that species, a distinct population segment the information presented in the the petitioned action may be warranted. (DPS) that interbreeds when mature (16 petition, along with the information U.S.C. 1532(16)). A species, subspecies, ADDRESSES: Copies of the petition and readily available in our files, indicates or DPS is ‘‘endangered’’ if it is in danger related materials are available upon that the species at issue faces extinction of extinction throughout all or a request from the Chief, Protected risk that is cause for concern. Risk significant portion of its range, and Resources Division, Southeast Regional classifications of the petitioned species ‘‘threatened’’ if it is likely to become Office, NMFS, 263 13th Avenue South, by other organizations or made under endangered within the foreseeable St. Petersburg, FL 33701, or online from other statutes may be informative, but future throughout all or a significant the NMFS HQ Web site: http:// may not provide rationale for a positive portion of its range (ESA sections 3(6) www.nmfs.noaa.gov/pr/species/fish/ 90-day finding; many times these and 3(20), respectively, 16 U.S.C. warsawgrouper.htm. classifications are generalized for a 1532(6) and (20)). The ESA requires us group of species, or only describe traits FOR FURTHER INFORMATION CONTACT: to determine whether species are of species that could increase their Michael Barnette, NMFS Southeast threatened or endangered because of vulnerability to extinction if they were Region, 727–551–5794, or Marta any one or a combination of the being adversely impacted. We evaluate Nammack, NMFS Office of Protected following five section 4(a)(1) factors: (1) any information on specific Resources, 301–713–1401. The present or threatened destruction, demographic factors pertinent to SUPPLEMENTARY INFORMATION: modification, or curtailment of habitat evaluating extinction risk for the species or range; (2) overutilization for at issue (e.g., population abundance and Background commercial, recreational, scientific, or trends, productivity, spatial structure, On March 3, 2010, we received a educational purposes; (3) disease or age structure, sex ratio, diversity, petition from the WildEarth Guardians predation; (4) inadequacy of existing current and historical range, habitat to list warsaw grouper (Epinephelus regulatory mechanisms; and (5) any integrity), and the potential contribution nigritus) as threatened or endangered other natural or manmade factors of identified demographic risks to

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00012 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59691

extinction risk for the species. We then Adults typically inhabit rough, contributing to the species’ evaluate the potential links between irregular bottoms including steep cliffs endangerment. The petition states that these demographic risks and the and rocky ledges of the continental shelf the species’ biological constraints causative section 4(a)(1) factors. break in waters 180 to 1,700 feet (55 to increase its susceptibility to adverse Information on threats should be 525 m) deep, while juveniles may impacts from fishing, and that the specific to the species and should occasionally be found in shallower species is inadequately protected by reasonably suggest that one or more of waters (Heemstra and Randall, 1993). regulatory mechanisms from the threats these factors may be operative threats Warsaw grouper is considered naturally it faces. Thus, the petition states that at that act or have acted on the species to rare, and specimens are most often least three of the five causal factors in the point that it may warrant protection caught incidentally in fisheries for section 4(a)(1) of the ESA are adversely under the ESA. Broad statements about snowy grouper and other deep-dwelling affecting the continued existence of the generalized threats to the species, or species (Huntsman et al., 1990). Very warsaw grouper: overutilization in identification of factors that could little information is available about the fisheries; inadequacy of existing negatively impact a species, do not reproduction of warsaw grouper; eggs regulatory mechanisms; and other constitute substantial information that and larvae are presumed to be pelagic. natural or manmade factors, particularly listing may be warranted. We look for The occurrence of post-spawning the biological constraints of the species’ information that indicates not just that females in November may indicate a late life history. a species is exposed to a factor, but that summer spawning period (Bullock and Information on Extinction Risk also indicates the species may be Smith, 1991). Warsaw grouper is a long- responding in a negative fashion, and lived species (up to 41 years) and has a The petition cites classifications made then we assess the potential significance slow growth rate (Manooch and Mason, by NMFS, the International Union for of that negative response. 1987), with an estimated age of sexual Conservation of Nature (IUCN), the For a 90-day finding, we evaluate the maturity between 4 (Ault et al., 1998) American Fisheries Society (AFS), and petitioner’s request based upon the and 9 years (Parker and Mays, 1998). NatureServe to support its assertion that information in the petition and its While most serranid species are warsaw grouper is imperiled. Warsaw references, and the information readily protogynous hermaphrodites, with grouper was added to our species of available in our files. We do not conduct individuals first maturing as females concern list on April 15, 2004 (69 FR additional research, we do not subject and only some large adults becoming 19975). Warsaw grouper had previously the petition to rigorous critical review, males, this has not been verified in been included on our ESA candidate and we do not solicit information from warsaw grouper. Maximum size is about species list since 1999 (64 FR 33466, parties outside the agency to help us in 7.7 feet (235 cm) and about 440 pounds June 23, 1999). A species of concern is evaluating the petition. We will accept (200 kg). Prey items include fish and one about which we have some the petitioner’s sources and crustaceans. concerns regarding status and threats, characterizations of the information but for which insufficient information is presented, if they appear to be based on Analysis of the Petition available to indicate a need to list the accepted scientific principles, unless we First we evaluated whether the species under the ESA (71 FR 61022; have specific information in our files petition presented the information October 17, 2006). Our rationale for that indicates the petition’s information indicated in 50 CFR 424.14(b)(2). The including warsaw grouper on the is incorrect, unreliable, or otherwise petition clearly indicates the species of concern list included a irrelevant to the requested action. administrative measure recommended potential population decline and threats Conclusive information indicating the and gives the scientific and any from fishing and bycatch. The IUCN species may meet the ESA’s common name of the species involved; classified warsaw grouper as critically requirements for listing is not required contains detailed narrative justification endangered in 2006, a status assigned to to make a positive 90-day finding. If the for the recommended measure, species facing an extremely high risk of information is equivocal, but reliable describing the distribution of the extinction in the wild, based on: ‘‘an information supports a conclusion that species, as well as the threats faced by observed, estimated, inferred or listing the species may be warranted, we the species; and is accompanied by the suspected population size reduction of defer to the information that supports appropriate supporting documentation ≥ 80% over the last 10 years or three the petition’s position. Uncertainty or in the form of bibliographic references, generations, whichever is the longer, lack of specific information does not reprints of pertinent publications, where the reduction or its causes may negate a positive 90-day finding, if the copies of reports or letters from not have ceased or may not be uncertainty or unknown information authorities, and maps. However, the understood or may not be reversible, itself suggests an extinction risk of petition does not include information based on actual or potential levels of concern for the species at issue. on the past and present numbers of the exploitation,’’ and ‘‘a population size species, or information regarding the reduction of ≥ 80%, projected or Warsaw Grouper Species Description status of the species over all or a suspected to be met within the next 10 The warsaw grouper is a large significant portion of its range, other years or three generations, whichever is member of the sea bass or serranid than conclusions and opinions. This the longer (up to a maximum of 100 family distributed from North Carolina latter information is also not available in years), based on actual or potential south into the Gulf of Mexico to the our files, as we discuss in detail below. levels of exploitation’’ (http:// northern coast of South America (Parker The petition states that the warsaw www.iucnredlist.org/apps/redlist/ and Mays, 1998). Warsaw grouper seem grouper is imperiled, that it has details/7860/0). In apparent to be rare in the West Indies, with single declined and continues to decline, that contradiction with this classification, records from Cuba, Haiti, and Trinidad; the primary threat to the species is the IUCN’s supporting assessment for this rarity and their apparent absence commercial fishing capture, including warsaw grouper states that its from the western Caribbean shelf may targeted capture and as bycatch, in population trend is unknown and be due to the dearth of deep-water gillnets, longlines, bottom trawls, and describes the status of warsaw grouper fishing in this area (Heemstra and other fishing gear and activities, and as ‘‘ambiguous.’’ The IUCN explains the Randall, 1993). that recreational fishers are likely critically endangered status for warsaw

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00013 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59692 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

grouper instead of a lower status as are contributing to the species’ late 1980s described in Parker and Mays justified in part: ‘‘(a) Because there is no extinction risk, but no information to (1998). As will be demonstrated below, good evidence of a change in condition support this contention is provided. The we believe that warsaw grouper has since the last assessment was petition makes reference to the generally always been too uncommonly captured conducted; (b) there is no clear understood natural rarity of the species in fisheries for data on landings or indication that management is being (e.g., citing results in Koenig et al. weight of fish landed to be a reliable effective; and (c) a precautionary 2000). However, rarity alone is not an indicator of population status and approach is being taken, given indication that warsaw grouper faces an trends. increasing fishing effort in offshore extinction risk that is cause for concern. Parker and Mays’ (1998) study waters where the species occurs.’’ A species’ rarity could be cause for objective was to assemble information The AFS developed its extinction risk concern if the species was distributed in on little known fish species of economic criteria for marine fishes in part as a small, isolated populations, or had a importance inhabiting deep reefs (100– reaction to IUCN’s criteria, which the very restricted geographic range and 300 m) along the south Atlantic coast of AFS Criteria Workshop stated ‘‘grossly was subject to specific habitat the U.S.; the information was needed to overestimate the extinction risk for degradation. Neither of these conditions support management measures under many if not most marine fish species’’ appears applicable to warsaw grouper. the MSFCMA in the early 1990s that because marine fish exhibit a wide Rarity could also subject a species to were triggered by considerable increases range of resilience to population heightened extinction risk if specific in the amount of effort exerted by declines based on life history stressors are negatively affecting its commercial and recreational fisheries parameters (Musick, 1999). The AFS status and trends. Therefore, we next beginning in the mid-1970s. Parker and (Musick et al., 2000) classified warsaw evaluated whether information indicates Mays (1998) describe a downward trend grouper in the U.S. as ‘‘endangered,’’ warsaw grouper’s population has in commercial landings from 1973 which they define as a species with a declined or continues to decline, and if through 1995, but the authors also ‘‘high risk of extinction in the wild in so whether this suggests extinction risk describe the commercial landings the immediate future (years),’’ and states that is cause for concern. information available to them at the the species is ‘‘now very rare, only small Population decline can result in time as limited; reliable information on individuals observed’’ (from Huntsman extinction risk that is cause for concern effort was described as unavailable, et al., 1999). The AFS describes warsaw in certain circumstances, for instance if catch was often not reported by species, grouper’s risk factors as: ‘‘Very low the decline is rapid and/or below a and less common species including productivity,’’ based on estimates of critical minimum population threshold warsaw grouper are described as ‘‘not Brody growth coefficient and maximum and the species has low resilience for sufficiently abundant to be targeted or age from taxa-specific literature used in recovery from a decline (Musick, 1999). recorded in catches.’’ This observation is Ault et al. (1998); rarity; protogynous The petition states that fishing has also echoed by Potts (2001), who noted, hermaphroditism; and vulnerability to likely resulted in a population decline ‘‘the species is not that common and overfishing (Heemstra and Randall, of warsaw grouper, and uses never has been in the South Atlantic 1993). Finally, the AFS states warsaw commercial landings and recreational region as long as records have been grouper is particularly vulnerable ‘‘to catch data to document the decline. collected.’’ extraordinary mortality because of their Fishery landings and catch data may The recreational fishing data life history constraints’’ such as the provide inferences about the population discussed in Parker and Mays (1998) are species’ large size (Musick et al., 2000). status and trends of a species, though NMFS’ Marine Recreational Fisheries NatureServe’s vulnerable such inferences may not be reliable in Statistics Survey (MRFSS) landings data classification is given to species that are the absence of information regarding the and headboat landings data. The MRFSS ‘‘at moderate risk of extinction or level or distribution of fishery effort includes telephone surveys of fishing elimination due to a restricted range, over time, changes in fishing practices, effort and an access-site intercept survey relatively few populations, recent and or changes in regulations that may affect of angler catch, which are then widespread declines, or other factors,’’ catch independent of changes in a combined and extrapolated to obtain but NatureServe does not provide species’ population. estimates of total catch, effort, and specific information on warsaw The fisheries data described in the participation for marine recreational grouper’s population size or trends. petition include a graph of weight of fisheries. Headboats are for-hire vessels In summary, none of the cited warsaw grouper landed in all South that carry multiple recreational classifications, including our own Atlantic fisheries combined from the fishermen to fishing locations in Federal species of concern listing or other late 1970s to the mid-1990s (from Parker waters. Parker and Mays (1998) describe information in our files, include a and Mays, 1998), reduction in average landings based on MRFSS data as highly specific analysis of extinction risk for weight of landed warsaw grouper, and variable, with an apparent large spike in warsaw grouper, or an analysis of conclusions from a study (Rudershausen 1985 and a subsequent steep decline. population size or trends, or other et al., 2008) documenting warsaw We believe the landings data from 1985 information directly addressing whether grouper were caught recreationally in are unreliable as an indicator of trends the species faces extinction risk that is North Carolina in the 1970s, but not in in the warsaw grouper population cause for concern. 2005–2006. Information in our files numbers for a number of reasons. The petition describes a few includes a number of reports, mostly Notably, the 1985 MRFSS Atlantic demographic factors specific to warsaw associated with our fishery management landings were estimated to total 99,811 grouper that could be indicative of its actions under Magnuson Stevens fish and 1.28 million pounds (581.5 extinction risk, for which the petition Fishery Conservation and Management metric tons (mt)), which is almost four provides some supporting information. Act (MSFCMA), noting a decline in times greater than the highest historical These include a declining population catch of warsaw grouper beginning catch of warsaw grouper in the trend, decrease in size of animals in the around the mid to late 1970s through combined Atlantic and Gulf of Mexico population, and rarity of males. The the late 1980s or early 1990s. Our commercial fishery (0.36 million petition also asserts that small sizes of species of concern listing similarly pounds (162.6 mt) in 1965). The 1985 adult populations of warsaw groupers relied on the decline in landings in the MRFSS landings estimates were

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00014 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59693

extrapolated from low survey effort and decline of warsaw grouper is there is limited weight data to evaluate small numbers of anglers reporting Rudershausen et al. (2008). However, for indications of population-level catching warsaw grouper: 6 Anglers out the single quote from the study trends. For example, MRFSS estimates of 5,426 surveyed in the South Atlantic contained in the petition is misleading. 3,711 warsaw grouper were caught by region reported catching warsaw The petition quotes the study, stating, Gulf of Mexico recreational fishers in grouper. Likewise, the headboat data ‘‘while warsaw groupers were caught in 1989, but no poundage is reported for analyzed by Parker and Mays (1998) the 1970s, they were not caught in that year. Further, given the size of adult were also based on very few actual fish 2005–2006.’’ However, the petition warsaw grouper and their deep reef evaluated per year—the highest being 41 neglects to mention that while no habitats, the difficulty in landing larger fish in 1984. warsaw grouper were caught in 2005– individuals may bias weight data Landings data alone are not very 2006, only one warsaw grouper was toward smaller, younger fish. useful in assessing the condition of a caught from the one study site in the The petition references an observation population as landings can fluctuate up 1970s that was resampled in 2005–2006 of rarity of males in the warsaw grouper and down for a variety of reasons. As (Rudershausen et al., 2008). population as an indication of its mentioned above, information about Additionally, the petition fails to note extinction risk (Huntsman’s pers. obs., fishing effort, fishing practices, and the study’s statement regarding ‘‘the from Chuen and Huntsman, 2006). regulatory measures affecting catch is total fishing effort in the 1970s was Protogynous fish populations exhibit generally necessary to determine greater than 2005–2006, which could naturally-skewed sex ratios, since fish whether trends in fishery landings and explain the absence of [this] species in do not transition from females to male catch are indicative of fish species’ the latter period.’’ until they reach larger sizes or older population status or trends. For ages. Fishing pressure can exacerbate The petition includes several example, decline in catch per unit of this sex bias if older, larger male fish are examples of reduction in average weight effort (CPUE) is a generally accepted disproportionately removed, potentially of individual warsaw grouper landed in indicator of decline in abundance of a leading to reproductive failure, or by fisheries to support their assertion the target fish species. The petition does not reducing the mean lifespan of the species is imperiled, including weight discuss information on effort and population and reducing the probability data reported in Parker and Mays regulations respecting catch and effort. that females will survive long enough to (1988). Declines in average weight of Parker and Mays (1998) discuss in become males (Heppell et al., 2006). fish may result from excessive fishing general terms a considerable increase in The seriousness of these phenomena in the number of commercial and pressure, and may be a cause for protogynous fish would depend in part recreational vessels fishing for reef fish concern due to potential associated on whether a species is plastic or off the South Atlantic coast beginning in declines in fecundity, as well as inflexible in the size or age of sex the mid-1970s. As suggested in Parker population instability due to truncation transition, and whether transition is and Mays (1998), and other more recent of the age structure. Conversely, it may triggered by biological or social cues, or information in our files, warsaw grouper also occur due to the introduction of both (Heppell et al., 2006). Protogynous is too infrequently captured in fisheries large numbers of new recruits into the hermaphroditism in warsaw grouper has to allow for reliable estimation of effort population or if fishing effort is focused not been confirmed. Moreover, we have or other biological metrics useful in on areas predominated by younger, no information that indicates the size or estimating population size and trends. smaller individuals of a species (e.g., age at which warsaw grouper might The most recent attempt at assessing shallower habitats closer to shore). transition from female to male, or what warsaw grouper’s stock status, due to its Regardless, we believe data on landed the cues for transition may be. Even if MSFCMA classification of undergoing weight of warsaw grouper in general is the species is protogynous, there is no overfishing in the South Atlantic, unreliable to support inferences of data to evaluate current or historical sex concluded that commercial and changes in the population status or ratios within the population to recreational data available were trends and extinction risk for the determine if fishing pressure is insufficient to proceed with a stock species. As discussed above, the selectively removing males resulting in assessment for the species due to data numbers of fish measured to describe an active extinction risk. limitations, and specifically stated trends in weight per fish in Parker and We conclude that the petition and MRFSS data were insufficient to Mays (1998) were extremely low information in our files on demographic calculate CPUE indices across fishery throughout the period studied, with a factors of warsaw grouper does not sectors (SEDAR, 2004). As mentioned maximum of 58 fish sampled in the present substantial information to above, implemented regulatory commercial fishery in 1988, and 41 fish indicate the species may be facing an measures have restricted catch or sampled in the headboat fishery in extinction risk level that is cause for landings, and may have affected effort, 1984. These low sample sizes resulted concern. Even if fisheries landings data beginning in the early 1990s. For in very large standard deviations in could be interpreted as evidencing a example, a deep-water grouper mean weights in many years. Based on decline in warsaw grouper’s population, commercial quota was established in the data analyzed, Parker and Mays that would seem to have been limited to 1990 for the Gulf of Mexico, and a one- (1998) describe a reduction in average the corresponding marked increase in fish per vessel per trip limit was weight of warsaw grouper caught by commercial and recreational fishing imposed in 1994 for the South Atlantic headboats over time, but an increasing effort for all reef fish off the (regulatory measures are discussed in average weight in commercially caught southeastern U.S. beginning in the mid- detail below in analysis of fish towards the end of the study period. 1970s. Management measures designed overutilization). As such, these Thus, these data are conflicting as an to rebuild stocks of deep-water grouper measures confound our use of landings indicator of the status or trends in the in general, and warsaw grouper data across the available time series as warsaw grouper population. specifically, in the early 1990s resulted indicators of population status or Additionally, since warsaw grouper is in immediate and drastic reductions in trends, or extinction risk. an uncommonly caught recreational landings. There is no indication that a The other information presented in species, weights are frequently population decline that might have the petition as evidence of a population unreported in the MRFSS database, so occurred in the 1970s and 1980s

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59694 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

resulted in depensation or other MSFCMA defines bycatch to mean fish Inadequacy of Existing Regulatory negative effects such as loss of age harvested in a fishery, but which are not Mechanisms classes, truncation of age structure, sold or kept for personal use, and The petition states that existing absence of large individuals, or shift in includes economic discards and regulatory mechanisms are inadequate sex ratio in the warsaw grouper regulatory discards; it does not include to prevent endangerment or extinction population. fish released alive under a recreational of warsaw grouper, focusing on Federal Information on Threats to the Species catch and release fishery management fishing regulations. Specifically, the program. According to SEDAR (2004), petition identifies the lack of minimum We next evaluated whether the estimated release mortality rates for the information in the petition and size, lack of possession limits, and a 726 commercial and recreational warsaw mt overall deep-water grouper quota in information in our files concerning the grouper fisheries are not available. extent and severity of one or more of the the Gulf of Mexico, and the 1-fish per- There is no available information on vessel per-trip commercial and ESA section 4(a)(1) factors suggests post-release mortality rates of warsaw these impacts and threats may be posing recreational limit in the South Atlantic grouper, but bycatch mortality, that is inadequate given the number of a risk of extinction for warsaw grouper including post-release mortality, is a that is cause for concern. fishers. potential concern for deep-water species In Federal waters of the Gulf of Overutilization in Fisheries due to the likelihood of barotrauma (i.e., Mexico, warsaw grouper is managed by injury resulting from expansion of The petition states that ‘‘the primary the Gulf of Mexico Fishery Management gasses in internal spaces as ambient threat to the warsaw grouper is historic Council (GMFMC) through their Reef pressure is reduced during ascent). The and continued overfishing.’’ In support, Fish Fishery Management Plan (FMP). SAFMC has noted that under the the petition states the South Atlantic In 1990, Amendment 1 to the FMP Fishery Management Council (SAFMC) existing discard logbook program, established a 1.8 million pound (816 mt) considers warsaw grouper ‘‘overfished discards are self reported and involve a commercial quota for deep-water and undergoing overfishing (NMFS high degree of uncertainty, and they groupers, which includes misty, snowy, 2003).’’ The most recent Report to also suspect that the incidental bycatch yellowedge, speckled hind, and warsaw Congress on the Status of U.S. Fisheries of warsaw grouper may be responsible grouper, and also includes scamp after (NMFS, 2008, 2009) lists warsaw for the continued overfishing status of the shallow-water grouper quota is grouper under SAFMC jurisdiction as the species. However, bycatch may not filled; since 2004, the deep-water undergoing overfishing; the species’ be a significant issue for warsaw grouper commercial quota has been set status in the Gulf of Mexico is listed as grouper due to its natural rarity, which at 1.02 million pounds (463 mt). unknown. A species undergoing likely prevents significant numbers (i.e., Available species-specific commercial overfishing is one where the current beyond the one-fish per vessel limit) landings reveals the Gulf of Mexico fishing mortality exceeds an identified from being caught by anglers in the first fishery has never exceeded 0.3 million mortality threshold, while an overfished place, to be subsequently released and pounds (140 mt) of warsaw grouper. species is one where the current subjected to potentially high bycatch Amendment 16B to the FMP, biomass falls short of an identified stock mortality rates. Estimates for warsaw implemented on November 24, 1999, threshold; typically, overfishing leads to grouper discards in the South Atlantic established a one-fish per vessel a stock becoming overfished. These commercial deep-water grouper fishery recreational bag limit for warsaw MSFCMA classifications do not during all handline and bandit rig gear grouper, and a prohibition on sale of necessarily indicate that a species may trips from August 2001 through July warsaw grouper when caught warrant listing as a threatened or 2003 indicate a mean discard rate of recreationally. According to MRFSS endangered species, however, because 0.098 fish per trip (SEDAR, 2004), and landing statistics, this management these classifications do not have any per thus a low level of bycatch. Available action reduced recreational landings to se relationship to a species’ extinction data indicate bycatch mortality, even low levels, averaging approximately risk. For example, our 2007 status with a 100 percent release mortality 1,300 fish or 23,000 pounds (10.4 mt) of review for the Atlantic white marlin (73 rate, is not an extinction threat to warsaw grouper annually for the period FR 843, January 4, 2008; http:// warsaw grouper because of low catch 1999 through 2009, compared to sero.nmfs.noaa.gov/pr/ rates. For example, the estimated approximately 8,000 fish or 85,000 endangered%20species/pdf/ average annual warsaw grouper catch- pounds (38.6 mt) annually for the 2007_Atlantic_white_marlin_ per-trip on commercial South Atlantic period 1988 through 1998. Additionally, status_%20review.pdf) explained in deep-water grouper trips (1,674 average the GMFMC’s objective for lack of a detail important distinctions between annual trips) from 1994–2002 was 0.10 minimum size in the Gulf of Mexico is the terms ‘‘overfished’’ from the (SEDAR, 2004). Additionally, the to curb bycatch of this deep-water MSFCMA context, and ‘‘overutilization’’ annual average of warsaw grouper grouper species. Allowing commercial as used in the ESA context. While a discards from commercial, headboat, fishermen to retain warsaw grouper that stock can be exploited to the point of and MRFSS during 2005–2008 was may otherwise become regulatory diminishing returns where the objective estimated to be 80 fish (SAFMC, 2009). discards due to size prevents these fish is to sustain a harvest of the species, Thus, we believe these low catch and from being thrown back dead due to that over-exploitation in and of itself retention levels of warsaw grouper barotrauma and also excluded from does not imply a continuing downward prevent bycatch mortality from landings statistics. spiral for a population. A population producing an extinction risk of concern. In Federal waters of the U.S. South may equilibrate at an abundance lower In summary, the petition and Atlantic, warsaw grouper is managed by than that which would support a information in our files does not the SAFMC through their Snapper desired harvest level, but can still be comprise substantial information Grouper FMP. Amendment 6 to the stable at that level if fishing effort is indicating that overutilization may FMP, effective on July 27, 1994, stable. have, or may continue to be causing included a one-fish per vessel, per trip, The petition also expresses concern extinction risk of concern in warsaw commercial and recreational possession over potential bycatch mortality. The grouper. limit for warsaw grouper; a prohibition

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59695

on the sale of warsaw grouper; and Other Natural or Manmade Factors Authority: The authority for this action is established the Oculina Experimental the Endangered Species Act of 1973, as The petition and several referenced amended (16 U.S.C. 1531 et seq.). Closed Area, which prohibited fishing studies state that warsaw grouper is for all snapper grouper species within vulnerable to increased risk of Dated: September 22, 2010. this area (59 FR 27242). Since the extinction, particularly from fishing Eric C. Schwaab, implementation of Amendment 6 in pressure, due to biological constraints, Assistant Administrator for Fisheries, 1994, commercial landings of warsaw including its large size, long lifespan, National Marine Fisheries Service. grouper have annually averaged late age of sexual maturity, low rates of [FR Doc. 2010–24334 Filed 9–27–10; 8:45 am] approximately 240 pounds (0.1 mt) population increase, protogynous BILLING CODE 3510–22–P through 2008. Prior to this action, hermaphroditism, and formation of commercial landings averaged spawning aggregations that can be easily approximately 17,000 pounds (7.7 mt) targeted by fishermen. Concerns about DEPARTMENT OF COMMERCE during the previous 14-year time frame, the inherent vulnerability of rare deep- Foreign-Trade Zones Board 1981 through 1994. water grouper species has been a The petition, its references, and recurring justification for Federal [Docket 55–2010] numerous sources have stated that fishery management actions establishment of large marine protected implemented under the MSFCMA. Foreign-Trade Zone 169—Manatee areas is likely to be the most effective However, as discussed above, fishing County, Florida; Extension of measure for protection and conservation pressure has been severely curtailed on Subzone; Aso LLC (Adhesive Bandage of warsaw grouper. Studies have found this species. Moreover, neither the Manufacturing); Sarasota County, FL larger and more abundant grouper in petition nor information in our files An application has been submitted to closed areas than in similar, suggests that fishing pressure has the Foreign-Trade Zones Board (the unprotected areas (Sedberry et al., resulted in changes in population Board) by the Manatee County Port 1999). Yet, the petition fails to metrics for the species that might be Authority, grantee of FTZ 169, acknowledge that this objective has expected given its particular biological requesting to indefinitely extend characterized Federal fishery constraints. Additionally, the petition’s Subzone 169A, on behalf of Aso LLC management of warsaw grouper since inclusion of the species’ vulnerability to (formerly Aso Corporation) (Aso), the early 1990s. As discussed above, the fishing pressure during spawning located in Sarasota County, Florida. The Oculina Banks, a unique deep-water aggregations is inaccurate. While some application was submitted pursuant to coral reef ecosystem off the South grouper species, such as goliath and the provisions of the Foreign-Trade Atlantic coast of the U.S., was protected black grouper, are known to form Zones Act, as amended (19 U.S.C. 81a– beginning in 1994 specifically to spawning aggregations, no published 81u), and the regulations of the Board facilitate rebuilding of deep-water studies or other available information in (15 CFR part 400). It was formally filed grouper stocks. Amendment 13A to the our files document warsaw grouper on September 23, 2010. FMP, effective on April 26, 2004, aggregate to spawn. Subzone 169A (229 employees, total extended the prohibition on fishing for The petition also lists potential small annual capacity of 2.2 billion bandage or possessing snapper grouper species population size of adult warsaw grouper strips per year) was approved by the within the Oculina Experimental Closed and human population growth as other Board in 2000 for the manufacture of Area for an indefinite period (69 FR natural or manmade factors contributing adhesive bandages under FTZ 15731). On February 12, 2009, to warsaw grouper’s vulnerability, but procedures (Board Order 1120, 65 FR Amendment 14 to the FMP established does not provide any supporting 58508–58509, 9/29/2000) for a period of eight marine protected areas in which information to indicate these 4 years of activation, subject to fishing for or possession of South generalized concerns are actually extension upon review. Subzone 169A negatively affecting warsaw grouper. Atlantic snapper grouper species is consists of one site (166,000 square feet Therefore, we conclude that the prohibited (74 FR 1621). Similarly, of enclosed space on 38 acres) located petition and information in our files several large closed areas have been at 300 Sarasota Center Blvd., within the established in the Gulf of Mexico, does not present substantial information to suggest that other natural or International Trade Industrial Park, east including the Madison and Swanson of Sarasota (Sarasota County), Florida. and Steamboat Lump marine reserves. manmade factors, alone or in combination with other factors such as Since approval, the subzone has been In summary, the petition and fishing pressure, may be causing activated intermittently since the information in our files does not extinction risk of concern in warsaw company has at times instead used constitute substantial information grouper. various duty suspension provisions on indicating existing regulatory adhesive tape. Aso is now requesting to mechanisms are inadequate to prevent, Petition Finding indefinitely extend its subzone status or are contributing to, extinction risk for After reviewing the information with manufacturing authority to warsaw grouper that is cause for contained in the petition, as well as produce adhesive bandages (HTSUS concern. To the contrary, available information readily available in our 3005.10) using foreign-sourced adhesive information suggests management files, we conclude the petition fails to tape (HTSUS 3919.10), representing actions have significantly reduced present substantial scientific or some 22 percent of the final product landings, thereby reducing risk of commercial information indicating the value. overutilization in both the Gulf of petitioned action may be warranted. FTZ procedures would exempt Aso Mexico and South Atlantic. from customs duty payments on the Furthermore, closures of large areas in References Cited foreign adhesive tape used in export the Gulf of Mexico and South Atlantic A complete list of all references is production. The company anticipates to fishing effort, including known reef available upon request from the that some 6 percent of the plant’s habitats important to deep-water Protected Resources Division of the shipments will be exported. On its groupers, likely offer conservation NMFS Southeast Regional Office (see domestic sales, Aso would be able to benefits to the species. ADDRESSES). choose the duty rate during customs

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00017 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59696 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

entry procedures that applies to National Oceanic and Atmospheric The revised management plan for the adhesive bandages (duty-free) for the Administration (NOAA), U.S. Tijuana River, CA National Estuarine foreign adhesive tape (duty rate—5.8%) Department of Commerce has approved Research Reserve outlines a framework noted above. The request indicates that the revised management plans of the of overarching goals and program the savings from FTZ procedures help Arraigns Bay, RI National Estuarine specific objectives that will guide the improve the plant’s international Research Reserve and the Tijuana River, education, training, stewardship, and competitiveness. CA National Estuarine Research research programs of the reserve; In accordance with the Board’s Reserve. The Arraigns Bay, RI Reserve updates the reserve boundary; proposes regulations, Diane Finver of the FTZ plan calls for an expansion to their criteria for boundary expansion Staff is designated examiner to evaluate boundary and the Tijuana River, CA activities through acquisition and/or and analyze the facts and information Reserve plan calls for a reduction to mitigation; as well as outlines plans for presented in the application and case their boundary. facility use and development to support record and to report findings and The revised management plan for the reserve operations. The goals described recommendations to the Board. Arraigns Bay, RI National Estuarine in this plan are designed to provide a Public comment is invited from Research Reserve outlines the framework that supports program interested parties. Submissions (original administrative structure; the education, integration for collaborative and 3 copies) shall be addressed to the training, stewardship, and research management in a highly urbanized bi- Board’s Executive Secretary at the goals of the reserve; and the plans for address below. The closing period for future land acquisition and facility national watershed. their receipt is November 29, 2010. development to support reserve Since the last approved management Rebuttal comments in response to operations. The objectives described in plan in 2000, the reserve has become material submitted during the foregoing this plan are designed to address the fully staffed; added a coastal training period may be submitted during the most critical coastal issues in Arraigns program that delivers science-based subsequent 15-day period to December Bay such as wastewater and storm water information to key decision makers; 13, 2010. management, coastal and watershed developed a robust volunteer program A copy of the application will be development, and invasive species that provides broad support to Reserve available for public inspection at the management. Since the last approved programs; added a bi-nationally focused Office of the Executive Secretary, management plan in 1998, the reserve Watershed Program; completed habitat Foreign-Trade Zones Board, Room 2111, has become fully staffed; added a restoration projects to improve estuary U.S. Department of Commerce, 1401 coastal training program that delivers Constitution Avenue, NW., Washington, function; improved management of science-based information to key sediment delivery to the estuary; and DC 20230–0002, and in the ‘‘Reading decision makers; and added significant Room’’ section of the Board’s Web site, constructed facilities to support monitoring of invasive species, water essential functions of the reserve which is accessible via http:// quality, fish and bird populations. In including interpretive structures, staff www.trade.gov/ftz. addition to programmatic and staffing offices, and an on-site laboratory. For further information, contact Diane advances, the reserve upgraded visiting Finver at [email protected] or research facilities, space available for This management plan amends the (202) 482–1367. education and storage, and has boundary of the reserve to be 2,293 Dated: September 23, 2010. increased the availability of dock space acres, 238 acres less, in part as a result Elizabeth Whiteman, for research and educational of excluding the Border Infrastructure Acting Executive Secretary. programming. System completed since the last [FR Doc. 2010–24315 Filed 9–27–10; 8:45 am] This management plan calls for a approved management plan. This plan BILLING CODE 3510–DS–P boundary expansion of 156 acres. The can be accessed at trnerr.org/ lands consist of one 128 acre parcel on visitors_center.html or nerrs.noaa.gov. the northern end of Prudence Island that FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF COMMERCE is adjacent to current reserve property and the addition of the 28 acre Dyer Alison Krepp at (301) 563–7105 National Oceanic and Atmospheric Island. Dyer Island habitats include regarding the Tijuana River CA, Administration coastal brush, salt marsh, cobble National Estuarine Research Reserve beaches, and both hard and soft and Cory Riley at (603) 862–2813 National Estuarine Research Reserve substrate submerged lands. The island is regarding the Arraigns Bay RI, National System considered a critical bird rookery and Estuarine Research Reserve or Laurie AGENCY: Estuarine Reserves Division, hosts an unusual amount of macro algal McGilvray at (301) 563–1158 of NOAA’s Office of Ocean and Coastal Resource diversity and rare examples of un National Ocean Service, Estuarine Management, National Ocean Service, ditched salt marsh habitat. The 128 acre Reserves Division, 1305 East-West National Oceanic and Atmospheric Ballard Property on Prudence Island Highway, N/ORM5, 10th floor, Silver Administration, U.S. Department of consists of forested land with early Spring, MD 20910. Commerce succession al shrub land and grassland Dated: September 21, 2010. ACTION: Notice of Final Approval and communities as well as an important freshwater creek and the associated Donna Witting, Availability of Revised Management Acting Director, Office of Ocean and Coastal Plans for the following National wetlands. The Dyer Island property will provide opportunities for research and Resource Management, National Oceanic and Estuarine Research Reserves: Arraigns Atmospheric Administration. Bay, RI and Tijuana River, CA. passive recreation while the easily accessed Prudence Island parcel will be [FR Doc. 2010–24341 Filed 9–27–10; 8:45 am] SUMMARY: Notice is hereby given that appropriate for education, recreation, BILLING CODE 3510–08–P the Estuarine Reserves Division, Office and upland research purposes. This of Ocean and Coastal Resource plan can be accessed at http:// Management, National Ocean Service, www.nbnerr.org or nerrs.noaa.gov.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00018 Fmt 4703 Sfmt 9990 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59697

DEPARTMENT OF COMMERCE advises the Secretary of Commerce and public comment periods (on-site) will the Director of the National Sea Grant be scheduled at various times National Oceanic and Atmospheric College Program with respect to throughout the meeting. These comment Administration operations under the Act, and such periods will be included in the final other matters as the Secretary refers to agenda published before October 12, National Sea Grant Advisory Board them for review and advice. 2010, on the HSRP Web site listed AGENCY: National Oceanic and The agenda for this meeting can be above. Each individual or group making found at http://www.seagrant.noaa.gov/ a verbal presentation will be limited to Atmospheric Administration, _ Commerce. leadership/advisory board.html. a total time of five (5) minutes. Comments will be recorded. Written ACTION: Notice of public meeting. Dated: September 22, 2010. Mark E. Brown, comments (at least 30 copies) should be SUMMARY: This notice sets forth the Chief Financial Officer, Office of Oceanic and submitted in advance to the DFO by schedule and proposed agenda of a Atmospheric Research, National Oceanic and October 6, 2010. Written comments forthcoming meeting of the Sea Grant Atmospheric Administration. received by the DFO after October 6, Advisory Board (Board). Board members [FR Doc. 2010–24309 Filed 9–27–10; 8:45 am] 2010, will be distributed to the HSRP, but may not be reviewed before the will discuss and provide advice on the BILLING CODE 3510–KA–P National Sea Grant College Program in meeting date. Approximately 30 seats the areas of program evaluation, will be available for the public, on a strategic planning, education and DEPARTMENT OF COMMERCE first-come, first-served basis. extension, science and technology Matters to be considered: (1) NOAA programs, and other matters as National Oceanic and Atmospheric priorities, future directions and strategic described in the agenda found on the Administration plans for NOAA; (2) Speaker panels National Sea Grant College Program consisting of regional and local Hydrographic Services Review Panel Web site at http://www.seagrant. stakeholders on the use of and interest Meeting noaa.gov/leadership/ in NOAA’s Navigation Services; (3) Presentations will include: West Coast advisory_board.html. AGENCY: National Ocean Service, Governors’ Agreement on Ocean Health, National Oceanic and Atmospheric DATES: The announced meeting is Columbia River and Northwest Regional Administration (NOAA), Department of scheduled for Saturday, October 16— navigation and hydrographic surveying, Commerce. Sunday October 17, 2010. climate change and sea level rise ACTION: ADDRESSES: The meeting will be held at Notice of open meeting. impacts for the Northwest, seafloor The Astor Crowne Plaza Hotel, 739 SUMMARY: The Hydrographic Services mapping, the Committee on Marine Canal Street, New Orleans, LA 70130. Review Panel (HSRP) is a Federal Transportation System, NOAA updates, Status: The meeting will be open to Advisory Committee established to HSRP logistics; and (4) public public participation with a 15-minute advise the Under Secretary of statements. public comment period on October 17 at Commerce for Oceans and Atmosphere Dated: September 23, 2010. 2:45 p.m. CDT (check Web site to on matters related to the responsibilities Captain John E. Lowell, Jr. confirm time.) The Board expects that and authorities set forth in section 303 Director, Office of Coast Survey, National public statements presented at its of the Hydrographic Services Ocean Service, National Oceanic and meetings will not be repetitive of Improvement Act of 1998, its Atmospheric Administration. previously submitted verbal or written amendments, and such other [FR Doc. 2010–24373 Filed 9–27–10; 8:45 am] statements. In general, each individual appropriate matters that the Under BILLING CODE 3510–JE–P or group making a verbal presentation Secretary refers to the Panel for review will be limited to a total time of three and advice. (3) minutes. Written comments should Date and Time: The public meeting COMMISSION OF FINE ARTS be received by the Designated Federal will be held October 12–13, 2010, from Officer by October 8, 2010 to provide 8:30 a.m. to 5:30 p.m. Notice of Meeting sufficient time for Board review. Written Location: The Heathman Lodge, 7801 comments received after October 8, NE Greenwood Drive, Vancouver, The next meeting of the U.S. 2010, will be distributed to the Board, Washington 98662; Tel: (360) 254–3100. Commission of Fine Arts is scheduled but may not be reviewed prior to the Refer to the HSRP Web site listed below for 21 October 2010, at 10 a.m. in the meeting date. Seats will be available on for the most current meeting agenda. Commission offices at the National a first-come, first-served basis. Times and agenda topics are subject to Building Museum, Suite 312, Judiciary Square, 401 F Street, NW., Washington, FOR FURTHER INFORMATION CONTACT: Ms. change. DC 20001–2728. Items of discussion Elizabeth Ban, Designated Federal FOR FURTHER INFORMATION CONTACT: may include buildings, parks and Officer, National Sea Grant College Captain John E. Lowell, Jr., NOAA, memorials. Program, National Oceanic and Designated Federal Official (DFO), Draft agendas and additional Atmospheric Administration, 1315 East- National Ocean Service (NOS), Office of information regarding the Commission West Highway, Room 11843, Silver Coast Survey, NOAA (N/CS), 1315 East are available on our Web site: http:// Spring, Maryland 20910, (301) 734– West Highway, Silver Spring, Maryland www.cfa.gov. Inquiries regarding the 1082. 20910; Telephone: 301–713–2770; Fax: agenda and requests to submit written SUPPLEMENTARY INFORMATION: The 301–713–4019; E-mail: or oral statements should be addressed Board, which consists of a balanced [email protected] or visit to Thomas Luebke, Secretary, U.S. representation from academia, industry, the NOAA HSRP Web site at http:// Commission of Fine Arts, at the above state government and citizens groups, nauticalcharts.noaa.gov/ocs/hsrp/ address; by e-mailing [email protected]; or was established in 1976 by Section 209 hsrp.htm. by calling 202–504–2200. Individuals of the Sea Grant Improvement Act (Pub. SUPPLEMENTARY INFORMATION: The requiring sign language interpretation L. 94–461, 33 U.S.C. 1128). The Board meeting will be open to the public and for the hearing impaired should contact

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59698 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

the Secretary at least 10 days before the to include the Military Departments, to Pursuant to 724(b)(2) of Public Law meeting date. assist and support the care, 111–84, the Secretary of Defense shall Dated 24 September 2010 in Washington management, and transition of appoint: DC. recovering wounded, ill, and injured a. At least one member of each of the Thomas Luebke, AIA, members of the Armed Forces. At a Regular Components of the Army, the Navy, the Air Force and the Marine Secretary. minimum, the Task Force’s report shall include the following: Corps; [FR Doc. 2010–24200 Filed 9–27–10; 8:45 am] a. The Task Force’s findings and b. One member of the National Guard; BILLING CODE 6330–01–M conclusions as a result of its assessment c. One member of a Reserve of the effectiveness of developed and Component of the Armed Forces other implemented DoD policies and than the National Guard; DEPARTMENT OF DEFENSE d. At least one family member of a programs, to include those by each of wounded, ill, or injured member of the the Military Departments, to assist and Office of the Secretary Armed Forces or veteran who has support the care, Management, and experience working with wounded, ill, transition of recovering wounded, ill, Federal Advisory Committee; and injured members of the Armed and injured members of the Armed Department of Defense Task Force on Forces or their families; and the Care, Management, and Transition Forces. e. A number of person from outside of Recovering Wounded, Ill, and b. A description of best practices and the Department of Defense equal to the Injured Member of the Armed Forces various ways in which the Department total number of personnel from within of Defense, to include the Military AGENCY: Department of Defense (DoD). the Department of Defense (whether Departments, could more effectively members of the Armed Forces or ACTION: Establishment of Federal address matters relating to the care, civilian personnel) who are appointed advisory committee. management, and transition of to the Task Force. recovering wounded, ill, and injured SUMMARY: Under the provisions of Sections 724(b)(2) through (4) of members of the Armed Forces, section 724 of Public Law 111–84, the Public Law 111–84, further stipulate the including members of the Regular and Federal Advisory Committee Act of following Task Force appointment Reserve Components, and support for 1972, (5 U.S.C. Appendix), the requirements: their families. Government in the Sunshine Act of a. At least one individual appointed 1976 (5 U.S.C. 552b), and 41 CFR 102– c. A plan listing and describing the to the Task Force from within the 3.50, the Department of Defense gives Task Force’s activities for the upcoming Department of Defense shall be the notice that it is establishing the charter year covered by the report. Surgeon General of an Armed Force. b. The individuals appointed to the for the Department of Defense Task d. Such recommendations for other Task Force from outside the Department Force on the Care, Management, and legislative or administrative action that of Defense— Transition of Recovering Wounded, Ill, the Task Force considers appropriate for measures to improve DoD-wide policies i. With the concurrence of the and Injured Member of the Armed Secretary of Veterans Affairs, shall ‘‘ and programs in (a) above, which assist Forces (hereafter referred to as the Task include an officer or employee of the Force’’). and support the care, management and transition of recovering wounded, ill, Department of Veterans Affairs; and FOR FURTHER INFORMATION CONTACT: Jim ii. May include individuals from other Freeman, Deputy Committee and injured members of the Armed Forces. departments or agencies of the Federal Management Officer for the Department Government, from State and local of Defense, 703–601–6128. The Task Force, for the purposes of its agencies, or from the private sector. reports, shall fully comply with sections SUPPLEMENTARY INFORMATION: The Task c. Persons appointed to the Task 724(c)(2) and (3) of Public Law 111–84 Force is a non-discretionary Federal Force shall have experience in— in all matters dealing with the reports; advisory committee established to (a) i. Medical care and coordination for (a) methodology; and (b) matters to be access the effectiveness of the policies wounded, ill, and injured members of reviewed and assessed. and programs developed and the Armed Forces; implemented by the Department of No later than 90 days after receiving ii. Medical case management; Defense, and by each of the Military the Task Force’s annual report, the iii. Non-medical case management; iv. The disability evaluation process Departments to assist and support the Secretary of Defense shall submit to the for members of the Armed Forces; care, management, and transition of Committees on Armed Services of the Senate and the House of Representatives v. Veterans benefits; recovering wounded, ill, and injured vi. Treatment of traumatic brain members of the Armed Forces; and (b) the report and the Secretary’s evaluation of the report. injury and post-traumatic stress make recommendations for the disorder; No later than six months after continuous improvements of such vii. Family support; policies and programs. receiving the Task Force’s annual viii. Medical research; The Task Force, pursuant to section report, the Secretary of Defense, in ix. Vocational rehabilitation; or 724(c) of public Law 111–84, shall no consultation with the Secretaries of the x. Disability benefits. later than 12 months after the date on Military Departments, shall submit to There shall be two co-chairs of the which all Task Force members have the Committees on Armed Services of Task Force. One of the co-chairs shall be been appointed, and each year thereafter the Senate and the House of designated by the Secretary of Defense for the life of the Task Force, shall Representatives a plan to implement the at the time of appointment from among submit a report to the Secretary of recommendations of the Task Force’s the individuals appointed to the Task Defense. annual report. Force from within the Department of The Task Force shall submit to the The Task Force, pursuant to section Defense. The other co-chair shall be Secretary of Defense a report on the 724(b) of Public Law 111–84, shall be selected from among the individuals activities of the Task Force, and on the comprised of not more than 14 members appointed from outside the Department activities of the Department of Defense, appointed by the Secretary of Defense. of Defense by those individuals.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59699

Pursuant to sections 724(e)(1) of and Transition of Recovering Wounded, Deadline for Intergovernmental Public Law 111–84, Task Force Ill, and injured Member of the Armed Review: January 26, 2011. members who are members of the Forces membership about the Task Full Text of Announcement Armed Forces or a civilian officer or Force’s mission and functions. Written employee of the United States shall statements may be submitted at any I. Funding Opportunity Description serve on the Task Force without time or in response to the stated agenda Purpose of Program: The purposes of compensation (other than compensation of planned meeting of the Department of the Technology and Media Services for to which entitled as a member of the Defense Task Force on the Care, Individuals with Disabilities program is Armed Forces or an officer or employee Management, and Transition of to: (1) Improve results for children with of the United States, as the case may be). Recovering Wounded, Ill, and injured disabilities by promoting the Other Task Force members shall be Member of the Armed Forces. development, demonstration, and use of appointed under the provisions of 5 All written statements shall be technology; (2) support educational U.S.C. 316, and shall serve as special submitted to the Designated Federal media services activities designed to be government employees. In addition, Officer for the Department of Defense of educational value in the classroom these special government employees Task Force on the Care, Management, setting for children with disabilities; shall serve with compensation under and Transition of Recovering Wounded, and (3) provide support for captioning the provisions of 5 U.S.C. 3161. Ill, and injured Member of the Armed and video description of educational All Task Force members shall receive Forces, and this individual will ensure materials that are appropriate for use in travel and per diem when traveling on that the written statements are provided the classroom setting, including official Task Force business. to the membership for their television programs, videos, and With DoD approval, the Task Force is consideration. Contact information for authorized to establish subcommittees, programs and materials associated with the Department of Defense Task Force new and emerging technologies, such as as necessary and consistent with its on the Care, Management, and mission. These subcommittees or CDs, DVDs, video streaming, and other Transition of Recovering Wounded, Ill, forms of multimedia. working groups shall operate under the and injured Member of the Armed provisions of the Federal Advisory Priority: In accordance with 34 CFR Forces Designated Federal Officer can 75.105(b)(2)(v), this priority is from Committee Act of 1972, the Government be obtained from the GSA’s FACA in the Sunshine Act of 1978 (5 U.S.C. allowable activities specified in the Database—https://www.fido.gov/ statute (see sections 674 and 681(d) of 552b), and other governing Federal facadatabase/public.asp. regulations. the Individuals with Disabilities The Designated Federal Officer, Education Act (IDEA), 20 U.S.C. 1400 et Such subcommittees or workgroups pursuant to 41 CFR 102–3.150, will shall not work independently of the seq.). announce planned meetings of the Absolute Priority: For FY 2011 and chartered Task Force, and shall report Department of Defense Task Force on all their recommendation and advice to any subsequent year in which we make the Care, Management, and Transition awards from the list of unfunded the Task Force for full deliberation and of Recovering Wounded, Ill, and injured discussion. Subcommittees or applicants from this competition, this Member of the Armed Forces. The priority is an absolute priority. Under 34 workgroups have no authority to make Designated Federal Officer, at that time, decisions on behalf of the chartered CFR 75.105(c)(3) we consider only may provide additional guidance on the applications that meet this priority. Task Force; nor can they report directly submission of written statements that to the Department of Defense or any This priority is: are in response to the stated agenda for Technology and Media Services for Federal officers or employees who are the planned meeting in question. no Task Force members. Individuals with Disabilities—The Subcommittee members, who are not Dated: September 22, 2010. Accessible Instructional Materials (AIM) Task Force members, shall be appointed Mitchell S. Bryman, Personnel Development Center. in the same manner as Task Force Alternate OSD Federal Register Liaison Background: IDEA requires States to members. Officer, Department of Defense. provide a free appropriate public The Task Force shall meet at the call [FR Doc. 2010–24216 Filed 9–27–10; 8:45 am] education (FAPE) to all children with of the Designated Federal Officer, in BILLING CODE 5001–06–P disabilities. FAPE includes the consultation with the co-chairs. The provision of educational materials in estimated number of Task Force accessible formats for children with meetings is five per year. disabilities eligible for services under The Designated Federal Officer, DEPARTMENT OF EDUCATION Part B of IDEA, including children with pursuant to DoD policy, shall be a full- visual impairments and with other print time or permanent part-time DoD Office of Special Education and disabilities (section 674(e)(3)(A) of employee, and shall be appointed in Rehabilitative Services; Overview IDEA). accordance with established DoD Information; Technology and Media The 2004 amendments to IDEA added policies and procedures. Services for Individuals With provisions to improve the timely In addition, the Designated Federal Disabilities—The Accessible production and dissemination of Officer is required to be in attendance Instructional Materials (AIM) Personnel educational materials in accessible at all Task Force and subcommittee Development Center; Notice Inviting formats for students who are blind or meetings; however, in the absence of the Applications for New Awards for Fiscal who have print disabilities (see sections Designated Federal Officer, the Year (FY) 2011 612(a)(23) and 674(e) of IDEA). These Alternate Designated Federal Officer provisions include the following: shall attend the meeting. Catalog of Federal Domestic Assistance • States must adopt the National Pursuant to 41 CFR 102–3.105(j) and (CFDA) Number: 84.327W. Instructional Materials Accessibility 102–3.140, the public or interested Dates: Applications Available: Standard (NIMAS) (section 612(a)(23) of organizations may submit written September 28, 2010. IDEA). NIMAS is a technical standard statements to the Department of Defense Deadline for Transmittal of used by publishers to produce source Task Force on the Care, Management, Applications: November 29, 2010. files that may be used to develop

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59700 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

multiple specialized formats (such as NIMAS that were added to IDEA in Recording for the Blind and Dyslexic Braille or audio books) for students with 2004 (the NIMAS provisions) and the (RFB&D); the National Instructional print disabilities. difficulties SEAs and LEAs were having Materials Accessibility Standard Center • The Department was directed to as they began to implement these (NIMAS Center); the AIM Center; and establish the National Instructional provisions, the Office of Special Bookshare for Education at Bookshare Materials Access Center (NIMAC), a Education Programs (OSEP) awarded (B4E)). Therefore, OSEP is establishing repository for NIMAS files (section two 18-month grants to support States, a priority—the AIM Personnel 674(e) of IDEA). For more information the outlying areas, and freely associated Development Center—to improve State about NIMAC, go to http:// States implement the NIMAS capacity for training personnel at the www.nimac.us. provisions. These grants included the LEA level to ensure the effective • States that choose to coordinate Pacific Consortium for Instructional delivery of AIM to children with with NIMAC must require publishers to Materials Accessibility Project (Pacific disabilities who have visual submit NIMAS files to NIMAC as part CIMAP) and the AIM Consortium. The impairments or print disabilities, of State textbook purchase agreements Pacific CIMAP facilitated the including children who are not (section 612(a)(23) of IDEA). collaborative commitment of the six included under the LOC definition of These provisions were designed to Pacific Basin entities to build local and blind or other persons with print ensure that State educational agencies regional capacity for the disabilities and children who need AIM (SEAs) and local educational agencies implementation of the NIMAS and materials that cannot be produced from (LEAs) meet the educational needs of all NIMAC requirements. The 15–State NIMAS files obtained through NIMAC. students with disabilities by providing AIM Consortium along with the Center Priority: The purpose of this priority appropriate instructional materials in for Applied Special Technology (CAST) is to fund a cooperative agreement to accessible formats. A major barrier to worked together to develop State support the establishment and operation the implementation of the NIMAS systems for increasing the timely of an AIM Personnel Development provisions is that some children with provision of AIM for students with print Center (Center). The Center will support disabilities are ineligible to use disabilities, and ensure that those and work with 25 States to: (1) Develop materials rendered from NIMAC files. systems for identifying, acquiring, and and implement LEA personnel The files obtained from NIMAC may using AIM employed high-quality development plans for effectively only be used for children with procedures and practices. training LEA staff on the eligibility disabilities who are eligible under IDEA Based on the collective needs and requirements regarding AIM and on the and who meet the definition of ‘‘blind or challenging experiences of SEAs in use of AIM products, training modules, other persons with print disabilities’’ implementing the NIMAS provisions, and materials currently available under the Act to Provide Books for the the consortia’s members developed through OSEP-funded NIMAS-related Adult Blind (2 U.S.C. 135a), which products, training modules, and projects; and (2) recruit and select establishes eligibility criteria for materials. These resources are available qualified personnel who will provide individuals served under the Library of to all States, the outlying areas, and in-service training to LEA staff on the Congress (LOC) regulations (36 CFR freely associated States on the effective use of these resources. For 701.6(b)(1)). These eligibility criteria consortia’s respective Web sites: http:// cover individuals who are blind, have purposes of this priority, the term www.guamcedders.org/main/ ‘‘ ’’ other visual disabilities, are unable to _ State refers to a State, outlying area, or index.php?pg=pacific cimap and http:// freely associated State. read or use standard print as a result of www.cast.org/research/projects/ physical limitations, or have reading To be considered for funding under AIM.html. this absolute priority, applicants must disabilities resulting from organic While the Pacific CIMAP and the AIM meet the application requirements dysfunction. The regulations Consortium produced effective contained in this priority. The project implementing Part B of IDEA require resources, product usability is more funded under this absolute priority also SEAs and LEAs to ensure that children effective when personnel development must meet the programmatic and with disabilities who need instructional is provided in conjunction with product materials in accessible formats, but are availability. Both the Pacific CIMAP and administrative requirements specified in not included under the LOC definition the AIM Consortium awards were 18- the priority. of blind or other persons with print month awards. Most of the time and Application Requirements. An disabilities or who need materials that resources of these projects focused on applicant must include in its cannot be produced from NIMAS files determining the needs of the States and application: obtained through NIMAC, receive those developing the products and resources (a) A logic model that depicts, at a instructional materials in a timely used in the implementation of the minimum, the goals, activities, outputs, manner (34 CFR 300.172(b)(3) and NIMAS provisions. States, including and outcomes of the proposed project. A 300.210(b)(3)). SEAs have addressed those that were part of the two logic model communicates how a these requirements in the systems they consortia, continue to face the project will achieve its outcomes and developed for producing, accessing, and significant challenge of ensuring that all provides a framework for both the distributing AIM. However, teachers staff in the States receive training that formative and summative evaluations of and administrators in LEAs may be is delivered with consistency and the project. reluctant to provide AIM to students fidelity. (Etemad & Burdette, 2009). Note: The following Web sites provide due to a lack of information and SEAs are responsible for supporting more information on logic models: http:// understanding about eligibility LEAs on implementing NIMAS www.researchutilization.org/matrix/ logicmodel_resource3c.html and www.tadnet. requirements, and due to limited provisions. However, many SEAs lack _ _ knowledge of where, and how, to obtain the expertise and resources to org/model and performance. AIM for students who require special effectively train LEA personnel on how (b) A plan to implement the activities formats (Etemad & Burdette, 2009). to use the products, training modules, described in the Project Activities In response to concerns from SEAs and materials developed by the two section of this priority. and LEAs regarding the complexity and consortia or by other OSEP-funded (c) A plan, linked to the proposed limitations of the provisions relating to NIMAS-related projects (i.e., NIMAC; project’s logic model, for a formative

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59701

evaluation of the proposed project’s projects, and other NIMAS-related Implementation Update. Project activities. The plan must describe how entities. Forum: Alexandria, VA. the formative evaluation will use clear (c) Develop, and make publicly Waiver of Proposed Rulemaking: performance objectives to ensure available through the Center’s Web site, Under the Administrative Procedure Act continuous improvement in the an electronic database of all currently (APA) (5 U.S.C. 553) the Department operation of the Center, including available AIM products that are generally offers interested parties the objective measures of progress in identified and described pursuant to opportunity to comment on proposed implementing the activities of the paragraphs (a) and (b) of this section. priorities and requirements. Section Center and ensuring the quality of (d) Recruit and select 25 States in 681(d) of IDEA, however, makes the products and services. accordance with the plan described in public comment requirements of the (d) A plan for recruiting and selecting response to paragraph (d) of the APA inapplicable to the priority in this 25 States to participate in the activities Application Requirements of this notice. of the Center. The selection process priority. Program Authority: 20 U.S.C. 1474 must be transparent and done in (e) Work with the 25 States selected and 1481(d). conjunction with OSEP. under paragraph (d) of this section to Applicable Regulations: The (e) A plan for, and description of, how determine their LEA personnel Education Department General the Center will incorporate the work of, development needs related to each Administrative Regulations (EDGAR) in and resources developed from, OSEP- State’s system for providing AIM in a 34 CFR parts 74, 75, 77, 79, 80, 81, 82, funded NIMAS-related projects in the timely manner, and to develop their 84, 85, 86, 97, 98, and 99. work of the Center; respective LEA personnel development (f) A budget for a summative plans. Support the participating States Note: The regulations in 34 CFR part 79 evaluation to be conducted by an in developing and implementing their apply to all applicants except federally recognized Indian tribes. independent third party. personnel development plans. The (g) A budget for attendance at the personnel development plans must Note: The regulations in 34 CFR part 86 following: include in-service training for LEA level apply to institutions of higher education (1) A one and one half-day kick-off staff on— (IHEs) only. meeting to be held in Washington, DC, (1) How to determine if a child has a within four weeks after receipt of the print disability and will benefit from II. Award Information award, and an annual planning meeting AIM; Type of Award: Cooperative held in Washington, DC, with the OSEP (2) Eligibility requirements for Project Officer during each subsequent agreement. children with disabilities under IDEA Estimated Available Funds: The year of the project period. and the LOC regulations; (2) A two-day Technical Assistance Administration has requested (3) How to determine the appropriate $41,223,000 for the Technology and and Dissemination Conference in accessible formats needed for a child Washington, DC, during each year of the Media Services for Individuals with who requires AIM; Disabilities program for FY 2011, of project period. (4) How to obtain AIM; and (3) A two-day Technology Project which we intend to use an estimated (5) How to effectively use available Directors’ Conference in Washington, $3,000,000 for the competition resources with fidelity, including how DC, during each year of the project announced in this notice. The actual to incorporate the use of AIM products, period. level of funding, if any, depends on (4) A three-day Project Directors’ training modules, and materials made final congressional action. However, we Conference in Washington, DC, during available through OSEP-funded NIMAS- are inviting applications to allow each year of the project period. related projects and other resources; enough time to complete the grant (5) A two-day State Representative (f) Recruit, select, and train personnel process if Congress appropriates funds meeting in Washington, DC, with OSEP from each of the 25 participating States for this program. to provide in-service training to LEA staff in the second year of the project Contingent upon the availability of staff in their respective States. period. The budget for attendance at this funds and the quality of applications, (g) Maintain a Web site that meets meeting must include travel and per we may make additional awards in FY government or industry-recognized diem support for one representative 2012 from this competition. standards for accessibility and that links from each selected State to attend the Maximum Award: We will reject any to the Web site operated by the meeting. application that proposes a budget Technical Assistance Coordination Project Activities. To meet the exceeding $3,000,000 for a single budget Center (TACC). requirements of this priority, the Center, period of 12 months. The Assistant (h) Prepare and disseminate reports, at a minimum, must conduct the Secretary for Special Education and documents, and other materials on the following activities: Rehabilitative Services may change the Center’s training activities. (a) Identify and describe currently maximum amount through a notice (i) Maintain ongoing communication available AIM training products, published in the Federal Register. with the OSEP Project Officer through materials, modules, and other training Estimated Number of Awards: 1. resources that are produced by OSEP- bi-monthly phone conversations and e- funded projects related to the mail communication. Note: The Department is not bound by any implementation of the NIMAS (j) Conduct a formative evaluation in estimates in this notice. provisions in the 2004 amendments of accordance with the plan described in Project Period: Up to 24 months. IDEA. response to paragraph (c) of the III. Eligibility Information (b) Identify and describe currently Application Requirements in this available AIM training products, priority. 1. Eligible Applicants: SEAs; IHEs; materials, modules, and other training References: other public agencies; private nonprofit resources that are produced by Etemad, P. & Burdette, P. (2009). The organizations; outlying areas; freely publishers, universities, non-profit National Materials Accessibility associated States; and for-profit organizations, other federally funded Standard (NIMAS): State organizations.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00023 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59702 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

2. Cost Sharing or Matching: This The page limit does not apply to Part System (DUNS) number and a Taxpayer competition does not require cost I, the cover sheet; Part II, the budget Identification Number (TIN); (2) you sharing or matching. section, including the narrative budget must register both of those numbers 3. Other: General Requirements—(a) justification; Part IV, the assurances and with the Central Contractor Registry The projects funded under this certifications; or the one-page abstract, (CCR), the Government’s primary competition must make positive efforts the resumes, the bibliography, the registrant database; and (3) you must to employ and advance in employment references, or the letters of support. provide those same numbers on your qualified individuals with disabilities However, the page limit does apply to application. (see section 606 of IDEA). all of the application narrative section You can obtain a DUNS number from (b) Applicants and grant recipients (Part III). Dun and Bradstreet. A DUNS number funded under this competition must We will reject your application if you can be created within one business day. involve individuals with disabilities or exceed the page limit; or if you apply If you are a corporate entity, agency, parents of individuals with disabilities other standards and exceed the institution, or organization, you can ages birth through 26 in planning, equivalent of the page limit. obtain a TIN from the Internal Revenue implementing, and evaluating the 3. Submission Dates and Times: Service. If you are an individual, you projects (see section 682(a)(1)(A) of Applications Available: September can obtain a TIN from the Internal IDEA). 28, 2010. Revenue Service or the Social Security Deadline for Transmittal of Administration. If you need a new TIN, IV. Application and Submission Applications: November 29, 2010. please allow 2–5 weeks for your TIN to Information Applications for grants under this become active. 1. Address to Request Application competition may be submitted The CCR registration process may take Package: Education Publications Center electronically using the Electronic Grant five or more business days to complete. (ED Pubs), U.S. Department of Application System (e-Application) If you are currently registered with the Education, P.O. Box 22207, Alexandria, accessible through the Department’s e- CCR, you may not need to make any VA 22304. Telephone, toll free: 1–877– Grants site, or in paper format by mail changes. However, please make certain 433–7827. FAX: (703) 605–6794. If you or hand delivery. For information that the TIN associated with your DUNS use a telecommunications device for the (including dates and times) about how number is correct. Also note that you deaf (TDD), call, toll free: 1–877–576– to submit your application will need to update your CCR 7734. electronically, or in paper format by registration on an annual basis. This You can contact ED Pubs at its Web mail or hand delivery, please refer to may take three or more business days to site, also: http://www.EDPubs.gov or at section IV.7. Other Submission complete. its e-mail address: [email protected]. Requirements of this notice. 7. Other Submission Requirements: If you request an application package We do not consider an application Applications for grants under this from ED Pubs, be sure to identify this that does not comply with the deadline competition may be submitted competition as follows: CFDA number requirements. electronically or in paper format by mail 84.327W. Individuals with disabilities who or hand delivery. Individuals with disabilities can need an accommodation or auxiliary aid a. Electronic Submission of obtain a copy of the application package in connection with the application Applications. in an accessible format (e.g., braille, process should contact the person listed If you choose to submit your large print, audiotape, or computer under FOR FURTHER INFORMATION application to us electronically, you diskette) by contacting the person or CONTACT in section VII of this notice. If must use e-Application, accessible team listed under Accessible Format in the Department provides an through the Department’s e-Grants Web section VIII of this notice. accommodation or auxiliary aid to an site at: http://e-grants.ed.gov. 2. Content and Form of Application individual with a disability in While completing your electronic Submission: Requirements concerning connection with the application application, you will be entering data the content of an application, together process, the individual’s application online that will be saved into a with the forms you must submit, are in remains subject to all other database. You may not e-mail an the application package for this requirements and limitations in this electronic copy of a grant application to competition. notice. us. Page Limit: The application narrative Deadline for Intergovernmental Please note the following: (Part III of the application) is where you, Review: January 26, 2011. • Your participation in e-Application the applicant, address the selection 4. Intergovernmental Review: This is voluntary. criteria that reviewers use to evaluate program is subject to Executive Order • You must complete the electronic your application. You must limit Part III 12372 and the regulations in 34 CFR submission of your grant application by to the equivalent of no more than 50 part 79. Information about 4:30:00 p.m., Washington, DC time, on pages, using the following standards: Intergovernmental Review of Federal the application deadline date. E- • A ‘‘page’’ is 8.5″ × 11″, on one side Programs under Executive Order 12372 Application will not accept an only, with 1″ margins at the top, bottom, is in the application package for this application for this competition after and both sides. competition. 4:30:00 p.m., Washington, DC time, on • Double space (no more than three 5. Funding Restrictions: We reference the application deadline date. lines per vertical inch) all text in the regulations outlining funding Therefore, we strongly recommend that application narrative, including titles, restrictions in the Applicable you do not wait until the application headings, footnotes, quotations, Regulations section of this notice. deadline date to begin the application references, and captions, as well as all 6. Data Universal Numbering System process. text in charts, tables, figures, and Number, Taxpayer Identification • The hours of operation of the e- graphs. Number, and Central Contractor Grants Web site are 6:00 a.m. Monday • Use a font that is either 12 point or Registry: To do business with the until 7:00 p.m. Wednesday; and 6:00 larger or no smaller than 10 pitch Department of Education, (1) you must a.m. Thursday until 8:00 p.m. Sunday, (characters per inch). have a Data Universal Numbering Washington, DC time. Please note that,

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00024 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59703

because of maintenance, the system is hand delivery. We will grant this If you mail your application through unavailable between 8:00 p.m. on extension if— the U.S. Postal Service, we do not Sundays and 6:00 a.m. on Mondays, and (1) You are a registered user of e- accept either of the following as proof between 7:00 p.m. on Wednesdays and Application and you have initiated an of mailing: 6:00 a.m. on Thursdays, Washington, electronic application for this (1) A private metered postmark. DC time. Any modifications to these competition; and (2) A mail receipt that is not dated by hours are posted on the e-Grants Web (2) (a) E-Application is unavailable for the U.S. Postal Service. site. 60 minutes or more between the hours If your application is postmarked after • You will not receive additional of 8:30 a.m. and 3:30 p.m., Washington, the application deadline date, we will point value because you submit your DC time, on the application deadline not consider your application. application in electronic format, nor date; or Note: The U.S. Postal Service does not will we penalize you if you submit your (b) E-Application is unavailable for uniformly provide a dated postmark. Before application in paper format. any period of time between 3:30 p.m. relying on this method, you should check • You must submit all documents and 4:30:00 p.m., Washington, DC time, with your local post office. electronically, including all information on the application deadline date. c. Submission of Paper Applications you typically provide on the following We must acknowledge and confirm by Hand Delivery. forms: The Application for Federal these periods of unavailability before If you submit your application in Assistance (SF 424), the Department of granting you an extension. To request paper format by hand delivery, you (or Education Supplemental Information for this extension or to confirm our a courier service) must deliver the SF 424, Budget Information—Non- acknowledgment of any system original and two copies of your Construction Programs (ED 524), and all unavailability, you may contact either application by hand, on or before the necessary assurances and certifications. (1) the person listed elsewhere in this application deadline date, to the You must attach any narrative sections notice under FOR FURTHER INFORMATION Department at the following address: of your application as files in a .DOC CONTACT (see VII. Agency Contact) or (2) U.S. Department of Education, (document), .RTF (rich text), or .PDF the e-Grants help desk at 1–888–336– Application Control Center, Attention: (Portable Document) format. If you 8930. If e-Application is unavailable (CFDA Number 84.327W) 550 12th upload a file type other than the three due to technical problems with the Street, SW., Room 7041, Potomac Center file types specified in this paragraph or system and, therefore, the application Plaza, Washington, DC 20202–4260. submit a password protected file, we deadline is extended, an e-mail will be The Application Control Center will not review that material. sent to all registered users who have accepts hand deliveries daily between • Your electronic application must initiated an e-Application. 8:00 a.m. and 4:30 p.m., Washington, comply with any page limit Extensions referred to in this section DC time, except Saturdays, Sundays, requirements described in this notice. apply only to the unavailability of e- and Federal holidays. • Prior to submitting your electronic Application. If e-Application is Note for Mail or Hand Delivery of Paper application, you may wish to print a available, and, for any reason, you are Applications: If you mail or hand deliver copy of it for your records. unable to submit your application your application to the Department— • After you electronically submit electronically or you do not receive an (1) You must indicate on the envelope your application, you will receive an automatic acknowledgment of your and—if not provided by the Department—in automatic acknowledgment that will submission, you may submit your Item 11 of the SF 424 the CFDA number, include a PR/Award number (an application in paper format by mail or including suffix letter, if any, of the identifying number unique to your hand delivery in accordance with the competition under which you are submitting application). instructions in this notice. your application; and • Within three working days after (2) The Application Control Center will b. Submission of Paper Applications mail to you a notification of receipt of your submitting your electronic application, by Mail. grant application. If you do not receive this fax a signed copy of the SF 424 to the If you submit your application in grant notification within 15 business days Application Control Center after paper format by mail (through the U.S. from the application deadline date, you following these steps: Postal Service or a commercial carrier), should call the U.S. Department of Education (1) Print SF 424 from e-Application. you must mail the original and two Application Control Center at (202) 245– (2) The applicant’s Authorizing copies of your application, on or before 6288. Representative must sign this form. the application deadline date, to the (3) Place the PR/Award number in the Department at the following address: V. Application Review Information upper right hand corner of the hard- U.S. Department of Education, 1. Selection Criteria: The selection copy signature page of the SF 424. Application Control Center, Attention: criteria for this program are from 34 CFR (4) Fax the signed SF 424 to the (CFDA Number 84.327W) LBJ Basement 75.210 and are listed in the application Application Control Center at (202) Level 1, 400 Maryland Avenue, SW., package. 245–6272. Washington, DC 20202–4260. 2. Review and Selection Process: In • We may request that you provide us You must show proof of mailing the past, the Department has had original signatures on other forms at a consisting of one of the following: difficulty finding peer reviewers for later date. (1) A legibly dated U.S. Postal Service certain competitions, because so many Application Deadline Date Extension postmark. individuals who are eligible to serve as in Case of System Unavailability: If you (2) A legible mail receipt with the peer reviewers have conflicts of interest. are prevented from electronically date of mailing stamped by the U.S. The Standing Panel requirements under submitting your application on the Postal Service. IDEA also have placed additional application deadline date because e- (3) A dated shipping label, invoice, or constraints on the availability of Application is unavailable, we will receipt from a commercial carrier. reviewers. Therefore, the Department grant you an extension of one business (4) Any other proof of mailing has determined that, for some day to enable you to transmit your acceptable to the Secretary of the U.S. discretionary grant competitions, application electronically, by mail, or by Department of Education. applications may be separated into two

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00025 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59704 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

or more groups and ranked and selected Technology and Media Services for DEPARTMENT OF EDUCATION for funding within specific groups. This Individuals with Disabilities program. procedure will make it easier for the These measures focus on the extent to Office of Management; Performance Department to find peer reviewers, by which projects are of high-quality, are Review Board Membership ensuring that greater numbers of relevant to improving outcomes of AGENCY: Department of Education. individuals who are eligible to serve as children with disabilities, and ACTION: reviewers for any particular group of Notice of membership of the contribute to improving outcomes for Performance Review Board. applicants will not have conflicts of children with disabilities. We will interest. It also will increase the quality, collect data on these measures from the SUMMARY: The Secretary announces the independence, and fairness of the projects funded under this competition. members of the Performance Review review process, while permitting panel Board (PRB) for the Department of members to review applications under Grantees will be required to report Education for the Senior Executive discretionary grant competitions for information on their projects’ Service (SES) performance cycle that which they also have submitted performance in their annual ended September 30, 2010. Under 5 applications. However, if the performance reports to the Department U.S.C. 4314(c)(1) through (5), each Department decides to select an equal (34 CFR 75.590). agency is required to establish one or number of applications in each group more PRBs. for funding, this may result in different VII. Agency Contact Composition and Duties cut-off points for fundable applications For Further Information Contact: in each group. Glinda Hill, U.S. Department of The PRB of the Department of VI. Award Administration Information Education, 400 Maryland Avenue, SW., Education for 2010 is composed of Room 4063, Potomac Center Plaza career and non-career senior executives. 1. Award Notices: If your application The PRB reviews and evaluates the is successful, we notify your U.S. (PCP), Washington, DC 20202–2550. initial appraisal of each senior Representative and U.S. Senators and Telephone: (202) 245–7376. executive’s performance, along with any send you a Grant Award Notification If you use a TDD, call the Federal comments by that senior executive and (GAN). We may notify you informally, Relay Service (FRS), toll free, at 1–800– by any higher-level executive or also. 877–8339. executives. The PRB makes If your application is not evaluated or recommendations to the appointing not selected for funding, we notify you. VIII. Other Information authority relative to the performance of 2. Administrative and National Policy the senior executive, including Requirements: We identify Accessible Format: Individuals with disabilities can obtain this document recommendations on performance administrative and national policy awards. The Department of Education’s and a copy of the application package in requirements in the application package PRB also makes recommendations on an accessible format (e.g., braille, large and reference these and other SES pay adjustments for career senior requirements in the Applicable print, audiotape, or computer diskette) executives. Regulations section of this notice. by contacting the Grants and Contracts We reference the regulations outlining Services Team, U.S. Department of Membership the terms and conditions of an award in Education, 400 Maryland Avenue, SW., The Secretary has selected the the Applicable Regulations section of Room 5075, PCP, Washington, DC following executives of the Department this notice and include these and other 20202–2550. Telephone: (202) 245– of Education for the specified SES specific conditions in the GAN. The 7363. If you use a TDD, call the FRS, toll performance cycle: Chair: Winona H. GAN also incorporates your approved free, at 1–800–877–8339. Varnon, Thomas Skelly, Danny Harris, application as part of your binding Electronic Access to This Document: James Manning, Linda Stracke, Joe commitments under the grant. You can view this document, as well as Conaty, Sue Betka, Russlyn Ali, and 3. Reporting: At the end of your Martha Kanter. all other documents of this Department project period, you must submit a final FOR FURTHER INFORMATION CONTACT: performance report, including financial published in the Federal Register, in text or Adobe Portable Document Mary Beth Pultz, Director, Executive information, as directed by the Resources Team, Human Resources Format (PDF) on the Internet at the Secretary. If you receive a multi-year Services, Office of Management, U.S. following site: http://www.ed.gov/news/ award, you must submit an annual Department of Education, 400 Maryland fedregister. To use PDF you must have performance report that provides the Avenue, SW., room 2E124, LBJ, most current performance and financial Adobe Acrobat Reader, which is Washington, DC 20202–4573. expenditure information as directed by available free at this site. Telephone: (202) 401–0853. the Secretary under 34 CFR 75.118. The Note: The official version of this document If you use a telecommunications Secretary may also require more is the document published in the Federal device for the deaf (TDD), you may call frequent performance reports under 34 Register. Free Internet access to the official the Federal Relay Service (FRS) at 1– CFR 75.720(c). For specific edition of the Federal Register and the Code 800–877–8339. requirements on reporting, please go to of Federal Regulations is available on GPO Individuals with disabilities may http://www.ed.gov/fund/grant/apply/ Access at: http://www.gpoaccess.gov/nara/ obtain this document in an alternative appforms/appforms.html. index.html. format (e.g., Braille, large print, 4. Performance Measures: Under the audiotape, or computer diskette) on Government Performance and Results Dated: September 23, 2010. request to the contact person listed Act of 1993 (GPRA), the Department has Alexa Posny, under FOR FURTHER INFORMATION established a set of performance Assistant Secretary for Special Education and CONTACT. measures, including long-term Rehabilitative Services. measures, that are designed to yield Electronic Access to This Document [FR Doc. 2010–24337 Filed 9–27–10; 8:45 am] information on various aspects of the You may view this document, as well effectiveness and quality of the BILLING CODE 4000–01–P as all other Department of Education

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00026 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59705

documents published in the Federal • HTAC Subcommittee Development. applicants listed above submitted their Register, in text or Adobe Portable • HTAC Annual Report Development. baseline filing of its Statement of • Document Format (PDF) on the Internet Open Discussion. Operating Conditions for services at the following site: http://www.ed.gov/ Public Participation: In keeping with provided under section 311 of the news/fedregister. procedures, members of the public are Natural Gas Policy Act of 1978 (NGPA). To use PDF, you must have Adobe welcome to observe the business of the Acrobat Reader, which is available free meeting of HTAC and to make oral Any person desiring to participate in at this site. If you have questions about statements during the specified period this rate proceeding must file a motion using PDF, call the U.S. Government for public comment. The public to intervene or to protest this filing must Printing Office (GPO), toll free, at 1– comment period will take place between file in accordance with Rules 211 and 888–293–6498; or in the Washington, 9 a.m. and 9:30 a.m. on October 14, 214 of the Commission’s Rules of DC, area at (202) 512–1530. 2010. To attend the meeting and/or to Practice and Procedure (18 CFR 385.211 make oral statements regarding any of and 385.214). Protests will be Note: The official version of this document is the document published in the Federal the items on the agenda, please send an considered by the Commission in Register. Free Internet access to the official e-mail at least 5 business days before the determining the appropriate action to be edition of the Federal Register and the Code meeting to [email protected]. Please taken, but will not serve to make of Federal Regulations is available on GPO indicate if you will be attending the protestants parties to the proceeding. Access at: http://www.gpoaccess.gov/nara/ meeting, whether you want to make an Any person wishing to become a party index.html. oral statement on October 14, 2010, and must file a notice of intervention or what organization you represent (if motion to intervene, as appropriate. Dated: September 16, 2010. appropriate). Members of the public will Arne Duncan, Such notices, motions, or protests must be heard in the order in which they sign be filed on or before the date as Secretary of Education. up for the public comment period. Oral indicated below. Anyone filing an [FR Doc. 2010–24290 Filed 9–27–10; 8:45 am] comments should be limited to two intervention or protest must serve a BILLING CODE 4000–01–P minutes in length. Reasonable provision copy of that document on the Applicant. will be made to include the scheduled Anyone filing an intervention or protest oral statements on the agenda. The chair on or before the intervention or protest DEPARTMENT OF ENERGY of the committee will make every effort to hear the views of all interested parties date need not serve motions to intervene Hydrogen and Fuel Cell Technical and to facilitate the orderly conduct of or protests on persons other than the Advisory Committee (HTAC) business. If you would like to file a Applicant. AGENCY: Department of Energy, Office of written statement with the committee, The Commission encourages Energy Efficiency and Renewable you may do so either by submitting a electronic submission of protests and Energy. hard copy at the meeting or by interventions in lieu of paper using the submitting an electronic copy to ‘‘ ’’ ACTION: Notice of open meeting. eFiling link at http://www.ferc.gov. [email protected]. Persons unable to file electronically SUMMARY: The Hydrogen and Fuel Cell Minutes: The minutes of the meeting should submit an original and 7 copies Technical Advisory Committee (HTAC) will be available for public review at of the protest or intervention to the was established under section 807 of the http://hydrogen.energy.gov. Federal Energy Regulatory Commission, Energy Policy Act of 2005 (EPACT), Issued at Washington, DC on September 888 First Street, NE., Washington, DC Public Law 109–58; 119 Stat. 849. The 22, 2010. 20426. Federal Advisory Committee Act, Public Carol A. Matthews, This filing is accessible on-line at Law 92–463, 86 Stat. 770, requires that Committee Management Officer. http://www.ferc.gov, using the public notice of this meeting be [FR Doc. 2010–24120 Filed 9–27–10; 8:45 am] announced in the Federal Register. ‘‘eLibrary’’ link and is available for BILLING CODE 6450–01–P review in the Commission’s Public DATES: Thursday, October 14, 2010 9 a.m.–5 p.m.; and Friday, October 15, Reference Room in Washington, DC. 2010 9 a.m.–2 p.m. DEPARTMENT OF ENERGY There is an ‘‘eSubscription’’ link on the Web site that enables subscribers to ADDRESSES: Radisson Hotel, 2020 Jefferson Davis Highway, Arlington, VA. Federal Energy Regulatory receive e-mail notification when a Commission document is added to a subscribed FOR FURTHER INFORMATION CONTACT: docket(s). For assistance with any FERC [email protected]. Docket No. PR10–106–000; Docket No. PR10–107–000; Docket No. PR10–109–000; Online service, please e-mail SUPPLEMENTARY INFORMATION: Docket No. PR10–110–000; Docket No. [email protected], or call Purpose of the Meeting: To provide PR10–112–000; Docket No. PR10–113–000 (866) 208–3676 (toll free). For TTY, call advice, information, and (Not Consolidated) (202) 502–8659. recommendations to the Secretary on the program authorized by Title VIII of SourceGas Distribution LLC; Bay Gas Comment Date: 5 p.m. Eastern time EPACT. Storage, LLC; Enterprise Texas on Monday, October 4, 2010. Tentative Agenda Topics: (Subject to Pipeline LLC; Dow Intrastate Gas Kimberly D. Bose, change; updates will be posted on the Company; ONEOK Field Services Secretary. web at http://hydrogen.energy.gov and Company, L.L.C.; Corning Natural Gas copies of the final agenda will be Corporation; Notice of Baseline Filings [FR Doc. 2010–24231 Filed 9–27–10; 8:45 am] available on the date of the meeting). BILLING CODE 6717–01–P • DOE Program Updates, including September 21, 2010. ARPA–E Project Overviews. Take notice that on September 14, • Industry Presentations. 2010, September 16, 2010, September • DOE Safety Codes and Standards 17, 2010, September 20, 2010, and Activity Overview. September 21, 2010, respectively the

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00027 Fmt 4703 Sfmt 9990 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59706 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

DEPARTMENT OF ENERGY brief comments up to 6,000 characters, (msl); (2) a 1,480-foot-long, 210-foot- without prior registration, using the high earth and rockfill or concrete-face Federal Energy Regulatory eComment system at http:// rockfill dam; creating an 121-acre lower Commission www.ferc.gov/docs-filing/ reservoir with a storage capacity of [Project No. 13661–000] ecomment.asp. You must include your 8,900-acre-foot at an elevation of 7,325 name and contact information at the end feet msl; (3) a 19-foot-diameter, 600- Coastal Hydropower, LLC; Notice of of your comments. For assistance, foot-long concrete-lined low pressure Preliminary Permit Application please contact FERC Online Support. tunnel; (4) a 19-foot-diameter, 5,060- Accepted for Filing and Soliciting Although the Commission strongly foot-long high pressure concrete-lined Comments, Motions To Intervene, and encourages electronic filing, documents tunnel; (5) a 280-foot-long, 70-foot-wide, Competing Applications may also be paper-filed. To paper-file, 120-foot-high powerhouse containing mail an original and seven copies to: one reversible 200-megawatt (MW) September 21, 2010. Kimberly D. Bose, Secretary, Federal turbine/generator unit, and two 100– On February 9, 2010, and Energy Regulatory Commission, 888 MW turbine/generator units, for a total supplemented on July 16, 2010, Coastal First Street, NE., Washington, DC 20426. installed capacity of 400 MW; (6) a Hydropower, LLC filed an application More information about this project, 2,600-foot-long, 22.5-foot-diameter for a preliminary permit, pursuant to including a copy of the application, can tailrace between the powerhouse and section 4(f) of the Federal Power Act be viewed or printed on the ‘‘eLibrary’’ the lower reservoir; (7) an (FPA), proposing to study the feasibility link of Commission’s Web site at approximately 6.8-mile-long, 230- of the Walterville Headgate Dam http://www.ferc.gov/docs-filing/ kilovolt transmission line connecting Hydroelectric Project, to be located at elibrary.asp. Enter the docket number the powerhouse to the existing Miracle the Walterville Headgate Dam on the (P–13661–000) in the docket number Mile-Cheyenne transmission line; and Walterville Canal, a tributary of the field to access the document. For (8) appurtenant facilities. The estimated McKenzie River, in Lane County, assistance, contact FERC Online annual generation of the Medicine Bow Oregon. The sole purpose of a Support. Project would be 1,226,400 megawatt- preliminary permit, if issued, is to grant hours. the permit holder priority to file a Kimberly D. Bose, Applicant Contact: Matthew Shapiro, license application during the permit Secretary. Gridflex Energy, LLC, 1210 W. Franklin term. A preliminary permit does not [FR Doc. 2010–24234 Filed 9–27–10; 8:45 am] Street, Ste. 2, Boise, ID 83702; phone: authorize the permit holder to perform BILLING CODE 6717–01–P (208) 246–9925. any land-disturbing activities or FERC Contact: Jennifer Harper (202) otherwise enter upon lands or waters 502–6136. owned by others without the owners’ DEPARTMENT OF ENERGY Deadline for filing comments, motions express permission. to intervene, competing applications The proposed project would consist of Federal Energy Regulatory (without notices of intent), or notices of the following: (1) Three new Commission intent to file competing applications: 60 submersible Kaplan turbine/generator [Project No. 13836–000] days from the issuance of this notice. units with a total installed capacity of Competing applications and notices of 1.5 megawatts, to be installed replacing Medicine Bow Hydro, LLC; Notice of intent must meet the requirements of 18 some sections of the existing dam; (2) a Preliminary Permit Application CFR 4.36. Comments, motions to new control house building; and (3) a Accepted for Filing and Soliciting intervene, notices of intent, and new approximately 1,200-foot-long, 15- Comments, Motions To Intervene, and competing applications may be filed kilovolt transmission line Competing Applications electronically via the Internet. See 18 interconnecting to an existing CFR 385.2001(a)(1)(iii) and the transmission line. The estimated annual September 21, 2010. instructions on the Commission’s Web generation of the project would be 7.9 On August 30, 2010, Medicine Bow site http://www.ferc.gov/docs-filing/ gigawatt-hours. Hydro, LLC filed an application for a efiling.asp. Commenters can submit Applicant Contact: Neil Anderson, preliminary permit, pursuant to section brief comments up to 6,000 characters, Coastal Hydropower, LLC, Key Centre, 4(f) of the Federal Power Act (FPA), without prior registration, using the 601 108th Avenue, NE., Suite 1900, proposing to study the feasibility of the eComment system at http:// Bellevue, WA 98004; phone: (425) 943– Medicine Bow Pumped Storage Project www.ferc.gov/docs-filing/ 7690. (Medicine Bow Project) to be located in ecomment.asp. You must include your FERC Contact: Dianne Rodman; Carbon County, Idaho. The sole purpose name and contact information at the end phone: (202) 502–6077. of a preliminary permit, if issued, is to of your comments. For assistance, Deadline for filing comments, motions grant the permit holder priority to file please contact FERC Online Support. to intervene, competing applications a license application during the permit Although the Commission strongly (without notices of intent), or notices of term. A preliminary permit does not encourages electronic filing, documents intent to file competing applications: 60 authorize the permit holder to perform may also be paper-filed. To paper-file, days from the issuance of this notice. any land-disturbing activities or mail an original and seven copies to: Competing applications and notices of otherwise enter upon lands or waters Kimberly D. Bose, Secretary, Federal intent must meet the requirements of 18 owned by others without the owners’ Energy Regulatory Commission, 888 CFR 4.36. Comments, motions to express permission. First Street, NE., Washington, DC 20426. intervene, notices of intent, and The proposed project will consist of More information about this project, competing applications may be filed the following: (1) A 9,200-foot- including a copy of the application, can electronically via the Internet. See 18 circumference, 60-foot-high earth or be viewed or printed on the ‘‘eLibrary’’ CFR 385.2001(a)(1)(iii) and the rockfilled embankment; creating an 88- link of Commission’s Web site at http: instructions on the Commission’s Web acre upper reservoir with a storage //www.ferc.gov/docs-filing/elibrary.asp. site http://www.ferc.gov/docs-filing/ capacity of 8,750-acre-foot at an Enter the docket number (P–13836–000) efiling.asp. Commenters can submit elevation of 8,375 feet mean sea level in the docket number field to access the

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00028 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59707

document. For assistance, contact FERC competing applications may be filed intervention or motion to intervene, as Online Support. electronically via the Internet. See 18 appropriate. Such notices, motions, or CFR 385.2001(a)(1)(iii) and the protests must be filed on or before the Kimberly D. Bose, instructions on the Commission’s Web date as indicated below. Anyone filing Secretary. site http://www.ferc.gov/docs-filing/ an intervention or protest must serve a [FR Doc. 2010–24230 Filed 9–27–10; 8:45 am] efiling.asp. Commenters can submit copy of that document on the Applicant. BILLING CODE 6717–01–P brief comments up to 6,000 characters, Anyone filing an intervention or protest without prior registration, using the on or before the intervention or protest eComment system at http:// date need not serve motions to intervene DEPARTMENT OF ENERGY www.ferc.gov/docs-filing/ or protests on persons other than the Federal Energy Regulatory ecomment.asp. You must include your Applicant. The Commission encourages Commission name and contact information at the end of your comments. For assistance, electronic submission of protests and [Project No. 13662–000] please contact FERC Online Support. interventions in lieu of paper using the Although the Commission strongly ‘‘eFiling’’ link at http://www.ferc.gov. Coastal Hydropower, LLC; Notice of encourages electronic filing, documents Persons unable to file electronically Preliminary Permit Application may also be paper-filed. To paper-file, should submit an original and 7 copies Accepted for Filing and Soliciting mail an original and seven copies to: of the protest or intervention to the Comments, Motions To Intervene, and Kimberly D. Bose, Secretary, Federal Federal Energy Regulatory Commission, Competing Applications Energy Regulatory Commission, 888 888 First Street, NE., Washington, DC September 21, 2010. First Street, NE., Washington, DC 20426. 20426. This filing is accessible on-line at On February 9, 2010, and More information about this project, http://www.ferc.gov, using the supplemented on July 16, 2010, Coastal including a copy of the application, can ‘‘eLibrary’’ link and is available for Hydropower, LLC filed an application be viewed or printed on the ‘‘eLibrary’’ review in the Commission’s Public for a preliminary permit, pursuant to link of Commission’s Web site at http: Reference Room in Washington, DC. section 4(f) of the Federal Power Act //www.ferc.gov/docs-filing/elibrary.asp. There is an ‘‘eSubscription’’ link on the (FPA), proposing to study the feasibility Enter the docket number (P–13662–000) web site that enables subscribers to of the Winchester Dam Hydroelectric in the docket number field to access the receive e-mail notification when a Project, to be located at the Winchester document. For assistance, contact FERC document is added to a subscribed dam on the North Umpqua River, in Online Support. docket(s). For assistance with any FERC Douglas County, Oregon. The sole Kimberly D. Bose, Online service, please e-mail purpose of a preliminary permit, if Secretary. [email protected], or call issued, is to grant the permit holder [FR Doc. 2010–24235 Filed 9–27–10; 8:45 am] (866) 208–3676 (toll free). For TTY, call priority to file a license application BILLING CODE 6717–01–P (202) 502–8659. during the permit term. A preliminary Comment Date: 5 p.m. Eastern time permit does not authorize the permit on Monday, October 4, 2010. holder to perform any land-disturbing DEPARTMENT OF ENERGY activities or otherwise enter upon lands Kimberly D. Bose, or waters owned by others without the Federal Energy Regulatory Secretary. owners’ express permission. Commission [FR Doc. 2010–24232 Filed 9–27–10; 8:45 am] The proposed project would consist of [Docket No. PR10–111–000] BILLING CODE 6717–01–P the following: (1) Five new submersible Kaplan turbine/generator units with a Public Service Company of Colorado; total installed capacity of 2.5 megawatts, Notice of Rate Election DEPARTMENT OF ENERGY to be installed replacing sections of the existing dam; (2) a new control house September 21, 2010. Federal Energy Regulatory building; and (3) a new approximately Take notice that on September 17, Commission 100-foot-long, 20-kilovolt transmission 2010, Public Service Company of [Docket No. ER02–2001–016; Docket No. line interconnecting to an existing Colorado (PSCo) filed a Rate Election ER06–885–000; Docket No. ER04–289–000] substation. The estimated annual pursuant to section 284.123(b)(1)(ii) of generation of the project would be 13 the Commission’s regulations. PSCo Electric Quarterly Reports; BM2 LLC; gigawatt-hours. proposes to utilize rates that are the DJGW, LLC; Order on Intent To Revoke Applicant Contact: Neil Anderson, same as those contained in PSCo’s Market-Based Rate Authority Coastal Hydropower, LLC, Key Centre, transportation rate schedules for 601 108th Avenue, NE., Suite 1900, comparable intrastate service on file Issued September 22, 2010. Bellevue, WA 98004; phone: (425) 943– with the Colorado Public Utilities Before Commissioners: Jon Wellinghoff, 7690. Commission (Colorado PUC). Chairman; Marc Spitzer, Philip D. Moeller, FERC Contact: Dianne Rodman; Any person desiring to participate in John R. Norris, and Cheryl A. LaFleur. phone: (202) 502–6077. this rate filing must file in accordance 1. Section 205 of the Federal Power Deadline for filing comments, motions with Rules 211 and 214 of the Act (FPA), 16 U.S.C. 824d (2006), and to intervene, competing applications Commission’s Rules of Practice and 18 CFR part 35 (2010), require, among (without notices of intent), or notices of Procedure (18 CFR 385.211 and other things, that all rates, terms, and intent to file competing applications: 60 385.214). Protests will be considered by conditions of jurisdictional services be days from the issuance of this notice. the Commission in determining the filed with the Commission. In Order No. Competing applications and notices of appropriate action to be taken, but will 2001, the Commission revised its public intent must meet the requirements of 18 not serve to make protestants parties to utility filing requirements and CFR 4.36. Comments, motions to the proceeding. Any person wishing to established a requirement for public intervene, notices of intent, and become a party must file a notice of utilities, including power marketers, to

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00029 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59708 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

file Electric Quarterly Reports staff contacted these entities to remind ENVIRONMENTAL PROTECTION summarizing the contractual terms and them of their regulatory obligations.5 AGENCY conditions in their agreements for all The two public utilities listed in the jurisdictional services (including [EPA–HQ–OEI–2010–0746; FRL–9207–5; caption of this order have not met these EPA ICR No. 1665.10, OMB Control No. market-based power sales, cost-based 6 obligations. Accordingly, this order 2020–0003] power sales, and transmission service) notifies these public utilities that their and providing transaction information market-based rate authorizations will be Agency Information Collection (including rates) for short-term and revoked unless they comply with the Activities; Proposed Collection; long-term power sales during the most Commission’s requirements within 15 Comment Request; Confidentiality recent calendar quarter.1 days of the issuance of this order. Rules (Renewal) 2. Commission staff’s review of the 7. In the event that the above- Electric Quarterly Report submittals captioned market-based rate sellers have AGENCY: Environmental Protection indicates that two utilities with already filed its Electric Quarterly Agency (EPA). authority to sell electric power at Report in compliance with the ACTION: Notice. market-based rates have failed to file Commission’s requirements, its SUMMARY: their Electric Quarterly Reports. This inclusion herein is inadvertent. Such In compliance with the order notifies these public utilities that market-based rate seller is directed, Paperwork Reduction Act (PRA) (44 their market-based rate authorizations within 15 days of the date of issuance U.S.C. 3501 et seq.), this document will be revoked unless they comply of this order, to make a filing with the announces that EPA is planning to with the Commission’s requirements Commission identifying itself and submit a request to renew an existing within 15 days of the date of issuance providing details about its prior filings approved Information Collection of this order. that establish that it complied with the Request (ICR) to the Office of 3. In Order No. 2001, the Commission Commission’s Electric Quarterly Report Management and Budget (OMB). This stated that, filing requirements. ICR is scheduled to expire on December 31, 2010. Before submitting the ICR to [i]f a public utility fails to file a[n] Electric 8. If the above-captioned market- OMB for review and approval, EPA is Quarterly Report (without an appropriate based rate sellers do not wish to request for extension), or fails to report an soliciting comments on specific aspects continue having market-based rate of the proposed information collection agreement in a report, that public utility may authority, they may file a notice of forfeit its market-based rate authority and as described below. may be required to file a new application for cancellation with the Commission pursuant to section 205 of the FPA to DATES: Comments must be submitted on market-based rate authority if it wishes to or before November 29, 2010. resume making sales at market-based rates.[2] cancel their market-based rate tariff. ADDRESSES: Submit your comments, 4. The Commission further stated that, The Commission orders: (A) Within 15 days of the date of identified by Docket ID No. EPA–HQ– [o]nce this rule becomes effective, the issuance of this order, each public OEI–2010–0746, by one of the following requirement to comply with this rule will utility listed in the caption of this order methods: supersede the conditions in public utilities’ • http://www.regulations.gov: Follow market-based rate authorizations, and failure shall file with the Commission all delinquent Electric Quarterly Reports. If the on-line instructions for submitting to comply with the requirements of this rule comments. will subject public utilities to the same a public utility fails to make this filing, • consequences they would face for not the Commission will revoke that public E-mail: [email protected]. • Fax: 202–566–0224. satisfying the conditions in their rate utility’s authority to sell power at • authorizations, including possible revocation market-based rates and will terminate Mail: EPA Docket Center, Office of of their authority to make wholesale power its electric market-based rate tariff. The Environmental Information Docket, Mail [3] sales at market-based rates. Secretary is hereby directed, upon Code 28221T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. 5. Pursuant to these requirements, the expiration of the filing deadline in this • Commission has revoked the market- order, to promptly issue a notice, Hand Delivery: EPA Docket Center, based rate tariffs of several market-based effective on the date of issuance, listing Public Reading Room, EPA West rate sellers that failed to submit their the public utilities whose tariffs have Building, Room 3334, 1301 Constitution Electric Quarterly Reports.4 been revoked for failure to comply with Avenue, NW., Washington, DC 20004. 6. As noted above, Commission staff’s the requirements of this order and the Hours of operation: 8:30 a.m.–4:30 p.m., review of the Electric Quarterly Report Commission’s Electric Quarterly Report Monday-Friday (except Federal submittals identified two public utilities filing requirements. Holidays). The telephone number for the Reading Room is 202–566–1744. with authority to sell power at market- (B) The Secretary is hereby directed to • Instructions: Direct your comments based rates that failed to file Electric publish this order in the Federal to Docket ID No. EPA–HQ–OEI–2010– Quarterly Reports in the first and Register. second quarters of 2010. Commission 0746. By the Commission. EPA’s policy is that all comments Kimberly D. Bose, 1 Revised Public Utility Filing Requirements, received will be included in the public Order No. 2001, FERC Stats. & Regs. ¶ 31,127, reh’g Secretary. docket without change and may be denied, Order No. 2001–A, 100 FERC ¶ 61,074, [FR Doc. 2010–24293 Filed 9–27–10; 8:45 am] made available online at http:// reconsideration and clarification denied, Order No. www.regulations.gov, including any 2001–B, 100 FERC ¶ 61,342, order directing filings, BILLING CODE 6717–01–P Order No. 2001–C, 101 FERC ¶ 61,314 (2002), order personal information provided, unless directing filings, Order No. 2001–D, 102 FERC 5 See BM2 LLC, Docket No. ER06–885–000 the comment includes information ¶ 61,334 (2003). (August 2, 2010) (unpublished letter order); DJGW, claimed to be Confidential Business 2 Order No. 2001, FERC Stats & Regs. ¶ 31,127 at LLC, Docket No. ER04–289–000 (August 2, 2010) Information (CBI) or other information P 222. (unpublished letter order). whose disclosure is restricted by statute. 3 Id. P 223. 6 According to the Commission’s records, the 4 See, e.g., Electric Quarterly Reports, 75 FR companies subject to this order failed to file their Do not submit information that you 45,111 (Aug. 2, 2010); Electric Quarterly Reports, 75 Electric Quarterly Reports for the 1st and 2nd consider to be CBI or otherwise FR 19,646 (Apr. 15, 2010). quarters of 2010. protected through http://

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00030 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59709

www.regulations.gov or e-mail. The What information is EPA particularly Title: Confidentiality Rules (Renewal). http://www.regulations.gov Web site is interested in? ICR numbers: EPA ICR No. 1665.10, OMB Control No. 2020–0003. an anonymous access system, which Pursuant to section 3506(c)(2)(A) of means EPA will not know your identity ICR status: This ICR is currently the PRA, EPA specifically solicits scheduled to expire on December 31, or contact information unless you comments and information to enable it provide it in the body of your comment. 2010. An Agency may not conduct or to: sponsor, and a person is not required to If you send an e-mail comment directly (i) Evaluate whether the proposed to EPA without going through http:// respond to, a collection of information, collection of information is necessary unless it displays a currently valid OMB www.regulations.gov, your e-mail for the proper performance of the address will be automatically captured control number. The OMB control functions of the Agency, including numbers for EPA’s regulations in title 40 and included as part of the comment whether the information will have that is placed in the public docket and of the CFR, after appearing in the practical utility; Federal Register when approved, are made available on the Internet. If you (ii) Evaluate the accuracy of the submit an electronic comment, EPA listed in 40 CFR part 9, are displayed Agency’s estimate of the burden of the either by publication in the Federal recommends that you include your proposed collection of information, name and other contact information in Register or by other appropriate means, including the validity of the such as on the related collection the body of your comment and with any methodology and assumptions used; instrument or form, if applicable. The disk or CD–ROM you submit. If EPA (iii) Enhance the quality, utility, and display of OMB control numbers in cannot read your comment due to clarity of the information to be certain EPA regulations is consolidated technical difficulties and cannot contact collected; and in 40 CFR Part 9. you for clarification, EPA may not be (iv) Minimize the burden of the Abstract: In the course of able to consider your comment. collection of information on those who administering environmental protection Electronic files should avoid the use of are to respond, including through the statutes, EPA collects data from special characters, any form of use of appropriate automated electronic, ‘‘business’’ in many sectors of the U.S. encryption, and be free of any defects or mechanical, or other technological economy. In many cases, ‘‘business’’ viruses. For additional information collection techniques or other forms of marks the data it submits to EPA as about EPA’s public docket visit the EPA information technology, e.g., permitting confidential business information (CBI). Docket Center homepage at http:// electronic submission of responses. In In addition, businesses submit www.epa.gov/dockets. particular, EPA is requesting comments information to EPA without the Agency FOR FURTHER INFORMATION CONTACT: from very small businesses (those that requesting the information. EPA Larry F. Gottesman, National Freedom employ less than 25) on examples of established the procedures described in of Information Act Officer, Collection specific additional efforts that EPA 40 CFR Part 2, subparts A and B, to Strategies Division, Office of could make to reduce the paperwork protect the confidentiality of Information Collection, Environmental burden for very small businesses information as well as the rights of the affected by this collection. Protection Agency, 1200 Pennsylvania public to obtain access to information under the Freedom of Information Act Ave., NW., Washington, DC 20460; What should I consider when I prepare (FOIA). In accordance with these telephone number: 202–566–2162; e- my comments for EPA? regulations, when EPA finds it mail address: [email protected]. You may find the following necessary to make a final confidentiality SUPPLEMENTARY INFORMATION: suggestions helpful for preparing your determination (e.g., in response to a comments: FOIA request or in the course of How can I access the docket and/or 1. Explain your views as clearly as rulemaking or litigation), a submit comments? possible and provide specific examples. resubstantiation of a prior claim, or an EPA has established a public docket 2. Describe any assumptions that you advance confidentiality determination, for this ICR under Docket ID No. EPA– used. it shall notify the affected business and HQ–OEI–2010–0746, or in person 3. Provide copies of any technical provide an opportunity to comment viewing at the OEI Docket in the EPA information and/or data you used that (i.e., to submit a substantiation of support your views. Docket Center (EPA/DC), EPA West, confidentiality claims). This ICR relates 4. If you estimate potential burden or to the collection of information that will Room 3334, 1301 Constitution Ave., costs, explain how you arrived at the assist EPA in determining whether NW., Washington, DC. The EPA/DC estimate that you provide. previously submitted information is Public Reading Room is open from 8:30 5. Offer alternative ways to improve entitled to confidential treatment. a.m. to 4:30 p.m., Monday through the collection activity. Burden Statement: The annual public Friday, excluding legal holidays. The 6. Make sure to submit your reporting and recordkeeping burden for telephone number for the Reading Room comments by the deadline identified this collection of information is is 202–566–1744, and the telephone under DATES. estimated to average 4 hours per number for the OEI Docket is 202–566– 7. To ensure proper receipt by EPA, response. Burden means the total time, 1752. be sure to identify the docket ID number effort, or financial resources expended Use http://www.regulations.gov to assigned to this action in the subject by persons to generate, maintain, retain, obtain a copy of the draft collection of line on the first page of your response. or disclose or provide information to or information, submit or view public You may also provide the name, date, for a Federal agency. This includes the comments, access the index listing of and Federal Register citation. time needed to review instructions; the contents of the docket, and to access develop, acquire, install, and utilize those documents in the public docket What information collection activity or technology and systems for the purposes that are available electronically. Once in ICR does this apply to? of collecting, validating, and verifying the system, select search, then key in Affected entities: Entities potentially information; processing and the docket ID number identified in this affected by this action are businesses or maintaining information and disclosing document. other for-profit entities. and providing information; adjusting

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00031 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59710 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

the existing ways to comply with any ENVIRONMENTAL PROTECTION EPA has established a public docket previously applicable instructions and AGENCY for this ICR under Docket ID No. EPA– HQ–OAR–2004–0450 which is available requirements which have subsequently [EPA–HQ–OAR–2004–0450; FRL–9207–6; changed; training personnel to be able to EPA ICR Number 2395.01; OMB Control for on-line viewing at http:// respond to a collection of information; Number 2060–NEW] www.regulations.gov or in hard copy at searching data sources; completing and the EPA Docket Center, Public Reading reviewing the collection of information; Agency Information Collection Room, EPA West, Room 3334, 1301 and transmitting or otherwise disclosing Activities; Submission to OMB for Constitution Avenue, NW., Washington, the information. Review and Approval; Comment DC 20004. The normal business hours Request; Aerospace Manufacturing are 8:30 a.m. to 4:30 p.m., Monday The ICR provides a detailed and Rework Industry Information through Friday, excluding Federal explanation of the Agency’s estimate, Collection holidays. The telephone number for the which is only briefly summarized here: Reading Room is 202–566–1744 and the AGENCY: Environmental Protection Estimated total number of potential telephone number for the Air and Agency (EPA). respondents: 1,650. Radiation Docket is 202–566–1742. ACTION: Notice. Use EPA’s electronic docket and Frequency of response: On occasion. comment system at http:// SUMMARY: Estimated total average number of In compliance with the www.regulations.gov to submit or view responses for each respondent: 1. Paperwork Reduction Act (44 U.S.C. public comments, access the index 3501 et seq.), this document announces listing of the contents of the docket and Estimated total annual burden hours: that an Information Collection Request 2,412.30 hours. to access those documents in the docket has been forwarded to the Office of that are available electronically. Once in Estimated total annual costs: Management and Budget for review and the system, select ‘‘docket search,’’ then $109,922.45. This includes an estimated approval. This is a request for a new key in the docket ID number identified burden cost of $0 for capital investment collection. The Information Collection above. Please note that EPA’s policy is or maintenance and operational costs. Request, which is abstracted below, that public comments, whether describes the nature of the information submitted electronically or in paper, Are there changes in the estimates from collection and its estimated burden and will be made available for public the last approval? cost. viewing at http://www.regulations.gov DATES: Additional comments may be There is a decrease of 6,063 hours in as EPA receives them and without submitted on or before October 28, the total estimated respondent burden change, unless the comment contains 2010. compared with that identified in the ICR copyrighted material, confidential currently approved by OMB. This ADDRESSES: Submit your comments, business information (CBI) or other information whose public disclosure is change is predicated upon estimates referencing Docket ID No. EPA–HQ– restricted by statute. For further that were received from the requester OAR–2004–0450, to (1) EPA on-line using http://www.regulations.gov (our information about the electronic docket, community on the actual burden in go to http://www.regulations.gov. responding to these requests. preferred method), or by mail to: EPA Docket Center, Environmental Title: Aerospace Manufacturing and What is the next step in the process for Protection Agency, Air and Radiation Rework Industry Information Collection this ICR? Docket Information Center, Mail Code ICR number: EPA ICR Number 28221T, 1200 Pennsylvania Ave., NW., 2395.01, OMB Control Number 2060– EPA will consider the comments Washington, DC 20460, and (2) Office of NEW ICR status: This ICR is for a new received and amend the ICR as Management and Budget (OMB) by mail information collection activity. An appropriate. The final ICR package will to: Office of Information and Regulatory Agency may not conduct or sponsor, then be submitted to OMB for review Affairs, OMB, Attention: Desk Officer and a person is not required to respond and approval pursuant to 5 CFR for EPA, 725 17th Street, NW., to, a collection of information, unless it 1320.12. At that time, EPA will issue Washington, DC 20503. displays a currently valid OMB control another Federal Register notice FOR FURTHER INFORMATION CONTACT: Kim number. The OMB control numbers for pursuant to 5 CFR 1320.5(a)(1)(iv) to Teal, Office of Air and Radiation, Office EPA’s regulations in Title 40 of the Code announce the submission of the ICR to of Air Quality Planning and Standards, of Federal Regulations (CFR), after OMB and the opportunity to submit Mail Code E143–03, Research Triangle appearing in the Federal Register when comments to OMB. If you have any Park, North Carolina 27711; telephone approved, are listed in 40 CFR part 9, questions about this ICR or the approval number: (919) 541–5580; fax number: and are displayed either by publication process, please contact the technical (919) 541–3470; e-mail address: in the Federal Register or by other person listed under FOR FURTHER [email protected]. appropriate means, such as on the INFORMATION CONTACT. SUPPLEMENTARY INFORMATION: EPA has related collection instrument or form, if Dated: September 21, 2010. submitted the following Information applicable. The display of OMB control Collection Request (ICR) to OMB for John Moses, numbers in certain EPA regulations is review and approval according to the consolidated in 40 CFR part 9. Director, Collection Strategies Division. procedures prescribed in 5 CFR 1320.12. Abstract: This ICR was developed [FR Doc. 2010–24292 Filed 9–27–10; 8:45 am] On Tuesday, June 22, 2010 (75 FR specifically for aerospace manufacturing BILLING CODE 6560–50–P 35454), EPA sought comments on this and rework facilities and has been ICR pursuant to 5 CFR 1320.8(d). EPA tailored to the processes at aerospace received two comment letters during the facilities. Respondents may use an comment period, which are addressed electronic submission approach that in the ICR. Any additional comments on will be less burdensome for both the this ICR should be submitted to EPA facilities that must respond and for EPA and OMB within 30 days of this notice. personnel who must compile the

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00032 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59711

responses. Respondents are asked to Burden Statement: The one-time requirements, and monitoring, complete simple forms from available public reporting burden for this reporting, and recordkeeping (MRR) information and no request is made to collection of information is estimated to requirements for determining create or develop emission estimates average 228 hours per response. Burden compliance for all units covered by a from information in the literature. means the total time, effort, or financial facility’s flexible permit. EPA believes Information is requested from resources expended by persons to that the program will generate approximately 1,000 aerospace generate, maintain, retain, or disclose or environmental benefits for the public in manufacturing and rework facilities on provide information to or for a Federal Texas as well as a measure of regulatory general facility information, coatings agency. This includes the time needed stability for holders of Texas flexible and spray booth information, other to review instructions; develop, acquire, permits. This Final Notice makes process information (e.g., storage tanks, install and utilize technology and modifications to the Audit Program composite processing, etc.), emission systems for the purposes of collecting, based on comments received during the control devices used at the facilities and validating and verifying information, public comment period. A separate their basic design and operating processing and maintaining information document contains the Agency’s features, quantity of air emissions, and disclosing and providing Response to Comments (RTC). pollution prevention programs at each information; adjust the existing ways to DATES: Executed Audit Agreements may facility, and information regarding comply with any previously applicable be submitted no later than December 27, startup and shutdown events. This instructions and requirements which 2010. Participants who execute an Audit information is necessary for EPA to have subsequently changed; train Agreement by November 12, 2010 will adequately characterize residual risk at personnel to be able to respond to a receive a waiver of the gravity these facilities, to characterize collection of information; search data component of any penalties resulting emissions and control measures for sources; complete and review the from noncompliance uncovered by the operations not currently regulated, and collection of information; and transmit Audit. to develop standards for new and or otherwise disclose the information. ADDRESSES: existing aerospace facilities under Respondents/Affected Entities: Docket: EPA has established a docket section 112 of the Clean Air Act (CAA), Owners or operators of existing for this action under Docket if appropriate. The information will be aerospace manufacturing and rework Identification No. EPA–R06–OAR– collected from the electronic completion facilities. 2010–0510. All documents in the docket of simple forms, which will be compiled Estimated Number of Respondents: are listed in the http:// to develop a computer database. 1,000. www.regulations.gov index. Although The EPA is charged under section 112 Frequency of Response: Once. listed in the index, some information is of the CAA with developing national Estimated Total Annual Hour Burden: not publicly available, e.g., CBI or other emission standards for 189 listed 227,700. information whose disclosure is hazardous air pollutants (HAP). The Estimated Total Annual Cost: restricted by statute. Certain other Aerospace Manufacturing and Rework $10,965,834 in labor costs and no material, such as copyrighted material, Facilities Maximum Achievable Control annualized capital or O&M costs. will be publicly available only in hard Technology (Aerospace MACT) Changes in the Estimates: This is a copy. Publicly available docket standard (40 CFR 63, subpart GG), is a new collection. materials are available either national emission standard for HAP Dated: September 22, 2010. electronically at http:// developed under the authority of John Moses, www.regulations.gov or in hard copy at section 112(d) of the CAA. EPA is Director, Collection Strategies Division. the Air Enforcement Section (6EN–AA), Environmental Protection Agency, required to review each MACT standard [FR Doc. 2010–24291 Filed 9–27–10; 8:45 am] and to revise them ‘‘as necessary (taking Region 6, 1445 Ross Avenue, Suite 700, BILLING CODE 6560–50–P into account developments in practices, Dallas, Texas 75202–2733. The file will processes and control technologies)’’ no be made available by appointment for less frequently than every eight years. ENVIRONMENTAL PROTECTION public inspection in the Region 6 FOIA These reviews are commonly referred to AGENCY Review Room between the hours of 8:30 as ‘‘technology reviews.’’ In addition, a.m. and 4:30 p.m. weekdays except for EPA is required to assess the risk [EPA–R06–OAR–2010–0510; FRL–9207–4] legal holidays. Contact the person listed remaining (residual risk) after in the paragraph below to make an Audit Program for Texas Flexible implementation of each MACT standard appointment. If possible, please make Permit Holders and promulgate more stringent the appointment at least two working standards if they are necessary to AGENCY: Environmental Protection days in advance of your visit. There will protect public health. Under EPA’s Agency (EPA). be a 15 cent per page fee for making residual risk and technology review ACTION: Final Notice of Clean Air Act photocopies of documents. On the day (RTR) program, EPA is addressing these (CAA) voluntary audit compliance of the visit, please check in at the EPA two requirements concurrently. EPA is program for flexible permit holders in Region 6 reception area at 1445 Ross updating the information they currently the State of Texas (hereinafter ‘‘Audit Avenue, Suite 700, Dallas, Texas, possess and filling identified data gaps Program’’); response to public 75202–2733. in that information in order to provide comments. FOR FURTHER INFORMATION CONTACT: To a thorough basis for the RTR efforts. The submit executed Audit Agreements or data collection effort will gather SUMMARY: EPA is offering holders of for more information on the Audit additional information to allow Texas flexible air permits an Program for Texas flexible permit comprehensive and technically sound opportunity to participate in a voluntary holders, please contact Mr. John Jones, analyses that will form the basis for Audit Program that is intended to Air Enforcement Section (6EN–AA), future rulemaking decisions. Responses expeditiously identify the federally- Environmental Protection Agency, to the ICR are mandatory under the enforceable CAA unit specific emission Region 6, 1445 Ross Avenue, Suite 700, authority of section 114 of the CAA. limitations, operating parameter Dallas, Texas 75202–2733, telephone

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00033 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59712 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

(214) 665–7233; fax number (214) 665– monitoring, recordkeeping, and during the post-audit negotiation with 3177; e-mail address, jones.john- reporting (MRR) requirements; and (4) EPA, would be memorialized in a [email protected]. specific references for all federal Consent Agreement and Final Order SUPPLEMENTARY INFORMATION: requirements identified (e.g., permit (‘‘CAFO’’) with EPA. The CAFO would number, specific Maximum Achievable set forth the agreed upon emission unit I. Audit Program for Texas Flexible Control Technology, State requirements and would require their Permit Holders Implementation Plan citation). The inclusion in an amended Title V permit Audit Program Overview auditor will also need to review and and appropriate federally-enforceable assess the adequacy of the MRR permits (e.g., NSR, Texas SIP permits). Texas flexible permits are not part of requirements in current permits to As part of this voluntary program, the the federally—approved State evaluate whether MRR is sufficient to Audit Participant will also agree to work Implementation Plan (‘‘SIP’’), and thus, demonstrate compliance with all with its surrounding community to only contain applicable state permit federally applicable emissions develop Community Project(s) focused requirements. Flexible permits are not limitations and federal standards. on improving, protecting, mitigating, the appropriate mechanisms for Where deficiencies exist, the auditor and/or reducing community risks to embodying federal requirements, and will provide recommendations for more public health or the environment. The are not independently federally- effective or supplemental MRR nature and valuation of Community enforceable. On September 25, 2007, requirements. Projects will be based upon the outcome EPA sent notice letters to all facilities To the extent that it is determined of the Audit and will be finalized during that were issued a flexible permit that a source is not in compliance with post-audit negotiations with EPA. The informing them that flexible permits NSR requirements with respect to a details of the Community Projects will were pertinent only to Texas State air particular emission unit, the agreement be fully described in the CAFO permit requirements and that facilities provides that the auditor will include an memorializing the results of the Audit. were ‘‘obligated to comply with the evaluation of the current (2010) Lowest EPA is offering this program under its federal requirements applicable to Achievable Emissions Rate or Best discretionary CAA enforcement (their) plant, in addition to any Available Control Technology authority and participation in the Audit particular requirements of (their) (hereinafter collectively referred to as Program is purely voluntary. However, flexible permit.’’ Moreover, on ‘‘LAER/BACT’’) for that emissions unit interested parties are required to submit September 23, 2009, EPA proposed the and will recommend an applicable an executed Audit Agreement to apply disapproval of the Texas flexible permit LAER/BACT limit for that emissions for this program. Participants choosing program as an amendment to the Texas unit. Identification of non-compliance to enroll in the Audit Program will be SIP because it does not meet federal with NSR requirements through the required to meet the specific Nonattainment New Source Review or Audit Program may require further requirements of the third-party Audit Prevention of Significant Deterioration discussion with EPA regarding a path set forth in this Notice and (hereafter collectively referred to as forward for bringing that emission unit memorialized in an Audit Agreement ‘‘NSR’’) requirements (74 FR 48480). into permanent, consistent compliance signed by the Audit Participant and EPA followed that proposal with several with the CAA. EPA. It is important to emphasize that objections to Title V permits that relied As set forth in the agreement, the although participation in this Audit on flexible permits to encompass federal third party auditor will perform a year- Program is voluntary, participants who NSR requirements because the terms of by-year examination of operational and successfully complete the program and the Texas flexible permit are not permitting history of those emission successfully resolve any non- incorporated into the federally— units under the flexible permit. The compliance of specific alleged approved Texas SIP. EPA finalized primary deliverable from the third-party violations will receive appropriate disapproval of the Texas flexible permit Audit will be a detailed Audit Report covenants and releases as part of that program on July 15, 2010 (75 FR 41312). that describes the audit process and its non-compliance resolution. Merely EPA is proposing the Audit Program conclusions, including clearly organized conducting an Audit does not release a as a mechanism for Texas Flexible summary tables of all applicable CAA participant from potential liability. Permit holders to transition these requirements for each emissions unit EPA’s Audit Policy, ‘‘Incentives for permits into SIP approved NSR permits. that will provide the basis for necessary Self Policing: Discovery, Disclosure, Under the Audit Program, participants permitting revisions by the Texas Correction and Prevention of would need to commission a Commission on Environmental Quality Violations,’’ 65 FR 19,618 (April 11, comprehensive third-party Audit to (TCEQ). In addition to identifying all 2000) recognizes the critical role of determine all federally-applicable unit- applicable unit specific emission environmental auditing in protecting specific limitations and requirements limitations, special conditions, human health and the environment by and to evaluate the federal CAA operating parameters, and MRR identifying, correcting, and ultimately compliance status of emission units requirements, the auditor will also preventing violations of environmental covered under the facility’s Texas evaluate the CAA compliance status of laws, particularly by responsible flexible permit. The terms and process the emissions units included under the corporate citizens. This Audit Program of the Audit would be set forth in an Texas flexible permit. reflects the purpose and incentives of agreement executed by EPA and The agreement provides that the EPA’s Audit Policy, and participants participants. Audit Participant will then have an who execute an Audit Agreement by Under the agreement, the third-party opportunity to comment on the results November 12, 2010 will receive a auditor would identify for each of the third-party Audit, and to propose waiver of the gravity component of any emission unit regulated under the to EPA alternative emission unit penalties resulting from noncompliance source’s flexible permit, all current requirements. The parties may elect to uncovered by the Audit; provided such federally—applicable CAA negotiate emission unit requirements in noncompliance is successfully resolved requirements, including: (1) Emission the post-audit period. through a Consent Agreement and Final limitations/standards; (2) operational Finally, under the agreement, any Order (CAFO) under this audit process. limitations/special conditions; (3) emission unit requirements agreed upon EPA reserves the right to collect any

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00034 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59713

economic benefit that may have been Audit Program Implementation 3. Audit Participant’s comments realized as a result of noncompliance. regarding the Audit Report. No later Any facility that chooses to than 90 days from the completion of the Persons who have not secured participate in the voluntary Audit independently federally-enforceable Audit Report, the Audit Participant Program will conduct an independent shall submit its comments, if any, construction and/or operating permits third-party audit of all emission units for all CAA applicable requirements, regarding the Audit Report to EPA. The covered by the source’s Texas flexible Audit Participant may specifically through participation in this program or permit to identify/reinstate all of an through other appropriate mechanisms, address its concerns regarding the CAA emission unit’s federally-applicable compliance determinations and the may be the subject of federal requirements, and to identify each enforcement action. Nothing in this emission unit requirements identified in emission unit’s CAA compliance status the Audit Report. For purposes of notice should be read to preclude EPA as discussed under the Audit Program from taking enforcement action where it providing transparency to the Overview. A final CAFO will require community on the audit process, the determines such action is appropriate to that the facility submit applications for Audit Participant will also prepare a address non-compliance. Title V and appropriate federally- version of the comments on the Audit Texas Flexible Permit Program History enforceable permits to the State of Texas Report with any CBI removed. The in order to memorialize the Audit Participant’s comments regarding In the period from 1996 through 2002, requirements identified by the audit the Audit Report will be made available the State of Texas proposed a series of process for each emission unit. to the public by EPA. modifications to its Federal CAA SIP The Audit Program shall be 4. Audit Participant and community intended to make its flexible permit implemented in the following steps: development of significant Community program part of the SIP. The flexible 1. Submittal of an executed Audit Project(s). After the completion of the permit program, currently codified at 30 Agreement by the Audit Participant. Audit, the Audit Participant shall work TAC 116.710, allows groups of emission This agreement will memorialize the with the community surrounding the sources to be clustered together and specific requirements of the facility to develop community issued permit limitations as if they were independent third-party audit, as well project(s). Within 90 days after a single emission source. as the company’s commitment to work completion of the Audit Report, the EPA has never approved the Texas with its community to develop a Audit Participant will submit to EPA a flexible permit program for inclusion in Community Project(s). EPA will have 15 final Community Project proposal for the SIP. On September 25, 2007, EPA days to object to the third-party auditor approval. The Community Project issued a letter to all flexible permit selected by an Audit Participant. Any proposal shall include a detailed holders making the following points: EPA objections shall be based on description of the project(s) and a schedule for project(s) implementation • Permits issued under the Texas concerns regarding the independence of the auditor. Executed Audit Agreements (projects must be completed within one flexible permit rules reflect Texas state year of the CAFO date), a clear requirements and not necessarily the under the Audit Program must be postmarked no later than 90 days after discussion of air nexus, and a federally-applicable requirements. discussion of the community • the date of publication in the Federal Texas flexible permit holders are Register. involvement and outreach conducted as obligated to comply with the applicable the project was developed. The Audit federal requirements (e.g., New Source 2. Completion of Audit Report. No Participant’s Community Project Performance Standards (NSPS), later than 160 days, or a timeframe proposal will be made available to the National Emission Standards for agreed upon by EPA, after the date that public for review. Hazardous Air Pollutants (NESHAP), the Director of the Compliance 5. Resolution of NSR non-compliance. Prevention of Significant Deterioration Assurance and Enforcement Division of One of the major objectives of the third- (PSD), and Non-attainment New Source EPA Region 6 signs the Audit party auditor will be the evaluation of Review (NNSR), terms and conditions of Agreement, the independent Third- the permitting history and operational permits approved under the federally- Party Auditor shall submit an Audit changes and modifications made during approved Texas SIP). Report to the Audit Participant and the period of the Texas flexible permit EPA. This report will include a table for compliance with applicable Federal • EPA would consider enforcement containing all of the applicable emission NSR requirements. Identification of against sources for failure to comply unit requirements for each unit covered non-compliance with the NSR program with applicable federal requirements on by the Audit Participant’s Texas flexible may require the installation of LAER/ a case-by-case basis, including against permit as well as an analysis of the CAA BACT and will require further emission sources that were modified or compliance status for each emissions discussion with EPA regarding a path constructed without the issuance of a unit. The Audit Report will include an forward for bringing non-compliant federally-enforceable permit. examination of the operational and emission units into permanent, EPA could initiate enforcement permitting history of process units consistent compliance. As previously proceedings against these sources on a covered by the flexible permit, and discussed, EPA has elected to waive the case-by case basis, However, such an those affected by the flexible permit gravity portion of any penalties enforcement undertaking on a case-by (i.e., in netting calculations). For the resulting from noncompliance identified case basis is not an efficient approach to purpose of providing transparency to through the Audit for those Audit improving air quality and achieving the community on the audit process, the Participants that proactively initiate an compliance with the CAA. Therefore, Auditor will work with the Audit Audit Agreement within 45 days of EPA is exercising its discretion to allow Participant to prepare a version of the Final Audit FRN publication. In holders of flexible permits to participate Audit Report with any confidential addition, any final CAFO will provide a in this voluntary Audit Program as a business information removed. The non- release and covenant not to sue for the mechanism to proactively address the confidential business information violations alleged. status of emission units operating under versions of the Audit Report will be 6. Filing of a Consent Agreement and the Texas flexible permit program. made available to the public by EPA. Final Order (CAFO) with the Region 6

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00035 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59714 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

Judicial Officer. The CAFO would set facility prior to the issuance of the prerequisite to participation in the forth the Audit Participant’s obligation Texas flexible permit. Audit Program, EPA was presuming to comply with the requirements of the Conclusion: The above represents a noncompliance. attached CAFO Compliance Plan and short summary of the Audit Program. In response to these comments, EPA Schedule and commitment to seek the The Texas Flexible Permit Audit clarified in the Audit Agreement that inclusion of agreed upon emission unit Agreement is available in the public the condition regarding Community requirements in its Title V permit and docket for this notice at http:// Project(s) would address the SIP and appropriate federally-enforceable www.regulations.gov, and represents the Title V violations identified in the permits. No later than 30-days after the full requirements of the program. In attached model CAFO inherent to all effective date of the CAFO, the Audit addition, EPA has provided a Model flexible permit holders in addition to Participant will apply to the appropriate CAFO for Audit Participants in the any other noncompliance issues permitting authority for a modification docket at http://www.regulations.gov. identified by the audit. As a result, the of its existing Title V permit to include EPA is proposing the Audit Program agency believes that a commitment from emission unit requirements (as defined to ensure that Texas flexible permit the Audit Participants to conduct a in the model below), a compliance plan, holders have a path forward to secure Community Project is a critical element and, if warranted, a compliance compliance with the requirements of the in addressing noncompliance in schedule as outlined in 30 TAC 122 CAA. As EPA has stated that Texas addition to proactively addressing § 132(e)(4) and 40 CFR 70.5(c)(8). In flexible permits are not independently community concerns regarding potential addition, the Audit Participant shall federally-enforceable permits, industry impacts from noncompliance. apply for modifications or for new representatives have expressed concern II. Community Project Upfront permits memorializing the emission regarding the legal ramifications of Valuation unit requirements set forth in the CAFO. operating facilities and making changes Several Commenters indicated that The CAFO must address all emission at facilities that do not have the Community Project valuation should units under the flexible permit. EPA independently federally-enforceable not occur until after the Audit is will not negotiate settlements where permits. Representatives of citizens completed. Additional comments certain emission units are excluded living in areas near facilities regulated received indicated that the large upfront from the settlement discussions. A under flexible permits are concerned expenditure for the Community Projects source will receive a covenant-not-to- that in some instances flexible permits would have a ‘‘chilling effect’’ on sue and release regarding civil liability allow facilities to emit more harmful voluntary participation in the Audit for possible past violations of the CAA pollution than would be allowed under Program. addressed in this CAFO provided that federal law. We believe the Audit EPA has addressed the concerns CAA compliant emission unit specific Program has the potential to result in regarding the significant upfront costs requirements are incorporated into a beneficial reductions in the levels of air regarding these projects by removing the federally-enforceable permit. pollutants being emitted by flexible upfront Community Project valuation permit holders as well as providing The proposed CAFO shall be made and the Tiering table. EPA has elected industry a legal framework for available for public comment for a to link the valuation of the Community continuing operations until period of 30 days. EPA will consider Projects to the findings of the third- independently federally-enforceable any public comments, and as party Audit. Noncompliance identified permitting authorizations can be appropriate, seek to work with the by the Audit will result in Community obtained. Audit Participant to revise the CAFO Projects, injunctive relief and based on such public comments. After II. Response to Comments Received on potentially civil penalties. As referenced the end of the CAFO public comment EPA Audit Program for Flexible Permit in the Audit FRN, this Audit Program period and after any revisions are made, Holders reflects the purpose and incentives of EPA will seek finalization of the CAFO EPA’s Audit Policy, and participants by the Region 6 Judicial Officer. The On June 17, 2010, EPA solicited comments on an audit program for who execute an Audit Agreement Agency reserves its right to modify the within 45 days of the Final Audit CAFO. The offering of the CAFO for Texas flexible permit holders (75 FR 34445). The following are EPA’s publication will receive a waiver of the public comment does not explicitly gravity component of any penalties create an obligation for EPA response or responses to comments received during the comment period on EPA’s Audit resulting from noncompliance inclusion of such comments in the final uncovered by the Audit. CAFO or elsewhere, nor does this create Program for Flexible Permit Holders. any rights for public objection to the EPA thanks those individuals for their III. Community Involvement comments and as indicated below, the final CAFO. A Commenter requested that the Agency made several modifications to The text of the Audit Agreement is outreach regarding the Community the Audit Program based upon these available for download in either a Word Projects extend beyond the currently comments. As indicated in the Federal version file or as a portable document established groups and involve the Register Notice, EPA has chosen to format (pdf) file at http:// impacted communities. The Commenter generally respond to comments www.regulations.gov. Unless explicitly further requested that EPA take further received. indicated, the text of the Audit steps to encourage meaningful Agreement is not subject to negotiation. A. Community Projects participation from the community by Entities wishing to participate shall providing notification to the community I. Community Projects as a Condition of submit: an executed copy of the Audit or establishing a Web site to identify the Audit Agreement with specific site details those participating in the Audit filled into the provided blanks; a list of We received numerous comments Program. emission units covered under its Texas regarding the requirement to conduct a In response to these comments, EPA flexible permit; a copy of its current Community Project as part of the Audit included language in the Audit Texas flexible permit, and all permits or Agreement. Commenters stated that by Agreement specifying that outreach to other authorizations that applied to the requiring a Community Project as a the community to obtain input on

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00036 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59715

Community Projects should extend applying the version of NSR regulations EPA understands the Commenter’s beyond any pre-established community in the approved Texas SIP, the Third- concerns and is in agreement that the advisory panels. Party Auditor shall also perform their Audit process should be as transparent EPA has also added language to the NSR analysis consistent with Agency as possible. However, EPA is required to Audit Agreement committing the principles formally identified in EPA follow 40 CFR Part 2, Subpart B, which Agency to establish a Web site of all NSR Guidance Documents. specifies the extent to which executed Audit Agreements. The D. Audit Program information subject to a business Agreements will identify the points of confidentiality claim is available to the contact for the company, and EPA I. Procedural Concerns public and the challenge and encourages individuals with ideas A Commenter expressed procedural determination process the Agency must specific to the Community Projects to concerns with EPA’s process for taking follow. submit them to the company comments on this voluntary approach as representative for consideration. well as procedural concerns with the E. CAFO B. Tiering of Facilities Audit Program. I. Releases Given to Audit Participants With this notice, EPA has proposed a I. Additional Clarification on Tiering voluntary path forward under its A Commenter expressed concern that Process enforcement discretion that the agency the scope of EPA’s proposed release and EPA received numerous comments would find acceptable toward covenant not to sue could be interpreted regarding the tiering process including settlement of violations associated with over broadly. numerous requests for clarification on Texas Flexible Permits. This is a The Commenter was correct that how the facility tiers were established. voluntary process, and does not replace EPA’s intent is to release only those As indicated above, EPA has elected or change any existing rules, to remove the Tiering table and upfront CAA violations expressly alleged and regulations, or policies. Given the addressed in the CAFO. EPA will tailor valuation for Community Projects and universe of permittees, EPA is each CAFO beyond the limited example link the valuation of the Community attempting to provide upfront clarity on provided to include case specific facts Projects to the findings of the third- an acceptable enforcement path where party Audit including the initial the Agency would resolve existing or and clarify the scope of the release and violations identified in the model potential liability associated with covenant not to sue. CAFO. flexible permits. EPA provided The Commenter made a related C. Third-Party Auditor additional process by taking comments comment concerning detail that should on the approach. All other options be required in the Audit Report I. Auditor Qualifications remain. This approach does not take the regarding what emission requirements Several Commenters provided place of appropriate and required and changes in operational measures or comments and recommendations permitting. Obtaining an appropriate control technologies must be regarding the qualifications and valid federal permit is a condition of implemented to ensure that disclosed certifications of the third-party Auditor. such a settlement. While the auditor non-NSR violations are eliminated by In response to these comments, we will make recommendations and control complying with the CAFO. levels will be agreed to for a settlement, made numerous changes to the Auditor EPA recognizes more detail will be the Audit and CAFO are clear that these qualifications to include flexibility with required if the Audit identifies are minimum levels of control for regard to the Auditor’s familiarity with noncompliance or concerns broader the concepts of independence and settlement and do not prejudge what than NSR and would expect such professional care while conducting the Lowest Achievable Emission Rate/Best additional information to be provided in Audit. Specifically, we added an Available Control Technology (LAER/ the audit. If insufficient information is additional certification option by the BACT) determinations are made by the Board of Environmental Health & Safety permitting authority. All permitting provided to make a decision on Auditor Certifications (BEAC), along requirements and procedures must be appropriate measures to address a with the current ISO 19011 requirement. met at that time. violation, it would not be alleged or We also modified the certification resolved in the audit CAFO but more II. Audit Timeline condition that the Third-Party Audit appropriately handled separately. results be certified by a professional One Commenter expressed concern II. Stipulated Penalties engineer in the State of Texas. We that 160 days was not adequate time to modified the Audit Agreement to allow conduct a detailed permitting and A Commenter urged EPA to for additional flexibility by removing compliance audit of a complex facility. incorporate stipulated penalties into the the condition that the professional In response to this comment, EPA CAFO to sanction failing to fully and engineer be certified in Texas and, in added language to allow for additional timely comply with all the substantive addition, we are allowing for a time for audit completion if agreed upon requirements of the CAFO. certification by a certified auditor. by EPA. EPA recognizes the importance of having adequate time to conduct the While we understand the comment, II. Auditor Guidance comprehensive audit and does not want the agency’s interest is in compliant One Commenter requested that EPA a hard timeframe to limit participation permits and this is why we made any provide specific direction to the Third- or encourage a cursory review. release and covenant conditional on full Party Auditor regarding EPA’s policies compliance with the CAFO and III. CBI and guidance related to RMRR—Routine obtaining the necessary permit(s). Many Maintenance Documentation in Audit A Commenter requested that EPA of the milestones of the audit will be Report from EDF establish an expedited CBI challenge prior to the CAFO and the emission In response to this comment, EPA process so that the community can have limits of the CAFO will be enforceable added additional language to the Audit meaningful participation in the Audit until the emission limits are Agreement specifying that in addition to process. incorporated into valid federal permits.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00037 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59716 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

Dated: September 20, 2010. to present scientific and technical (Address: Information Management Al Armendariz, comments on draft IRIS health Team, National Center for Regional Administrator, Region 6. assessments to EPA and other interested Environmental Assessment (Mail Code: [FR Doc. 2010–24289 Filed 9–27–10; 8:45 am] parties attending the listening session. 8601P), U.S. Environmental Protection BILLING CODE 6560–50–P EPA welcomes the comments that will Agency, 1200 Pennsylvania Avenue, be provided to the Agency by the NW., Washington, DC 20460; telephone: listening session participants. The 703–347–8561; facsimile: 703–347– ENVIRONMENTAL PROTECTION comments will be considered by the 8691). If you request a paper copy, AGENCY Agency as it revises the draft assessment please provide your name, mailing after the independent external peer address, and the draft assessment title. [FRL–9207–8; Docket ID No. EPA–HQ–ORD– Comments may be submitted 2010–0633] review. If listening session participants would like EPA to share their comments electronically via http:// Draft Toxicological Review of Urea: In with the external peer reviewers, they www.regulations.gov, by e-mail, by mail, Support of Summary Information on should also submit written comments by facsimile, or by hand delivery/ the Integrated Risk Information System during the public comment period using courier. Please follow the detailed (IRIS) the detailed and established procedures instructions provided in the described in the SUPPLEMENTARY SUPPLEMENTARY INFORMATION section of AGENCY: Environmental Protection INFORMATION section of this notice. this notice. Agency (EPA). The listening session on the draft urea DATES: The public comment period ACTION assessment will be held at the EPA : Notice of public comment begins September 28, 2010, and ends offices at Potomac Yard (North period and listening session. November 29, 2010. Comments should Building), Rm. 7100, 2733 South Crystal be in writing and must be received by SUMMARY: EPA is announcing a 60-day Drive, Arlington, Virginia 22202. Please public comment period and a public EPA by November 29, 2010. The listening session on the draft note that to gain entrance to this EPA listening session for the external review building to attend the meeting, you draft human health assessment titled, assessment for urea will be held on November 16, 2010, beginning at 9 a.m. must have photo identification and ‘‘Toxicological Review of Urea: In must register at the guard’s desk in the and ending at 4 p.m., Eastern Daylight Support of Summary Information on the lobby. The guard will retain your photo Time. To present at the listening Integrated Risk Information System identification and will provide you with session, indicate in your registration (IRIS)’’ [EPA/635/R–10/005]. The draft a visitor’s badge. At the guard’s desk, that you want to make oral comments at assessment was prepared by the you should provide the name Christine the session and provide the length of National Center for Environmental Ross and the telephone number 703– your presentation. To attend the Assessment (NCEA) within the EPA 347–8592 to the guard on duty. The listening session, register by November Office of Research and Development guard will contact Ms. Ross who will 9, 2010, via e-mail at (ORD). EPA is releasing this draft meet you in the reception area to escort [email protected] (subject line: Urea assessment solely for the purpose of pre- you to the meeting room. When you dissemination peer review under Listening Session), by phone: 703–750– leave the building, please return your applicable information quality 3000, ext. 545, or toll free at 1–800–2– visitor’s badge to the guard and you will guidelines. This draft assessment has VERSAR (ask for Kathy Coon, the Urea receive your photo identification. not been formally disseminated by EPA. Listening Session Coordinator), or by A teleconference line will also be It does not represent and should not be faxing a registration request to 703–642– available for registered attendees/ construed to represent any Agency 6809 (please reference the ‘‘Urea speakers. The teleconference number is policy or determination. After public Listening Session’’ and include your 866–299–3188, and the access code is review and comment, an EPA contractor name, title, affiliation, full address and 926–378–7897, followed by the pound will convene an expert panel for contact information). When you register, sign (#). The teleconference line will be independent external peer review of this please indicate if you will need audio- activated at 8:45 a.m., and you will be draft assessment. The public comment visual equipment (e.g., laptop computer asked to identify yourself and your period and external peer review meeting and slide projector). In general, each affiliation at the beginning of the call. are separate processes that provide presentation should be no more than 30 Information on Services for opportunities for all interested parties to minutes. If, however, there are more Individuals with Disabilities: EPA comment on the assessment. The requests for presentations than the welcomes public attendance at the urea external peer review meeting will be allotted time allows, then the time limit listening session and will make every scheduled at a later date and announced for each presentation will be adjusted. A effort to accommodate persons with in the Federal Register. Public copy of the agenda for the listening disabilities. For information on access comments submitted during the public session will be available at the meeting. or services for individuals with comment period will be provided to the If no speakers have registered by disabilities, please contact Christine external peer reviewers before the panel November 9, 2010, the listening session Ross by phone at 703–347–8592 or by e- meeting and considered by EPA in the will be cancelled, and EPA will notify mail at [email protected]. disposition of public comments. Public those registered of the cancellation. To request accommodation for a comments received after the public ADDRESSES: The draft ‘‘Toxicological disability, please contact Ms. Ross, comment period closes will not be Review of Urea: In Support of Summary preferably at least 10 days prior to the submitted to the external peer reviewers Information on the Integrated Risk meeting, to give EPA as much time as and will only be considered by EPA if Information System (IRIS)’’ is available possible to process your request. time permits. primarily via the Internet on the NCEA Additional Information: For The listening session will be held on home page under the Recent Additions information on the docket, November 16, 2010, during the public and Publications menus at http:// www.regulations.gov, or the public comment period for this draft www.epa.gov/ncea. A limited number of comment period, please contact the assessment. The purpose of the listening paper copies are available from the Office of Environmental Information session is to allow all interested parties Information Management Team (OEI) Docket (Mail Code: 2822T), U.S.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00038 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59717

Environmental Protection Agency, 1200 Agency, 1200 Pennsylvania Ave., NW., any disk or CD–ROM you submit. If EPA Pennsylvania Ave., NW., Washington, Washington, DC 20460. The telephone cannot read your comments due to DC 20460; telephone: 202–566–1752; number is 202–566–1752. If you provide technical difficulties and cannot contact facsimile: 202–566–1753; or e-mail: comments by mail, please submit one you for clarification, EPA may not be [email protected]. unbound original with pages numbered able to consider your comments. For information on the public consecutively, and three copies of the Electronic files should avoid the use of listening session, please contact comments. For attachments, provide an special characters and any form of Christine Ross, IRIS Staff, National index, number pages consecutively with encryption and be free of any defects or Center for Environmental Assessment the comments, and submit an unbound viruses. For additional information (Mail Code: 8601P), U.S. Environmental original and three copies. about EPA’s public docket, visit the EPA Protection Agency, 1200 Pennsylvania • Hand Delivery: The OEI Docket is Docket Center homepage at http:// Avenue, NW., Washington, DC 20460; located in the EPA Headquarters Docket www.epa.gov/epahome/dockets.htm. telephone: 703–347–8592; facsimile: Center, EPA West Building, Room 3334, Docket: All documents in the docket 703–347–8689; or e-mail: 1301 Constitution Ave., NW., are listed in the http:// [email protected]. Washington, DC. The EPA Docket www.regulations.gov index. Although For information on the draft Center Public Reading Room is open listed in the index, some information is assessment, please contact Amanda from 8:30 a.m. to 4:30 p.m., Monday not publicly available, e.g., CBI or other Persad, National Center for through Friday, excluding legal information whose disclosure is Environmental Assessment, Mail Code: holidays. The telephone number for the restricted by statute. Certain other B–243–01, U.S. Environmental Public Reading Room is 202–566–1744. material, such as copyrighted material, Protection Agency, Research Triangle Deliveries are only accepted during the will be publicly available only in hard Park, NC 27711; telephone: 919–541– docket’s normal hours of operation, and copy. Publicly available docket 9781; facsimile: 919–541–2985; or e- special arrangements should be made materials are available either mail: [[email protected]]. for deliveries of boxed information. If electronically at http:// SUPPLEMENTARY INFORMATION: you provide comments by hand www.regulations.gov or in hard copy at delivery, please submit one unbound I. Information About IRIS the OEI Docket in the EPA Headquarters original with pages numbered Docket Center. EPA’s IRIS is a human health consecutively, and three copies of the assessment program that evaluates comments. For attachments, provide an Dated: September 20, 2010. quantitative and qualitative risk index, number pages consecutively with Rebecca Clark, information on effects that may result the comments, and submit an unbound Acting Director, National Center for from exposure to chemical substances original and three copies. Environmental Assessment. found in the environment. Through the Instructions: Direct your comments to [FR Doc. 2010–24305 Filed 9–27–10; 8:45 am] IRIS Program, EPA provides the highest Docket ID No. EPA–HQ–ORD–2010– BILLING CODE 6560–50–P quality science-based human health 0633. Please ensure that your comments assessments to support the Agency’s are submitted within the specified regulatory activities. The IRIS database comment period. Comments received FEDERAL RESERVE SYSTEM contains information for more than 540 after the closing date will be marked chemical substances that can be used to ‘‘late,’’ and may only be considered if Agency Information Collection support the first two steps (hazard time permits. It is EPA’s policy to Activities: Announcement of Board identification and dose-response include all comments it receives in the Approval Under Delegated Authority evaluation) of the risk assessment public docket without change and to and Submission to OMB process. When supported by available make the comments available online at SUMMARY: data, IRIS provides oral reference doses http://www.regulations.gov, including (RfDs) and inhalation reference any personal information provided, Background concentrations (RfCs) for chronic unless comments include information Notice is hereby given of the final noncancer health effects and cancer claimed to be Confidential Business approval of proposed information assessments. Combined with specific Information (CBI) or other information collection by the Board of Governors of exposure information, government and whose disclosure is restricted by statute. the Federal Reserve System (Board) private entities use IRIS to help Do not submit information that you under OMB delegated authority, as per characterize public health risks of consider to be CBI or otherwise 5 CFR 1320.16 (OMB Regulations on chemical substances in a site-specific protected through http:// Controlling Paperwork Burdens on the situation and thereby support risk www.regulations.gov or e-mail. The Public). Board-approved collections of management decisions designed to http://www.regulations.gov Web site is information are incorporated into the protect public health. an ‘‘anonymous access’’ system, which means that EPA will not know your official OMB inventory of currently II. How to Submit Comments to the identity or contact information unless approved collections of information. Docket at http://www.regulations.gov you provide it in the body of your Copies of the Paperwork Reduction Act Submit your comments, identified by comments. If you send e-mail comments Submission, supporting statements and Docket ID No. EPA–HQ–ORD–2010– directly to EPA without going through approved collection of information 0633, by one of the following methods: http://www.regulations.gov, your e-mail instrument(s) are placed into OMB’s • http://www.regulations.gov: Follow address will be automatically captured public docket files. The Federal Reserve the on-line instructions for submitting and included as part of the comments may not conduct or sponsor, and the comments. that are placed in the public docket and respondent is not required to respond • E-mail: [email protected]. made available on the Internet. If you to, an information collection that has • Facsimile: 202–566–1753. submit electronic comments, EPA been extended, revised, or implemented • Mail: Office of Environmental recommends that you include your on or after October 1, 1995, unless it Information (OEI) Docket (Mail Code: name and other contact information in displays a currently valid OMB control 2822T), U.S. Environmental Protection the body of your comments and with number.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00039 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59718 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

FOR FURTHER INFORMATION CONTACT: Current Actions: On July 20, 2010, the identifiable health information. In Federal Reserve Board Clearance Officer Federal Reserve published a notice in addition, comments should not include —Michelle Shore—Division of Research the Federal Register (75 FR 42089) any ‘‘[t]rade secret or any commercial or and Statistics, Board of Governors of the requesting public comment for 60 days financial information which is obtained Federal Reserve System, Washington, on the implementation of the from any person and which is privileged DC 20551 (202–452–3829). Recordkeeping Requirements or confidential....,’’ as provided in OMB Desk Officer—Shagufta Ahmed Associated with Limitations on Section 6(f) of the FTC Act, 15 U.S.C. —Office of Information and Regulatory Interbank Liabilities. The comment 46(f), and Commission Rule 4.10(a)(2), Affairs, Office of Management and period for this notice expired on 16 CFR 4.10(a)(2). Comments containing Budget, New Executive Office Building, September 20, 2010. The Federal material for which confidential Room 10235, Washington, DC 20503. Reserve did not receive any comments. treatment is requested must be filed in Final approval under OMB delegated The recordkeeping requirements will be paper form, must be clearly labeled authority of the implementation of the implemented as proposed. ‘‘Confidential,’’ and must comply with 1 following report: Board of Governors of the Federal Reserve FTC Rule 4.9(c), 16 CFR 4.9(c). Report title: Recordkeeping System, September 23, 2010. Because paper mail addressed to the Requirements Associated with Jennifer J. Johnson, FTC is subject to delay due to Limitations on Interbank Liabilities. Secretary of the Board. heightened security screening, please Agency form number: Regulation F. consider submitting your comments in [FR Doc. 2010–24265 Filed 9–27–10; 8:45 am] OMB control number: 7100–NEW. electronic form. Comments filed in Frequency: On occasion. BILLING CODE 6210–01–P electronic form should be submitted by Reporters: State member banks and using the following weblink: (https:// insured domestic branches of foreign ftcpublic.commentworks.com/ftc/ banks. FEDERAL TRADE COMMISSION ussearch) and following the instructions Estimated annual reporting hours: [File No. 102 3131] on the web-based form. To ensure that 6,808 hours. the Commission considers an electronic Estimated average hours per response: US Search, Inc. And US Search, LLC; 8 hours. comment, you must file it on the web- Analysis of Proposed Consent Order based form at the weblink: (https:// Number of respondents: 851. to Aid Public Comment General description of report: This ftcpublic.commentworks.com/ftc/ information collection is mandatory AGENCY: Federal Trade Commission. ussearch). If this Notice appears at (http://www.regulations.gov/search/ pursuant to section 23 of the Federal ACTION: Proposed Consent Agreement. Reserve Act, as added by section 308 of index.jsp), you may also file an the Federal Deposit Insurance SUMMARY: The consent agreement in this electronic comment through that Corporation Improvement Act of 1991 matter settles alleged violations of website. The Commission will consider (FDICIA) (12 U.S.C. 371b–2). Because federal law prohibiting unfair or all comments that regulations.gov the Federal Reserve does not collect any deceptive acts or practices or unfair forwards to it. You may also visit the information, no issue of confidentiality methods of competition. The attached FTC website at (http://www.ftc.gov/) to normally arises. However, if a Analysis to Aid Public Comment read the Notice and the news release compliance program becomes a Board describes both the allegations in the describing it. record during an examination, the draft complaint and the terms of the A comment filed in paper form information may be protected from consent order — embodied in the should include the ‘‘US Search, File No. disclosure under exemptions (b)(4) and consent agreement — that would settle 101 3131’’ reference both in the text and (b)(8) of the Freedom of Information Act these allegations. on the envelope, and should be mailed (5 U.S.C. 552(b)(4) and (b)(8)). DATES: Comments must be received on or delivered to the following address: Abstract: Pursuant to FDICIA, the or before October 22, 2010. Federal Trade Commission, Office of the Federal Reserve is required to prescribe ADDRESSES: Interested parties are Secretary, Room H-135 (Annex D), 600 standards to limit the risks posed by invited to submit written comments Pennsylvania Avenue, NW, Washington, exposure of insured depository electronically or in paper form. DC 20580. The FTC is requesting that institutions to the depository Comments should refer to‘‘US Search, any comment filed in paper form be sent institutions with which they do Inc., File No. 101 3131’’ to facilitate the by courier or overnight service, if business (correspondents). Regulation F organization of comments. Please note possible, because U.S. postal mail in the generally requires banks to develop and that your comment — including your Washington area and at the Commission implement internal prudential policies name and your state — will be placed is subject to delay due to heightened and procedures to evaluate and control on the public record of this proceeding, security precautions. exposure to correspondents. Section including on the publicly accessible The Federal Trade Commission Act ‘‘ ’’ 206.3 of Regulation F stipulates that a FTC website, at (http://www.ftc.gov/os/ ( FTC Act ) and other laws the bank shall establish and maintain publiccomments.shtm). Commission administers permit the written policies and procedures to Because comments will be made collection of public comments to prevent excessive exposure to any public, they should not include any consider and use in this proceeding as individual correspondent in relation to sensitive personal information, such as appropriate. The Commission will the condition of the correspondent. In an individual’s Social Security Number; consider all timely and responsive these policies and procedures, a bank date of birth; driver’s license number or 1 The comment must be accompanied by an should take into account credit and other state identification number, or explicit request for confidential treatment, liquidity risks, including operational foreign country equivalent; passport including the factual and legal basis for the request, risks, in selecting correspondents and number; financial account number; or and must identify the specific portions of the terminating those relationships. The credit or debit card number. Comments comment to be withheld from the public record. The request will be granted or denied by the policies and procedures should be also should not include any sensitive Commission’s General Counsel, consistent with reviewed and approved by the bank’s health information, such as medical applicable law and the public interest. See FTC board of directors at least annually. records or other individually Rule 4.9(c), 16 CFR 4.9(c).

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00040 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59719

public comments that it receives, the public record. After thirty (30) days, service offered to consumers that will whether filed in paper or electronic the Commission will again review the allow consumers to remove publicly form. Comments received will be agreement and comments received, and available information from US Search’s available to the public on the FTC will decide whether it should withdraw search results, websites, or website, to the extent practicable, at from the agreement and take appropriate advertisements. (http://www.ftc.gov/os/ action or make final the agreement’s Part II of the proposed order prohibits publiccomments.shtm). As a matter of proposed order. US Search from making any discretion, the Commission makes every US Search operates an online data representations concerning the effort to remove home contact broker service and sells publicly effectiveness its ‘‘PrivacyLock’’ service information for individuals from the available information about consumers or any other similar service offered to public comments it receives before to other consumers through its website, consumers that will allow consumers to placing those comments on the FTC (www.ussearch.com). This publicly remove publicly available information website. More information, including available information includes name, from US Search’s search results, routine uses permitted by the Privacy age, address, phone numbers, email websites, or advertisements, unless US Act, may be found in the FTC’s privacy addresses, aliases, maiden name, death Search discloses, clearly and policy, at (http://www.ftc.gov/ftc/ records, address history, information prominently, any material limitations privacy.shtm). about friends, associates, and relatives, regarding such service, including but marriage and divorce information, not limited to (1) any limitations on the FOR FURTHER INFORMATION CONTACT: bankruptcies, tax liens, civil lawsuits, duration of the removal; and (2) any Anthony Rodriguez (202-326-2757), criminal records, and home values. In circumstances under which information Bureau of Consumer Protection, 600 conjunction with this service, since June about the consumers will not be Pennsylvania Avenue, NW, Washington, 2009, US Search has offered and sold a removed or will reappear. D.C. 20580. PrivacyLock service, which purportedly Part III of the proposed order requires SUPPLEMENTARY INFORMATION: Pursuant allows consumers to ‘‘lock their records’’ US Search to provide full refunds to any to section 6(f) of the Federal Trade on the US Search website and prevent consumer who requested ‘‘PrivacyLock’’ Commission Act, 38 Stat. 721, 15 U.S.C. their names from appearing on US and was assessed a charge for such 46(f), and § 2.34 the Commission Rules Search’s website, in US Search’s service, by crediting the consumer’s of Practice, 16 CFR 2.34, notice is advertisements, and in US Search’s credit or debit card used to purchase the hereby given that the above-captioned search results. Until recently, US Search service. US Search must also provide consent agreement containing a consent charged most consumers a $10 fee to notice of the refund through an email order to cease and desist, having been place a PrivacyLock, and almost 5,000 message sent to affected consumers. The filed with and accepted, subject to final consumers paid to have their message must include an address and a approval, by the Commission, has been information removed from the US toll-free number for consumers to use to placed on the public record for a period Search site. contact US Search regarding the refund. of thirty (30) days. The following The complaint alleges that, in truth US Search must display a notice about Analysis to Aid Public Comment and in fact, the PrivacyLock service did its refund program clearly and describes the terms of the consent not prevent consumers’ information prominently on its website for a period agreement, and the allegations in the from appearing on the US Search of one year. Any amounts not refunded complaint. An electronic copy of the website in many instances. The to consumers must be deposited with full text of the consent agreement complaint alleges that US Search has the U.S. Treasury as disgorgement. The package can be obtained from the FTC engaged in deceptive acts or practices, proposed order further requires US Home Page (for September 22, 2010), on in violation of Section 5 of the FTC Act, Search, within one year of issuance of the World Wide Web, at (http:// by misrepresenting that the purchase or this order, to provide the Commission www.ftc.gov/os/actions.shtm). A paper use of its PrivacyLock service will with an accounting of all refunds paid copy can be obtained from the FTC prevent a consumer’s name and address to consumers, as well as any amounts Public Reference Room, Room 130-H, from appearing on US Search’s website, that were deposited with the U.S. 600 Pennsylvania Avenue, NW, US Search’s advertisements, and in US Treasury as disgorgement. Washington, D.C. 20580, either in Search’s search results. Parts IV through VIII of the proposed person or by calling (202) 326-2222. The proposed consent order includes order are reporting and compliance Public comments are invited, and may injunctive relief that enjoins US Search provisions. Part IV of the proposed be filed with the Commission in either from misrepresenting the effectiveness order requires US Search to retain for a paper or electronic form. All comments of its PrivacyLock service or any other period of five (5) years from the last date should be filed as prescribed in the service offered to consumers that will of dissemination of any representation ADDRESSES section above, and must be allow consumers to remove publicly covered by the order all advertisements received on or before the date specified available information from US Search’s and promotional materials containing in the DATES section. search results, websites, and the representation; complaints and advertisements. Also included in the refund requests, and any responses to Analysis of Agreement Containing order are redress provisions that require such requests; and all records and Consent Order to Aid Public Comment US Search to refund any money documents necessary to demonstrate The Federal Trade Commission has consumers paid for the PrivacyLock full compliance with each provision of accepted, subject to final approval, a service. Under the proposed order, US the proposed order. consent agreement with US Search, Inc., Search would be required to credit Part V of the proposed order requires and US Search, LLC (collectively ‘‘US consumers’ credit and debit card dissemination of the order now and in Search’’). accounts and notify consumers via the future to principals, officers, The proposed consent order has been email that such credits were made. directors, and managers having placed on the public record for thirty Part I of the proposed order prohibits responsibilities relating to the subject (30) days for receipt of comments by US Search from misrepresenting, in any matter of the order. Part VI ensures interested persons. Comments received manner, the effectiveness of its notification to the FTC of changes in during this period will become part of ‘‘PrivacyLock’’ service or any other corporate status. Part VII mandates that

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00041 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59720 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

US Search submit an initial compliance ADDRESSES: Nominations can be on respondents, including through the report to the FTC and make available to submitted by either of the following: use of automated collection techniques the FTC subsequent reports. Part VIII is E-mail: [email protected] or other forms of information a provision ‘‘sunsetting’’ the order after (in the subject line, please write technology. twenty (20) years, with certain ‘‘NOMINEE’S LAST NAME, exceptions. Methodology Committee’’). If submitted Proposed Project: The Nursing The purpose of the analysis is to aid via e-mail, please do not mail a hard Education Loan Repayment Program public comment on the proposed order. copy. Application (OMB No. 0915–0140)— It is not intended to constitute an Mail: GAO Health Care, Attention: [Revision] official interpretation of the proposed PCOR Institute Methodology This is a request for revision of the order or to modify its terms in any way. Committee, 441 G Street, NW., By direction of the Commission. Nursing Education Loan Repayment Washington, DC 20548. Program (NELRP) application and Donald S. Clark FOR FURTHER INFORMATION CONTACT: participant monitoring forms. The Secretary. GAO: Office of Public Affairs, (202) NELRP is authorized by 42 USC 297n(a) [FR Doc. 2010–24224 Filed 9–27–10; 1:40 pm] 512–4800. (section 846(a) of the Public Health BILLING CODE 6750–01–S [Sec. 6301, Pub. L. 111–1481]. Service Act, as amended by Public Law Gene L. Dodaro, 107–205, August 1, 2002 and Public Law 111–148, March 23, 2010). Acting Comptroller General of the United GOVERNMENT ACCOUNTABILITY States. Under the NELRP, registered nurses OFFICE [FR Doc. 2010–24143 Filed 9–27–10; 8:45 am] are offered the opportunity to enter into BILLING CODE 1610–02–M a contractual agreement with the Methodology Committee of the Patient- Secretary to receive loan repayment for Centered Outcomes Research Institute up to 85 percent of their qualifying (PCORI) DEPARTMENT OF HEALTH AND educational loan balance as follows: 30 AGENCY: Government Accountability HUMAN SERVICES percent each year for the first 2 years Office (GAO). and 25 percent for the optional third ACTION: Notice on letters of nomination. Health Resources and Services year. In exchange, the nurses agree to Administration serve full-time for a minimum of 2 years SUMMARY: The Patient Protection and as a registered nurse at a health care Affordable Care Act gave the Agency Information Collection facility with a critical shortage of nurses Comptroller General of the United Activities: Proposed Collection: or as nurse faculty at an eligible school States responsibility for appointing not Comment Request of nursing. The NELRP forms provide more than 15 members to a information that is needed for selecting Methodology Committee of the Patient- In compliance with the requirement participants, repaying qualifying loans Centered Outcomes Research Institute. for opportunity for public comment on for education, and monitoring In addition, the Directors of the Agency proposed data collection projects compliance with service requirements. for Healthcare Research and Quality and (section 3506(c)(2)(A) of Title 44, United The NELRP forms include the following: the National Institutes of Health, or their States Code, as amended by the The NELRP Application, the Loan designees, are members of the Paperwork Reduction Act of 1995, Information and Verification form, the Methodology Committee. Methodology Pub.L. 104–13), the Health Resources Employment Verification form, the Committee members must meet the and Services Administration (HRSA) Authorization for Release of qualifications listed in Section 6301 of publishes periodic summaries of Employment Information form, the the Act. For these appointments, I am proposed projects being developed for Authorization to Release Information announcing the following: Letters of submission to the Office of Management form, the Certification Regarding nomination and resumes should be and Budget (OMB) under the Paperwork Debarment, Suspension, submitted by October 29, 2010 to ensure Reduction Act of 1995. To request more Disqualification and Related Matters adequate opportunity for review and information on the proposed project or form, the Certification of Accreditation consideration of nominees prior to to obtain a copy of the data collection Status for School of Nursing Education appointment. If an individual has plans and draft instruments, e-mail Programs form, and the NELRP previously submitted a letter of [email protected] or call the HRSA Application Checklist and Self- nomination and resume to be Reports Clearance Officer on (301) 443– Certification form. considered for appointment to the 1129. PCORI Board of Governors and would Comments are invited on: (a) The The program is expecting the number also like to be considered for proposed collection of information for of applications to increase to nomination to the PCORI Methodology the proper performance of the functions approximately 8,000 annual Committee, please so indicate by e-mail of the Agency; (b) the accuracy of the respondents. This is an increase of 2,500 or mail as noted below, however you do Agency’s estimate of the burden of the respondents for registered nurses at not need to submit another resume. proposed collection of information; (c) health care facilities and 500 Letters of nomination, nominee contact ways to enhance the quality, utility, and respondents for nurse faculty at eligible information and resumes can be clarity of the information to be schools of nursing. forwarded to either the e-mail or collected; and (d) ways to minimize the The annual estimate of burden for mailing address listed below. burden of the collection of information Applicants is as follows:

Number of Responses/ Total Hours per Total burden Instrument respondents respondents responses response hours

NELRP application ...... 8,000 1 8,000 1.5 12,000 Loan Information and Verification Form ...... 8,000 3 24,000 1 24,000

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00042 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59721

Number of Responses/ Total Hours per Total burden Instrument respondents respondents responses response hours

Employment Verification Form ...... 8,000 1 8,000 .50 4,000 Authorization for Release of Employment Information Form ...... 8,000 1 8,000 .10 800 Authorization to Release Information Form ...... 8,000 1 8,000 .10 800 Certification Regarding Debarment, Suspension, Disquali- fication and Related Matters Form ...... 8,000 1 8,000 .10 800 Certification of Accreditation Status for School of Nursing Education Programs Form ...... 500 1 500 .10 50 Application Checklist and Self-Certification Form ...... 8,000 1 8,000 .50 4,000

Total ...... 72,500 ...... 46,450

The annual estimate of burden for Participants is as follows:

Participant Semi-Annual Employment Verification Form ..... 2,300 2 4,600 .5 2,300

Total ...... 2,300 2 4,600 .5 2,300

E-mail comments to comments be faxed to the Office of dogs, and cats) that are needed for [email protected] or mail the HRSA Information and Regulatory Affairs, diseases that occur in only a small Reports Clearance Officer, Room 10–33, OMB, Attn: FDA Desk Officer, FAX: number of animals either because they Parklawn Building, 5600 Fishers Lane, 202–395–7285, or e-mailed to occur infrequently or in limited Rockville, MD 20857. Written comments [email protected]. All geographic areas. Minor species are all should be received within 60 days of comments should be identified with the animals other than the major species, for this notice. OMB control number 0910–0605. Also example, zoo animals, ornamental fish, Dated: September 22, 2010. include the FDA docket number found parrots, ferrets, and guinea pigs. Some in brackets in the heading of this Sahira Rafiullah, animals of agricultural importance are document. also minor species. These include Director, Division of Policy and Information Coordination. FOR FURTHER INFORMATION CONTACT: animals such as sheep, goats, catfish, Denver Presley Jr., Office of Information and honeybees. Participation in the [FR Doc. 2010–24209 Filed 9–27–10; 8:45 am] MUMS program is completely optional BILLING CODE 4165–15–P Management, Food and Drug Administration, 1350 Piccard Dr., PI50– for drug sponsors so the associated 400B, Rockville, MD 20850, 301–796– paperwork only applies to those DEPARTMENT OF HEALTH AND 3793. sponsors who request and are subsequently granted ‘‘MUMS HUMAN SERVICES SUPPLEMENTARY INFORMATION: In designation.’’ The rule specifies the compliance with 44 U.S.C. 3507, FDA criteria and procedures for requesting Food and Drug Administration has submitted the following proposed MUMS designation as well as the collection of information to OMB for [Docket No. FDA–2010–N–0356] annual reporting requirements for review and clearance. Agency Information Collection MUMS designees. Designated New Animal Drugs for Activities; Submission for Office of Under part 516 ( 21 CFR part 516), Minor Use and Minor Species; (OMB Management and Budget Review; § 516.20 provides requirements on the Control Number 0910–0605)—Extension Comment Request; Designated New content and format of a request for Animal Drugs for Minor Use and Minor The Minor Use and Minor Species MUMS-drug designation, § 516.26 Species (MUMS) Animal Health Act of 2004 provides requirements for amending amended the Federal Food, Drug, and MUMS-drug designation, § 516.27 AGENCY: Food and Drug Administration, Cosmetic Act to authorize FDA to provides provisions for change in HHS. establish new regulatory procedures sponsorship of MUMS-drug designation, ACTION: Notice. intended to make more medications § 516.29 provides provisions for legally available to veterinarians and termination of MUMS-drug designation, SUMMARY: The Food and Drug animal owners for the treatment of § 516.30 provides requirements for Administration (FDA) is announcing minor animal species as well as annual reports from sponsor(s) of that a proposed collection of uncommon diseases in major animal MUMS-designated drugs, and § 516.36 information has been submitted to the species. This legislation provides provides provisions for insufficient Office of Management and Budget incentives designed to help quantities of MUMS-designated drugs. (OMB) for review and clearance under pharmaceutical companies overcome Respondents are pharmaceutical the Paperwork Reduction Act of 1995. the financial burdens they face in companies that sponsor new animal DATES: Fax written comments on the providing limited-demand animal drugs. collection of information by October 28, drugs. These incentives are only In the Federal Register of July 20, 2010. available to sponsors whose drugs are 2010 (75 FR 42094), FDA published a ADDRESSES: To ensure that comments on ‘‘MUMS-designated’’ by FDA. Minor use 60-day notice requesting public the information collection are received, drugs are drugs for use in major species comment on the proposed collection of OMB recommends that written (cattle, horses, swine, chickens, turkeys, information. In response, FDA received

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00043 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59722 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

one comment that was not responsive to FDA estimates the burden of this the comment request on the information collection of information as follows: collection provision.

TABLE 1.—ESTIMATED ANNUAL REPORTING BURDEN1

Annual Frequency 21 CFR Section No. of per Total Annual Hours per Total Hours Respondents Response Responses Response

516.20 15 5 75 16 1,200

516.26 3 1 3 2 6

516.27 1 1 1 1 1

516.29 2 1 2 1 2

516.30 15 5 75 2 150

516.36 1 1 1 3 3

Total 1,362 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

The burden estimate for this reporting DATES: Fax written comments on the exemption from regulation as a food requirement was derived in our Office collection of information by October 28, additive, and actions on certain food of Minor Use and Minor Species Animal 2010. labeling citizen petitions, nutrient Drug Development by extrapolating the ADDRESSES: To ensure that comments on content claims petitions, and health current investigational new animal drug the information collection are received, claims petitions. In 1997, FDA amended (INAD)/new animal drug application OMB recommends that written its regulations in part 25 (21 CFR part (NADA) reporting requirements for comments be faxed to the Office of 25) to provide for categorical exclusions similar actions by this same segment of Information and Regulatory Affairs, for additional classes of actions that do the regulated industry and from OMB, Attn: FDA Desk Officer, FAX: not individually or cumulatively have a previous interactions with the minor 202–395–7285, or emailed to significant effect on the human use/minor species community. [email protected]. All environment (62 FR 40570, July 29, Dated: September 23, 2010. comments should be identified with the 1997). As a result of that rulemaking, OMB control number 0910–0541. Also FDA no longer routinely requires Leslie Kux, submission of information about the Acting Assistant Commissioner for Policy. include the FDA docket number found in brackets in the heading of this manufacturing and production of FDA- [FR Doc. 2010–24273 Filed 9–27–10; 8:45 am] document. regulated articles. FDA also has BILLING CODE 4160–01–S eliminated the previously required FOR FURTHER INFORMATION CONTACT: Environmental Assessment (EA) and Denver Presley Jr., Office of Information abbreviated EA formats from the DEPARTMENT OF HEALTH AND Management, Food and Drug amended regulations. Instead, FDA has HUMAN SERVICES Administration, 1350 Piccard Dr., PI50– provided guidance that contains sample 400B, Rockville, MD 20850, 301–796– formats to help industry submit a claim Food and Drug Administration 3793. of categorical exclusion or an EA to SUPPLEMENTARY INFORMATION: In [Docket No. FDA–2010–N–0373] FDA’s Center for Food Safety and compliance with 44 U.S.C. 3507, FDA Applied Nutrition (CFSAN). The Agency Information Collection has submitted the following proposed guidance document entitled ‘‘Preparing Activities; Submission for Office of collection of information to OMB for a Claim of Categorical Exclusion or an Management and Budget Review; review and clearance. Environmental Assessment for Submission to the Center for Food Comment Request; Preparing a Claim Preparing a Claim of Categorical Safety and Applied Nutrition’’ of Categorical Exclusion or an Exclusion or an Environmental identifies, interprets, and clarifies Environmental Assessment for Assessment for Submission to the existing requirements imposed by Submission to the Center for Food Center for Food Safety and Applied statute and regulation, consistent with Safety and Applied Nutrition Nutrition (OMB Control Number 0910– the Council on Environmental Quality 0541)—Extension AGENCY: Food and Drug Administration, regulations (40 CFR 1507.3). It consists HHS. As an integral part of its of recommendations that do not ACTION: Notice. decisionmaking process, FDA is themselves create requirements; rather, obligated under the National they are explanatory guidance for FDA’s SUMMARY: The Food and Drug Environmental Policy Act of 1969 own procedures in order to ensure full Administration (FDA) is announcing (NEPA) to consider the environmental compliance with the purposes and that a proposed collection of impact of its actions, including allowing provisions of NEPA. information has been submitted to the notifications for food contact substances The guidance provides information to Office of Management and Budget to become effective and approving food assist in the preparation of claims of (OMB) for review and clearance under additive petitions, color additive categorical exclusion and EAs for the Paperwork Reduction Act of 1995. petitions and GRAS petition requests for submission to CFSAN. The following

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00044 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59723

questions are covered in this guidance: because standardized documentation materials that come into contact with (1) What types of industry-initiated submitted by industry increases the food. actions are subject to a claim of efficiency of the review process, In the Federal Register of July 21, categorical exclusion? (2) what must a alternative approaches may be used if 2010 (75 FR 42446), FDA published a claim of categorical exclusion include these approaches satisfy the 60-day notice requesting public by regulation? (3) what is an EA? (4) requirements of the applicable statutes comment on the proposed collection of when is an EA required by regulation and regulations. FDA is requesting the and what format should be used? (5) extension of OMB approval for the information. In response, the agency what are extraordinary circumstances? information collection provisions in the received one comment that was not and (6) what suggestions does CFSAN guidance. The likely respondents responsive to the comment request on have for preparing an EA? Although include businesses engaged in the the information collection provisions. CFSAN encourages industry to use the manufacture or sale of food, food FDA estimates the burden of this EA formats described in the guidance ingredients, and substances used in collection of information as follows:

TABLE 1.—ESTIMATED ANNUAL REPORTING BURDEN1

No. of Annual Frequency Total Annual Hours per 21 CFR Section Respondents per Response Responses Response Total Hours

25.32(i) 34 1 34 1 34

25.32(o) 1 1 1 1 1

25.32(q) 2 1 2 1 2

Total 37 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

The estimates for respondents and Dated: September 23, 2010. the public.’’ The primary objectives of numbers of responses are based on the Leslie Kux, this study are to: • annualized numbers of petitions and Acting Assistant Commissioner for Policy. Assess audiences’ trusted/preferred sources for information, knowledge, notifications qualifying for § 25.32(i) [FR Doc. 2010–24272 Filed 9–27–10; 8:45 am] attitudes, behaviors, and other and (q) that the agency has received in BILLING CODE 4160–01–S the past 3 years. Please note that, in the characteristics for the planning/ past 3 years, there have been no development of health messages and submissions that requested an action communications strategies; DEPARTMENT OF HEALTH AND • Pre-test health messages and that would have been subject to the HUMAN SERVICES outreach strategies while they are in categorical exclusion in § 25.32(o). To developmental form to assess audience avoid counting this burden as zero, FDA National Institutes of Health response, including their likes and has estimated the burden for this Proposed Collection; Comment dislikes. categorical exclusion at one respondent NIA’s Office of Communications and Request; Testing Successful Health making one submission a year for a total Public liaison will collect this of one annual submission. Communications Surrounding Aging- information through formative Related Issues From the National qualitative research with its key To calculate the estimate for the hours Institute on Aging (NIA) per response values, we assumed that audiences—older people, caregivers, and health professionals. Methods will the information requested in this SUMMARY: In compliance with the include focus groups, individual guidance for each of these three requirement of Section 3506(c)(2)(A) of categorical exclusions is readily interviews, self-administered the Paperwork Reduction Act of 1995, questionnaires, and website surveys. available to the submitter. For the for opportunity for public comment on The information will be used to (1) information requested for the exclusion proposed data collection projects, the Develop and revise health information in § 25.32(i), we expect that the National Institute on Aging, the resources and outreach strategies to submitter will need to gather National Institutes of Health (NIH) will maximize their effectiveness; (2) information from appropriate persons in publish periodic summaries of proposed determine new topic areas to explore for the submitter’s company and to prepare projects to be submitted to the Office of future NIA publications; and (3) identify this information for attachment to the Management and Budget (OMB) for new ways to support the health claim for categorical exclusion. We review and approval. information needs of older adults and believe that this effort should take no Proposed Collection: Title: Testing people who serve older adults. NIA is longer than 1 hour per submission. For successful health communications requesting a generic clearance for a the information requested for the surrounding aging-related issues from range of research data collection exclusions in § 25.32(o) and (q), the the National Institute on Aging (NIA). procedures to ensure that they submitters will almost always merely Type of Information Collection Request: successfully develop and disseminate need to copy existing documentation New. Need and Use of Information effective health communications on and attach it to the claim for categorical Collection: This study will support aging-related issues. Frequency of exclusion. We believe that collecting NIA’s mission ‘‘to communicate Response: On occasion. Affected Public: this information should also take no information about aging and advances Older people, caregivers, and health longer than 1 hour per submission. in research on aging to the scientific professionals (physicians and non- community, health care providers, and physicians). Type of Respondents: Older

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00045 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59724 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

people, caregivers, and health of Responses per Respondent: 1. $5,680. There are no Capital Costs to professionals (physicians and non- Average Burden Hours Per Response: report. There are no Operating or physicians). The annual reporting 0.37. Estimated Total Annual Burden Maintenance Costs to report. burden is as follows: Estimated Number Hours Requested: 234. The annualized of Respondents: 630. Estimated Number cost to respondents is estimated at:

Estimated Estimated total Estimated number of Average burden annual burden Type of respondents number of responses per hours per hours respondents respondent response requested

Older adults ...... 260 1 .37 97 Non-physician health professionals and caregivers ...... 310 1 .35 107 Physicians ...... 60 1 .5 30

Total ...... 234

Request for Comments: Written DEPARTMENT OF HEALTH AND from 1.49 per 100,000 person-years in comments and/or suggestions from the HUMAN SERVICES 1999–2000 to 2.16 per 100,000 persons- public and affected agencies should years in 2007–2008. While the address one or more of the following National Institutes of Health prevalence of HCV in first time donors points: (1) Evaluate whether the decreased over this time interval from Proposed Collection; Comment proposed collection of information is 345 to 163 per 100,000 donations, the Request; Transfusion-Transmitted necessary for the proper performance of incidence in repeat donors did not Retrovirus and Hepatitis Virus Rates decrease and evidence of incident the function of the agency, including and Risk Factors: Improving the Safety whether the information will have infection in first time donors increased. of the U.S. Blood Supply Through Moreover specific age, gender and race/ practical utility; (2) Evaluate the Hemovigilance accuracy of the agency’s estimate of the ethnicity groups were over-represented. burden of the proposed collection of SUMMARY: In compliance with the Significantly increased incidence of both HIV and HCV were observed in information, including the validity of requirement of Section 3506(c)(2)(A) of 2007/2008 compared to 2005/2006. the methodology and assumptions used; the Paperwork Reduction Act of 1995, Similar analyses for HBV have shown (3) Enhance the quality, utility, and for opportunity for public comment on proposed data collection projects, the an incidence in all donors of 3.4 per clarity of the information to be 100,000 person-years which is lower collected; and (4) Minimize the burden National Heart, Lung, and Blood Institute (NHLBI), the National than earlier estimates, but remains of the collection of information on those higher than for HIV and HCV. who are to respond, including the use Institutes of Health (NIH), will publish of appropriate automated, electronic, periodic summaries of proposed This project represents a collaborative projects to the Office of Management pilot research study that will include a mechanical, or other technological and Budget (OMB) for review and comprehensive interview study of viral collection techniques or other forms of approval. infection positive blood donors at the information technology. Proposed Collection: Title: American Red Cross (ARC), Blood FOR FURTHER INFORMATION CONTACT: To Transfusion-transmitted retrovirus and Systems Inc. (BSI) and New York Blood request more information on the hepatitis virus rates and risk factors: Center (NYBC) in order to identify the proposed project or to obtain a copy of Improving the safety of the U.S. blood current predominant risk factors for the data collection plans and supply through hemovigilance. Type of virus positive donations and will also instruments, contact: Megan Homer, Information Collection Request: NEW. establish a donor biovigilance capacity Writer/Editor, Office of Need and Use of Information Collection: that currently does not exist in the U.S. Communications and Public Liaison, Information on current risk factors in At this time it is not easy to integrate NIH, Building 31C Room 5C27, 9000 blood donors as assessed using risk factor data and disease marker Rockville Pike, Bethesda, MD 20892, or analytical study designs is largely surveillance information within or call non-toll-free number 301–496–1752 unavailable in the U.S. Studies of risk across different blood collection factor profiles among HIV-infected organizations because common or E-mail your request, including your donors were funded by the CDC for interview procedures and laboratory address to: [email protected]. approximately 10 years after confirmation procedures are not being Comments Due Date: Comments implementation of serologic screening used and so we cannot easily tabulate regarding this information collection are in the mid-1980s, whereas studies of and analyze behavioral risks or viral best assured of having their full effect if HTLV- and HCV-seropositive (and infections in U.S. blood donors. This received within 60 days of the date of indeterminate) donors, funded by NIH, creates the potential for gaps in our this publication. were conducted in the early 1990s, but understanding of absolute incidence Dated: September 22, 2010. unfortunately, none of these studies is and prevalence as well as risks that ongoing. Infection trend analyses have could lead to transfusion-transmitted Lynn Hellinger, been conducted by the American Red disease. Combined data are critical for Director of Management, National Institutes Cross (ARC). The findings show appropriate national surveillance of Health. continued HIV risk with the prevalence efforts. For example, this information [FR Doc. 2010–24277 Filed 9–27–10; 8:45 am] of HIV in first time donors hovering could be used to target educational BILLING CODE 4140–01–P around 10 per 100,000 donations in interventions to reduce donations from each of the last 10 years and the persons with high risk behaviors. This incidence in repeat donors increasing is particularly important in the case of

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00046 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59725

behaviors associated with incident The Specific Aims are to: (4) Analyze integrated risk factor and (recently acquired) infections because (1) Define consensus infectious infectious marker testing data together these donations have the greatest disease testing classification algorithms because when taken together these may potential transmission risk because they for HIV, HCV, HBV, and HTLV that can show that blood centers are not could be missed during routine testing. be used to consistently classify donation achieving the same degree of success in As part of the project a comprehensive testing results across blood collection educational efforts to prevent donation research-quality biovigilance database organizations in the U.S. This will allow by donors with risk behaviors across all will be created that integrates existing for better estimates of infection disease demographic groups. marker prevalence and incidence in the operational information on blood Frequency of Response: Once. donors, disease marker testing and U.S. (2) Determine current behavioral risk Affected Public: Individuals. Type of blood components collected by factors associated with prevalent and Respondents: Adult blood donors. The participating organizations into a incident (when possible) HIV, HCV, annual reporting burden is a follows: research database. The combined HBV and HTLV infections in blood Estimated Number of Respondents: database will capture infectious disease donors, including parenteral and sexual 4150; Estimated Number of Responses and risk factor information on nearly risks, across the participating blood per Respondent: 1; Average Burden of 60% of all blood donors and donations collection organizations using a case- Hours per Response: 0.58 and Estimated in the country. Following successful control study design. Total Annual Burden Hours Requested: completion of the risk factor interviews (3) Determine nationally- 2407. The annualized cost to and research database development, the representative infectious disease marker respondents is estimated at: $43,326 biovigilance network pilot can be prevalence and incidence for HIV, HCV, (based on $18 per hour). There are no expanded to include additional blood HBV, and HTLV overall and by Capital Costs to report. There are no centers and/or re-focused on other demographic characteristics of donors. Operating or Maintenance Costs to safety threats as warranted, such as This will be accomplished by forming report. XMRV. This pilot biovigilance network research databases from operational data will thereby establish a standardized at BSI and NYBC into formats that can Tables 1–1 and 1–2: Estimate of process for integration of information be combined with the ARC research Requested Burden Hours and Dollar across blood collection organizations. database. Value of Burden Hours

TABLE 1–1—ESTIMATES OF HOUR BURDEN

Number of Frequency of Average time Annual hour Type of respondents respondents response per response burden

Cases ...... 1650 1 0.58 957 Controls ...... 2500 1 0.58 1450

Total ...... 4150 ...... 2407

TABLE 1–2—ANNUALIZED COST TO RESPONDENTS

Number of Frequency of Average time Hourly Respondent Type of respondents respondents response per response wage rate cost

Cases ...... 1650 1 0.58 $18 17,226 Controls ...... 2500 1 0.58 18 26,100

Total ...... 4150 ...... 43,326

Request for Comments: Written of appropriate automated, electronic, received within 60 days of the date of comments and/or suggestions from the mechanical, or other technological this publication. public and affected agencies should collection techniques or other forms of Dated: September 16, 2010. address one or more of the following information technology. Ms. Elizabeth Wagner, points: (1) Evaluate whether the FOR FURTHER INFORMATION CONTACT: To proposed collection of information is NHLBI Project Officer, NHLBI, National request more information on the Institutes of Health. necessary for the proper performance of proposed project or to obtain a copy of the function of the agency, including [FR Doc. 2010–24278 Filed 9–27–10; 8:45 am] the data collection plans and whether the information will have BILLING CODE 4140–01–P instruments, contact Ms Elizabeth practical utility; (2) Evaluate the Wagner, Project Officer, NHLBI, Two accuracy of the agency’s estimate of the Rockledge Center, Room 9030, 6701 burden of the proposed collection of Rockledge Drive, Bethesda, MD 20892– information, including the validity of 7950, or call 301–451–9491, or E-mail the methodology and assumptions used; your request to (3) Enhance the quality, utility, and [email protected]. clarity of the information to be collected; and (4) Minimize the burden Comments Due Date: Comments of the collection of information on those regarding this information collection are who are to respond, including the use best assured of having their full effect if

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00047 Fmt 4703 Sfmt 9990 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59726 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

DEPARTMENT OF HEALTH AND The ISIS project will evaluate multiple The form will include relatively HUMAN SERVICES employment-focused strategies that standard items from prior evaluations build on previous approaches and are and national surveys. The second Administration for Children and adapted to the current Federal, State, instrument will be a self-administered Families and local policy environment. The questionnaire (SAQ), covering major goals of the project include information related to the project goals. Proposed Information Collection increasing the empirical knowledge The third instrument, baseline Activity; Comment Request about the effectiveness of a variety of implementation data collection Title: Innovative Strategies for programs for low-income families to interviews, will be used to collect Increasing Self-Sufficiency: Baseline sustain employment and advance to information from knowledgeable Data Collection. positions that enable self-sufficiency, as informants about the service context for OMB No.: 0970–0343. well as producing useful findings for each evaluation site using a baseline Billing Accounting Code (BAC): both policymakers and program implementation guide. The purpose of 418409 (CAN G996121). administrators. such interviews is to document and Description: The Administration for This proposed information collection assess the service environment in which Children and Families (ACF), U.S. activity focuses on collecting baseline the evaluation is implemented and the Department of Health and Human data elements. Two data collection opportunities for control group Services (HHS), is proposing a data instruments will be completed by all members to access the same or similar collection activity as part of the participants prior to random services as the treatment group Innovative Strategies for Increasing Self- assignment, and a third will be an members. Sufficiency (ISIS) demonstration and interview guide to collect information Respondents: Individuals enrolled in evaluation. The ISIS project will test a from program staff. The first is a short ISIS demonstration interventions, range of promising strategies to promote baseline information form (BIF) that will control group members, ISIS program employment, self-sufficiency, and collect basic identification, operators (BIF and SAQ) and State and reduce dependence on cash welfare. demographic, and contact information. local informants (interviews).

ANNUAL BURDEN ESTIMATES

Annual Number of Average bur- Instrument number of responses per den hours per Total annual respondents respondent response burden hours

Baseline Information Form ...... 4,800 1 0.75 3,600 Self-Administered Questionnaire ...... 4800 1 0.75 3,600 Baseline Implementation Data Collection Interviews ...... 30 1 1 30

Estimated Total Annual Burden ways to minimize the burden of the SUMMARY: The Food and Drug Hours: 7,230 collection of information on Administration (FDA) is announcing the In compliance with the requirements respondents, including through the use availability of the draft guidance of Section 3506(c)(2)(A) of the of automated collection techniques or entitled ‘‘Class II Special Controls Paperwork Reduction Act of 1995, the other forms of information technology. Guidance Document: Herpes Simplex Administration for Children and Consideration will be given to Virus Types 1 and 2 Serological Families is soliciting public comment comments and suggestions submitted Assays.’’ This draft guidance document on the specific aspects of the within 60 days of this publication. describes a means by which the herpes information collection described above. Dated: September 21, 2010. simplex virus (HSV) serological assay Copies of the proposed collection of device type may comply with the Steven M. Hanmer, information can be obtained and requirement of special controls for class comments may be forwarded by writing Reports Clearance Officer. II devices. Elsewhere in this issue of the to the Administration for Children and [FR Doc. 2010–24122 Filed 9–27–10; 8:45 am] Federal Register, FDA is publishing a Families, Office of Planning, Research BILLING CODE 4184–01–M proposed rule to designate this guidance and Evaluation, 370 L’Enfant as the class II special control. This draft Promenade, SW., Washington, DC guidance is not final nor is it in effect DEPARTMENT OF HEALTH AND 20447, Attn: OPRE Reports Clearance at this time. HUMAN SERVICES Officer. E-mail address: DATES: Although you can comment on [email protected]. All Food and Drug Administration any guidance at any time (see 21 CFR requests should be identified by the title 10.115(g)(5)), to ensure that the agency of the information collection. considers your comment of this draft The Department specifically requests [Docket No. FDA–2010–D–0428] guidance before it begins work on the comments on (a) Whether the proposed Draft Guidance for Industry and Food final version of the guidance, submit collection of information is necessary and Drug Administration Staff; Class II either electronic or written comments for the proper performance of the Special Controls Guidance Document: on the draft guidance by December 27, functions of the agency, including Herpes Simplex Virus Types 1 and 2 2010. whether the information shall have Serological Assays; Availability ADDRESSES: Submit written requests for practical utility; (b) the accuracy of the single copies of the draft guidance agency’s estimate of the burden of the AGENCY: Food and Drug Administration, document entitled ‘‘Class II Special proposed collection of information; (c) HHS. Controls Guidance Document: Herpes the quality, utility, and clarity of the Simplex Virus Types 1 and 2 ACTION: Notice. information to be collected; and (d) Serological Assays’’ to the Division of

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00048 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59727

Small Manufacturers, International, and assessment of the safety and and guidance documents. These Consumer Assistance, Center for effectiveness of the different types of collections of information are subject to Devices and Radiological Health, Food HSV 1 and HSV 2 serological assays. review by the Office of Management and and Drug Administration, 10903 New Additionally, we made several Budget (OMB) under the Paperwork Hampshire Ave., Bldg. 66, rm. 4613, corrections and clarifications Reduction Act of 1995 (44 U.S.C. 3501– Silver Spring, MD 20993–0002. Send throughout the document to ensure 3520). The collections of information in one self-addressed adhesive label to accuracy, consistency, and ease of 21 CFR part 807, subpart E have been assist that office in processing your reading. Elsewhere in this issue of the approved under OMB control number request, or fax your request to 301–847– Federal Register, FDA is proposing to 0910–0120; the collections of 8149. See the SUPPLEMENTARY designate this guidance as the class II information in 21 CFR part 812 have INFORMATION section for information on special control for HSV types 1 and 2 been approved under OMB control electronic access to the guidance. serological assays. If this classification number 0910–0078; and the collections Submit electronic comments on the rule is finalized, FDA intends that this of information in 21 CFR part 801 and draft guidance to http:// guidance document will serve as the 21 CFR 809.10 have been approved www.regulations.gov. Submit written special control for this device. under OMB control number 0910–0485. comments to the Division of Dockets Following the effective date of any V. Comments Management (HFA–305), Food and Drug final classification rule based on this Administration, 5630 Fishers Lane, rm. proposal, any firm submitting a Interested persons may submit to the 1061, Rockville, MD 20852. Identify premarket notification (510(k)) for HSV Division of Dockets Management (see comments with the docket number types 1 and 2 serological assays will ADDRESSES), either electronic or written found in brackets in the heading of this need to address the issues covered in comments regarding this document. It is document. the special controls guidance document. only necessary to send one set of FOR FURTHER INFORMATION CONTACT: Haja However, the firm need only show that comments. It is no longer necessary to Sittana El Mubarak, Center for Devices its device meets the recommendations send two copies of mailed comments. and Radiological Health, Food and Drug of the guidance document or in some Identify comments with the docket Administration, 10903 New Hampshire other way provides equivalent number found in brackets in the Ave., Bldg. 66, rm. 5519, Silver Spring, assurances of safety and effectiveness. heading of this document. Received MD 20993–0002, 301–796–6193. II. Significance of Guidance comments may be seen in the Division of Dockets Management between 9 a.m. SUPPLEMENTARY INFORMATION: This draft guidance is being issued and 4 p.m., Monday through Friday. I. Background consistent with FDA’s good guidance practices regulation (21 CFR 10.115). Dated: September 16, 2010. This draft guidance document The draft guidance, when finalized, will Leslie Kux, provides recommendations on the types represent the agency’s current thinking Acting Assistant Commissioner for Policy. of information and data that FDA on HSV types 1 and 2 serological assays. believes needs to be included in a It does not create or confer any rights for premarket notification 510(k) or on any person and does not operate submission for HSV types 1 and 2 to bind FDA or the public. An [FR Doc. 2010–23640 Filed 9–27–10; 8:45 am] serological assays. HSV serological alternative approach may be used if assays are devices that consist of such approach satisfies the BILLING CODE 4160–01–S antigens and antisera used in various requirements of the applicable statute serological tests to identify antibodies to and regulations. herpes simplex virus in serum. DEPARTMENT OF HEALTH AND Additionally, some of the assays consist III. Electronic Access HUMAN SERVICES of herpes simplex virus antisera Persons interested in obtaining a copy conjugated with a fluorescent dye Centers for Disease Control and of the draft guidance may do so by using Prevention (immunofluorescent assays) used to the Internet. To receive ‘‘Class II Special identify herpes simplex virus directly Controls Guidance Document: Herpes National Center for Environmental from clinical specimens or tissue Simplex Virus Types 1 and 2 Health/Agency for Toxic Substances culture isolates derived from clinical Serological Assays,’’ you may either and Disease Registry (NCEH/ATSDR); specimens. The identification aids in send an email request to Notice of National Conversation on the diagnosis of diseases caused by [email protected] to receive an Public Health and Chemical Exposures herpes simplex viruses and provides electronic copy of the document or send Leadership Council Meeting epidemiological information on these a fax request to 301–847–8149 to receive diseases. Herpes simplex viral a hard copy. Please use the document Time and Date: 9 a.m.—5 p.m. EDT, infections range from common and mild number 1713 to identify the guidance Tuesday, October 5, 2010. lesions of the skin and mucous you are requesting. A search capability Location: Omni Shoreham Hotel, 2500 membranes to a severe form of for all CDRH guidance documents is Calvert Street NW., Washington, DC encephalitis (inflammation of the brain). available at http://www.fda.gov/ 20008. Neonatal herpes virus infections range MedicalDevices/ Status: Open to the public, on a first from a mild infection to a severe DeviceRegulationandGuidance/ come, first served basis, limited by the generalized disease with a fatal GuidanceDocuments/default.htm. space available. An opportunity for the outcome. We have revised the existing Guidance documents are also available public to listen to the meeting by phone guidance by rewriting the method at http://www.regulations.gov. will be available. For information on comparison section and the sample observing the meeting in person or by selection inclusion and exclusion IV. Paperwork Reduction Act of 1995 phone, see ‘‘contact for additional criteria section. The revisions defined This draft guidance refers to information’’ below. and differentiated the required studies previously approved collections of Purpose: This is the sixth meeting of and the study populations for the information found in FDA regulations the National Conversation on Public

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00049 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59728 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

Health and Chemical Exposures Conflict: Neurodevices, Neuroimaging, and Contact Person: Nywana Sizemore, PhD, Leadership Council, which is convened Bioengineering. Scientific Review Officer, Center for by RESOLVE, a non-profit independent Date: October 20, 2010. Scientific Review, National Institutes of facilitator. The National Conversation Time: 2 p.m. to 6 p.m. Health, 6701 Rockledge Drive, Room 6204, Agenda: To review and evaluate grant MSC 7804, Bethesda, MD 20892, 301–435– on Public Health and Chemical applications. 1718, [email protected]. Exposures is a collaborative initiative Place: National Institutes of Health, 6701 Name of Committee: Center for Scientific supported by NCEH/ATSDR and Rockledge Drive, Bethesda, MD 20892 Review Special Emphasis Panel; Tooth through which many organizations and (Telephone Conference Call). Development and Mineralization. individuals are helping develop an Contact Person: Vilen A. Movsesyan, PhD, Date: November 3, 2010. action agenda for strengthening the Scientific Review Officer, Center for Time: 3 p.m. to 5:30 p.m. nation’s approach to protecting the Scientific Review, National Institutes of Agenda: To review and evaluate grant public’s health from harmful chemical Health, 6701 Rockledge Drive, Room 4040M, applications. exposures. The Leadership Council MSC 7806, Bethesda, MD 20892, 301–402– Place: National Institutes of Health, 6701 provides overall guidance to the 7278, [email protected]. Rockledge Drive, Bethesda, MD 20892 National Conversation project and is Name of Committee: Center for Scientific (Telephone Conference Call). Contact Person: Priscilla B. Chen, PhD, responsible for issuing the final action Review Special Emphasis Panel; Electromagnetic Devices. Scientific Review Officer, Center for agenda. For additional information on Date: October 26, 2010. Scientific Review, National Institutes of the National Conversation on Public Time: 12 p.m. to 3:30 p.m. Health, 6701 Rockledge Drive, Room 4104, Health and Chemical Exposures, visit Agenda: To review and evaluate grant MSC 7814, Bethesda, MD 20892, (301) 435– this Web site: http://www.atsdr.cdc.gov/ applications. 1787, [email protected]. nationalconversation/. Place: National Institutes of Health, 6701 Name of Committee: Center for Scientific Meeting Agenda: The purpose of the Rockledge Drive, Bethesda, MD 20892 Review Special Emphasis Panel; PAR–08– meeting is to discuss key themes and (Telephone Conference Call). 147: Quick Trials on Imaging and image- recommendations to feature in the draft Contact Person: Antonio Sastre, PhD, Guided Intervention. action agenda, drawing on draft work Scientific Review Officer, Center for Date: November 4, 2010. Scientific Review, National Institutes of Time: 2 p.m. to 6 p.m. group reports and the results of various Health, 6701 Rockledge Drive, Room 5215, Agenda: To review and evaluate grant stakeholder and public engagement MSC 7412, Bethesda, MD 20892, 301–435– applications. activities. 2592, [email protected]. Place: National Institutes of Health, 6701 Contact for additional information: If Name of Committee: Center for Scientific Rockledge Drive, Bethesda, MD 20892 you would like to receive additional Review Special Emphasis Panel; (Virtual Meeting). information on attending this meeting in Fellowships: AIDS Predoctoral and Contact Person: John Firrell, PhD, person or listening by telephone, please Postdoctoral. Scientific Review Officer, Center for contact: [email protected] Date: October 27–28, 2010. Scientific Review, National Institutes of or Ben Gerhardstein at 770–488–3646. Time: 8 a.m. to 5 p.m. Health, 6701 Rockledge Drive, Room 5213, Agenda: To review and evaluate grant MSC 7854, Bethesda, MD 20892, 301–435– Dated: September 21, 2010. applications. 2598, [email protected]. Tanja Popovic, Place: National Institutes of Health, 6701 Name of Committee: Center for Scientific Deputy Associate Director for Science, Rockledge Drive, Bethesda, MD 20892 Review Special Emphasis Panel. Centers for Disease Control and Prevention. (Virtual Meeting). Fellowships: Neurodevelopment, Synaptic [FR Doc. 2010–24260 Filed 9–27–10; 8:45 am] Contact Person: Shiv A. Prasad, PhD, Plasticity and Neurodegeneration. BILLING CODE 4163–18–P Scientific Review Officer, Center for Date: November 11–12, 2010. Scientific Review, National Institutes of Time: 8 a.m. to 5 p.m. Health, 6701 Rockledge Drive, Room 5220, Agenda: To review and evaluate grant DEPARTMENT OF HEALTH AND MSC 7852, Bethesda, MD 20892, 301–443– applications. 5779, [email protected]. Place: The Westin San Diego, 400 West HUMAN SERVICES Name of Committee: Center for Scientific Broadway, San Diego, CA 92101. Contact Person: Vilen A. Movsesyan, PhD, National Institutes of Health Review Special Emphasis Panel; Small Business: Dermatology, Rheumatology and Scientific Review Officer, Center for Inflammation. Scientific Review, National Institutes of Center for Scientific Review; Notice of Health, 6701 Rockledge Drive, Room 4040M, Closed Meetings Date: November 1, 2010. Time: 11:30 a.m. to 6 p.m. MSC 7806, Bethesda, MD 20892, 301–402– Pursuant to section 10(d) of the Agenda: To review and evaluate grant 7278, [email protected]. Federal Advisory Committee Act, as applications. Name of Committee: Center for Scientific amended (5 U.S.C. App.), notice is Place: Bethesda North Marriott Hotel & Review Special Emphasis Panel; Small hereby given of the following meetings. Conference Center, 5701 Marinelli Road, Business: Digestive Sciences. The meetings will be closed to the Bethesda, MD 20852. Date: November 15–16, 2010. Contact Person: Aftab A. Ansari, PhD, Time: 8 a.m. to 5 p.m. public in accordance with the Scientific Review Officer, Center for Agenda: To review and evaluate grant provisions set forth in sections Scientific Review, National Institutes of applications. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Health, 6701 Rockledge Drive, Room 4108, Place: National Institutes of Health, 6701 as amended. The grant applications and MSC 7814, Bethesda, MD 20892, 301–594– Rockledge Drive, Bethesda, MD 20892 the discussions could disclose 6376, [email protected]. (Virtual Meeting). confidential trade secrets or commercial Name of Committee: Center for Scientific Contact Person: Bonnie L. Burgess-Beusse, property such as patentable material, Review Special Emphasis Panel; Stem Cells PhD, Scientific Review Officer, Center for and personal information concerning in Cancer. Scientific Review, National Institutes of individuals associated with the grant Date: November 1, 2010. Health, 6701 Rockledge Drive, Room 2182, Time: 1 p.m. to 4 p.m. MSC 7818, Bethesda, MD 20892, 301–435– applications, the disclosure of which 1783, [email protected]. would constitute a clearly unwarranted Agenda: To review and evaluate grant applications. Name of Committee: Center for Scientific invasion of personal privacy. Place: National Institutes of Health, 6701 Review Special Emphasis Panel; RFA Panel: Name of Committee: Center for Scientific Rockledge Drive, Bethesda, MD 20892 Diet and Physical Activity Methodologies. Review Special Emphasis Panel; Member (Telephone Conference Call). Date: November 16–17, 2010.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00050 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59729

Time: 8 a.m. to 5 p.m. Health, 6701 Rockledge Drive, Room 6188, Place: National Institutes of Health, 6701 Agenda: To review and evaluate grant MSC 7892, Bethesda, MD 20892, 301–435– Rockledge Drive, Bethesda, MD 20892 applications. 1789, [email protected]. (Virtual Meeting). Place: National Institutes of Health, 6701 Name of Committee: Center for Scientific Contact Person: Ghenima Dirami, PhD, Rockledge Drive, Bethesda, MD 20892 Review Special Emphasis Panel; Member Scientific Review Officer, Center for (Virtual Meeting). Conflict: Arthritis, Connective Tissue and Scientific Review, National Institutes of Contact Person: Fungai Chanetsa, MPH, Skin Special Emphasis Panel. Health, 6701 Rockledge Drive, Room 4122, PhD, Scientific Review Officer, Center for Date: November 17, 2010. MSC 7814, Bethesda, MD 20892, 301–594– Scientific Review, National Institutes of Time: 2:30 p.m. to 5 p.m. 1321, [email protected]. Health, 6701 Rockledge Drive, Room 3135, Agenda: To review and evaluate grant (Catalogue of Federal Domestic Assistance MSC 7770, Bethesda, MD 20892, 301–408– applications. Program Nos. 93.306, Comparative Medicine; 9436, [email protected]. Place: National Institutes of Health, 6701 93.333, Clinical Research, 93.306, 93.333, Name of Committee: Center for Scientific Rockledge Drive, Bethesda, MD 20892 93.337, 93.393–93.396, 93.837–93.844, Review Special Emphasis Panel; Small (Telephone Conference Call). 93.846–93.878, 93.892, 93.893, National Business: AIDS/HIV Innovative Research Contact Person: Jean D. Sipe, PhD, Institutes of Health, HHS) Applications. Scientific Review Officer, Center for Dated: September 22, 2010. Date: November 16–18, 2010. Scientific Review, National Institutes of Time: 8 a.m. to 3 p.m. Health, 6701 Rockledge Drive, Room 4106, Jennifer S. Spaeth, Agenda: To review and evaluate grant MSC 7814, Bethesda, MD 20892, 301–435– Director, Office of Federal Advisory applications. 1743, [email protected]. Committee Policy. Place: National Institutes of Health, 6701 Name of Committee: Center for Scientific [FR Doc. 2010–24279 Filed 9–27–10; 8:45 am] Rockledge Drive, Bethesda, MD 20892 Review Special Emphasis Panel; ODCS BILLING CODE 4140–01–P (Virtual Meeting). Member Conflicts. Contact Person: Kenneth A Roebuck, PhD, Date: November 17, 2010. PhD, Scientific Review Officer, Center for Time: 3 p.m. to 5 p.m. DEPARTMENT OF HEALTH AND Scientific Review, National Institutes of Agenda: To review and evaluate grant Health, 6701 Rockledge Drive, Room 5106, applications. HUMAN SERVICES MSC 7852, Bethesda, MD 20892, (301) 435– Place: National Institutes of Health, 6701 1166, [email protected]. Rockledge Drive, Bethesda, MD 20892 Food and Drug Administration Name of Committee: Center for Scientific (Telephone Conference Call). [Docket No. FDA–2010–N–0001] Review Special Emphasis Panel; Small Contact Person: Priscilla B. Chen, PhD, Business: Genes, Genomes, and Genetics. Scientific Review Officer, Center for Vaccines and Related Biological Date: November 17, 2010. Scientific Review, National Institutes of Products Advisory Committee; Notice Time: 8 a.m. to 5 p.m. Health, 6701 Rockledge Drive, Room 4104, of Meeting Agenda: To review and evaluate grant MSC 7814, Bethesda, MD 20892, (301) 435– applications. 1787, [email protected]. AGENCY: Food and Drug Administration, Place: Renaissance Mayflower Hotel, 1127 Name of Committee: Center for Scientific HHS. Connecticut Avenue, NW., Washington, DC Review Special Emphasis Panel; Fellowship: ACTION: Notice. 20036. Genes, Genomes, and Genetics. Contact Person: Maria DeBernardi, PhD, Date: November 18–19, 2010. This notice announces a forthcoming Scientific Review Officer, Center for Time: 8 a.m. to 4 p.m. meeting of a public advisory committee Scientific Review, National Institutes of Agenda: To review and evaluate grant of the Food and Drug Administration Health, 6701 Rockledge Drive, Room 6158, applications, MSC 7892, Bethesda, MD 20892, 301–435– Place: Hyatt at Fisherman’s Wharf, 555 (FDA). At least one portion of the 1355, [email protected]. North Point Street, San Francisco, CA 94133. meeting will be closed to the public. Name of Committee: Vaccines and Name of Committee: Center for Scientific Contact Person: Michael A. Marino, PhD, Review Special Emphasis Panel; Fellowship: Scientific Review Officer, Center for Related Biological Products Advisory Technology Development. Scientific Review, National Institutes of Committee. Date: November 17–18, 2010. Health, 6701 Rockledge Drive, Room 2216, General Function of the Committee: Time: 8 a.m. to 5 p.m. MSC 7890, Bethesda, MD 20892, (301) 435– To provide advice and Agenda: To review and evaluate grant 0601, [email protected]. recommendations to the agency on applications. Name of Committee: Center for Scientific FDA’s regulatory issues. Place: National Institutes of Health, 6701 Review Special Emphasis Panel; PAR–10– Date and Time: The meeting will be Rockledge Drive, Bethesda, MD 20892 082: Shared Instrumentation: S10 Flow held on November 16, 2010, from 9 a.m. (Virtual Meeting). Cytometry Review. to approximately 4 p.m. and on Contact Person: Alessandra M. Bini, PhD, Date: November 18–19, 2010. November 17, 2010, from 8:30 a.m. to Scientific Review Officer, Center for Time: 8:30 a.m. to 5 p.m. Scientific Review, National Institutes of Agenda: To review and evaluate grant approximately 1:15 p.m. Health, 6701 Rockledge Drive, Room 5142, applications. Location: Hilton Silver Spring Hotel, MSC 7840, Bethesda, MD 20892, 301–435– Place: Renaissance Baltimore Harborplace Maryland Ballroom, 8727 Colesville Rd., 1024, [email protected]. Hotel, 202 East Pratt Street, Baltimore, MD Silver Spring, MD 20910. Name of Committee: Center for Scientific 21202. Contact Person: Donald W. Jehn or Review Special Emphasis Panel; Special Contact Person: Jonathan Arias, PhD, Denise Royster, Food and Drug Topics: Bioanalytical and Imaging Scientific Review Officer, Center for Administration, Center for Biologics Technologies. Scientific Review, National Institutes of Evaluation and Research (HFM–71), Date: November 17–18, 2010. Health, 6701 Rockledge Drive, Room 5170, Food and Drug Administration, 1401 Time: 8:30 a.m. to 6 p.m. MSC 7840, Bethesda, MD 20892, 301–435– Rockville, Pike, Rockville, MD 20852, 2406, [email protected]. Agenda: To review and evaluate grant 301–827–0314, or FDA Advisory applications. Name of Committee: Center for Scientific Committee Information Line, 1–800– Place: National Institutes of Health, 6701 Review Special Emphasis Panel, Small Rockledge Drive, Bethesda, MD 20892 Business: Respiratory Sciences. 741–8138 (301–443–0572 in the (Virtual Meeting). Date: November 18–19, 2010. Washington, DC area), code Contact Person: Vonda K. Smith, PhD, Time: 9 a.m. to 5 p.m. 3014512391. Please call the Information Scientific Review Officer, Center for Agenda: To review and evaluate grant Line for up-to-date information on this Scientific Review, National Institutes of applications. meeting. A notice in the Federal

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00051 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59730 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

Register about last minute modifications conduct a lottery to determine the (FDA). The meeting will be open to the that impact a previously announced speakers for the scheduled open public public. advisory committee meeting cannot hearing session. The contact person will Name of Committees: Anesthetic and always be published quickly enough to notify interested persons regarding their Life Support Drugs Advisory Committee provide timely notice. Therefore, you request to speak by November 3, 2010. and the Drug Safety and Risk should always check the agency’s Web Closed Committee Deliberations: On Management Advisory Committee. site and call the appropriate advisory November 16, 2010, between 12 p.m. General Function of the Committees: committee hot line/phone line to learn and approximately 2 p.m., the meeting To provide advice and about possible modifications before will be closed to permit discussion and recommendations to the agency on coming to the meeting. review of trade secret and/or FDA’s regulatory issues. Agenda: On November 16, 2010, the confidential commercial information (5 Date and Time: The meeting will be committee will meet in open session to U.S.C. 552b(c)(4)). The committee will held on October 21, 2010, from 8:30 review and discuss the pathway to hear firms discuss protocols they a.m. to 4:30 p.m. and on October 22, licensure for protective antigen-based propose to use for the pathway to 2010, from 8:30 a.m. to 4 p.m. anthrax vaccines for a post-exposure licensure for protective antigen-based Location: Hilton Washington DC prophylaxis indication using the animal anthrax vaccines for a post-exposure North/Gaithersburg, The Ballrooms, 620 rule. On November 17, 2010, the prophylaxis indication using the animal Perry Pkwy., Gaithersburg, MD. The committee will meet in open session to rule. hotel telephone number is 301–977– 8900. review and discuss the effectiveness of Persons attending FDA’s advisory Contact Person: Kalyani Bhatt, Center vaccinating males and females with committee meetings are advised that the Gardasil manufactured by Merck & Co. for Drug Evaluation and Research, Food agency is not responsible for providing and Drug Administration, 10903 New for the prevention of anal dysplasia and access to electrical outlets. anal cancer. Hampshire Ave., Bldg. 31, rm. 2417, FDA welcomes the attendance of the Silver Spring, MD 20993–0002, 301– FDA intends to make background public at its advisory committee material available to the public no later 796–9001, FAX: 301–847–8533, email: meetings and will make every effort to [email protected], or FDA than 2 business days before the meeting. accommodate persons with physical If FDA is unable to post the background Advisory Committee Information Line, disabilities or special needs. If you 1–800–741–8138 (301–443–0572 in the material on its Web site prior to the require special accommodations due to meeting, the background material will Washington, DC area), codes a disability, please contact Donald W. 3014512529 and 3014512535. Please be made publicly available at the Jehn or Denise Royster at least 7 days in location of the advisory committee call the Information Line for up-to-date advance of the meeting. FDA is information on this meeting. A notice in meeting, and the background material committed to the orderly conduct of its will be posted on FDA’s Web site after the Federal Register about last minute advisory committee meetings. Please the meeting. Background material is modifications that impact a previously visit our Web site at http://www.fda.gov/ available at http://www.fda.gov/ announced advisory committee meeting AdvisoryCommittees/About AdvisoryCommittees/Calendar/ cannot always be published quickly AdvisoryCommittees/ucm111462.htm default.htm. Scroll down to the enough to provide timely notice. for procedures on public conduct during appropriate advisory committee link. Therefore, you should always check the Procedure: On November 16, 2010, advisory committee meetings. agency’s Web site and call the from 9 a.m. until approximately 11:45 Notice of this meeting is given under appropriate advisory committee hot a.m. and from 2 p.m. until the Federal Advisory Committee Act (5 line/phone line to learn about possible approximately 4 p.m. and on November U.S.C. app. 2). modifications before coming to the 17, 2010, the meeting is open to the Dated: September 23, 2010. meeting. public. Interested persons may present Jill Hartzler Warner, Agenda: The committee will discuss data, information, or views, orally or in Acting Associate Commissioner for Special considerations for the design of writing, on issues pending before the Medical Programs. postmarketing studies for new drug committee. Written submissions may be [FR Doc. 2010–24253 Filed 9–27–10; 8:45 am] applications (NDAs) 22–272, OxyContin made to the contact person on or before BILLING CODE 4160–01–S (oxycodone hydrochloride controlled- November 10, 2010. Oral presentations release) Tablets, manufactured by from the public will be scheduled Purdue Pharma, Inc., and NDA 22–321, between approximately 2:15 p.m. and DEPARTMENT OF HEALTH AND EMBEDA (morphine sulfate extended- 2:45 p.m. on November 16, 2010, and HUMAN SERVICES release with a sequestered naltrexone between approximately 11:45 a.m. and hydrochloride inner core) Capsules, 12:15 p.m. on November 17, 2010. Food and Drug Administration manufactured by Alpharma Those desiring to make formal oral Pharmaceuticals, LLC and King presentations should notify the contact [Docket No. FDA–2010–N–0001] Pharmaceuticals Research & person and submit a brief statement of Joint Meeting of the Anesthetic and Development, Inc., approved for the the general nature of the evidence or Life Support Drugs Advisory management of moderate to severe pain arguments they wish to present, the Committee and the Drug Safety and when a continuous, around-the-clock names and addresses of proposed Risk Management Advisory opioid analgesic is needed for an participants, and an indication of the Committee; Notice of Meeting extended period of time. The approximate time requested to make postmarketing studies are intended to be their presentation on or before AGENCY: Food and Drug Administration, epidemiological or observational studies November 2, 2010. Time allotted for HHS. that will assess the known serious risks each presentation may be limited. If the ACTION: Notice. of these products and whether product- number of registrants requesting to specific properties which are intended speak is greater than can be reasonably This notice announces a forthcoming to discourage misuse and abuse actually accommodated during the scheduled meeting of a public advisory committee result in a decrease in the risks of open public hearing session, FDA may of the Food and Drug Administration misuse and abuse, and their

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00052 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59731

consequences: Addiction, overdose, and Notice of this meeting is given under If you experience any technical problems death. the Federal Advisory Committee Act (5 with the web presentation tool, please U.S.C. app. 2). contact GoToWebinar at (800) 263–6317. To FDA intends to make background access the web presentation tool on the material available to the public no later Dated: September 22, 2010. Internet the following computer capabilities than 2 business days before the meeting. Jill Hartzler Warner, are required: (A) Internet Explorer 5.0 or If FDA is unable to post the background Acting Associate Commissioner for Special later, Netscape Navigator 6.0 or later or material on its Web site prior to the Medical Programs. Mozilla Firefox 1.0 or later; (B) Windows® meeting, the background material will [FR Doc. 2010–24251 Filed 9–27–10; 8:45 am] 2000, XP Home, XP Pro, 2003 Server or Vista; (C) Stable 56k, cable modem, ISDN, DSL or be made publicly available at the BILLING CODE 4160–01–S location of the advisory committee better Internet connection; (D) Minimum of meeting, and the background material Pentium 400 with 256 MB of RAM (Recommended); (E) Java Virtual Machine will be posted on FDA’s Web site after DEPARTMENT OF HEALTH AND enabled (Recommended). the meeting. Background material is HUMAN SERVICES Individuals who participate in person or by available at http://www.fda.gov/ using these electronic services and who need AdvisoryCommittees/Calendar/ National Institutes of Health special assistance, such as captioning of the default.htm. Scroll down to the conference call or other reasonable appropriate advisory committee link. National Institute of Mental Health; accommodations, should submit a request to Notice of Meeting the Contact Person listed on this notice at Procedure: Interested persons may least 7 days prior to the meeting. present data, information, or views, Pursuant to section 10(a) of the This notice is being published less than 15 orally or in writing, on issues pending Federal Advisory Committee Act, as days prior to the meeting due to the urgent before the committee. Written amended (5 U.S.C. App.), notice is need for the Subcommittee to discuss the submissions may be made to the contact hereby given of a meeting of the upcoming update of the IACC Strategic Plan person on or before October 14, 2010. Subcommittee for Planning the Annual prior to the IACC meeting scheduled for Oral presentations from the public will Strategic Plan Updating Process of the October 22, 2010. be scheduled between approximately Interagency Autism Coordinating Schedule is subject to change. 10:45 a.m. and 11:45 a.m. on October Committee (IACC). Information about the IACC is available on the Web site: http://www.iacc.hhs.gov. 22, 2010. Those desiring to make formal The purpose of the Subcommittee oral presentations should notify the meeting is to plan the process for Dated: September 22, 2010. contact person and submit a brief updating the IACC Strategic Plan for Jennifer S. Spaeth, statement of the general nature of the Autism Spectrum Disorder Research. Director, Office of Federal Advisory evidence or arguments they wish to The meeting will be open to the public Committee Policy. present, the names and addresses of and will also be accessible by webinar [FR Doc. 2010–24280 Filed 9–27–10; 8:45 am] proposed participants, and an and conference call. BILLING CODE 4140–01–P indication of the approximate time Name of Committee: Interagency Autism requested to make their presentation on Coordinating Committee (IACC). or before October 6, 2010. Time allotted Type of meeting: Subcommittee for DEPARTMENT OF HEALTH AND for each presentation may be limited. If Planning the Annual Strategic Plan Updating HUMAN SERVICES the number of registrants requesting to Process. speak is greater than can be reasonably Date: October 6, 2010. Centers for Disease Control and Time: 9 a.m. to 12 p.m. Eastern Time. Prevention accommodated during the scheduled Agenda: To discuss plans for updating the open public hearing session, FDA may IACC Strategic Plan for ASD Research. Disease, Disability, and Injury conduct a lottery to determine the Place: The National Institute of Mental Prevention and Control Special speakers for the scheduled open public Health, Neuroscience Center, 6001 Executive Emphasis Panel (SEP): Member hearing session. The contact person will Boulevard, Conference Room 8120, Conflict Review, Program notify interested persons regarding their Rockville, MD 20852. Announcement (PA) 07–318, Initial request to speak by October 7, 2010. Webinar Access: https:// www2.gotomeeting.com/register/927802003. Review Persons attending FDA’s advisory Registration: http://www.acclaroresearch. committee meetings are advised that the com/oarc/10–06–10_IACC. Pre-registration is In accordance with Section 10(a)(2) of agency is not responsible for providing recommended to expedite check-in. Seating the Federal Advisory Committee Act access to electrical outlets. in the meeting room is limited to room (Pub. L. 92–463), the Centers for Disease capacity and on a first come, first served Control and Prevention (CDC) FDA welcomes the attendance of the basis. public at its advisory committee Conference Call: Dial: 888–848–6715, announces the aforementioned meeting: meetings and will make every effort to Access code: 5341736. TIME AND DATE: 1 p.m.–3 p.m., November accommodate persons with physical Contact Person: Ms. Lina Perez, Office of 15, 2010 (Closed). disabilities or special needs. If you Autism Research Coordination, Office of the Place: National Institute for Director, National Institute of Mental Health, require special accommodations due to Occupational Safety and Health a disability, please contact Kalyani NIH, 6001 Executive Boulevard, NSC, Room 8200, Bethesda, MD 20892–9669, Phone: (NIOSH), CDC, 1095 Willowdale Road, Bhatt at least 7 days in advance of the (301) 443–6040, E-mail: Morgantown, West Virginia 26506, meeting. [email protected]. telephone: (304)285–6143. FDA is committed to the orderly Please Note: The meeting will be open to Status: The meeting will be closed to conduct of its advisory committee the public and accessible via webinar and the public in accordance with meetings. Please visit our Web site at conference call. Members of the public who provisions set forth in Section 552b(c) http://www.fda.gov/Advisory participate using the conference call phone (4) and (6), Title 5 U.S.C., and the number will be able to listen to the meeting Committees/AboutAdvisoryCommittees/ but will not be heard. If you experience any Determination of the Director, ucm111462.htm for procedures on technical problems with the conference call, Management Analysis and Services public conduct during advisory please-mail IACCTechSupport@acclaro Office, CDC, pursuant to Public Law 92– committee meetings. research.com. 463.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00053 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59732 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

Matters to be Discussed: The meeting [email protected], or FDA allotted for each presentation may be will include the initial review, Advisory Committee Information Line, limited. If the number of registrants discussion, and evaluation of ‘‘Member 1–800–741–8138 (301–443–0572 in the requesting to speak is greater than can Conflict Review, PA 07–318.’’ Washington, DC area), code be reasonably accommodated during the CONTACT PERSON FOR MORE INFORMATION: 3014512538. Please call the Information scheduled open public hearing session, M. Chris Langub, PhD., Scientific Line for up-to-date information on this FDA may conduct a lottery to determine Review Administrator, Office of meeting. A notice in the Federal the speakers for the scheduled open Extramural Programs, National Institute Register about last minute modifications public hearing session. The contact for Occupational Safety and Health, that impact a previously announced person will notify interested persons CDC, 1600 Clifton Road, NE., Mailstop advisory committee meeting cannot regarding their request to speak by E74, Atlanta Georgia 30333; Telephone: always be published quickly enough to October 14, 2010. (404)498–2543. provide timely notice. Therefore, you Persons attending FDA’s advisory The Director, Management Analysis should always check the agency’s Web committee meetings are advised that the and Services Office, has been delegated site and call the appropriate advisory agency is not responsible for providing the authority to sign Federal Register committee hot line/phone line to learn access to electrical outlets. notices pertaining to announcements of about possible modifications before FDA welcomes the attendance of the meetings and other committee coming to the meeting. public at its advisory committee management activities, for both CDC Agenda: On November 5, 2010, the meetings and will make every effort to committee will discuss the results from and the Agency for Toxic Substances accommodate persons with physical clinical trials of proton pump inhibitors and Disease Registry. disabilities or special needs. If you in gastroespohageal reflux disease require special accommodations due to Dated: September 20, 2010. (GERD) in patients less than 1 year of a disability, please contact Kristine T. Elaine L. Baker, age, performed in response to a Khuc at least 7 days in advance of the Director, Management Analysis and Services Pediatric Written Request under the meeting. Office, Centers for Disease Control and Best Pharmaceuticals for Children Act FDA is committed to the orderly Prevention. (Nexium, esomeprazole by AstraZeneca conduct of its advisory committee [FR Doc. 2010–24258 Filed 9–27–10; 8:45 am] LP; Prevacid, lansoprazole by Takeda meetings. Please visit our Web site at BILLING CODE 4163–18–P Pharmaceuticals North America, Inc; http://www.fda.gov/Advisory Protonix, pantoprazole by Pfizer, Inc.) Committees/AboutAdvisoryCommittees/ and Pediatric Research Equity Act ucm111462.htm for procedures on DEPARTMENT OF HEALTH AND commitment (Prilosec, omeprazole by public conduct during advisory HUMAN SERVICES AstraZeneca LP). The pathophysiology committee meetings. (disease process) of GERD, its diagnosis Notice of this meeting is given under Food and Drug Administration and management, and issues related to the Federal Advisory Committee Act (5 [Docket No. FDA–2010–N–0001] the design of clinical trials in this age U.S.C. app. 2). group will be considered. Dated: September 22, 2010. Gastrointestinal Drugs Advisory FDA intends to make background Committee; Notice of Meeting material available to the public no later Jill Hartzler Warner, than 2 business days before the meeting. Acting Associate Commissioner for Special AGENCY: Food and Drug Administration, If FDA is unable to post the background Medical Programs. HHS. material on its Web site prior to the [FR Doc. 2010–24252 Filed 9–27–10; 8:45 am] ACTION: Notice. meeting, the background material will BILLING CODE 4160–01–S be made publicly available at the This notice announces a forthcoming location of the advisory committee meeting of a public advisory committee meeting, and the background material DEPARTMENT OF HOMELAND of the Food and Drug Administration will be posted on FDA’s Web site after SECURITY (FDA). The meeting will be open to the the meeting. Background material is public. available at http://www.fda.gov/ Federal Emergency Management Name of Committee: Gastrointestinal AdvisoryCommittees/Calendar/ Agency Drugs Advisory Committee default.htm. Scroll down to the [Docket ID: FEMA–2010–0041] General Function of the Committee: appropriate advisory committee link. To provide advice and Procedure: Interested persons may Agency Information Collection recommendations to the agency on present data, information, or views, Activities: Submission for OMB FDA’s regulatory issues. orally or in writing, on issues pending Review; Comment Request, OMB No. Date and Time: The meeting will be before the committee. Written 1660–0036; Federal Emergency held on November 5, 2010, from 8 a.m. submissions may be made to the contact Management Agency Individual to 5 p.m. person on or before October 21, 2010. Assistance Customer Satisfaction Location: Hilton Washington DC Oral presentations from the public will Surveys North/Gaithersburg, The Ballroom, 620 be scheduled between approximately Perry Pkwy., Gaithersburg, MD. The 1:30 p.m. to 2:30 p.m. Those desiring to AGENCY: Federal Emergency hotel telephone number is 301–977– make formal oral presentations should Management Agency, DHS. 8900. notify the contact person and submit a ACTION: Notice; 30-day notice and Contact Person: Kristine T. Khuc, brief statement of the general nature of request for comments; revision of a Center for Drug Evaluation and the evidence or arguments they wish to currently approved information Research, Food and Drug present, the names and addresses of collection; OMB No. 1660–0036; Caller Administration, 10903 New Hampshire proposed participants, and an Services Registration Intake Survey, Ave., Bldg. 31, rm. 2417, Silver Spring, indication of the approximate time FEMA Form 007–0–3 (currently 90– MD 20993–0002, 301–796–9001, FAX: requested to make their presentation on 147); Caller Services Helpline Survey, 301–847–8533, email: or before October 13, 2010. Time FEMA Form 007–0–5 (currently 90–

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00054 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59733

148); Program Effectiveness & Recovery Street, Arlington, VA 20598–3005, Estimated Number of Respondents: Survey, FEMA Form 070–0–20 facsimile number (202) 646–3347, or 57,058. (currently 90–149); Internet On-Line e-mail address FEMA–Information- Frequency of Response: On occasion. Registration Survey, FEMA Form 070– [email protected]. Estimated Average Hour Burden per 0–2 (currently 90–150); Internet SUPPLEMENTARY INFORMATION: Respondent: .18 burden hours. Applicant Inquiry/Update Phone Estimated Total Annual Burden Survey, FEMA Form 070–0–19 Collection of Information Hours: 10,186. (currently 90–151); Casework Title: Federal Emergency Management Estimated Cost: There are no annual Representative Survey, FEMA Form Agency Individual Assistance Customer capital start-up or annual operations 007–0–6; Direct Housing Operations Satisfaction Surveys. and maintenance costs. The annual non- Survey, FEMA Form 007–0–4; Disability Type of Information Collection: labor cost is $4,320. Access and Functional Needs Revision of a currently approved Lesia M. Banks, information collection. Representative Survey, FEMA Form Director, Records Management Division, 007–0–8 (This form was named ‘Special OMB Number: 1660–0036. Form Titles and Numbers: Caller Mission Support Bureau, Federal Emergency Needs Representative Survey’ in the 60- Management Agency, Department of day Federal Register Notice at 75 FR Services Registration Intake Survey, Homeland Security. FEMA Form 007–0–3 (currently 90– 40847, July 14, 2010.); Disaster Recovery [FR Doc. 2010–24350 Filed 9–27–10; 8:45 am] 147); Caller Services Helpline Survey, Center Survey, FEMA Form 007–0–7; BILLING CODE 9111–23–P Communication and Process Survey, FEMA Form 007–0–5 (currently 90– FEMA Form 007–0–9; Contact Survey, 148); Program Effectiveness & Recovery FEMA Form 007–0–10; Correspondence Survey, FEMA Form 070–0–20 DEPARTMENT OF HOMELAND (currently 90–149); Internet On-Line and Process Survey, FEMA Form 007– SECURITY Registration Survey, FEMA Form 070– 0–11; E–Communications Survey, 0–2 (currently 90–150); Internet FEMA Form 007–0–12; Evacuations U.S. Customs and Border Protection Applicant Inquiry/Update Phone Survey, FEMA Form 007–0–13; Follow- Survey, FEMA Form 070–0–19 Agency Information Collection Up Program Effectiveness and Recovery (currently 90–151); Casework Activities: Arrival and Departure Survey, FEMA Form 007–0–14; Rapid Representative Survey, FEMA Form Record (Forms I–94 and I–94W) and Temporary Repair Survey, FEMA Form 007–0–6; Direct Housing Operations Electronic System for Travel 007–0–15; Recovery Inventory Survey, Survey, FEMA Form 007–0–4; Disability Authorization FEMA Form 007–0–16; Return Home Access and Functional Needs Survey, FEMA Form 007–0–17; and Site Representative Survey, FEMA Form AGENCY: U.S. Customs and Border Recertification Survey, FEMA Form 007–0–8 (This form was named ‘Special Protection (CBP), Department of 007–0–18. Needs Representative Survey’ in the 60- Homeland Security (DHS). ACTION: 60-Day Notice and request for SUMMARY: The Federal Emergency day Federal Register Notice at 75 FR comments; Extension of an existing Management Agency (FEMA) has 40847, July 14, 2010.); Disaster Recovery collection of information: 1651–0111. submitted the information collection Center Survey, FEMA Form 007–0–7; Communication and Process Survey, abstracted below to the Office of SUMMARY: As part of its continuing effort FEMA Form 007–0–9; Contact Survey, Management and Budget for review and to reduce paperwork and respondent FEMA Form 007–0–10; Correspondence clearance in accordance with the burden, CBP invites the general public and Process Survey, FEMA Form 007– requirements of the Paperwork and other Federal agencies to comment 0–11; E–Communications Survey, Reduction Act of 1995. The submission on an information collection FEMA Form 007–0–12; Evacuations describes the nature of the information requirement concerning the CBP Form Survey, FEMA Form 007–0–13; Follow- collection, the categories of I–94 (Arrival/Departure Record), CBP Up Program Effectiveness and Recovery respondents, the estimated burden (i.e., Form I–94W (Nonimmigrant Visa Survey, FEMA Form 007–0–14; Rapid the time, effort and resources used by Waiver Arrival/Departure), and the Temporary Repair Survey, FEMA Form respondents to respond) and cost, and Electronic System for Travel 007–0–15; Recovery Inventory Survey, the actual data collection instruments Authorization (ESTA). This request for FEMA Form 007–0–16; Return Home FEMA will use. comment is being made pursuant to the Survey, FEMA Form 007–0–17; and Site DATES: Comments must be submitted on Paperwork Reduction Act of 1995 (Pub. Recertification Survey, FEMA Form or before October 28, 2010. L. 104–13; 44 U.S.C. 3505(c)(2)). 007–0–18. ADDRESSES: Submit written comments Abstract: Federal agencies are DATES: Written comments should be on the proposed information collection required to survey their customers to received on or before November 29, to the Office of Information and determine the kind and quality of 2010, to be assured of consideration. Regulatory Affairs, Office of services customers want and their level ADDRESSES: Direct all written comments Management and Budget. Comments of satisfaction with existing services. to U.S. Customs and Border Protection, should be addressed to the Desk Officer FEMA Managers use the survey results Attn: Tracey Denning, Regulations and for the Department of Homeland to measure program performance against Rulings, Office of International Trade, Security, Federal Emergency standards for performance and customer 799 9th Street, NW., 5th Floor, Management Agency, and sent via service; measure achievement of the Washington, DC. 20229–1177. electronic mail to Government Performance and Results FOR FURTHER INFORMATION CONTACT: [email protected] or faxed Act (GPRA) and strategic planning Requests for additional information to (202) 395–5806. objectives; and generally gauge and should be directed to Tracey Denning, FOR FURTHER INFORMATION CONTACT: make improvements to disaster services U.S. Customs and Border Protection, Requests for additional information or that increase customer satisfaction and Regulations and Rulings, Office of copies of the information collection program effectiveness. International Trade, 799 9th Street, should be made to Director, Records Affected Public: Individuals and NW., 5th Floor, Washington, DC. Management Division, 1800 South Bell Households. 20229–1177, at 202–325–0265.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00055 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59734 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

SUPPLEMENTARY INFORMATION: CBP http://www.cbp.gov/xp/cgov/travel/ Management and Budget (OMB) for invites the general public and other id_visa/business_pleasure/vwp/ review, as required by the Paperwork Federal agencies to comment on i94_samples.xml. Reduction Act. The Department is proposed and/or continuing information Current Actions: This submission is soliciting public comments on the collections pursuant to the Paperwork being made to extend the expiration subject proposal. Reduction Act of 1995 (Pub. L. 104–13; date with no change to the burden This information is collected to 44 U.S.C. 3505(c)(2)). The comments hours. indicate to the mortgagee amounts should address: (a) Whether the Type of Review: Extension (without approved for advance and mortgage collection of information is necessary change). insurance. for the proper performance of the Affected Public: Individuals, Carriers, DATES: Comments Due Date: October 28, functions of the agency, including and the Travel and Tourism Industry. 2010. whether the information shall have I–94 (Arrival and Departure Record): ADDRESSES: Interested persons are practical utility; (b) the accuracy of the Estimated Number of Respondents: invited to submit comments regarding agency’s estimates of the burden of the 14,000,000. this proposal. Comments should refer to collection of information; (c) ways to Estimated Number of Total Annual the proposal by name and/or OMB enhance the quality, utility, and clarity Responses: 14,000,000. approval Number (2503–0033) and of the information to be collected; (d) Estimated Time per Response: 8 should be sent to: HUD Desk Officer, ways to minimize the burden including minutes. Office of Management and Budget, New the use of automated collection Estimated Total Annual Burden Executive Office Building, Washington, techniques or the use of other forms of Hours: 1,862,000. DC 20503; fax: 202–395–5806. E-mail: information technology; and (e) the Estimated Total Annualized Cost on [email protected]. annual costs burden to respondents or the Public: $84,000,000. record keepers from the collection of I–94W (Nonimmigrant Visa Waiver FOR FURTHER INFORMATION CONTACT: information (a total capital/startup costs Arrival/Departure): Colette Pollard., Reports Management and operations and maintenance costs). Estimated Number of Respondents: Officer, QDAM, Department of Housing The comments that are submitted will 100,000. and Urban Development, 451 Seventh be summarized and included in the CBP Estimated Number of Total Annual Street, SW, Washington, DC 20410; e- request for Office of Management and Responses: 100,000. mail Colette Pollard at Budget (OMB) approval. All comments Estimated Time per Response: 8 [email protected] or telephone will become a matter of public record. minutes. (202) 402–3400. This is not a toll-free In this document CBP is soliciting Estimated Total Annual Burden number. Copies of available documents comments concerning the following Hours: 13,300. submitted to OMB may be obtained information collection: Estimated Total Annualized Cost on from Ms. Pollard. Title: Arrival and Departure Record, the Public: $600,000. SUPPLEMENTARY INFORMATION: This Nonimmigrant Visa Waiver Arrival/ Electronic System for Travel notice informs the public that the Departure, and Electronic System for Authorization (ESTA): Department of Housing and Urban Travel Authorization (ESTA). Estimated Number of Respondents: Development has submitted to OMB a OMB Number: 1651–0111. 18,900,000. request for approval of the Information Form Numbers: I–94 and I–94W. Estimated Number of Total Annual collection described below. This notice Abstract: CBP Form I–94 (Arrival/ Responses: 18,900,000. is soliciting comments from members of Departure Record) and CBP Form I–94W Estimated Time per Response: 15 the public and affecting agencies (Nonimmigrant Visa Waiver Arrival/ minutes. concerning the proposed collection of Departure Record) are used to document Estimated Total Annual Burden information to: (1) Evaluate whether the a traveler’s admission into the United Hours: 4,725,000. proposed collection of information is States. These forms are filled out by necessary for the proper performance of Dated: September 22, 2010. aliens and are used to collect the functions of the agency, including information on citizenship, residency, Tracey Denning, whether the information will have and contact information. The data Agency Clearance Officer, U.S. Customs and practical utility; (2) Evaluate the elements collected on these forms Border Protection. accuracy of the agency’s estimate of the enable the DHS to perform its mission [FR Doc. 2010–24270 Filed 9–27–10; 8:45 am] burden of the proposed collection of related to the screening of alien visitors BILLING CODE 9111–14–P information; (3) Enhance the quality, for potential risks to national security, utility, and clarity of the information to and the determination of admissibility be collected; and (4) Minimize the to the United States. The Electronic DEPARTMENT OF HOUSING AND burden of the collection of information System for Travel Authorization (ESTA) URBAN DEVELOPMENT on those who are to respond; including applies to aliens traveling to the United [Docket No. FR–5376–N–95] through the use of appropriate States under the Visa Waiver Program automated collection techniques or (VWP) and requires that VWP travelers Notice of Submission of Proposed other forms of information technology, provide information electronically to Information Collection to OMB e.g., permitting electronic submission of CBP before embarking on travel to the Application for Insurance of Advance responses. United States. of Mortgage Proceeds This notice also lists the following ESTA can be accessed at http:// information: www.cbp.gov/xp/cgov/travel/id_visa/ AGENCY: Office of the Chief Information Title of Proposal: Application for esta/. Officer, HUD. Insurance of Advance of Mortgage Instructions and samples of CBP ACTION: Notice. Proceeds. Forms I–94 and I–94W can be viewed at OMB Approval Number: 2502–0097. http://www.cbp.gov/xp/cgov/travel/ SUMMARY: The proposed information Form Numbers: HUD–92403. id_visa/i-94_instructions/ collection requirement described below Description of the Need For the filling_out_i94.xml and has been submitted to the Office of Information and its Proposed Use: This

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00056 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59735

information is collected to indicate to Frequency of Submission: On the mortgagee amounts approved for Occasion. advance and mortgage insurance.

Number of Annual × Hours per respondents responses response = Burden hours

Reporting Burden ...... 458 13,740 2.0 27,480

Total Estimated Burden Hours: administer and enforce Federal labor concerning the proposed collection of 27,480. standards provisions, especially to information to: (1) Evaluate whether the Status: Extension of a currently monitor contractor compliance and to proposed collection of information is approved collection. act upon allegations of labor standards necessary for the proper performance of Authority: Section 3507 of the Paperwork violations. the functions of the agency, including Reduction Act of 1995, 44 U.S.C. 35, as DATES: Comments Due Date: October 28, whether the information will have amended. 2010. practical utility; (2) Evaluate the accuracy of the agency’s estimate of the Dated: September 22, 2010. ADDRESSES: Interested persons are burden of the proposed collection of Leroy McKinney, Jr., invited to submit comments regarding information; (3) Enhance the quality, this proposal. Comments should refer to Departmental Reports Management Officer, utility, and clarity of the information to Office of the Chief Information Officer. the proposal by name and/or OMB be collected; and (4) Minimize the approval Number (2503–0033) and [FR Doc. 2010–24197 Filed 9–27–10; 8:45 am] burden of the collection of information should be sent to: HUD Desk Officer, BILLING CODE 4210–67–P on those who are to respond; including Office of Management and Budget, New through the use of appropriate Executive Office Building, Washington, automated collection techniques or DEPARTMENT OF HOUSING AND DC 20503; fax: 202–395–5806. E-mail: other forms of information technology, URBAN DEVELOPMENT [email protected]. e.g., permitting electronic submission of [Docket No. FR–5376–N–96] FOR FURTHER INFORMATION CONTACT: responses. Colette Pollard, Reports Management This notice also lists the following Notice of Submission of Proposed Officer, QDAM, Department of Housing information: Information Collection to OMB; Record and Urban Development, 451 Seventh Title of Proposal: Record of Employee of Employee Interview Street, SW., Washington, DC 20410; Interview. AGENCY: Office of the Chief Information e-mail Colette Pollard at OMB Approval Number: 2501–0009. Officer, HUD. [email protected] or telephone Form Numbers: HUD–11, HUD–11–SP (202) 402–3400. This is not a toll-free ACTION: Notice. (Spanish). number. Copies of available documents Description of the Need for the SUMMARY: The proposed information submitted to OMB may be obtained Information and Its Proposed Use: This collection requirement described below from Ms. Pollard. information is collected and used by has been submitted to the Office of SUPPLEMENTARY INFORMATION: This HUD to fulfill its obligation to Management and Budget (OMB) for notice informs the public that the administer and enforce Federal labor review, as required by the Paperwork Department of Housing and Urban standards provisions, especially to Reduction Act. The Department is Development has submitted to OMB a monitor contractor compliance and to soliciting public comments on the request for approval of the Information act upon allegations of labor standards subject proposal. collection described below. This notice violations. This information is collected and is soliciting comments from members of Frequency of Submission: On used by HUD to fulfill its obligation to the public and affecting agencies Occasion.

Number of Annual × Hours per respondents responses response = Burden hours

Reporting Burden ...... 20,000 20,000 .41 8,200

Total Estimated Burden Hours: 8,200. DEPARTMENT OF HOUSING AND Privacy Act of 1974 (5 U.S.C. 552a), Status: Extension of a currently URBAN DEVELOPMENT SORN. The proposed new system of approved collection. [FR–5386–N–09] record is the Rapid Re-Housing for Homeless Families Data (RRHFD) Files. Authority: Section 3507 of the Paperwork Privacy Act of 1974; Notification of a The records system will be used by Reduction Act of 1995, 44 U.S.C. 35, as New Privacy Act System of Records, HUD’s Office of Policy Development amended. Rapid Re-Housing for Homeless and Research (PD&R) to evaluate the Dated: September 22, 2010. Families Data Files effectiveness of the RRHFD Program, Leroy McKinney, Jr., which is a demonstration program that AGENCY: Office of the Chief Information was authorized by Congress in the Departmental Reports Management Officer, Officer. Office of the Chief Information Officer. Consolidated Appropriations Act, 2008 ACTION: Notification of a new SORN. [FR Doc. 2010–24205 Filed 9–27–10; 8:45 am] (Pub. L. 110–161). Refer to the BILLING CODE 4210–67–P SUMMARY: Housing Urban Development ‘‘Objective’’ caption to obtain detailed (HUD) proposes to establish a new

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00057 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59736 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

information about the purpose of this CATEGORIES OF RECORDS IN THE SYSTEM: ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES OF USERS AND study. Name; Social Security Number; study Comments Due Date: October 28, THE PURPOSES OF SUCH USES: identifier; birth date; contact 2010. • Authorized Abt/SRBI staff will use information (home address, telephone ADDRESSES: Interested persons are the data files in the Web-based study numbers, e-mail address); demographic contact database to track study invited to submit comments regarding characteristics of the family head (e.g., this notice to the Rules Docket Clerk, participants and locate participants for race/ethnicity, gender, marital status); 12-month follow-up interviews. Staff Office of General Counsel, Department number of children and other adults in of Housing and Urban Development, will use the data files to match with the household (a roster of adults and other datasets for tracking purposes, 451 Seventh Street, SW., Room 10276, children with the family head at Washington, DC 20410–0500. such as change of address and credit baseline and spouse/partner and Communications should refer to the bureau databases. children not with the family head at • above docket number and title. A copy A limited number of authorized Abt of each communication submitted will baseline, and characteristics of these researchers will access personally be available for public inspection and family members); income sources and identifying information to link data copying between 8 a.m. and 5 p.m. total family income; employment and from one phase of data collection to weekdays at the above address. earnings for the family head; current another or to match primary study data housing conditions, rent and rental with other datasets for data collection FOR FURTHER INFORMATION CONTACT: purposes (e.g., matching records from Donna Robinson-Staton, Departmental assistance received; housing history primary data collection with local Privacy Act Officer, 451 Seventh Street, since program completion; barriers to Homeless management Information SW., Room 2256, Washington, DC housing; homeless program participation; contact information for Systems (HMIS) administrative data). 20410, Telephone Number (202) 402– • 8047. (This is not a toll-free number.) A landlord, family and friends; and study Authorized Abt researchers will telecommunication device for hearing- tracking information. also use the data for statistical analysis and speech-impaired individuals (TTY) and to develop findings for this research AUTHORITY FOR MAINTENANCE OF THE SYSTEM: study. is available at (800) 877–8339 (Federal • Information Relay Service). Authorized Abt researchers may use Sec. 501, 502, Housing and Urban the data to create a public use file of SUPPLEMENTARY INFORMATION: Pursuant Development Act of 1970 (Pub. L. 91– non-identifiable data for disclosure to to the Privacy Act of 1974 (5 U.S.C. 609), 12 U.S.C. 1701z–1, 1701z–2. authorized researchers for other 552a), as amended notice is given that purposes. HUD proposes to establish a new SORN PURPOSE: • If the Department suspects or has as identified as RRHFD. Title 5 U.S.C. 552a(e)(4) and (11) The FY 2008 budget for the U.S. confirmed that the security or provide that the public be afforded a 30- Department of Housing and Urban confidentiality of information in the day period in which to comment on the Development (H.R. 2764) included a $25 system of records has been new system of records. million set-aside to implement a Rapid compromised; or if the Department has The new system report was submitted Re-housing for Families Demonstration determined that as a result of the to the Office of Management and Budget Program ‘‘expressly for the purposes of suspected or confirmed compromise (OMB), the Senate Committee on providing housing and services to there is a risk of harm to economic or Governmental Affairs, and the House homeless families.’’ Also included in the property interests, identity theft or Committee on Government Reform legislation was a requirement that there fraud, or harm to the security or pursuant to paragraph 4c of Appendix 1 be an evaluation of the demonstration integrity of this system or other systems to OMB Circular No. A–130, ‘‘Federal program ‘‘in order to evaluate the or programs (whether maintained by the Responsibilities for Maintaining effectiveness of the rapid re-housing HUD or another agency or entity) that Records About Individuals,’’ July 25, approach in addressing the needs of rely upon the compromised 1994 (59 FR 37914). homeless families.’’ The underlying information; then the disclosure made to such agencies, entities, and persons is presumption of the rapid re-housing Authority: 5 U.S.C. 552a 88 Stat. 1896; 42 reasonably necessary to assist in program posits that providers, through U.S.C. 3535(d). connection with the HUD’s efforts to the use of an assessment tool they have Dated: September 22, 2010. respond to the suspected or confirmed developed for the program, will be able Jerry E. Williams, compromise and prevent, minimize, or to predict with considerable confidence Chief Information Officer. remedy such harm. which homeless families, with a Each data user’s permissions will be SYSTEM NAME: minimum amount of housing and defined based on the user’s role on the Rapid Re-Housing for Homeless supportive services, will be able to project. For example, the local site Families Data Files. achieve housing stability and self- interviewer will be able to review data sufficiency at the conclusion of the SYSTEM LOCATION: for study participants only for his or her program. In order to measure the own specific site. Study data will be Rapid Re-Housing for Homeless efficacy of the program, HUD will seek Families Data Files are to be located at aggregated or de-identified at the to enroll approximately 1,200 highest level possible for each required, Abt Associates Inc., 55 Wheeler Street, participating families into the outcomes Cambridge, MA; Abt Associates Inc., authorized use. evaluation. A follow-up survey will be Abt Associates will not use or 4550 Montgomery Avenue, Bethesda, administered to each participating MD; and the AT&T Datacenter, 15 disclose the data for any purposes other family 12 months after completion of Enterprise Ave., Secaucus, NJ 07094. than for the ‘‘The Evaluation of the the program. The survey will collect Rapid Re-Housing for Families CATEGORIES OF INDIVIDUALS COVERED BY THE data related to housing stability; self- Demonstration Program.’’ Abt Associates SYSTEM: sufficiency; employment and earnings; will not disclose the data to additional Families enrolled in RRHFD. family well-being; and health. parties without the written authority of

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00058 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59737

the providing organization, except program staff person will record the randomly generated at the time of where required by law. participant’s contact information in the random assignment and will be secure, Web-based study contact unrelated to personal information such POLICIES AND PRACTICES FOR STORING, database. After the contact information as SSN, DOB, or name. The study RETRIEVING, ACCESSING, RETAINING, AND DISPOSING OF RECORDS IN THE SYSTEM: is recorded, the hard copy form will be identifier can be linked to the personal placed within a sealed envelope and identifying information but only by a SAFEGUARDS: stored temporarily in a locked cabinet in small number of central research staff at The following safeguards shall be a secure physical location within the Abt Associates. used to secure data in storage, retrieval, RRHD program’s administrative office. during access, and disposal. (If the contact information cannot be RETENTION AND DISPOSAL: • All personal data (identifiable and immediately recorded in the database, PII will be maintained only as long as de-identified data analyses files) will be the RRHD program staff will store the required and only under conditions encrypted and maintained on a secure signed form in the designated locked specified in the study protocol. Upon workstation or server that is protected cabinet until the staff person is able to completion of all research for The by a firewall, complex passwords, and record the data. Alternatively, the Evaluation of the Rapid Re-Housing for multi-authentication factors, in a program can submit the signed form to Families Demonstration Program, Abt directory that can only be accessed by the Abt Director of Analysis, and Abt Associates will permanently destroy all the network administrators and the research staff can enter the contact electronic personally-identifiable analysts actively working on the data. information into the study contact information on the working server using • Data on the secure server will be database.) one of the methods described by the encrypted using an industry standard Tracking documentation. The site NIST SP 800–88 ‘‘Guidelines for Media algorithm incorporating at least 128-bit interviewer will store any tracking Sanitization’’ (September 2006). encryption. The decryption key will letters, appointment schedules, or other Encrypted versions of the data may only be known to analysts actively documentation with personal protected remain on backup media for a longer working with the data. information, such as name, in a locked period of time, but will be similarly • Separate data files will be cabinet that can only be accessed by the permanently destroyed. maintained for each questionnaire and interviewer. Tracking documentation At the end of the contract, records for identifying information. Data files with personal protected information that do not need to be retained will be used for analysis will be stored in a should not be generated until needed in shredded and the remainder of the files separate location from files with the tracking process to limit risk of will be shredded after the three-year identifying information to minimize the unauthorized disclosures. Site retention period required in the risk that an unauthorized user could use interviewers should use study IDs in contract. The retention and disposal the unique identification number to link lieu of personal protected information procedures are in keeping with HUD’s de-identified files with the identifiers. on tracking documentation whenever records management policies as The unique identification number will feasible to limit risk of unauthorized described in 44 USC 3101 and 44 USC be protected through multi-mode disclosures. 3303. authentication, in addition to All hard copy forms with personal SYSTEM MANAGER(S) AND ADDRESS: encryption technologies. identifying data (the participant • Carol Star, Director of the Program Access rights to the data are granted agreement/informed consent form) will Evaluation Division, Office of Policy to limited researchers on a need-to- be stored securely in a locked cabinet Development and Research, Department know basis, and the level of access that can only be accessed by authorized of Housing and Urban Development, provided to each researcher is based on individuals working on the data. The 451 Seventh Street SW., Washington, the minimal level required by that locked cabinet will be stored in a locked DC 20410, Telephone Number (202) individual to fulfill his research role. office in a limited access building. • Abt Associates will backup the data Hard copy forms that are no longer 402–6139. on a regular basis to safeguard against needed for the study will be shredded. NOTIFICATION PROCEDURE: system failures or disasters. Only If site interviewers do not have access For information, assistance, or inquiry encrypted versions of the data will be to a paper shredder, they will submit about existence or records, contact copied to the backup media. the paperwork to the Abt Director of Donna Robinson-Stanton, Departmental Unencrypted data will never be stored Analysis via FedEx with clear Privacy Act Officer, Department of on a laptop or on a movable media such instructions to destroy the documents Housing and Urban Development, 451 as CDs, diskettes, or USB flash drives. upon receipt. Seventh Street SW., Washington, DC, in • If an authorized researcher leaves accordance with the procedures in 24 employment or is no longer working on RETRIEVING: CFR part 16. this project, their user ID and access The contact database will include will be terminated within one day, as personal identifiers that can be used to RECORD ACCESS PROCEDURES: will VPN access. These steps will be locate records to update families’ The Department’s rules for providing documented as part of termination whereabouts during the tracking period. access to records to the individual process. Records within the contact database can concerned appear in 24 CFR part 16. If • The site interviewers will securely be retrieved by name, social security additional information or assistance is store any hard copy documents with number, study identification number, required, contact the Privacy Act Officer personal protected information, such as birthdate, or spouse name. at the appropriate location. signed consent forms, tracking letters, or After data collection is complete, interview appointment schedules. researchers will use a dataset that is CONTESTING RECORD PROCEDURES: Consent Forms. The participation stripped of identifying information for The Department’s rules for contesting agreement/informed consent and all analyses, with the exception of a the contents of records and appealing contact information form will be a paper unique study identification number initial denials, by the individual form. After the family signs the assigned to each participating family. concerned, appear in 24 CFR part 16. If informed consent form, the RRHD The study identification number will be additional information or assistance is

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00059 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59738 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

needed, it may be obtained by contacting Stephanie McPhee at: (303) considered exempt from the application contacting: 445–2897. of the acreage limitation provisions (i) In relation to contesting contents of FOR FURTHER INFORMATION CONTACT: provided the public entity meets certain records, the Departmental Privacy Act, Stephanie McPhee at: (303) 445–2897. criteria pertaining to the revenue Department of Housing and Urban SUPPLEMENTARY INFORMATION: generated through the entity’s farming Development, 451 Seventh Street SW., Title: Forms to Determine Compliance activities (43 CFR 426.10 and the Act of Room 2256, Washington, DC 20410; by Certain Landholders, 43 CFR part July 7, 1970, Pub. L. 91–310). We are (ii) In relation to appeals of initial 426. required to ascertain whether or not denials, the HUD Departmental Privacy Abstract: Identification of limited public entities that receive Reclamation Appeals Officers, Office of General recipients—Some entities that receive irrigation water meet such revenue Counsel, Department of Housing and Reclamation irrigation water may criteria regardless of how much land the Urban Development, 451 Seventh Street believe that they are under the RRA public entities hold (directly or SW., Washington, DC 20410. forms submittal threshold and, indirectly own or lease) [43 CFR 426.10(a)]. In order to minimize the RECORD SOURCE CATEGORIES: consequently, may not submit the burden on public entities, standard RRA Original data collected directly from appropriate RRA form(s). However, some of these entities may in fact have forms are submitted by a public entity participating families, third party data only when the public entity holds more for tracking purposes (e.g., National a different RRA forms submittal threshold than what they believe it to be than 40 acres subject to the acreage Change of Address database, credit limitation provisions westwide, which bureaus), and administrative data on due to the number of natural persons benefiting from each entity and the makes it difficult to apply the revenue Homeless Management Information criteria as required to those public Systems. location of the land held by each entity. In addition, some entities that are entities that hold less than 40 acres. EXEMPTION FROM CERTAIN PROVISIONS OF THE exempt from the requirement to submit When we become aware of such public ACT: RRA forms due to the size of their entities, we request those public entities None. landholdings (directly and indirectly complete and submit for our review the Public Entity Information Sheet (Form [FR Doc. 2010–24346 Filed 9–27–10; 8:45 am] owned and leased land) may in fact be 7–2565), which allows us to establish BILLING CODE 4210–67–P receiving Reclamation irrigation water for which the full-cost rate must be paid compliance with Federal reclamation because the start of Reclamation law for those public entities that hold 40 acres or less and, thus, do not submit a DEPARTMENT OF THE INTERIOR irrigation water deliveries occurred after October 1, 1981 [43 CFR 426.6(b)(2)]. standard RRA form because they are Bureau of Reclamation The information obtained through below the RRA forms submittal completion of the Limited Recipient threshold. In addition, for those public Agency Information Collection Identification Sheet (Form 7–2536) entities that do not meet the exemption Activities; Proposed Revisions to a allows us to establish entities’ criteria, we must determine the proper Currently Approved Information compliance with Federal reclamation rate to charge for Reclamation irrigation Collection; Comment Request law. The Limited Recipient water deliveries. The Public Entity Identification Sheet is disbursed at our Information Sheet is disbursed at our AGENCY: Bureau of Reclamation, discretion. There are no proposed discretion. There are no proposed Interior. revisions to the Limited Recipient revisions to the Public Entity ACTION: Notice of renewal of a currently Identification Sheet. Information Sheet. approved collection (OMB No. 1006– Trust review—In order to administer Acreage limitation provisions 0023). section 214 of the RRA and 43 CFR applicable to religious or charitable 426.7, we are required to review and organizations—Some religious or SUMMARY: In accordance with the charitable organizations that receive Paperwork Reduction Act of 1995 (44 approve all trusts. Land held in trust Reclamation irrigation water may U.S.C. 3501 et seq.), the Bureau of generally will be attributed to the believe that they are under the RRA Reclamation (we, our, or us) intends to beneficiaries of the trust rather than the forms submittal threshold and, submit a request for renewal (with trustee if the criteria specified in the consequently, may not submit the revisions) of an existing approved RRA and 43 CFR 426.7 are met. When appropriate RRA form(s). However, information collection to the Office of we become aware of trusts with a some of these organizations may in fact Management and Budget (OMB): Forms relatively small landholding (40 acres or have a different RRA forms submittal to Determine Compliance by Certain less), we may extend to those trusts the threshold than what they believe it to be Landholders, 43 CFR part 426, OMB option to complete and submit for our depending on whether these Control Number: 1006–0023. We request review the Trust Information Sheet organizations meet all of the required your comments on the proposed (Form 7–2537) instead of actual trust criteria for full special application of the Reclamation Reform Act of 1982 (RRA) documents. If we find nothing on the acreage limitations provisions to forms and specific aspects of the completed Trust Information Sheet that religious or charitable organizations [43 information collection. would warrant the further investigation of a particular trust, that trustee will not CFR 426.9(b)]. In addition, some DATES: Your written comments must be be burdened with submitting trust organizations that (1) do not meet the received on or before November 29, documents to us for in-depth review. criteria to be treated as a religious or 2010. The Trust Information Sheet is charitable organization under the ADDRESSES: You may send written disbursed at our discretion. There are no acreage limitation provisions, and (2) comments to the Bureau of Reclamation, proposed revisions to the Trust are exempt from the requirement to Attention: 84–53000, PO Box 25007, Information Sheet. submit RRA forms due to the size of Denver, CO 80225–0007. You may Acreage limitation provisions their landholdings (directly and request copies of the proposed forms by applicable to public entities—Land indirectly owned and leased land), may writing to the above address or by farmed by a public entity can be in fact be receiving Reclamation

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00060 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59739

irrigation water for which the full-cost disbursed at our discretion. There are no Reclamation that are subject to the rate must be paid because the start of proposed revisions to the Religious or acreage limitation provisions of Federal Reclamation irrigation water deliveries Charitable Organization Sheet. reclamation law. occurred after October 1, 1981 [43 CFR Frequency: Generally, these forms Estimated Total Number of 426.6(b)(2)]. The Religious or Charitable will be submitted only once per Respondents: 500. identified entity, trust, public entity, or Organization Identification Sheet (Form Estimated Number of Responses per religious or charitable organization. 7–2578) allows us to establish certain Respondent: 1.0. Each year, we expect new responses in religious or charitable organizations’ Estimated Total Number of Annual compliance with Federal reclamation accordance with the following numbers. Respondents: Entity landholders, Responses: 500. law. The Religious or Charitable trusts, public entities, and religious or Estimated Total Annual Burden on Organization Identification Sheet is charitable organizations identified by Respondents: 72 hours.

Burden Annual burden estimate Number of Annual on Form Number per form respondents number of respondents (in minutes) responses (in hours)

Limited Recipient Identification Sheet ...... 5 175 175 15 Trust Information Sheet ...... 5 150 150 13 Public Entity Information Sheet ...... 15 100 100 25 Religious or Charitable Identification Sheet ...... 15 75 75 19

Totals ...... 500 500 72

Comments DEPARTMENT OF THE INTERIOR Title: Certification Summary Form, Reporting Summary Form for Acreage Comments are invited on: Bureau of Reclamation Limitation, 43 CFR part 426 and 43 CFR (a) Whether the proposed collection of part 428. Agency Information Collection; information is necessary for the proper Abstract: This information collection Proposed Revisions to a Currently performance of our functions, including is required under the Reclamation Approved Information Collection; whether the information will have Reform Act of 1982 (RRA), Acreage Comment Request practical use; Limitation Rules and Regulations, 43 (b) Accuracy of our burden estimate AGENCY: Bureau of Reclamation, CFR part 426, and Information for the proposed collection of Interior. Requirements for Certain Farm information; ACTION: Notice of renewal of a currently Operations In Excess of 960 Acres and (c) Ways to enhance the quality, approved collection (OMB No. 1006– the Eligibility of Certain Formerly usefulness, and clarity of the 0006). Excess Land, 43 CFR part 428. The information to be collected; and forms in this information collection are SUMMARY: In accordance with the (d) Ways to minimize the burden of to be used by district offices to Paperwork Reduction Act of 1995 (44 the collection of information on summarize individual landholder U.S.C. 3501 et seq.), the Bureau of respondents, including the use of (direct or indirect landowner or lessee) Reclamation (we, our, or us) intends to automated collection techniques or and farm operator certification and submit a request for renewal (with other forms of information technology. reporting forms as required by the RRA, revisions) of an existing approved 43 CFR part 426, and 43 CFR part 428. We will summarize all comments information collection to the Office of This information allows us to establish received regarding this notice. We will Management and Budget (OMB): water user compliance with Federal publish that summary in the Federal Certification Summary Form, Reporting reclamation law. Register when the information Summary Form for Acreage Limitation, Changes to the RRA forms and the collection request is submitted to OMB 43 CFR part 426 and 43 CFR part 428, instructions to those forms. for review and approval. OMB Control Number: 1006–0006. We The changes made to the current Before including your address, request your comments on the revised Form 7–21SUMM–C, Form 7– telephone number, e-mail address, or RRA forms and specific aspects of the 21SUMM–R, and the corresponding other personal identifying information information collection. instructions are editorial in nature and in your comment, you should be aware DATES: Your written comments must be are designed to assist the respondents that your entire comment—including received on or before November 29, by increasing their understanding of the your personal identifying information— 2010. forms, and clarifying the instructions for may be made publicly available at any ADDRESSES: You may send written use when completing the forms. The time. While you can ask us in your comments to the Bureau of Reclamation, proposed revisions to the RRA forms comment to withhold your personal Attention: 84–53000, P.O. Box 25007, will be effective in the 2012 water year. identifying information from public Denver, CO 80225–0007. You may Frequency: Annually. review, we cannot guarantee that we request copies of the proposed revised Respondents: Contracting entities that will be able to do so. forms by writing to the above address or are subject to the acreage limitation Roseann Gonzales, by contacting Stephanie McPhee at: provisions of Federal reclamation law. Director, Policy and Administration Denver (303) 445–2897. Estimated Total Number of Office. FOR FURTHER INFORMATION CONTACT: Respondents: 210. [FR Doc. 2010–24262 Filed 9–27–10; 8:45 am] Stephanie McPhee at: (303) 445–2897. Estimated Number of Responses per BILLING CODE 4310–MN–P SUPPLEMENTARY INFORMATION: Respondent: 1.25.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00061 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59740 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

Estimated Total Number of Annual Estimated Total Annual Burden on Responses: 263. Respondents: 10,520 hours.

ESTIMATE OF BURDEN FOR EACH FORM

Burden Annual estimate Number of Annual burden on Form Number per form respondents number of respondents (in hours) responses (in hours)

7–21SUMM–C and associated tabulation sheets ...... 40 198 248 9,920 7–21SUMM–R and associated tabulation sheets ...... 40 12 15 600

Totals ...... 210 263 10,520

Comments ACTION: Notice of renewal of a currently Federal reclamation law. The forms in Comments are invited on: approved collection (OMB No. 1006– this information collection are (a) Whether the proposed collection of 0005). submitted to districts that use the information is necessary for the proper information to establish each SUMMARY: In accordance with the landholder’s status with respect to performance of our functions, including Paperwork Reduction Act of 1995 (44 whether the information will have landownership limitations, full-cost U.S.C. 3501 et seq.), the Bureau of pricing thresholds, lease requirements, practical use; Reclamation (we, our, or us) intends to (b) Accuracy of our burden estimate and other provisions of Federal submit a request for renewal (with for the proposed collection of reclamation law. In addition, forms are revisions) of an existing approved information; submitted by certain farm operators to (c) Ways to enhance the quality, information collection to the Office of provide information concerning the usefulness, and clarity of the Management and Budget (OMB): services they provide and the nature of information to be collected; and Individual Landholder’s and Farm their farm operating arrangements. All (d) Ways to minimize the burden of Operator’s Certification and Reporting landholders whose entire westwide the collection of information on Forms for Acreage Limitation, 43 CFR landholdings total 40 acres or less are respondents, including the use of part 426 and 43 CFR part 428, OMB exempt from the requirement to submit automated collection techniques or Control Number: 1006–0005. We request RRA forms. Landholders who are other forms of information technology. your comments on the revised RRA ‘‘qualified recipients’’ have RRA forms We will summarize all comments forms and specific aspects of the submittal thresholds of 80 acres or 240 received regarding this notice. We will information collection. acres depending on the district’s RRA publish that summary in the Federal DATES: Your written comments must be forms submittal threshold category Register when the information received on or before November 29, where the land is held. Only farm collection request is submitted to OMB 2010. operators who provide multiple services for review and approval. ADDRESSES: You may send written to more than 960 acres held in trusts or Before including your address, comments to the Bureau of Reclamation, by legal entities are required to submit telephone number, e-mail address, or Attention: 84–53000, P.O. Box 25007, forms. other personal identifying information Denver, CO 80225–0007. You may in your comment, you should be aware Changes to the RRA Forms and the request copies of the proposed revised Instructions to Those Forms that your entire comment—including forms by writing to the above address or your personal identifying information— by contacting Stephanie McPhee at: The changes made to the currently may be made publicly available at any (303) 445–2897. approved RRA forms and the time. While you can ask us in your corresponding instructions are editorial FOR FURTHER INFORMATION CONTACT: comment to withhold your personal in nature and are designed to assist the Stephanie McPhee at: (303) 445–2897. identifying information from public respondents by increasing their review, we cannot guarantee that we SUPPLEMENTARY INFORMATION: Title: understanding of the forms, clarifying will be able to do so. Individual Landholder’s and Farm the instructions for use when Operator’s Certification and Reporting completing the forms, and clarifying the Roseann Gonzales, Forms for Acreage Limitation, 43 CFR information that is required to be Director, Policy and Administration, Denver part 426 and 43 CFR part 428. submitted to the districts with the Office. Abstract: This information collection forms. The proposed revisions to the [FR Doc. 2010–24264 Filed 9–27–10; 8:45 am] is required under the Reclamation RRA forms will be effective in the 2012 BILLING CODE 4310–MN–P Reform Act of 1982 (RRA), Acreage water year. Limitation Rules and Regulations, 43 Frequency: Annually. CFR part 426, and Information Respondents: Landholders and farm DEPARTMENT OF THE INTERIOR Requirements for Certain Farm operators of certain lands in our Operations In Excess of 960 Acres and Bureau of Reclamation projects, whose landholdings exceed the Eligibility of Certain Formerly specified RRA forms submittal Agency Information Collection; Excess Land, 43 CFR part 428. This thresholds. Proposed Revisions to a Currently information collection requires certain Estimated Total Number of Approved Information Collection; landholders (direct or indirect Respondents: 15,279. Comment Request landowners or lessees) and farm Estimated Number of Responses per operators to complete forms Respondent: 1.02. AGENCY: Bureau of Reclamation, demonstrating their compliance with Estimated Total Number of Annual Interior. the acreage limitation provisions of Responses: 15,585.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00062 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59741

Estimated Total Annual Burden on Estimate of Burden for Each Form: Respondents: 11,522 hours.

Annual Burden esti- Number of Annual burden on Form No. mate per form respondents number of respondents (in minutes) responses (in hours)

Form 7–2180...... 60 4,124 4,206 4,206 Form 7–2180EZ ...... 45 425 434 326 Form 7–2181...... 78 1,205 1,229 1,598 Form 7–2184 ...... 45 32 33 25 Form 7–2190...... 60 1,620 1,652 1,652 Form 7–2190EZ ...... 45 96 98 74 Form 7–2191 ...... 78 777 793 1,031 Form 7–2194 ...... 45 4 4 3 Form 7–21PE ...... 75 146 149 186 Form 7–21PE–IND ...... 12 4 4 1 Form 7–21TRUST ...... 60 882 900 900 Form 7–21VERIFY...... 12 5,434 5,543 1,109 Form 7–21FC ...... 30 214 218 109 Form 7–21XS ...... 30 144 147 74 Form 7–21FARMOP ...... 78 172 175 228 Totals ...... 15,279 15,585 11,522

Comments DEPARTMENT OF THE INTERIOR reinstate lease COC69113 effective March 1, 2010, under the original terms Comments are invited on: Bureau of Land Management and conditions of the lease and the (a) Whether the proposed collection of [LLCO922000–L13100000–FI0000; increased rental and royalty rates cited information is necessary for the proper COC69113] above. The BLM has not issued a valid performance of our functions, including lease to any other interest affecting the whether the information will have Notice of Proposed Reinstatement of lands. practical use; Terminated Oil and Gas Lease COC69113 Helen M. Hankins, (b) Accuracy of our burden estimate State Director. for the proposed collection of AGENCY: Bureau of Land Management, [FR Doc. 2010–24287 Filed 9–27–10; 8:45 am] information; Interior. BILLING CODE 4310–JB–P (c) Ways to enhance the quality, ACTION: Notice of proposed usefulness, and clarity of the reinstatement of terminated oil and gas information to be collected; and lease DEPARTMENT OF THE INTERIOR (d) Ways to minimize the burden of SUMMARY: Under the provisions of 30 Bureau of Land Management the collection of information on U.S.C. 188(d) and (e), and 43 CFR respondents, including the use of 3108.2–3(a) and (b), the Bureau of Land automated collection techniques or [LLMTB072000–L14300000–ET0000; MTM Management (BLM) received a petition 98499] other forms of information technology. for reinstatement of oil and gas lease We will summarize all comments COC69113 from MAB Resources LLC, Notice of Proposed Withdrawal and received regarding this notice. We will for lands in Rio Blanco County, Opportunity for Public Meeting; publish that summary in the Federal Colorado. The petition was filed on time Montana Register when the information and was accompanied by all the rentals collection request is submitted to OMB due since the date the lease terminated AGENCY: Bureau of Land Management, for review and approval. under the law. Interior. Before including your address, FOR FURTHER INFORMATION CONTACT: ACTION: Notice. telephone number, e-mail address, or BLM, Milada Krasilinec, Land Law other personal identifying information Examiner, Branch of Fluid Minerals SUMMARY: The Assistant Secretary for in your comment, you should be aware Adjudication, at (303) 239–3767. Land and Minerals Management that your entire comment—including SUPPLEMENTARY INFORMATION: The lessee proposes to withdraw, on behalf of the your personal identifying information— has agreed to the amended lease terms Bureau of Land Management (BLM), may be made publicly available at any for rentals and royalties at rates of $10 approximately 18,760 acres of public time. While you can ask us in your per acre or fraction thereof per year and land located in Broadwater County, comment to withhold your personal 162⁄3 percent, respectively. The lessee Montana, from settlement, sale, identifying information from public has paid the required $500 location, and entry under the general review, we cannot guarantee that we administrative fee and $163 to land laws, including the United States will be able to do so. reimburse the Department for the cost of mining laws, but not the mineral leasing this Federal Register notice. The lessee laws for a period of 5 years to protect Roseann Gonzales, has met all the requirements for the Limestone Hills Training Area Director, Policy and Administration, Denver reinstatement of the lease as set out in pending the processing of an Office. Section 31(d) and (e) of the Mineral application for withdrawal of those [FR Doc. 2010–24263 Filed 9–27–10; 8:45 am] Lands Leasing Act of 1920 (30 U.S.C. lands for military purposes under the BILLING CODE 4310–MN–P 188), and the BLM is proposing to Engle Act.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00063 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59742 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

DATES: Comments must be received on sec. 20, W1⁄2; available at any time. While you can ask or before December 27, 2010. sec. 30, lots 2, 3, and 4, NE1⁄4NE1⁄4, us in your comment to withhold from 1 1 1 1 1 1 ADDRESSES: Comments should be sent to S ⁄2NE ⁄4, SE ⁄4NW ⁄4, E ⁄2SW ⁄4, public review your personal identifying the Bureau of Land Management, and SE1⁄4. information, we cannot guarantee that Montana State Office, 5001 Southgate T. 7 N., R. 1 E., we will be able to do so. 1 Drive, Billings, Montana 59101. sec. 26, S ⁄2; The proposed withdrawal of public sec. 27, lots 5 to 8, inclusive, and FOR FURTHER INFORMATION CONTACT: land for military purposes under the S1⁄2S1⁄2; Engle Act was discussed at five public Sandra Ward, BLM, Montana State 1 1 sec. 28, S ⁄2SE ⁄4; meetings as part of the scoping process Office at 406–896–5052. 1 sec. 32, E ⁄2 except patented lands; for the legislative withdrawal SUPPLEMENTARY INFORMATION: The secs. 33, 34, and 35. Environmental Impact Statement. Assistant Secretary for Land and The area described contains 18,760.63 This withdrawal proposal will be Minerals Management proposes to acres in Broadwater County. processed in accordance with the The Assistant Secretary for Land and withdraw the following described regulations set forth in 43 CFR part Minerals Management has approved the public land located in Broadwater 2300. County, Montana, from settlement, sale, Bureau of Land Management’s petition For a period of 2 years from the date location and entry under the general for approval to file its withdrawal of publication of this notice in the land laws, including the mining laws, application. The Assistant Secretary’s Federal Register, the land will be subject to valid existing rights, to approval of the petition constitutes her segregated from settlement, sale, protect the land pending action on an proposal to withdraw the subject lands. location, and entry under the general The purpose of the proposed application for withdrawal of public land laws, including the mining laws, withdrawal is to protect the above- lands for military purposes under the unless the application is denied or described land pending action on an Engle Act: canceled or the withdrawal is approved application for withdrawal of public prior to that date. Land uses currently Principal Meridian, Montana land for military purposes under the permitted under the existing right-of- T. 6 N., R. 1 E., Engle Act. The land is currently used as way agreement may continue during the sec. 2, lots 1 to 4, inclusive, S1⁄2N1⁄2, a military training range involving live- segregative period. N1⁄2SW1⁄4, SE1⁄4SW1⁄4, and SE1⁄4; fire exercises necessary for national Notice is hereby given that one or sec. 3, lots 1 to 4, inclusive, S1⁄2N1⁄2, security. more public meetings will be held in and S1⁄2; The use of a right-of-way or connection with the proposed sec. 4, lots 1 to 4, inclusive, S1⁄2N1⁄2, cooperative agreement would not withdrawal. All interested persons who and S1⁄2; provide adequate authorization for the desire a public meeting for the purpose sec. 5, lots 1 and 2, S1⁄2NE1⁄4, and use of this area due to the broad scope of being heard on the proposed SE1⁄4; of military training exercises, as well as withdrawal must submit a written sec. 8, E1⁄2 and E1⁄2SW1⁄4; the non-discretionary nature of the request to the BLM Montana State secs. 9 and 10; mining laws. Director at the address above by sec. 11, E1⁄2, E1⁄2W1⁄2, and SW1⁄4SW1⁄4; There are no suitable alternative sites. December 27, 2010. A notice of the time sec. 12, lots 1 to 4, inclusive, W1⁄2E1⁄2 The land described above is unique in and place of any public meetings will be and W1⁄2; having been used previously as a published in the Federal Register and at sec. 13, lots 1 to 4, inclusive, W1⁄2E1⁄2 military training range with the least one local newspaper at least 30 and W1⁄2; attendant capital investments. The use secs. 14 and 15; of a different site would needlessly days before the scheduled date of the meeting. sec. 17, E1⁄2 and E1⁄2W1⁄2; degrade a second site and require new sec. 20, E1⁄2 and E1⁄2W1⁄2; capital investments. Authority: 43 CFR 2310.3–1(b)(1). Potable water from two wells would sec. 21; Gary P Smith, sec. 22, lots 3 and 4, W1⁄2NW1⁄4, and be used to meet the daily needs for Acting Chief, Branch of Land Resources, 1 2 1 4 training exercises. The proposed S ⁄ SW ⁄ ; Montana State Office. sec. 23; withdrawal itself would not require any [FR Doc. 2010–24281 Filed 9–27–10; 8:45 am] sec. 24, lots 1 to 4, inclusive, W1⁄2E1⁄2 water. BILLING CODE 4310–$$–P and W1⁄2; On or before December 27, 2010, all sec. 25, lots 1 to 4, inclusive, W1⁄2E1⁄2 persons who wish to submit comments, 1 2 suggestions, or objections in connection and W ⁄ ; DEPARTMENT OF THE INTERIOR sec. 26; with the proposed withdrawal may sec. 27, lots 1 to 9, inclusive, present their views in writing to the Bureau of Land Management NE1⁄4NE1⁄4, S1⁄2NE1⁄4, and SE1⁄4; BLM Montana State Director at the sec. 28, lots 1 to 4, inclusive, address indicated above. [LLOR–936000–L14300000–FQ0000; HAG– 09–0002; WAOR–22197 K] N1⁄2NE1⁄4, W1⁄2, and W1⁄2SE1⁄4; Comments and records relating to the 1 4 1 2 1 4 1 4 1 4 proposed withdrawal will be available sec. 29, NE ⁄ , E ⁄ NW ⁄ , NE ⁄ SW ⁄ , Public Land Order No. 7752; Partial 1 2 1 4 1 4 1 4 for public review at the BLM Montana N ⁄ SE ⁄ , and SW ⁄ SE ⁄ ; Revocation of a Light Station 1 2 State Office at the address above during sec. 33, E ⁄ ; Reservation; Washington sec. 34, lots 1 to 8, inclusive, NE1⁄4, regular business hours. Individual N1⁄2NW1⁄4, and N1⁄2SE1⁄4; respondents may request AGENCY: Bureau of Land Management, sec. 35, lots 1 to 4, inclusive, N1⁄2 and confidentiality. Before including your Interior. 1 1 N ⁄2S ⁄2. address, phone number, e-mail address, ACTION: Public land order. T. 6 N., R. 2 E., or other personal identifying sec. 17, S1⁄2SW1⁄4; information in your comment, be SUMMARY: This order partially revokes sec. 18, lot 4, SE1⁄4SW1⁄4, and advised that your entire comment— the withdrawal created by an Executive S1⁄2SE1⁄4; including your personal identifying Order insofar as it affects approximately sec. 19, lots 1, 2, and 3; information—may be made publicly 37.32 acres of public land reserved for

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00064 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59743

use by the United States Coast Guard for 387.5 feet more or less South 0° 12´ West Order lighthouse purposes. from the one quarter of said section 23; Thence North 0° 12´ East 1140 feet along By virtue of the authority vested in DATES: Effective Date: September 28, the East line of said section 23 to a point; the Secretary of the Interior by Section 2010. Thence North 89° 48´ West 1030 feet to 204 of the Federal Land Policy and FOR FURTHER INFORMATION CONTACT: the true point of beginning; Thence Management Act of 1976, 43 U.S.C. Charles R. Roy, BLM Oregon/ North 89° 48´ West 35 feet more or less 1714, it is ordered as follows: Washington State Office, P.O. Box 2965, to the high water line of Haro Straight; 1. The withdrawal established by Portland, Oregon 97208–2965, 808–952– Thence Southerly and Easterly along the Executive Order dated January 19, 1861, 6189. said high water line to a point which which reserved public land on Manitou bears due South of the true point of SUPPLEMENTARY INFORMATION: The land Island for lighthouse purposes, is hereby beginning; Thence North 400 feet more revoked in its entirety: is no longer needed for the purpose for or less to the true point of beginning. which it was reserved. Approximately 1 Michigan Meridian acre has been determined to be The area described contains unsuitable for return to the public approximately 36.32 acres, more or less, T. 58 N., R. 26 W., Fractional secs. 17, 20, and 21. domain and will be reported along with in San Juan County. The areas described in (a) and (b) The area described contains 569.45 acres in the improvements to the General Keweenaw County. Services Administration as excess above aggregate 37.32 acres in San Juan property. The surface estate of the County. 2. At 9 a.m. on October 28, 2010, remaining 36.32 acres has been Dated: September 13, 2010. subject to valid existing rights, the previously transferred out of Federal Wilma A. Lewis, provisions of existing withdrawals, other segregations of record, and the ownership and this is a record clearing Assistant Secretary—Land and Minerals action only on that portion. Management. requirements of applicable law, the public land described in Paragraph 1 [FR Doc. 2010–24284 Filed 9–27–10; 8:45 am] Order shall be opened to the operation of the BILLING CODE 4310–33–P By virtue of the authority vested in public land laws generally. All valid the Secretary of the Interior by Section applications received at or prior to 9 204 of the Federal Land Policy and DEPARTMENT OF THE INTERIOR a.m. on October 28, 2010, shall be Management Act of 1976, 43 U.S.C. considered as simultaneously filed at 1714, it is ordered as follows: Bureau of Land Management that time. Those received thereafter The reservation of public land for the shall be considered in the order of Lime Kiln Light Station created by an [ES–960–1430–FQ; MIES–002777] filing. Executive Order dated July 15, 1875, is Dated: September 13, 2010. hereby revoked insofar as it affects the Public Land Order No. 7751; Wilma A. Lewis, following described land: Revocation of the Withdrawal Assistant Secretary—Land and Minerals (a) The following described land has Established by Executive Order Dated Management. been determined unsuitable for return to January 19, 1861; Michigan [FR Doc. 2010–24286 Filed 9–27–10; 8:45 am] the public domain, and for disposition under the public land, mining, or AGENCY: Bureau of Land Management, BILLING CODE 4310–GJ–P mineral leasing laws: Interior. Willamette Meridian ACTION: Public land order. DEPARTMENT OF THE INTERIOR T. 35 N., R. 4 W., SUMMARY: This order revokes in its Sec. 23, Portion of lot 3, commencing at the Bureau of Land Management Meander Corner of the East line of said entirety the withdrawal established by an Executive Order as to 569.45 acres of [LLOR–936000–L14300000–FQ0000; HAG– section 23 which lies 387.5 feet more or 09–0142; OR–20249] less South 0° 12´ West from the one public land withdrawn from all forms of quarter of said section 23; Thence North appropriation under the public land Public Land Order No. 7750; Partial 0° 12´ East 1140 feet along the East line laws and reserved for use by the United Revocation of Secretarial Order dated of said section 23 to a point; Thence States Coast Guard for lighthouse January 20, 1910; Oregon North 89° 48´ West 1030 feet to the true purposes. The reservation is no longer ° point of beginning; Thence North 89 48´ needed. This order opens the land to the AGENCY: Bureau of Land Management, West 35 feet more or less to the high operation of the public land laws, Interior. water-line of Haro Straight; Thence ACTION: Public land order. Southerly and Easterly along the said subject to valid existing rights and other segregations of record. high water-line to a point which bears SUMMARY: This order partially revokes a due South of the true point of beginning; DATES: Effective Date: September 28, Secretarial Order dated January 20, Thence North 400 feet more or less to the 2010. 1910, insofar as it affects approximately true point of beginning. FOR FURTHER INFORMATION CONTACT: Nate 9,001.84 acres of public land withdrawn The area described contains Felton, Bureau of Land Management— for use by the Bureau of Reclamation for approximately 1 acre, more or less, in Eastern States Office, 7450 Boston reclamation purposes. The land is no San Juan County. Boulevard, Springfield, Virginia 22153, longer needed for the purpose for which (b) The surface estate of the following 703–440–1511. it was withdrawn. described land has been previously DATES: Effective Date: September 28, conveyed from Federal ownership: SUPPLEMENTARY INFORMATION: A lighthouse was never constructed on the 2010. Willamette Meridian land, which is located on Manitou FOR FURTHER INFORMATION CONTACT: T. 35 N., R. 4 W., Island. The United States Coast Guard Charles R. Roy, BLM Oregon/ Sec. 23, lot 4, and lot 3 excluding a parcel has determined that the reservation is Washington State Office, P.O. Box 2965, commencing at the Meander Corner of no longer needed and has requested the Portland, Oregon 97208–2965, 808–952– the East line of said section 23 which lies revocation. 6189.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00065 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59744 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

SUPPLEMENTARY INFORMATION: The land Belgium and South Africa and the Taiwan were inadequate. However, the is located entirely within the exterior antidumping duty orders on stainless Commission determined to conduct full boundary of the Upper Klamath steel plate from Belgium, Italy, Korea, reviews concerning the antidumping National Wildlife Refuge and will South Africa, and Taiwan. duty orders on stainless steel plate from remain closed to the public land laws, Belgium, Korea, South Africa, and including the mining laws. The land SUMMARY: The Commission hereby gives Taiwan to promote administrative will continue to be managed by the notice that it will proceed with full efficiency in light of its decision to United States Fish and Wildlife Service. reviews pursuant to section 751(c)(5) of conduct a full review with respect to the the Tariff Act of 1930 (19 U.S.C. antidumping duty order concerning Order 1675(c)(5)) to determine whether stainless steel plate from Italy. A record By virtue of the authority vested in revocation of the countervailing duty of the Commissioners’ votes, the the Secretary of the Interior by Section orders on stainless steel plate from Commission’s statement on adequacy, 204 of the Federal Land Policy and Belgium and South Africa and the and any individual Commissioner’s Management Act of 1976, 43 U.S.C. antidumping duty orders on stainless statements will be available from the 1714, it is ordered as follows: steel plate from Belgium, Italy, Korea, Office of the Secretary and at the The Secretarial Order dated January South Africa, and Taiwan would be Commission’s Web site. 20, 1910, which withdrew land on likely to lead to continuation or behalf of the Bureau of Reclamation for recurrence of material injury within a Authority: These reviews are being reasonably foreseeable time. A schedule conducted under authority of title VII of the the Klamath Reclamation Project is Tariff Act of 1930; this notice is published hereby revoked insofar as it affects the for the reviews will be established and pursuant to section 207.62 of the following described land: announced at a later date. For further Commission’s rules. information concerning the conduct of Willamette Meridian these reviews and rules of general By order of the Commission. Issued: September 22, 2010. T. 34 S., R. 6 E., application, consult the Commission’s Sec. 25, NE1⁄4 and S1⁄2; Rules of Practice and Procedure, part Marilyn R. Abbott, Sec. 26, NE1⁄4SE1⁄4 and S1⁄2SE1⁄4; 201, subparts A through E (19 CFR part Secretary to the Commission. 1 1 1 1 1 Sec. 35, E ⁄2E ⁄2 and E ⁄2W ⁄2NE ⁄4; 201), and part 207, subparts A, D, E, and [FR Doc. 2010–24244 Filed 9–27–10; 8:45 am] Sec. 36. F (19 CFR part 207). BILLING CODE 7020–02–P T. 35 S., R. 6 E., DATES: Sec. 1, lots 1 through 4, inclusive, S1⁄2N1⁄2, Effective Date: September 7, and S1⁄2; 2010. INTERNATIONAL TRADE Sec. 2, lot 1, S1⁄2NE1⁄4, and SE1⁄4; FOR FURTHER INFORMATION CONTACT: Secs. 12, 13, 24, and 25; COMMISSION 1 Mary Messer (202–205–3193), Office of Sec. 35, E ⁄2; Investigations, U.S. International Trade [Investigation Nos. 701–TA–382 and Sec. 36. 731–TA–798–803 (Second Review)] T. 36 S., R. 6 E., Commission, 500 E Street, SW., Washington, DC 20436. Hearing- Sec. 1; Stainless Steel Sheet and Strip From 1 2 1 4 1 4 1 4 impaired persons can obtain Sec. 2, lot 3, E ⁄ , SE ⁄ NW ⁄ , and SW ⁄ ; Germany, Italy, Japan, Korea, Mexico, Sec. 3, E1⁄2SE1⁄4; information on this matter by contacting 1 1 and Taiwan Sec. 11, NE ⁄4 and S ⁄2; the Commission’s TDD terminal on 202– Sec. 12; 205–1810. Persons with mobility AGENCY: United States International Sec. 13, N1⁄2 and E1⁄2SE1⁄4; 1 1 1 1 1 impairments who will need special Trade Commission. Sec. 14, NE ⁄4, N ⁄2NW ⁄4, SE ⁄4NW ⁄4, and assistance in gaining access to the NW1⁄4SE1⁄4. ACTION: Notice of Commission Commission should contact the Office determination to conduct full five-year The area described contains approximately of the Secretary at 202–205–2000. 9,001.84 acres, more or less, in Klamath reviews concerning the countervailing County. General information concerning the duty order on stainless steel sheet and Commission may also be obtained by Authority: 43 CFR 2370. strip from Korea and the antidumping accessing its internet server (http:// duty orders on stainless steel sheet and Dated: September 13, 2010. www.usitc.gov). The public record for strip from Germany, Italy, Japan, Korea, Wilma A. Lewis, these reviews may be viewed on the Mexico, and Taiwan. Assistant Secretary—Land and Minerals Commission’s electronic docket (EDIS) Management. at http://edis.usitc.gov. SUMMARY: The Commission hereby gives [FR Doc. 2010–24285 Filed 9–27–10; 8:45 am] SUPPLEMENTARY INFORMATION: On notice that it will proceed with full BILLING CODE 4310–MN–P September 7, 2010, the Commission reviews pursuant to section 751(c)(5) of determined that it should proceed to the Tariff Act of 1930 (19 U.S.C. full reviews in the subject five-year 1675(c)(5)) to determine whether INTERNATIONAL TRADE reviews pursuant to section 751(c)(5) of revocation of the countervailing duty COMMISSION the Act. The Commission found that the order on stainless steel sheet and strip domestic interested party group from Korea and the antidumping duty [Investigation Nos. 701–TA–376 and 379 response to its notice of institution (75 orders on stainless steel sheet and strip and 731–TA–788, 790–793 (Second Review)] FR 30434, June 1, 2010) was adequate from Germany, Italy, Japan, Korea, Stainless Steel Plate From Belgium, and that the respondent interested party Mexico, and Taiwan would be likely to Italy, Korea, South Africa, and Taiwan group response with respect to Italy was lead to continuation or recurrence of adequate and decided to conduct a full material injury within a reasonably AGENCY: United States International review with respect to the antidumping foreseeable time. A schedule for the Trade Commission. duty order concerning stainless steel reviews will be established and ACTION: Notice of Commission plate from Italy. The Commission found announced at a later date. For further determination to conduct full five-year that the respondent interested party information concerning the conduct of reviews concerning the countervailing group responses with respect to these reviews and rules of general duty orders on stainless steel plate from Belgium, Korea, South Africa, and application, consult the Commission’s

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00066 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59745

Rules of Practice and Procedure, part Issued: September 22, 2010. www.usitc.gov. The public record for 201, subparts A through E (19 CFR part Marilyn R. Abbott, this investigation may be viewed on the 201), and part 207, subparts A, D, E, and Secretary to the Commission. Commission’s electronic docket (EDIS) F (19 CFR part 207). [FR Doc. 2010–24243 Filed 9–27–10; 8:45 am] at http://edis.usitc.gov. DATES: Effective Date: September 7, BILLING CODE 7020–02–P FOR FURTHER INFORMATION CONTACT: 2010. Anne Goalwin, Esq., Office of Unfair Import Investigations, U.S. International FOR FURTHER INFORMATION CONTACT: INTERNATIONAL TRADE Trade Commission, telephone (202) Mary Messer (202–205–3193), Office of COMMISSION 205–2574. Investigations, U.S. International Trade Authority: The authority for [Inv. No. 337–TA–738] Commission, 500 E Street, SW., institution of this investigation is Washington, DC 20436. Hearing- contained in section 337 of the Tariff impaired persons can obtain In the Matter of: Certain Components for Installation of Marine Autopilots Act of 1930, as amended, and in section information on this matter by contacting 210.10 of the Commission’s Rules of the Commission’s TDD terminal on With GPS or IMU; Notice of Investigation Practice and Procedure, 19 CFR 210.10 202–205–1810. Persons with mobility (2010). impairments who will need special AGENCY: U.S. International Trade Scope of Investigation: Having assistance in gaining access to the Commission. considered the amended complaint, the Commission should contact the Office ACTION: Institution of investigation U.S. International Trade Commission, of the Secretary at 202–205–2000. pursuant to 19 U.S.C. 1337. on September 21, 2010, ordered that— General information concerning the (1) Pursuant to subsection (b) of Commission may also be obtained by SUMMARY: Notice is hereby given that a section 337 of the Tariff Act of 1930, as accessing its Internet server (http:// complaint was filed with the U.S. amended, an investigation be instituted www.usitc.gov). The public record for International Trade Commission on to determine whether there is a these reviews may be viewed on the August 26, 2010, under section 337 of violation of subsection (a)(1)(B) of Commission’s electronic docket (EDIS) the Tariff Act of 1930, as amended, 19 section 337 in the importation into the at http://edis.usitc.gov. U.S.C. 1337, on behalf of American GNC United States, the sale for importation, SUPPLEMENTARY INFORMATION: On of Simi Valley, California. An amended or the sale within the United States after September 7, 2010, the Commission complaint was filed on September 16, importation of certain components for determined that it should proceed to 2010. The amended complaint alleges installation of marine autopilots with full reviews in the subject five-year violations of section 337 based upon the GPS or IMU that infringe one or more reviews pursuant to section 751(c)(5) of importation into the United States, the of claims 2, 5, 10–13, 28, 30, 54, and 55 the Act. The Commission found that the sale for importation, and the sale within of the ‘976 patent, and whether an domestic interested party group the United States after importation of industry in the United States exists as response to its notice of institution (75 certain installation of marine autopilots required by subsection (a)(2) of section FR 30437, June 1, 2010) was adequate with GPS or IMU by reason of 337; and that the respondent interested party infringement of certain claims of U.S. (2) Pursuant to Commission Rule group responses with respect to Patent No. 6,596,976 (‘‘the ‘976 patent’’). 210.50(b)(1), 19 CFR 210.50(b)(1), the Germany, Italy, Korea, and Mexico were The amended complaint further alleges presiding administrative law judge shall adequate and decided to conduct full that an industry in the United States take evidence or other information and reviews with respect to the orders exists as required by subsection (a)(2) of hear arguments from the parties and concerning stainless steel sheet and section 337. other interested persons with respect to strip from Germany, Italy, Korea, and The complainant requests that the the public interest in this investigation, Mexico. The Commission found that the Commission institute an investigation as appropriate, and provide the respondent interested party group and, after the investigation, issue an Commission with findings of fact on responses with respect to Japan and exclusion order and cease and desist this issue; Taiwan were inadequate. However, the orders. (3) For the purpose of the investigation so instituted, the following Commission determined to conduct full ADDRESSES: The amended complaint, are hereby named as parties upon which reviews concerning the orders on except for any confidential information this notice of investigation shall be stainless steel sheet and strip from Japan contained therein, is available for served: and Taiwan to promote administrative inspection during official business efficiency in light of its decision to (a) The complainant is: hours (8:45 a.m. to 5:15 p.m.) in the American GNC, 888 Easy Street, Simi conduct full reviews with respect to the Office of the Secretary, U.S. orders concerning stainless steel sheet Valley, CA 93065. International Trade Commission, 500 E (b) The respondents are the following and strip from Germany, Italy, Korea, Street, SW., Room 112, Washington, DC entities alleged to be in violation of and Mexico. A record of the 20436, telephone 202–205–2000. section 337, and are the parties upon Commissioners’ votes, the Hearing impaired individuals are which the amended complaint is to be Commission’s statement on adequacy, advised that information on this matter served: and any individual Commissioner’s can be obtained by contacting the Furuno Electronics Co., Ltd., 9–52 statements will be available from the Commission’s TDD terminal on 202– Ashibara-cho, Nishinomiya City, Office of the Secretary and at the 205–1810. Persons with mobility Hyogo 662–8530, Japan. Commission’s web site. impairments who will need special Furuno U.S.A. Inc., 4400 NW Pacific Authority: These reviews are being assistance in gaining access to the Rim Boulevard, Camas, WA 98607, conducted under authority of title VII of the Commission should contact the Office Navico Holdings AS. Tariff Act of 1930; this notice is published of the Secretary at 202–205–2000. Strandvelen 18, Lysaker, Norway. pursuant to section 207.62 of the General information concerning the Navico UK, Ltd., Premier Way, Abbey Commission’s rules. Commission may also be obtained by Park, Romsey Hampshire, United By order of the Commission. accessing its internet server at http:// Kingdom 50519DM.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00067 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59746 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

Navico, Inc., 410 Amherst Street, Suite DEPARTMENT OF JUSTICE Overview of This Information 110, Nashua, NH 03063. Collection [OMB Number 1123–0010] Flir Systems, Inc., 27700A SW Parkway (1) Type of Information Collection: Avenue, Wilsonville, OR 97070. Criminal Division; Agency Information Revision of a currently approved Raymarine UK Ltd., Marine House, 5 Collection Activities: Proposed collection. Harbourgate, Southampton Road. Collection; Comments Requested (2) Title of the Form/Collection: Request for Registration Under the Portsmouth Hampshire, PO6 4QB, ACTION: 60-Day Notice of Information Gambling Devices Act of 1962. United Kingdom. Collection Under Review: Request for (3) Agency form number, if any, and Raymarine Inc., 21 Manchester Street, Registration Under the Gambling the applicable component of the Merrimack, NH 03054. Devices Act of 1962. Department of Justice sponsoring the (c) The Commission investigative collection: Form Number: The Department of Justice (DOJ), DOJ\CRM\OEO\GDR–1. Sponsoring attorney, party to this investigation, is Criminal Division, will be submitting component: Criminal Division, Anne Goalwin, Esq., Office of Unfair the following information collection Department of Justice. Import Investigations, U.S. International request to the Office of Management and (4) Affected public who will be asked Trade Commission, 500 E Street, SW., Budget (OMB) for review and approval or required to respond, as well as a brief Suite 401, Washington, DC 20436; and in accordance with the Paperwork abstract: Primary: Business or other for- (4) For the investigation so instituted, Reduction Act of 1995. The proposed profit. Other: Not-for-profit institutions, the Honorable Paul J. Luckern, Chief information collection is published to individuals or households, and State, Administrative Law Judge, U.S. obtain comments from the public and Local or Tribal Government. The form International Trade Commission, shall affected agencies. Comments are can be used by any entity required to encouraged and will be accepted for designate the presiding Administrative register under the Gambling Devices Act ‘‘sixty days’’ until November 29, 2010. Law Judge. of 1962 (15 U.S.C. 1171–1178). This process is conducted in accordance (5) An estimate of the total number of Responses to the amended complaint with 5 CFR 1320.10. respondents and the amount of time and the notice of investigation must be If you have comments especially on estimated for an average respondent to submitted by the named respondents in the estimated public burden or respond: It is estimated that 4,200 accordance with section 210.13 of the associated response time, suggestions, respondents will complete each form Commission’s Rules of Practice and or need a copy of the proposed within approximately 5 minutes. Procedure, 19 CFR 210.13. Pursuant to information collection instrument with (6) An estimate of the total public 19 CFR 201.16(d)–(e) and 210.13(a), instructions or additional information, burden (in hours) associated with the such responses will be considered by please contact Sandra A. Holland, U.S. collection: There are an estimated 350 the Commission if received not later Department of Justice, 950 Pennsylvania total annual burden hours associated than 20 days after the date of service by Avenue, NW., Criminal Division, Office with this collection. the Commission of the amended of Enforcement Operations, Gambling If additional information is required complaint and the notice of Device Registration Program, JCK contact: Lynn Murray, Department investigation. Extensions of time for Building, Room 1040, Washington, DC Clearance Officer, United States submitting responses to the amended 20530–0001. Department of Justice, Justice complaint and the notice of Written comments and suggestions Management Division, Policy and from the public and affected agencies investigation will not be granted unless Planning Staff, Two Constitution concerning the proposed collection of good cause therefor is shown. Square, 145 N Street, NE., Suite 2E–502, information are encouraged. Your Washington, DC 20530. Failure of a respondent to file a timely comments should address one or more response to each allegation in the of the following four points: Dated: September 23, 2010. amended complaint and in this notice —Evaluate whether the proposed Lynn Murray, may be deemed to constitute a waiver of collection of information is necessary Department Clearance Officer, PRA, U.S. the right to appear and contest the for the proper performance of the Department of Justice. allegations of the amended complaint functions of the agency, including [FR Doc. 2010–24223 Filed 9–27–10; 8:45 am] and this notice, and to authorize the whether the information will have BILLING CODE 4410–14–P administrative law judge and the practical utility; Commission, without further notice to —Evaluate the accuracy of the agencies the respondent, to find the facts to be as estimate of the burden of the DEPARTMENT OF JUSTICE alleged in the amended complaint and proposed collection of information, Notice of Lodging of Proposed this notice and to enter an initial including the validity of the Consent Decree Under the Clean Air determination and a final determination methodology and assumptions used; Act containing such findings, and may —Enhance the quality, utility, and result in the issuance of an exclusion clarity of the information to be Notice is hereby given that on order or a cease and desist order or both collected; and September 22, 2010, a proposed Consent directed against the respondent. —Minimize the burden of the collection Decree (‘‘Decree’’) in United States v. of information on those who are to Appleton Papers Inc., Civil Action No. By order of the Commission. respond, including through the use of 10–C–0828, was lodged with the United Issued: September 22, 2010. appropriate automated, electronic, States District Court for the Eastern Marilyn R. Abbott, mechanical, or other technological District of Wisconsin. Secretary to the Commission. collection techniques or other forms In this proposed settlement the [FR Doc. 2010–24242 Filed 9–27–10; 8:45 am] of information technology, e.g., United States resolves violations of the permitting electronic submission of Clean Air Act at Defendant’s two paper BILLING CODE 7020–02–P responses. manufacturing facilities located in West

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00068 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59747

Carrollton, Ohio and Roaring Springs, amount to the Consent Decree Library at NEIGHBORHOOD REINVESTMENT Pennsylvania. The violations include the stated address. CORPORATION failing to meet the industrial refrigerant Maureen Katz, leak repair, testing, recordkeeping and Regular Board of Directors Meeting; Assistant Chief Environmental Enforcement Sunshine Act reporting regulations at 40 CFR part 82, Section. Subpart F, and, at the West Carrollton [FR Doc. 2010–24299 Filed 9–27–10; 8:45 am] TIME AND DATE: 2 p.m.. Wednesday, facility only, failing to limit visible BILLING CODE 4410–15–P September 22, 2010. emissions from two coal-fired spreader PLACE: 1325 G Street NW., Suite 800, boilers as required by the facility’s Title Boardroom, Washington, DC 20005. V permit. Under the proposed Decree, NATIONAL AERONAUTICS AND STATUS: Open. Defendant agrees, among other things, to SPACE ADMINISTRATION comply with the opacity limitation CONTACT PERSON FOR MORE INFORMATION: specified in the Title V permit and to [Notice: (10–113)] Erica Hall, Assistant Corporate replace industrial process refrigeration Secretary, (202) 220–2376, appliances containing ozone-depleting NASA Advisory Council; Meeting. [email protected]. AGENDA: substances with appliances that contain AGENCY: National Aeronautics and non-ozone depleting refrigerants. Space Administration. I. Call to Order. II. Approval of the Minutes. Defendant also agrees to pay a civil ACTION: Notice of meeting. penalty in the amount of $96,324.00 and III. Summary Report of the Corporate complete a Supplemental SUMMARY: In accordance with the Administration Committee. Environmental Project. Federal Advisory Committee Act, Public IV. Summary Report of the Corporate Administration Committee. The Department of Justice will receive Law 92–463, as amended, the National Aeronautics and Space Administration V. Approval of the Minutes. for a period of thirty (30) days from the announces a meeting of the NASA VI. Summary Report of the Finance, date of this publication comments Advisory Council. Budget and Program Committee. relating to the proposed Decree. VII. Approval of the Minutes. DATES: Comments should be addressed to the Wednesday, October 6, 2010, 8 VIII. Approval of the Minutes. Assistant Attorney General, a.m.–5 p.m. (local time). Thursday, IX. Summary of the Audit Committee. October 7, 2010, 8 a.m.–12 noon (local Environment and Natural Resources X. Approval of the Minutes. time). Division, and either e-mailed to XI. Approval of the Revised Minutes. [email protected] or ADDRESSES: The AERO Institute, 38256 XII. Board Policy Regarding Elected mailed to P.O. Box 7611, U.S. Sierra Highway, Palmdale, CA 93550. Officials. FOR FURTHER INFORMATION CONTACT: Ms. XIII. NeighborWorks Transition Department of Justice, Washington, DC _ 20044–7611, and should refer to Marla King, NAC Administrative Grant CHC. XIV. Financial Report. Appleton Papers Inc., D.J. Ref. No. 90– Officer, National Aeronautics and Space XV. Corporate Scorecard. 5–2–1–09575. Administration Headquarters, Washington, DC 20546, (202) 358–1148. XVI. Chief Executive Officer’s Quarterly The proposed Decree may be Management Report. SUPPLEMENTARY INFORMATION: The examined at the Office of the United XVII. Strategic Planning Discussion. agenda for the meeting will include XVIII. Adjournment. States Attorney, 517 E. Wisconsin reports from the NAC Committees: No. 06–2. Avenue, Suite 530, Milwaukee, —Aeronautics. Wisconsin 53202–4588 and at U.S. EPA —Audit, Finance, and Analysis. Erica Hill, Region 5, 77 W. Jackson Blvd., 16th —Commercial Space. Assistant Corporate Secretary. Floor (EPA Library), Chicago, Illinois —Education and Public Outreach. [FR Doc. 2010–24121 Filed 9–27–10; 8:45 am] 60604. During the public comment —Exploration. BILLING CODE 7570–02–M period, the proposed Decree may also be —Information Technology examined on the following Department Infrastructure. of Justice Web site http:// —Science. NEIGHBORHOOD REINVESTMENT www.usdoj.gov/enrd/ —Space Operations. CORPORATION Consent_Decrees.html. A copy of the —Technology and Innovation. proposed Decree may also be obtained The meeting will be open to the public Special Board of Directors Meeting; by mail from the Consent Decree up to the seating capacity of the room. Sunshine Act Library, P.O. Box 7611, U.S. Department It is imperative that the meeting be held TIME AND DATE: 1 p.m., Tuesday, of Justice, Washington, DC 20044–7611 on this date to accommodate the September 7, 2010. or by faxing or e-mailing a request to scheduling priorities of the key Tonia Fleetwood participants. Due to technical problems PLACE: 1325 G Street, NW., Suite 800, ([email protected]), fax no. associated with original publication, Boardroom, Washington, DC 20005. (202) 514–0097, phone confirmation this meeting notice is being re- STATUS: Open. number (202) 514–1547. In requesting a submitted for publication less than 15 CONTACT PERSON FOR MORE INFORMATION: copy from the Consent Decree Library, days in advance. Erica Hall, Assistant Corporate please enclose a check in the amount of Dated: September 23, 2010. Secretary, (202) 220–2376; $11.00 (25 cents per page reproduction P. Diane Rausch, [email protected]. cost) payable to the U.S. Treasury or, if Advisory Committee Management Officer, AGENDA: by e-mail or fax, forward a check in that National Aeronautics and Space I. Call to Order. Administration. II. Draft Policy Regarding Elected [FR Doc. 2010–24348 Filed 9–23–10; 4:15 pm] Officials. BILLING CODE P III. Chief Executive Officer’s Update.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00069 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59748 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

IV. NHSA Update. issuance of a license amendment to positions to intercept groundwater V. Resolutions for Approval. Sequoyah Fuels Corporation (SFC or contamination remaining onsite. The VI. Adjournment. licensee) for License No. SUB–1010. CAP does not draw back any Erica Hall, This action would authorize SFC to contamination that has passed the implement the groundwater corrective extraction points. Consequently, the Assistant Corporate Secretary. action plan (CAP) proposed for its site CAP allows small pollutant loads [FR Doc. 2010–24124 Filed 9–27–10; 8:45 am] in Gore, Oklahoma. SFC’s proposal for (defined as pollutant concentration x BILLING CODE 7570–02–M the CAP was first submitted to the NRC volumetric flow) to enter the surface by letter dated June 16, 2003, and was water system. However, NRC staff supplemented by additional information NEIGHBORHOOD REINVESTMENT determined that the pollutant loads to submitted to the NRC by letters dated, CORPORATION surface water pose little threat to human December 16, 2005, July 2, 2009, and health and safety and the environment. Special Board of Directors Meeting; July 31, 2009. By letter dated August 18, A Safety Evaluation Report (SER) dated Sunshine Act 2010, SFC submitted a June 14, 2010, September 20, 2010 (ML101170749) revision of the CAP that encompasses documents the NRC staff’s technical TIME AND DATE: 4 p.m., Monday, August all supplements in a single document. review of the CAP to determine its 9, 2010. NRC previously issued an compliance with 10 CFR Part 40, PLACE: 1325 G Street, NW., Suite 800, Environmental Impact Statement (EIS) Appendix A. Boardroom, Washington, DC 20005. in support of this action in accordance SFC’s request for the proposed with the requirements of 10 CFR part STATUS: Open. amendment was previously noticed in 51. See NUREG–1888, ‘‘Environmental CONTACT PERSON FOR MORE INFORMATION: the Federal Register (68 FR 51033; Aug. Impact Statement for the Reclamation of Erica Hall, Assistant Corporate 25, 2003) with a notice of an the Sequoyah Fuels Corporation Site in opportunity to request a hearing. The Secretary, (202) 220–2376; Gore, Oklahoma,’’ issued May 2008. [email protected]. State of Oklahoma and the Cherokee AGENDA: II. Proposed Action Nation submitted requests for hearing on September 29, 2003 and October 2, The purpose of this proposed CAP is I. Call to Order. 2003, respectively. Both requests were to remediate existing groundwater II. Appropriations Update. subsequently denied on November 19, contamination and to facilitate the III. NACA Update. 2003. No other comments or requests for IV. AHCOA Update. eventual termination of License No. a hearing were received. V. NUSA Update/Replacement Plan. SUB–1010. This CAP is part of an VI. Adjournment. overall site reclamation program The Final EIS for the Reclamation of the Sequoyah Fuels Corporation Site in Erica Hall, described in SFC’s Reclamation Plan (RP) dated January 2003. SFC’s RP was Gore, Oklahoma (NUREG–1888) was Assistant Corporate Secretary. reviewed and approved by NRC on issued on May 20, 2008. The EIS [FR Doc. 2010–24125 Filed 9–27–10; 8:45 am] April 20, 2009 (License Amendment documented the NRC staff’s BILLING CODE 7570–02–M 33). Whereas the RP primarily addresses determination that all steps in the the site decommissioning, disposal cell proposed reclamation could be construction, and surface reclamation, accomplished in compliance with the NUCLEAR REGULATORY the CAP addresses residual NRC public and occupational dose COMMISSION contamination in groundwater. limits, effluent release limits, and residual radioactive material limits. In [Docket No. 040–8027; NRC–2010–0306] III. NRC Review addition, the EIS concluded that Notice of License Amendment for the The NRC staff reviewed the CAP and approval of the proposed action, in Sequoyah Fuels Corporation’s Facility supporting documents using Section 4.0 accordance with the commitments in at Gore, OK of NUREG–1620, ‘‘Standard Review Plan NRC License SUB–1010 and the final for the Review of a Reclamation Plan for RP, would not result in a significant AGENCY: U.S. Nuclear Regulatory Mill Tailings Sites Under Title II of the adverse impact on the environment. Commission. Uranium Mill Tailings Radiation The findings, required by the Atomic ACTION: Notice of Action. Control Act of 1978,’’ Rev. 1, issued June Energy Act of 1954, as amended, 2003. The staff’s review process necessary to support the proposed site FOR FURTHER INFORMATION CONTACT: Ken included evaluating the site reclamation activities will be Kalman, Project Manager, hydrogeology particularly with respect documented in an SER that will be Decommissioning and Uranium to the locations and types of issued in connection with this license Recovery Licensing Directorate, groundwater restoration structures. amendment. Division of Waste Management and Effectiveness of the proposed action was IV. Further Information Environmental Protection, Office of then evaluated by reviewing flow and Federal and State Materials and transport models, as well as actual Documents related to this action, Environmental Management Programs, volume and concentration data from the including the application for U.S. Nuclear Regulatory Commission, current structures. Finally, the staff amendment and supporting Washington, DC 20555–0001; reviewed groundwater flow and documentation, are available Telephone: (301) 415–6664; fax number contaminant transport models to electronically at the NRC’s Electronic (301) 415–5369; e-mail: evaluate the long-term groundwater Reading Room at http://www.nrc.gov/ [email protected]. contaminant concentrations and reading-rm/adams.html. From this site, SUPPLEMENTARY INFORMATION: pollutant loads during and after you can access the NRC’s Agency-wide corrective actions are completed. Document Access and Management I. Introduction SFC’s CAP specifies the use of System (ADAMS), which provides text The U.S. Nuclear Regulatory interceptor trenches and recovery wells and image files of NRC’s public Commission (NRC) is considering placed in hydrologically strategic documents. The ADAMS accession

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00070 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59749

numbers for the documents related to this notice are:

NRC Document PDR* Web ADAMS Staff

SFC’s letter to NRC dated June 16, 2003 ...... X ..... X .... ML031710029 ...... X SFC’s letter to NRC dated December 16, 2005 ...... X ..... X .... ML053560158 ...... X SFC’s letter to NRC dated July 2, 2009 ...... X ..... X .... ML092040088 ...... X SFC’s letter to NRC dated July 31, 2009 ...... X ..... X .... ML092240691 ...... X SFC’s letter to NRC dated August 18, 2010 ...... X ..... X .... ML102380151 ...... X NUREG–1888, ‘‘Environmental Impact Statement for the Reclamation of the Sequoyah Fuels X ..... X .... ML081300103 ...... X Corporation Site in Gore, Oklahoma,’’ issued May 2008. Notice of Receipt of License Amendment Request from the Sequoyah Fuels Corp. to Approve X ..... X .... ML032310041 ...... X a Groundwater Monitoring Plan for Its Gore, Oklahoma Facility, and Opportunity to Request a Hearing August 25, 2003 (68 FR 51033). Federal Register Notice for this license amendment ...... X ..... X .... ML101170703 ...... X * PDR—Public Document Room

If you do not have access to ADAMS Units 3 and 4), NRC Staff Notice of North Hotel, 5701 Marinelli Road, or if there are problems in accessing the Appeal, Brief on Appeal, and Request Rockville, MD 20852. documents located in ADAMS, contact for Stay of LBP–10–02, Order (Rulings Wednesday, October 20, 2010 the NRC Public Document Room on the Admissibility of New Reference staff at 1–800–397–4209, 301– Contentions and on Intervenors’ 9 a.m. Briefing on Medical Issues 415–4737, or by e-mail to Challenge to Staff Denial of (Public Meeting) (Contact: Michael [email protected]. Documentary Access) (Feb. 9, 2010) Fuller, 301 415–0520). Any questions should be referred to (Tentative). This meeting will be webcast live at Kenneth Kalman, Division of Waste b. Luminant Generation Company the Web address—http://www.nrc.gov. Management and Environmental LLC (Comanche Peak Nuclear Power Week of October 25, 2010—Tentative Protection, U.S. Nuclear Regulatory Plant, Units 3 and 4), NRC Staff Notice Commission, Washington, DC 20555, of Appeal, Brief on Appeal, and Request Tuesday, October 26, 2010 Mailstop T–7E18, telephone (301) 415– for Stay of Sections IV and V.B of LBP– 9:30 a.m. Briefing on Security Issues 6664, fax (301) 415–5369. 10–5, Order (Ruling on Intervenors’ (Closed—Ex. 1). Access to ISG–016) (Mar. 22, 2010) Dated at Rockville, Maryland, this 20th day Week of November 1, 2010—Tentative of September, 2010. (Tentative) c. Tennessee Valley Authority Tuesday, November 2, 2010 For the Nuclear Regulatory Commission. (Bellefonte Nuclear Plant, Units 1 and Paul Michalak, 2), LBP–10–7 (Apr. 2, 2010), Docket 9:30 a.m. Briefing on Equal Acting Deputy Director, Decommissioning Nos. 50–438–CP & 50–439–CP Employment Opportunity (EEO) and and Uranium Recovery Licensing Directorate, (Tentative). Small Business Programs (Public Division of Waste Management and This meeting will be webcast live at Meeting), (Contact: Barbara Williams, Environmental Protection, Office of Federal the Web address—http://www.nrc.gov. 301–415–7388). and State Materials and Environmental 1 p.m. Briefing on Resolution of This meeting will be webcast live at Management Programs. Generic Safety Issue (GSI)—191, the Web address—http://www.nrc.gov. [FR Doc. 2010–24268 Filed 9–27–10; 8:45 am] Assessment of Debris Accumulation on * * * * * BILLING CODE 7590–01–P Pressurized Water Reactor (PWR) Sump * The schedule for Commission Performance (Public Meeting). meetings is subject to change on short (Contact: Michael Scott, 301–415– notice. To verify the status of meetings, NUCLEAR REGULATORY 0565). call (recording)—(301) 415–1292. COMMISSION This meeting will be webcast live at Contact person for more information: [NRC–2010–0002] the Web address—http://www.nrc.gov. Rochelle Bavol, (301) 415–1651. Week of October 4, 2010—Tentative * * * * * Sunshine Federal Register Notice The NRC Commission Meeting There are no meetings scheduled for Schedule can be found on the Internet AGENCY HOLDING THE MEETINGS: Nuclear the week of October 4, 2010. at: http://www.nrc.gov/about-nrc/policy- Regulatory Commission. Week of October 11, 2010—Tentative making/schedule.html. DATES: Weeks of September 27, October 4, 11, 18, 25, and November 1, 2010. Thursday, October 14, 2010 * * * * * The NRC provides reasonable PLACE: Commissioners’ Conference 9:30 a.m. Briefing on Alternative Risk accommodation to individuals with Room, 11555 Rockville Pike, Rockville, Metrics for New Light Water Reactors disabilities where appropriate. If you Maryland. (Public Meeting) (Contact: CJ Fong, 301 need a reasonable accommodation to STATUS: Public and Closed. 415–6249). participate in these public meetings, or This meeting will be webcast live at Week of September 27, 2010 need this meeting notice or the the Web address—http://www.nrc.gov. transcript or other information from the Wednesday, September 29, 2010 Week of October 18, 2010—Tentative public meetings in another format (e.g. 12:55 p.m. Affirmation Session braille, large print), please notify Angela (Public Meeting) (Tentative) Monday, October 18, 2010 Bolduc, Chief, Employee/Labor a. South Texas Project Nuclear 1:30 p.m. NRC All Employees Meeting Relations and Work Life Branch, at 301– Operating Co. (South Texas Project (Public Meeting), Marriott Bethesda 492–2230, TDD: 301–415–2100, or by e-

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00071 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59750 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

mail at [email protected]. Dated: September 24, 2010. Commission, Office of Investor Determinations on requests for Shoshana M. Grove, Education and Advocacy, reasonable accommodation will be Secretary. Washington, DC 20549–0213. made on a case-by-case basis. [FR Doc. 2010–24396 Filed 9–24–10; 4:15 pm] Extension: * * * * * BILLING CODE 7710–FW–S Rule 203–3, Form ADV–H; SEC File No. This notice is distributed 270–481; OMB Control No. 3235–0538. electronically to subscribers. If you no Notice is hereby given that, pursuant longer wish to receive it, or would like SMALL BUSINESS ADMINISTRATION to the Paperwork Reduction Act of 1995 to be added to the distribution, please [Disaster Declaration #12258 and #12259] (44 U.S.C. 3501 et seq.), the Securities contact the Office of the Secretary, and Exchange Commission Washington, DC 20555 (301–415–1969), Iowa Disaster Number IA–00026 (‘‘Commission’’) has submitted to the or send an e-mail to Office of Management and Budget [email protected]. AGENCY: U.S. Small Business (‘‘OMB’’) a request for extension of the Dated: September 23, 2010. Administration. previously approved collection of Rochelle C. Bavol, ACTION: Amendment 5. information discussed below. Policy Coordinator, Office of the Secretary. The title for the collection of SUMMARY: This is an amendment of the information is ‘‘Rule 203–3 and Form [FR Doc. 2010–24391 Filed 9–24–10; 4:15 pm] Presidential declaration of a major ADV–H under the Investment Advisers BILLING CODE 7590–01–P disaster for Public Assistance Only for Act of 1940.’’ Rule 203–3 (17 CFR the State of Iowa (FEMA–1930–DR), 275.203–3) under the Investment dated 07/29/2010. Advisers Act of 1940 (15 U.S.C. 80b) POSTAL REGULATORY COMMISSION Incident: Severe Storms, Flooding, establishes procedures for an and Tornadoes. investment adviser to obtain a hardship Sunshine Act Meetings Incident Period: 06/01/2010 through exemption from the electronic filing 08/31/2010. requirements of the Investment Advisers TIME AND DATE: Wednesday, October 6, Effective Date: 09/17/2010. Act. Rule 203–3 requires every person 2010 at 11 a.m. Physical Loan Application Deadline requesting a hardship exemption to file PLACE: Commission hearing room, 901 Date: 09/27/2010. Form ADV–H (17 CFR 279.3) with the New York Avenue, NW., Suite 200, Economic Injury (EIDL) Loan Commission. The purpose of this Washington, DC 20268–0001. Application Deadline Date: 04/29/2011. collection of information is to permit STATUS: Most items on the agenda will ADDRESSES: Submit completed loan advisers to obtain a hardship be considered in a session open to applications to: U.S. Small Business exemption, on a continuing or public observation. Several items will Administration, Processing and temporary basis, to not complete an be considered in a session closed to Disbursement Center, 14925 Kingsport electronic filing. The temporary public observation. The open session Road, Fort Worth, TX 76155. hardship exemption permits advisers to will be audiocast. FOR FURTHER INFORMATION CONTACT: A. make late filings due to unforeseen MATTERS TO BE CONSIDERED: Escobar, Office of Disaster Assistance, computer or software problems, while U.S. Small Business Administration, the continuing hardship exemption PORTIONS OPEN TO THE PUBLIC: 409 3rd Street, SW., Suite 6050, permits advisers to submit all required 1. Review of postal-related Washington, DC 20416. electronic filings on hard copy for data congressional activity. entry by the operator of the IARD. 2. Report on international activities. SUPPLEMENTARY INFORMATION: The notice The respondents to the collection of 3. Review of active cases. of the President’s major disaster information are all investment advisers 4. Report on recent activites of the declaration for Private Non-Profit that are registered with the Commission. Joint Periodicals Task Force and status organizations in the State of Iowa, dated The Commission has estimated that of the report to the Congress pursuant to 07/29/2010, is hereby amended to compliance with the requirement to secton 708 of the PAEA. include the following areas as adversely complete Form ADV–H imposes a total 5. Report on the October 1 budgetary affected by the disaster. burden of approximately 1 hour for an meeting at OMB. Primary Counties: Pocahontas adviser. Based on our experience with 6. Report on vacancies and positions All other information in the original hardship filings, we estimate that we recently filled. declaration remains unchanged. will receive 11 Form ADV–H filings PORTIONS CLOSED TO THE PUBLIC: (Catalog of Federal Domestic Assistance annually. Based on the 60 minute per Numbers 59002 and 59008) respondent estimate, the Commission 7. Discussion of pending litigation. James E. Rivera, estimates a total annual burden of 11 8. Discussion of confidential hours for this collection of information. personnel issues. Associate Administrator for Disaster Assistance. Rule 203–3 and Form ADV–H do not 9. Discussion of contracts involving require recordkeeping or records [FR Doc. 2010–23996 Filed 9–27–10; 8:45 am] confidential commercial information. retention. The collection of information BILLING CODE 8025–01–M CONTACT PERSON FOR FURTHER requirements under the rule and form INFORMATION: Stephen L. Sharfman, are mandatory. The information General Counsel, Postal Regulatory collected pursuant to the rule and Form Commission, at 202-789-6820 or SECURITIES AND EXCHANGE ADV–H consists of filings with the [email protected] (for COMMISSION Commission. These filings are not kept questions concerning the agenda) and Submission for OMB Review; confidential. An agency may not Shoshana M. Grove at 202-789-6842 or Comment Request conduct or sponsor, and a person is not [email protected] (for questions required to respond to, a collection of concerning audiocasting or matters Upon Written Request, Copies Available information unless it displays a related to public observation). From: Securities and Exchange currently valid control number.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00072 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59751

Please direct general comments with the procedures established under Based on an analysis of fund filings, regarding the above information to the the rule. Rule 17e–1 also requires the the staff estimates that approximately following persons: (i) Desk Officer for fund to (i) maintain permanently a 1935 funds use at least one affiliated the Securities and Exchange written copy of the procedures adopted broker. Based on conversations with Commission, Office of Management and by the board for complying with the fund representatives, the staff estimates Budget, Room 10102, New Executive requirements of the rule; and (ii) that rule 17e–1’s exemption would free Office Building, Washington, DC 20503 maintain for a period of six years a approximately 40 percent of or send an e-mail to Shagufta Ahmed at written record of each transaction transactions that occur under rule [email protected]; and (ii) subject to the rule, setting forth: the 17e–1 from the rule’s recordkeeping and Jeff Heslop, Acting Director/CIO, amount and source of the commission, review requirements. This would leave Securities and Exchange Commission, fee or other remuneration received; the approximately 1161 funds (1935 funds x C/O Remi Pavlik-Simon, 6432 General identity of the broker; the terms of the .6 = 1161) still subject to the rule’s Green Way, Alexandria, VA, 22312; or transaction; and the materials used to recordkeeping and review requirements. send an e-mail to: determine that the transactions were The staff estimates that each of these [email protected]. Comments must effected in compliance with the funds spends approximately 59 hours be submitted to OMB within 30 days of procedures adopted by the board. The per year (40 hours by accounting staff, this notice. Commission’s examination staff uses 15 hours by an attorney, and 4 director September 20, 2010. these records to evaluate transactions hours) at a cost of approximately Florence E. Harmon, between funds and their affiliated $25,500 per year to comply with rule 17e–1’s requirements that (i) the fund Deputy Secretary. brokers for compliance with the rule. retain records of transactions entered Based on an analysis of fund filings, [FR Doc. 2010–24186 Filed 9–27–10; 8:45 am] into pursuant to the rule, and (ii) the the staff estimates that approximately BILLING CODE 8010–01–P fund’s directors review those 252 fund portfolios enter into transactions quarterly.4 We estimate, subadvisory agreements each year.1 therefore, that the total yearly hourly SECURITIES AND EXCHANGE Based on discussions with industry burden for all funds relying on this COMMISSION representatives, the staff estimates that exemption is 68,499 hours,5 with yearly it will require approximately 3 attorney costs of approximately $29,605,500.6 Submission for OMB Review; hours to draft and execute additional Therefore, the estimated annual Comment Request clauses in new subadvisory contracts in aggregate burden hour associated with order for funds and subadvisers to be Upon Written Request, Copies Available rule 17e–1 is 68,688,7 and the estimated able to rely on the exemptions in rule From: Securities and Exchange annual aggregate cost associated with it 17e–1. Because these additional clauses Commission, Office of Investor is $29,665,224.8 are identical to the clauses that a fund Education and Advocacy, The estimate of average burden hours would need to insert in their Washington, DC 20549–0213. is made solely for the purposes of the subadvisory contracts to rely on rules Paperwork Reduction Act, and is not Extension: 12d3–1, 10f–3, 17a–10, and because we derived from a comprehensive or even Rule 17e–1; SEC File No. 270–224; OMB believe that funds that use one such rule Control No. 3235–0217. a representative survey or study. An generally use all of these rules, we agency may not conduct or sponsor, and Notice is hereby given that, pursuant apportion this 3 hour time burden a person is not required to respond to, to the Paperwork Reduction Act of 1995 equally to all four rules. Therefore, we a collection of information unless it (44 U.S.C. 3501–3520), the Securities estimate that the burden allocated to displays a currently valid OMB control and Exchange Commission (the rule 17e–1 for this contract change number. These collection of information ‘‘Commission’’) has submitted to the would be 0.75 hours.2 Assuming that all requirements are mandatory. Responses Office of Management and Budget 252 funds that enter into new will not be kept confidential. (‘‘OMB’’) a request for extension of the subadvisory contracts each year make previously approved collection of the modification to their contract information described below. 4 This estimate is based on the following required by the rule, we estimate that calculations: (40 hours accounting staff × $119 per Rule 17e–1 (17 CFR 270.17e–1) under the rule’s contract modification hour = $4760) (15 hours by an attorney × $316 per the Investment Company Act of 1940 requirement will result in 189 burden hour = $4740); (4 hours by directors × $4000 = (15 U.S.C. 80a) (the ‘‘Act’’) is entitled hours annually, with an associated cost $16,000) ($4760 + $4740 + $16,000 = $25,500 total cost). The Commission staff’s estimates concerning ‘‘Brokerage Transactions on a Securities of approximately $59,724.3 ’’ the wage rate for professional time are based on Exchange. The rule governs the salary information for the securities industry remuneration that a broker affiliated 1 Based on information in Commission filings, we compiled by the Securities Industry Association, with a registered investment company estimate that 42.5 percent of funds are advised by except for the estimate of $4000 per hour for a (‘‘fund’’) may receive in connection with subadvisers. board of directors. The $316 per hour estimate for securities transactions by the fund. The 2 This estimate is based on the following an attorney and the $119 per hour estimate for calculation (3 hours ÷ 4 rules = .75 hours). accountant time is from the SIFMA Report on rule requires a fund’s board of directors Management & Professional Earnings in the 3 These estimates are based on the following Securities Industry 2009, modified to account for an to establish, and review as necessary, calculations: (0.75 hours × 252 portfolios = 189 1800-hour work-year and multiplied by 5.35 to procedures reasonably designed to burden hours); ($316 per hour × 189 hours = account for bonuses, firm size, employee benefits $59,724 total cost). The Commission staff’s provide that the remuneration to an and overhead. estimates concerning the wage rates for attorney affiliated broker is a fair amount 5 This estimate is based on the following time are based on salary information for the × compared to that received by other securities industry compiled by the Securities calculation: (1161 funds 59 hours = 68,499). brokers in connection with transactions Industry Association. The $316 per hour figure for 6 This estimate is based on the following × in similar securities during a an attorney is from the SIFMA Report on calculation: ($25,500 1161 funds = $29,605,500). comparable period of time. Each Management & Professional Earnings in the 7 This estimate is based on the following Securities Industry 2009, modified to account for an calculation: (189 hours + 68,499 hours = 68,688 quarter, the board must determine that 1800-hour work-year and multiplied by 5.35 to total hours). all transactions with affiliated brokers account for bonuses, firm size, employee benefits 8 This estimate is based on the following during the preceding quarter complied and overhead. calculation: ($59,724 + $29,605,500 = $29,665,224).

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00073 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59752 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

Please direct general comments changes unanimously adopted by the propose to re-set the Television Ticker regarding the above information to the Participants. The Fifteenth Charges Maximum to $125,000 for calendar following persons: (i) Desk Officer for Amendment seeks to reduce the months falling in 2010. For calendar the Securities and Exchange maximum amount that any entity is months falling in subsequent calendar Commission, Office of Management and required to pay for any calendar years, the Participants would impose Budget, Room 10102, New Executive month’s charge for broadcast, cable or the Annual Increase Amount to the Office Building, Washington, DC 20503 satellite television distribution of a Television Ticker Maximum. For or send an email to Shagufta Ahmed at Network A ticker. Pursuant to Rule example, for calendar months falling in [email protected]; and (ii) 608(b)(3) under Regulation NMS, the 2011, the Participants would increase Jeff Heslop, Acting Director/Chief Participants designate the amendment 2010’s $125,000 monthly Television Information Officer, Securities and as establishing or changing a fee or other Ticker Maximum by the Annual Exchange Commission, C/O Remi charge collected on their behalf in Increase Amount. Pavlik-Simon, 6432 General Green Way, connection with access to, or use of, the The text of the proposed amendment Alexandria, VA, 22312; or send an e- facilities contemplated by the Plans. As is available on the CTA’s Web site mail to: [email protected]. a result, the amendment becomes (http://www.nysedata.com/cta), at the Comments must be submitted to OMB effective upon filing with the principal office of the CTA, and at the within 30 days of this notice. Commission. The Commission is Commission’s Public Reference Room. Dated: September 20, 2010. publishing this notice to solicit B. Additional Information Required by Florence E. Harmon, comments from interested persons on Rule 608(a) the proposed amendment. Deputy Secretary. 1. Governing or Constituent Documents [FR Doc. 2010–24187 Filed 9–27–10; 8:45 am] I. Rule 608(a) Not applicable. BILLING CODE 8010–01–P A. Description and Purpose of the 2. Implementation of the Amendment Amendment The reduction in the monthly SECURITIES AND EXCHANGE The CTA Plan currently imposes a Television Ticker Maximum currently COMMISSION monthly charge of $2.00 for every 1000 affects only one vendor. The households reached on broadcast, cable [Release No. 34–62966; File No. SR–CTA– Participants have notified that vendor. 2010–02] and satellite television distribution of a The Participants propose to implement ‘‘ Network A ticker (the Broadcast the change retroactively so that it Consolidated Tape Association; Notice ’’ Charge ). A minimum monthly vendor applies to all calendar months of 2010. of Filing and Immediate Effectiveness payment of $2,000 applies. CTA permits of the Fifteenth Charges Amendment prorating for those who broadcast the 3. Development and Implementation to the Second Restatement of the data for less than the entire business Phases Consolidated Tape Association Plan day, based upon the number of minutes See Item I(B)(2) above. that the vendor displays the real-time September 21, 2010. ticker, divided by the number of 4. Analysis of Impact on Competition Pursuant to Section 11A of the minutes the primary market is open for The amendment will impose no Securities Exchange Act of 1934 1 2 trading (currently 390 minutes). burden on competition. (‘‘Act’’), and Rule 608 thereunder, In 2007, the Participants introduced a 5. Written Understanding or Agreements notice is hereby given that on cap (the ‘‘Television Ticker Maximum’’) Relating to Interpretation of, or September 21, 2010, the Consolidated on the Broadcast Charge each calendar Participation in, Plan Tape Association (‘‘CTA’’) Plan and month. For months falling in calendar 3 participants (‘‘Participants’’) filed with year 2007, the ‘‘Television Ticker The Participants have no written the Securities and Exchange Maximum’’ was $150,000. understandings or agreements relating Commission (‘‘Commission’’) a proposal For each subsequent calendar year, to interpretation of the CTA Plan as a to amend the Second Restatement of the the monthly Television Ticker result of the amendment. 4 CTA Plan (the ‘‘CTA Plan’’). The Maximum increases by the ‘‘Annual proposal represents the fifteenth charges 6. Approval by Sponsors in Accordance Increase Amount.’’ The ‘‘Annual With Plan amendment to the CTA Plan (‘‘Fifteenth Increase Amount’’ is an amount equal to Charges Amendment’’), and reflects the percentage increase in the annual Under Section IV(b) of the CTA Plan, composite share volume for the each CTA Plan Participant must execute 1 15 U.S.C. 78k–1. preceding calendar year, subject to a a written amendment to the CTA Plan 2 17 CFR 242.608. maximum annual increase of five before the amendment can become 3 Each participant executed the proposed percent. For 2008, the ‘‘Annual Increase effective. The amendment is so amendment. The Participants are: BATS Exchange, executed. Inc.; Chicago Board Options Exchange, Inc.; Amount’’ raised the ‘‘Television Ticker Chicago Stock Exchange, Inc.; Financial Industry Maximum’’ to $157,500. For 2008, the 7. Description of Operation of Facility Regulatory Authority, Inc.; International Securities ‘‘Annual Increase Amount’’ raised the Exchange, LLC; NASDAQ OMX BX, Inc.; NASDAQ Contemplated by the Proposed OMX PHLX, Inc.; The NASDAQ Stock Market LLC; ‘‘Television Ticker Maximum’’ to Amendment National Stock Exchange, Inc.; New York Stock $164,000. The ‘‘Annual Increase Not applicable. Exchange LLC; NYSE Amex LLC; and NYSE Arca, Amount’’ is the same adjustment factor Inc. that the Network A rate schedule has 8. Terms and Conditions of Access 4 See Securities Exchange Act Release No. 10787 (May 10, 1974), 39 FR 17799 (declaring the CTA long applied to the monthly broker- Not applicable. Plan effective). The CTA Plan, pursuant to which dealer enterprise fee. markets collect and disseminate last sale price In light of the Network A Participants’ 9. Method of Determination and information for non-NASDAQ listed securities, is a experience with the Network A ticker, Imposition, and Amount of, Fees and ‘‘transaction reporting plan’’ under Rule 601 under Charges the Act, 17 CFR 242.601, and a ‘‘national market the Participants have determined to system plan’’ under Rule 608 under the Act, 17 CFR reduce the Television Ticker Maximum. The Participants believe that the 242.608. In the amendment, the Participants proposed reduction in the cap on

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00074 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59753

Broadcast Charges is fair and reasonable • Send an e-mail to rule- SECURITIES AND EXCHANGE and provides for an equitable allocation [email protected]. Please include File COMMISSION of dues, fees, and other charges among Number SR–CTA–2010–02 on the [Release No. 34–62963; File No. SR– vendors, data recipients and other subject line. NYSEAmex–2010–71] persons using CTA Network A facilities. Paper Comments 10. Method of Frequency of Processor Self-Regulatory Organizations; Notice Evaluation • Send paper comments in triplicate of Filing and Immediate Effectiveness of Proposed Rule Change by NYSE Not applicable. to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, Amex LLC Amending NYSE Amex 11. Dispute Resolution 100 F Street, NE., Washington, DC Equities Rule 36 Not applicable. 20549–1090. September 21, 2010. Pursuant to Section 19(b)(1) of the II. Rule 601(a) All submissions should refer to File Number SR–CTA–2010–02. This file Securities Exchange Act of 1934 (the ‘‘ ’’ 1 2 A. Equity Securities for Which number should be included on the Act ) and Rule 19b–4 thereunder, notice is hereby given that on Transaction Reports Shall Be Required subject line if e-mail is used. To help the by the Plan September 14, 2010, the NYSE Amex Commission process and review your LLC (‘‘NYSE Amex’’ or the ‘‘Exchange’’) Not applicable. comments more efficiently, please use filed with the Securities and Exchange B. Reporting Requirements only one method. The Commission will Commission (the ‘‘Commission’’) the post all comments on the Commission’s Not applicable. proposed rule change as described in Internet Web site (http://www.sec.gov/ Items I and II below, which Items have C. Manner of Collecting, Processing, rules/sro.shtml). Copies of the been prepared by the Exchange. The Sequencing, Making Available and submission, all subsequent Commission is publishing this notice to Disseminating Last Sale Information amendments, all written statements solicit comments on the proposed rule Not applicable. with respect to the Fifteenth Charges change from interested persons. Amendment to the CTA Plan that are D. Manner of Consolidation I. Self-Regulatory Organization’s filed with the Commission, and all Statement of the Terms of Substance of Not applicable. written communications relating to the the Proposed Rule Change Fifteenth Charges Amendment to the E. Standards and Methods Ensuring CTA Plan between the Commission and The Exchange proposes to amend Promptness, Accuracy and any person, other than those that may be NYSE Amex Equities Rule 36 Completeness of Transaction Reports (‘‘Communications Between Exchange withheld from the public in accordance and Members’ Offices’’) to incorporate Not applicable. with the provisions of 5 U.S.C. 552, will the provisions of its current Wireless F. Rules and Procedures Addressed to be available for Web site viewing and Policy. The text of the proposed rule Fraudulent or Manipulative printing in the Commission’s Public change is available at the Exchange, the Dissemination Reference Room, 100 F Street, NE., Commission’s Public Reference Room, Washington, DC 20549, on official Not applicable. and http://www.nyse.com. business days between the hours of 10 G. Terms of Access to Transaction a.m. and 3 p.m. Copies of the Fifteenth II. Self-Regulatory Organization’s Reports Charges Amendment to the CTA Plan Statement of the Purpose of, and also will be available for inspection and Statutory Basis for, the Proposed Rule The Network A Participants and the Change vendor that the proposed amendment copying at the principal office of the would affect have already entered into CTA. All comments received will be In its filing with the Commission, the the Network A Participants’ standard posted without change; the Commission self-regulatory organization included form of agreement. No new terms of does not edit personal identifying statements concerning the purpose of, access will apply, other than the information from submissions. You and basis for, the proposed rule change reduction to the cap on the Broadcast should submit only information that and discussed any comments it received Charge. you wish to make available publicly. All on the proposed rule change. The text of those statements may be examined at submissions should refer to File 8. Identification of Marketplace of the places specified in Item IV below. Number SR–CTA–2010–02 and should Execution The Exchange has prepared summaries, be submitted on or before October 19, Not applicable. set forth in sections A, B, and C below, 2010. of the most significant parts of such III. Solicitation of Comments For the Commission, by the Division of statements. Trading and Markets, pursuant to delegated Interested persons are invited to A. Self-Regulatory Organization’s authority.5 submit written data, views, and Statement of the Purpose of, and the arguments concerning the foregoing, Florence E. Harmon, Statutory Basis for, the Proposed Rule including whether the proposed Deputy Secretary. Change Fifteenth Charges Amendment to the [FR Doc. 2010–24226 Filed 9–27–10; 8:45 am] 1. Purpose CTA Plan is consistent with the Act. BILLING CODE 8010–01–P Comments may be submitted by any of NYSE Amex proposes to amend NYSE the following methods: Amex Equities Rule 36 ‘‘ Electronic Comments ( Communications Between Exchange and Members’ Offices’’) to incorporate • Use the Commission’s Internet comment form ( http://www.sec.gov/ 1 15 U.S.C. 78s(b)(1). rules/sro.shtml); or 5 17 CFR 200.30–3(a)(27). 2 17 CFR 240.19b–4.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00075 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59754 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

the provisions of its current Wireless the Commission, in Supplementary Fourth, the Exchange is clarifying that Policy into Supplementary Material .70 Material .70 of the Rule. In addition, the Floor brokers may send trade reports on of the Rule.3 The Wireless Policy was Exchange is making certain clarifying their hand-held devices. previously approved by the changes as part of the incorporation of Finally, the Exchange is clarifying Commission.4 the Wireless Policy into the Rule. that the Wireless Policy applies not only to member organizations but also to Background First, the Exchange proposes to clarify the language in Supplementary Material employees of member organizations. Current NYSE Amex Equities rules .70 and the Wireless Policy by using As proposed, Supplementary Material permit a Floor broker to communicate consistent terminology when referring .70 is substantially similar to the information to a customer using a wired to the hand-held devices in the Exchange’s Wireless Policy as 5 telephone line, NYSE Amex approved proposed rule change. Thus, for previously filed with and approved by 6 portable telephones, or through a example, references in paragraph (a) of the Commission. written electronic communication from the current Supplementary Material to 2. Statutory Basis the Floor brokers’ hand-held device as ‘‘wireless trading devices’’ would be permitted by the NYSE Amex’s changed to ‘‘wireless hand-held The basis under the Act for this ‘‘Wireless Data Communications devices.’’ The use of consistent proposed rule change is the requirement 8 Initiatives.’’ Wireless communications terminology would make clear that the under Section 6(b)(5) that an Exchange can be sent and received directly to and Exchange is referencing the same type of have rules that are designed to promote from a Floor broker’s hand-held device device in both paragraphs of the just and equitable principles of trade, to and orders entered from off the Floor proposed rule. remove impediments to and perfect the mechanism of a free and open market may be transmitted directly to a hand- Second, the Exchange is clarifying and a national market system and, in held device, bypassing the booth. Floor that Floor brokers may send order- general, to protect investors and the brokers may send order-related related messages outside their member public interest. The instant proposal is messages and information (e.g., organizations only to customers. In this in keeping with these principles cancellations and administrative regard, the Exchange is clarifying the because the incorporation of the messages, as well as market probes and rule text to provide that order-related Wireless Policy in the Exchange’s rules market looks) back to the customer messages and information include promotes transparency and makes clear directly through the hand-held device. market looks. The Exchange also notes Pursuant to the Exchange’s Wireless what type of information may be that a customer must be specifically Policy, a record must be established and communicated to and from hand-held enabled by the Floor broker to receive maintained for transmissions that are devices. communications from the Floor broker’s sent: (1) From a member’s off-Floor hand-held device. B. Self-Regulatory Organization’s location to a booth terminal and then Statement on Burden on Competition retransmitted from the booth terminal to For purposes of this proposed rule a member’s hand-held device; or (2) change, the term ‘‘customer’’ means a The Exchange does not believe that directly to the hand-held device, person who the Floor broker reasonably the proposed rule change will impose bypassing the booth. Orders sent from believes is receiving the order-related any burden on competition that is not off-Floor to the booth or the hand-held message(s) in consideration of a necessary or appropriate in furtherance device are first sent through a secured securities transaction or potential of the purposes of the Act. network and routed to an Exchange- securities transaction with the Floor broker. Whether such a belief is C. Self-Regulatory Organization’s wired database that captures and Statement on Comments on the records the orders. Likewise, order- reasonable is based on the relevant facts and circumstances including, without Proposed Rule Change Received From related messages or information Members, Participants, or Others generated from the Floor broker’s booth limitation: Whether the customer is a or hand-held device are transmitted bona fide market participant; any prior No written comments were solicited back to the Exchange-wired databases history of the customer entering orders or received with respect to the proposed via the secured wireless network, where with the Floor broker for execution on rule change. the Exchange; and acknowledgement by the information is captured and III. Date of Effectiveness of the recorded, and then sent off-Floor to the the customer (including by negative consent) that the customer is receiving Proposed Rule Change and Timing for customer via the Exchange’s secured Commission Action network. The Exchange records all of order-related messages in consideration the information sent to and transmitted of a securities transaction or potential Because the foregoing proposed rule from the hand-held devices. securities transaction with the Floor change does not: (i) Significantly affect broker. A Floor broker may provide the protection of investors or the public Proposed Amendments to NYSE Amex order-related messages to a customer interest; (ii) impose any significant Equities Rule 36 pursuant to proposed Supplementary burden on competition; and (iii) become The Exchange proposes to revise Material .70 notwithstanding the fact operative for 30 days from the date on NYSE Amex Equities Rule 36 to that the customer’s receipt of particular which it was filed, or such shorter time incorporate the provisions of its messages does not lead to an order with as the Commission may designate, it has Wireless Policy, previously approved by the Floor broker. become effective pursuant to Section Third, the Exchange is clarifying that 19(b)(3)(A) of the Act 9 and Rule 19b– 10 3 The Exchange notes that parallel changes are the Wireless Policy does not allow Floor 4(f)(6) thereunder. proposed to the rules of its affiliate, The New York brokers to retransmit datafeeds received Stock Exchange LLC. See SR–NYSE–2010–53. on hand-held devices or send orders to 8 15 U.S.C. 78f(b)(5). 4 See Securities Exchange Act Release No. 59627 9 another hand-held device.7 15 U.S.C. 78s(b)(3)(A). (March 25, 2009), 74 FR 14834 (April 1, 2009) (SR– 10 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– NYSEAmex–2009–02). The Wireless Policy was 4(f)(6) requires a self-regulatory organization to give attached as an exhibit to that proposed rule change. 7 However, Floor brokers are permitted to provide the Commission written notice of its intent to file 5 NYSE Amex Equities Rule 36.20. their customers with specific data points from the proposed rule change at least five business days 6 NYSE Amex Equities Rule 36.21. datafeeds made available on the hand-held devices. prior to the date of filing of the proposed rule

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00076 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59755

A proposed rule change filed subject line if e-mail is used. To help the SECURITIES AND EXCHANGE pursuant to Rule 19b–4(f)(6) under the Commission process and review your COMMISSION Act 11 normally does not become comments more efficiently, please use [Release No. 34–62965; File No. S7–24–89] operative for 30 days after the date of its only one method. The Commission will filing. However, Rule 19b–4(f)(6) 12 post all comments on the Commission’s Joint Industry Plan; Notice of Filing permits the Commission to designate a Internet Web site (http://www.sec.gov/ and Immediate Effectiveness of shorter time if such action is consistent rules/sro.shtml). Copies of the Amendment No. 22 to the Joint Self- with the protection of investors and the submission,14 all subsequent Regulatory Organization Plan public interest. NYSE Amex requests amendments, all written statements Governing the Collection, that the Commission waive the 30-day with respect to the proposed rule Consolidation and Dissemination of operative delay so that the proposal may change that are filed with the Quotation and Transaction Information become operative immediately upon Commission, and all written for Nasdaq-Listed Securities Traded on filing. The Commission notes that the communications relating to the Exchanges on an Unlisted Trading proposed rule change codifies into rule proposed rule change between the Privileges Basis Submitted by the text an existing policy and provides BATS Exchange, Inc., Chicago Board certain other clarifications. For this Commission and any person, other than those that may be withheld from the Options Exchange, Incorporated, reason, the Commission believes that Chicago Stock Exchange, Inc., public in accordance with the waiving the 30-day operative delay 13 is Financial Industry Regulatory consistent with the protection of provisions of 5 U.S.C. 552, will be Authority, Inc., International Securities investors and the public interest. available for website viewing and Exchange LLC, NASDAQ OMX BX, Inc., Therefore, the Commission designates printing in the Commission’s Public NASDAQ OMX PHLX, Inc., Nasdaq the proposal operative upon filing. Reference Room, on official business Stock Market LLC, National Stock At any time within the 60-day period days between the hours of 10 a.m. and Exchange, Inc., New York Stock beginning on the date of the filing of the 3 p.m. Copies of the filing also will be Exchange LLC, NYSE Amex, Inc., and proposed rule change, the Commission available for inspection and copying at NYSE Arca, Inc. summarily may temporarily suspend the principal office of the Exchange. All such rule change if it appears to the comments received will be posted September 21, 2010. Commission that such action is without change; the Commission does Pursuant to Rule 608 of the Securities 1 necessary or appropriate in the public not edit personal identifying Exchange Act of 1934 (the ‘‘Act’’) interest, for the protection of investors, information from submissions. You notice is hereby given that on September 21, 2010, the operating or otherwise in furtherance of the should submit only information that committee (‘‘Operating Committee’’ or purposes of the Act. you wish to make available publicly. All ‘‘Committee’’) 2 of the Joint Self- IV. Solicitation of Comments submissions should refer to File Regulatory Organization Plan Governing Number SR–NYSEAmex–2010–71 and Interested persons are invited to the Collection, Consolidation, and should be submitted on or before submit written data, views, and Dissemination of Quotation and October 19, 2010. arguments concerning the foregoing, Transaction Information for Nasdaq- including whether the proposed rule For the Commission, by the Division of Listed Securities Traded on Exchanges change is consistent with the Act. Trading and Markets, pursuant to delegated on an Unlisted Trading Privilege Basis Comments may be submitted by any of authority.15 (‘‘Nasdaq/UTP Plan’’ or ‘‘Plan’’) filed the following methods: Florence E. Harmon, with the Securities and Exchange Commission (‘‘Commission’’) an Deputy Secretary. Electronic Comments amendment to the Plan.3 This [FR Doc. 2010–24178 Filed 9–27–10; 8:45 am] • Use the Commission’s Internet amendment represents Amendment No. comment form (http://www.sec.gov/ BILLING CODE 8010–01–P 22 to the Plan and proposes to add rules/sro.shtml); or EDGA Exchange, Inc. and EDGX • Send an e-mail to rule- [email protected]. Please include File 1 17 CFR 242.608. Number SR–NYSEAmex–2010–71 on 2 The Plan Participants (collectively, ‘‘Participants’’) are the: BATS Exchange, Inc. the subject line. (‘‘BATS’’); Chicago Board Options Exchange, Incorporated (‘‘CBOE’’); Chicago Stock Exchange, Paper Comments Inc. (‘‘CHX’’); Financial Industry Regulatory • Send paper comments in triplicate Authority, Inc. (‘‘FINRA’’); International Securities Exchange LLC (‘‘ISE’’); NASDAQ OMX BX, Inc. to Elizabeth M. Murphy, Secretary, (‘‘BX’’); NASDAQ OMX PHLX, Inc. (‘‘PHLX’’); Securities and Exchange Commission, Nasdaq Stock Market LLC (‘‘Nasdaq’’); National 100 F Street, NE., Washington, DC Stock Exchange, Inc. (‘‘NSX’’); New York Stock 20549–1090. Exchange LLC (‘‘NYSE’’); NYSE Amex, Inc. (‘‘NYSEAmex’’); and NYSE Arca, Inc. (‘‘NYSEArca’’). All submissions should refer to File 3 The Plan governs the collection, processing, and Number SR–NYSEAmex–2010–71. This dissemination on a consolidated basis of quotation file number should be included on the information and transaction reports in Eligible Securities for each of its Participants. This consolidated information informs investors of the change, or such shorter time as designated by the current quotation and recent trade prices of Nasdaq Commission. NYSE Amex has satisfied this securities. It enables investors to ascertain from one requirement. data source the current prices in all the markets 11 17 CFR 240.19b–4(f)(6). trading Nasdaq securities. The Plan serves as the 12 17 CFR 240.19b–4(f)(6). required transaction reporting plan for its 14 The text of the proposed rule change is 13 For purposes only of waiving the 30-day Participants, which is a prerequisite for their operative delay, the Commission has considered the available on the Commission’s Web site at http:// trading Eligible Securities. See Securities Exchange proposed rule’s impact on efficiency, competition, www.sec.gov/rules/sro.shtml. Act Release No. 55647 (April 19, 2007) 72 FR 20891 and capital formation. See 15 U.S.C. 78c(f). 15 17 CFR 200.30–3(a)(12). (April 26, 2007).

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00077 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59756 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

Exchange, Inc. to the Plan. The II. Rule 601(a) communications relating to the Commission is publishing this notice to proposed Plan amendment between the A. Reporting Requirements solicit comments from interested Commission and any person, other than persons on the proposed Amendment. Not applicable. those that may be withheld from the public in accordance with the I. Rule 608(a) B. Manner of Collecting, Processing, Sequencing, Making Available and provisions of 5 U.S.C. 552, will be A. Purpose of the Amendments Disseminating Last Sale Information available for Web site viewing and printing in the Commission’s Public The amendment proposes to add Not applicable. Reference Room on official business EDGA Exchange, Inc. and EDGX days between the hours of 10 a.m. and Exchange, Inc. as new Participants to C. Manner of Consolidation 3 p.m. Copies of the filing also will be each Plan. Not applicable. available for Web site viewing and B. Governing or Constituent Documents D. Standards and Methods Ensuring printing at the Office of the Secretary of the Committee, currently located at the Not applicable. Promptness, Accuracy and Completeness of Transaction Reports CBOE, 400 S. LaSalle Street, Chicago, IL C. Implementation of Amendment 60605. All comments received will be Not applicable. Because the Participants designate the posted without change; the Commission amendment as concerned solely with E. Rules and Procedures Addressed to does not edit personal identifying the administration of the Plan, the Fraudulent or Manipulative information from submissions. You amendment becomes effective upon Dissemination should submit only information that you wish to make available publicly. All filing with the Commission. Not applicable. submissions should refer to File D. Development and Implementation F. Terms of Access to Transaction Number S7–24–89 and should be Phases Reports submitted on or before October 19, Not applicable. Not applicable. 2010. For the Commission, by the Division of E. Analysis of Impact on Competition G. Identification of Marketplace of Trading and Markets, pursuant to delegated Execution 4 The proposed amendment does not authority. impose any burden on competition that Not Applicable. Florence E. Harmon, Deputy Secretary. is not necessary or appropriate in III. Solicitation of Comments furtherance of the purposes of the Exhibit A Exchange Act. The Participants do not The Commission seeks general believe that the proposed plan comments on Amendment No. 22. Nasdaq UTP Plan amendment introduces terms that are Interested persons are invited to submit Amended and Restated Plan unreasonably discriminatory for the written data, views, and arguments purposes of Section 11A(c)(1)(D) of the concerning the foregoing, including Amendment No. 22 Exchange Act. whether the proposal is consistent with The undersigned registered national the Act. Comments may be submitted by securities association and national F. Written Understanding or Agreements any of the following methods: securities exchanges (collectively Relating to Interpretation of, or referred to as the ‘‘Participants’’), have Participation in, Plan Electronic Comments jointly developed and hereby enter into • Not applicable. Use the Commission’s Internet this Nasdaq Unlisted Trading Privileges comment form (http://www.sec.gov/ Plan (‘‘Nasdaq UTP Plan’’ or ‘‘Plan’’). G. Approval by Sponsors in Accordance rules/sro.shtml); or With Plan • Send an e-mail to rule- I. Participants Each of the Plan’s Participants has [email protected]. Please include File The Participants include the executed a written amendment to the Number S7–24–89 on the subject line. following: Plan. Paper Comments A. Participants H. Description of Operation of Facility • Send paper comments in triplicate 1. BATS Exchange, Inc. Contemplated by the Proposed to Elizabeth M. Murphy, Secretary, 8050 Marshall Drive Amendment Securities and Exchange Commission, Lenexa, Kansas 66214 Not applicable. 100 F Street, NE., Washington, DC 2. Chicago Board Options Exchange, 20549–1090. Inc. I. Terms and Conditions of Access All submissions should refer to File 400 South LaSalle Street, 26th Floor Chicago, Illinois 60605 See Item I(A) above. Number S7–24–89. This file number should be included on the subject line 3. Chicago Stock Exchange 440 South LaSalle Street J. Method of Determination and if e-mail is used. To help the Chicago, Illinois 60605 Imposition, and Amount of, Fees and Commission process and review your Charges 4. EDGA Exchange, Inc. comments more efficiently, please use 545 Washington Boulevard See Item I(A) above. only one method. The Commission will Sixth Floor post all comments on the Commission’s Jersey City, NJ 07310 K. Method and Frequency of Processor Internet Web site (http://www.sec.gov/ Evaluation 5. EDGX Exchange, Inc. rules/sro.shtml). Copies of the 545 Washington Boulevard Not applicable. submission, all written statements with Sixth Floor respect to the proposed Plan Jersey City, NJ 07310 L. Dispute Resolution amendment that are filed with the Not applicable. Commission, and all written 4 17 CFR 200.30–3(a)(27).

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00078 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59757

6. Financial Industry Regulatory Information, such Transaction Reports the case of FINRA, the FINRA Authority, Inc. or Quotation Information during the Participant(s) that constitutes FINRA’s 1735 K Street, N.W. fifteen (15) minute period immediately Best Bid and Offer quotations. Washington, D.C. 20006 following the initial transmission I. ‘‘Nasdaq System’’ means collectively 7. International Securities Exchange, thereof by the Processor. the automated quotation system LLC B. ‘‘Eligible Security’’ means any operated by Nasdaq and the system 60 Broad Street Nasdaq Global Market or Nasdaq Capital provided for in the Transaction New York, New York 10004 Market security, as defined in NASDAQ Reporting Plan filed with and approved 8. NASDAQ OMX BX, Inc. Rule 4200. Eligible Securities under this by the Commission pursuant to SEC One Liberty Plaza Nasdaq UTP Plan shall not include any Rule 11Aa3–1, subsequently re- New York, New York 10006 security that is defined as an ‘‘Eligible designated as Rule 601 of Regulation 9. NASDAQ OMX PHLX, Inc. Security’’ within Section VII of the NMS, governing the reporting of 1900 Market Street Consolidated Tape Association Plan. transactions in Nasdaq securities. Philadelphia, Pennsylvania 19103 A security shall cease to be an Eligible J. ‘‘UTP Trade Data Feed’’ means the 10. National Stock Exchange, Inc. Security for purposes of this Plan if: (i) service that provides Vendors and 101 Hudson, Suite 1200 The security does not substantially meet Subscribers with Transaction Reports. Jersey City, NJ 07302 the requirements from time to time in K. ‘‘Nasdaq Security’’ or ‘‘Nasdaq- 11. New York Stock Exchange LLC effect for continued listing on Nasdaq, listed Security’’ means any security 11 Wall Street and thus is suspended from trading; or listed on the Nasdaq Global Market or New York, New York 10005 (ii) the security has been suspended Nasdaq Capital Market. 12. NYSE Amex LLC from trading because the issuer thereof L. ‘‘News Service’’ means a person 20 Broad Street is in liquidation, bankruptcy or other who receives Transaction Reports or New York, New York 10005 similar type proceedings. The Quotation Information provided by the 13. NYSE Arca, Inc. determination as to whether a security Nasdaq System or provided by a 100 South Wacker Drive substantially meets the criteria of the Vendor, on a Current basis, in Suite 1800 definition of Eligible Security shall be connection with such person’s business Chicago, IL 60606 made by the exchange on which such of furnishing such information to 14. The Nasdaq Stock Market LLC security is listed provided, however, newspapers, radio and television 1 Liberty Plaza that if such security is listed on more stations and other news media, for 165 Broadway than one exchange then such publication at least fifteen (15) minutes New York, NY 10006 determination shall be made by the following the time when the B. Additional Participants exchange on which, the greatest number information first has been published by of the transactions in such security were the Processor. Any other national securities effected during the previous twelve- M. ‘‘OTC Montage Data Feed’’ means association or national securities month period. the data stream of information that exchange, in whose market Eligible C. ‘‘Commission’’ and ‘‘SEC’’ shall provides Vendors and Subscribers with Securities become traded, may become mean the U.S. Securities and Exchange quotations and sizes from each FINRA a Participant, provided that said Commission. Participant. organization executes a copy of this D. ‘‘Exchange Act’’ means the N. ‘‘Participant’’ means a registered Plan, provides to the Processor its Securities Exchange Act of 1934, as national securities exchange or national Projected Processor Capacity amended. securities association that is a signatory Requirements, as specified in Exhibit 3, E. ‘‘Market’’ shall mean (i) when used to this Plan. and pays its share of development costs with respect to Quotation Information, O. ‘‘Plan’’ means this Nasdaq UTP as specified in Section XIII. FINRA in the case of a FINRA Plan, as from time to time amended Participant, or the Participant on whose according to its provisions, governing II. Purpose of Plan floor or through whose facilities the the collection, consolidation and The purpose of this Plan is to provide quotation was disseminated; and (ii) dissemination of Quotation Information for the collection, consolidation and when used with respect to Transaction and Transaction Reports in Eligible dissemination of Quotation Information Reports, the Participant through whose Securities. and Transaction Reports in Eligible facilities the transaction took place or is P. ‘‘Processor’’ means the entity Securities from the Participants in a reported, or the Participant to whose selected by the Participants to perform manner consistent with the Exchange facilities the order was sent for the processing functions set forth in the Act. The Participants commenced execution. Plan. publication of Quotation Information F. ‘‘FINRA’’ means the Financial Q. ‘‘Quotation Information’’ means all and Transaction Reports on Eligible Industry Regulatory Authority, Inc. bids, offers, displayed quotation sizes, Securities as contemplated by this Plan G. ‘‘FINRA Participant’’ means a the market center identifiers and, in the on July 12, 1993. FINRA member that is registered as a case of FINRA, the FINRA Participant It is expressly understood that each market maker or an electronic that entered the quotation, withdrawals Participant shall be responsible for the communications network or otherwise and other information pertaining to collection of Quotation Information and utilizes the facilities of FINRA pursuant quotations in Eligible Securities Transaction Reports within its market to applicable FINRA rules. required to be collected and made and that nothing in this Plan shall be H. ‘‘UTP Quote Data Feed’’ means the available to the Processor pursuant to deemed to govern or apply to the service that provides Subscribers with this Plan. manner in which each Participant does the National Best Bid and Offer R. ‘‘Regulatory Halt’’ means a trade so. quotations, size and market center suspension or halt called for the identifier, as well as the Best Bid and purpose of dissemination of material III. Definitions Offer quotations, size and market center news, as described at Section X hereof A. ‘‘Current’’ means, with respect to identifier from each individual or that is called for where there are Transaction Reports or Quotation Participant in Eligible Securities and, in regulatory problems relating to an

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00079 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59758 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

Eligible Security that should be clarified and one alternate representative to b. amendments to contracts between before trading therein is permitted to attend regularly scheduled Operating the Processor and Vendors, Subscribers, continue, including a trading halt for Committee meetings in the capacity of News Services and others receiving extraordinary market activity due to an observer/advisor. If the Quotation Information and Transaction system misuse or malfunction under Organization’s Form 1 petition is Reports in Eligible Securities; Section X.E.1. of the Plan withdrawn, returned, or is otherwise not c. replacement of the Processor, (‘‘Extraordinary Market Regulatory actively pending with the Commission except for termination for cause, which Halt’’). for any reason, then the Organization shall be governed by Section V(B) S. ‘‘Subscriber’’ means a person who will no longer be eligible to be hereof; receives Current Quotation Information represented in the Operating Committee d. reductions in existing fees relating or Transaction Reports provided by the meetings. The Operating Committee to Quotation Information and Processor or provided by a Vendor, for shall have the discretion, in limited Transaction Reports in Eligible its own use or for distribution on a non- instances, to deviate from this policy if, Securities; and Current basis, other than in connection as indicated by majority vote, the e. except as provided under Section with its activities as a Vendor. Operating Committee agrees that IV(C)(3) hereof, requests for system T. ‘‘Transaction Reports’’ means circumstances so warrant. changes; and reports required to be collected and Nothing in this section or elsewhere f. all other matters not specifically made available pursuant to this Plan within the Plan shall authorize any addressed by the Plan. containing the stock symbol, price, and person or organization other than 2. With respect to the establishment of size of the transaction executed, the Participants, their representatives, and new fees or increases in existing fees Market in which the transaction was members of the Advisory Committee to relating to Quotation Information and executed, and related information, participate on the Operating Committee Transaction Reports in Eligible including a buy/sell/cross indicator and in any manner other than as an advisor Securities, the affirmative vote of two- trade modifiers, reflecting completed or observer. Only the Participants and thirds of the Participants entitled to vote transactions in Eligible Securities. their representatives as well as shall be necessary to constitute the U. ‘‘Vendor’’ means a person who Commission staff may participate in action of the Operating Committee. receives Current Quotation Information Executive Sessions of the Operating 3. The affirmative vote of a majority or Transaction Reports provided by the Committee. of the Participants entitled to vote shall Processor or provided by a Vendor, in be necessary to constitute the action of connection with such person’s business B. Operating Committee: Authority the Operating Committee with respect of distributing, publishing, or otherwise The Operating Committee shall be to: furnishing such information on a responsible for: a. requests for system changes Current basis to Subscribers, News 1. Overseeing the consolidation of reasonably related to the function of the Services or other Vendors. Quotation Information and Transaction Processor as defined under the Plan. All Reports in Eligible Securities from the other requests for system changes shall IV. Administration of Plan Participants for dissemination to be governed by Section IV(C)(1)(e) A. Operating Committee: Composition Vendors, Subscribers, News Services hereof. and others in accordance with the b. interpretive matters and decisions The Plan shall be administered by the provisions of the Plan; of the Operating Committee arising Participants through an operating 2. Periodically evaluating the under, or specifically required to be ‘‘ ’’ committee ( Operating Committee ), Processor; taken by, the provisions of the Plan as which shall be composed of one 3. Setting the level of fees to be paid written; representative designated by each by Vendors, Subscribers, News Services c. interpretive matters arising under Participant. Each Participant may or others for services relating to Rules 601 and 602 of Regulation NMS; designate an alternate representative or Quotation Information or Transaction and representatives who shall be authorized Reports in Eligible Securities, and d. denials of access (other than for to act on behalf of the Participant in the taking action in respect thereto in breach of contract, which shall be absence of the designated accordance with the provisions of the handled by the Processor), representative. Within the areas of its Plan; 4. It is expressly agreed and responsibilities and authority, decisions 4. Determining matters involving the understood that neither this Plan nor made or actions taken by the Operating interpretation of the provisions of the the Operating Committee shall have Committee, directly or by duly Plan; authority in any respect over any delegated individuals, committees as 5. Determining matters relating to the Participant’s proprietary systems. Nor may be established from time to time, or Plan’s provisions for cost allocation and shall the Plan or the Operating others, shall be binding upon each revenue-sharing; and Committee have any authority over the Participant, without prejudice to the 6. Carrying out such other specific collection and dissemination of rights of any Participant to seek redress responsibilities as provided under the quotation or transaction information in from the SEC pursuant to Rule 608 of Plan. Eligible Securities in any Participant’s Regulation NMS under the Exchange marketplace, or, in the case of FINRA, Act or in any other appropriate forum. C. Operating Committee: Voting from FINRA Participants. An Electronic Communications Each Participant shall have one vote D. Operating Committee: Meetings Network, Alternative Trading System, on all matters considered by the Broker-Dealer or other securities Operating Committee. Regular meetings of the Operating organization (‘‘Organization’’) which is 1. The affirmative and unanimous Committee may be attended by each not a Participant, but has an actively vote of all Participants entitled to vote Participant’s designated representative pending Form 1 Application on file shall be necessary to constitute the and/or its alternate representative(s), with the Commission to become a action of the Operating Committee with and may be attended by one or more national securities exchange, will be respect to: other representatives of the parties. permitted to appoint one representative a. Amendments to the Plan; Meetings shall be held at such times and

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00080 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59759

locations as shall from time to time be of all Participants entitled to vote frequently than once each year. Based determined by the Operating consent thereto in writing or other on this review, the Operating Committee Committee. means the Operating Committee deems may choose to make a recommendation Quorum: Any action requiring a vote acceptable. to the Participants with respect to the only can be taken at a meeting in which continuing operation of the Processor. E. Advisory Committee a quorum of all Participants is present. The Operating Committee shall notify For actions requiring a simple majority (a) Formation. Notwithstanding any the SEC of any recommendations the vote of all Participants, a quorum of other provision of this Plan, an Operating Committee shall make greater than 50% of all Participants Advisory Committee to the Plan shall be pursuant to the Operating Committee’s entitled to vote must be present at the formed and shall function in accordance review of the Processor and shall supply meeting before such a vote may be with the provisions set forth in this the Commission with a copy of any taken. For actions requiring a 2/3rd section. reports that may be prepared in majority vote of all Participants, a (b) Composition. Members of the connection therewith. quorum of at least 2/3rd of all Advisory Committee shall be selected Participants entitled to vote must be for two year terms as follows: B. Termination of the Processor for present at the meeting before such a (1) Operating Committee Selections. Cause vote may be taken. For actions requiring By affirmative vote of a majority of the If the Operating Committee a unanimous vote of all Participants, a Participants entitled to vote, the determines that the Processor has failed quorum of all Participants entitled to Operating Committee shall select at to perform its functions in a reasonably vote must be present at the meeting least one representative from each of the acceptable manner in accordance with before such a vote may be taken. following categories to be members of the provisions of the Plan or that its A Participant is considered present at the Advisory Committee: (i) A broker- reimbursable expenses have become a meeting only if a Participant’s dealer with a substantial retail investor excessive and are not justified on a cost designated representative or alternate customer base, (ii) a broker-dealer with basis, the Processor may be terminated representative(s) is either in physical a substantial institutional investor at such time as may be determined by attendance at the meeting or is customer base, (iii) an alternative trade a majority vote of the Operating participating by conference telephone, system, (iv) a data vendor, and (v) an Committee. or other acceptable electronic means. investor. Any action sought to be resolved at a C. Factors To Be Considered in (2) Participant Selections. Each Termination for Cause meeting must be sent to each Participant Participant shall have the right to select entitled to vote on such matter at least one member of the Advisory Committee. Among the factors to be considered in one week prior to the meeting via A Participant shall not select any person evaluating whether the Processor has electronic mail, regular U.S. or private employed by or affiliated with any performed its functions in a reasonably mail, or facsimile transmission, participant or its affiliates or facilities. acceptable manner in accordance with provided however that this requirement (c) Function. Members of the the provisions of the Plan shall be the may be waived by the vote of the Advisory Committee shall have the right reasonableness of its response to percentage of the Committee required to to submit their views to the Operating requests from Participants for vote on any particular matter, under Committee on Plan matters, prior to a technological changes or enhancements Section C above. decision by the Operating Committee on pursuant to Section IV(C)(3) hereof. The Any action may be taken without a such matters. Such matters shall reasonableness of the Processor’s meeting if a consent in writing, setting include, but not be limited to, any new response to such requests shall be forth the action so taken, is sent to and or modified product, fee, contract, or evaluated by the Operating Committee signed by all Participant representatives pilot program that is offered or used in terms of the cost to the Processor of entitled to vote with respect to the pursuant to the Plan. purchasing the same service from a subject matter thereof. All the approvals (d) Meetings and Information. third party and integrating such service evidencing the consent shall be Members of the Advisory Committee into the Processor’s existing systems delivered to the Chairman of the shall have the right to attend all and operations as well as the extent to Operating Committee to be filed in the meetings of the Operating Committee which the requested change would Operating Committee records. The and to receive any information adversely impact the then current action taken shall be effective when the concerning Plan matters that is technical (as opposed to business or minimum number of Participants distributed to the Operating Committee; competitive) operations of the entitled to vote have approved the provided, however, that the Operating Processor. action, unless the consent specifies a Committee may meet in executive D. Processor’s Right To Appeal different effective date. session if, by affirmative vote of a The Chairman of the Operating Termination for Cause majority of the Participants entitled to Committee shall be elected annually by vote, the Operating Committee The Processor shall have the right to and from among the Participants by a determines that an item of Plan business appeal to the SEC a determination of the majority vote of all Participants entitled requires confidential treatment. Operating Committee terminating the to vote. The Chairman shall designate a Processor for cause and no action shall person to act as Secretary to record the V. Selection and Evaluation of the become final until the SEC has ruled on minutes of each meeting. The location Processor the matter and all legal appeals of right of meetings shall be rotated among the A. Generally therefrom have been exhausted. locations of the principal offices of the Participants, or such other locations as The Processor’s performance of its E. Process for Selecting New Processor may from time to time be determined by functions under the Plan shall be At any time following effectiveness of the Operating Committee. subject to review by the Operating the Plan, but no later than upon the Meetings may be held by conference Committee at least every two years, or termination of the Processor, whether telephone and action may be taken from time to time upon the request of for cause pursuant to Section IV(C)(1)(c) without a meeting if the representatives any two Participants but not more or V(B) of the Plan or upon the

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00081 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59760 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

Processor’s resignation, the Operating C. Dissemination of Information reported shall be deemed to be the best. Committee shall establish procedures The Processor shall disseminate A reduction of only bid size and/or ask for selecting a new Processor (the consolidated Quotation Information and size will not change the time priority of ‘‘Selection Procedures’’). The Operating Transaction Reports in Eligible a Participant’s quote for the purposes of Committee, as part of the process of Securities via the UTP Quote Data Feed, determining time reported, whereas an establishing Selection Procedures, may the UTP Trade Data Feed, and the OTC increase of the bid size and/or ask size solicit and consider the timely comment Montage Data Feed to authorized will result in a new time reported. The of any entity affected by the operation Vendors, Subscribers and News Services consolidated size shall be the size of the of this Plan. The Selection Procedures in a fair and non-discriminatory Participant that is at the best. shall be established by a two-thirds manner. The Processor shall specifically If the best bid/best offer results in a majority vote of the Plan Participants, be permitted to enter into agreements locked or crossed quotation, the and shall set forth, at a minimum: with Vendors, Subscribers and News Processor shall forward that locked or 1. The entity that will: Services for the dissemination of crossed quote on the appropriate output (a) draft the Operating Committee’s quotation or transaction information on lines (i.e., a crossed quote of bid 12, ask request for proposal for bids on a new Eligible Securities to foreign (non-U.S.) 11.87 shall be disseminated). The processor; marketplaces or in foreign countries. Processor shall normally cease the (b) assist the Operating Committee in The Processor shall, in such instance, calculation of the best bid/best offer evaluating bids for the new processor; disseminate consolidated quotation or after 6:30 p.m., Eastern Time. and transaction information on Eligible 2. Quotation Data Streams (c) otherwise provide assistance and Securities from all Participants. guidance to the Operating Committee in Nothing herein shall be construed so The Processor shall disseminate on the selection process. as to prohibit or restrict in any way the the UTP Quote Data Feed a data stream 2. the minimum technical and right of any Participant to distribute of all Quotation Information regarding operational requirements to be fulfilled quotation, transaction or other Eligible Securities received from by the Processor; information with respect to Eligible Participants. Each quotation shall be 3. the criteria to be considered in Securities quoted on or traded in its designated with a symbol identifying selecting the Processor; and marketplace to a marketplace outside the Participant from which the 4. the entities (other than Plan the United States solely for the purpose quotation emanates and, in the case of Participants) that are eligible to of supporting an intermarket linkage, or FINRA, the FINRA Participant(s) that comment on the selection of the to distribute information within its own constitutes FINRA’s Best Bid and Offer Processor. marketplace concerning Eligible quotations. In addition, the Processor Nothing in this provision shall be Securities in accordance with its own shall separately distribute on the OTC interpreted as limiting Participants’ format. If a Participant requests, the Montage Data Feed the Quotation rights under Section IV or Section V of Processor shall make information about Information regarding Eligible Securities the Plan or other Commission order. Eligible Securities in the Participant’s from all FINRA Participants from which VI. Functions of the Processor marketplace available to a foreign quotations emanate. marketplace on behalf of the requesting 3. Transaction Reports A. Generally Participant, in which event the cost The Processor shall collect from the shall be borne by that Participant. The Processor shall disseminate on Participants, and consolidate and the UTP Trade Data Feed a data stream 1. Best Bid and Offer disseminate to Vendors, Subscribers and of all Transaction Reports in Eligible News Services, Quotation Information The Processor shall disseminate on Securities received from Participants. and Transaction Reports in Eligible the UTP Quote Data Feed the best bid Each transaction report shall be Securities in a manner designed to and offer information supplied by each designated with a symbol identifying assure the prompt, accurate and reliable Participant, including the FINRA the Participant in whose Market the collection, processing and Participant(s) that constitutes FINRA’s transaction took place. dissemination of information with single Best Bid and Offer quotations, D. Closing Reports respect to all Eligible Securities in a fair and shall also calculate and disseminate and non-discriminatory manner. The on the UTP Quote Data Feed a national At the conclusion of each trading day, Processor shall commence operations best bid and asked quotation with size the Processor shall disseminate a upon the Processor’s notification to the based upon Quotation Information for ‘‘closing price’’ for each Eligible Participants that it is ready and able to Eligible Securities received from Security. Such ‘‘closing price’’ shall be commence such operations. Participants. The Processor shall not the price of the last Transaction Report calculate the best bid and offer for any in such security received prior to B. Collection and Consolidation of individual Participant, including dissemination. The Processor shall also Information FINRA. tabulate and disseminate at the For as long as Nasdaq is the Processor, The Participant responsible for each conclusion of each trading day the the Processor shall be capable of side of the best bid and asked quotation aggregate volume reflected by all receiving Quotation Information and making up the national best bid and Transaction Reports in Eligible Transaction Reports in Eligible offer shall be identified by an Securities reported by the Participants. Securities from Participants by the Plan- appropriate symbol. If the quotations of E. Statistics approved, Processor sponsored more than one Participant shall be the interface, and shall consolidate and same best price, the largest displayed The Processor shall maintain disseminate such information via the size among those shall be deemed to be quarterly, semi-annual and annual UTP Quote Data Feed, the UTP Trade the best. If the quotations of more than transaction and volume statistical Data Feed, and the OTC Montage Data one Participant are the same best price counts. The Processor shall, at cost to Feed to Vendors, Subscribers and News and best displayed size, the earliest the user Participant(s), make such Services. among those measured by the time statistics available in a form agreed

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00082 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59761

upon by the Operating Committee, such in its Market by means prescribed CODE PARTICIPANT as a secure Web site. herein. With respect to orders sent by one Market to another Market for Z ...... BATS Exchange, Inc. F. Capacity Planning execution, each Participant shall adopt B ...... NASDAQ OMX BX, Inc. 1. The Processor shall provide procedures governing the reporting of W ...... Chicago Board Options Ex- computer and communications facility transactions in Eligible Securities change, Inc. M ...... Chicago Stock Exchange, capacity in accordance with a capacity specifying that the transaction will be planning process set forth in Exhibit 3, Inc. reported by the Participant whose I ...... International Securities Ex- which process may be modified by the member sold the security. This change, LLC. Operating Committee from time to time, provision shall apply only to D ...... Financial Industry Regu- requiring a simple majority vote. transactions between Participants. latory Authority, Inc. 2. The Processor shall establish Transaction Reports shall include: Q ...... Nasdaq Stock Market LLC. information barriers to ensure that 1. Identification of the Eligible C ...... National Stock Exchange, information revealed by any Plan Security, using the Nasdaq Symbol; Inc. Participant to the Processor during the 2. the number of shares in the N ...... New York Stock Exchange capacity planning process is not shared transaction; LLC. with any other Plan Participant, 3. the price at which the shares were P ...... NYSE Arca, Inc. including Nasdaq, other than purchased or sold; X ...... Nasdaq OMX PHLX, Inc. information that is aggregated for all 4. the buy/sell/cross indicator; D. Whenever a Participant determines Plan Participants. 5. the Market of execution; and, 3. Plan Participants shall cooperate 6. through appropriate codes and that a level of trading activity or other fully in the capacity planning process messages, late or out-of-sequence trades, unusual market conditions prevent it including complying with all corrections and similar matters. from collecting and transmitting requirements set forth in Exhibit 3. All such Transaction Reports shall be Quotation Information or Transaction transmitted to the Processor within 90 Reports to the Processor, or where a VII. Administrative Functions of the seconds after the time of execution of trading halt or suspension in an Eligible Processor the transaction. Transaction Reports Security is in effect in its Market, the Subject to the general direction of the transmitted beyond the 90-second Participant shall promptly notify the Operating Committee, the Processor period shall be designated as ‘‘late’’ by Processor of such condition or event shall be responsible for carrying out all the appropriate code or message. and shall resume collecting and administrative functions necessary to The following types of transactions transmitting Quotation Information and the operation and maintenance of the are not required to be reported to the Transaction Reports to it as soon as the consolidated information collection and Processor pursuant to the Plan: condition or event is terminated. In the dissemination system provided for in 1. Transactions that are part of a event of a system malfunction resulting this Plan, including, but not limited to, primary distribution by an issuer or of in the inability of a Participant or its record keeping, billing, contract a registered secondary distribution or of members to transmit Quotation administration, and the preparation of an unregistered secondary distribution; Information or Transaction Reports to financial reports. 2. transactions made in reliance on the Processor, the Participant shall Section 4(2) of the Securities Act of promptly notify the Processor of such VIII. Transmission of Information to 1933; event or condition. Upon receiving such Processor by Participants 3. transactions in which the buyer and notification, the Processor shall take A. Quotation Information the seller have agreed to trade at a price appropriate action, including either unrelated to the current market for the closing the quotation or purging the Each Participant shall, during the security, e.g., to enable the seller to system of the affected quotations. time it is open for trading be responsible make a gift; promptly to collect and transmit to the 4. odd-lot transactions; IX. Market Access Processor accurate Quotation 5. the acquisition of securities by a Pursuant to the requirements of Rule Information in Eligible Securities broker-dealer as principal in 610 of Regulation NMS, a Participant through any means prescribed herein. anticipation of making an immediate that operates an SRO trading facility Quotation Information shall include: exchange distribution or exchange shall provide for fair and efficient order 1. identification of the Eligible offering on an exchange; execution access to quotations in each Security, using the Nasdaq Symbol; 6. purchases of securities pursuant to 2. the price bid and offered, together Eligible Security displayed through its a tender offer; and trading facility. In the case of a with size; 7. purchases or sales of securities 3. the FINRA Participant along with Participant that operates an SRO effected upon the exercise of an option display-only quotation facility, trading the FINRA Participant’s market pursuant to the terms thereof or the participant identification or Participant centers posting quotations through such exercise of any other right to acquire SRO display-only quotation facility from which the quotation emanates; securities at a pre-established 4. identification of quotations that are must provide for fair and efficient order consideration unrelated to the current execution access to quotations in each not firm; and market. 5. through appropriate codes and Eligible Security displayed through the messages, withdrawals and similar C. Symbols for Market Identification for SRO display-only quotation facility. A matters. Quotation Information and Transaction Participant that operates an SRO trading Reports facility may elect to allow such access B. Transaction Reports The following symbols shall be used to its quotations through the utilization Each Participant shall, during the to denote the marketplaces: of private electronic linkages between time it is open for trading, be the Participant and other trading responsible promptly to collect and CODE PARTICIPANT centers. In the case of a Participant that transmit to the Processor Transaction operates an SRO display-only quotation Reports in Eligible Securities executed A ...... NYSE Amex LLC. facility, trading centers posting

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00083 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59762 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

quotations through such SRO display- B. Whenever the Listing Market Participant that becomes aware of only quotation facility may elect to determines that adequate publication or extraordinary market activity will allow such access to their quotations dissemination of information has immediately use best efforts to notify all through the utilization of private occurred so as to permit the termination Participants of the extraordinary market electronic linkages between the trading of the Regulatory Halt then in effect, the activity utilizing the Hoot-n-Holler center and SRO trading facilities of Listing Market shall promptly notify the system. Participants and/or other trading Processor and each of the other b. The Listing Market will use best centers. Participants that conducts trading in efforts to determine whether there is In accordance with Regulation NMS, such security pursuant to Section X.F. material news regarding the Eligible a Participant shall not impose, or permit Except in extraordinary circumstances, Security. If the Listing Market to be imposed, any fee or fees for the adequate publication or dissemination determines that there is undisclosed execution of an order against a protected shall be presumed by the Listing Market material news, it will immediately call quotation of the Participant or of a to have occurred upon the expiration of a Regulatory Halt pursuant to Section trading center posting quotes through a one hour after initial publication in a X.E.2. Participant’s SRO display-only national news dissemination service of c. Each Participant(s) will use best quotation facility in an Eligible Security the information that gave rise to the efforts to determine whether one of its or against any other quotation displayed Regulatory Halt. systems, or the system of a direct or by the Participant in an Eligible Security C. Except in the case of a Regulatory indirect participant in its market, is that is the Participant’s displayed best Halt, the Processor shall not cease the responsible for the extraordinary market bid or offer for that Eligible Security, dissemination of quotation or activity. where such fee or fees exceed the limits transaction information regarding any d. If a Participant determines the provided for in Rule 610(c) of Eligible Security. In particular, it shall potential source of extraordinary market Regulation NMS. As required under not cease dissemination of such activity pursuant to Section X.1.c., the Regulation NMS, the terms of access to information because of a delayed Participant will use best efforts to a Participant’s quotations or of a trading opening, imbalance of orders or other determine whether removing the center posting quotes through a market-related problems involving such quotations of one or more direct or Participant’s SRO display-only security. During a Regulatory Halt, the indirect market participants or barring quotation facility in an Eligible Security Processor shall collect and disseminate one or more direct or indirect market may not be unfairly discriminatory so as Transaction Information but shall cease participants from entering orders will to prevent or inhibit any person from collection and dissemination of all resolve the extraordinary market obtaining efficient access to such Quotation Information. activity. Accordingly, the Participant displayed quotations through a member D. For purposes of this Section X, will prevent the quotations from one or of the Participant or a subscriber of a ‘‘Listing Market’’ for an Eligible Security more direct or indirect market trading center. means the Participant’s Market on participants in the affected Eligible which the Eligible Security is listed. If Securities from being transmitted to the X. Regulatory Halts an Eligible Security is dually listed, Processor. A. Whenever, in the exercise of its Listing Market shall mean the e. If the procedures described in regulatory functions, the Listing Market Participant’s Market on which the Section X.E.1.a.–d. do not rectify the for an Eligible Security determines that Eligible Security is listed that also has situation, the Participant(s) a Regulatory Halt is appropriate the highest number of the average of the experiencing extraordinary market pursuant to Section III.S, the Listing reported transactions and reported share activity will cease transmitting all Market will notify all other Participants volume for the preceding 12-month quotations in the affected Eligible pursuant to Section X.E and all other period. The Listing Market for dually- Securities to the Processor. Participants shall also halt or suspend listed Eligible Securities shall be f. If the procedures described in trading in that security until notified determined at the beginning of each Section X.E.1.a–e do not rectify the that the halt or suspension is no longer calendar quarter. situation within five minutes of the first in effect. The Listing Market shall E. For purposes of coordinating notification through the Hoot-n-Holler immediately notify the Processor of trading halts in Eligible Securities, all system, or if Participants agree to call a such Regulatory Halt as well as provide Participants are required to utilize the halt sooner through unanimous notice that a Regulatory Halt has been national market system communication approval among those Participants lifted. The Processor, in turn, shall media (‘‘Hoot-n-Holler’’) to provide real- actively trading impacted Eligible disseminate to Participants notice of the time information to all Participants. Securities, the Listing Market may Regulatory Halt (as well as notice of the Each Participant shall be required to determine based on the facts and lifting of a Regulatory Halt through the continuously monitor the Hoot-n-Holler circumstances, including available UTP Quote Data Feed. This notice shall system during market hours, and the input from Participants, to declare an serve as official notice of a Regulatory failure of a Participant to do so at any Extraordinary Market Regulatory Halt in Halt for purposes of the Plan only, and time shall not prevent the Listing the affected Eligible Securities. shall not substitute or otherwise Market from initiating a Regulatory Halt Simultaneously with the notification of supplant notice that a Participant may in accordance with the procedures the Processor to suspend the recognize or require under its own rules. specified herein. dissemination of quotations across all Nothing in this provision shall be read 1. The following procedures shall be Participants, the Listing Market must so as to supplant or be inconsistent with followed when one or more Participants notify all Participants of the trading halt a Participant’s own rules on trade halts, experiences extraordinary market utilizing the Hoot-n-Holler system. which rules apply to the Participant’s activity in an Eligible Security that is g. Absent any evidence of system own members. The Processor will reject believed to be caused by the misuse or misuse or malfunction, best efforts will any quotation information or transaction malfunction of systems operated by or be used to ensure that trading is not reports received from any Participant on linked to one or more Participants. halted across all Participants. an Eligible Security that has a a. The Participant(s) experiencing the 2. If the Listing Market declares a Regulatory Halt in effect. extraordinary market activity or any Regulatory Halt in circumstances other

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00084 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59763

than pursuant to Section X.E.1.f., the ‘‘.T’’ trades to denote their execution other Participant subsequently make use Listing Market must, simultaneously outside normal market hours, and shall of the enhancement, or the development with the notification of the Processor to be accompanied by the time of thereof. execution; suspend the dissemination of quotations B. Cost Allocation, Revenue Sharing, (iv) transactions reported pursuant to across all Participants, notify all and Fees Participants of the trading halt utilizing this provision of the Plan shall be the Hoot-n-Holler system. included in the calculation of total trade The provisions governing cost F. If the Listing Market declares a volume for purposes of determining net allocation and revenue sharing among Regulatory Halt, trading will resume distributable operating revenue, but the Participants are set forth in Exhibit according to the following procedures: shall not be included in the calculation 1 to the Plan. The provisions governing 1. Within 15 minutes of the of the daily high, low, or last sale. fees applicable to Quotation Information declaration of the halt, all Participants C. Late trades shall be reported in and Transaction Reports disseminated will make best efforts to indicate via the accordance with the rules of the pursuant to the Plan are set forth in Hoot-n-Holler their intentions with Participant in whose Market the Exhibit 2 to the Plan. respect to canceling or modifying transaction occurred and can be C. Maintenance of Financial Records transactions. reported between the hours of 4 a.m. The Processor shall maintain records 2. All Participants will disseminate to and 8 p.m. of revenues generated and development their members information regarding the D. The Processor shall collect, process and operating expenditures incurred in canceled or modified transactions as and disseminate Quotation Information connection with the Plan. In addition, promptly as possible, and in any event in Eligible Securities at other times the Processor shall provide the prior to the resumption of trading. between 4 a.m. and 9:30 a.m. ET, and Participants with: (a) A statement of 3. After all Participants have met the after 4 p.m. ET, when any Participant or financial and operational condition on a requirements of Section X.F.1–2, the FINRA Participant is open for trading, quarterly basis; and (b) an audited Listing Market will notify the until 8 p.m. ET (the ‘‘Additional statement of financial and operational Participants utilizing the Hoot-n-Holler Period’’); provided, however, that the condition on an annual basis. and the Processor when trading may national best bid and offer quotation resume. Upon receiving this will not be disseminated before 4 a.m. XIV. Indemnification information, Participants may or after 8 p.m. ET. Participants that Each Participant agrees, severally and commence trading pursuant to Section enter Quotation Information or submit X.A. not jointly, to indemnify and hold Transaction Reports to the Processor harmless each other Participant, Nasdaq XI. Hours of Operation during the Additional Period shall do so (in its capacity as Processor), and each for all Eligible Securities in which they of its directors, officers, employees and A. Quotation Information may be enter quotations. entered by Participants as to all Eligible agents (including the Operating Securities in which they make a market XII. Undertaking by All Participants Committee and its employees and agents) from and against any and all between 9:30 a.m. and 4 p.m. Eastern The filing with and approval by the loss, liability, claim, damage and Time (‘‘ET’’) on all days the Processor is Commission of this Plan shall obligate expense whatsoever incurred or in operation. Transaction Reports shall each Participant to enforce compliance threatened against such persons as a be entered between 9:30 a.m. and by its members with the provisions result of any Transaction Reports, 4:01:30 p.m. ET by Participants as to all thereof. In all other respects not Quotation Information or other Eligible Securities in which they inconsistent herewith, the rules of each information reported to the Processor by execute transactions between 9:30 a.m. Participant shall apply to the actions of such Participant and disseminated by and 4 p.m. ET on all days the Processor its members in effecting, reporting, the Processor to Vendors. This is in operation. honoring and settling transactions indemnity agreement shall be in B. Participants that execute executed through its facilities, and the addition to any liability that the transactions in Eligible Securities entry, maintenance and firmness of indemnifying Participant may otherwise outside the hours of 9:30 a.m. ET and quotations to ensure that such occurs in 4 p.m. ET, shall report such transactions have. a manner consistent with just and Promptly after receipt by an as follows: equitable principles of trade. (i) transactions in Eligible Securities indemnified Participant of notice of the executed between 4 a.m. and 9:29:59 XIII. Financial Matters commencement of any action, such a.m. ET and between 4:01 p.m. and 8 indemnified Participant will, if a claim A. Development Costs p.m. ET, shall be designated as ‘‘.T’’ in respect thereof is to be made against trades to denote their execution outside Any Participant becoming a signatory an indemnifying Participant, notify the normal market hours; to this Plan after June 26, 1990, shall, as indemnifying Participant in writing of (ii) transactions in Eligible Securities a condition to becoming a Participant, the commencement thereof; but the executed after 8 p.m. and before 12 a.m. pay to the other Plan Participants a omission to so notify the indemnifying (midnight) shall be reported to the proportionate share of the aggregate Participant will not relieve the Processor between the hours of 4 a.m. development costs previously paid by indemnifying Participant from any and 8 p.m. ET on the next business day Plan Participants to the Processor, liability which it may have to any (T+1), and shall be designated ‘‘as/of’’ which aggregate development costs indemnified Participant. In case any trades to denote their execution on a totaled $439,530, with the result that such action is brought against any prior day, and be accompanied by the each Participant’s share of all indemnified Participant and it promptly time of execution; development costs is the same. notifies an indemnifying Participant of (iii) transactions in Eligible Securities Each Participant shall bear the cost of the commencement thereof, the executed between 12 a.m. (midnight) implementation of any technical indemnifying Participant will be and 4 a.m. ET shall be transmitted to the enhancements to the Nasdaq System entitled to participate in, and, to the Processor between 4 a.m. and 9:30 a.m. made at its request and solely for its use, extent that it may wish, jointly with any ET, on trade date, shall be designated as subject to reapportionment should any other indemnifying Participant similarly

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00085 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59764 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

notified, to assume and control the rules and regulations promulgated BY: llllllllllllllll defense thereof with counsel chosen by thereunder. CHICAGO BOARD OPTIONS it. After notice from the indemnifying XVIII. Operational Issues EXCHANGE, INC. Participant of its election to assume the BY: llllllllllllllll A. Each Participant shall be defense thereof, the indemnifying EDGX EXCHANGE, INC. responsible for collecting and validating Participant will not be liable to such BY: llllllllllllllll indemnified Participant for any legal or quotes and last sale reports within its INTERNATIONAL SECURITIES other expenses subsequently incurred own system prior to transmitting this EXCHANGE, LLC by such indemnified Participant in data to the Processor. BY: llllllllllllllll connection with the defense thereof but B. Each Participant may utilize a the indemnified Participant may, at its dedicated Participant line into the NEW YORK STOCK EXCHANGE LLC own expense, participate in such Processor to transmit trade and quote BY: llllllllllllllll defense by counsel chosen by it information in Eligible Securities to the NASDAQ OMX PHLX, INC. without, however, impairing the Processor. The Processor shall accept BY: llllllllllllllll indemnifying Participant’s control of from Exchange Participants input for BATS EXCHANGE, INC. the defense. The indemnifying only those issues that are deemed BY: llllllllllllllll Eligible Securities. Participant may negotiate a compromise CHICAGO STOCK EXCHANGE, INC. C. The Processor shall consolidate or settlement of any such action, BY: llllllllllllllll provided that such compromise or trade and quote information from each Participant and disseminate this EDGA EXCHANGE, INC. settlement does not require a BY: llllllllllllllll contribution by the indemnified information on the Processor’s existing Participant. vendor lines. FINRA D. The Processor shall perform gross BY: llllllllllllllll XV. Withdrawal validation processing for quotes and last NATIONAL STOCK EXCHANGE, INC. Any Participant may withdraw from sale messages in addition to the BY: llllllllllllllll the Plan at any time on not less than 30 collection and dissemination functions, NYSE ARCA, INC. days prior written notice to each of the as follows: BY: llllllllllllllll 1. Basic Message Validation other Participants. Any Participant (a) The Processor may validate format THE NASDAQ STOCK MARKET LLC withdrawing from the Plan shall remain for each type of message, and reject BY: llllllllllllllll liable for, and shall pay upon demand, nonconforming messages. Exhibit 1 any fees for equipment or services being (b) Input must be for an Eligible provided to such Participant pursuant to Security. 1. Each Participant eligible to receive the contract executed by it or an 2. Logging Function—The Processor revenue under the Plan will receive an agreement or schedule of fees covering shall return all Participant input annual payment for each calendar year such then in effect. messages that do not pass the validation that is equal to the sum of the A withdrawing Participant shall also checks (described above) to the Participant’s Trading Shares and remain liable for its proportionate share, inputting Participant, on the entering Quoting Shares, as defined below, in without any right of recovery, of Participant line, with an appropriate each Eligible Security for the calendar administrative and operating expenses, reject notation. For all accepted year. In the event that total net including start-up costs and other sums Participant input messages (i.e., those distributable operating income (as for which it may be responsible that pass the validation check), the defined below) is negative, each pursuant to Section XIV hereof. Except information shall be retained in the Participant eligible to receive revenue as aforesaid, a withdrawing Participant Processor system. under the Plan will receive an annual shall have no further obligation under bill for each calendar year to be the Plan or to any of the other XIX. Headings determined according to the same Participants with respect to the period The section and other headings formula (described in this paragraph) for following the effectiveness of its contained in this Plan are for reference determining annual payments to eligible withdrawal. purposes only and shall not be deemed Participants. Unless otherwise stated in to be a part of this Plan or to affect the this agreement, a year shall run from XVI. Modifications to the Plan meaning or interpretation of any January 1 to December 31 and quarters The Plan may be modified from time provisions of this Plan. shall end on March 31, June 30, to time when authorized by the September 30, and December 31. XX. Counterparts agreement of all of the Participants, Processor shall endeavor to provide subject to the approval of the SEC or This Plan may be executed by the Participants with written estimates of when such modification otherwise Participants in any number of each Participant’s percentage of total becomes effective pursuant to Section counterparts, no one of which need volume within five business days of 11A of the Exchange Act and Rule 608 contain the signature of all Participants. month end. of Regulation NMS. As many such counterparts as shall 2. Security Income Allocation. The together contain all such signatures Security Income Allocation for an XVII. Applicability of Securities shall constitute one and the same Eligible Security shall be determined by Exchange Act of 1934 instrument. multiplying (i) the ‘‘net distributable The rights and obligations of the IN WITNESS WHEREOF, this Plan operating income’’ of this Nasdaq UTP __ Participants and of Vendors, News has been executed as of the day of Plan for the calendar year by (ii) the ______Services, Subscribers and other persons , 2010, by each of the Signatories Volume Percentage for such Eligible contracting with Participant in respect hereto. Security (the ‘‘initial allocation’’), and of the matters covered by the Plan shall NYSE AMEX LLC then adding or subtracting any amounts at all times be subject to any applicable BY: llllllllllllllll specified in the reallocation set forth provisions of the Exchange Act and any NASDAQ OMX BX, INC. below. The Volume Percentage for an

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00086 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59765

Eligible Security shall be determined by time (with a minimum of one full 1. the costs of collecting each dividing (A) the square root of the dollar second) multiplied by dollar value of Participant’s best bid, best offer, and volume of transaction reports size that an automated best bid (offer) aggregate volume into the Processor’s disseminated by the Processor in such transmitted by the Participant to the quote engine and, in the case of FINRA, Eligible Security during the calendar Processor during regular trading hours the costs of identifying the FINRA year by (B) the sum of the square roots is equal to the price of the national best Participant(s) that constitute FINRA’s of the dollar volume of transaction bid (offer) in the Eligible Security and Best Bid and Offer quotations; reports disseminated by the Processor in does not lock or cross a previously 2. cost of calculating the national best each Eligible Security during the displayed automated quotation. An bid and offer price within the calendar year. If the initial allocation of automated bid (offer) shall have the Processor’s quote engine; net distributable operating income in meaning specified in Rule 600 of 3. cost of creating the UTP Quote Data accordance with the Volume Percentage Regulation NMS of the Act for an Feed message within the Processor’s of an Eligible Security equals an amount ‘‘automated quotation.’’ The dollar value quote engine; greater than $4.00 multiplied by the of size of a quote shall be determined by 4. cost of the Processor’s total number of qualified transaction multiplying the price of a quote by its communication management subsystem reports in such Eligible Security during size. that distributes the UTP Quote Data the calendar year, the excess amount 5. For purposes of this Exhibit 1, net Feed to the market data vendors’ shall be subtracted from the initial distributable operating income for any networks for further distribution. c. The costs directly attributable to allocation for such Eligible Security and particular calendar year shall be creating the UTP Trade Data Feed, reallocated among all Eligible Securities calculated by adding all revenues from including: in direct proportion to the dollar the UTP Quote Data Feed, the UTP volume of transaction reports 1. the costs of collecting each Trade Data Feed, and the OTC Montage Participant’s last sale and volume disseminated by the Processor in Data Feed including revenues from the Eligible Securities during the calendar amount into the Processor’s quote dissemination of information respecting engine; year. A transaction report with a dollar Eligible Securities to foreign volume of $5000 or more shall 2. cost of determining the appropriate marketplaces, and also including FINRA last sale price and volume amount constitute one qualified transaction quotation data and last sale information report. A transaction report with a within the Processor’s trade engine; for securities classified as OTC Equity 3. cost of utilizing the Processor’s dollar volume of less than $5000 shall Securities under FINRA’s Rule 6400 trade engine to distribute the UTP Trade constitute a fraction of a qualified Series (the ‘‘FINRA OTC Data’’) Data Feed for distribution to the market transaction report that equals the dollar (collectively, ‘‘the Data Feeds’’), and data vendors; volume of the transaction report divided subtracting from such revenues 6.25% 4. cost of the Processor’s by $5000. to compensate FINRA for the FINRA communication management subsystem 3. Trading Share. The Trading Share OTC Data, after which are subtracted the that distributes the UTP Trade Data of a Participant in an Eligible Security costs incurred by the Processor, set forth Feed to the marker data vendors’ shall be determined by multiplying (i) below, in collecting, consolidating, networks for further distribution. an amount equal to fifty percent of the validating, generating, and d. The additional costs that are shared Security Income Allocation for the disseminating the Data Feeds. These across all Data Feeds, including: Eligible Security by (ii) the Participant’s costs include,5 but are not limited to, 1. telecommunication Operations Trade Rating in the Eligible Security. A the following: costs of supporting the Participant lines Participant’s Trade Rating in an Eligible a. The Processor costs directly into the Processor’s facilities; Security shall be determined by taking 2. Telecommunications Operations the average of (A) the Participant’s attributable to creating OTC Montage Data Feed, including: costs of supporting the external market percentage of the total dollar volume of data vendor network; transaction reports disseminated by the 1. cost of collecting Participant quotes into the Processor’s quote engine; 3. Data Products account management Processor in the Eligible Security during and auditing function with the market 2. cost of processing quotes and the calendar year, and (B) the 25 data vendors; Participant’s percentage of the total creating OTC Montage Data Feed 4. Market Operations costs to support number of qualified transaction reports messages within the Processor’s quote symbol maintenance, and other data disseminated by the Processor in the engine; integrity issues; Eligible Security during the calendar 3. cost of the Processor’s 5. overhead costs, including year. communication management subsystem management support of the Processor, 4. Quoting Share. The Quoting Share that distributes OTC Montage Data Feed Human Resources, Finance, Legal, and of a Participant in an Eligible Security to the market data vendor network for Administrative Services; and shall be determined by multiplying (A) further distribution. 6. Costs of establishing and an amount equal to fifty percent of the b. The costs directly attributable to supporting the Security Income Security Income Allocation for the creating the UTP Quote Data Feed, Allocation System. Eligible Security by (B) the Participant’s including: e. Processor costs excluded from the Quote Rating in the Eligible Security. A calculation of net distributable Participant’s Quote Rating in an Eligible 5 All costs associated with collecting, operating income include trade Security shall be determined by consolidating, validating, generating, and execution costs for transactions dividing (A) the sum of the Quote disseminating the FINRA OTC Data are borne executed using a Nasdaq service and directly by FINRA and not the Plan and the Credits earned by the Participant in Participants. Such costs are established in and trade report collection costs reported such Eligible Security during the subject to a separate bilateral contractual agreement through a Nasdaq service, as such calendar year by (B) the sum of the between FINRA and the Processor (acting as services are market functions for which Quote Credits earned by all Participants FINRA’s vendor in this capacity). The Processor is Participants electing to use such responsible for insuring that no costs associated in such Eligible Security during the with the FINRA OTC Data are incorporated with the services pay market rate. calendar year. A Participant shall earn costs incurred by the Processor on behalf of the f. For the purposes of this provision, one Quote Credit for each second of UTP Plan. the following definitions shall apply:

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00087 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59766 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

1. ‘‘quote engine’’ shall mean the an independent auditor to audit the First 10 million Sub- $2.00 per 1,000 Nasdaq’s NT or Tandem system that is Processor’s costs or other calculation(s), scriber Households. households. operated by Nasdaq to collect quotation the cost of which audit shall be shared Next 10 million Sub- 1.00 per 1,000 information for Eligible Securities; equally by all Participants. The scriber Households. households. 2. ‘‘trade engine’’ shall mean the Processor agrees to cooperate fully in For Subsequent Sub- 0.50 per 1,000 Nasdaq Tandem system that is operated providing the information necessary to scriber Households. households. by Nasdaq for the purpose of collecting complete such audit. (f) Annual Administrative Fees last sale information in Eligible Securities. Exhibit 2 The annual administrative fee to be 6. At the time a Participant Fees for UTP Services paid by distributor for access to UTP implements a Processor-approved Level 1 Service shall be as set forth electronic interface with the Processor, (a) Level 1 Service below: the Participant will become eligible to The charge for each interrogation Delayed distributor ...... $250 receive revenue. device receiving UTP Level 1 Service is 0–999 real-time terminals ...... 500 7. Processor shall endeavor to provide $20.00 per month. This Service includes 1,000–4,999 real-time terminals 1,250 Participants with written estimates of the following data: 5,000–9,999 real-time terminals 2,250 10,000+ real-time terminals ...... 3,750 each Participant’s quarterly net (1) Inside bid/ask quotations distributable operating income within calculated for securities listed in The Exhibit 3 45 calendar days of the end of the Nasdaq Stock Market; UTP Capacity Planning Process quarter, and estimated quarterly (2) Last sale information on Nasdaq- payments or billings shall be made on listed securities. This document sets forth a capacity the basis of such estimates. All quarterly UTP Level 1 Service also includes planning process for the Processor and payments or billings shall be made to FINRA OTC Data. includes certain procedures to facilitate each eligible Participant within 45 days that process. The capacity planning following the end of each calendar (b) Non-Professional Services process will be done on a semi-annual quarter in which the Participant is (1) The charge for distribution of UTP basis and will cover the then current eligible to receive revenue, provided Level 1 Service to a non-professional six-month period and each of the next that each quarterly payment or billing subscriber shall be $1.00 per two six-month periods, with each six- shall be reconciled against a interrogation device per month. month period commencing on January Participant’s cumulative year-to-date (2) A ‘‘non-professional’’ is a natural 1st and July 1st, as appropriate (referred payment or billing received to date and person who is neither: to collectively as the ‘‘Capacity Planning adjusted accordingly, and further (A) Registered or qualified in any Period’’), provided however that, provided that the total of such estimated capacity with the Commission, the notwithstanding the foregoing, the first payments or billings shall be reconciled Commodities Futures Trading Capacity Planning Period shall cover the at the end of each calendar year and, if Commission, any state securities then current six-month period and each necessary, adjusted by March 31st of the agency, any securities exchange or of the next two six-month periods. following year. Interest shall be association or any commodities or All information specified in this included in quarterly payments and in futures contract market or association; document that is required to be adjusted payments made on March 31st (B) Engaged as an ‘‘investment submitted by each of the Participants to of the following year. Such interest shall adviser’’ as that term is defined in the Processor, by the Processor to each accrue monthly during the period in Section 202(a)(11) of the Investment of the Participants, and by the Operating which revenue was earned and not yet Advisors Act of 1940 (whether or not Committee to the Processor, shall be paid and will be based on the 90-day registered or qualified under that Act); submitted within the time frames set Treasury bill rate in effect at the end of nor forth in the capacity planning process the quarter in which the payment is (C) Employed by a bank or other calendar attached hereto as Attachment made. Monthly interest shall start organization exempt from registration 1, which may be modified from time to accruing 45 days following the month in under federal or state securities laws to time by the Operating Committee. which it is earned and accrue until the perform functions that would require Projected Processor Capacity date on which the payment is made. registration or qualification if such Requirements In conjunction with calculating functions were performed for an estimated quarterly and reconciled organization not so exempt. Each Participant’s ‘‘Projected annual payments under this Exhibit 1, Processor Capacity Requirements’’ shall the Processor shall submit to the (c) Automated Voice Response Service consist of the following two Participants a quarterly itemized Fee components: statement setting forth the basis upon The monthly charge for distribution of 1. The projected peak quote/trade which net operating income was UTP Level 1 Service through automated messages per second for such calculated, including a quarterly voice response services shall be $21.25 Participant calculated on a 5-second itemized statement of the Processor for each voice port. peak (the ‘‘Projected Peak 5-second costs set forth in Paragraph 3 of this MPS’’); and Exhibit. Such Processor costs and Plan (d) Per Query Fee 2. The projected peak total quote/ revenues shall be adjusted annually The charge for distribution of UTP trade transactions per day for such based solely on the Processor’s quarterly Level 1 Service through a per query Participant. itemized statement audited pursuant to system shall be $.005 per query. Each Participant’s projected Processor’s annual audit. Processor shall requirements for both of these pay or bill Participants for the audit (e) Cable Television Ticker Fee components shall include whatever adjustments within thirty days of The monthly charge for distribution of buffer factor the Participant deems completion of the annual audit. By UTP Level 1 Service through a cable adequate for its needs and shall reflect majority vote of the Operating television distribution system shall be the Participant’s anticipated Committee, the Processor shall engage as set forth below: requirements as of the beginning of each

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00088 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59767

six-month period in the applicable and the peak total transactions per day necessary, shall determine whether to Capacity Planning Period. (referred to as ‘‘Total System Capacity’’). approve the request. Each Participant shall submit to the The Projected Processor Capacity Payment For Services Processor in writing, which may include Requirements for all Participants shall email, an ‘‘initial’’ set of Projected be referred to as the ‘‘Base Capacity.’’ Each Participant’s ‘‘Proportionate Processor Capacity Requirements as of The amount, if any, by which Total Share’’ shall be the percentage of the the beginning of each six-month period System Capacity exceeds Base Capacity, final Projected Peak 5-second MPS for in the applicable Capacity Planning shall be referred to as ‘‘Excess Capacity.’’ all Participants that is attributable to Period. Once the Processor receives the The amount, if any, by which Total such Participant. A Participant’s initial Projected Processor Capacity System Capacity is less than the Base Proportionate Share shall remain in Requirements from all the Participants, Capacity shall be referred to as ‘‘Deficit effect until the next System Capacity the Processor will aggregate both Capacity.’’ At the time that the Processor Change is implemented, provided, components—the Projected Peak 5- notifies each Participant of the initial however, that such Proportionate Share second MPS and the projected peak and final aggregate Projected Processor may change from time to time in total transactions per day—to determine Capacity Requirements, the Processor accordance with the provisions set forth the initial Projected Processor Capacity shall also determine, based on such in the following two Sections of this Requirements for all Participants. The initial and final capacity projections, Exhibit. The cost for such services shall Processor will notify each Participant in respectively, and inform each be such Participant’s Proportionate Share of the cost of the services writing, which may include email, of (a) Participant in writing, which may rendered by the Processor to all the aggregate initial Projected Processor include email, of, the amount of any Participants, unless otherwise agreed to Capacity Requirements; and (b) the projected Excess Capacity and/or any by the Processor and the Operating percentage of the aggregate initial projected Deficit Capacity at the Committee. Each Participant shall be Projected Peak 5-second MPS that is beginning of each six-month period in entitled to use its Proportionate Share of attributable to such Participant. the applicable Capacity Planning Once each Participant receives the the Base Capacity and the Excess Period. foregoing information, each such Capacity, if any, at no additional cost. Participant shall submit to the Processor On a semi-annual basis, the Operating If, however, the report(s) generated by in writing, which may include email, its Committee shall determine and advise the Processor setting forth daily system final Projected Processor Capacity the Processor in writing, which may activity for Participants shows that a Requirements. The Processor will then include email, of any changes (i.e., Participant’s actual Peak 5-second MPS notify each Participant in writing, increases or decreases) that it proposes exceeds such Participant’s Proportionate which may include email, of: (a) The be made to the Total System Capacity, Share of the Base Capacity and the aggregate final Projected Processor including any required ancillary Excess Capacity, if any (e.g., via Capacity Requirements; and (b) the systems and network capacity changes dynamic throttling), such Participant percentage of the aggregate final (‘‘System Capacity Changes’’); provided, may be required, in accordance with the Projected Peak 5-second MPS that is however, that any System Capacity provisions set forth in Attachment 2, attributable to such Participant. Changes must result in the Total System which may be modified from time to The Processor will not disclose to any Capacity meeting or exceeding Base time by the Operating Committee, to: (a) Participant the initial or final individual Capacity. The Processor will develop a Pay a penalty to the Processor in the capacity projections of any other written proposal for System Capacity amount set forth in Attachment 2; and Participant or the percentage of the Peak Changes and submit it to the Operating (b) increase its capacity projections in 5-second MPS attributable to any other Committee, which proposal will include the next Capacity Planning Period to Participant. the timeframe and estimated costs for reflect at least such actual Peak 5- In the event that a Participant fails to implementing the System Capacity second MPS. Any such penalty shall be notify the Processor of its final Projected Changes. If the Processor’s proposal is divided and distributed to each of the Processor Capacity Requirements within accepted, such acceptance will be set other Participants in accordance with the required time frame, then such forth in the minutes of the applicable their Proportionate Shares. Participant’s final Projected Processor Operating Committee meeting. The Capacity Requirements for: (a) Each six- Processor will then implement such Purchase Of Capacity month period for which the required System Capacity Changes. Such System Without limiting the generality of the notice was not given on a timely basis Capacity Changes implemented by the foregoing, a Participant may increase its shall be deemed to be the same as that Processor may, in the Processor’s Proportionate Share of the Base for the latest six-month period covered discretion reasonably exercised and Capacity by purchasing all or a portion by the Participant’s most recent final with the prior approval of the Operating of the ‘‘Available Base Capacity’’ (as Projected Processor Capacity Committee, result in creating some such term is defined in Item 1, below) Requirements provided to the Processor additional amount of Excess Capacity. and/or Excess Capacity, if any within the required time frame; and (b) Emergency Capacity Planning Process (collectively with ‘‘Available Base each six-month period for which the Capacity,’’ hereinafter referred to as required notice was previously given on In addition to the semi-annual ‘‘Capacity’’), subject to the following: a timely basis shall remain the same. capacity planning process described 1. A Participant wishing to purchase above, the Processor may recommend to Capacity shall advise the Processor in Processor System Capacity Changes the Operating Committee emergency writing of the amount of Capacity The Processor shall, on a semi-annual planning cycles (‘‘EPC’’) as may be (expressed as UTP 5-second MPS) it basis, determine and inform each reasonably necessary. The Processor wishes to purchase. A Participant shall Participant in writing, which may shall submit a recommendation to the only be entitled to purchase Capacity include email, of the total amount of the Operating Committee detailing the EPC (and such request shall only be filled) if, then-current system capacity available request and required timeframe for and to the extent that: for each of the two capacity response, via e-mail. The Operating a. There are any currently outstanding components—the Peak 5-second MPS Committee, at an emergency meeting if unfilled request(s) from other

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00089 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59768 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

Participant(s) to decrease Base Capacity increase in that Participant’s decrease Base Capacity shall be filled on (referred to as ‘‘Available Base Proportionate Share. The Processor shall a ‘‘first come, first served’’ basis. Capacity’’); and/or notify such Participant of its new 2. Within two (2) trading days of b. There is Excess Capacity. Proportionate Share and the effective receipt of such notice, the Processor Furthermore, all requests to purchase date of such change. shall confirm the request directly with Capacity shall be filled first through any 6. Whenever a Participant purchases a such Participant. The Processor shall fill Available Base Capacity, and second portion (or all) of the Excess Capacity, the request if, and to the extent that, through any Excess Capacity. All such Participant’s Proportionate Share there are any currently outstanding Participant requests to purchase of the Base Capacity shall be increased unfilled requests from other Capacity shall be filled on a ‘‘first come, accordingly, effective on the first trading Participant(s) to increase Capacity. The first served’’ basis. day that the Processor implements the Processor shall then notify all 2. Within two (2) trading days of requisite technical changes to reflect the Participants in writing of: receipt of such notice, the Processor changes in such Participant’s Base a. The amount of Available Base shall confirm the request directly with Capacity. As of such date: Capacity that remains, if any; and/or such Participant. The Processor shall fill a. The costs allocated to that the request if, and to the extent that, b. The amount by which any Participant shall be increased to the Participant request(s) to decrease Base there is sufficient Available Base extent of the resulting increase in that Capacity and/or Excess Capacity. The Capacity remain unfilled. Participant’s Proportionate Share; and Processor shall then notify all 3. A Participant’s request to decrease b. There shall be a corresponding Participants in writing of: Base Capacity shall remain outstanding a. The amount of Available Base reduction in: until filled, or cancelled by such Capacity and/or Excess Capacity that i. Each of the other Participants’ Participant, or the next System Capacity remains, if any; and/or Proportionate Share of the Base Change, whichever occurs first. b. The amount by which any Capacity; and Whenever a request is cancelled, the Participant request(s) to increase ii. The costs allocated to the other Processor shall then notify all Capacity remains unfilled. Participants shall be decreased, to the Participants in writing whether, and the 3. A Participant’s request to increase extent of the resulting decrease in each extent to which, any Participant Capacity shall remain outstanding until such Participant’s Proportionate Share. request(s) to decrease Base Capacity filled, or cancelled by such Participant, The Processor shall notify each remain in effect. or the next System Capacity Change, Participant of its new Proportionate 4. The Processor will not disclose to whichever occurs first. Whenever a Share and the effective date of such any other Participant the Participant(s) request is cancelled, the Processor shall change. that have requested decreasing, and/or then notify all Participants in writing Reduction of Base Capacity that have decreased, Base Capacity. whether, and the extent to which, any Whenever a Participant reduces its Without limiting the generality of the Participant request(s) to increase Base Capacity pursuant to this Section, foregoing, a Participant may be entitled Capacity remain in effect. such Participant’s Proportionate Share to decrease its Proportionate Share by 4. The Processor will not disclose to of the Base Capacity shall be decreased reducing its Base Capacity, subject to any other Participant the Participant(s) accordingly, effective on the first trading the following: that have requested purchasing, and/or day that the Processor implements the 1. A Participant wishing to reduce its that have purchased, Capacity. requisite technical changes to reflect the 5. Whenever a Participant purchases Base Capacity shall advise the Processor changes in such Participant’s Base Available Base Capacity such in writing of the amount of its Base Capacity. As of such date, the costs Participant’s Proportionate Share of the Capacity it wishes to decrease (which associated, for that Participant, shall be Base Capacity shall be increased decrease shall be expressed as UTP 5- decreased to the extent of the resulting accordingly, effective on the first trading second MPS). A Participant shall only decrease in that Participant’s day that the Processor implements the be entitled to decrease its Base Capacity Proportionate Share. The Processor shall requisite technical changes to reflect the (and such request shall only be filled) if, notify such Participant of its new changes in such Participant’s Base and to the extent that, there are any Proportionate Share and the effective Capacity. As of such date, the costs currently outstanding unfilled requests date of such change. associated, for that Participant, shall be from other Participant(s) to increase increased to the extent of the resulting Capacity. All Participant requests to ATTACHMENT 1

PROCESSOR CAPACITY PLANNING PROCESS CALENDAR [Approximately 3.5 Calendar Months]

Duration Step No. Description (trading Start date End date days)

1 ...... The Processor requests initial ca- 1 1st trading day in 3rd month of ap- 1st trading day in 3rd month of ap- pacity projections from Partici- plicable Capacity Planning Pe- plicable Capacity Planning Pe- pants via email. riod. riod.

2 ...... Participants submit initial capacity 10 projections to the Processor via email.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00090 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59769

PROCESSOR CAPACITY PLANNING PROCESS CALENDAR—Continued [Approximately 3.5 Calendar Months]

Duration Step No. Description (trading Start date End date days)

3 ...... The Processor advises each Par- 5 ticipant of initial capacity projec- tions for all Participants, current system capacity, and any pro- jected Excess and/or Deficit Ca- pacity, via email.

4 ...... Participants submit final capacity 15 projections to the Processor via email.

5 ...... The Processor advises each Par- 5 ticipant of final capacity projec- tions for all Participants, current system capacity, and any pro- jected Excess and/or Deficit Ca- pacity, via email.

6 ...... At a meeting of the Operating 5 Committee at which the Proc- essor is present, the Operating Committee will determine and then advise the Processor in writing (i.e., by minutes of such meeting) of any System Capac- ity Changes.

7 ...... The Processor submits a proposal 20 to the Operating Committee for System Capacity Changes, in- cluding estimated timeframes and costs for implementing them, via e-mail. The Processor will notify each Par- ticipant via email of: (a) the ag- gregate final Projected Proc- essor Capacity Requirements; and (b) the percentage of the aggregate final Projected Peak 5-second MPS that is attrib- utable to such Participant.

8 ...... At a meeting of the Operating 10 Committee at which the Proc- essor is present, the Operating Committee will decide and then advise the Processor in writing (i.e., by minutes of such meet- ing) if it accepts the Processor’s proposal for System Capacity Changes.

ATTACHMENT 2

UTP CAPACITY PROCESS—PENALTIES FOR EXCEEDING PROPORTIONATE SHARE

Scenario Description Penalty Increase projections

Participant System Participant’s actual peak 5-second MPS ex- None ...... No. Problem/Recovery. ceeds its Proportionate Share for 30 con- secutive seconds artificially (e.g., due to draining of queued data following a system recovery). Occasional (incon- Participant’s actual peak 5-second MPS ex- None ...... No. sistent). ceeds its Proportionate Share for 30 con- secutive seconds on no more than 2 days during a month.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00091 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59770 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

UTP CAPACITY PROCESS—PENALTIES FOR EXCEEDING PROPORTIONATE SHARE—Continued

Scenario Description Penalty Increase projections

Regular ...... Participant’s actual peak 5-Second MPS ex- Participant’s penalty will be calculated and ceeds its Proportionate Share for 30 con- billed according to the following formula:. secutive seconds on each of 3 or more • (Total MPS in Excess) × (Penalty MPS days during a month. $ Rate). To find the Total MPS in Excess for any month:. 1. Determine which days during the month (‘‘Days in Excess’’) the Partici- pant exceeded its proportionate share of MPS for 30 or more consecutive seconds (each, a ‘‘Period in Excess’’), whether it did so once or multiple times on any day; 2. For each Day in Excess during a month, determine that day’s ‘‘Highest Period in Excess’’; and 3. Add the Participant’s MPS in excess of its Proportionate Share for each Day in Excess’ Highest Period in Ex- cess. A day’s ‘‘Highest Period in Excess’’ refers to the Period in Excess during which the Par- ticipant exceeded its Proportionate Share of MPS by more than it did during the day’s other Periods in Excess. To find the Penalty MPS $ Rate for any Yes—to be deter- month, multiply twice the current monthly mined MPS $ rate by the percentage of trading days during the month that were Days in Excess; that is: (2 × current monthly MPS $ rate) × (# Days in Excess/# trading days in the month). Notes: 1. The Processor reports containing daily/monthly/quarterly activity by Participant will be used to determine if any of the above penalty criteria have been met. 2. The Processor will notify a Participant in the event it has been assessed a penalty. 3. Participant penalties will be distributed to the other Participants based on each Participant’s Proportionate Share. 4. Reports provided by the Processor to the Participants will include the total monthly costs, that Participant’s Proportionate Share, any pen- alties to be paid by that Participant, any redistribution of penalties paid by other Participant(s) and the number of Participants who paid penalties broken down by Quote and Trade separately. • Participant’s Monthly Costs are Total Monthly Costs multiplied by Participant’s Proportionate Share.

UTP Capacity Planning Initial Projected Requirements: Participant Projected Processor Capacity Requirements—Input Document Participant Name: llllllllll

Projected peak 5 second MPS Projected peak total daily Period beginning: transactions UTP Quote UTP Trade UTP Quote UTP Trade

Approved By: llllllllllll Final Projected Requirements: Date Submitted: lllllllllll

Projected peak 5 second MPS Projected peak total daily Period beginning: transactions UTP Quote UTP Trade UTP Quote UTP Trade

VerDate Mar<15>2010 16:59 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00092 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59771

Projected peak 5 second MPS Projected peak total daily Period beginning: transactions UTP Quote UTP Trade UTP Quote UTP Trade

Approved By: llllllllllll of securities that are considered In its filing, FINRA stated that a Date Submitted: lllllllllll ‘‘actively traded’’ and thus are not significant number of distributions of [FR Doc. 2010–24225 Filed 9–27–10; 8:45 am] subject to a restricted period under Rule ‘‘actively traded’’ securities evolve 101 of Regulation M.4 In connection quickly after the market close and are BILLING CODE 8010–01–P with such distributions, pursuant to priced overnight before the next trading Rule 5190(d)(1), FINRA members are session. Thus, FINRA believes that its SECURITIES AND EXCHANGE required to provide written notice to members frequently do not have COMMISSION FINRA of the member’s determination sufficient advance knowledge of their that no restricted period applies and the participation in the distribution to [Release No. 34–62970; File No. SR–FINRA– basis for such determination. FINRA provide notice to FINRA at least one 2010–037] members must provide such notice at business day prior to pricing and in Self-Regulatory Organizations; least one business day prior to the such instances are unable to comply Financial Industry Regulatory pricing of the distribution, unless later with the express terms of Rule Authority, Inc.; Order Approving the notification is necessary under specific 5190(d)(1). FINRA then must make a Proposed Rule Change To Amend circumstances. Rule 5190(d)(2) requires determination whether later notification FINRA Rule 5190 (Notification that, upon pricing a distribution of an was necessary under the circumstances, Requirements for Offering ‘‘actively traded’’ security, FINRA in accordance with the rule. FINRA has Participants) members provide written notice to stated that the proposed rule change FINRA along with pricing-related will clarify members’ notice obligations September 22, 2010. information such as the offering price, in the context of such distributions. the last sale before the distribution, and I. Introduction FINRA represented that the proposed the pricing basis. Notice of pricing must rule change will be effective on the date On July 27, 2010, the Financial be provided no later than the close of of Commission approval. Industry Regulatory Authority, Inc. business the next business day (‘‘FINRA’’) (f/k/a National Association of following the pricing of the distribution, III. Discussion and Findings Securities Dealers, Inc. (‘‘NASD’’)) filed unless later notification is necessary with the Securities and Exchange under specific circumstances. After careful review, the Commission Commission (‘‘Commission’’), pursuant finds that the proposed rule change is to Section 19(b)(1) of the Securities FINRA proposed to amend Rule 5190(d) to require that notice under consistent with the requirements of the Exchange Act of 1934 (‘‘Act’’) 1 and Rule Act, and the rules and regulations 19b–4 thereunder,2 a proposal to amend subparagraphs (1) and (2) be provided at the same time, specifically no later than thereunder that are applicable to a FINRA Rule 5190 (Notification national securities association.5 In Requirements for Offering Participants) the close of business the next business day following the pricing of the particular, the Commission believes that relating to the notice requirements the proposed rule change is consistent applicable to distributions of ‘‘actively distribution. While the timing of notice under subparagraph (1) would change, with the provisions of Section 15A(b)(6) traded’’ securities, as defined under of the Act,6 which requires, among other Regulation M. This proposal was the information required would not change. Thus, pursuant to the proposed things, that FINRA rules be designed to published for comment in the Federal prevent fraudulent and manipulative 3 rule change, FINRA members will be Register on August 13, 2010. The acts and practices, to promote just and Commission received no comments required to provide a single notice after pricing of the distribution and will be equitable principles of trade, and, in regarding the proposal. This order general, to protect investors and the approves this proposed rule change. required to provide all of the same information that they provide today. public interest. The proposed rule II. Description of the Proposed Rule FINRA has determined that it will be change will streamline FINRA member Change sufficient for members to provide notice obligations and continue FINRA’s FINRA Rule 5190 imposes certain of their determination that no restricted surveillance program regarding notice requirements on FINRA members period applies following the pricing of Regulation M to protect investors. participating in distributions of listed the distribution. FINRA clarified that IV. Conclusion and unlisted securities and is designed the proposed rule change will not to ensure that FINRA receives pertinent impact FINRA’s Regulation M It is therefore ordered, pursuant to distribution-related information from its surveillance program. Section 19(b)(2) of the Act,7 that the members in a timely fashion to facilitate proposed rule change (File No. SR– its Regulation M surveillance program. 4 The exception for ‘‘actively traded’’ securities in FINRA–2010–037) be, and hereby is, Rule 5190(d) sets forth the notice Rule 101 of Regulation M applies to securities with approved. requirements applicable to distributions an ADTV value, as defined in Rule 100 of Regulation M, of at least $1 million and are issued by an issuer whose common equity securities have 5 In approving this proposal, the Commission has 1 15 U.S.C. 78s(b)(1). a public float value of at least $150 million, considered the proposed rule’s impact on 2 17 CFR 240.19b–4. provided, however, that such securities are not efficiency, competition, and capital formation. See 3 Securities Exchange Act Release No. 62664 issued by the distribution participant or an affiliate 15 U.S.C. 78c(f). (Aug. 9, 2010), 75 FR 49542 (Aug. 13, 2010) (SR– of the distribution participant. 17 CFR 6 15 U.S.C. 78o–3(b)(6). FINRA–2010–037). 242.101(c)(1). 7 15 U.S.C. 78s(b)(2).

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00093 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59772 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

For the Commission, by the Division of of the most significant parts of such the Exchange halts trading of a Nasdaq Trading and Markets, pursuant to delegated statements. Security pursuant to Rule 123D—NYSE authority.8 Amex Equities for non-regulatory A. Self-Regulatory Organization’s Florence E. Harmon, purposes, such as an imbalance halt or Statement of the Purpose of, and the Deputy Secretary. Statutory Basis for, the Proposed Rule an equipment changeover halt, the [FR Doc. 2010–24227 Filed 9–27–10; 8:45 am] Change DMM must obtain prior Floor Official BILLING CODE 8010–01–P approval as provided for in that rule. 1. Purpose The proposed provision would be The purpose of the proposed rule consistent with the manner by which SECURITIES AND EXCHANGE change is to amend Rule 515—NYSE Rule 123D—NYSE Amex Equities COMMISSION Amex Equities. operates for listed securities when a non-regulatory halt is invoked on the [Release No. 34–62971; File No. SR– a. Background Exchange. NYSEAmex–2010–95] On July 9, 2010, the Exchange 2. Statutory Basis received approval from the Commission Self-Regulatory Organizations; NYSE to begin trading, as a pilot program, The Exchange believes that the Amex LLC; Notice of Filing and securities listed on the Nasdaq Stock proposed rule change is consistent with Immediate Effectiveness of Proposed Market pursuant to unlisted trading Section 6(b) of the Act,4 in general, and Rule Change To Clarify the privileges (‘‘Nasdaq Securities’’). The furthers the objectives of Section 6(b)(5) Requirement for Floor Official Nasdaq Securities program commenced of the Act,5 in particular, in that it is Approval for Certain Halts of Nasdaq on July 13, 2010.3 designed to prevent fraudulent and Securities Traded via UTP manipulative acts and practices, to b. Proposed Amendments to Rule 515— promote just and equitable principles of September 22, 2010. NYSE Amex Equities trade, to remove impediments to and Pursuant to Section 19(b)(1) of the The Exchange proposes to amend perfect the mechanism of a free and Securities Exchange Act of 1934 (the Rule 515—NYSE Amex Equities dealing open market and a national market ‘‘ ’’ 1 2 Act ) and Rule 19b–4 thereunder, with trading halts. In its filing adopting system, and, in general, to protect notice is hereby given that on the Nasdaq Securities program, the investors and the public interest. September 16, 2010, NYSE Amex LLC Exchange included a provision in Rule The Exchange believes that the (the ‘‘Exchange’’ or ‘‘NYSE Amex’’) filed 515(a)(1)—NYSE Amex Equities that proposed rule change supports the with the Securities and Exchange DMM Units did not need to obtain Floor objectives of the Act by harmonizing the Commission (the ‘‘Commission’’) the Official approval in order to halt trading procedures for implementing non- proposed rule change as described in in a Nasdaq Security pursuant to Rule regulatory trading halts under Rule Items I and II below, which Items have 123D—NYSE Amex Equities. Upon 123D—NYSE Amex Equities for both its been prepared by the Exchange. The further review of the operation of this listed securities and Nasdaq Securities. Commission is publishing this notice to provision and the Nasdaq Securities solicit comments on the proposed rule program, the Exchange believes it B. Self-Regulatory Organization’s change from interested persons. should revise this provision to clarify Statement on Burden on Competition I. Self-Regulatory Organization’s that the DMM does not need to obtain The Exchange does not believe that Statement of the Terms of Substance of Floor Official approval if a Nasdaq the proposed rule change will impose the Proposed Rule Change Security is halted, suspended, or paused any burden on competition that is not pursuant to section (a)(2)–(4) of the necessary or appropriate in furtherance The Exchange proposes to amend Rule. Accordingly, if a Nasdaq Security of the purposes of the Act. Rule 515—NYSE Amex Equities. The is halted, suspended or paused from text of the proposed rule change is trading by the UTP Listing Market for C. Self-Regulatory Organization’s available at the Exchange’s principal regulatory purposes in accordance with Statement on Comments on the office, the Commission’s Public its rules and/or the UTP Plan, or if the Proposed Rule Change Received From Reference Room, the Commission’s Web authority to trade the Nasdaq Security Members, Participants, or Others site (http://www.sec.gov), and http:// on the Exchange is revoked, Floor No written comments were solicited www.nyse.com. Official approval to halt trading on the or received with respect to the proposed II. Self-Regulatory Organization’s Exchange is not required. However, if rule change. Statement of the Purpose of, and 3 III. Date of Effectiveness of the Statutory Basis for, the Proposed Rule See Securities Exchange Act Release No. 62479 (July 9, 2010), 75 FR 41264 (July 15, 2010) (order Proposed Rule Change and Timing for Change approving SR–NYSEAmex–2010–31 and the Commission Action adoption of the NYSE Amex Equities Rule 500 In its filing with the Commission, the Series). The pilot program is scheduled to run until The Exchange has filed the proposed self-regulatory organization included September 30, 2010, the expiration date of the New rule change pursuant to Section statements concerning the purpose of, York Stock Exchange LLC’s (‘‘NYSE’’) and the 19(b)(3)(A)(iii) of the Act 6 and Rule and basis for, the proposed rule change Exchange’s New Market Model (‘‘NMM’’) pilot program, on which the Nasdaq Securities program 19b–4(f)(6) thereunder.7 Because the and discussed any comments it received relies. See Securities Exchange Act Release Nos. 61274 (March 17, 2010), 75 FR 14221 (March 24, on the proposed rule change. The text 4 15 U.S.C. 78f(b). 2010)(SR–NYSE–2010–25) and 61275 (March 17, of those statements may be examined at 5 2010), 75 FR 14223 (March 24, 2010)(SR– 15 U.S.C. 78f(b)(5). the places specified in Item IV below. NYSEAmex–2010–28) (extending operation of the 6 15 U.S.C. 78s(b)(3)(A)(iii). The Exchange has prepared summaries, NMM pilot program on NYSE and NYSE Amex 7 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– set forth in sections A, B, and C below, until the earlier of the Commission’s approval to 4(f)(6) requires a self-regulatory organization to give make the program permanent or September 30, the Commission written notice of its intent to file 2010). For more information on the NMM pilot the proposed rule change, along with a brief 8 17 CFR 200.30–3(a)(12). program, see Securities Exchange Act Release description and text of the proposed rule change, 1 15 U.S.C. 78s(b)(1). No.58845 (October 24, 2008), 73 FR 64379 (October at least five business days prior to the date of filing 2 17 CFR 240.19b–4. 29, 2008)(SR–NYSE–2008–46). of the proposed rule change, or such shorter time

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00094 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59773

proposed rule change does not: (i) file number should be included on the (the ‘‘Commission’’) the proposed rule Significantly affect the protection of subject line if e-mail is used. To help the change as described in Items I and II investors or the public interest; (ii) Commission process and review your below, which Items have been prepared impose any significant burden on comments more efficiently, please use by the Exchange. The Commission is competition; and (iii) become operative only one method. The Commission will publishing this notice to solicit prior to 30 days from the date on which post all comments on the Commission’s comments on the proposed rule change it was filed, or such shorter time as the Internet Web site (http://www.sec.gov/ from interested persons. rules/sro.shtml). Copies of the Commission may designate, if I. Self-Regulatory Organization’s submission, all subsequent consistent with the protection of Statement of the Terms of Substance of amendments, all written statements investors and the public interest, the the Proposed Rule Change proposed rule change has become with respect to the proposed rule effective pursuant to Section 19(b)(3)(A) change that are filed with the The Exchange proposes to amend its of the Act and Rule 19b–4(f)(6)(iii) Commission, and all written rules regarding qualification and thereunder. communications relating to the registration of individual Trading The Exchange has requested that the proposed rule change between the Permit Holders and associated persons. Commission waive the 30-day operative Commission and any person, other than The text of the rule proposal is available delay so that the proposal may become those that may be withheld from the on the Exchange’s Web site (http:// operative immediately upon filing. The public in accordance with the www.cboe.org/legal), at the Exchange’s Commission believes that waiving the provisions of 5 U.S.C. 552, will be Office of the Secretary, on the 30-day operative delay is consistent available for Web site viewing and Commission’s Web site (http:// with the protection of investors and the printing in the Commission’s Public www.sec.gov), and at the Commission. Reference Room, on official business public interest, because such waiver II. Self-Regulatory Organization’s days between the hours of 10 a.m. and will promote consistency between the Statement of the Purpose of, and 3 p.m. Copies of the filing also will be rules governing the trading of Nasdaq Statutory Basis for, the Proposed Rule available for inspection and copying at Securities and listed securities on the Change Exchange. Accordingly, the Commission the principal office of the Exchange. All waives the 30-day operative delay comments received will be posted In its filing with the Commission, the requirement and designates the without change; the Commission does self-regulatory organization included proposed rule change as operative upon not edit personal identifying statements concerning the purpose of filing with the Commission. information from submissions. You and basis for the proposed rule change At any time within 60 days of the should submit only information that and discussed any comments it received filing of the proposed rule change, the you wish to make available publicly. All on the proposed rule change. The text Commission summarily may submissions should refer to File of those statements may be examined at temporarily suspend such rule change if Number SR–NYSEAmex–2010–95 and the places specified in Item IV below. it appears to the Commission that such should be submitted on or before The Exchange has prepared summaries, action is necessary or appropriate in the October 19, 2010. set forth in sections A, B, and C below, public interest, for the protection of For the Commission, by the Division of of the most significant parts of such investors, or otherwise in furtherance of Trading and Markets, pursuant to delegated statements. 8 the purposes of the Act. authority. A. Self-Regulatory Organization’s Florence E. Harmon, IV. Solicitation of Comments Statement of the Purpose of, and Deputy Secretary. Statutory Basis for, the Proposed Rule Interested persons are invited to [FR Doc. 2010–24261 Filed 9–27–10; 8:45 am] Change submit written data, views, and BILLING CODE 8010–01–P arguments concerning the foregoing, 1. Purpose including whether the proposed rule CBOE is proposing to amend its rules change is consistent with the Act. SECURITIES AND EXCHANGE regarding qualification, registration and Comments may be submitted by any of COMMISSION continuing education of individual the following methods: [Release No. 34–62977; File No. SR–CBOE– Trading Permit Holders and individual 3 Electronic Comments 2010–084] associated persons. Specifically, in • response to a request by the Division of Use the Commission’s Internet Self-Regulatory Organizations; Trading and Markets of the U.S. comment form (http://www.sec.gov/ Chicago Board Options Exchange, Securities and Exchange Commission rules/sro.shtml); or • Incorporated; Notice of Proposed Rule and in light of recent market events, the Send an e-mail to rule- Change Regarding Registration and Exchange is proposing to expand its [email protected]. Please include File Qualification Requirements registration and qualification Number SR–NYSEAmex–2010–95 on requirements to include additional the subject line. September 22, 2010. Pursuant to Section 19(b)(1) of the Paper Comments 3 CBOE Rule 1.1(qq) provides ‘‘The term Securities Exchange Act of 1934 (the ‘Associated Person’ or ‘Person Associated with a • Send paper comments in triplicate ‘‘Act’’),1 and Rule 19b–4 thereunder,2 Trading Permit Holder’ means any partner, officer, to Elizabeth M. Murphy, Secretary, notice is hereby given that on director or branch manager of a Trading Permit Securities and Exchange Commission, Holder (or any person occupying a similar status or September 10, 2010, the Chicago Board performing similar functions), any person directly 100 F Street, NE., Washington, DC Options Exchange, Incorporated or indirectly controlling, controlled by, or under 20549–1090. (‘‘Exchange’’ or ‘‘CBOE’’) filed with the common control with a Trading Permit Holder, or All submissions should refer to File Securities and Exchange Commission any employee of a Trading Permit Holder.’’ This filing refers specifically to the classification of Number SR–NYSEAmex–2010–95. This ‘‘individual associated persons’’ as an organization 8 17 CFR 200.30–3(a)(12). could fall within the scope of CBOE Rule 1.1(qq) as designated by the Commission. The Exchange 1 15 U.S.C. 78s(b)(1). and it is not CBOE’s intention to require registration has satisfied this requirement. 2 17 CFR 240.19b–4. by an organization.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00095 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59774 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

types of individual Trading Permit any required registration and currently working with the Division of Holders and individual associated examination fees. Specifically, the Trading and Markets of the U.S. persons. The revised requirements Exchange is proposing to move the Securities and Exchange Commission to apply to both CBOE and CBOE Stock existing Rule 3.6A(a), governing identify a reasonable time period for Exchange (‘‘CBSX’’) Trading Permit registration requirements for Financial which compliance with the additional Holders and their associated persons. and Operations Principals to 3.6A(b). examination requirements will be CBOE is also proposing to clarify that CBOE is proposing to add Rule required. The availability of the certain requirements throughout Rule 3.6A(a)(1) that will require registration appropriate category on Web CRD for 3.6A, including proposed Rule 3.6A(a), and qualification by individual Trading any new qualification examinations 3.6A(b) and Interpretation and Policy Permit Holders and individual recognized by the Exchange may be .03 to 3.6A, apply to both Trading associated persons engaged or to be subject to the timing for any required Permit Holders and TPH organizations.4 engaged in the securities business of a systems development on Web CRD. The Exchange believes the proposed Trading Permit Holder or TPH CBOE is considering various rule changes are consistent with Rule organization.8 alternatives for an appropriate 15b7–1,5 promulgated under the CBOE is also proposing to adopt qualification examination(s) for Trading Securities Exchange Act of 1934, as Interpretation and Policy .06 to define Permit Holders and associated persons amended (‘‘Exchange Act’’),6 which what it means to be ‘‘engaged in the required to register under proposed Rule provides: ‘‘No registered broker or dealer securities business of a Trading Permit 3.6A(a). These alternatives include, but shall effect any transaction in * * * any Holder or TPH organization’’ for are not limited to, the successful security unless any natural person purposes of this rule. Specifically, an completion of CBOE’s Trading Permit associated with such broker or dealer individual Trading Permit Holder or Holder Qualification Examination or the who effects or is involved in effecting individual associated person shall be development of a new qualification such transaction is registered or considered to be a person engaged in the examination.10 The Exchange will approved in accordance with the securities business of a Trading Permit notify its Trading Permit Holders and standards of training, experience, Holder or TPH organization if (i) the TPH organizations via regulatory competence, and other qualification individual Trading Permit Holder or circular what qualification standards * * * established by the rules associated person conducts proprietary examination(s) will be acceptable for of any national securities exchange trading, acts as a market-maker, effects compliance with the requirements ***’’ transactions on behalf of a broker-dealer proposed in Rule 3.6A(a)(1). Individual CBOE Rule 3.6A establishes the account, supervises or monitors Trading Permit Holders or individual qualification and registration proprietary trading, market-making or associated persons acting in the capacity requirements for associated persons of brokerage activities on behalf of the of a sole proprietor, officer, partner, TPH organizations. This rule currently broker-dealer, supervises or conducts director or Chief Compliance Officer establishes registration requirements for training for those engaged in proprietary will be subject to heightened a Financial/Operations Principal for trading, market-making or brokerage qualification requirements. In addition, each Trading Permit Holder and TPH activities on behalf of a broker-dealer an individual Trading Permit Holder or organization subject to the Exchange Act account; or (ii) the individual Trading individual associated person that is Rule 15c3–1.7 Rule 3.6A also references Permit Holder or associated person engaged in the supervision or the registration requirements set forth in engages in the management of any monitoring of proprietary trading, Chapter IX of the Exchange’s Rulebook individual Trading Permit Holder or market-making or brokerage activities for associated persons of TPH individual associated person identified and/or that is engaged in the organizations that conduct a public in (i) above as an officer, partner or supervision or training of those engaged 9 customer business. director. in proprietary trading, market-making or The Exchange is proposing to require Web CRD has been enhanced by brokerage activities with respect to additional Trading Permit Holders and FINRA to allow for general registration associated persons to submit the of applicable Trading Permit Holders 10 CBOE has represented to Commission staff that appropriate application for registration and associated persons. CBOE will it intends to develop, within six months of the online through the Central Registration require that all applicable Trading approval date of this filing, the appropriate Depository system (‘‘Web CRD’’), which Permit Holders and individual qualification examination(s) for the individual is operated by the Financial Industry associated persons that are not already Trading Permit Holders and associated persons that will be required to register following the approval Regulatory Authority, Incorporated registered in Web CRD, that are required of this filing. Once the development of an (‘‘FINRA’’), successfully complete any to register under proposed Rule 3.6A, to examination(s) has been completed, the qualification examination(s) as register within 60 days of the approval implementation and effective date will be subject to prescribed by the Exchange and submit date of this filing by the U.S. Securities approval by the Commission and any necessary systems development schedules to implement the and Exchange Commission. CBOE is examination. If the Exchange does not complete 4 Section 1.1 of CBOE’s By-Laws provides: ‘‘The development of the examination(s) within six term ‘Trading Permit Holder’ means any individual, 8 An individual with an indirect ownership months of the approval date of this filing, the corporation, partnership, limited liability company interest in a Trading Permit Holder or TPH Exchange will establish a deadline for qualification or other entity authorized by the Rules that holds organization, that is engaged in the securities based on the existing categories of registration and a Trading Permit. If a Trading Permit Holder is an business of such Trading Permit Holder or TPH qualification examinations available on Web CRD, individual, the Trading Permit Holder may also be organization, is required to register under proposed until such time as the development and referred to as an ‘individual Trading Permit Holder.’ Rule 3.6A(a)(1). implementation of an alternative examination(s) has If a Trading Permit Holder is not an individual, the 9 With the exception of its application to sole been completed. The referenced categories of Trading Permit Holder may also be referred to as proprietors (as registration of sole proprietors at registration available on Web CRD include, but may a ‘TPH organization.’ A Trading Permit Holder is a CBOE is required under proposed subparagraph (a) not be limited to, the General Securities ‘member’ solely for purposes of the Act; however, of Interpretation and Policy .06 to Rule 3.6A), this Representative (GS) and General Securities one’s status as a Trading Permit Holder does not requirement is consistent with FINRA’s registration Principal (GP), as applicable to the type of business confer on that Person any ownership interest in the requirement for Principals (as defined in NASD activities conducted. The accompanying Exchange.’’ Rule 1021). CBOE is declining to adopt the term qualification examination for the General Securities 5 17 CFR 240.15b7–1. ‘‘Principal’’ in the Exchange Rulebook to avoid Representative is the Series 7 and the 6 15 U.S.C. 78a et seq. confusion with existing terms, such as ‘‘Option accompanying qualification examination for the 7 17 CFR 240.15c3–1. Principal.’’ General Securities Principal is the Series 24.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00096 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59775

those activities will be subject to Options Principals and Registered for the category of registration if the heightened qualification requirements. Representatives, are also subject to the individual Trading Permit Holder’s or The Exchange believes that the registration requirements set forth in individual associated person’s heightened qualification requirements Chapter IX of CBOE’s Rules. Chapter IX registration has been revoked by the should enhance the supervisory is generally applicable to TPH Exchange as a disciplinary sanction or structure for Trading Permit Holders organizations that conduct a public whose most recent registration has been and TPH organizations that do not customer business. terminated for a period of two or more conduct a public customer business. The Exchange is also proposing to years. The Exchange is also proposing to add adopt Rule 3.6A(c) to require the The Exchange is proposing to move Rule 3.6A(a)(2) to identify several designation of a Chief Compliance the language in the existing categories of persons that are exempt Officer by Trading Permit Holders and Interpretation and Policy .01 to from these additional registration TPH organizations that are registered Interpretation and Policy .02. The requirements. The categories of broker-dealers, which designation shall Exchange is proposing to add language individual Trading Permit Holders and be updated on Schedule A of Form BD. to Interpretation and Policy .01 associated persons that are exempt from Under the proposed rule, the Chief requiring each individual Trading the registration requirements set forth in Compliance Officer shall be required to Permit Holder or individual associated Rule 3.6A(a)(1) include (i) Individual register and pass the appropriate person subject to the registration associated persons functioning solely qualification examination as prescribed requirements in Rule 3.6A to and exclusively in a clerical or by the Exchange.12 This is consistent electronically file a Uniform ministerial capacity; (ii) individual with FINRA Rule 3130 requiring Application for Securities Industry Trading Permit Holders and individual designation of at least one Chief Registration through Web CRD. associated persons that are not actively Compliance Officer on Schedule A of The Exchange is also proposing to engaged in the securities business, (iii) Form BD. In addition, NASD Rule 1022 move the existing Interpretation and individual Trading Permit Holders and requires registration by each person Policies .02 and .03 to Interpretation individual associated persons designated as Chief Compliance Officer and Policies .03 and .04, respectively. functioning solely and exclusively to on Schedule A of Form BD. CBOE is The Exchange is also proposing to meet a Trading Permit Holder’s or TPH also proposing to implement a limited modify the proposed Interpretation and organization’s need for nominal exemption from the requirement to pass Policies .02, .03 and .04 to remove the corporate officers or for capital the appropriate qualification existing references to those with ‘‘an participation; and (iv) individual examination by a Chief Compliance associated person status’’ enumerated associated persons whose functions are Officer. Specifically, a person that has under paragraph (a) or (b) of the current solely and exclusively related to been designated as a Chief Compliance Rule 3.6A and extend the applicability transactions in commodities, Officer on Schedule A of Form BD for to all individual Trading Permit Holders transactions in security futures and/or at least two years immediately prior to or individual associated persons subject effecting transactions on the floor of January 1, 2002, and who has not been to the registration requirements in Rule another national securities exchange subject within the last ten years to any 3.6A. and who are registered as floor members statutory disqualification as defined in The Exchange is also proposing to with such exchange. The Exchange Section 3(a)(39) of the Act; a adopt Interpretation and Policy .05 to believes these registration exemptions suspension; or the imposition of a Rule 3.6A. This will enable the are appropriate because CBOE would $5,000 or more fine for a violation(s) of Exchange to waive the qualification not consider individuals that fall into any provision of any securities law or examination requirement where good the exemptions to be actively engaged in regulation, or any agreement with, rule cause is shown. Similar rules are in securities business unless they are or standard of conduct of any securities place at the New York Stock Exchange, registered as floor members on another governmental agency, securities self- Inc. (‘‘NYSE’’) and FINRA.13 In national securities exchange, in which regulatory organization, or as imposed determining whether a waiver shall be case, they are already registered as floor by any such self-regulatory organization granted, the Exchange shall consider, members and not required to register at in connection with a disciplinary among other things, previous industry CBOE.11 CBOE believes incorporating proceeding, shall be required to register employment, training and/or the these exemptions into the rule provides in the category of registration successful completion of similar additional clarity to individual Trading appropriate to the function to be qualification examinations of other self- Permit Holders and individual performed as prescribed by the regulatory organizations. associated persons as to who will or will Exchange, but shall be exempt from the In addition, the Exchange is not be required to register under the requirement to pass the heightened proposing to add Interpretation and proposed rule. Any applicable FINRA qualification examination as prescribed Policy .07 that will require registration registration requirements would by the Exchange. and successful completion of a continue to apply to Trading Permit The Exchange is proposing to adopt heightened qualification examination by Holders and TPH organizations that are Rule 3.6A(e) to set forth the at least two individuals that are each an also members of FINRA. requirements for examinations where officer, partner or director of each The Exchange is proposing to move there is a lapse in registration. Trading Permit Holder or TPH the existing Rule 3.6A(b), referencing Specifically, an individual Trading organization that is a registered broker- the types of associated persons required Permit Holder or individual associated dealer and has trading privileges on the to register under Chapter IX of CBOE’s person shall be required to pass the Exchange.14 However, please note that Rules, to Rule 3.6A(d). CBOE is also appropriate qualification examination proposing to clarify the language in this 13 See NASD Rule 1070—Qualification section to make it clear that individual 12 The appropriate qualification examination for a Examinations and Waiver of Requirements and Chief Compliance Officer is the Series 14 NYSE Rule 345—Employees—Registration, associated persons, including Registered (Compliance Official). CBOE is working with Approval, Records. FINRA to establish this category of registration and 14 With the exception of its application to sole 11 The Commission notes that these firms must make the accompanying qualification examination proprietors, this requirement is consistent with the comply with Section 15(b)(8) of the Act. available at CBOE on Web CRD. Continued

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00097 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59776 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

all individuals who engage in the Trading Permit Holder or TPH 9.3(c) relating to amended Form U–5 to supervisory functions of the Trading organization does not, and will not, provide ‘‘the facts or circumstances Permit Holder’s or TPH organization’s have customers; and (iv) all persons giving rise to the need for the securities business shall be required to registered on behalf of the Trading amendment’’ rather than ‘‘facts and register and pass the appropriate Permit Holder or TPH organization circumstances giving rise to the heightened qualification examination(s) acting or to be acting in the capacity of amendment.’’ Finally, CBOE is relevant to the particular category of a trader must be owners of, employees proposing to replace language relating to registration. Trading Permit Holders that of, or contractors to the Trading Permit ‘‘said termination notice’’ in Rule 9.3(b) are sole proprietors are exempt from this Holder or TPH organization. The and ‘‘notice’’ in Rule 9.3(c) with ‘‘Form requirement. In addition, the Exchange description of what constitutes U–5’’ for specificity. may waive the requirement to have two proprietary trading for purposes of this officers, partners and/or directors Interpretation and Policy .07 to Rule 2. Statutory Basis registered if a Trading Permit Holder or 3.6A is appropriate in that it provides The Exchange believes the proposed TPH organization conclusively additional clarity for Trading Permit rule change is consistent with Section demonstrates that only one officer, Holders and individual associated 6(b) of the Act,16 in general, and furthers partner or director should be required to persons to evaluate whether two the objectives of Section 6(b)(5) of the register. For example, a TPH individuals are required to register. Act,17 which requires, among other organization could conclusively In conjunction with the additional things, that the Exchange’s rules be demonstrate that only one individual is registration requirements, the Exchange designed to remove impediments to and required to register if such TPH is proposing to delete a reference in perfect the mechanism of a free and organization is owned by one individual Interpretation and Policy .01 to Rule open market and a national market (such as a single member limited 9.3A that excludes those people whose system, and protect investors and the liability company), such individual acts activities are limited solely to the public interest. Specifically, the as the only trader on behalf of the TPH transaction of business on the Floor enhanced registration and qualification organization, and the TPH organization with Trading Permit Holders or requirements will provide additional employs only one other individual who registered broker-dealers from the protection to investors and further functions only in a clerical capacity. definition of ‘‘registered person’’ for promote the public interest. The ability to waive this registration purposes of Rule 9.3A. The changes In addition, the Exchange believes requirement is consistent with similar proposed to Interpretation and Policy that the proposed rule change is FINRA rules regarding principal .04 of Rule 3.6A would subject consistent with Section 6(c) of the Act,18 registration.15 individual Trading Permit Holders and in general, and furthers the objectives of CBOE is also proposing to allow a individual associated persons whose Section 6(c)(3)(B) of the Act,19 which Trading Permit Holder or TPH activities are limited solely to the provides, among other things, that a organization that conducts proprietary transaction of business on the Floor national securities exchange may bar a trading only and has 25 or fewer with Trading Permit Holders or natural person from becoming registered persons to have only one registered broker dealers to the associated with a member if such officer or partner registered under this continuing education requirements set natural person does not meet the section rather than two. This exception forth in Rule 9.3A or any other standards of training, experience and is similar to that of several other continuing education requirements as competence as prescribed by the rules of exchanges and reflects that such prescribed by the Exchange. the national securities exchange. The Trading Permit Holders or TPH This filing also proposes to make Exchange also believes that the organizations do not necessitate the several technical and/or non-substantive proposed rule change furthers the same level of supervisory structure as changes. First, the Exchange is objectives of Section 6(c)(3)(C) of the those Trading Permit Holders or TPH proposing to modify the title of Rule Act,20 which provides, among other organizations that have customers or are 3.6A to delete the term ‘‘Certain’’ and to things, that a national securities larger in size. For purposes of this clarify that the registration requirements exchange may bar any person from Interpretation and Policy .07 to Rule set forth in Rule 3.6A also apply to becoming associated with a member if 3.6A, a Trading Permit Holder or TPH specified Trading Permit Holders. The such person does not agree to supply organization shall be considered to Exchange is also proposing to make a the exchange with such information conduct only proprietary trading if it technical change to proposed Rule with respect to its dealings with the has the following characteristics: (i) the 3.6A(b) that will replace the reference to member as may be specified by the rules the ‘‘Department of Financial and Sales Trading Permit Holder or TPH of the exchange and to permit the Practice Compliance’’ with the organization is not required by Section examination of its books and records to ‘‘Exchange’’ because the Exchange no 15(b)(8) of the Exchange Act to become verify the accuracy of any information longer has a department by that name. a FINRA member but is a member of so supplied. another registered securities exchange In addition, the Exchange is proposing to replace the two references in this not registered solely under Section 6(g) B. Self-Regulatory Organization’s section to ‘‘in a form and manner of the Exchange Act; (ii) all funds used Statement on Burden on Competition prescribed by the Exchange’’ with ‘‘as or proposed to be used by the Trading CBOE does not believe that the prescribed by the Exchange’’ for Permit Holder or TPH organization are proposed rule change will impose any consistency throughout Rule 3.6A. The the Trading Permit Holder’s or TPH burden on competition not necessary or Exchange is also proposing to amend organization’s own capital, traded appropriate in furtherance of the several references in CBOE Rules 3.6A, through the Trading Permit Holder’s or purposes of the Act. 9.2 and 9.3. Specifically, these rules TPH organization’s own accounts; (iii) ‘‘ currently reference NASD’s Web CRD 16 15 U.S.C. 78f(b). System.’’ Since NASD is now known as 17 registration requirement set forth in NASD Rule 15 U.S.C. 78f(b)(5). 1021 addressing registration of two Principals (as FINRA, CBOE is proposing to change 18 15 U.S.C. 78f(c). defined in NASD Rule 1021). this reference to ‘‘Web CRD.’’ The 19 15 U.S.C. 78f(c)(3)(B). 15 See NASD Rule 1021(e). Exchange is proposing to clarify Rule 20 15 U.S.C. 78f(c)(3)(C).

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00098 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59777

C. Self-Regulatory Organization’s All submissions should refer to File No. SECURITIES AND EXCHANGE Statement on Comments on the SR–CBOE–2010–084. This file number COMMISSION Proposed Rule Change Received From should be included on the subject line Members, Participants, or Others if e-mail is used. To help the [Release No. 34–62969; File No. SR–BX– 2010–064] The Exchange neither solicited nor Commission process and review your received comments on the proposal. comments more efficiently, please use Self-Regulatory Organizations; only one method. The Commission will NASDAQ OMX BX, Inc.; Notice of Filing III. Date of Effectiveness of the post all comments on the Commission’s and Order Granting Accelerated Proposed Rule Change and Timing for Web site (http://www.sec.gov/rules/ Approval to a Proposed Rule Change Commission Action sro.shtml). Copies of the submission,21 To Establish Pricing for 10Gb Direct Within 45 days of the date of all subsequent amendments, all written Circuit Connections and To Codify publication of this notice in the Federal statements with respect to the proposed Pricing for Direct Circuit Connections Register or within such longer period rule change that are filed with the Capable of Supporting Up to 1Gb for up to 90 days (i) as the Commission may Commission, and all written Customers Who Are Not Co-Located in designate if it finds such longer period communications relating to the the Exchange’s Datacenter to be appropriate and publishes its proposed rule change between the September 22, 2010. reasons for so finding or (ii) as to which Commission and any person, other than Pursuant to Section 19(b)(1) of the the self-regulatory organization those that may be withheld from the consents, the Commission will: Securities Exchange Act of 1934 public in accordance with the (‘‘Act’’),1 and Rule 19b–4 thereunder,2 (A) By order approve or disapprove provisions of 5 U.S.C. 552, will be the proposed rule change, or notice is hereby given that on available for Web site viewing and September 10, 2010, The NASDAQ (B) Institute proceedings to determine printing in the Commission’s Public whether the proposed rule change OMX BX, Inc. (the ‘‘Exchange’’ or ‘‘BX’’) Reference Room, 100 F Street, NE., should be disapproved. filed with the Securities and Exchange Washington, DC 20549, on official Commission (‘‘Commission’’) the IV. Solicitation of Comments business days between the hours of 10 proposed rule change as described in Interested persons are invited to a.m. and 3 p.m. Copies of such filing Items I and II below, which Items have submit written data, views, and also will be available for inspection and been prepared by the Exchange. The arguments concerning the foregoing, copying at the principal office of CBOE. Commission is publishing this notice to including whether the proposed rule All comments received will be posted solicit comments on the proposed rule change is consistent with the Act. without change; the Commission does change from interested persons, and is Comments may be submitted by any of not edit personal identifying approving the proposal on an the following methods: information from submissions. You accelerated basis. should submit only information that Electronic Comments I. Self-Regulatory Organization’s you wish to make available publicly. All • Statement of the Terms of the Substance Use the Commission’s Internet submissions should refer to File No. of the Proposed Rule Change comment form (http://www.sec.gov/ SR–CBOE–2010–084 and should be The Exchange is filing with the rules/sro.shtml); or submitted on or before October 19, Commission a proposed rule change to • Send an e-mail to rule- 2010. [email protected]. Please include File establish pricing for 10Gb direct circuit No. SR–CBOE–2010–084 on the subject For the Commission, by the Division of connections and to codify pricing for line. Trading and Markets, pursuant to delegated direct circuit connections capable of authority.22 supporting up to 1Gb for customers who Paper Comments Florence E. Harmon, are not co-located in the Exchange’s • Send paper comments in triplicate Deputy Secretary. datacenter. The text of the proposed rule to Elizabeth M. Murphy, Secretary, [FR Doc. 2010–24343 Filed 9–27–10; 8:45 am] change is below. Proposed new language is underlined and proposed Securities and Exchange Commission, BILLING CODE 8010–01–P 100 F Street, NE., Washington, DC deletions are in brackets [sic].3 20549–1090. * * * * *

7051. DIRECT CONNECTIVITY TO BX

Description Installation Fee Ongoing Monthly Fee

Direct Circuit Connection to BX (10Gb) ...... $1,000 $5000 Direct Circuit Connection to BX (supports up to 1Gb) ...... $1000 $1000 Optional Cable Router ...... $925

21 The text of the proposed rule change is 1 15 U.S.C. 78s(b)(1). 3 Changes are marked to the rule text that appears available on the Commission’s Web site at http:// 2 17 CFR 240.19b–4. in the electronic manual of BX found at http:// www.sec.gov. nasdaqomxbx.cchwallstreet.com. 22 17 CFR 200.30–3(a)(12).

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00099 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59778 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

(b) and (c) Not applicable [sic]. b. Statutory Basis the Act. Comments may be submitted by any of the following methods: II. Self-Regulatory Organization’s BX believes that the proposed rule Statement of the Purpose of, and change is consistent with the provisions Electronic Comments Statutory Basis for, the Proposed Rule of Section 6 of the Act,6 in general, and Change with Sections 6(b)(5) of the Act,7 in • Use the Commission’s Internet particular, in that the proposal is comment form (http://www.sec.gov/ In its filing with the Commission, the designed to prevent fraudulent and rules/sro.shtml); or Exchange included statements manipulative acts and practices, to • concerning the purpose of and basis for Send an e-mail to rule- promote just and equitable principles of [email protected]. Please include File the proposed rule change and discussed trade, to foster cooperation and any comments it received on the Number SR–BX–2010–064 on the coordination with persons engaged in subject line. proposed rule change. The text of these regulating, clearing, settling, processing statements may be examined at the information with respect to, and Paper Comments places specified in Item III below. The facilitating transactions in securities, to • Exchange has prepared summaries, set remove impediments to and perfect the Send paper comments in triplicate forth in Sections A, B, and C below, of mechanism of a free and open market to Elizabeth Murphy, Secretary, the most significant aspects of such and a national market system, and, in Securities and Exchange Commission, statements. general, to protect investors and the 100 F Street, NE., Washington, DC A. Self-Regulatory Organization’s public interest. In particular, the 20549–1090. Statement of the Purpose of, and proposal will provide greater All submissions should refer to File Statutory Basis for, the Proposed Rule transparency into the connectivity Number SR–BX–2010–064. This file Change options available to market participants. number should be included on the The Exchange also believes that the subject line if e-mail is used. To help the a. Purpose proposed rule change is consistent with Commission process and review your the provisions of Section 6 of the Act,8 The Exchange is re-proposing to comments more efficiently, please use in general, and with Section 6(b)(4) of establish fees for direct 10Gb circuit only one method. The Commission will the Act,9 in particular, in that it connections, and to codify fees for post all comments on the Commission’s provides for the equitable allocation of direct circuit connections capable of Internet Web site (http://www.sec.gov/ reasonable dues, fees and other charges supporting up to 1Gb, for customers rules/sro.shtml). Copies of the among members and issuers and other who are not co-located at the Exchange’s submission, all subsequent 4 persons using any facility or system datacenter. Currently, the Exchange amendments, all written statements which the Exchange operates or already makes available to co-located with respect to the proposed rule controls. The filing codifies and makes customers a 10Gb circuit connection change that are filed with the transparent the fees imposed for direct and charges for each a $1000 initial Commission, and all written connections to non co-located installation charge as well as an ongoing communications relating to the customers. These fees are uniform for all monthly fee of $5000. The Exchange is proposed rule change between the such customers and are either establishing the same fees for non co- Commission and any person, other than 5 comparable to fees charged to co-located located customers with a 10Gb circuit. those that may be withheld from the customers or vary due to different costs The Exchange also already makes public in accordance with the associated with providing service to the available to both co-located and non co- provisions of 5 U.S.C. 552, will be two customer types. located customers direct connections available for website viewing and capable of supporting up to 1Gb, with B. Self-Regulatory Organization’s printing in the Commission’s Public per connection monthly fees of $500 for Statement on Burden on Competition Reference Room, 100 F Street, NE., co-located customers and $1000 for non BX does not believe that the proposed Washington, DC 20549, on official co-located customers. Monthly fees are rule change will result in any burden on business days between the hours of 10 higher for non co-located customers competition that is not necessary or a.m. and 3 p.m. Copies of the filing also because direct connections require BX appropriate in furtherance of the will be available for inspection and to provide cabinet space and purposes of the Act, as amended. copying at the principal office of the middleware for those customers’ third- Exchange. All comments received will party vendors to connect into the C. Self-Regulatory Organization’s be posted without change; the datacenter and, ultimately, to the Statement on Comments on the Commission does not edit personal trading system. Finally, for non co- Proposed Rule Change Received From identifying information from located customers the Exchange charges Members, Participants, or Others submissions. You should submit only an optional installation fee of $925 if the Written comments on the proposed information that you wish to make customer chooses to use an on-site rule change were neither solicited nor available publicly. All submissions router. received. should refer to File Number SR–BX– 2010–064 and should be submitted on 4 III. Solicitation of Comments The Exchange filed SR–BX–2010–043 seeking to or before October 19, 2010. establish and codify the fees set forth in this filing. Interested persons are invited to That proposal was published for comment and submit written data, views, and IV. Commission’s Findings and Order approved by the Commission. The approval, Granting Accelerated Approval of however, pre-dated the BX Board’s approval of the arguments concerning the foregoing, proposal. As such, BX is re-filing the proposal and including whether the proposed rule Proposed Rule Change seeking accelerated approval. change, as amended, is consistent with 5 BX provides an additional 1Gb copper The Commission finds that the connection option to the Exchange for co-located proposed rule change is consistent with 6 15 U.S.C. 78f. customers. Given the technological constraints of the requirements of the Act and the copper connections over longer distances, the 7 15 U.S.C. 78f(b)(5). Exchange does not offer a copper connection option 8 15 U.S.C. 78f. rules and regulations thereunder to users outside of its datacenter. 9 15 U.S.C. 78f(b)(4). applicable to a national securities

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00100 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59779

exchange.10 In particular, the finds good cause, pursuant to Section II. Self-Regulatory Organization’s Commission finds that the proposed 19(b)(2) of the Act, for approving the Statement of the Purpose of, and rule change is consistent with Section proposed rule change prior to the Statutory Basis for, the Proposed Rule 6(b)(4) of the Act,11 which requires that thirtieth day after the date of Change the rules of a national securities publication of notice of filing thereof in In its filing with the Commission, exchange provide for the equitable the Federal Register. OCC included statements concerning allocation of reasonable dues, fees and V. Conclusion the purpose of and basis for the other charges among its members and proposed rule change and discussed any issuers and other persons using its It is therefore ordered, pursuant to comments it received on the proposed facilities, and with Section 6(b)(5) of the Section 19(b)(2) of the Act,15 that the rule change. The text of these statements 12 Act, which requires, among other proposed rule change (SR–BX–2010– may be examined at the places specified things, that the rules of a national 064) be, and hereby is, approved on an in Item IV below. OCC has prepared securities exchange be designed to accelerated basis. summaries, set forth in sections A, B, promote just and equitable principles of and C below, of the most significant trade, to remove impediments to and For the Commission, by the Division of Trading & Markets, pursuant to delegated aspects of such statements. perfect the mechanism of a free and authority.16 open market and a national market A. Self-Regulatory Organization’s Florence E. Harmon, system and, in general, to protect Statement of the Purpose of, and investors and the public interest, and Deputy Secretary. Statutory Basis for, the Proposed Rule not be designed to permit unfair [FR Doc. 2010–24259 Filed 9–27–10; 8:45 am] Change discrimination between customers, BILLING CODE 8010–01–P The purpose of this proposed rule issuers, brokers, or dealers. change is to accommodate Weekly The Commission believes that the Options and Monthly Options. The SECURITIES AND EXCHANGE proposed fees for 10Gb and 1Gb direct Chicago Board Options Exchange, Inc. COMMISION circuit connections are reasonable and (‘‘CBOE’’), is proposing to trade Weekly equitably allocated insofar as they are Options and Monthly Options on broad- applied on the same terms to similarly- [Release No. 34–62942; File No. SR–OCC– based indexes (‘‘Weekly Index Options’’ situated market participants. In 2010–16] and ‘‘Monthly Index Options,’’ addition, the Commission believes that respectively).2 Series of Weekly Index Self-Regulatory Organizations; The the connectivity options described in Options will expire on a Friday of a Options Clearing Corporation; Notice the proposed rule change are not calendar month other than the third of Filing of Proposed Rule Change unfairly discriminatory because BX Friday and Monthly Index Options will Relating to Weekly Options And makes the 10Gb and 1Gb direct circuit expire on the last trading day of a Monthly Options connections uniformly available to all calendar month. If the last trading day non-co-located customers who September 20, 2010. of the month is a Friday, CBOE would voluntarily request them and pay the opt to list Monthly Index Options over Pursuant to Section 19(b)(1) of the fees as detailed in the proposal. As Weekly Index Options. Weekly Index Securities Exchange Act of 1934 represented by BX, these fees are Options and Monthly Index Options (‘‘Act’’),1 notice is hereby given that on uniform for all such customers and are would be European-style, P.M.-settled September 15, 2010, The Options either the same as fees charged to co- contracts. CBOE proposes for these Clearing Corporation (‘‘OCC’’) filed with located customers, or vary due to contracts to be subject to ‘‘automatic the Securities and Exchange different costs incurred by BX exercise procedures,’’ meaning that Commission the proposed rule change associated with providing service to the these contracts would automatically be as described in Items I and II below, two different customer types. Finally, exercised at expiration without the which Items have been prepared the Commission believes that the opportunity for the clearing member to primarily by OCC. The Commission is proposal will further the protection of submit contrary exercise instructions if publishing this notice to solicit investors and the public interest immediately prior to expiration the comments on the proposed rule change because it will provide greater contract’s settlement amount or exceeds from interested persons. transparency regarding the connectivity a certain predetermined amount. options available to market participants. I. Self-Regulatory Organization’s Weekly Options and Monthly Options The substance of the proposed rule Statement of the Terms of the Substance can be cleared and settled by OCC with has already been subject to full notice of the Proposed Rule Change relatively minor revisions to current By- and public comment, and no comments laws and Rules to provide for options were received.13 Moreover, similar The proposed rule change would that expire on a monthly or weekly pricing is already in effect for these accommodate options that expire on (a) schedule as proposed by CBOE.3 same services being offered by BX’s any Friday of a calendar month other Therefore, OCC proposes amending sister markets, the NASDAQ Stock than the third Friday of a calendar Article I, Section 1 of its by-laws to Market, LLC and NASDAQ OMX PHLX, month (‘‘Weekly Options’’) or (b) on the include definitions covering Weekly Inc.14 Accordingly, the Commission last trading day of a calendar month (‘‘Monthly Options’’). 2 Securities Exchange Act Release No. 62658 (Aug. 5, 2010), 75 FR 49010 (Aug. 12, 2010). 10 In approving this proposal, the Commission has 3 OCC’s By-laws and Rules already accommodate considered the proposed rule’s impact on NASDAQ Stock Market, LLC proposed rule change equity and index options that expire on a day other efficiency, competition, and capital formation. See relating to pricing for direct circuit connections); than a Saturday following the third Friday of the 15 U.S.C. 78c(f). 62639 (August 4, 2010), 75 FR 48391 (August 10, 11 month. For example, they accommodate quarterly 15 U.S.C. 78f(b)(4). 2010) (SR–Phlx–2010–89) (Order approving a options, which expire on the last business day of 12 15 U.S.C. 78f(b)(5). NASDAQ OMX PHLX, Inc. proposed rule change a calendar quarter, and short term options, which 13 See supra note 4. relating to pricing for direct circuit connections). expire a week after their introduction for trading. 14 See Securities Exchange Act Release Nos. 15 15 U.S.C. 78s(b)(2). Quarterly index options and short term index 62663 (August 9, 2010), 75 FR 49543 (August 13, 16 17 CFR 200.30–3(a)(12). options are also subject to automatic exercise 2010) (SR–NASDAQ–2010–77) (Order approving a 1 15 U.S.C. 78s(b)(1). procedures.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00101 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59780 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

and Monthly Options. Changes to Rule proposed rule change. OCC will notify printing in the Commission’s Public 801, which relates to the submission of the Commission of any written Reference Room, 100 F Street, NE., exercise notices, would be made to comments it receives. Washington, DC 20549, on official permit a Weekly or Monthly Option to business days between the hours of 10 III. Date of Effectiveness of the be exercised on the business day before a.m. and 3 p.m.. Copies of such filing Proposed Rule Change and Timing for the expiration date and to include also will be available for inspection and Weekly Index Options and Monthly Commission Action copying at OCC’s principal office and on Index Options in the listing of options Within 45 days of the date of OCC’s Web site at http:// series subject to automatic exercise. publication of this notice in the Federal www.theocc.com/publications/rules/ Changes to Interpretation and Policy .03 Register or within such longer period (i) proposed_changes/ to Rule 805, which relates to expiration as the Commission may designate up to proposed_changes.jspU. All comments date exercise processing, would be ninety days of such date if it finds such received will be posted without change; made to permit OCC to specify time longer period to be appropriate and the Commission does not edit personal frames for submitting exercise publishes its reasons for so finding or identifying information from instructions and furnishing reports with (ii) as to which the self-regulatory submissions. You should submit only respect to Weekly and Monthly Options organization consents, the Commission information that you wish to make on equity interests that are different will: available publicly. All submission than those time frames effect for (A) by order approve or disapprove should refer to File No. SR–OCC–2010– conventional options.4 A conforming the proposed rule change or 16 and should be submitted on or before change to Rule 1804, which (B) institute proceedings to determine October 19, 2010 supplements Rule 805, also would be whether the proposed rule change For the Commission by the Division of made to add Weekly Index Options and should be disapproved. Trading and Markets, pursuant to delegated Monthly Index Options to the list of IV. Solicitation of Comments authority.6 options series subject to automatic Florence E. Harmon, Interested persons are invited to exercise. Deputy Secretary. OCC states that the proposed changes submit written data, views, and [FR Doc. 2010–24199 Filed 9–27–10; 8:45 am] to OCC’s By-Laws and Rules are arguments concerning the foregoing, BILLING CODE 8010–01–P consistent with the purposes and including whether the proposed rule requirements of Section 17A of the Act 5 change is consistent with the Act. because they are designed to permit Comments may be submitted by any of SOCIAL SECURITY ADMINISTRATION OCC to perform clearing services for the following methods: products that are subject to the Electronic Comments [Docket No. SSA 2010–0040] jurisdiction of the SEC without • adversely affecting OCC’s obligations Use the Commission’s Internet Privacy Act of 1974, as Amended; with respect to the prompt and accurate comment form (http://www.sec.gov/ Computer Matching Program (SSA/ rules/sro.shtml); or Railroad Retirement Board (RRB))— clearance and settlement of securities • transactions or the protection of Send an e-mail to rule- Match Number 1006 investors and the public interest. They [email protected]. Please include File No. SR–OCC–2010–16 on the subject AGENCY: Social Security Administration accomplish this purpose by applying (SSA). substantially the same rules and line. ACTION: Notice of a renewal of an procedures to transactions in Monthly Paper Comments existing computer matching program Index Options and Weekly Index • Send paper comments in triplicate that is scheduled to expire on March 1, Options as OCC applies to transactions to Elizabeth M. Murphy, Secretary, 2011. in other options with a nonconventional Securities and Exchange Commission, expiry date, including Quarterly Index SUMMARY: Station Place, 100 F Street, NE., In accordance with the Options. The proposed rule change is Washington, DC 20549–1090. provisions of the Privacy Act, as not inconsistent with any rules of OCC, All submissions should refer to File amended, this notice announces a including any rules proposed to be No. SR–OCC–2010–16. This file number renewal of an existing computer amended. should be included on the subject line matching program that we are currently B. Self-Regulatory Organization’s if e-mail is used. To help the conducting with RRB. Statement on Burden on Competition Commission process and review your DATES: We will file a report of the subject matching program with the OCC does not believe that the comments more efficiently, please use only one method. The Commission will Committee on Homeland Security and proposed rule change would impose any Governmental Affairs of the Senate; the burden on competition. post all comments on the Commission’s Internet Web site (http://www.sec.gov/ Committee on Oversight and C. Self-Regulatory Organization’s rules/sro.shtml). Copies of the Government Reform of the House of Statement on Comments on the submission, all subsequent Representatives, and the Office of Proposed Rule Change Received from amendments, all written statements Information and Regulatory Affairs, Members, Participants or Others with respect to the proposed rule Office of Management and Budget OCC has not solicited or received change that are filed with the (OMB). The renewal of the matching written comments relating to the Commission, and all written program will be effective as indicated communications relating to the below. 4 Interpretation .03 would also be amended to proposed rule change between the ADDRESSES: Interested parties may clarify that it covers equity options with non- Commission and any person, other than comment on this notice by either conventional expiration dates as opposed to index those that may be withheld from the telefaxing to (410) 966–0869 or writing options with nonconventional expiration dates, which are subject to automatic exercise as described public in accordance with the to the Executive Director, Office of in Rule 1804. provisions of 5 U.S.C 552, will be 5 15 U.S.C. 78q–1. available for Web site viewing and 6 17 CFR 200.30–3(a)(12).

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00102 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59781

Privacy and Disclosure, Office of the comply with the requirements of the days after notice of the matching General Counsel, 617 Altmeyer Privacy Act, as amended. program is sent to Congress and OMB. Building, 6401 Security Boulevard, Jonathan R. Cantor, The matching program will continue for Baltimore, MD 21235–6401. All 18 months from the effective date and Executive Director, Office of Privacy and comments received will be available for Disclosure, Office of the General Counsel. may be extended for an additional 12 public inspection at this address. months thereafter, if certain conditions Notice of Computer Matching Program, are met. FOR FURTHER INFORMATION CONTACT: The SSA With RRB [FR Doc. 2010–24246 Filed 9–27–10; 8:45 am] Executive Director, Office of Privacy and Disclosure, Office of the General A. Participating Agencies BILLING CODE 4191–02–P Counsel as shown above. SSA and RRB. SUPPLEMENTARY INFORMATION: B. Purpose of the Matching Program DEPARTMENT OF STATE A. General The purpose of this matching program is to establish the conditions, The Computer Matching and Privacy safeguards, and procedures under which [Public Notice 7187] Protection Act of 1988 (Pub. L.) 100– RRB will disclose RRB annuity payment 503), amended the Privacy Act (5 U.S.C. data to us. This disclosure will provide Culturally Significant Objects Imported 552a) by describing the conditions us with information necessary to verify for Exhibition Determinations: under which computer matching Supplemental Security Income (SSI) ‘‘Imagining the Past in France, 1250– involving the Federal government could program and Special Veterans Benefits 1500’’ be performed and adding certain (SVB) eligibility and benefit payment SUMMARY: Notice is hereby given of the protections for persons applying for, amounts. It also helps to ensure the following determinations: Pursuant to and receiving, Federal benefits. Section correct recording on the Supplemental the authority vested in me by the Act of 7201 of the Omnibus Budget Security Income Record (SSR) of October 19, 1965 (79 Stat. 985; 22 U.S.C. Reconciliation Act of 1990 (Pub. L. 101– railroad annuity amounts paid to SSI 2459), Executive Order 12047 of March 508) further amended the Privacy Act and SVB recipients by RRB. The SSI program provides payments to aged, 27, 1978, the Foreign Affairs Reform and regarding protections for such persons. blind, and disabled recipients with Restructuring Act of 1998 (112 Stat. The Privacy Act, as amended, income and resources at or below levels 2681, et seq.; 22 U.S.C. 6501 note, et regulates the use of computer matching established by law and regulations. The seq.), Delegation of Authority No. 234 of by Federal agencies when records in a SVB program provides similar benefits October 1, 1999, and Delegation of system of records are matched with to certain World War II veterans. Authority No. 236–3 of August 28, 2000, other Federal, State, or local government C. Authority for Conducting the I hereby determine that the objects to be records. It requires Federal agencies Matching Program included in the exhibition ‘‘Imagining involved in computer matching the Past in France, 1250–1500,’’ The legal authority for the SSI portion programs to: imported from abroad for temporary of this matching program is contained in (1) Negotiate written agreements with exhibition within the United States, are sections 1631(e)(1)(A) and (B) and the other agency or agencies 1631(f) of the Social Security Act (Act), of cultural significance. The objects are participating in the matching programs; (42 U.S.C. 1383(e)(1)(A) and (B) and imported pursuant to loan agreements (2) Obtain the approval of the 1383(f)). The legal authority for the SVB with the foreign owners or custodians. matching agreement by the Data portion of this matching program is I also determine that the exhibition or Integrity Boards (DIB) of the contained in section 806(b) of the Act, display of the exhibit objects at the J. participating Federal agencies; (42 U.S.C. 1006(b)). Paul Getty Museum, Los Angeles, CA, from on or about November 16, 2010, (3) Publish notice of the computer D. Categories of Records and Persons until on or about February 6, 2011, and matching program in the Federal Covered by the Matching Program at possible additional exhibitions or Register; RRB will provide SSA with an venues yet to be determined, is in the (4) Furnish detailed reports about electronic data file containing annuity national interest. Public Notice of these matching programs to Congress and payment data from RRB’s system of Determinations is ordered to be OMB; records, RRB–22 Railroad Retirement, published in the Federal Register. (5) Notify applicants and beneficiaries Survivor, and Pensioner Benefits System, entitled Checkwriting FOR FURTHER INFORMATION CONTACT: For that their records are subject to further information, including a list of matching; and Integrated Computer Operation (CHICO) Benefit Payment Master. SSA will the exhibit objects, contact Carol B. (6) Verify match findings before match the RRB data with data Epstein, Attorney-Adviser, Office of the reducing, suspending, terminating, or maintained in the SSR, Supplemental Legal Adviser, U.S. Department of State denying a person’s benefits or Security Income Record and Special (telephone: 202/632–6473). The address payments. Veterans Benefits, SSA/ODSSIS, 60– is U.S. Department of State, SA–5, L/PD, 0103. SVB data also resides on the SSR. Fifth Floor, Washington, DC 20522– B. SSA Computer Matches Subject to 0505. the Privacy Act E. Inclusive Dates of the Matching Program Dated: September 22, 2010. We have taken action to ensure that Ann Stock, all of our computer matching programs The effective date of this matching program is March 1, 2011; provided that Assistant Secretary, Bureau of Educational the following notice periods have and Cultural Affairs, Department of State. lapsed: 30 days after publication of this [FR Doc. 2010–24300 Filed 9–27–10; 8:45 am] notice in the Federal Register and 40 BILLING CODE 4710–05–P

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00103 Fmt 4703 Sfmt 9990 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59782 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

DEPARTMENT OF STATE this information collection, including: Frequency: Annually. (1) Whether the proposed collection is Estimated Average Annual Burden Waiver of Restriction on Assistance to necessary for the U.S. DOT’s per Response: The average burden to the Government of Saudi Arabia performance; (2) the accuracy of the submit the certification and to retain estimated burden; (3) ways for the U.S. required records is 12 hours per Pursuant to section 7086(c)(2) of the DOT to enhance the quality, usefulness, respondent. Department of State, Foreign and clarity of the collected information; Estimated Total Annual Burden Operations, and Related Programs and (4) ways that the burden could be Hours: Total estimated average annual Appropriations Act, 2010 (Division F, minimized, including the use of burden is 612 hours. Pub. L. 111–117) (‘‘the Act’’), and electronic technology, without reducing Department of State Delegation of Authority: The Paperwork Reduction Act the quality of the collected information. Authority Number 245–1, I hereby of 1995; 44 U.S.C. Chapter 35, as amended; All comments should include the determine that it is important to the and 49 CFR 1.48. Docket number FHWA–2010–0126. national interest of the United States to Issued On: September 21, 2010. waive the requirements of section FOR FURTHER INFORMATION CONTACT: Juli Huynh, 7086(c)(1) of the Act with respect to the Gloria Williams, 202–366–5032, Chief, Management Programs and Analysis Government of Saudi Arabia, and I Department of Transportation, Federal Division. hereby waive such restriction. Highway Administration, Office of [FR Doc. 2010–24275 Filed 9–27–10; 8:45 am] Highway Policy Information, 1200 New This determination shall be reported BILLING CODE 4910–22–P to the Congress, and published in the Jersey Avenue, SE., Washington, DC Federal Register. 20590, Monday through Friday, except Federal holidays. Dated: August 13, 2010. DEPARTMENT OF TRANSPORTATION SUPPLEMENTARY INFORMATION: Jacob J. Lew, Title: Certification of Enforcement of Federal Highway Administration Deputy Secretary of State for Management the Heavy Vehicle Use Tax. [Docket No. FHWA–2010–0093] and Resources. OMB Control #: 2125–0541. [FR Doc. 2010–24297 Filed 9–27–10; 8:45 am] Background: Title 23 United States Agency Information Collection BILLING CODE 4710–31–P Code, Section 141(c), provides that a Activities: Notice of Request for State’s apportionment of funds under 23 Extension of Currently Approved U.S.C. 104(b)(4) shall be reduced in an Information Collection DEPARTMENT OF TRANSPORTATION amount up to 25 percent of the amount to be apportioned during any fiscal year AGENCY: Federal Highway Federal Highway Administration beginning after September 30, 1984, if Administration (FHWA), DOT. [Docket No. FHWA–2010–0126] vehicles subject to the Federal heavy ACTION: Notice of request for extension vehicle use tax are lawfully registered in of currently approved information Agency Information Collection the State without having presented collection. Activities: Notice of Request for proof of payment of the tax. The annual Extension of Currently Approved certification by the State Governor or SUMMARY: The FHWA invites public Information Collection designated official regarding the comments about our intention to request collection of the heavy vehicle use tax the Office of Management and Budget’s AGENCY: Federal Highway serves as the FHWA’s primary means of (OMB) approval for renewal of an Administration (FHWA), DOT. determining State compliance. The existing information collection that is ACTION: Notice of request for extension FHWA has determined that an annual summarized below under of currently approved information certification of compliance by each State SUPPLEMENTARY INFORMATION. We are collection. is the least obtrusive means of required to publish this notice in the administering the provisions of the Federal Register by the Paperwork SUMMARY: The FHWA invites public legislative mandate. In addition, States Reduction Act of 1995. comments about our intention to request are required to retain for 1 year a DATES: Please submit comments by the Office of Management and Budget’s Schedule 1, IRS Form 2290, Heavy November 29, 2010. (OMB) approval for renewal of an Vehicle Use Tax Return (or other ADDRESSES: You may submit comments existing information collection that is suitable alternative provided by identified by DOT Docket ID Number summarized below under regulation). The FHWA conducts 2010–0093 by any of the following SUPPLEMENTARY INFORMATION. compliance reviews at least once every methods: The Federal Register notice with a 60- 3 years to determine if the annual Web site: For access to the docket to day public comment period soliciting certification is adequate to ensure read background documents or comments on this information effective administration of 23 U.S.C. comments received, go to the Federal collection was published on June 30, 141(c). The estimated annual reporting eRulemaking Portal: http:// 2010. We are required to publish this burden is 102 hours; the estimated www.regulations.gov. Follow the online notice in the Federal Register by the recordkeeping burden is 510 hours for a instructions for submitting comments. Paperwork Reduction Act of 1995. total of 612 hours. The 50 States and the Fax: 1–202–493–2251. DATES: Please submit comments by District of Columbia share this burden. Mail: Docket Management Facility, October 28, 2010. Preparing and processing the annual U.S. Department of Transportation, ADDRESSES: You may send comments certification is estimated to require 2 West Building Ground Floor, Room within 30 days to the Office of hours per State. Recordkeeping is W12–140, 1200 New Jersey Avenue, SE., Information and Regulatory Affairs, estimated to require an average of 10 Washington, DC 20590. Office of Management and Budget, 725 hours per State. Hand Delivery or Courier: U.S. 17th Street, NW., Washington, DC Respondents: 50 State Transportation Department of Transportation, West 20503, Attention DOT Desk Officer. You Departments, and the District of Building Ground Floor, Room W12–140, are asked to comment on any aspect of Columbia for a total of 51 respondents. 1200 New Jersey Avenue, SE.,

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00104 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59783

Washington, DC 20590, between 9 a.m. Collection #2: Utility Use and estimated total annual burden, based and 5 p.m. ET, Monday through Friday, Occupancy Agreements upon 5 updated eligibility statements except Federal holidays. The SDOT and/or local agency per year, is 90 hours. FOR FURTHER INFORMATION CONTACT: Jon transportation departments are Collection #4: Develop and Submit Obenberger, 202–366–2221, Office of responsible for maintaining the highway Utility Accommodation Policies Infrastructure, Federal Highway rights-of-way, including the control of Administration, Department of its use by the utility companies. In Each SDOT is also required (23 CFR Transportation, 1200 New Jersey managing the use of the highway rights- 645.215) to develop and submit to Avenue, SE., Washington, DC 20590, of-way, the SDOT and/or local agency FHWA their utility accommodation Monday through Friday, except Federal transportation department is required policies that will be used to regulate and holidays. (23 CFR 645.205 and 23 CFR 645.213) manage the utility facilities within the to document the terms under which SUPPLEMENTARY INFORMATION: Title: rights-of-way of Federal-aid highway utility facilities are allowed to cross or Utility Adjustments, Agreements, projects. The agencies utility otherwise occupy the highway rights-of- Eligibility Statements and accommodation policies need to address way, in the form of utility use and Accommodation Policies. (Formerly: the basis for utility facilities to use and occupancy agreements with each utility Developing and Recording Costs for occupy highway right-of-ways; the company. This documentation, Utility Adjustments). State’s authority to regulate such use; consisting of a use and occupancy and the policies and/or procedures OMB Control Number: 2125–0519. agreement (permit), must be in writing employed for managing and Background: Federal laws dealing and must be maintained in the SDOT with the relocation and accommodation and/or local agency transportation accommodating utilities within the of utility facilities associated with the department. right-of-ways of Federal-aid highway right-of-way of highway facilities are Respondents: 4,600 State/local projects. Upon FHWA’s approval of the contained in the United States Code highway authorities. policy statement, the SDOT may take (U.S.C.) 23, Sections 123 and 109(I)(1). Frequency: There are 15 agreements any action required in accordance with Regulations dealing with the utility per year. the approved policy statement without facility accommodation and relocation Estimated Annual Burden: The a case-by-case review by the FHWA. are based upon the laws contained in 23 estimated amount of time required by Respondents: 52 State Transportation U.S.C. and are found in the Code of the State/local highway authorities to Departments, including the District of Federal Regulations (CFR), title 23, process the permits is 8 hours. The Columbia and Puerto Rico. chapter I, subchapter G, part 645, FHWA estimates that the total annual Frequency: Updates for review, as subparts A and B. burden imposed on the public by this collection is 552,000 hours. required at the States’ discretion. Collection #1: Developing and Estimated Annual Burden: The Collection #3: Eligibility Statement for Recording Costs for Utility Adjustments average burden for updating an existing Utility Adjustments The FHWA requires utility companies policy is 280 hours per response. The to document costs or expenses for Each SDOT is required (23 CFR estimated total annual burden, based adjusting their facilities (23 CFR 645 615.215) to submit to the FHWA a upon an estimated 5 updates per year, subpart A—Utility Relocations, utility adjustment eligibility statement is 1,400 hours. that establishes the SDOT legal Adjustments, and Reimbursement). The accumulated annual burden for These utility companies must have a authority and policies it employs for accommodating utilities within highway the combined information collection is system for recording labor, materials, 577,490. supplies and equipment costs incurred right-of-ways or obligation to pay for when undertaking adjustments to utility adjustments. FHWA has Public Comments Invited: You are accommodate highway projects. This previously reviewed and approved these asked to comment on any aspect of this record of costs forms the basis for eligibility statements for each State information collection, including: (1) payment by the SDOT or local DOT. The statements are used as a basis Whether the proposed collection of transportation department to the utility for Federal-aid reimbursement in utility information is necessary for the U.S. company. In turn, the FHWA relocation costs under the provisions of DOT’s performance, including whether reimburses the SDOT or local 23 U.S.C. 123. Updated statements may the information will have practical transportation department for its be submitted for review at the States utility; (2) the accuracy of the U.S. payment to the utility company. The discretion where circumstances have DOT’s estimate of the burden of the utility company is required to maintain modified (for example, a change in State proposed information collection; (3) these records of costs for 3 years after statute) the extent to which utility ways to enhance the quality, usefulness, final payment is received. adjustments are eligible for and clarity of the collected information; reimbursement by the State or those Respondents: 3,000 Utility Firms. and (4) ways that the burden could be instances where a local SDOT’s legal minimized, including the use of Frequency: Annually. basis for payment of utility adjustments electronic technology, without reducing Estimated Annual Burden: The differs from that of the State. FHWA estimates that this collection Respondents: 52 State Transportation the quality of the collected information. imposes a total annual burden of 24,000 Departments, including the District of The agency will summarize and/or hours. Utility adjustments are made Columbia and Puerto Rico. include your comments in the request yearly by approximately 3,000 utility Frequency: Updates for review, as for OMB’s clearance of this information firms. The average amount of time required at the States’ discretion. collection. required by these firms to calculate the Estimated Annual Burden: The Authority: The Paperwork Reduction Act adjustment costs and maintain the average burden for preparing and of 1995; 44 U.S.C. Chapter 35, as amended; required records is estimated at 8 hours submitting an updated eligibility and 49 CFR 1.48. for each adjustment. statement is 18 hours per response. The

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00105 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59784 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

Issued On: September 22, 2010. Comments are Invited on: Whether Program Improvement (CDLPI) grants; Juli Huynh, the proposed collection of information Performance and Registration Chief, Management Programs and Analysis is necessary for the proper performance Information Systems Management Division. of the functions of the agency, including (PRISM) grants; Safety Data [FR Doc. 2010–24276 Filed 9–27–10; 8:45 am] whether the information will have Improvement Program grants (SaDIP); BILLING CODE 4910–22–P practical utility; the accuracy of the and the Commercial Vehicle agency’s estimate of the burden of the Information Systems and Networks proposed information collection; ways (CVISN) grants. It should be noted that DEPARTMENT OF TRANSPORTATION to enhance the quality, utility and FMCSA does not expect the Commercial clarity of the information to be Driver’s License Information System Maritime Administration collected; and ways to minimize the (CDLIS) Modernization grants to be burden of the collection of information continued in reauthorization, and, Reports, Forms and Recordkeeping on respondents, including the use of therefore, FMCSA will not be soliciting Requirements; Agency Information Collection Activity Under OMB Review automated collection techniques or applications for this grant program in other forms of information technology. FY 2011. AGENCY: Maritime Administration, DOT. A comment to OMB is best assured of FOR FURTHER INFORMATION: ACTION: Notice and request for having its full effect if OMB receives it Please contact the following FMCSA comments. within 30 days of publication. staff with questions or needed Authority: 49 CFR 1.66. information on the Agency’s grant SUMMARY: In compliance with the programs: Paperwork Reduction Act of 1995 (44 By Order of the Maritime Administrator. MCSAP Basic/Incentive Grants—Jack U.S.C. 3501 et seq.), this notice Dated: September 22, 2010. Kostelnik, [email protected], announces that the Information Christine Gurland, 202–366–5721. Collection abstracted below has been Secretary, Maritime Administration. New Entrant Safety Audits Grants— forwarded to the Office of Management [FR Doc. 2010–24340 Filed 9–27–10; 8:45 am] Arthur Williams, and Budget (OMB) for review and BILLING CODE 4910–81–P [email protected], 202–366– approval. The nature of the information 3695. collection is described as well as its Border Enforcement Grants—Carla expected burden. DEPARTMENT OF TRANSPORTATION Vagnini, [email protected], 202– DATES: Comments must be submitted on 366–3771. or before October 28, 2010. The Federal Federal Motor Carrier Safety MCSAP High Priority Grants—Cim Register Notice with a 60-day comment Administration Weiss, [email protected], 202–366– 0275. period soliciting comments on the [FMCSA Docket No. FMCSA–2010–0212] following collection of information was CMV Operator Safety Training Grants— published on June 23, 2010. No Notice of Fiscal Year 2011 Safety Julie Otto, [email protected], 202– comments were received. Grants and Solicitation for 366–0710. FOR FURTHER INFORMATION CONTACT: Applications CDLPI Grants—Brandon Poarch, Michael Gordon, Maritime [email protected], 202–366– Administration, 1200 New Jersey AGENCY: Federal Motor Carrier Safety 3030. Avenue, SE., Washington, DC 20590. Administration (FMCSA), DOT. SaDIP Grants—Cim Weiss, Telephone: 202–366–5468; or e-mail ACTION: Notice; change in application [email protected], 202–366–0275. [email protected]. Copies of this due dates. PRISM Grants—Tom Lawler, collection also can be obtained from that [email protected], 202–366–3866. SUMMARY: This notice is to inform the CVISN Grants—Julie Otto, office. public of FMCSA’s Fiscal Year (FY) [email protected], 202–366–0710. SUPPLEMENTARY INFORMATION: Maritime 2011 safety grant opportunities and All staff may be reached at FMCSA, Administration (MARAD). FMCSA’s changes to its application 1200 New Jersey Avenue, SE., Title: America’s Marine Highway dates. At present, FMCSA is operating Washington, DC 20590. Office hours are Program. under an extension of the Safe, from 9 a.m. to 5 p.m., EST, Monday OMB Control Number: 2133–0541. Type Of Request: Extension of Accountable, Flexible, Efficient through Friday, except Federal holidays. currently approved information Transportation Equity Act: A Legacy of SUPPLEMENTARY INFORMATION: Users (Pub. L. 109–59) which will collection. Background and Purpose Affected Public: Individuals, expire December 31, 2010, unless partnerships or coalitions seeking extended by Congress. While the The FMCSA recognizes that State and designation. Agency expects new authorizing local governments and other grantees Forms: None. legislation to make changes to its grant are dependent on its safety grants to Abstract: This collection of programs, the Agency is preparing for develop and maintain important CMV information will be used to evaluate FY 2011 assuming that the following safety programs. The FMCSA further applications submitted for project grant programs will continue for part or acknowledges that delays in awarding designation under the America’s Marine all of the upcoming fiscal year. The 10 grant funds may have an adverse impact Highway Program. safety grant programs include the Motor on these important safety programs. As Annual Estimated Burden Hours: 200 Carrier Safety Assistance Program a result, FMCSA completed a grants hours. (MCSAP) Basic grants; MCSAP process review to identify ways to Addressee: Send comments to the Incentive grants; MCSAP New Entrant streamline the application, award, and Office of Information and Regulatory Safety Audit grants; MCSAP High grants management processes, and to Affairs, Office of Management and Priority grants; Commercial Motor award grant funds earlier each fiscal Budget, 725 17th Street, NW., Vehicle (CMV) Operator Safety Training year. In addition, FMCSA made changes Washington, DC 20503, Attention grants; Border Enforcement grants in the grants application, award and MARAD Desk Officer. (BEG); Commercial Driver’s License oversight processes to standardize

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00106 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59785

application forms, increase the use of have to be signed. Additional (1) Reduction in the number of large electronic documents, standardize information will be provided to grantees truck-involved fatal accidents; quarterly reports and reduce the number during the grant award process. (2) Reduction in the rate of large- of needed grant amendments. truck-involved fatal accidents or The FMCSA continues to enter into Discussion of Comments maintenance of a large- truck-involved grant agreements beginning October 1 or On July 13, 2010, FMCSA published fatal accident rate that is among the as soon thereafter as administratively a notice and request for comments lowest 10 percent of such rates for practicable. FMCSA intends to enter regarding FMCSA’s anticipated Fiscal MCSAP recipients and is not higher into grant agreements no later than 90 Year (FY) 2011 safety grant than the rate most recently achieved; days from the date the application is opportunities (75 FR 40023). This notice (3) Upload of CMV accident reports in due. requested comments on the originally accordance with current FMCSA policy The FMCSA is using a standard grant proposed dates. Only one comment was guidelines; application form and a new quarterly submitted to the docket. It did not (4) Verification of Commercial reporting process. The FMCSA requires directly discuss the grant programs or Driver’s Licenses during all roadside the Standard Form 424 (‘‘Application for the proposed dates. Rather, the inspections; and Federal Assistance’’) and its attachments anonymous commenter provided an (5) Upload of CMV inspection data in for all grant program applications. opinion about SAFETEA–LU. accordance with current FMCSA policy While each grant program may request Additional information is provided guidelines. different data in some of the data fields below for each individual grant Incentive funds will be distributed in on the form, the use of the Standard program. accordance with 49 CFR 350.327(b). Form 424 is mandatory. FMCSA MCSAP Basic and Incentive Grants: Prior to the start of each fiscal year, adopted the Standard Form—Project Sections 4101 and 4107 of SAFETEA– FMCSA calculates the amount of Basic Progress Report (SF–PPR) as its required LU authorize FMCSA’s Motor Carrier and Incentive funding each State is form for quarterly reporting. Again, each Safety Grants. MCSAP Basic and expected to receive. This information is grant program may, in certain instances, Incentive formula grants are governed provided to the States and is made request that different data be submitted by 49 U.S.C. 31102–31104 and 49 CFR available on the Agency’s Web site. The in some of the fields or boxes on the Part 350. Under the Basic and Incentive FY 2011 information is available at form but SF–PRR is mandatory for grants programs, a State lead MCSAP http://www.fmcsa.dot.gov. quarterly reporting. agency, as designated by its Governor, is It should be noted that MCSAP Basic The number of original copies of grant eligible to apply for Basic and Incentive and Incentive formula grants are agreements required to be submitted to grant funding by submitting a awarded based on the State’s FMCSA was reduced from three copies commercial vehicle safety plan (CVSP). submission of the CVSP. The evaluation to two. In addition, FMCSA will provide See 49 CFR 350.201 and 350.205. The factors described in the section below most grant agreement documents following jurisdictions are not eligible titled ‘‘Application Information for FY electronically to its financial processing for Incentive funds: The Virgin Islands, 2011 Grants’’ will not be considered. office. Grantees will, however, be American Samoa, Guam, Puerto Rico, MCSAP Basic and Incentive grant required to submit the completed and the Commonwealth of the Northern applications must be submitted Automated Clearing House (ACH) Mariana Islands. Pursuant to 49 U.S.C. electronically through grants.gov (http:// Vendor Payment Form (SF–3881) 31103 and 49 CFR 350.303, FMCSA will www.grants.gov). directly to FMCSA’s financial reimburse each lead State MCSAP New Entrant Safety Audit Grants: processing office by U.S. Postal Service, agency 80 percent of eligible costs Sections 4101 and 4107 of SAFETEA– courier service or secure fax. Changes incurred in a fiscal year. Each State will LU also authorize the Motor Carrier were necessitated by the Agency’s provide a 20 percent match to qualify Safety Grants to enable grant recipients implementation of a new grants for the program. The FMCSA to conduct interstate New Entrant safety management information technology Administrator waives the requirement audits consistent with 49 CFR Parts system—GrantSolutions. GrantSolutions for matching funds for the Virgin 350.321 and 385.301. Eligible recipients is a comprehensive grants management Islands, American Samoa, Guam, and are State agencies, local governments, system provided by the Grants Center of the Commonwealth of the Northern and organizations representing Excellence (COE). The Grants COE Mariana Islands. See 49 CFR 350.305. In government agencies that use and train serves as one of three consortia leads accordance with 49 CFR 350.323, the qualified officers and employees in under the Grants Management Line of Basic grant funds will be distributed coordination with State motor vehicle Business E–Gov initiative offering proportionally to each State’s lead safety agencies. The FMCSA’s share of government-wide grants management MCSAP agency using the following four, these grant funds will be 100 percent. system support services. It is expected equally weighted (25 percent) factors: New Entrant grant applications must be that after full implementation, the (1) 1997 road miles (all highways) as submitted electronically through GrantSolutions system will allow defined by the FMCSA; grants.gov FMCSA to more quickly award grant (2) All vehicle miles traveled (VMT) (http://www.grants.gov). funds, and will provide standardized as defined by the FMCSA; MCSAP High Priority Grants: grant application, award, and (3) Population—annual census Section 4107 of SAFETEA–LU also management and oversight throughout estimates as issued by the U.S. Census authorizes the Motor Carrier Safety the Agency’s grant programs. It should Bureau; and Grants to enable recipients to carry out be noted that in FY 2011, FMCSA will (4) Special fuel consumption (net after activities and projects that improve be implementing the electronic reciprocity adjustment) as defined by CMV safety and compliance with CMV signatures functionality of the the FMCSA. regulations. Funding is available for GrantSolutions system. As a result, this A State’s lead MCSAP agency may projects that are national in scope, will be the Agency’s preferred method qualify for Incentive Funds if it can increase public awareness and for securing grant agreement signatures. demonstrate that the State’s CMV safety education, demonstrate new If electronic signature is used, two program has shown improvement in any technologies and reduce the number copies of the grant agreement do not or all of the following five categories: and rate of CMV accidents. Eligible

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00107 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59786 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

recipients are State agencies, local safety programs and related enforcement SaDIP Grants: governments, and organizations activities and projects. An entity or a Section 4128 of SAFETEA–LU representing government agencies that State that shares a land border with established a SaDIP grant program to use and train qualified officers and another country is eligible to receive improve the quality of crash and employees in coordination with State this grant funding. Eligible awardees inspection truck and bus data reported motor vehicle safety agencies. include State governments, local by the States to FMCSA, as described 49 For grants awarded for public governments, and entities (i.e., USC 31102. Eligible recipients are State education activities, the Federal share accredited post-secondary public or agencies, local governments, and will be 100 percent. For all High Priority private educational institutions such as organizations representing government grants other than those awarded in universities). Requests from entities agencies that are involved with highway support of public education activities, must be coordinated with the State lead traffic safety activities and must FMCSA will provide reimbursements CMV inspection agency. Applications demonstrate a capacity to work with for no more than 80 percent of all must include a Border Enforcement Plan highway traffic safety stakeholders. The eligible costs, and recipients will be and meet the required maintenance of State’s SaDIP proposal must focus on a required to provide a 20 percent match. expenditure requirement. BEG funding project that enhances the accuracy, FMCSA may reserve High Priority decisions take into consideration the timeliness, and completeness of the funding exclusively for innovative State or entity’s performance on collection and reporting of Commercial traffic enforcement projects, with previous BEG awards; its ability to Motor Vehicle crash information in all particular emphasis on work zone expend the awarded funds with the BEG components of the State’s record enforcement and rural road safety. Also, performance year; and activities meeting system. An applicant’s proposed SaDIP FMCSA may reserve funding for an the BEG national criteria established by project must address the seven (7) innovative traffic enforcement initiative FMCSA. As established by SAFETEA– application requirements plus the known as ‘‘Ticketing Aggressive Cars LU, the Federal share of these funds will overriding indicator established for the and Trucks’’ or TACT. TACT provides a be 100 percent. As a result, there is no State Safety Data Quality (SSDQ) research-based safety model that can be matching requirement. BEG grant program. The FMCSA will provide replicated by States when conducting a applications must be submitted reimbursements for no more that 80 high-visibility traffic enforcement electronically through grants.gov. percent of all eligible costs and program to promote safe driving CDLPI Grants: recipients are required to provide a 20 behaviors among car and truck drivers. Section 4124 of SAFETEA–LU percent match. The objective of this program is to established a discretionary grant PRISM Grants: reduce the number of commercial truck program that provides funding for Section 4109 of SAFETEA–LU and bus related crashes, fatalities and improving States’ implementation of the authorizes FMCSA to award financial injuries resulting from improper Commercial Driver’s License (CDL) assistance funds to States to implement operation of motor vehicles and program, including expenses for the PRISM requirements that link aggressive driving behavior. More computer hardware and software, Federal motor carrier safety information information regarding TACT can be publications, testing, personnel, and systems with State CMV registration and found at http://www.fmcsa.dot.gov/ training. Funds may not be used to rent, licensing systems. This program enables safety-security/tact/abouttact.htm. lease, or buy land or buildings. The a State to determine the safety fitness of High Priority grant applications must agency designated by each State as the a motor carrier or registrant when be submitted through grants.gov. primary driver licensing agency licensing or registering or while the CMV Operator Safety Training Grants: responsible for the development, license or registration is in effect. Section 4134 of SAFETEA–LU implementation, and maintenance of the PRISM grant applications must be established a grant program which CDL program is eligible to apply for submitted electronically through enables recipients to train current and basic grant funding. State agencies, local grants.gov. No matching funds are future drivers in the safe operation of governments, and other entities that can required. CMVs, as defined in 49 U.S. C. 31301(4). support a State’s effort to improve its CVISN Grants: Eligible awardees include State CDL program or conduct projects on a Section 4126 of SAFETEA–LU governments, local governments and national scale to improve the national authorizes FMCSA to award financial accredited post-secondary educational CDL program may also apply for assistance to States to deploy, operate, institutions (public or private) such as projects under the High Priority and and maintain elements of their CVISN colleges, universities, vocational- Emerging Issues components. Grant Program, including commercial vehicle, technical schools and truck driver proposals must include a detailed commercial driver, and carrier-specific training schools. Funding priority for budget explaining how the funds will be information systems and networks. The this discretionary grant program will be used. The Federal share of funds for agency in each State designated as the given to regional or multi-state projects awarded under this grant is primary agency responsible for the educational or nonprofit associations established by SAFETEA–LU as 100 development, implementation, and serving economically distressed regions percent; therefore, there is no grantee maintenance of a CVISN-related system of the United States. The Federal share matching requirement. The funding is eligible to apply for grant funding. of these funds will be 80 percent, and opportunity announcement on Section 4126 of SAFETEA–LU recipients will be required to provide a grants.gov will provide more detailed distinguishes between two types of 20 percent match. CMV Operator Safety information on the application process; CVISN projects: Core and Expanded. To Training grant applications must be national funding priorities for FY 2011; be eligible for funding of Core CVISN submitted electronically through evaluation criteria; required documents deployment project(s), a State must have grants.gov. and certifications; State maintenance of its most current Core CVISN Program Border Enforcement Grants (BEG): expenditure requirements; and Plan and Top-Level Design approved by Section 4110 of SAFETEA–LU additional information related to the FMCSA and the proposed project(s) established the BEG program. The availability of funds. CLDPI grant should be consistent with its approved purpose of this discretionary program is applications must be submitted Core CVISN Program Plan and Top- to provide funding for border CMV electronically through grants.gov. Level Design. If a State does not have a

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00108 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59787

Core CVISN Program Plan and Top- issues will be given priority the Massachusetts/New Hampshire state Level Design, it may apply for up to consideration. line northward approximately 19.8- $100,000 in funds to either compile or (5) Ability of the applicant to support miles through the Towns of Salem, update a Core CVISN Program Plan and the strategies and activities in the Windham, Derry and Londonderry, and Top-Level Design. proposal for the entire project period of ending at the I–93/I–293 interchange in A State may also apply for funds to performance. the City of Manchester. Those actions prepare an Expanded CVISN Program (6) Use of innovative approaches in grant licenses, permits, and approvals Plan and Top-Level Design if FMCSA executing a project plan to address for the project. acknowledged the State as having identified safety issues. DATES: By this notice, the FHWA is completed Core CVISN deployment. In (7) Feasibility of overall program advising the public of final agency order to be eligible for funding of any coordination and implementation based actions subject to 23 U.S.C. 139(l)(1). A Expanded CVISN deployment project(s), upon the project plan. claim seeking judicial review of the a State must have its most current (8) Any grant-specific evaluation Federal agency actions that are covered Expanded CVISN Program Plan and factors, such as program balance or by this notice will be barred unless the Top-Level Design approved by FMCSA geographic diversity, will be included in claim is filed on or before March 28, and any proposed Expanded CVISN the grants.gov application information. 2011. If the Federal law that authorizes project(s) should be consistent with its Revised Application Due Dates: For judicial review of a claim provides a Expanded CVISN Program Plan and the following grant programs, FMCSA time period of less than 180 days for Top-Level Design. If a State does not will consider funding complete filing such claim, then that shorter time have an existing or up-to-date Expanded applications or plans submitted by the period still applies. CVISN Program Plan and Top-Level following dates: FOR FURTHER INFORMATION CONTACT: For Design, it may apply for up to $100,000 MCSAP Basic and Incentive Grants— FHWA: Mr. Jamison S. Sikora, in funds to either compile or update an August 1, 2010. Environmental Programs Manager, Expanded CVISN Program Plan and Border Enforcement Grants—September Federal Highway Administration, 19 Top-Level Design. 15, 2010. Chenell Drive, Suite One, Concord, NH, CVISN grant applications must be MCSAP High Priority Grants—October 03301, Office Hours: 8 a.m. to 4 p.m., submitted electronically through 15, 2010. (603) 228–3057, e-mail: grants.gov. Awards for approved CVISN CMV Operator Safety Training Grants— [email protected]. For NHDOT: grant applications are made on a first- December 15, 2010. William J. Cass, P.E., Director of Project come, first-served basis. States must New Entrant Safety Audit Grants— Development, NH Department of provide a match of 50 percent. October 15, 2010. Transportation, 1 Hazen Drive, PO Box Application Information For FY 2011 CVISN Grants—February 1, 2011. 483, Concord, NH 03302, Office Hours: GRANTS: CDLPI Grants—November 15, 2010. 8 a.m. to 4 p.m., (603) 271–6152, e-mail: General information about the PRISM Grants—February 1, 2011. [email protected]. SaDIP Grants—February 15, 2011. FMCSA grant programs is available in SUPPLEMENTARY INFORMATION: On May Applications submitted after due the Catalog of Federal Domestic 30, 2007, the FHWA published a ‘‘Notice dates may be considered on a case-by- Assistance (CFDA) which can be found of Final Federal Agency Actions on the case basis and are subject to availability on the internet at http://www.cfda.gov. Proposed Highway in New Hampshire’’ of funds. To apply for funding, applicants must in the Federal Register at 72 FR 30047– register with grants.gov at http:// Issued on: September 20, 2010. 01 for the following highway project in www.grants.gov/applicants/get— William A. Quade, the State of New Hampshire: registered.jsp and submit an application Associate Administrator for Enforcement and improvements to an approximately 19.8- in accordance with instructions Program Delivery. mile segment of the Interstate 93 provided. [FR Doc. 2010–24044 Filed 9–27–10; 8:45 am] corridor between Salem and Evaluation Factors: The following BILLING CODE 4910–EX–P Manchester, New Hampshire. evaluation factors will be used in Improvements consist of widening the reviewing the applications for all existing four-lane Interstate highway to FMCSA discretionary grants: DEPARTMENT OF TRANSPORTATION eight lanes, improvements at each of the (1) Prior performance—Completion of five interchange locations along this identified programs and goals per the Federal Highway Administration highway segment, and addressing project plan. existing geometric deficiencies. Notice of Final Federal Agency Actions (2) Effective Use of Prior Grants— Improvements to the corridor are on Proposed Highway in New Demonstrated timely use and expensing considered necessary to improve Hampshire of available funds. transportation efficiency and reduce (3) Cost Effectiveness—Applications AGENCY: Federal Highway safety deficiencies. The FHWA project will be evaluated and prioritized on the Administration (FHWA), DOT. number is IM–IR–93–1(174)0. Federal basis of expected impact on safety ACTION: Notice of limitation on claims agency actions covered by the May 30, relative to the investment of grant funds. for judicial review of actions by FHWA 2007 FHWA notice include Final Where appropriate, costs per unit will and other Federal agencies. Environmental Impact Statement (FEIS) be calculated and compared with for the project, approved on April 28, national averages to determine SUMMARY: This notice announces actions 2004, FHWA Record of Decision (ROD) effectiveness. In other areas, proposed taken by the FHWA and other Federal issued on June 28, 2005, and U.S. Army costs will be compared with historical agencies that are final within the Corps of Engineers decision and permit information to confirm reasonableness. meaning of 23 U.S.C.139(l)(1). The (USACE Permit No. 199201232/NAE– (4) Applicability to announced actions relate to a proposed highway 2004–233). Notice is hereby given that priorities—If national priorities are project in Rockingham and Hillsborough subsequent to the May 30, 2007 FHWA included in the grants.gov notice, those Counties in the State of New notice, FHWA has taken final agency grants that specifically address these Hampshire, Interstate 93 extending from actions within the meaning of 23 U.S.C.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00109 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59788 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

139(l)(1) by issuing approvals for the Emergency Wetlands Resources Act, 16 2010–0288 using any of the following highway project. The FHWA’s actions U.S.C. 3921, 3931; TEA–21 Wetlands methods: and the laws under which such actions Mitigation, 23 U.S.C. 103(b)(6)(m), • Federal Rulemaking Portal: Go to were taken, are described in the FHWA 133(b)(11); Flood Disaster Protection http://www.regulations.gov. Follow the Final Supplemental Environmental Act, 42 U.S.C. 4001–4128. online instructions for submitting Impact Statement (FSEIS) for the 8. Executive Orders: E.O. 11990 comments. project, approved on May 3, 2010, in the Protection of Wetlands; E.O. 11988 • Mail: Docket Management Facility; FHWA Supplemental Record of Floodplain Management; E.O. 12898, U.S. Department of Transportation, 1200 Decision (SROD) issued on September Federal Actions to Address New Jersey Avenue, SE., West Building 20, 2010, and in other documents in the Environmental Justice in Minority Ground Floor, Room W12–140, FHWA administrative record. The Populations and Low Income Washington, DC 20590–0001. FSEIS, SROD, and other documents in Populations; E.O. 11593 Protection and • Hand Delivery: West Building the FHWA administrative record file are Enhancement of Cultural Resources; Ground Floor, Room W12–140, 1200 available by contacting the FHWA or the E.O. 13007 Indian Sacred Sites; E.O. New Jersey Avenue, SE., Washington, New Hampshire Department of 13287 Preserve America; E.O. 13175 DC, between 9 a.m. and 5 p.m., Monday Transportation at the addresses Consultation and Coordination with through Friday, except Federal provided above. The FHWA FSEIS and Indian Tribal Governments; E.O. 11514 Holidays. SROD can be viewed and downloaded Protection and Enhancement of • Fax: 1–202–493–2251. from the project Web site at http:// Environmental Quality; E.O. 13112 Instructions: Each submission must www.rebuildingi93.com/. Invasive Species. include the Agency name and the This notice applies to all FHWA and docket numbers for this notice. Note other Federal agency actions taken after (Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning that all comments received will be the May 30, 2007 FHWA Federal and Construction. The regulations posted without change to http:// Register Notice described above. The implementing Executive Order 12372 www.regulations.gov, including any laws under which actions were taken regarding intergovernmental consultation on personal information provided. Please may include, but are not limited to: Federal programs and activities apply to this see the Privacy Act heading below for 1. General: National Environmental program.) further information. Policy Act (NEPA) [42 U.S.C. 4321– Authority: 23 U.S.C. 139(l)(1). Docket: For access to the docket to 4351]; Federal-Aid Highway Act [23 read background documents or U.S.C. 109]. Issued on: September 20, 2010. comments, go to http:// 2. Air: Clean Air Act, 42 U.S.C. 7401– Kathleen O. Laffey, www.regulations.gov at any time or 7671(q). Division Administrator, Federal Highway Room W12–140 on the ground level of 3. Land: Section 4(f) of the Administration, New Hampshire Division, the West Building, 1200 New Jersey Department of Transportation Act of Concord, New Hampshire. Avenue, SE., Washington, DC, between 1966 [49 U.S.C. 303]; Landscaping and [FR Doc. 2010–24097 Filed 9–27–10; 8:45 am] 9 a.m. and 5 p.m., Monday through Scenic Enhancement (Wildflowers), 23 BILLING CODE 4910–22–P Friday, except Federal holidays. The U.S.C. 319. 4. Wildlife: Endangered Species Act Federal Docket Management System (FDMS) is available 24 hours each day, [16 U.S.C. 1531–1544 and Section DEPARTMENT OF TRANSPORTATION 1536], Marine Mammal Protection Act 365 days each year. If you want acknowledgment that we received your [16 U.S.C. 1361], Fish and Wildlife Federal Motor Carrier Safety comments, please include a self- Coordination Act [16 U.S.C. 661– Administration 667(d)], Migratory Bird Treaty Act [16 addressed, stamped envelope or U.S.C. 703–712]. [Docket No. FMCSA- 2010–0288] postcard or print the acknowledgement 5. Historic and Cultural Resources: page that appears after submitting Section 106 of the National Historic Qualification of Drivers; Exemption comments online. Preservation Act of 1966, as amended Applications; Diabetes Mellitus Privacy Act: Anyone may search the [16 U.S.C. 470(f) et seq.]; Archeological electronic form of all comments AGENCY: Federal Motor Carrier Safety received into any of our dockets by the Resources Protection Act of 1977 [16 Administration (FMCSA). U.S.C. 470(aa)–11]; Archeological and name of the individual submitting the ACTION: Notice of applications for Historic Preservation Act [16 U.S.C. comment (or of the person signing the exemption from the diabetes mellitus 469–469(c)]; Native American Grave comment, if submitted on behalf of an standard; request for comments. Protection and Repatriation Act association, business, labor union, etc.). (NAGPRA) [25 U.S.C. 3001–3013]. You may review DOT’s Privacy Act SUMMARY: FMCSA announces receipt of Statement for the FDMS published in 6. Social and Economic: Civil Rights applications from 32 individuals for Act of 1964 [42 U.S.C. 2000(d)– the Federal Register on January 17, exemption from the prohibition against 2008 (73 FR 3316), or you may visit 2000(d)(1)]; American Indian Religious persons with insulin-treated diabetes Freedom Act [42 U.S.C. 1996]; Farmland http://edocket.access.gpo.gov/2008/pdf/ mellitus (ITDM) operating commercial E8–785.pdf. Protection Policy Act (FPPA) [7 U.S.C. motor vehicles (CMVs) in interstate 4201–4209]. commerce. If granted, the exemptions FOR FURTHER INFORMATION CONTACT: Dr. 7. Wetlands and Water Resources: would enable these individuals with Mary D. Gunnels, Director, Medical Clean Water Act, 33 U.S.C. 1251–1377 ITDM to operate CMVs in interstate Programs, (202) 366–4001, (Section 404, Section 401, Section 319); commerce. [email protected], FMCSA, Land and Water Conservation Fund Department of Transportation, 1200 (LWCF), 16 U.S.C. 4601–4604; Safe DATES: Comments must be received on New Jersey Avenue, SE., Room W64– Drinking Water Act (SDWA), 42 U.S.C. or before October 28, 2010. 224, Washington, DC 20590–0001. 300(f)–300(j)(6); Rivers and Harbors Act ADDRESSES: You may submit comments Office hours are from 8:30 a.m. to 5 of 1899, 33 U.S.C. 401–406; Wild and bearing the Federal Docket Management p.m., Monday through Friday, except Scenic Rivers Act, 16 U.S.C. 1271–1287; System (FDMS) Docket No. FMCSA– Federal holidays.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00110 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59789

SUPPLEMENTARY INFORMATION: nonproliferative diabetic retinopathy. diabetic retinopathy. He holds a Class D He holds a Class B Commercial Driver’s operator’s license from Arizona. Background License (CDL) from Iowa. Under 49 U.S.C. 31136(e) and 31315, Garrett D. Couch FMCSA may grant an exemption from Ronald D. Ayers Mr. Couch, 35, has had ITDM since the Federal Motor Carrier Safety Mr. Ayers, 54, has had ITDM since 2009. His endocrinologist examined him Regulations for a 2-year period if it finds 2010. His endocrinologist examined him in 2010 and certified that he has had no ‘‘such exemption would likely achieve a in 2010 and certified that he has had no severe hypoglycemic reactions resulting level of safety that is equivalent to, or severe hypoglycemic reactions resulting in loss of consciousness, requiring the greater than, the level that would be in loss of consciousness, requiring the assistance of another person, or achieved absent such exemption.’’ The assistance of another person, or resulting in impaired cognitive function statute also allows the Agency to renew resulting in impaired cognitive function that occurred without warning in the exemptions at the end of the 2-year that occurred without warning in the past 12 months and no recurrent (2 or period. The 32 individuals listed in this past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in notice have recently requested such an more) severe hypoglycemic episodes in the last 5 years; understands diabetes exemption from the diabetes prohibition the last 5 years; understands diabetes management and monitoring; has stable in 49 CFR 391.41(b)(3), which applies to management and monitoring; has stable control of his diabetes using insulin; drivers of CMVs in interstate commerce. control of his diabetes using insulin; and is able to drive a CMV safely. Mr. Accordingly, the Agency will evaluate and is able to drive a CMV safely. Mr. Couch meets the requirements of the the qualifications of each applicant to Ayers meets the requirements of the vision standard at 49 CFR 391.41(b)(10). determine whether granting the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2010 and certified that he does not have exemption will achieve the required His optometrist examined him in 2010 diabetic retinopathy. He holds a Class C level of safety mandated by the statutes. and certified that he does not have chauffeur’s license from Michigan. Qualifications of Applicants diabetic retinopathy. He holds a Class B CDL from West Virginia. Stanley P. Eickhoff Shale W. Anderson Keith F. Blessing Mr. Eickhoff, 56, has had ITDM since Mr. Anderson, 37, has had ITDM 2009. His endocrinologist examined him since 2008. His endocrinologist Mr. Blessing, 30, has had ITDM since in 2010 and certified that he has had no examined him in 2010 and certified that 1988. His endocrinologist examined him severe hypoglycemic reactions resulting he has had no severe hypoglycemic in 2010 and certified that he has had no in loss of consciousness, requiring the reactions resulting in loss of severe hypoglycemic reactions resulting assistance of another person, or consciousness, requiring the assistance in loss of consciousness, requiring the resulting in impaired cognitive function of another person, or resulting in assistance of another person, or that occurred without warning in the impaired cognitive function that resulting in impaired cognitive function past 12 months and no recurrent (2 or occurred without warning in the past 12 that occurred without warning in the more) severe hypoglycemic episodes in months and no recurrent (2 or more) past 12 months and no recurrent (2 or the last 5 years; understands diabetes severe hypoglycemic episodes in the more) severe hypoglycemic episodes in management and monitoring; has stable last 5 years; understands diabetes the last 5 years; understands diabetes control of his diabetes using insulin; management and monitoring; has stable management and monitoring; has stable and is able to drive a CMV safely. Mr. control of his diabetes using insulin; control of his diabetes using insulin; Eickhoff meets the requirements of the and is able to drive a CMV safely. Mr. and is able to drive a CMV safely. Mr. vision standard at 49 CFR 391.41(b)(10). Anderson meets the requirements of the Blessing meets the requirements of the His ophthalmologist examined him in vision standard at 49 CFR 391.41(b)(10). vision standard at 49 CFR 391.41(b)(10). 2010 and certified that he does not have His ophthalmologist examined him in His ophthalmologist examined him in diabetic retinopathy. He holds a Class A 2010 and certified that he does not have 2010 and certified that he has stable CDL from Indiana. diabetic retinopathy. He holds a Class A nonproliferative diabetic retinopathy. CDL from Florida. He holds a Class D operator’s license Peter B. Galvin from New Jersey. Mr. Galvin, 40, has had ITDM since Charles L. Arnburg Ronald A. Boyle 1981. His endocrinologist examined him Mr. Anrburg, age 70, has had ITDM in 2010 and certified that he has had no since 2007. His endocrinologist Mr. Boyle, 54, has had ITDM since severe hypoglycemic reactions resulting examined him in 2010 and certified that 2002. His endocrinologist examined him in loss of consciousness, requiring the he has had no severe hypoglycemic in 2010 and certified that he has had no assistance of another person, or reactions resulting in loss of severe hypoglycemic reactions resulting resulting in impaired cognitive function consciousness, requiring the assistance in loss of consciousness, requiring the that occurred without warning in the of another person, or resulting in assistance of another person, or past 12 months and no recurrent (2 or impaired cognitive function that resulting in impaired cognitive function more) severe hypoglycemic episodes in occurred without warning in the past 12 that occurred without warning in the the last 5 years; understands diabetes months and no recurrent (2 or more) past 12 months and no recurrent (2 or management and monitoring; has stable severe hypoglycemic episodes in the more) severe hypoglycemic episodes in control of his diabetes using insulin; last 5 years; understands diabetes the last 5 years; understands diabetes and is able to drive a CMV safely. Mr. management and monitoring; has stable management and monitoring; has stable Galvin meets the requirements of the control of his diabetes using insulin; control of his diabetes using insulin; vision standard at 49 CFR 391.41(b)(10). and is able to drive a CMV safely. Mr. and is able to drive a CMV safely. Mr. His ophthalmologist examined him in Arnburg meets the requirements of the Boyle meets the requirements of the 2010 and certified that he has stable vision standard at 49 CFR 391.41(b)(10). vision standard at 49 CFR 391.41(b)(10). nonproliferative diabetic retinopathy. His ophthalmologist examined him in His ophthalmologist examined him in He holds a Class R operator’s license 2010 and certified that he has stable 2010 and certified that he does not have from Colorado which allows him to

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00111 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59790 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

drive any motor vehicle with a gross Donald S. Keller Craig S. Lynn weight of less than 26,001 pounds. Mr. Keller, 61, has had ITDM since Mr. Lynn, 41, has had ITDM since Mark W. Garver 2006. His endocrinologist examined him 1970. His endocrinologist examined him Mr. Garver, 42, has had ITDM since in 2010 and certified that he has had no in 2010 and certified that he has had no 1995. His endocrinologist examined him severe hypoglycemic reactions resulting severe hypoglycemic reactions resulting in 2010 and certified that he has had no in loss of consciousness, requiring the in loss of consciousness, requiring the severe hypoglycemic reactions resulting assistance of another person, or assistance of another person, or in loss of consciousness, requiring the resulting in impaired cognitive function resulting in impaired cognitive function assistance of another person, or that occurred without warning in the that occurred without warning in the resulting in impaired cognitive function past 12 months and no recurrent (2 or past 12 months and no recurrent (2 or that occurred without warning in the more) severe hypoglycemic episodes in more) severe hypoglycemic episodes in past 12 months and no recurrent (2 or the last 5 years; understands diabetes the last 5 years; understands diabetes more) severe hypoglycemic episodes in management and monitoring; has stable management and monitoring; has stable the last 5 years; understands diabetes control of his diabetes using insulin; control of his diabetes using insulin; management and monitoring; has stable and is able to drive a CMV safely. Mr. and is able to drive a CMV safely. Mr. control of his diabetes using insulin; Keller meets the requirements of the Lynn meets the requirements of the and is able to drive a CMV safely. Mr. vision standard at 49 CFR 391.41(b)(10). vision standard at 49 CFR 391.41(b)(10). Garver meets the requirements of the His ophthalmologist examined him in His optometrist examined him in 2010 vision standard at 49 CFR 391.41(b)(10). 2010 and certified that he does not have and certified that he does not have His optometrist examined him in 2010 diabetic retinopathy. He holds a Class B diabetic retinopathy. He holds a Class D and certified that he does not have CDL license from Michigan. operator’s license from New Mexico. diabetic retinopathy. He holds a Class A CDL license from Minnesota. Edwin I. Longstreth George M. Michael, Jr. Richard S. Jackson Mr. Longstreth, 66, has had ITDM Mr. Michael, 66, has had ITDM since Mr. Jackson, 59, has had ITDM since since 2010. His endocrinologist 2008. His endocrinologist examined him 2005. His endocrinologist examined him examined him in 2010 and certified that in 2010 and certified that he has had no in 2010 and certified that he has had no he has had no severe hypoglycemic severe hypoglycemic reactions resulting severe hypoglycemic reactions resulting reactions resulting in loss of in loss of consciousness, requiring the in loss of consciousness, requiring the consciousness, requiring the assistance assistance of another person, or assistance of another person, or of another person, or resulting in resulting in impaired cognitive function resulting in impaired cognitive function impaired cognitive function that that occurred without warning in the that occurred without warning in the occurred without warning in the past 12 past 12 months and no recurrent (2 or past 12 months and no recurrent (2 or months and no recurrent (2 or more) more) severe hypoglycemic episodes in more) severe hypoglycemic episodes in severe hypoglycemic episodes in the the last 5 years; understands diabetes the last 5 years; understands diabetes last 5 years; understands diabetes management and monitoring; has stable management and monitoring; has stable management and monitoring; has stable control of his diabetes using insulin; control of his diabetes using insulin; control of his diabetes using insulin; and is able to drive a CMV safely. Mr. and is able to drive a CMV safely. Mr. and is able to drive a CMV safely. Mr. Michael meets the requirements of the Jackson meets the requirements of the Longstreth meets the requirements of vision standard at 49 CFR 391.41(b)(10). vision standard at 49 CFR 391.41(b)(10). the vision standard at 49 CFR His ophthalmologist examined him in His ophthalmologist examined him in 391.41(b)(10). His optometrist examined 2010 and certified that he has stable 2010 and certified that he has stable him in 2010 and certified that he does nonproliferative diabetic retinopathy. nonproliferative diabetic retinopathy. not have diabetic retinopathy. He holds He holds a Class A CDL from He holds a Class C operator’s license a Class B CDL from Iowa. Mississippi. from Georgia. Jason M. Luper Thomas J. Millard Alfred K. Kataoka Mr. Kataoka, 63, has had ITDM since Mr. Luper, 39, has had ITDM since Mr. Millard, 30, has had ITDM since 2009. His endocrinologist examined him 1982. His endocrinologist examined him 1986. His endocrinologist examined him in 2010 and certified that he has had no in 2010 and certified that he has had no in 2010 and certified that he has had no severe hypoglycemic reactions resulting severe hypoglycemic reactions resulting severe hypoglycemic reactions resulting in loss of consciousness, requiring the in loss of consciousness, requiring the in loss of consciousness, requiring the assistance of another person, or assistance of another person, or assistance of another person, or resulting in impaired cognitive function resulting in impaired cognitive function resulting in impaired cognitive function that occurred without warning in the that occurred without warning in the that occurred without warning in the past 12 months and no recurrent (2 or past 12 months and no recurrent (2 or past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in more) severe hypoglycemic episodes in more) severe hypoglycemic episodes in the last 5 years; understands diabetes the last 5 years; understands diabetes the last 5 years; understands diabetes management and monitoring; has stable management and monitoring; has stable management and monitoring; has stable control of his diabetes using insulin; control of his diabetes using insulin; control of his diabetes using insulin; and is able to drive a CMV safely. Mr. and is able to drive a CMV safely. Mr. and is able to drive a CMV safely. Mr. Kataoka meets the requirements of the Luper meets the requirements of the Millard meets the requirements of the vision standard at 49 CFR 391.41(b)(10). vision standard at 49 CFR 391.41(b)(10). vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2010 His optometrist examined him in 2010 His ophthalmologist examined him in and certified that he does not have and certified that he does not have 2010 and certified that he does not have diabetic retinopathy. He holds a Class A diabetic retinopathy. He holds a Class A diabetic retinopathy. He holds a Class C CDL from Iowa. CDL license from Missouri. operator’s license from Georgia.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00112 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59791

Travis F. Moon in 2010 and certified that he has had no in loss of consciousness, requiring the Mr. Moon, 39, has had ITDM since severe hypoglycemic reactions resulting assistance of another person, or 1987. His endocrinologist examined him in loss of consciousness, requiring the resulting in impaired cognitive function in 2010 and certified that he has had no assistance of another person, or that occurred without warning in the severe hypoglycemic reactions resulting resulting in impaired cognitive function past 12 months and no recurrent (2 or in loss of consciousness, requiring the that occurred without warning in the more) severe hypoglycemic episodes in assistance of another person, or past 12 months and no recurrent (2 or the last 5 years; understands diabetes resulting in impaired cognitive function more) severe hypoglycemic episodes in management and monitoring; has stable that occurred without warning in the the last 5 years; understands diabetes control of his diabetes using insulin; past 12 months and no recurrent (2 or management and monitoring; has stable and is able to drive a CMV safely. Mr. more) severe hypoglycemic episodes in control of his diabetes using insulin; Rhoten meets the requirements of the the last 5 years; understands diabetes and is able to drive a CMV safely. Mr. vision standard at 49 CFR 391.41(b)(10). management and monitoring; has stable Patchett meets the requirements of the His optometrist examined him in 2010 control of his diabetes using insulin; vision standard at 49 CFR 391.41(b)(10). and certified that he does not have and is able to drive a CMV safely. Mr. His optometrist examined him in 2010 diabetic retinopathy. He holds a Class A Moon meets the requirements of the and certified that he does not have CDL from Ohio. diabetic retinopathy. He holds a Class A vision standard at 49 CFR 391.41(b) Heath A. Senkel (10). His optometrist examined him in CDL from Washington. Mr. Senkel, 35, has had ITDM since 2010 and certified that he does not have Joseph D. Pfandner 2002. His endocrinologist examined him diabetic retinopathy. He holds a Class A Mr. Pfandner, 66, has had ITDM since in 2010 and certified that he has had no CDL license from Georgia. 1996. His endocrinologist examined him severe hypoglycemic reactions resulting Kenneth M. Pachniak in 2010 and certified that he has had no in loss of consciousness, requiring the Mr. Pachniak, 58, has had ITDM since severe hypoglycemic reactions resulting assistance of another person, or 2003. His endocrinologist examined him in loss of consciousness, requiring the resulting in impaired cognitive function in 2010 and certified that he has had no assistance of another person, or that occurred without warning in the severe hypoglycemic reactions resulting resulting in impaired cognitive function past 12 months and no recurrent (2 or in loss of consciousness, requiring the that occurred without warning in the more) severe hypoglycemic episodes in assistance of another person, or past 12 months and no recurrent (2 or the last 5 years; understands diabetes resulting in impaired cognitive function more) severe hypoglycemic episodes in management and monitoring; has stable that occurred without warning in the the last 5 years; understands diabetes control of his diabetes using insulin; past 12 months and no recurrent (2 or management and monitoring; has stable and is able to drive a CMV safely. Mr. more) severe hypoglycemic episodes in control of his diabetes using insulin; Senkel meets the requirements of the the last 5 years; understands diabetes and is able to drive a CMV safely. Mr. vision standard at 49 CFR 391.41(b)(10). management and monitoring; has stable Pfandner meets the requirements of the His optometrist examined him in 2010 control of his diabetes using insulin; vision standard at 49 CFR 391.41(b)(10). and certified that he does not have and is able to drive a CMV safely. Mr. His ophthalmologist examined him in diabetic retinopathy. He holds a Class A Pachniak meets the requirements of the 2010 and certified that he does not have CDL from Colorado. diabetic retinopathy. He holds a Class A vision standard at 49 CFR 391.41(b)(10). Roland R. Unruh His optometrist examined him in 2010 CDL from Illinois. Mr. Unruh, 41, has had ITDM since and certified that he does not have Harold L. Phillips diabetic retinopathy. He holds a Class C 1995. His endocrinologist examined him chauffeur’s license from Michigan. Mr. Phillips, 55, has had ITDM since in 2010 and certified that he has had no 2001. His endocrinologist examined him severe hypoglycemic reactions resulting Robert M. Pardoe in 2010 and certified that he has had no in loss of consciousness, requiring the Mr. Pardoe, 50, has had ITDM since severe hypoglycemic reactions resulting assistance of another person, or 2010. His endocrinologist examined him in loss of consciousness, requiring the resulting in impaired cognitive function in 2010 and certified that he has had no assistance of another person, or that occurred without warning in the severe hypoglycemic reactions resulting resulting in impaired cognitive function past 12 months and no recurrent (2 or in loss of consciousness, requiring the that occurred without warning in the more) severe hypoglycemic episodes in assistance of another person, or past 12 months and no recurrent (2 or the last 5 years; understands diabetes resulting in impaired cognitive function more) severe hypoglycemic episodes in management and monitoring; has stable that occurred without warning in the the last 5 years; understands diabetes control of his diabetes using insulin; past 12 months and no recurrent (2 or management and monitoring; has stable and is able to drive a CMV safely. Mr. more) severe hypoglycemic episodes in control of his diabetes using insulin; Unruh meets the requirements of the the last 5 years; understands diabetes and is able to drive a CMV safely. Mr. vision standard at 49 CFR 391.41(b)(10). management and monitoring; has stable Phillips meets the requirements of the His optometrist examined him in 2010 control of his diabetes using insulin; vision standard at 49 CFR 391.41(b)(10). and certified that he does not have and is able to drive a CMV safely. Mr. His ophthalmologist examined him in diabetic retinopathy. He holds a Class A Pardoe meets the requirements of the 2010 and certified that he has stable CDL from Kansas. vision standard at 49 CFR 391.41(b)(10). nonproliferative diabetic retinopathy. Norman J. Vantuyle, II His optometrist examined him in 2010 He holds a Class D operator’s license and certified that he does not have from Oklahoma. Mr. Vantuyle, II, 43, has had ITDM diabetic retinopathy. He holds a Class C since 2009. His endocrinologist William Rhoten, Jr. operator’s license from Pennsylvania. examined him in 2010 and certified that Mr. Rhoten, 44, has had ITDM since he has had no severe hypoglycemic James A. Patchett 1982. His endocrinologist examined him reactions resulting in loss of Mr. Patchett, 62, has had ITDM since in 2010 and certified that he has had no consciousness, requiring the assistance 2009. His endocrinologist examined him severe hypoglycemic reactions resulting of another person, or resulting in

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00113 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59792 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

impaired cognitive function that more) severe hypoglycemic episodes in Legacy for Users requires the Secretary occurred without warning in the past 12 the last 5 years; understands diabetes to revise its diabetes exemption program months and no recurrent (2 or more) management and monitoring; has stable established on September 3, 2003 (68 FR severe hypoglycemic episodes in the control of his diabetes using insulin; 52441).1 The revision must provide for last 5 years; understands diabetes and is able to drive a CMV safely. Mr. individual assessment of drivers with management and monitoring; has stable Weadon meets the requirements of the diabetes mellitus, and be consistent control of his diabetes using insulin; vision standard at 49 CFR 391.41(b)(10). with the criteria described in section and is able to drive a CMV safely. Mr. His ophthalmologist examined him in 4018 of the Transportation Equity Act Vantuyle meets the requirements of the 2010 and certified that he has stable for the 21st Century (49 U.S.C. 31305). vision standard at 49 CFR 391.41(b)(10). nonproliferative diabetic retinopathy. His optometrist examined him in 2010 He holds a Class A operator’s license Section 4129 requires: (1) Elimination and certified that he does not have from Maryland. of the requirement for 3 years of diabetic retinopathy. He holds a Class A experience operating CMVs while being Douglas W. Williams CDL license from Michigan. treated with insulin; and (2) Mr. Williams, 49, has had ITDM since establishment of a specified minimum Danny E. Vawn 2010. His endocrinologist examined him period of insulin use to demonstrate Mr. Vawn, 53, has had ITDM since in 2010 and certified that he has had no stable control of diabetes before being 2009. His endocrinologist examined him severe hypoglycemic reactions resulting allowed to operate a CMV. in 2010 and certified that he has had no in loss of consciousness, requiring the severe hypoglycemic reactions resulting assistance of another person, or In response to section 4129, FMCSA in loss of consciousness, requiring the resulting in impaired cognitive function made immediate revisions to the assistance of another person, or that occurred without warning in the diabetes exemption program established resulting in impaired cognitive function past 12 months and no recurrent (2 or by the September 3, 2003 notice. that occurred without warning in the more) severe hypoglycemic episodes in FMCSA discontinued use of the 3-year past 12 months and no recurrent (2 or the last 5 years; understands diabetes driving experience and fulfilled the more) severe hypoglycemic episodes in management and monitoring; has stable requirements of section 4129 while the last 5 years; understands diabetes control of his diabetes using insulin; continuing to ensure that operation of management and monitoring; has stable and is able to drive a CMV safely. Mr. CMVs by drivers with ITDM will control of his diabetes using insulin; Williams meets the requirements of the achieve the requisite level of safety and is able to drive a CMV safely. Mr. vision standard at 49 CFR 391.41(b)(10). required of all exemptions granted Vawn meets the requirements of the His ophthalmologist examined him in under 49 USC. 31136 (e). vision standard at 49 CFR 391.41(b)(10). 2010 and certified that he has stable Section 4129(d) also directed FMCSA His optometrist examined him in 2010 nonproliferative diabetic retinopathy. to ensure that drivers of CMVs with and certified that he does not have He holds a Class A CDL from Tennessee. ITDM are not held to a higher standard diabetic retinopathy. He holds a Class B than other drivers, with the exception of CDL from Iowa. Thomas A. Woehrle Mr. Woehrle, 60, has had ITDM since limited operating, monitoring and John M. Warden 2010. His endocrinologist examined him medical requirements that are deemed Mr. Warden, 48, has had ITDM since in 2010 and certified that he has had no medically necessary. The FMCSA 2010. His endocrinologist examined him severe hypoglycemic reactions resulting concluded that all of the operating, in 2010 and certified that he has had no in loss of consciousness, requiring the monitoring and medical requirements severe hypoglycemic reactions resulting assistance of another person, or set out in the September 3, 2003 notice, in loss of consciousness, requiring the resulting in impaired cognitive function except as modified, were in compliance assistance of another person, or that occurred without warning in the with section 4129(d). Therefore, all of resulting in impaired cognitive function past 12 months and no recurrent (2 or the requirements set out in the that occurred without warning in the more) severe hypoglycemic episodes in September 3, 2003 notice, except as past 12 months and no recurrent (2 or the last 5 years; understands diabetes modified by the notice in the Federal more) severe hypoglycemic episodes in management and monitoring; has stable Register on November 8, 2005 (70 FR the last 5 years; understands diabetes control of his diabetes using insulin; 67777), remain in effect. management and monitoring; has stable and is able to drive a CMV safely. Mr. control of his diabetes using insulin; Woehrle meets the requirements of the Issued on: September 21, 2010. and is able to drive a CMV safely. Mr. vision standard at 49 CFR 391.41(b)(10). Larry W. Minor Warden meets the requirements of the His optometrist examined him in 2010 Associate Administrator for Policy and vision standard at 49 CFR 391.41(b)(10). and certified that he does not have Program Development. His optometrist examined him in 2010 diabetic retinopathy. He holds a Class A [FR Doc. 2010–24210 Filed 9–27–10; 8:45 am] and certified that he does not have CDL from Minnesota. BILLING CODE P diabetic retinopathy. He holds a Class A CDL from Texas. Request for Comments In accordance with 49 U.S.C. 31136(e) Donald E. Weadon and 31315, FMCSA requests public Mr. Weadon, 55, has had ITDM since comment from all interested persons on 1983. His endocrinologist examined him the exemption petitions described in in 2010 and certified that he has had no this notice. We will consider all severe hypoglycemic reactions resulting comments received before the close of in loss of consciousness, requiring the business on the closing date indicated 1 Section 4129(a) refers to the 2003 notice as a assistance of another person, or in the date section of the notice. ‘‘final rule.’’ However, the 2003 notice did not issue resulting in impaired cognitive function FMCSA notes that section 4129 of the a ‘‘final rule’’ but did establish the procedures and that occurred without warning in the Safe, Accountable, Flexible and standards for issuing exemptions for drivers with past 12 months and no recurrent (2 or Efficient Transportation Equity Act: A ITDM.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00114 Fmt 4703 Sfmt 9990 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59793

DEPARTMENT OF TRANSPORTATION comments, please include a self- Calvin D. Bills addressed, stamped envelope or Mr. Bills, 59, has had amblyopia in Federal Motor Carrier Safety postcard or print the acknowledgement his right eye since childhood. The best Administration page that appears after submitting corrected visual acuity in his right eye [Docket No. FMCSA–2010–0161] comments online. is 20/70 and in his left eye, 20/20. Privacy Act: Anyone may search the Following an examination in 2009, his Qualification of Drivers; Exemption electronic form of all comments optometrist noted, ‘‘Mr. Calvin Bills, in Applications; Vision received into any of our dockets by the my opinion, has the ability and name of the individual submitting the sufficient vision to perform the driving AGENCY: Federal Motor Carrier Safety comment (or of the person signing the tasks required to operate a commercial Administration (FMCSA), DOT. comment, if submitted on behalf of an vehicle.’’ Mr. Bills reported that he has ACTION: Notice of applications for association, business, labor union, etc.). driven straight trucks for 5 years, exemptions; request for comments. You may review the DOT’s complete accumulating 50,000 miles and tractor- Privacy Act Statement in the Federal trailer combinations for 10 years, SUMMARY: FMCSA announces receipt of Register published on April 11, 2000 accumulating 4 million miles. He holds applications from 17 individuals for (65 FR 19476). This information is also a Class A CDL from Virginia. His driving exemption from the vision requirement available at http://www.regulations.gov. record for the last 3 years shows no in the Federal Motor Carrier Safety FOR FURTHER INFORMATION CONTACT: Dr. crashes and no convictions for moving Regulations. If granted, the exemptions Mary D. Gunnels, Director, Medical violations in a CMV. would enable these individuals to Programs, (202) 366–4001, qualify as drivers of commercial motor [email protected], FMCSA, Joel W. Bryant vehicles (CMVs) in interstate commerce Department of Transportation, 1200 Mr. Bryant, 53, has had a prosthetic without meeting the Federal vision New Jersey Avenue, SE., Room W64– right eye since 1990 due to a traumatic standard. 224, Washington, DC 20590–0001. injury. The best corrected visual acuity DATES: Comments must be received on Office hours are from 8:30 a.m. to 5 in his left eye is 20/20. Following an or before October 28, 2010. p.m., Monday through Friday, except examination in 2009, his optometrist ADDRESSES: You may submit comments Federal holidays. noted, ‘‘Mr. Bryant appears to have bearing the Federal Docket Management SUPPLEMENTARY INFORMATION: sufficient vision to perform driving tasks in operating a commercial vehicle System (FDMS) Docket No. FMCSA– Background 2010–0161 using any of the following using his left eye.’’ Mr. Bryant reported methods: Under 49 U.S.C. 31136(e) and 31315, that he has driven straight trucks for 32 • Federal eRulemaking Portal: Go to FMCSA may grant an exemption from years, accumulating 1.2 million miles http://www.regulations.gov. Follow the the Federal Motor Carrier Safety and tractor-trailer combinations for 3 online instructions for submitting Regulations for a 2-year period if it finds years, accumulating 150,000 miles. He comments. ‘‘such exemption would likely achieve a holds a Class D chauffeur’s license from • Mail: Docket Management Facility; level of safety that is equivalent to, or Louisiana. His driving record for the last U.S. Department of Transportation, 1200 greater than, the level that would be 3 years shows no crashes and no New Jersey Avenue, SE., West Building achieved absent such exemption.’’ convictions for moving violations in a Ground Floor, Room W12–140, FMCSA can renew exemptions at the CMV. Washington, DC 20590–0001. end of each 2-year period. The 17 Jonathan Carriaga • Hand Delivery: West Building individuals listed in this Notice have each requested such an exemption from Mr. Carriaga, 35, has had amblyopia Ground Floor, Room W12–140, 1200 in his left eye since childhood. The best New Jersey Avenue, SE., Washington, the vision requirement in 49 CFR 391.41(b)(10), which applies to drivers corrected visual acuity in his right eye DC, between 9 a.m. and 5 p.m., Monday is 20/20 and in his left eye, 20/60. through Friday, except Federal of CMVs in interstate commerce. Accordingly, the Agency will evaluate Following an examination in 2010, his Holidays. ‘‘ • the qualifications of each applicant to optometrist noted, In my medical Fax: 1–202–493–2251. opinion Jonathan Carriaga has sufficient Instructions: Each submission must determine whether granting an exemption will achieve the required vision with or without glasses to drive include the Agency name and the ’’ level of safety mandated by statute. a commercial vehicle safely. Mr. docket numbers for this Notice. Note Carriaga reported that he has driven that all comments received will be Qualifications of Applicants straight trucks for 12 years, posted without change to http:// Ramon Adame accumulating 62,400 miles and tractor- www.regulations.gov, including any trailer combinations for 10 years, personal information provided. Please Mr. Adame, age 48, has had retinal accumulating 52,000 miles. He holds a see the Privacy Act heading below for detachment in his left eye since 1983. Class A CDL from New Mexico. His further information. The best corrected visual acuity in his driving record for the last 3 years shows Docket: For access to the docket to right eye is 20/20 and in his left eye, no crashes and no convictions for read background documents or light perception only. Following an moving violations in a CMV. comments, go to http:// examination in 2009, his optometrist www.regulations.gov at any time or noted, ‘‘Has sufficient vision to drive a Michael R. Clark Room W12–140 on the ground level of commercial vehicle.’’ Mr. Adame Mr. Clark, 54, has had macular the West Building, 1200 New Jersey reported that he has driven straight scarring in his right eye since Avenue, SE., Washington, DC, between trucks for 6 years, accumulating 165,000 childhood. The best corrected visual 9 a.m. and 5 p.m., Monday through miles. He holds a Class B Commercial acuity in his right eye is 20/200 and in Friday, except Federal holidays. The Driver’s License (CDL) from Illinois. His his left eye, 20/15. Following an FDMS is available 24 hours each day, driving record for the last 3 years shows examination in 2010, his optometrist 365 days each year. If you want no crashes and no convictions for noted, ‘‘It is my medical opinion that acknowledgment that we received your moving violations in a CMV. Mr. Clark has sufficient vision to

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00115 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59794 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

perform all driving tasks required of Ronald M. Green trailer combinations for 33 years him to drive a commercial vehicle.’’ Mr. Mr. Green, 51, has had central serous accumulating 2.5 million miles. He Clark reported that he has driven retinopathy in his right eye since 1997. holds a Class A CDL from Ohio. His straight trucks for 5 years, accumulating The best corrected visual acuity in his driving record for the last 3 years shows 100,000 miles and tractor-trailer right eye is 20/60 and in his left eye, 20/ no crashes and no convictions for combinations for 26 years accumulating 15. Following an examination in 2010, moving violations in a CMV. 1.3 million miles. He holds a Class A his optometrist noted, ‘‘I certify that in Richard L. Kelley CDL from Tennessee. His driving record my medical opinion, Ronald Green has for the last 3 years shows no crashes and sufficient vision to perform the driving Mr. Kelley, 72, has had optic nerve no convictions for moving violations in tasks required to operate a commercial atrophy in his left eye since 2000. The a CMV. vehicle.’’ Mr. Green reported that he has best corrected visual acuity in his right driven tractor-trailer combinations for eye is 20/25 and in his left eye, 20/150. James D. Drabek, Jr. 13 years, accumulating 1 million miles. Following an examination in 2010, his ophthalmologist noted, ‘‘It is my opinion Mr. Drabek, 52, has had idiopathic He holds a Class A CDL from Ohio. His driving record for the last 3 years shows that he has sufficient vision to perform macular choroidal neovascularization in the driving tasks required to operate a both eyes since 1998. The best corrected no crashes and no convictions for moving violations in a CMV. commercial vehicle.’’ Mr. Kelley visual acuity in his right eye is 20/60 reported that he has driven tractor- and in his left eye, 20/20. Following an Richard Iocolano trailer combinations for 27 years, examination in 2010, his optometrist Mr. Iocolano, 51, has had retinal accumulating 3.3 million miles. He noted, ‘‘James Drabek, Jr. has sufficient scarring in his left eye since childhood. holds a Class A CDL from Minnesota. vision to perform driving tasks required The best corrected visual acuity in his His driving record for the last 3 years to operate a commercial vehicle.’’ Mr. right eye is 20/20 and in his left eye, 20/ shows no crashes and no convictions for Drabek reported that he has driven 400. Following an examination in 2010, moving violations in a CMV. tractor-trailer combinations for 28 years, his ophthalmologist noted, ‘‘In my Charles E. Queen accumulating 1.4 million miles. He opinion Richard has sufficient vision to holds a Class A CDL from Illinois. His perform the driving tasks required to Mr. Queen, 53, sustained traumatic driving record for the last 3 years shows operate a commercial vehicle safely.’’ injury to his left optic nerve at age 14. no crashes and no convictions for Mr. Iocolano reported that he has driven The best corrected visual acuity in his moving violations in a CMV. straight trucks for 35 years, right eye is 20/20 and in his left eye, 20/ 300. Following an examination in 2009, Curtis E. Firari accumulating 350,000 miles. He holds a Class B CDL from New York. His driving his optometrist noted, ‘‘In my medical Mr. Firari, 54, has had macular record for the last 3 years shows no opinion, Charles E. Queen has sufficient scarring in his left eye since 1976. The crashes and no convictions for moving peripheral vision to perform the driving best corrected visual acuity in his right violations in a CMV. tasks required to operate a commercial vehicle.’’ Mr. Queen reported that he has eye is 20/15 and in his left eye, 20/350. Daniel W. Johnson Following an examination in 2010, his driven straight trucks for 26 years, optometrist noted, ‘‘In my opinion, Curt Mr. Johnson, 50, has had retinal accumulating 1.6 million miles and has sufficient vision to perform the scarring in his right eye since 2002. The tractor-trailer combinations for 26 years, driving tasks required to operate a best corrected visual acuity in his right accumulating 1.6 million miles. He commercial vehicle.’’ Mr. Firari reported eye is light perception only and in his holds a Class A CDL from Ohio. His that he has driven tractor-trailer left eye, 20/20. Following an driving record for the last 3 years shows combinations for 33 years accumulating examination in 2010, his optometrist no crashes and no convictions for 330,000 miles. He holds a Class A CDL noted, ‘‘There would be no reason to moving violations in a CMV. think that he could not perform all the from Wisconsin. His driving record for Matias P. Quintanilla the last 3 years shows no crashes and no visual tasks required to drive. It is my convictions for moving violations in a opinion that he is visually able to Mr. Quintanilla, 47, has a ruptured CMV. perform commercial driving tasks.’’ Mr. globe in his left eye due to a traumatic Johnson reported that he has driven injury sustained in 2005. The best Percy L. Gaston straight trucks for 3 years, accumulating corrected visual acuity in his right eye 39,000 miles. He holds a Class A CDL is 20/20 and in his left eye, hand-motion Mr. Gaston, 57, has had central vision from New York. His driving record for vision. Following an examination in loss in his right eye since childhood. the last 3 years shows no crashes and no 2010, his optometrist noted, ‘‘In my The best corrected visual acuity in his convictions for moving violations in a opinion, he should have sufficient right eye is hand-motion vision and in CMV. vision to operate a commercial vehicle.’’ his left eye, 20/20. Following an Mr. Quintanilla reported that he has examination in 2010, his Albert E. Joiner driven tractor-trailer combinations for 9 ophthalmologist noted, ‘‘Patient has Mr. Joiner, 53, has had macular years, accumulating 720,000 miles. He sufficient vision at this time to operate scarring in his right eye since 2006. The holds a Class A CDL from California. a commercial vehicle.’’ Mr. Gaston best corrected visual acuity in his right His driving record for the last 3 years reported that he has driven straight eye is 20/400 and in his left eye, 20/20. shows no crashes and no convictions for trucks for 2 years, accumulating 5,200 Following an examination in 2009, his moving violations in a CMV. miles and tractor-trailer combinations ophthalmologist noted, ‘‘In my medical for 29 years, accumulating 105,560 opinion, I believe the applicant has Richard T. Traigle miles. He holds a Class A CDL from sufficient vision to perform the driving Mr. Traigle, 49, has had macular Texas. His driving record for the last 3 tasks required to operate a commercial scarring in his left eye since 2000. The years shows no crashes and no vehicle.’’ Mr. Joiner reported that he has best corrected visual acuity in his right convictions for moving violations in a driven straight trucks for 4 years, eye is 20/20 and in his left eye, 20/200. CMV. accumulating 166,400 miles and tractor- Following an examination in 2010, his

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00116 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59795

ophthalmologist noted, ‘‘In my medical review and clearance under the Respondents: Individuals or opinion, Mr. Traigle has sufficient Paperwork Reduction Act of 1995, households. vision to perform any driving tasks that Public Law 104–13 on or after the date Estimated Total Burden Hours: 8,650 he may need to perform in operating a of publication of this notice. A copy of hours. commercial vehicle.’’ Mr. Traigle the submissions may be obtained by OMB Number: 1545–1861. reported that he has driven straight calling the Treasury Bureau Clearance Type of Review: Extension without trucks for 15 years, accumulating Officer listed. Comments regarding change to a currently approved 300,000 miles. He holds a Class D these information collections should be collection. chauffeur’s from Louisiana. His driving addressed to the OMB reviewer listed Title: Revenue Procedure 2004–19, record for the last 3 years shows no and to the Treasury PRA Clearance Probable or Prospective Reserves Safe crashes and no convictions for moving Officer, Department of the Treasury, Harbor. violations in a CMV. 1750 Pennsylvania Avenue, NW., Suite Abstract: This revenue procedure 11010, Washington, DC 20220. requires a taxpayer to file an election Eugene E. Wright DATES: Written comments should be statement with the Service if the Mr. Wright, 62, has had amblyopia in received on or before October 28, 2010 taxpayer wants to use the safe harbor to his left eye since 1998. The best to be assured of consideration. estimate the taxpayers’ oil and gas corrected visual acuity in his right eye properties’ probable or prospective is 20/20 and in his left eye, 20/400. Internal Revenue Service (IRS) reserves for purposes of computing cost Following an examination in 2010, his OMB Number: 1545–1155. depletion under Sec. 611 of the Internal ophthalmologist noted, ‘‘In my opinion Type of Review: Extension without Revenue Code. he has adequate visual acuity and field change to a currently approved Respondents: Private Sector: to drive a commercial vehicle.’’ Mr. collection. Businesses or other for-profits. Wright reported that he has driven Title: PS–74–89 (TD 8282) Final Estimated Total Burden Hours: 50 tractor-trailer combinations for 16 years, Election of Reduced Research Credit. hours. accumulating 1.5 million miles. He Abstract: These regulations prescribe OMB Number: 1545–1879. holds a Class A CDL from Pennsylvania. the procedure for making the election Type of Review: Extension without His driving record for the last 3 years described in section 280C(c)(3) of the change to a currently approved shows no crashes and no convictions for Internal Revenue Code. Taxpayers collection. moving violations in a CMV. making this election must reduce their Title: Exempt Organization section 41(a) research credit, but are not Request for Comments Declaration and Signature for Electronic required to reduce their deductions for Filing. In accordance with 49 U.S.C. 31136(e) qualified research expenses, as required Form: 8453–EO and 31315, FMCSA requests public in paragraphs (1) and (2) of section Abstract: Form 8453–EO is used to comment from all interested persons on 280C(c). authenticate an electronic Forms 990, the exemption petitions described in Respondents: Private Sector: 990–EZ, 1120–POL, or 8868 authorize this Notice. The Agency will consider Businesses or other for-profits. the electronic return originator, and/or all comments received before the close Estimated Total Burden Hours: 50 intermediate service provider, if any, to of business October 28, 2010. Comments hours. transmit via a third-party transmitter; will be available for examination in the OMB Number: 1545–0042. and provide the organization’s consent docket at the location listed under the Type of Review: Revision of a to directly deposit any refund and/or ADDRESSES section of this notice. The currently approved collection. authorize an electronic funds Title: Application To Use LIFO Agency will file comments received withdrawal for payment of Federal taxes Inventory Method. after the comment closing date in the owed. public docket, and will consider them to Form: 970 Abstract: Form 970 is filed by Respondents: Private Sector: Not-for- the extent practicable. profit institutions. In addition to late comments, FMCSA individuals, partnerships, trusts, estates, or corporations to elect to use the LIFO Estimated Total Burden Hours: 1,046 will also continue to file, in the public hours. docket, relevant information that inventory method or to extend the LIFO method to additional goods. The IRS OMB Number: 1545–0800. becomes available after the comment uses Form 970 to determine if the Type of Review: Extension without closing date. Interested persons should election was properly made. change to a currently approved monitor the public docket for new Respondents: Private Sector: collection. material. Businesses or other for-profits. Title: Reg. 601.601 Rules and Issued on: September 21, 2010. Estimated Total Burden Hours: 42,220 Regulations. Larry W. Minor, hours. Abstract: Persons wishing to speak at Associate Administrator for Policy and OMB Number: 1545–0757. a public hearing on a proposed rule Program Development. Type of Review: Extension without must submit written comments and an [FR Doc. 2010–24204 Filed 9–27–10; 8:45 am] change to a currently approved outline within prescribed time limits, for use in preparing agendas and BILLING CODE 4910–EX–P collection. Title: LR–209–76 (Final) Special Lien allocating time. Persons interested in for Estate Taxes Deferred Under Section the issuance, amendment, or repeal of a 6166 or 6166A. rule may submit a petition for this. IRS DEPARTMENT OF THE TREASURY Abstract: Section 632A permits the considers the petitions in its Submission for OMB Review; executor of a decedent’s estate to elect deliberations. Comment Request a lien on section 6166 property in favor Respondents: Private Sector: Not-for- of the United States in lieu of a bond or profit institutions, Businesses or other September 22, 2010. personal liability if an election under for-profits and Farms. The Department of the Treasury will section 6166 was made and the executor Estimated Total Burden Hours: 900 submit the following public information files an agreement under section hours. collection requirements to OMB for 6323A(c). OMB Number: 1545–0806.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00117 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59796 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

Type of Review: Extension without 6033 by adding Code section 6033(i), Estimated Total Burden Hours: change to a currently approved which requires certain tax-exempt 1,051,357 hours. collection. organizations to file an annual OMB Number: 1545–1156. Title: EE–12–78 (Final) Non-Bank electronic notice (Form 990–N) for tax Type of Review: Extension without Trustees. years beginning after December 31, change to a currently approved Abstract: IRC section 408(a)(2) 2006. These organizations are not collection. permits an institution other than a bank required to file Form 990 (or Form 990– Title: Records (26 CFR 1.6001–1). to be the trustee of an individual EZ) because their gross receipts are Abstract: Internal Revenue Code retirement account (IRA). To do so, an normally $25,000 or less. section 6001 requires, in part, that every application needs to be filed and Respondents: Private Sector: Not-for- person liable for tax, or for the various requirements need to be met. profit institutions. collection of that tax, keep such records IRS uses the information to determine Estimated Total Burden Hours: 75,000 and comply with such rules and whether an institution qualifies to be a hours. regulations as the Secretary may from non-bank trustee. OMB Number: 1545–1255. time to time prescribe. These records are Respondents: Private Sector: Not-for- Type of Review: Extension without needed to ensure proper compliance profit institutions. change to a currently approved with the Code. Estimated Total Burden Hours: 13 collection. Respondents: Individuals or hours. Title: INTL–870–89 (NPRM) Earnings households. OMB Number: 1545–1433. Stripping (Section 163(j)). Estimated Total Burden Hours: 1 Type of Review: Extension without Abstract: Certain taxpayers are hour. change to a currently approved allowed to write off the fixed basis of OMB Number: 1545–1881. collection. the stock of an acquired corporation. Type of Review: Extension without Title: CO–11–91 (TD 8597) (Final) The data obtained by the IRS from the change to a currently approved Consolidated and Controlled Groups- various elections and identifications is collection. Intercompany Transactions and Related used to verify that taxpayers have, in Title: Election To Treat a Qualified Rules; CO–24–95 (TD 8660) (Final) fact, elected special treatment under Revocable Trust as Part of an Estate. Consolidated Groups-Intercompany section 163(j). Form: 8855. Respondents: Private Sector: Transactions and Related Rules. Abstract: Form 8855 is used to make Abstract: The regulations require Businesses or other for-profits. a section 645 election that allows a Estimated Total Burden Hours: 1,196 common parents that make elections qualified revocable trust to be treated hours. and taxed (for income tax purposes) as under Section 1.1502–13 to provide OMB Number: 1545–2167. certain information. The information Type of Review: Extension without part of its related estate during the will be used to identify and assure that change to a currently approved election period. Respondents: Private Sector: the amount, location, timing and collection. attributes of intercompany transactions Title: Notice 2010–28, Stripping Businesses or other for-profits. and corresponding items are properly Transactions for Qualified Tax Credit Estimated Total Burden Hours: 28,200 maintained. Bonds. hours. Respondents: Private Sector: Not-for- Abstract: The IRS requires the OMB Number: 1545–1443. profit institutions. information to ensure compliance with Type of Review: Extension without Estimated Total Burden Hours: 1,050 the tax credit bond credit coupon change to a currently approved hours. stripping requirements, including collection. Title: PS–25–94 (Final) Requirements OMB Number: 1545–0982. ensuring that no excess tax credit is to Ensure Collection of Section 2056A Type of Review: Extension without taken by holders of bonds and coupon Estate Tax (TD 8686). change to a currently approved strips. The information is required in Abstract: The regulation provides collection. order to inform holders of qualified tax guidance relating to the additional Title: LR–77–86 Temporary (TD 8124) credit bonds whether the credit coupons requirements necessary to ensure the Certain Elections Under the Tax Reform relating to those bonds may be stripped collection of the estate tax imposed Act of 1986. as provided under § 54A(i). The under Section 2056A(b) with respect to Abstract: These regulations establish respondents are issuers of tax credit taxable events involving qualified various elections with respect to which bonds, including states and local domestic trusts (QDOT’S). In order to immediate interim guidance on the time governments and other eligible issuers. and manner of making the election is Respondents: State, Local, and Tribal ensure collection of the tax, the necessary. These regulations enable Governments. regulation provides various security taxpayers to take advantage of the Estimated Total Burden Hours: 1,000 options that may be selected by the trust benefits of various Code provisions. hours. and the requirements associated with Respondents: Private Sector: Not-for- OMB Number: 1545–1576. each option. In addition, under certain profit institutions. Type of Review: Extension without circumstances the trust is required to Estimated Total Burden Hours: 28,678 change to a currently approved file an annual statement with the IRS hours. collection. disclosing the assets held by the trust. OMB Number: 1545–2085. Title: Student Loan Interest Statement Respondents: Individuals or Type of Review: Revision of a Form: 1098–E. households. currently approved collection. Abstract: Section 6050S(b)(2) of the Estimated Total Burden Hours: 6,070 Title: 990–N Electronic Notice (e- Internal Revenue Code requires persons hours. Postcard). (financial institutions, governmental OMB Number: 1545–2052. Form: 990–N. units, etc.) to report $600 or more of Type of Review: Extension without Abstract: Section 1223 of the Pension interest paid on student loans to the IRS change to a currently approved Protection Act of 2006 (PPA ’06), and the students. collection. enacted on August 17, 2006, amended Respondents: Individuals or Title: U.S. Income Tax Return for Internal Revenue Code (Code) section households. Cooperative Associations.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00118 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59797

Form: 1120–C. OMB Number: 1545–1308. Respondents: Individuals or Abstract: IRS Code section 1381 Type of Review: Extension without households. requires subchapter T cooperatives to change to a currently approved Estimated Total Burden Hours: 3,750 file returns. Previously, farmers’ collection. hours. cooperatives filed Form 990–C and Title: PS–260–82 (Final) Election, Bureau Clearance Officer: R. Joseph other subchapter T cooperatives filed Revocation, Termination, and Tax Effect Durbala, Internal Revenue Service, 1111 Form 1120. If the subchapter T of Subchapter S Status—TD 8449. Constitution Avenue, NW., Room 6129, cooperative does not meet certain Abstract: Section 1–1362 through Washington, DC 20224; (202) 622–3634. requirements, the due date of their 1.1362–7 of the Income Tax Regulations OMB Reviewer: Shagufta Ahmed, return is two and one-half months after provide the specific procedures and Office of Management and Budget, New the end of their tax year which is the requirements necessary to implement Executive Office Building, Room 10235, same as the due date for all other section 1362, including the filing of Washington, DC 20503; (202) 395–7873. corporations. The due date for income various elections and statements with Celina Elphage, tax returns filed by subchapter T the Internal Revenue Service. cooperatives who meet certain Respondents: Individuals or Treasury PRA Clearance Officer. requirements is eight and one-half households. [FR Doc. 2010–24213 Filed 9–27–10; 8:45 am] months after the end of their tax year. Estimated Total Burden Hours: 322 BILLING CODE 4810–01–P Cooperatives who filed their income tax hours. returns on Form 1120 were considered OMB Number: 1545–0122. Type of Review: Extension without to be late and penalties were assessed DEPARTMENT OF THE TREASURY change to a currently approved since they had not filed by the normal collection. Alcohol and Tobacco Tax and Trade due date for Form 1120. Due to the Title: Foreign Tax Credit Bureau assessment of the penalties, burden was Corporations. placed on the taxpayer and on the IRS Form: 1118 (Schedule I, J, K). Proposed Information Collections; employees to resolve the issue. Abstract: Form 1118 and separate Comment Request Respondents: Private Sector: Schedules I, J, and K are used by AGENCY: Alcohol and Tobacco Tax and Businesses or other for-profits. domestic and foreign corporations to Trade Bureau, Treasury. Estimated Total Burden Hours: claim a credit for taxes paid to foreign 430,400 hours. countries. The IRS uses Form 1118 and ACTION: Notice and request for OMB Number: 1545–1287. related schedules to determine if the comments. Type of Review: Extension without corporation has computed the foreign change to a currently approved SUMMARY: As part of our continuing tax credit correctly. effort to reduce paperwork and collection. Respondents: Private Sector: Title: FI–3–91 (TD 8456—Final) respondent burden, and as required by Businesses or other for-profits. the Paperwork Reduction Act of 1995, Capitalization of Certain Policy Estimated Total Burden Hours: we invite comments on the proposed or Acquisition Expenses. 3,483,016 hours. Abstract: Insurance companies that OMB Number: 1545–0191. continuing information collections enter into reinsurance agreement must Type of Review: Extension without listed below in this notice. determine the amounts to be capitalized change to a currently approved DATES: We must receive your written under those agreements consistently. collection. comments on or before November 29, The regulations provide elections to Title: Investment Interest Expense 2010. permit companies to shift the burden of Deduction. ADDRESSES: You may send comments to capitalization for their mutual benefit. Form: 4952. Mary A. Wood, Alcohol and Tobacco Respondents: Private Sector: Abstract: Internal Revenue Code Tax and Trade Bureau, at any of these Businesses or other for-profits. section 163(d) provides a limitation on addresses: Estimated Total Burden Hours: 2,070 individuals, estates, or trusts that paid • P.O. Box 14412, Washington, DC hours. or accrued interest on investment OMB Number: 1545–1138. 20044–4412; indebtedness. Form 4952 is used to • 202–453–2686 (facsimile); or Type of Review: Extension without accumulate a taxpayer’s interest from all • change to a currently approved [email protected] (e-mail). sources and provides a line-by-line Please send separate comments for collection. computation of the allowable deduction Title: INTL–955–86 (Final) each specific information collection for investment interest. listed below. You must reference the Requirements For Investments to Respondents: Individuals or information collection’s title, form or Qualify under Section 936(d)(4) as households. Investments in Qualified Caribbean Estimated Total Burden Hours: recordkeeping requirement number, and Basin Countries. 205,596 hours. OMB number (if any) in your comment. Abstract: The collection of OMB Number: 1545–1072. If you submit your comment via information is required by the Internal Type of Review: Extension without facsimile, send no more than five 8.5 x Revenue Service to verify that an change to a currently approved 11 inch pages in order to ensure investment qualifies under IRC section collection. electronic access to our equipment. 936(d)(4). The recordkeepers will be Title: INTL–952–86 (TD 8410–Final) FOR FURTHER INFORMATION CONTACT: To possession corporations, certain Allocation and Apportionment of obtain additional information, copies of financial institutions located in Puerto Interest Expense and Certain Other the information collection and its Rico, and borrowers of funds covered by Expenses. instructions, or copies of any comments this regulation. Abstract: The regulations provide received, contact Mary A. Wood, Respondents: Private Sector: rules concerning the allocation and Alcohol and Tobacco Tax and Trade Businesses or other for-profits. apportionment of expenses to foreign Bureau, P.O. Box 14412, Washington, Estimated Total Burden Hours: 1,500 source income for purposes of the DC 20044–4412; or telephone 202–453– hours. foreign tax credit and other provisions. 2265.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00119 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59798 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

SUPPLEMENTARY INFORMATION: Type of Review: Extension of a beverages and to verify the quantity of currently approved collection. beer removed subject to tax and Request for Comments Affected Public: Business or other for- removed without payment of tax. TTB The Department of the Treasury and profit; Individuals or Households. believes that these records would be its Alcohol and Tobacco Tax and Trade Estimated Number of Respondents: normally kept in the course of doing Bureau (TTB), as part of their 50. business. continuing effort to reduce paperwork Estimated Total Annual Burden and respondent burden, invite the Hours: 50. Current Actions: We are submitting general public and other Federal Title: Referral of Information. this information collection for extension agencies to comment on the proposed or OMB Control Number: 1513–0003. purposes only. The information continuing information collections TTB Form Numbers: 5000.21. collection, estimated number of listed below in this notice, as required Abstract: When we discover potential respondents, and estimated total annual by the Paperwork Reduction Act of 1995 violations of Federal, State, or local law, burden hours remain unchanged. (44 U.S.C. 3501 et seq.). we use TTB F 5000.21 to make referrals Type of Review: Extension of a Comments submitted in response to to Federal, State, or local agencies to currently approved collection. this notice will be included or determine if they plan to take action, and to internally refer potential Affected Public: Business or other for- summarized in our request for Office of profit. Management and Budget (OMB) violations of TTB administered statutes. approval of the relevant information We also use TTB F 5000.21 to evaluate Estimated Number of Respondents: collection. All comments are part of the the effectiveness of these referrals. 2,026. public record and subject to disclosure. Current Actions: We are submitting Estimated Total Annual Burden this information collection for extension Please not do include any confidential Hours: One (1). or inappropriate material in your purposes only. The information Title: Recordkeeping for Tobacco comments. collection, estimated number of Products Removed in Bond from a We invite comments on: (a) Whether respondents, and estimated total annual Manufacturer’s Premises for this information collection is necessary burden hours remain unchanged. for the proper performance of the Type of Review: Extension of a Experimental Purposes—27 CFR agency’s functions, including whether currently approved collection. 40.232(e). the information has practical utility; (b) Affected Public: Federal Government; OMB Control Number: 1513–0110. State, Local, or Tribal Government. the accuracy of the agency’s estimate of TTB Form Number: None. the information collection’s burden; (c) Estimated Number of Respondents: ways to enhance the quality, utility, and 500. TTB Recordkeeping Number: None. Estimated Total Annual Burden clarity of the information collected; (d) Abstract: The prescribed records Hours: 500. ways to minimize the information apply to manufacturers who ship Title: Notice of Release of Tobacco collection’s burden on respondents, tobacco products in bond for Products, Cigarette Papers, or Cigarette including through the use of automated experimental purposes. TTB can Tubes. collection techniques or other forms of OMB Control Number: 1513–0025. examine these records to determine that information technology; and (e) TTB Form Number: 5200.11. the proprietor has complied with law estimates of capital or start-up costs and Abstract: This form documents the and regulations that allow such tobacco costs of operation, maintenance, and release of tobacco products and cigarette products to be shipped in bond for purchase of services to provide the papers and tubes from Customs custody, experimental purposes without payment requested information. and the return of such articles, to a of the excise tax. Information Collections Open for manufacturer or export warehouse Current Actions: We are submitting Comment proprietor for use in the United States. this information collection request for The form is also used to ensure Currently, we are seeking comments extension purposes only. The compliance with laws and regulations at on the following forms and information collection, estimated the time of these transactions and for recordkeeping requirements: number of respondents, and estimated post audit examinations. Title: Tax Information Authorization. total annual burden hours remain Current Actions: We are submitting unchanged. OMB Control Number: 1513–0001. this information collection for extension TTB Form Numbers: 5000.19. purposes only. The information Type of Review: Extension of a Abstract: TTB F 5000.19 is required collection, estimated number of currently approved collection. by TTB to be filed when a respondent’s respondents, and estimated total annual Affected Public: Business or other for- representative, not having a power of burden hours remain unchanged. profit. attorney, wishes to obtain confidential Type of Review: Extension of a Estimated Number of Respondents: information regarding the respondent. currently approved collection. After proper completion of the form, Affected Public: Business or other for- 170. information can be released to the profit. Estimated Total Annual Burden representative. TTB uses this form to Estimated Number of Respondents: Hours: One (1). properly identify the representative and 268. Dated: September 21, 2010. his/her authority to obtain confidential Estimated Total Annual Burden Gerald Isenberg, information. Hours: 536. Current Actions: We are submitting Title: Usual and Customary Business Director, Regulations and Rulings Division. this information collection for extension Records Maintained by Brewers. [FR Doc. 2010–24328 Filed 9–27–10; 8:45 am] purposes only. The information OMB Control Number: 1513–0058. BILLING CODE 4810–31–P collection, estimated number of TTB Recordkeeping Number: 5130/1. respondents, and estimated total annual Abstract: TTB audits brewers’ records burden hours remain unchanged. to verify production of beer and cereal

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00120 Fmt 4703 Sfmt 9990 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59799

DEPARTMENT OF THE TREASURY SUPPLEMENTARY INFORMATION: The OCC (c) Ways to enhance the quality, is requesting regular clearance of a utility, and clarity of the information to Office of the Comptroller of the collection for which it received be collected; Currency emergency approval.1 (d) Ways to minimize the burden of Title: Guidance on Sound Incentive the collection on respondents, including Agency Information Collection Compensation Policies. through the use of automated collection Activities: Submission for OMB OMB Number: 1557–0245. techniques or other forms of information Review; Comment Request Abstract: Under the guidance, technology; and AGENCY: Office of the Comptroller of the national banks are required to: (i) Have (e) Estimates of capital or startup costs Currency (OCC), Treasury. policies and procedures that identify and costs of operation, maintenance, and describe the role(s) of the personnel and purchase of services to provide ACTION: Notice and request for and units authorized to be involved in information. comments. incentive compensation arrangements, Dated: September 22, 2010. SUMMARY: The OCC, as part of its identify the source of significant risk- Michele Meyer, continuing effort to reduce paperwork related inputs, establish appropriate Assistant Director, Legislative and Regulatory and respondent burden, invites the controls governing these inputs to help Activities Division, Office of the Comptroller general public and other Federal ensure their integrity, and identify the of the Currency. agencies to take this opportunity to individual(s) and unit(s) whose [FR Doc. 2010–24282 Filed 9–27–10; 8:45 am] comment on a proposed information approval is necessary for the BILLING CODE 4810–33–P collection, as required by the Paperwork establishment or modification of Reduction Act of 1995. An agency may incentive compensation arrangements; not conduct or sponsor, and a (ii) create and maintain sufficient DEPARTMENT OF THE TREASURY respondent is not required to respond documentation to permit an audit of the to, an information collection unless it organization’s processes for incentive Office of Thrift Supervision displays a currently valid OMB control compensation arrangements; (iii) have number. Currently, the OCC is soliciting any material exceptions or adjustments Purchase of Branch Office(s) and/or comments concerning an information to the incentive compensation Transfer of Assets/Liabilities arrangements established for senior collection titled ‘‘Guidance on Sound AGENCY: Office of Thrift Supervision Incentive Compensation Practices.’’ The executives approved and documented (OTS), Treasury. OCC also gives notice that it has sent the by its board of directors; and (iv) have ACTION: Notice and request for comment. collection to OMB for review. its board of directors receive and DATES: Written comments should be review, on an annual or more frequent SUMMARY: The Department of the submitted by October 28, 2010. basis, an assessment by management of Treasury, as part of its continuing effort ADDRESSES: Communications Division, the effectiveness of the design and to reduce paperwork and respondent Office of the Comptroller of the operation of the organization’s incentive burden, invites the general public and Currency, Mailstop 2–3, Attention compensation system in providing risk- other Federal agencies to comment on 1557–0245, 250 E Street, SW., taking incentives that are consistent proposed and continuing information Washington, DC 20219. In addition, with the organization’s safety and collections, as required by the comments may be sent by facsimile soundness. Paperwork Reduction Act of 1995, 44 transmission to (202) 874–5274, or by Type of Review: Regular. U.S.C. 3507. The Office of Thrift Affected Public: Businesses or other electronic mail to Supervision within the Department of for-profit. [email protected]. You may the Treasury will submit the proposed Estimated Number of Respondents: information collection requirement personally inspect and photocopy 1,033 large banks; 617 small banks. comments at the OCC, 250 E Street, described below to the Office of Estimated Burden per Respondent: Management and Budget (OMB) for SW., Washington, DC 20219. For 480 hours for large banks to modify security reasons, the OCC requires that review, as required by the Paperwork policies and procedures to monitor Reduction Act. Today, OTS is soliciting visitors make an appointment to inspect incentive compensation. 80 hours for comments. You may do so by calling public comments on its proposal to small banks to establish or modify extend this information collection. (202) 874–4700. Upon arrival, visitors policies and procedures to monitor DATES: Submit written comments on or will be required to present valid incentive compensation. 40 hours before November 29, 2010. government-issued photo identification annually for all banks to maintain and to submit to security screening in policies and procedures to monitor ADDRESSES: Send comments, referring to order to inspect and photocopy incentive compensation arrangements. the collection by title of the proposal or comments. Frequency of Response: Annually. by OMB approval number, to Additionally, you should send a copy Total Annual Burden: 611,200 hours. Information Collection Comments, Chief of your comments by mail to: OCC Desk A 60-Day Federal Register notice was Counsel’s Office, Office of Thrift Officer, 1557–0245, U.S. Office of issued on July 22, 2010 (75 FR 42823). Supervision, 1700 G Street, NW., Management and Budget, 725 17th No comments were received. Comments Washington, DC 20552; send a facsimile Street, NW., Washington, DC 20503, or continue to be invited on: transmission to (202) 906–6518; or send by fax to (202) 395–6974. (a) Whether the collection of an e-mail to FOR FURTHER INFORMATION CONTACT: You information is necessary for the proper [email protected]. can request additional information or a performance of the functions of the OTS will post comments and the related copy of the collection from Mary H. OCC, including whether the information index on the OTS Internet Site at http: Gottlieb, (202) 874–5090, Legislative has practical utility; //www.ots.treas.gov. In addition, and Regulatory Activities Division, (b) The accuracy of the OCCs estimate interested persons may inspect Office of the Comptroller of the of the information collection burden; comments at the Public Reading Room, Currency, 250 E Street, SW., 1700 G Street, NW,. by appointment. To Washington, DC 20219. 1 75 FR 36395 (June 25, 2010). make an appointment, call (202) 906–

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00121 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 59800 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices

5922, send an e-mail to Estimated Frequency of Response: On DEPARTMENT OF VETERANS [email protected], or send a occasion. AFFAIRS facsimile transmission to (202) 906– Estimated Total Burden: 960 hours. 7755. Privacy Act of 1974; Report of Dated: September 22, 2010. Matching Program FOR FURTHER INFORMATION CONTACT: You Ira L. Mills, can request additional information Paperwork Clearance Officer, Office of Chief AGENCY: Department of Veterans Affairs. about this proposed information Counsel, Office of Thrift Supervision. ACTION: Notice of computer matching collection from Mr. Donald W. Dwyer [FR Doc. 2010–24208 Filed 9–27–10; 8:45 am] program. on (202) 906–6414, Office of Thrift BILLING CODE 6720–01–P Supervision, 1700 G Street, NW., SUMMARY: Notice is hereby given that Washington, DC 20552. the Department of Veterans Affairs (VA) SUPPLEMENTARY INFORMATION: OTS may DEPARTMENT OF THE TREASURY intends to conduct a recurring not conduct or sponsor an information computer-matching program matching collection, and respondents are not Bureau of the Public Debt Railroad Retirement Board (RRB), required to respond to an information retirement and survivor benefits records collection, unless the information Senior Executive Service; Public Debt with VA pension, compensation, and collection displays a currently valid Performance Review Board (PRB) dependency and indemnity OMB control number. As part of the compensation (DIC) records. The goal of AGENCY: Bureau of the Public Debt, approval process, we invite comments this match is to identify beneficiaries Treasury. on the following information collection. who are receiving VA benefits, and to Comments should address one or ACTION: Notice of Members of Public reduce or terminate benefits, if more of the following points: Debt Performance Review Board. appropriate. The match will include a. Whether the proposed collection of records of current VA beneficiaries. information is necessary for the proper SUMMARY: This notice announces the DATES: The match will start no sooner performance of the functions of OTS; appointment of the members of the than 30 days after publication of this b. The accuracy of OTS’s estimate of Public Debt Performance Review Board notice in the Federal Register, or 40 the burden of the proposed information (PRB) for the Bureau of the Public Debt days after copies of this Notice and the collection; (BPD). The PRB reviews the agreement of the parties is submitted to c. Ways to enhance the quality, performance appraisals of career senior Congress and the Office of Management utility, and clarity of the information to executives who are below the level of and Budget, whichever is later, and end be collected; Assistant Commissioner/Executive not more than 18 months after the d. Ways to minimize the burden of the Director and who are not assigned to the agreement is properly implemented by information collection on respondents, Office of the Commissioner in BPD. The the parties. The involved agencies’ Data including through the use of PRB makes recommendations regarding Integrity Boards (DIB) may extend this information technology. proposed performance appraisals, match for 12 months provided the We will summarize the comments ratings, bonuses, pay adjustments, and agencies certify to their DIBs, within that we receive and include them in the other appropriate personnel actions. three months of the ending date of the OTS request for OMB approval. All DATES: The membership on the Public original match, that the matching comments will become a matter of Debt PRB as described in the Notice is program will be conducted without public record. In this notice, OTS is effective on September 28, 2010. change and that the matching program soliciting comments concerning the has been conducted in compliance with following information collection. FOR FURTHER INFORMATION CONTACT: the original matching program. Angela Jones, Director, Human Title of Proposal: Purchase of Branch ADDRESSES: Written comments may be Office(s) and/or Transfer of Assets/ Resources Division, Office of submitted through http:// Liabilities. Management Services, BPD, (304) 480– www.Regulations.gov; by mail or hand- OMB Number: 1550–0025. 8949. delivery to the Director, Regulations Form Number: N/A. SUPPLEMENTARY INFORMATION: Pursuant Management (02REG), Department of Description: to 5 U.S.C. 4314(c)(4), this Notice Veterans Affairs, 810 Vermont Ave., announces the appointment of the NW., Room 1068, Washington, DC The information for a Purchase of following primary and alternate 20420; or by fax to (202) 273–9026. Branch Office(s) and/or Transfer of members to the Public Debt PRB: Copies of comments received will be Assets/Liabilities application is to Primary Members: available for public inspection in the provide the OTS with the information Anita Shandor, Deputy Commissioner, Office of Regulation Policy and necessary to determine if the request Management, Room 1063B, between the should be approved. It allows for OTS Office of the Commissioner, BPD Kimberly A. McCoy, Assistant hours of 8 a.m. and 4:30 p.m. Monday evaluation of supervisory, accounting, through Friday (except holidays). Please and legal issues related to these Commissioner, Office of Information Technology, BPD. call (202) 461–4902 for an appointment. transaction types. If the information In addition, during the comment period, Cynthia Z. Springer, Executive Director, were not collected, OTS would not be comments may be viewed online Administrative Resource Center, BPD. able to properly evaluate whether the through the Federal Docket Management proposed transaction meets applicable Alternate Members: System (FDMS) at http:// criteria. Dara Seaman, Assistant Commissioner, www.Regulations.gov. Type of Review: Extension of a Office of Financing, BPD. currently approved collection. FOR FURTHER INFORMATION CONTACT: Affected Public: Businesses or other Van Zeck, Pamela Burd (212B), (202) 461–9149. for-profit. Commissioner. SUPPLEMENTARY INFORMATION: VA will Estimated Number of Respondents: [FR Doc. 2010–24267 Filed 9–27–10; 8:45 am] use this information to verify the 40. BILLING CODE 4810–39–P income information submitted by

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00122 Fmt 4703 Sfmt 4703 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59801

income dependent beneficiaries and The VA records involved in the match In accordance with Title 5 U.S.C., adjust VA benefit payments as are the VA system of records, subsection 552a(o)(2) and (r), copies of prescribed by law. The proposed Compensation, Pension and Education the agreement are being sent to both matching program will enable VA to and Vocational Rehabilitation and Houses of Congress and to the Office of accurately identify beneficiaries who are Employment Records—VA (58 VA 21/ Management and Budget. This notice is in receipt of RRB benefits and have not 22/28), published at 74 FR 29275, June provided in accordance with the reported the income as required by law. 19, 2009. The RRB records consist of provisions of Privacy Act of 1974 as The legal authority to conduct this information from the system of records amended by Public Law 100–503. match is 38 U.S.C. 5106, which requires identified as the RRB Research File of any Federal department or agency to Approved: September 10, 2010. Retirement and Survivor Benefits, provide VA such information as VA John R. Gingrich, requests for the purposes of determining System of Records RRB–25 and RRB–26 contained in the Privacy Act Issuances, Chief of Staff, Department of Veterans Affairs. eligibility for, or the amount of VA [FR Doc. 2010–24269 Filed 9–27–10; 8:45 am] benefits, or verifying other information 1991 compilation, Volume V, pages BILLING CODE 8320–01–P with respect thereto. 518—519.

VerDate Mar<15>2010 15:22 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00123 Fmt 4703 Sfmt 9990 E:\FR\FM\28SEN1.SGM 28SEN1 srobinson on DSKHWCL6B1PROD with NOTICES Tuesday, September 28, 2010

Part II

Department of the Interior Fish and Wildlife Service

50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Determination for the Gunnison Sage-grouse as a Threatened or Endangered Species; Proposed Rule

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 59804 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

DEPARTMENT OF THE INTERIOR Information Relay Service (FIRS) at 2339, D. D.C.). Therefore, we did not 800–877–8339. need to respond to the petition. Fish and Wildlife Service SUPPLEMENTARY INFORMATION: In the 2003 CNOR, we elevated the listing priority number for Gunnison 50 CFR Part 17 Background sage-grouse from 5 to 2 (69 FR 24876; Section 4(b)(3)(A) of the Act (16 May 4, 2004), as the imminence of the [DOCKET NO. FWS-R6-ES-2009-0080] U.S.C. 1531 et seq.) requires that, for threats had increased. In the subsequent MO 92210-0-0008 any petition to revise the Federal Lists CNOR (70 FR 24870; May 11, 2005), we of Threatened and Endangered Wildlife maintained the listing priority number Endangered and Threatened Wildlife and Plants that contains substantial for Gunnison sage-grouse as a 2. A and Plants; Determination for the scientific or commercial information listing priority number of 2 is assigned Gunnison Sage-grouse as a that listing a species may be warranted, to species with high magnitude threats Threatened or Endangered Species we make a finding within 12 months of that are imminent. the date of receipt of the petition. In this Plaintiffs amended their complaint in AGENCY: Fish and Wildlife Service, finding, we determine whether the May 2004, to allege that the Service’s Interior. petitioned action is: (a) Not warranted, warranted but precluded finding and ACTION: Notice of the results of a status (b) warranted, or (c) warranted, but decision not to emergency list the review. immediate proposal of a regulation Gunnison sage-grouse were in violation implementing the petitioned action is of the Act. The parties filed a stipulated SUMMARY: We, the U.S. Fish and precluded by other pending proposals to settlement agreement with the court on Wildlife Service (Service), announce our determine whether species are November 14, 2005, which included a 12–month finding on whether to list the threatened or endangered, and provision that the Service would make Gunnison sage-grouse (Centrocercus expeditious progress is being made to a proposed listing determination by minimus) as threatened or endangered add or remove qualified species from March 31, 2006. On March 28, 2006, the under the Endangered Species Act of the Federal Lists of Endangered and plaintiffs agreed to a one-week 1973, as amended (Act). After reviewing Threatened Wildlife and Plants. Section extension (April 7, 2006) for this the best available scientific and 4(b)(3)(C) of the Act requires that we determination. commercial information, we find that treat a petition for which the requested In April 2005, the Colorado Division the species is warranted for listing. action is found to be warranted but of Wildlife (CDOW) applied to the Currently, however, listing the precluded as though resubmitted on the Service for an Enhancement of Survival Gunnison sage-grouse is precluded by date of such finding, that is, requiring a Permit for the Gunnison sage-grouse higher priority actions to amend the subsequent finding to be made within pursuant to section 10(a)(1)(A) of the Lists of Endangered and Threatened 12 months. We must publish these 12– Act. The permit application included a Wildlife and Plants. Upon publication month findings in the Federal Register. proposed Candidate Conservation of this 12-month finding, we will add Agreement with Assurances (CCAA) the Gunnison sage-grouse to our Previous Federal Actions between CDOW and the Service. The candidate species list. We will develop On January 18, 2000, we designated standard that a CCAA must meet is that a proposed rule to list this species as the Gunnison sage-grouse as a candidate the ‘‘benefits of the conservation our priorities allow. We will make any species under the Act, with a listing measures implemented under a CCAA, determination on critical habitat during priority number of 5. However, when combined with those benefits that development of the proposed listing Candidate Notices of Review (CNOR) would be achieved if it is assumed that rule. are only published annually; therefore, conservation measures were also to be the Federal Register notice regarding implemented on other necessary DATES: The determination announced in this document was made on September this decision was not published until properties, would preclude or remove any need to list the species.’’ The CCAA, 28, 2010. December 28, 2000 (65 FR 82310). Candidate species are plants and the permit application, and the ADDRESSES: This finding is available on animals for which the Service has Environmental Assessment were made the Internet at http:// sufficient information on their available for public comment on July 6, www.regulations.gov at Docket Number biological status and threats to propose 2005 (70 FR 38977). The CCAA and FWS-R6-ES-2009-0080. Supporting them as endangered or threatened under Environmental Assessment were documentation we used in preparing the Act, but for which the development finalized in October 2006, and the this finding is available for public of a proposed listing regulation is associated permit was issued on October inspection, by appointment, during precluded by other higher priority 23, 2006. Landowners with eligible normal business hours at the U.S. Fish listing activities. A listing priority of 5 property in southwestern Colorado who and Wildlife Service, Western Colorado is assigned to species with high wish to participate can voluntarily sign Ecological Services Field Office, U.S. magnitude threats that are non- up under the CCAA and associated Fish and Wildlife Service, 764 Horizon imminent. permit through a Certificate of Inclusion Drive, Building B, Grand Junction, On January 26, 2000, American Lands by providing habitat protection or Colorado 81506-3946. Please submit any Alliance, Biodiversity Legal Foundation, enhancement measures on their lands. If new information, materials, comments, and others petitioned the Service to list the Gunnison sage-grouse is listed under or questions concerning this finding to the Gunnison sage-grouse (Webb 2000, the Act, the permit authorizes incidental the above address. pp. 94-95). In 2003, the U.S. District take of Gunnison sage-grouse due to FOR FURTHER INFORMATION CONTACT: Court ruled that the species was otherwise lawful activities in Allan Pfister, Western Colorado designated as a candidate by the Service accordance with the terms of the CCAA Supervisor (see ADDRESSES section); by prior to receipt of the petition, and that (e.g., crop cultivation, crop harvesting, telephone at (970) 243-2778 ext. 29; or the determination that a species should livestock grazing, farm equipment by facsimile at (970) 245-6933. If you be on the candidate list is equivalent to operation, commercial/residential use a telecommunications device for the a 12-month finding (American Lands development, etc.), as long as the deaf (TDD), please call the Federal Alliance v. Gale A. Norton, C.A. No. 00- participating landowner is performing

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59805

activities identified in the Certificate of Biology and Ecology of Gunnison Sage- as a distinct species. The current ranges Inclusion. Four Certificates of Inclusion grouse of the two species do not overlap (Schroeder et al. 2004, p. 369). Due to have been issued by the CDOW and Gunnison Sage-grouse Species the several lines of evidence separating Service to private landowners to date. Description the two species cited above, we On April 11, 2006, the Service Sage-grouse are the largest grouse in determined that the best available determined that listing the Gunnison North America. Sage-grouse (both information indicates that the Gunnison sage-grouse as a threatened or greater and Gunnison) are most easily sage-grouse is a valid taxonomic species endangered species was not warranted identified by their large size, dark and a listable entity under the Act. and published the final listing brown color, distinctive black bellies, determination in the Federal Register long pointed tails, and association with Life History Characteristics on April 18, 2006 (71 FR 19954). sagebrush habitats. They are dimorphic Gunnison and greater sage-grouse Consequently, we removed Gunnison in size, with females being smaller. Both depend on a variety of shrub-steppe sage-grouse from the candidate species sexes have yellow-green eye combs, habitats throughout their life cycle and list at the time of the final listing which are less prominent in females. are considered obligate users of several determination. On November 14, 2006, Sage-grouse are known for their species of sagebrush (Patterson 1952, p. Plaintiffs (the County of San Miguel, elaborate mating ritual where males 42; Braun et al. 1976, p. 168; Schroeder Colorado; Center for Biological congregate on strutting grounds called et al. 1999, pp. 4-5; Connelly et al. Diversity; WildEarth Guardians; Public leks and ‘‘dance’’ to attract a mate. 2000a, pp. 970-972; Connelly et al. Employees for Environmental During the breeding season, males have 2004, p. 4-1, Miller et al. in press, p. 10). Responsibility; National Audubon conspicuous filoplumes (specialized Dietary requirements of the two species Society; The Larch Company; Center for erectile feathers on the neck), and are also similar, being composed of exhibit yellow-green apteria (fleshy bare nearly 100 percent sagebrush in the Native Ecosystems; Sinapu; Sagebrush patches of skin) on their breasts winter, and forbs and insects as well as Sea Campaign; Black Canyon Audubon (Schroeder et al. 1999, p. 2, 18). sagebrush in the remainder of the year Society; and Sheep Mountain Alliance) Gunnison sage-grouse are smaller in (Wallestad et al. 1975, p. 21; Schroeder filed a Complaint for Declaratory and size, have more white barring in their et al. 1999, p. 5; Young et al. 2000, p. Injunctive relief, pursuant to the Act, tail feathers, and have more filoplumes 452). Gunnison and greater sage-grouse and on October 24, 2007, filed an than greater sage-grouse. do not possess muscular gizzards and, amended Complaint for Declaratory and Since Gunnison and greater sage- therefore, lack the ability to grind and Injunctive relief, alleging that the 12– grouse were only recognized as separate digest seeds (Leach and Hensley 1954, month finding on the Gunnison sage- species in 2000, the vast majority of the p. 389). grouse violated the Act. On August 18, research relative to the biology and In addition to serving as a primary 2009, a stipulated settlement agreement management of the two species has been year-round food source, sagebrush also and Order was filed with the court, with conducted on greater sage-grouse. provides cover for nests (Connelly et al. a June 30, 2010, date by which the Gunnison sage-grouse and greater sage- 2000a, pp. 970-971). Thus, sage-grouse Service shall submit to the Federal grouse have similar life histories and distribution is strongly correlated with Register a 12–month finding, pursuant habitat requirements (Young 1994, p. the distribution of sagebrush habitats to 16 U.S.C. § 1533(b)(3)(B), that listing 44). In this finding, we use information (Schroeder et al. 2004, p. 364). Connelly the Gunnison sage-grouse under the Act specific to the Gunnison sage-grouse et al. (2000a, p. 970-972) segregated is (a) warranted; (b) not warranted; or (c) where available but still apply scientific habitat requirements into four seasons: (1) breeding (2) summer - late brood- warranted but precluded by higher management principles found relevant for greater sage-grouse to Gunnison rearing (3) fall and (4) winter. priority listing actions. We published a sage-grouse management needs and Depending on habitat availability and notice of intent to conduct a status strategies, a practice followed by the proximity, some seasonal habitats may review of Gunnison sage-grouse on wildlife agencies that have be indistinguishable. The Gunnison November 23, 2009 (74 Fr 61100). The responsibility for management of both Sage-grouse Rangewide Steering Court approved an extension of the June species and their habitat. Committee (GSRSC) (2005, p. 27-31) 30, 2010, deadline for the 12–month segregated habitat requirements into finding to September 15, 2010. Taxonomy three seasons: (1) breeding (2) summer– Gunnison sage-grouse and greater Additional Special Status late fall and (3) winter. For purposes of sage-grouse are members of the this finding, the seasons referenced in Considerations Phasianidae family. For many years, GSRSC (2005) are used because that The Gunnison sage-grouse has an sage-grouse were considered a single publication deals specifically with International Union for Conservation of species. Gunnison sage-grouse Gunnison sage-grouse. Nature (IUCN) Red List Category of (Centrocercus minimus) were identified Sage-grouse exhibit strong site fidelity ‘‘endangered’’ (Birdlife International as a distinct species based on (loyalty to a particular area) to seasonal 2009). NatureServe currently ranks the morphological (Hupp and Braun 1991, habitats, which includes breeding, pp. 257-259; Young et al. 2000, pp. 447- nesting, brood rearing, and wintering Gunnison sage-grouse as G1—Critically 448), genetic (Kahn et al. 1999, pp. 820- areas, even when the area is no longer Imperiled (Nature Serve 2010, entire). 821; Oyler-McCance et al. 1999, pp. of value (Connelly et al. 2004, p. 3-1). The Gunnison sage-grouse is on the 1460-1462), and behavioral (Barber Adult sage-grouse rarely switch among National Audubon Society’s WatchList 1991, pp. 6-9; Young 1994; Young et al. these habitats once they have been 2007 Red Category which is ‘‘for species 2000, p. 449-451) differences and selected, limiting their adaptability to that are declining rapidly or have very geographical isolation (Young et al. changes. Sage-grouse distribution is small populations or limited ranges, and 2000, pp. 447-451). Based on these associated with sagebrush (Schroeder et face major conservation threats.’’ differences, the American al. 2004 p. 364), although sagebrush is Ornithologist’s Union (2000, pp. 849- more widely distributed than sage- 850) accepted the Gunnison sage-grouse grouse because sagebrush does not

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 59806 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

always provide suitable habitat due to (Schroeder 1997, p. 939). However, p. 38), and successful nests were found fragmentation and degradation adult male sage-grouse demonstrate in higher shrub density and greater forb (Schroeder et al. 2004, pp. 369, 372). strong yearly fidelity to lek sites and grass cover than unsuccessful nests Very little of the extant sagebrush in (Patterson 1952, p. 91; Dalke 1963 et al., (Young 1994, p. 39). The understory of North America is undisturbed, with up pp. 817-818), and some Gunnison sage- productive sage-grouse nesting areas to 50 to 60 percent having altered grouse leks have been used since the contains native grasses and forbs, with understories (forb and grass vegetative 1950s (Rogers 1964, pp. 35-40). horizontal and vertical structural composition under the sagebrush) or The pre-laying period is from late- diversity that provides an insect prey having been lost to direct conversion March to April. Pre-laying habitats for base, herbaceous forage for pre-laying (Knick et al. 2003, p. 612 and references sage-grouse need to provide a diversity and nesting hens, and cover for the hen therein). Mapping altered and depleted of vegetation including forbs that are while she is incubating (Schroeder et al. understories is challenging, particularly rich in calcium, phosphorous, and 1999, p. 11; Connelly et al. 2000a, p. in semi-arid regions, so maps depicting protein to meet the nutritional needs of 971; Connelly et al. 2004, pp. 4-5–4-8). only sagebrush as a dominant cover type females during the egg development Shrub canopy and grass cover provide are deceptive in their reflection of period (Barnett and Crawford 1994, p. concealment for sage-grouse nests and habitat quality and, therefore, use by 117; Connelly et al. 2000a, p. 970). young, and are critical for reproductive sage-grouse (Knick et al. 2003, p. 616 During the pre-egg laying period, female success (Barnett and Crawford 1994, pp. and references therein). As such, sage-grouse select forbs that generally 116-117; Gregg et al. 1994, pp. 164-165; variations in the quality of sagebrush have higher amounts of calcium and DeLong et al. 1995, pp. 90-91; Connelly habitats for sage-grouse (from either crude protein than sagebrush (Barnett et al. 2004, p. 4-4). Few herbaceous abiotic or anthropogenic events) are and Crawford 1994, p. 117). plants are growing in April when better reflected by sage-grouse Nesting occurs from mid-April to nesting begins, so residual herbaceous distribution and densities, rather than June. Average earliest nest initiation cover from the previous growing season by broad geographic scale maps of the was April 30, and the average latest nest is critical for nest concealment in most distribution of sagebrush. initiation was May 19, in the western areas (Connelly et al. 2000a, p. 977). Sage-grouse exhibit a polygamous portion of the Gunnison Basin (Childers Nesting success for Gunnison sage- mating system where a male mates with 2009, p. 3). Radio-tracked Gunnison grouse is highest in areas where forb several females. Males perform sage-grouse nest an average of 4.3 and grass covers are found below a courtship displays and defend their leks kilometers (km ) (2.7 miles (mi)) from sagebrush canopy cover of 15 to 30 (Patterson 1952, p. 83). Lek displaying the lek nearest to their capture site, with percent (Young et al. 2000, p. 451). occurs from mid-March through late almost half nesting within 3 km (2 mi) These numbers are comparable to those May, depending on elevation (Rogers of their capture site (Young 1994, p. 37). reported for the greater sage-grouse 1964, p. 21; Young et al. 2000, p. 448). Nest sites are selected independent of (Connelly et al. 2000a, p. 971). Nest Numerous researchers have observed lek locations, but the reverse is not true success for greater sage-grouse is that a relatively small number of (Bradbury et al. 1989, p. 22; Wakkinen greatest where grass cover is present dominant males account for the majority et al. 1992, p. 382). Thus, leks are (Connelly et al. 2000a, p. 971). Because of copulations on each lek (Schroeder et indicative of nesting habitat. Eighty- of the similarities between these two al. 1999, p. 8). However, an average of seven percent of all Gunnison sage- species, we believe that increased nest 45.9 percent (range 14.3 to 54.5 percent) grouse nests were located less than 6 km success in areas of forb and grass cover of genetically identified males in a (4 mi) from the lek of capture (Apa below the appropriate sagebrush canopy population fathered offspring in a given 2004, p. 21). While earlier studies cover is likely the case for Gunnison year (Bush 2009, p. 106). This more indicated that most greater sage-grouse sage-grouse as well. recent work suggests that males and hens nest within 3 km (2 mi) of a lek, Mean clutch size for Gunnison sage- females likely engage in off-lek more recent research indicated that grouse is 6.8 ± 0.7 eggs (Young 1994, p. copulations. Males do not incubate eggs many hens actually move much further 37). The mean clutch size for Gunnison or assist in chick rearing. from leks to nest based on nesting sage-grouse in the Gunnison Basin was Lek sites can be located on areas of habitat quality (Connelly et al. 2004, p. 6.3, with 94 percent of eggs in bare soil, wind-swept ridges, exposed 4-4). Female greater sage-grouse have successful nests hatching (Childers knolls, low sagebrush, meadows, and been documented to travel more than 20 2009, p. 3). Despite average clutch sizes other relatively open sites with good km (13 mi) to their nest site after mating of 7 eggs (Connelly et al. in press, p. 15), visibility and low vegetation structure (Connelly et al. 2000a, p. 970). Female little evidence exists that populations of (Connelly et al. 1981, pp. 153-154; Gates Gunnison sage-grouse exhibit strong sage-grouse produce large annual 1985, pp. 219-221; Klott and Lindzey fidelity to nesting locations (Young surpluses (Connelly et al. in press, p. 15, 1989, pp. 276-277; Connelly et al. 2004, 1994, p. 42; Lyon 2000, p. 20, Connelly 24). The inability of sage-grouse to pp. 3-7 and references therein). In et al. 2004, p. 4-5; Holloran and produce large annual surpluses limits addition, leks are usually located on flat Anderson 2005, p. 747). The degree of their ability to respond under favorable to gently sloping areas of less than 15 fidelity to a specific nesting area environmental conditions to make up percent grade (Patterson 1952, p. 83; appears to diminish if the female’s first for population declines. Re-nesting rates Giezentanner and Clark 1974, p. 218; nest attempt in that area was following the loss of the original nest Wallestad 1975, p. 17; Autenrieth 1981, unsuccessful (Young 1994, p. 42). appear very low in Gunnison sage- p. 13). Leks are often surrounded by However, there is no statistical grouse, with one study reporting re- denser shrub-steppe cover, which is indication that movement to new nesting rates of 4.8 percent (Young used for escape, and thermal and nesting areas results in increased 1994, p. 37). Only one instance of re- feeding cover. Leks can be formed nesting success (Connelly et al. 2004, p. nesting was observed over a 5–year opportunistically at any appropriate site 3-6; Holloran and Anderson 2005, p. period during which a total of 91 within or adjacent to nesting habitat 748). nesting Gunnison sage-grouse hens were (Connelly et al. 2000a, p. 970). Lek Gunnison sage-grouse typically select monitored (Childers 2009, p. 3). habitat availability is not considered to nest sites under sagebrush cover with Most sage-grouse eggs hatch in June, be a limiting factor for sage-grouse some forb and grass cover (Young 1994, with a peak between June 10 and June

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59807

20 (GSRSC, 2005, p. 24). Chicks are 79-81). However, broods in the Basin in 1984, less than 10 percent of precocial (mobile upon hatching) and Gunnison Basin typically do not use hay the sagebrush was exposed above the leave the nest with the hen shortly after meadows further away than 50 meters snow and available to sage-grouse hatching. Forbs and insects are essential (m) (165 feet (ft)) of the edge of (Hupp, 1987, pp. 45-46). In these nutritional components for sage-grouse sagebrush stands (Colorado Sage Grouse conditions, the tall and vigorous chicks (Klebenow and Gray 1968, pp. Working Group (CSGWG) 1997, p. 13). sagebrush typical in drainages was an 81-83; Peterson 1970, pp. 149-151; As fall approaches, sage-grouse move especially important food source. Johnson and Boyce 1991, p. 90; from riparian to upland areas and start Sage-grouse typically live between 3 Connelly et al. 2004, p. 3-3). Therefore, to shift to a winter diet (GSRSC 2005, and 6 years, but individuals up to 9 early brood-rearing habitat for females p. 25). Movements to winter ranges are years of age have been recorded in the with chicks must provide adequate slow and meandering (Connelly et al. wild (Connelly et al. 2004, p. 3-12). cover adjacent to areas rich in forbs and 1988, p. 119). The extent of movement Adult female Gunnison sage-grouse insects to assure chick survival during varies with severity of winter weather, apparent survival rates from April this period (Connelly et al. 2000, p. 971; topography, and vegetation cover. Sage- through September averaged 57 percent, Connelly et al. 2004, p. 4-11). Gunnison grouse may travel short distances or and adult male survival averaged 45 sage-grouse chick dietary requirements many miles between seasonal ranges. In percent (Childers 2009, p. 2). From of insects and forbs also are expected to response to severe winters, Gunnison October through March, adult female be similar to greater sage-grouse and sage-grouse move as far as 27 km (17 mi) Gunnison sage-grouse apparent survival other grouse species (Apa 2005, pers. (Root 2002, p. 14). Flock size in winter rates averaged 79 percent, and adult comm.). is variable (15 to 100+), and flocks male survival averaged 96 percent The availability of food and cover are frequently consist of a single sex (Beck (Childers 2009, p.2). In one study, key factors that affect chick and juvenile 1977, p. 21). Gunnison sage-grouse survival from survival. During the first 3 weeks after From late autumn through early April 2002 through March 2003 was 48 hatching, insects are the primary food of spring, greater and Gunnison sage- (± 7) percent for males and 57 (± 7) chicks (Patterson 1952, p. 201; grouse diet is almost exclusively percent for females (Apa 2004, p. 22). Klebenow and Gray 1968, p. 81; sagebrush (Rasmussen and Griner 1938, Preliminary results from the Gunnison Peterson 1970, pp. 150-151; Johnson p. 855; Batterson and Morse 1948, p. 20; and San Miguel populations indicate and Boyce 1990, pp. 90-91; Johnson and Patterson 1952, pp. 197-198; Wallestad potential important temporal and spatial Boyce 1991, p. 92; Drut et al. 1994b, p. et al. 1975, pp. 628-629; Young et al. variation in demographic parameters, 93; Pyle and Crawford 1996, p. 320; 2000, p. 452). Many species of with apparent annual adult survival Fischer et al. 1996a, p. 194). Diets of 4- sagebrush can be consumed (Remington rates ranging from approximately 65 to to 8-week-old greater sage-grouse chicks and Braun 1985, pp. 1056-1057; Welch 80 percent (CDOW 2009a, p. 8). were found to have more plant material et al. 1988, p. 276, 1991; Myers 1992, p. Gunnison sage-grouse female survival in as the chicks matured (Peterson 1970, p. 55). Characteristics of sage-grouse small isolated populations was 52 (± 8) 151). Succulent forbs are predominant winter habitats are also similar through percent, compared to 71 (± 11) percent in the diet until chicks exceed 3 months the range of both species (Connelly et al. survival in the Gunnison Basin, the only of age, at which time sagebrush becomes 2000a, p. 972). In winter, Gunnison population with greater than 500 a major dietary component (Klebenow sage-grouse are restricted to areas of 15 individuals (Apa 2004, p. 22). Higher 1969, pp. 665-656; Connelly and to 30 percent sagebrush cover, similar to adult survival has been observed in a Markham 1983, pp. 171-173; Fischer et the greater sage-grouse (Connelly et al. lower elevation and warmer area (Dry al. 1996b, p. 871; Schroeder et al. 1999, 2000a, p. 972; Young et al. 2000, p. 451). Creek Basin of the San Miguel p. 5). However, they may also use areas with population – 90 percent) than in a Early brood-rearing habitat is found more deciduous shrubs during the higher elevation and colder, snowier, close to nest sites (Connelly et al. 2000a, winter (Young et al. 2000, p. 451). area (Miramonte portion of the San p. 971), although individual females Sagebrush stand selection in winter is Miguel population – 65 percent) (CDOW with broods may move large distances influenced by snow depth (Patterson 2009a, p.8). Other factors affecting (Connelly 1982, as cited in Connelly et 1952, pp. 188-189; Connelly 1982 as survival rates include climatic al. 2000a, p. 971). Young (1994, pp. 41- cited in Connelly et al. 2000a, p. 980) differences between years and age 42) found that Gunnison sage-grouse and in some areas, topography (Beck (Zablan 1993, pp. 5-6). with broods used areas with lower 1977, p. 22; Crawford et al. 2004, p. 5). Apparent chick survival from hatch to slopes than nesting areas, high grass and Winter areas are typically characterized the beginning of fall (30 September) forb cover, and relatively low sagebrush by canopy cover greater than 25 percent averaged 7 percent over a 5–year period cover and density. Broods frequently and sagebrush greater than 30 to 41 cm in the western portion of the Gunnison used the edges of hay meadows, but (12 to 16 in) tall (Shoenberg 1982, p. 40) Basin (Childers 2009, pp. 4-6). Apparent were often flushed from areas found in associated with drainages, ridges, or chick survival to 90 days of age has interfaces of wet meadows and habitats southwest aspects with slopes less than ranged from approximately 15 to 30 providing more cover, such as sagebrush 15 percent (Beck 1977, p. 22). Lower flat percent in the Gunnison Basin, with no or willow-alder (Salix-Alnus). areas and shorter sagebrush along ridge juvenile recruitment observed over By late summer and into the early fall, tops provide roosting areas. In extreme several years in the San Miguel individuals become more social, and winter conditions, greater sage-grouse population (CDOW 2009a, p. 8). Based flocks are more concentrated (Patterson will spend nights and portions of the on a review of many field studies, 1952, p. 187). Intermixing of broods and day burrowed into ‘‘snow burrows’’ juvenile survival rates range from 7 to flocks of adult birds is common, and the (Back et al. 1987, p. 488). 60 percent (Connelly et al. 2004, p. 3- birds move from riparian areas to Hupp and Braun (1989, p. 825) found 12). The variation in juvenile survival sagebrush-dominated landscapes that that most Gunnison sage-grouse feeding rates may be associated with sex, continue to provide green forbs. During activity in the winter occurred in weather, harvest rates (no harvesting of this period, Gunnison sage-grouse can drainages and on slopes with south or Gunnison sage-grouse is currently be observed in atypical habitat such as west aspects in the Gunnison Basin. permitted), age of brood female (broods agricultural fields (Commons 1997, pp. During a severe winter in the Gunnison with adult females have higher

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 59808 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

survival), and with habitat quality (rates southwestern Kansas and western provide water storage and, to a certain decrease in poor habitats) (Schroeder et Oklahoma are not considered within the extent, facilitate agricultural activities al. 1999, p. 14; Connelly et al., in press, historic range of Gunnison sage-grouse that maintain the fragmentation and p. 20). (Schroeder et al. 2004, p. 371). habitat lost historically throughout the Greater sage-grouse require large, The GSRSC (2005) modified the range of Gunnison sage-grouse. interconnected expanses of sagebrush historic range from Schroeder et al. In summary, a substantial amount of with healthy, native understories (2004), based on more complete sagebrush habitat within the range of (Patterson 1952, p. 9; Knick et al. 2003, information on historic and current the Gunnison sage-grouse had been lost p. 623; Connelly et al. 2004, pp. 4-15; habitat and the distribution of the prior to 1960. The majority of the Connelly et al. in press, p. 10; Pyke in species (GSRSC 2005, pp. 34-35). Based remaining habitat is highly fragmented, press, p. 7; Wisdom et al. in press, p. 4). on this information, the maximum although to a lesser extent in the However, little information is available Gunnison sage-grouse historical Gunnison Basin than in the remainder regarding minimum sagebrush patch (presettlement) range is estimated to of the species habitat. sizes required to support populations of have been 55,350 square kilometers Current Distribution and Population greater or Gunnison sage-grouse. (km2) (21,370 square miles (mi2)) Estimates Gunnison sage-grouse have not been (GSRSC 2005, p. 32). To be clear, only observed to undertake the large seasonal a portion of the historical range would The historic and current geographic and annual movements observed in have been occupied at any one time, ranges of Gunnison’s and greater sage- greater sage-grouse. However, while all of the current range is grouse were quantitatively analyzed to movements of up to 24 km (15 mi) have considered occupied. Also, we do not determine the species’ response to been observed in individual Gunnison know what portion of the historical habitat loss and detrimental land uses sage-grouse in the Gunnison Basin range was simultaneously occupied, or (Wisdom et al., in press, 2009, entire). population only (Phillips 2010, pers. what the total population was. A broad spectrum of biotic, abiotic, and comm.). Much of what was once Gunnison anthropogenic conditions were found to Sage-grouse typically occupy large sage-grouse sagebrush habitat was be significantly different between expanses of sagebrush-dominated already lost prior to 1958. A qualitative extirpated and occupied ranges habitats composed of a diversity of decrease in sagebrush was attributed to (Wisdom et al., in press, 2009, p. 1.). sagebrush species and subspecies. Use overgrazing from the 1870s until about Sagebrush area is one of the best of other habitats intermixed with 1934 (Rogers 1964, p. 13). Additional landscape predictors of sage-grouse sagebrush, such as riparian meadows, adverse effects occurred as a result of persistence (Wisdom et al., in press, agricultural lands, steppe dominated by newer range management techniques 2009, p. 17 and references therein). native grasses and forbs, scrub willow implemented to support livestock by the Because of the loss and fragmentation of (Salix spp.), and sagebrush habitats with Bureau of Land Management (BLM), habitat within its range, no expansive, some conifer or quaking aspen (Populus Soil Conservation Service, and U.S. contiguous areas that could be tremuloides), is not uncommon Forest Service (USFS) (Rogers 1964, p. considered strongholds (areas of (Connelly et al 2004, p. 4-18 and 13). In the 1950s, large areas of occupied range where the risk of references therein). Sage-grouse have sagebrush within the range of Gunnison extirpation appears low) are evident for been observed using human-altered sage-grouse were eradicated by Gunnison sage-grouse (Wisdom et al., in habitats throughout their range. herbicide spraying or burning (Rogers press, 2009, p. 24). We do not know the However, the use of non-sagebrush 1964, pp. 12-13, 22-23, 26). minimum amount of sagebrush habitat habitats by sage-grouse is dependent on About 155,673 hectares (ha) (384,676 needed by Gunnison sage-grouse to the presence of sagebrush habitats in ac) of sagebrush habitat was lost from ensure long-term persistence. However, close proximity (Connelly et a.lal 2004, 1958 to 1993 within southwestern based on Wisdom et al., in press, we do p. 4-18 and references therein). Colorado (Oyler-McCance et al. 2001, p. know that landscapes containing large 327). Sagebrush loss was lower in the and contiguous sagebrush patches and Historic Range and Distribution of Gunnison Basin (11 percent) compared sagebrush patches in close proximity Gunnison Sage-grouse to all other areas in southwestern increase the likelihood of sage-grouse Based on historical records, museum Colorado (28 percent) (Oyler-McCance persistence. specimens, and potential habitat et al. 2001, p. 328). Considerable Gunnison sage-grouse currently occur distribution, Gunnison sage-grouse fragmentation of sagebrush vegetation in seven widely scattered and isolated historically occurred in southwestern was also quantitatively documented populations in Colorado and Utah, Colorado, northwestern New Mexico, during that same time period (Oyler- occu2pying 3,795 km2 (1,511mi2) northeastern Arizona, and southeastern McCance et al. 2001, p. 329). Sage- (GSRSC 2005, pp. 36-37; CDOW 2009b, Utah (Schroeder et al. 2004, pp. 370- grouse habitat in southwestern Colorado p. 1). The seven populations are 371). Accounts of Gunnison sage-grouse (the majority of the range of Gunnison Gunnison Basin, San Miguel Basin, in Kansas and Oklahoma, as suggested sage-grouse) has been more severely Monticello–Dove Creek, Pı˜non Mesa, by Young et al. (2000, pp. 446-447), are impacted than sagebrush habitat Crawford, Cerro Summit–Cimarron– not supported with museum specimens, elsewhere in Colorado. Sims Mesa, and Poncha Pass (Figure 1). and Schroeder et al. (2004, p. 371) The Colorado River Storage Project A comparative summary of the land found inconsistencies with the (CRSP) resulted in construction of three ownership and recent population historical records and the sagebrush reservoirs within the Gunnison Basin in estimates among these seven habitat currently available in those the mid-late 1960s (Blue Mesa and populations is presented in Table 1 and areas. Applegate (2001, p. 241) found Morrow) and mid-1970s (Crystal). Table 2, respectively. Population trends that none of the sagebrush species Several projects associated with CRSP over the last nine years indicate that six closely associated with sage-grouse were constructed in this same general of the populations are in decline. The occurred in Kansas. He attributed timeframe to provide additional water Gunnison Basin population, while historical, anecdotal reports as mistaken storage and resulted in the loss of an showing variation over the years, has locations or misidentification of lesser unquantified, but likely small, amount been relatively stable through the period prairie chickens. For these reasons, of sagebrush habitat. These projects (CDOW 2009a p. 2). Six of the

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59809

populations are very small and on leks) (CDOW 2009a, p. 5). The San Figure 1. Locations of Current fragmented (all with less than 40,500 ha Miguel population, the second largest, Gunnison Sage-grouse Populations. (100,000 acres) of habitat likely used by comprises six fragmented grouse and less than 50 males counted subpopulations.

TABLE 1. PERCENT SURFACE OWNERSHIP OF TOTAL GUNNISON SAGE-GROUSE OCCUPIEDA HABITAT (FROM GSRSCB 2005, PP. D-3-D-6; CDOWC 2009B, P. 1)

Gunnison Sage-grouse Occupied Habitat Management and Ownership Population hectares acres CO d e f State State of BLM NPS USFS CDOW Land UT Private Board % % % % % % %

Gunnison Basin 239,953 592,936 51 2 14 3 <1 0 29

San Miguel Basin 41,022 101,368 36g 0 1 11 3g 0 49g

Monticello–Dove Creek (Combined) 45,275 111,877 7 0 0 3 0 <1 90

Dove Creek 16,706 41,282 11 0 0 8 0 0 81

Monticello 28,569 70,595 4 0 0 0 0 1 95

Pin˜on Mesa 15,744 38,904 28 0 2 19 0 0 51

Cerro Summit–Cimarron– Sims Mesa 15,039 37,161 13 <1 0 11 0 0 76

Crawford 14,170 35,015 63 12 0 2 0 0 23

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 EP28se10.000 59810 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

TABLE 1. PERCENT SURFACE OWNERSHIP OF TOTAL GUNNISON SAGE-GROUSE OCCUPIEDA HABITAT (FROM GSRSCB 2005, PP. D-3-D-6; CDOWC 2009B, P. 1)—Continued

Gunnison Sage-grouse Occupied Habitat Management and Ownership Population hectares acres CO d e f State State of BLM NPS USFS CDOW Land UT Private Board % % % % % % %

Poncha Pass 8,262 20,415 48 0 26 0 2 0 23

Rangewide 379,464 937,676 42 2 10 5 <1 <1 41 aOccupied Gunnison sage-grouse habitat is defined as areas of suitable habitat known to be used by Gunnison sage-grouse within the last 10 years from the date of mapping, and areas of suitable habitat contiguous with areas of known use, which have no barriers to grouse movement from known use areas (GSRSC 2005, p. 54). bGunnison Sage-grouse Rangewide Steering Committee cColorado Division of Wildlife dBureau of Land Management eNational Park Service fUnited States Forest Service gEstimates reported in San Miguel Basin Gunnison Sage-grouse Conservation Plan (2009 p. 28) vary by up to 2 percent in these categories from those reported here. We consider these differences insignificant.

TABLE 2. GUNNISON SAGE-GROUSE POPULATION ESTIMATES BY YEAR DERIVED FROM THE FORMULA PRESENTED IN THE GUNNISON SAGE-GROUSE RANGEWIDE CONSERVATION PLAN (GSRSCA 2005, PP. 44-45) APPLIED TO HIGH MALE COUNTS ON LEKS (CDOWB 2009A, P. 2).

Estimated Population Year Population 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010

Gunnison Basin 3,493 3,027 2,453 2,443 4,700 5,205 4,616 3,669 3,817 3,655

San Miguel Basin 392 383 250 255 334 378 324 216 162 123

Monticello– Dove Creek (Combined) 363 270 186 162 196 191 245 245 191 n/ac

Monticello 231 172 147 152 162 118 216 216 182 n/ac

Dove Creek 132 98 39 10 34 74 29 29 10 44

Pin˜on Mesa 152 132 123 142 167 152 123 108 78 74

Cerro Summit– Cimarron– Sims Mesa 59 39 29 39 25 49 34 10 39 5

Crawford 137 206 118 128 191 201 113 103 78 20

Poncha Pass 25 44 34 39 44 44 25 25 20 15

Totals 4,621 4,101 3,194 3,208 5,656 6,220 5,480 4,376 4,386 n/ac aGunnison Sage-grouse Rangewide Steering Committee bColorado Division of Wildlife c2010 lek count data for the Monticello group was not available at the time of publication

Gunnison Basin Population – The Elevations in the area range from 2,300 upland vegetation and has a highly Gunnison Basin is an intermontane to 2,900 m (7,500 to 9,500 ft). variable growth form depending on basin that includes parts of Gunnison Approximately 70 percent of the land local site conditions. In 2009, 83 leks and Saguache Counties, Colorado. The area is managed by Federal agencies (67 were surveyed for breeding activity in current Gunnison Basin population is percent) and CDOW (3 percent), and the the Gunnison Basin, and 42 of these leks distributed across approximately remaining 30 percent comprises were active (at least two males in 240,000 ha (593,000 ac), roughly primarily private lands. Big sagebrush attendance during at least two of four centered on the town of Gunnison. (Artemesia tridentata) dominates the 10–day count periods), 6 inactive

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59811

(inactive for at least 5 consecutive around Miramonte Reservoir (GSRSC 2009, 29.21 p. 1). The UDWR estimates years), 9 historic (inactive for at least 10 2005, p. 96). Sagebrush stands there are that Gunnison sage-grouse currently consecutive years), and 26 were of generally contiguous with a mixed grass occupy about 24,000 ha (60,000 ac) in unknown status (variability in counts and forb understory. Occupied habitat at the Monticello area. The 2009 resulted in lek not meeting requirements the Gurley Reservoir area (3,305 ha population estimate for Monticello was for active, inactive, or historic) (CDOW (7,500 ac)) is heavily fragmented by 182 individuals with three active and 2009d, pp. 28-30). Approximately 45 urban development, and the understory one inactive leks (UDWR 2009, p. 5). percent of leks in the Gunnison Basin is a mixed grass and forb community. The Dove Creek subpoulation is occur on private land and 55 percent on Farming attempts in the early 20th located primarily in western Dolores public land, primarily BLM (GSRSC century led to the removal of much of County, Colorado, north and west of 2005, p. 75). The 2010 population the sagebrush, although agricultural Dove Creek, although a small portion of estimate for the Gunnison Basin was activities are now restricted primarily to occupied habitat extends north into San 3,655 (CDOW 2010a, p. 2). Rogers (1964, the seasonally irrigated crops (hay Miguel County. Habitat north of Dove p. 20) stated that Gunnison County was meadows), and sagebrush has Creek is characterized as mountain one of five counties containing the reestablished in most of the failed shrub habitat, dominated by oakbrush majority of sage-grouse in Colorado in pastures. However, grazing pressure and interspersed with sagebrush. The area 1961. The vast majority (87 percent) of competition from introduced grasses west of Dove Creek is dominated by Gunnison sage-grouse are now found have kept the overall sagebrush sagebrush, but the habitat is highly only in the Gunnison Basin population. representation low (GSRSC 2005, pp. fragmented. Lek counts in the Dove San Miguel Basin Population – The 96-97). Sagebrush stands in the Iron Creek area were over 50 males in 1999, San Miguel Basin population is in Springs and Beaver Mesa areas (2,590 ha suggesting a population of about 245 Montrose and San Miguel Counties in and 3,560 ha (6,400 ac and 8,800 ac birds, but declined to 2 males in 2009 Colorado, and is composed of six small respectively)) are contiguous with a (CDOW 2009a, p. 71), suggesting a subpopulations using different areas— mixed grass understory. The Beaver population of 10 birds. A new lek was (Dry Creek Basin, Hamilton Mesa, Mesa area has numerous scattered found in 2010, and the 2010 population Miramonte Reservoir, Gurley Reservoir, patches of oakbrush (Quercus gambelii). estimate was 44 individuals on 2 leks Beaver Mesa, and Iron Springs) Rogers (1964, p. 9) reported that all big (CDOW 2010, p. 1). Low sagebrush occupying a total of approximately sagebrush-dominated habitats in San canopy cover, as well as low grass 41,000 ha (101,000 ac). Some of these Miguel and Montrose Counties were height, exacerbated by drought, may six areas are used year-round by sage- historically used by Gunnison sage- have led to nest failure and subsequent grouse, and others are used seasonally. grouse. population declines (Connelly et al. The overall acreage figure for this The 2010 population estimate for the 2000a, p. 974; Apa 2004, p. 30). Rogers population is heavily skewed by the entire San Miguel Basin was 123 (1964, p. 9) reported that all sagebrush- large percentage (approximately 62 individuals on nine leks (CDOW 20010, dominated habitats in Dolores and percent) of land in the Dry Creek Basin p. 3). With the exception of 2007, Montezuma Counties within Gunnison (San Miguel Basin Gunnison Sage- CDOW has been translocating Gunnison sage-grouse range in Colorado were grouse Working Group 2009, p. 28). The sage-grouse from the Gunnison Basin to historically used by Gunnison sage- Dry Creek Basin area contains some of Dry Creek Basin on a yearly basis since grouse. the poorest habitat and smallest grouse the spring of 2006 (CDOW 2009a, p. Pı˜non Mesa Population – The Pı˜non populations in the San Miguel 133). In the spring of 2006, six Mesa population occurs on the population (San Miguel Basin Gunnison individuals were released near the northwest end of the Uncompahgre sage-grouse Conservation Plan 2009, pp. Desert Lek. An additional two Plateau in Mesa County, about 35 km 28, 36). Gunnison sage-grouse in the San individuals were released in the fall. (22 mi) southwest of Grand Junction, Miguel Basin move widely between Nine individuals were translocated in Colorado. The 2010 population estimate these areas (Apa 2004, p. 29; Stiver and the spring of 2008. An additional 30 for Pı˜non Mesa was 74 (CDOW 2010, p. Gibson 2005, p. 12). The area individuals were translocated in the fall 2). Of the ten known leks, only four encompassed by this population is of 2009. A 40 to 50 percent mortality were active in 2009 (CDOW, 2009a, p. believed to have once served as critical rate has been observed within the first 3). The Pı˜non Mesa area may have migration corridors between year after release, compared to an additional leks, but the high percentage populations to the north (Cerro average annual mortality rate of of private land, a lack of roads, and Summit–Cimarron–Sims Mesa) and to approximately 20 percent for heavy snow cover during spring make the south (Monticello-Dove Creek) (San radiomarked adult sage-grouse (CDOWa locating additional leks difficult. Miguel Basin Gunnison Sage-grouse 2009, p. 9). Gunnison sage-grouse likely occurred Working Group 2009, p. 9). Monticello–Dove Creek Population – historically in all suitable sagebrush Sagebrush habitat in the Dry Creek This population is divided into two habitat in the Pı˜non Mesa area, Basin area is patchily distributed, and disjunct subpopulations of Gunnison including the Dominguez Canyon area the understory is either lacking in grass sage-grouse. Currently, the largest group of the Uncompaghre Plateau, southeast and forb diversity or nonexistent. Where is near the town of Monticello, in San of Pı˜non Mesa proper (Rogers 1964, p. irrigation is possible, private lands in Juan County, Utah. Gunnison sage- 114). Their current distribution has been the southeast portion of Dry Creek Basin grouse in this subpopulation inhabit a substantially reduced from historic are cultivated. Sagebrush habitat on broad plateau on the northeast side of levels to 15,744 ha (38,904 ac) (GSRSC private land has been heavily thinned or the Abajo Mountains, with fragmented 2005, p. 87). removed entirely (GSRSC 2005, p. 96). patches of sagebrush interspersed with Crawford Population – The Crawford Gunnison sage-grouse use the Hamilton large grass pastures and agricultural population of Gunnison sage-grouse is Mesa area (1,940 ha (4,800 ac)) in the fields. The Utah Division of Wildlife in Montrose County, Colorado, about 13 summer, but use of Hamilton Mesa Resources (UDWR) estimated km (8 mi) southwest of the town of during other seasons is unknown. population numbers between 583 and Crawford and north of the Gunnison Gunnison sage-grouse occupy 1,050 individuals in 1972 and between River. Basin big sagebrush (Artemisia approximately 4,700 ha (11,600 ac) 178 and 308 individuals in 2002 (UDWR tridentata tridentata) and black

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 59812 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

sagebrush (A. nova) dominate the mid- Sagebrush in this area is continuous of the species such that the species elevation uplands (GSRSC 2005, p. 62). with little fragmentation; sagebrush warrants listing as endangered or The 2010 population estimate for habitat quality throughout the area is threatened as those terms are defined in Crawford was 20 individuals (CDOW adequate to support the species the Act. 2010, p. 1) in 14,170 ha (35,015 ac) of (Nehring and Apa 2000 p. 25). San Luis The Gunnison Basin contains 87 occupied habitat. Four active leks are Creek runs through the area, providing percent of the current rangewide currently in the Crawford population on a year-round water source and lush, wet Gunnison sage-grouse population and BLM lands in sagebrush habitat adjacent meadow riparian habitat for brood- 62 percent of the area occupied by the to an 11-km (7-mi) stretch of road. This rearing. species. The remaining six populations area represents the largest contiguous A high male count of 3 males was cumulatively and individually have sagebrush-dominated habitat within the made in 2010 (CDOW 2009a, p. 121), substantially smaller population sizes Crawford boundary (GSRSC 2005, p. resulting in an estimated population and occupy substantially less habitat 64). size of 15 for the Poncha Pass than the Gunnison Basin population Cerro Summit–Cimarron–Sims Mesa population (CDOW 2010, p. 3). The only (see Table 2). Population – This population is divided current lek is located on BLM- into two geographically separated administered land. In 1992, a CDOW A. The Present or Threatened subpopulations, both in Montrose effort to simplify hunting restrictions Destruction, Modification, or County, Colorado. The Cerro Summit– inadvertently opened the Poncha Pass Curtailment of Its Habitat or Range Cimarron subpopulation is centered area to sage-grouse hunting, and at least Sagebrush habitats within the range of about 24 km (15 mi) east of Montrose. 30 grouse were harvested from this Gunnison sage-grouse are becoming The habitat consists of 15,039 ha population. Due to declining population increasingly fragmented as a result of (37,161 ac) of patches of sagebrush numbers since the 1992 hunt, CDOW various changes in land uses and the habitat fragmented by oakbrush and translocated 24 additional birds from expansion in the density and irrigated pastures. Five leks are the Gunnison Basin (Nehring and Apa distribution of invasive plant species currently known in the Cerro Summit– 2000, p. 11). In 2001 and 2002, an (Oyler-McCance et al. 2001, pp. 329- Cimarron group, but only one additional 20 and 7 birds, respectively, 330; Schroeder et al. 2004, p. 372). individual was observed on one lek in were moved to Poncha Pass by the Habitat fragmentation is the separation 2010 resulting in a population estimate CDOW (GSRSC 2005, p. 94). or splitting apart of previously of 5 individuals for the population Translocated females have bred contiguous, functional habitat (CDOW 2010, p. 1). Rogers (1964, p. successfully (Apa 2004, pers. comm.), components of a species. Fragmentation 115) noted a small population of sage- and display activity resumed on the can result from direct habitat losses that grouse in the Cimarron River drainage, historic lek in spring 2001. leave the remaining habitat in non- but did not report population numbers. Summary of Information Pertaining to contiguous patches, or from alteration of He noted that lek counts at Cerro the Five Factors habitat areas that render the altered Summit in 1959 listed four individuals. The Sims Mesa area, about 11 km (7 Section 4 of the Act (16 U.S.C. 1533), patches unusable to a species (i.e., mi) south of Montrose, consists of small and implementing regulations (50 CFR functional habitat loss). Functional patches of sagebrush that are heavily 424), set forth procedures for adding habitat losses include disturbances that fragmented by pinyon-juniper, species to the Federal Lists of change a habitat’s successional state or residential and recreational Endangered and Threatened Wildlife remove one or more habitat functions; development, and agriculture. The one and Plants. Under section 4(a)(1) of the physical barriers that preclude use of known lek in Sims Mesa has lacked Act, a species may be determined to be otherwise suitable areas; or activities Gunnison sage-grouse attendance for the endangered or threatened based on any that prevent animals from using suitable last six years, which indicates this of the following five factors: (1) The habitat patches due to behavioral population is likely extirpated (CDOW present or threatened destruction, avoidance. 2009a, p. 43). In 2000, the CDOW modification, or curtailment of its A variety of human developments translocated six Gunnison sage-grouse habitat or range; (2) overutilization for including roads, energy development, from the Gunnison Basin to Sims Mesa commercial, recreational, scientific, or and other factors that cause habitat (Nehring and Apa 2000, p. 12). Rogers educational purposes; (3) disease or fragmentation have contributed to or (1964, p. 95) recorded eight males in a predation; (4) the inadequacy of existing been associated with Gunnison and lek count at Sims Mesa in 1960. We do regulatory mechanisms; or (5) other greater sage-grouse extirpation (Wisdom not know if sage-grouse move between natural or manmade factors affecting its et al. in press, p. 18). Based on a the Cerro Summit–Cimarron and Sims continued existence. In making this quantitative analysis of environmental Mesa subpopulations. finding, information pertaining to the factors most closely associated with Poncha Pass Population – The Poncha Gunnison sage-grouse, in relation to the extirpation, no strongholds (areas where Pass Gunnison sage-grouse population five factors provided in section 4(a)(1) of the risk of Gunnison sage-grouse is located in Saguache County, the Act, is discussed below. extirpation is low) exist (Wisdom et al. approximately 16 km (10 mi) northwest In considering what factors might in press, p. 26). Estimating the impact of Villa Grove, Colorado. This constitute threats to a species, we must of habitat fragmentation on sage-grouse population was established through the look beyond the exposure of the species is complicated by time lags in response reintroduction of 30 birds from the to a factor to evaluate whether the to habitat changes (Garton et al., in Gunnison Basin in 1971 and 1972 species may respond to the factor in a press, p. 71), particularly since these during efforts to reintroduce the species way that causes actual impacts to the relatively long-lived birds will continue to the San Luis Valley (GSRSC 2005, p. species. If there is exposure to a factor to return to altered breeding areas (leks, 94). The known population distribution and the species responds negatively, the nesting areas, and early brood-rearing is in 8,262 ha (20,415 ac) of sagebrush factor may be a threat and we attempt areas) due to strong site fidelity despite habitat from the summit of Poncha Pass to determine how significant a threat it nesting or productivity failures (Rogers extending south for about 13 km (8 mi) is. The threat is significant if it drives, 1964, pp. 35-40; Wiens and Rotenberry on either side of U.S. Highway 285. or contributes to, the risk of extinction 1985, p. 666; Young 1994, p. 42; Lyon

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59813

2000, p. 20, Connelly et al. 2004, p. 45; grouse, the principal areas of sagebrush agricultural production. Habitat Holloran and Anderson 2005, p. 747). loss were in the Gunnison Basin, San conversion due to agricultural activities Habitat fragmentation can have an Miguel Basin, and areas near Dove is limited in the Crawford, Pı˜non Mesa, adverse effect on Gunnison sage-grouse Creek, Colorado. The authors point out and Poncha Pass populations, with 3 populations. Many of the factors that that the rate of loss in the Gunnison percent or less of the occupied range result in fragmentation may be Basin was lower than other areas of currently in agricultural production in exacerbated by the effects of climate sagebrush distribution in Colorado. The each of the population areas. change, which may influence long-term Gunnison Basin contains approximately Other than in Gunnison County, total habitat and population trends. The 250,000 ha (617,000 ac) of sagebrush; area of harvested cropland has declined following sections examine factors that this area partially comprises other over the past two decades in all counties can contribute to habitat fragmentation habitat types such as riparian areas and within the occupied range of Gunnison to determine whether they threaten patches of non-sagebrush vegetation sage-grouse (USDA NASS 2010, entire). Gunnison sage-grouse and their habitat. types, including aspen forest, mixed- Information on the amount of land area devoted to cropland was not available Historic Modification of Gunnison Sage- conifer forest, and oakbrush (Boyle and for Gunnison County, most likely grouse Habitat Reeder 2005, p. 3-3). Within the portion of the Gunnison Basin currently because the majority of agricultural land The historic and current distribution occupied by Gunnison sage-grouse, use in the county is for hay production. of the Gunnison sage-grouse closely 170,000 ha (420,000 ac) comprises However, total area in hay production matches the distribution of sagebrush. exclusively sagebrush vegetation types, has correspondingly declined in Potential Gunnison sage-grouse range is as derived from Southwest Regional Gap Gunnison County over the past two estimated to have been 5,536,358 ha Analsis Project (SWReGAP) landcover decades (USDA NASS 2009, p. 1). (13,680,640 ac) historically (GSRSC data (multi-season satellite imagery Because of this long-term trend in 2005, p. 32). Gunnison sage-grouse acquired between 1999 and 2001) reduced land area devoted to currently occupy approximately 379,464 (USGS 2004, entire). agriculture, we do not expect a ha (937,676 ac) in southwestern significant amount of Gunnison sage- Colorado and southeastern Utah (CDOW Conversion to Agriculture grouse habitat to be converted to 2009b, p. 1; GSRSC 2005, p. 81), an area While sage-grouse may forage on agricultural purposes in the future. that represents approximately 7 percent agricultural croplands, they avoid Conservation Reserve Program – The of the species’ potential historic range. landscapes dominated by agriculture loss of Gunnison sage-grouse habitat to The following describes the factors (Aldridge et al. 2008, p. 991). Influences conversion to agriculture has been affecting Gunnison sage-grouse and resulting from agricultural activities mitigated somewhat by the Gunnison sage-grouse habitat within the extend into adjoining sagebrush, and Conservation Reserve Program (CRP). current range of the species. include increased predation and The CRP is administered by the United The onset of EuroAmerican settlement reduced nest success due to predators States Department of Agriculture in the late 1800s resulted in significant associated with agriculture (Connelly et (USDA) Farm Service Agency (FSA) and alterations to sagebrush ecosystems al. 2004, p. 7-23). Agricultural provides incentives to agricultural throughout North America (West and conversion can provide some limited landowners to convert certain cropland Young 2000, pp. 263-265; Miller et al. benefits for sage-grouse. Some crops, to more natural vegetative conditions. in press, p. 6), primarily as a result of such as alfalfa (Medicago sativa) and Except in emergency situations, CRP- urbanization, agricultural conversion, young bean sprouts (Phaseolus spp.), enrolled lands are not hayed or grazed. and irrigation projects. Areas that are eaten or used for cover by Gunnison Lands within the occupied range of supported basin big sagebrush sage-grouse (Braun 1998, pers. comm.). Gunnison sage-grouse enrolled into the (Artemisia tridentata ssp. tridentata) However, crop monocultures do not CRP are limited to Dolores and San were among the first sagebrush provide adequate year-round food or Miguel counties in Colorado, and San community types converted to cover (GSRSC 2005, pp. 22-30). Juan County in Utah (USDA FSA 2010, agriculture because their typical soils Current Agriculture in All Gunnison entire). From 2000 to 2008, CRP- and topography are well suited for Sage-grouse Population Areas – The enrollment averaged 10,622 ha (26,247 agriculture (Rogers 1964, p. 13). following estimates of land area ac) in Dolores County, 1,350 ha (3,337 In southwestern Colorado, Oyler- dedicated to agriculture (including ac) in San Miguel County, and 14,698 ha McCance et al. (2001, p. 326) found that, grass/forb pasture) were derived from (36,320 ac) in San Juan County (USDA between 1958 and 1993, 20 percent SWReGAP landcover data (USGS 2004, FSA 2010, entire). These CRP enrolled (155,673 ha (384,676 ac)) of sagebrush entire). Habitat conversion to agriculture areas potentially constitute was lost in Colorado, and 37 percent of is most prevalent in the Monticello– approximately 56 percent of the sagebrush plots examined were Dove Creek population area where Monticello–Dove Creek population and fragmented. In another analysis, it was approximately 23,220 ha (57,377 ac) or 3 percent of the San Miguel population; estimated that approximately 342,000 51 percent of Gunnison sage-grouse however, we are unsure of the ha (845,000 ac) of sagebrush, or 13 occupied range is currently in proportion of these CRP lands that are percent of the pre-EuroAmerican agricultural production. In the within Gunnison sage-grouse habitat. settlement sagebrush extent, were lost in Gunnison Basin, approximately 20,754 Approximately 735 ha (1,816 ac) of Colorado, which includes both greater ha (51,285 ac) or 9 percent of the leases on these CRP-enrolled lands sage-grouse and Gunnison sage-grouse occupied range is currently in expired on September 30, 2009, and habitat (Boyle and Reeder 2005, p. 3-3). agricultural production. Approximately 10,431 ha (25,778 ac) are due to expire However, the authors noted that the 6,287 ha (15,535 ac) or 15 percent of the on September 30, 2010 (UDWR 2009, p. estimate of historic sagebrush area used occupied range in the San Miguel Basin 7). in their analyses was conservative, is currently in agricultural production. In San Juan County, Gunnison sage- possibly resulting in a substantial In the Cerro Summit–Cimarron–Sims grouse use CRP lands in proportion to underestimate of historic sagebrush Mesa population, approximately 14 their availability (Lupis et al. 2006, p. losses (Boyle and Reeder 2005, p. 3-4). percent (5,133 ha (2,077 ac)) of the 959). The CRP areas are used by grouse Within the range of Gunnison sage- occupied range is currently in primarily as brood-rearing habitat, but

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 59814 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

these areas vary greatly in plant contributing to the fragmentation of relative economic importance of these diversity and forb abundance, and remaining habitat. activities diminishes (Theobald 1996, p. generally lack any shrub cover (Lupis et 413; Sammons 1998, p. 32; Gosnell and Water Development al. 2006, pp. 959-960). In response to a Travis 2005, pp. 191-192). Currently, severe drought, four CRP parcels Water Development in All Population agribusiness occupations constitute totaling 1,487 ha (3,674 ac) in San Juan Areas – Irrigation projects have resulted approximately 3 percent of the total job County, UT, were emergency grazed for in loss of sage-grouse habitat (Braun base in Gunnison County (CDOLAb a duration of 1 to 2 months in the 1998, p. 6). Reservoir development in 2009, p. 4). Recent conversion of farm summer of 2002 (Lupis 2006, p. 959). the Gunnison Basin flooded 3,700 ha and ranch lands to housing Largely as a result of agricultural (9,200 ac), or 1.5 percent of likely sage- development has been significant in conversion, sagebrush patches in the grouse habitat (McCall 2005, pers. Colorado (Odell and Knight 2001, p. Monticello–Dove Creek subpopulation comm.). Three other reservoirs 1144). Many large private ranches in the area have progressively become smaller inundated approximately 2 percent of Rocky Mountains, including the habitat in the San Miguel Basin and more fragmented, which has limited Gunnison Basin, are being subdivided population area (Garner 2005, pers. the amount of available nesting and into both high-density subdivisions and comm.). We are unaware of any plans winter habitat (GSRSC 2005, pp. 82, larger, scattered ranchettes with lots for additional reservoir construction. 276). Overall, the CRP has protected a typically greater than 14 ha (35 ac), Because of the small amount of portion of the Monticello–Dove Creek which encompass a large, isolated house Gunnison sage-grouse habitat lost to population from more intensive (Riebsame 1996, p. 399; Theobald 1996, water development projects and the agricultural use and development. p. 408). unlikelihood of future projects, we do However, the overall value of CRP lands The resulting pattern of residential not consider water development alone is limited because they largely lack development is less associated with to be a current or future significant sagebrush cover required by Gunnison existing town sites or existing threat to the Gunnison sage-grouse. subdivisions, and is increasingly sage-sage grouse throughout most of the However, we expect these existing exurban in nature (Theobald et al. 1996, year. The CRP was renewed under the reservoirs to be maintained indefinitely, pp. 408, 415; Theobald 2001, p. 546). Food, Conservation, and Energy Act of thus acting as another source of Exurban development is described as 2008. A new CRP sign-up for individual fragmentation of Gunnison sage-grouse low-density growth outside of urban landowners is not anticipated until 2012 habitat. and suburban areas (Clark et al. 2009, p. and the extent to which existing CRP 178; Theobald 2004, p.140) with less lands will be re-enrolled is unknown Residential Development than one housing unit per 1 ha (2.5 ac) (UDWR 2009, p. 4). Human population growth in the rural (Theobald 2003, p. 1627; Theobald Summary of Conversion to Agriculture Rocky Mountains is driven by the 2004, p. 139). The resulting pattern is availability of natural amenities, one of increased residential lot size and Throughout the range of Gunnison recreational opportunities, aesthetically the diffuse scattering of residential lots sage-grouse there is a declining trend in desirable settings, grandiose in previously rural areas with a the amount of land area devoted to viewscapes, and perceived remoteness premium placed on adjacency to federal agriculture. Therefore, although we (Riebsame 1996, p. 396, 402; Theobald lands and isolated open spaces expect a large proportion of land 1996, p. 408; Gosnell and Travis 2005, (Riebsame et al. 1996, p. 396, 398; currently in agricultural production to pp. 192-197; Mitchell et al. 2002, p. 6; Theobald 1996, pp. 413, 417; Theobald remain so indefinitely, we do not expect Hansen et al. 2005, pp. 1899-1901). This 2001, p. 546; Brown et al. 2005, p. significant additional, future habitat human population growth is occurring 1858). The residential subdivision that conversion to agriculture within the throughout much of the range of results from exurban development range of Gunnison sage-grouse. The loss Gunnison sage-grouse. The human causes landscape fragmentation (Gosnell of sagebrush habitat from 1958 to 1993 population in all counties within the and Travis 2005, p. 196) primarily was estimated to be approximately 20 range of Gunnison sage-grouse averaged through the accumulation of roads, percent throughout the range of a 70 percent increase since 1980 buildings, (Theobald 1996, p. 410; Gunnison sage-grouse (Oyler-McCance (Colorado Department of Local Affairs Mitchell et al. 2002, p. 3) and other et al. 2001, p. 326). The exception is the (CDOLA) 2009a, pp. 2-3). The year 2050 associated infrastructure such as power Monticello–Dove Creek population projected human population for the lines, and pipelines. In the East River where more than half of the occupied Gunnison River basin (an area that Valley of Gunnison County, residential range is currently in agriculture or other encompasses the majority of the current development in the early 1990s land uses incompatible with Gunnison range of Gunnison sage-grouse) is increased road density by 17 percent sage-grouse conservation. This habitat expected to be 2.3 times greater than the (Theobald et al. 1996, p. 410). The loss is being somewhat mitigated by the 2005 population (CWCB 2009, p. 15). habitat fragmentation resulting from this current enrollment of lands in the CRP. The population of Gunnison County, an development pattern is especially Even so, this relative scarcity of area that supports over 80 percent of all detrimental to Gunnison sage-grouse sagebrush cover indicates a high risk of Gunnison sage-grouse, is predicted to because of their dependence on large population extirpation (Wisdom et al. in more than double to approximately areas of contiguous sagebrush (Patterson press, p. 19) for this population. 31,100 residents by 2050 (CWCB 2009, 1952, p. 48; Connelly et al. 2004, p. 4- Because of its limited extent, we do not p. 53). 1; Connelly et al. in press a, p. 10; consider the conversion of sagebrush The increase in residential and Wisdom et al. in press, p. 4). habitats to agriculture alone to be a commercial development associated Residential Development in the current or future significant threat to with the expanding human population Gunnison Basin Population Area – Gunnison sage-grouse and its habitat. is different from historic land use Nearly three quarters (approximately 71 However, we recognize lands already patterns (Theobald 2001, p. 548). The percent) of the Gunnison Basin converted to agriculture are located allocation of land for resource-based population of Gunnison sage-grouse throughout all Gunnison sage-grouse activities such as agriculture and occurs within Gunnison County, with populations and are, therefore, livestock production is decreasing as the the remainder occurring in Saguache

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59815

County. Within Gunnison County, residential development is currently Gunnison sage-grouse habitat in the approximately 30 percent of the compromising the likelihood of use by Gunnison Basin. We used the 20,236 ha occupied range of this species occurs on Gunnison sage-grouse for nesting habitat (50,004 ac) as an initial basis to assess private lands. We performed a GIS in these areas. the potential impacts of future analysis of parcel ownership data that Furthermore, since early brood- development. A lack of parcel data was focused on the spatial and temporal rearing habitat is often in close availability from surrounding counties pattern of human development within proximity to nest sites (Connelly et al. precluded expanding this analysis occupied Gunnison sage-grouse habitat. 2000a, p. 971), the functional loss of beyond Gunnison County; however, the Some of our analyses were limited to nesting habitat is closely linked with the analysis area constitutes 71 percent of the portion of occupied habitat in loss of early brood-rearing habitat. the Gunnison Basin population area. Gunnison County because parcel data Limitations in the quality and quantity Approximately 93 percent of occupied was only available for Gunnison County of nesting and early brood-rearing Gunnison sage-grouse habitat in and not for Saguache County. The habitat are particularly problematic Gunnison County consists of parcels cumulative number of human because Gunnison sage-grouse greater than 14.2 ha (35 ac), allowing developments has increased population dynamics are most sensitive exemptions from some county land dramatically in Gunnison County, during these life-history stages (GSRSC development regulations. Applying a especially since the early 1970s 2005, p. G-15). We recognize that the 1.7 percent average annual population (USFWS 2010a, p. 1). The number of potential percentages of habitat loss increase under a ‘‘middle’’ growth new developments averaged mentioned above, whether direct or scenario (CWCB 2009, p. 56) and an approximately 70 per year from the late functional, will not necessarily average 2.29 persons per household 1800s to 1969, increasing to correspond to the same percentage loss (CDOLA 2009b, p. 6) to the 2008 approximately 450 per year from 1970 in sage-grouse numbers. The recent Gunnison County human population to 2008 (USFWS 2010a, pp. 2-5). efforts to conserve Gunnison sage- estimate results in the potential addition Furthermore, there has been an grouse and their habitat within the of nearly 7,000 housing units to the increasing trend toward development Basin provide protection for the county by 2050. away from major roadways (primary and foreseeable future for several areas of Currently, approximately two-thirds secondary paved roads) into areas that high-quality habitat (see discussion in of the human population in Gunnison had previously undergone very limited Factor D). Nonetheless, given the large County occurs within the currently development in occupied Gunnison landscape-level needs of this species, mapped occupied range of Gunnison sage-grouse habitat (USFWS 2010b, p. we expect this current level of habitat sage-grouse. Assuming this pattern will 7). Between 1889 and 1968, there were loss, degradation, and fragmentation, continue, two-thirds of the population approximately 51 human developments from residential development, as increase will occur within occupied located more than 1.6 km (1 mi) from a described above, to substantially limit Gunnison sage-grouse habitat. The major road in currently occupied the probability of persistence of above projection could potentially result Gunnison sage-grouse habitat. Between Gunnison sage-grouse in the Gunnison in the addition of approximately 4,630 1969 and 2008, this number increased to Basin. housing units and the potential for We also calculated a ‘‘lower’’ approximately 476 developments 25,829 ha (63,824 ac) of new habitat development impact scenario using the (USFWS 2010b, p. 7). loss, whether direct or functional, on smaller impact footprint hypothesized parcels that currently have no In order to assess the impacts of by the GSRSC (2005, pp. 160-161). This development. Based on the estimated existing residential development, we analysis assumed that residential area of impact determined by Aldridge relied on two evaluations of Gunnison density in excess of one housing unit et al. (2010), this potential functional sage-grouse response and habitat per 1.3 km2 (0.5 mi2) could cause habitat loss constitutes an additional availability in relation to development. declines in Gunnison sage-grouse impact of 15 percent of the current The first was a landscape-scale spatial populations. Within Gunnison County, extent of the Gunnison Basin population model predicting Gunnison sage-grouse 18 percent of the land area within the area (USFWS 2010b, p. 14). When nesting probability in the Gunnison range of Gunnison sage-grouse currently combined with the existing loss, Basin (Aldridge et al. 2010, entire). The has a residential density greater than whether direct or functional, of 49 model indicated that Gunnison sage- one housing unit per 1.3 km2 (0.5 mi2) percent of Gunnison sage-grouse nesting grouse select nest sites in areas with (USFWS 2010b, p. 8). Therefore, habitat, the total amount of habitat moderate shrub cover, and avoid according to the GSRSC estimate of subject to the indirect effects of residential development within a radius potential residential impacts, human residential development now and in the of 1.5 km (0.9 mi) (Aldridge et al. 2010, residential densities in the Gunnison foreseeable future increases to 64 p. 18). The model was applied to the Basin population area are such that we percent. entire Gunnison Basin population area expect they are limiting the Gunnison Using the same methodology as to predict the likelihood of Gunnison sage-grouse population in at least 18 discussed above, but applying the sage-grouse nesting based on data from percent of the population area. estimated area of impact determined by the western portion (Aldridge et al. We expect the density and GSRSC (2005, p. F-3), results in a future 2010, p. 16). We used Aldridge et al. distribution of human residences to potential functional habitat loss of 9 (2010)’s radius of 1.5 km (0.9 mi) expand in the future. Based on our GIS percent. When combined with the avoidance distance to calculate the analysis, we estimate that existing loss, whether direct or indirect effects likely from the current approximately 20,236 ha (50,004 ac) of functional, of 18 percent of Gunnison level of development within occupied private lands on approximately 1,190 sage-grouse habitat, an estimated 27 Gunnison sage-grouse habitat in parcels not subject to conservation percent of habitat will be functionally Gunnison County. We found that 49 easements currently lack human lost for Gunnison sage-grouse under this percent of the land area within the range development in occupied Gunnison minimum impact scenario. We believe of Gunnison sage-grouse has at least one sage-grouse habitat in Gunnison County that impacts to Gunnison sage-grouse housing unit within a radius of 1.5 km (USFWS 2010b, p. 11). These lands are implicit in even the lower or more (0.9 mi) (USFWS 2010b, p. 7). This scattered throughout occupied conservative estimates of direct and

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 59816 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

functional habitat loss are limiting the these ranges limit the persistence of in a dispersed exurban development persistence of the species. Gunnison sage-grouse. pattern throughout sagebrush habitats We also anticipate increased housing Residential Development in All Other will reduce the likelihood of sage-grouse density in many areas of occupied Population Areas – In 2004, within the persistence in these areas. Human Gunnison sage-grouse habitat because Crawford Population area, populations are increasing throughout the anticipated number of new housing approximately 951 ha (2,350 ac), or 7 the range of Gunnison sage-grouse, and units will exceed the number of percent of the occupied Gunnison sage- we expect this trend to continue. Given undeveloped parcels by nearly four grouse habitat, was subdivided into 48 the current demographic trends times (USFWS 2010b, p. 16). Some of parcels ranging in size from 14.2 ha (35 described above, we believe the rate of this anticipated development and ac) to 28.3 ha (70 ac) (CDOW 2009a, p. residential development in Gunnison subsequent functional habitat loss will 59). Local landowners and the National sage-grouse habitat will continue at least undoubtedly occur on parcels that Park Service (NPS) have ongoing efforts through 2050, and likely longer. The currently have existing human to protect portions of the subdivided resulting habitat loss and fragmentation development, which could lessen the area through conservation easements. from residential development is a effects to Gunnison sage-grouse. Residential subdivision continues to significant threat to Gunnison sage- However, the above calculation of an occur in the northern part of the Poncha grouse now and in the foreseeable increase in future housing units is likely Pass population area, and the CDOW future. an underestimate because it does not considers this to be the highest priority take into account the expected increase threat to this population (CDOW 2009a, Fences in second home development (CDOLA p. 124). The rate of residential The effects of fencing on sage-grouse 2009b, p. 7), which could increase development in the San Miguel Basin include direct mortality through negative effects to Gunnison sage- population increased between 2005 and collisions, creation of raptor and corvid grouse. The U.S. Census Bureau only 2008 but slowed in 2009 (CDOW 2009a, (Family Corvidae: crows, ravens, tallies the inhabitants of primary p. 135). However, a 429 ha (1,057 ac) magpies, etc.) perch sites, the potential residences in population totals. This parcel north of Miramonte Reservoir is creation of predator corridors along methodology results in an currently being developed as a retreat. fences (particularly if a road is underestimate of the population, The CDOW reports that potential maintained next to the fence), incursion particularly in amenity communities, impacts to Gunnison sage-grouse of exotic species along the fencing because of the increased number of part- resulting from the development may be corridor, and habitat fragmentation (Call time residents inhabiting second homes reduced by possibly placing a portion of and Maser 1985, p. 22; Braun 1998, p. and vacation homes in these areas the property into a conservation 145; Connelly et al. 2000a, p. 974; Beck (Riebsame 1996, p. 397; Theobald 2001, easement and the relocation of a et al. 2003, p. 211; Knick et al. 2003, p. p. 550, Theobald 2004, p. 143). In proposed major road to avoid occupied 612; Connelly et al. 2004, p. 1-2). Gunnison County, approximately 90 habitat (CDOW 2009a, p. 136). No recent Corvids are significant sage-grouse nest percent of vacant housing units were or planned residential developments are predators and were responsible for more seasonal-use units (CDOLA 2009c, p. 1). known for the Cerro Summit–Cimarron– than 50 percent of nest predations in The housing vacancy rate, which is Sims Mesa population area (CDOW Nevada (Coates 2007, pp. 26-30). Sage- computed by dividing the number of 2009a, p. 45), Monticello–Dove Creek grouse frequently fly low and fast across vacant housing units by the total population area (CDOW 2009a, p. 73), or sagebrush flats, and fences can create a housing units, was 42.5 percent in Pı˜non Mesa population area (CDOW collision hazard resulting in direct Gunnison County over the last two 2009a, p. 109). The remaining limited mortality (Call and Maser 1985, p. 22). decades (CDOLA 2009d, p. 2). amounts of habitat, the fragmented Not all fences present the same We expect some development to be nature of this remaining habitat, and the mortality risk to sage-grouse. Mortality moderated by the establishment of anticipated increases in exurban risk appears to be dependent on a additional voluntary landowner development within each of the six combination of factors including design conservation easements such as those smaller populations pose a significant of fencing, landscape topography, and currently facilitated by the CDOW and threat to these six populations. spatial relationship with seasonal land trust organizations. While habitats (Christiansen 2009). This conservation easements can minimize Summary of Residential Development variability in fence mortality rate and the overall impacts to Gunnison sage- Because Gunnison sage-grouse are the lack of systematic fence monitoring grouse, because less than 5 percent of dependent on expansive, contiguous make it difficult to determine the occupied Gunnison sage-grouse habitat areas of sagebrush habitat to meet their magnitude of impacts to sage-grouse in the Gunnison Basin has been placed life-history needs, the development populations; however, in some cases the in conservation easements to date, we patterns described above have resulted level of mortality is likely significant to do not expect the amount of land in the direct and functional loss of localized areas within populations. potentially placed in future easements sagebrush habitat and have negatively Fences directly kill greater sage grouse will significantly offset the overall affected the species by limiting already (Call and Maser 1985, p. 22; affects of human development. scarce habitat, especially within the six Christiansen 2009, pp. 1-2); we assume Our analyses, based on the smaller populations. The collective that Gunnison sage-grouse are also evaluations of impacts to Gunnison influences of fragmentation and killed by fences but do not have species- sage-grouse discussed above, result in disturbance from human activities specific data. Although the effects of estimates of existing functional habitat around residences and associated roads direct strike mortality on populations loss of 18 to 49 percent of the Gunnison reduce the effective habitat around these are not fully analyzed, fences are Basin population area. Future estimates areas, making them inhospitable to ubiquitous across the landscape. Fence of functional habitat loss result in an Gunnison sage-grouse (Aldridge et al. collisions continue to be identified as a increase of 9 to 15 percent, for a 2010, pp. 24-25; Knick, et al. 2009, in source of mortality for Gunnison and cumulative total of 27 and 64 percent press, p. 25 and references therein; greater sage-grouse and we expect this loss of the Gunnison Basin population Aldridge and Boyce 2007, p.520). source of mortality to continue into the area. We believe that impacts within Human population growth that results foreseeable future (Braun 1998, p. 145;

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59817

Connelly et al. 2000a, p. 974; Oyler- Roads also encroach into surrounding habitats McCance et al. 2001, p. 330; Connelly et Impacts from roads may include (Forman and Alexander 1998, p. 210; al. 2004, p. 7-3). direct habitat loss, direct mortality, Forman 2000, p. 33; Gelbard and Belnap Fence posts create perching places for barriers to migration corridors or 2003, p. 427). In their study of roads on raptors and corvids, which may increase seasonal habitats, facilitation of the Colorado Plateau of southern Utah, their ability to prey on sage-grouse predation and spread of invasive Gelbard and Belnap (2003, p. 426) found (Braun 1998, p. 145; Oyler-McCance et vegetative species, and other indirect that improving unpaved four-wheel al. 2001, p. 330; Connelly et al. 2004, p. influences such as noise (Forman and drive roads to paved roads resulted in 13-12). We anticipate that the effect on Alexander 1998, pp. 207-231). Greater increased cover of exotic plant species sage-grouse populations through the sage-grouse mortality resulting from within the interior of adjacent plant creation of new raptor perches and collisions with vehicles does occur, but communities. This effect was associated predator corridors into sagebrush mortalities are typically not monitored with road construction and maintenance activities and vehicle traffic, and not habitats is similar to that of powerlines or recorded (Patterson 1952, p. 81). with differences in site characteristics. discussed below (Braun 1998, p. 145; Therefore, we are unable to determine The incursion of exotic plants into Connelly et al. 2004, p. 7-3). Fences and the importance of this factor on sage- native sagebrush systems can negatively their associated roads also facilitate the grouse populations. We have no affect Gunnison sage-grouse through spread of invasive plant species that information on the number of direct habitat losses and conversions (see replace sagebrush plants upon which mortalities of Gunnison sage-grouse further discussion below in Invasive sage-grouse depend (Braun 1998, p. 145; resulting from vehicles or roads; Plants). Connelly et al. 2000a, p. 973; Gelbard however, because of similarities in their and Belnap 2003, p. 421; Connelly et al. Additional indirect effects of roads habitat and habitat use, we expect may result from birds’ behavioral 2004, p. 7-3). Greater sage-grouse similar effects as those observed in avoidance of habitat adjacent to fences, avoidance of road areas because of greater sage-grouse. Roads within noise, visual disturbance, pollutants, presumably to minimize the risk of Gunnison sage-grouse habitats have predation, effectively results in habitat and predators moving along a road. The been shown to impede movement of landscape-scale spatial model fragmentation even if the actual habitat local populations between the resultant is not removed (Braun 1998, p. 145). predicting Gunnison sage-grouse nest patches, with road avoidance site selection showed strong avoidance Because of similarities in behavior and presumably being a behavioral means to of areas with high road densities of habitat use, we believe the response of limit exposure to predation (Oyler- roads classed 1 through 4 (primary Gunnison sage-grouse is similar to that McCance et al. 2001, p. 330). paved highways through primitive roads observed in greater sage-grouse. The presence of roads increases with 2-wheel drive sedan clearance) At least 1,540 km (960 mi) of fence are human access and resulting disturbance within 6.4 km (4 mi)) of nest sites on BLM lands within the Gunnison effects in remote areas (Forman and (Aldridge et al. 2010 p. 18). The Basin (Borthwick 2005a, pers. comm.; Alexander 1998, p. 221; Forman 2000, occurrence of Gunnison sage-grouse BLM 2005a, 2005e) and an unquantified p. 35; Connelly et al. 2004, pp. 7-6 to nest sites also decreased with increased amount of fence on land owned or 7-25). In addition, roads can provide proximity to primary and secondary managed by other landowners. Fences corridors for predators to move into paved highways (roads classes 1 and 2) are present within all other Gunnison previously unoccupied areas. For some (Aldridge et al. 2010, p. 27). Male sage-grouse population areas, but we mammalian species known to prey on greater sage-grouse lek attendance was have no quantitative information on the sage-grouse, such as red fox (Vulpes shown to decline within 3 km (1.9 mi) amount or types of fencing in these vulpes), raccoons (Procyon lotor), and of a methane well or haul road with areas. striped skunks (Mephitis mephitis), traffic volume exceeding one vehicle per Summary of Fences dispersal along roads has greatly day (Holloran 2005, p. 40). Male sage- increased their distribution (Forman grouse depend on acoustical signals to While fences contribute to habitat and Alexander 1998, p. 212; Forman attract females to leks (Gibson and fragmentation and increase the potential 2000, p. 33; Frey and Conover 2006, pp. Bradbury 1985, p. 82; Gratson 1993, p. for loss of individual grouse through 1114-1115). Corvids also use linear 692). If noise interferes with mating collisions or enhanced predation, such features such as primary and secondary displays, and thereby female effects have been ongoing since the first roads as travel routes, expanding their attendance, younger males will not be agricultural conversions occurred in movements into previously unused drawn to the lek and eventually leks sage-grouse habitat. We expect that the regions (Knight and Kawashima 1993, p. will become inactive (Amstrup and majority of existing fences will remain 268; Connelly et al. 2004, p. 12-3). Phillips 1977, p. 26; Braun 1986, pp. on the landscape indefinitely. However, Corvids are significant sage-grouse nest 229-230). because we do not expect a major predators and were responsible for more In a study on the Pinedale Anticline increase in the number of fences, than 50 percent of nest predations in in Wyoming, greater sage-grouse hens particularly 3-wire range fencing, we do Nevada (Coates 2007, pp. 26-30). Ravens that bred on leks within 3 km (1.9 mi) not believe fencing, on its own, is a were documented following roads in oil of roads associated with oil and gas significant threat to Gunnison sage- and gas fields while foraging (Bui 2009, development traveled twice as far to grouse at the species level. In the p. 31). nest as did hens that bred on leks smaller Gunnison sage-grouse The expansion of road networks greater than 3 km (1.9 mi) from roads. populations, the impacts of fencing contributes to exotic plant invasions via Nest initiation rates for hens bred on could become another source of introduced road fill, vehicle transport, leks close to roads also were lower (65 mortality that cumulatively affects the and road maintenance activities versus 89 percent), affecting population species. We also recognize that fences (Forman and Alexander 1998, p. 210; recruitment (33 versus 44 percent) are located throughout all Gunnison Forman 2000, p. 32; Gelbard and Belnap (Lyon 2000, p. 33; Lyon and Anderson sage-grouse populations and are, 2003, p. 426; Knick et al. 2003, p. 619; 2003, pp. 489-490). Lyon and Anderson therefore, contributing to the Connelly et al. 2004, p. 7-25). Invasive (2003, p. 490) suggested that roads may fragmentation of remaining habitat. species are not limited to roadsides, but be the primary impact of oil and gas

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 59818 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

development to sage-grouse, due to their Eighty-seven percent of all Gunnison population is increasing throughout the persistence and continued use even sage-grouse nests were located less than range of Gunnison sage-grouse (CDOLA after drilling and production have 6.4 km (4 mi) from the lek of capture 2009a, pp. 2-3; CWCB 2009, p. 15), and ceased. Lek abandonment patterns (Apa 2004, p. 21). However, the BLM we have no data indicating this trend suggested that daily vehicular traffic proposes to reduce road length to 1,157 will be reversed. Gunnison sage-grouse along road networks for oil wells can km (719 mi) (BLM 2010, p. 147). are dependent on large contiguous and impact greater sage-grouse breeding Currently, 1,349 km (838 mi) of roads unfragmented landscapes to meet their activities (Braun et al. 2002, p. 5). We accessible to 2-wheel drive passenger life-history needs (GSRSC 2005, pp. 26- believe the effects of vehicular traffic on cars exist in occupied Gunnison sage- 30), and the existing road density Gunnison sage-grouse, regardless of its grouse habitat in the Gunnison Basin. throughout much of the range of purpose (e.g., in support of energy Four-wheel-drive vehicle roads, as well Gunnison sage-grouse has negatively production or local commuting and as motorcycle, mountain bike, horse, affected the species. The collective recreation), are similar to those observed and hiking trails are heavily distributed influences of fragmentation and in greater sage-grouse. throughout the range of Gunnison sage- disturbance from roads reduce the Aldridge et al. (2008, p. 992) did not grouse (BLM 2009, pp. 27, 55, 86), effective habitat around these areas find road density to be an important which further increases the overall making them inhospitable to sage- factor affecting greater sage-grouse density of roads and their direct and grouse (Aldridge et al. 2010, pp. 24-25; persistence or rangewide patterns in indirect effects on Gunnison sage- Aldridge and Boyce 2007, p. 520; Knick sage-grouse extirpation. However, the grouse. User-created roads and trails et al. 2009, in press, p. 25 and references authors did not consider the intensity of have increased since 2004 (BLM 2009, therein). Given the current human human use of roads in their modeling p. 33), although we do not know the demographic and economic trends efforts. They also indicated that their percentage increase. described above in the Residential analyses may have been influenced by Using a spatial dataset of roads in the Development section, we believe that inaccuracies in spatial road data sets, Gunnison Basin we performed GIS increased road use and increased road particularly for secondary roads analyses on the potential effects of roads construction associated with residential (Aldridge et al. 2008, p. 992). Historic to Gunnison sage-grouse and their development will continue at least range where greater and Gunnison sage habitat. To account for secondary effects through 2050, and likely longer. The grouse have been extirpated has a 25 from invasive weed spread from roads resulting habitat loss, degradation, and percent higher density of roads than (see discussion below in Invasive fragmentation from roads is a significant occupied range (Wisdom et al. in press, Plants), we applied a 0.7 km (0.4 mi) threat to Gunnison sage-grouse now and p. 18). Wisdom et al.’s (in press) greater buffer (Bradley and Mustard 2006, p. in the foreseeable future. and Gunnison sage-grouse rangewide 1146) to all roads in the Gunnison analysis supports the findings of Basin. Results of these analyses indicate Powerlines numerous local studies showing that that approximately 85 percent of Powerlines can directly affect greater roads can have both direct and indirect occupied habitat in the Gunnison Basin sage-grouse by posing a collision and impacts on sage-grouse distribution and has an increased likelihood of current or electrocution hazard (Braun 1998, pp. individual fitness (reproduction and future road-related invasive weed 145-146; Connelly et al. 2000a, p. 974), survival) (e.g., Lyon and Anderson 2003 invasion. When all roads in the and can have indirect effects by p. 490 , Aldridge and Boyce 2007, p. Gunnison basin are buffered by 6.4 km decreasing lek recruitment (Braun et al. 520). (4 mi) or 9.6 km (6 mi) to account for 2002, p. 10), increasing predation Recreational activities including off nesting avoidance (Aldridge et al. 2010, (Connelly et al. 2004, p. 13-12), highway vehicles (OHV), all-terrain p. 27) and secondary effects from fragmenting habitat (Braun 1998, p. vehicles (ATV), motorcycles, mountain mammal and corvid foraging areas 146), and facilitating the invasion of biking and other mechanized methods (Knick et al in press, p. 113), exotic annual plants (Knick et al. 2003, of travel have been recognized as a respectively, all occupied habitat in the p. 612; Connelly et al. 2004, p. 7-25). potential direct and indirect threat to Gunnison Basin is indirectly affected by Proximity to powerlines is associated Gunnison sage-grouse and their habitat roads. with Gunnison and greater sage-grouse (BLM 2009, p. 36). In Colorado, the Roads in All Other Population Areas extirpation (Wisdom et al. in press, p. number of annual off highway vehicle – Approximately 140 km (87 mi), 243 20). Due to the potential spread of (OHV) registrations has increased from km (151 mi), and 217 km (135 mi) of invasive species and predators as a 12,000 in 1991 to 131,000 in 2007 (BLM roads (all road classes) occur on BLM result of powerline construction and 2009, p. 37). Four wheel drive, OHV, lands within the Cerro Summit– maintenance, the impact from a motorcycle, specialty vehicle, and Cimarron–Sims Mesa, Crawford, and powerline is greater than its actual mountain bike use is expected to San Miguel Basin population areas, footprint. We believe the effects to increase in the future based on respectively, all of which are managed Gunnison sage-grouse are similar to increased population in general and by the BLM (BLM 2009, p. 71). We do those observed in greater sage-grouse increased population density in the area not have information on the total length and that the impact from a powerline is (as discussed above). Numerous off-road of roads within the Monticello–Dove greater than its footprint. routes and access points to habitat used Creek, Pı˜non Mesa, or Poncha Pass In areas where the vegetation is low by Gunnison sage-grouse combined with Gunnison sage-grouse populations. and the terrain relatively flat, power increasing capabilities for mechanized However, several maps provided by the poles provide an attractive hunting and travel and increased human population BLM show that roads are widespread roosting perch, as well as nesting further contribute to habitat and common throughout these stratum for many species of raptors and fragmentation. population areas (BLM 2009, pp. 27, 55, corvids (Steenhof et al. 1993, p. 27; Roads in the Gunnison Basin 86). Connelly et al. 2000a, p. 974; Manville Population Area – On BLM lands in the 2002, p. 7; Vander Haegen et al. 2002, Gunnison Basin there are currently Summary of Roads p. 503). Power poles increase a raptor’s 2,050 km (1,274 mi) of roads within 6.4 As described above in the ‘Residential range of vision, allow for greater speed km (4 mi) of Gunnison sage-grouse leks. Development’ section, the human during attacks on prey, and serve as

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59819

territorial markers (Steenhof et al. 1993, grouse near powerlines increased as population area is within 6.9 km (4.3 p. 275; Manville 2002, p. 7). Raptors distance from the powerline increased mi) of an electrical transmission line may actively seek out power poles for up to 600 m (660 yd) (Braun 1998, and is potentially influenced by avian where natural perches are limited. For p. 8). Based on those unpublished data, predators utilizing the additional example, within 1 year of construction Braun (1998, p. 8) reported that the perches provided by transmission lines. of a 596-km (3–2 -mi) transmission line presence of powerlines may limit This area contains 65 of 109 active leks in southern Idaho and Oregon, raptors Gunnison and greater sage-grouse use (60 percent) in the Gunnison Basin and common ravens began nesting on within 1 km (0.6 mi) in otherwise population. These results suggest that the supporting poles (Steenhof et al. suitable habitat. Similar results were potential increased predation resulting 1993, p. 275). Within 10 years of recorded for other grouse species. For from transmission lines have the construction, 133 pairs of raptors and example, lesser and greater prairie- potential to affect a substantial portion ravens were nesting along this stretch chickens (Tympanuchus pallidicinctus of the Gunnison Basin population. (Steenhof et al. 1993, p. 275). Raven and T. cupido, respectively) avoided Powerlines in All Other Population counts increased by approximately 200 otherwise suitable habitat near Areas – A transmission line runs percent along the Falcon-Gondor powerlines (Pruett et al. 2009, p. 6). through the Dry Creek Basin group in transmission line corridor in Nevada Additionally, both species also crossed the San Miguel Basin population, and within 5 years of construction (Atamian powerlines less often than nearby roads, the Beaver Mesa group has two et al. 2007, p. 2). The increased which suggests that powerlines are a transmission lines. None of the abundance of raptors and corvids within particularly strong barrier to movement transmission lines in the San Miguel occupied greater and Gunnison sage- (Pruett et al. 2009, p. 6). Basin have raptor proofing, nor do most grouse habitats can result in increased Sage-grouse also may avoid distribution lines (Ferguson 2005, pers predation. Ellis (1985, p. 10) reported powerlines as a result of the comm.) so their use by raptors and that golden eagle (Aquila chryrsaetos) electromagnetic fields present (Wisdom corvids as perch sites for hunting and predation on sage-grouse on leks et al. in press, p. 19). Electromagnetic use for nest sites is not discouraged. increased from 26 to 73 percent of the fields have been demonstrated to alter One major electric transmission line total predation after completion of a the behavior, physiology, endocrine runs east-west in the northern portion of transmission line within 200 meters (m) systems and immune function in birds, the current range of the Monticello (220 yards (yd)) of an active sage-grouse with negative consequences on group (San Juan County Gunnison Sage- lek in northeastern Utah. The lek was reproduction and development (Fernie grouse Working Group (GSWG) 2005, p. eventually abandoned, and Ellis (1985, and Reynolds 2005, p. 135). Birds are 17). Powerlines do not appear to be p. 10) concluded that the presence of diverse in their sensitivities to present in sufficient density to pose a the powerline resulted in changes in electromagnetic field exposures, with significant threat to Gunnison sage- sage-grouse dispersal patterns and domestic chickens being very sensitive. grouse in the Pı˜non Mesa population at caused fragmentation of the habitat. Many raptor species are less affected this time. One transmission line Golden eagles are found throughout the (Fernie and Reynolds 2005, p. 135). No parallels Highway 92 in the Crawford range of Gunnison sage-grouse (USGS studies have been conducted population, and distribution lines run 2010, p. 1), and golden eagles were specifically on sage-grouse. Therefore, from there to homes on the periphery of found to be the dominant species we do not know the impact to the the current range (Ferguson 2005, pers. recorded perching on power poles in Gunnison sage-grouse from comm.). Utah in Gunnison sage-grouse habitat electromagnetic fields. Summary of Powerlines (Prather and Messmer 2009, p. 12). Linear corridors through sagebrush Leks within 0.4 km (0.25 mi) of new habitats can facilitate the spread of The projected human population powerlines constructed for coalbed invasive species, such as cheatgrass growth rate in and near most Gunnison methane development in the Powder (Bromus tectorum) (Gelbard and Belnap sage-grouse populations is high (see River Basin of Wyoming had 2003, pp. 424-426; Knick et al. 2003, p. discussion under Residential significantly lower growth rates, as 620; Connelly et al. 2004, p. 1-2). Development). As a result, we expect an measured by recruitment of new males However, we were unable to find any associated increase in distribution onto the lek, compared to leks further information regarding the amount of powerlines. Powerlines are likely from these lines, presumably resulting invasive species incursion as a result of negatively affecting Gunnison sage- from increased raptor predation (Braun powerline construction. grouse as they contribute to habitat loss et al. 2002, p. 10). Within their analysis Powerlines in the Gunnison Basin and fragmentation and facilitation of area, Connelly et al. (2004, p. 7-26) Population Area – On approximately predators of Gunnison sage-grouse. assumed a 5 to 6.9-km (3.1 to 4.3-mi) 121,000 ha (300,000 ac) of BLM land in Given the current demographic and radius buffer around the perches, based the Gunnison Basin, 36 rights-of-way for economic trends described above, we on the average foraging distance of these power facilities, power lines, and believe that existing powerlines and corvids and raptors, and estimated that transmission lines have resulted in the anticipated distribution of powerlines the area potentially influenced by direct loss of 350 ha (858 ac) of associated with residential development additional perches provided by occupied habitat (Borthwick 2005b, pers will continue at least through 2050, and powerlines was 672,644 to 837,390 km2 comm.). As discussed above, the likely longer. The resulting habitat loss (259,641 to 323,317 mi2), or 32 to 40 impacts of these lines likely extend and fragmentation from powerlines, and percent of their assessment area. The beyond their actual footprint. We the effects of avian predators that use actual impact on an area would depend performed a GIS analysis of them, is a significant threat to Gunnison on corvid and raptor densities within transmission line location in relation to sage-grouse now and in the foreseeable the area (see discussion in Factor C, overall habitat area and Gunnison sage- future. below). grouse lek locations in the Gunnison The presence of a powerline may Basin Population area to obtain an Fire fragment sage-grouse habitats even if estimate of the potential effects in the The nature of historical fire patterns raptors are not present. The use of Basin. Results of these analyses indicate in sagebrush communities, particularly otherwise suitable habitat by sage- that 68 percent of the Gunnison Basin in Wyoming big sagebrush (Artemisia

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 59820 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

tridentata var. wyomingensis), is not p. 323; Gates 1983, in Connelly et al. Approximately 8,470 ha (20,930 ac) of well understood, and a high degree of 2000c, p. 90; Sime 1991, in Connelly et prescribed burns occurred on Forest variability likely occurred (Miller and al. 2000a, p. 972). In this type of habitat, Service lands in the Gunnison Basin Eddleman 2000, p. 16; Zouhar et al. small fires may maintain a suitable since 1983 (USFS 2009, p. 1). A small 2008, p. 154; Baker in press, p. 16). In habitat mosaic by reducing shrub wildfire on BLM lands near Hartman general, mean fire return intervals in encroachment and encouraging Rocks burned 8 ha (20 ac) in 2007 (BLM low-lying, xeric (dry) big sagebrush understory growth. However, without 2009, p. 35). The total area of occupied communities range from more than 100 available nearby sagebrush cover, the Gunnison sage-grouse habitat burned in to 350 years, and return intervals utility of these sites is questionable, recent decades is approximately 8,887 decrease from 50 to more than 200 years especially within the six small ha (21,960 ac), which constitutes 1.5 in more mesic (wet) areas, at higher Gunnison sage-grouse populations percent of the occupied Gunnison sage- elevations, during wetter climatic where fire could further degrade and grouse habitat area. Cumulatively, this periods, and in locations associated fragment the remaining habitat. equates to a relatively small amount of with grasslands (Baker 2006, p. 181; Sagebrush loss as a result of fire is likely habitat burned over a period of nearly Mensing et al. 2006, p. 75; Baker, in to have proportionally more individual three decades. This information suggests press, pp. 15-16; Miller et al., in press, bird and population level impacts as the that there has not been a demonstrated p. 35). amount of sagebrush declines within change in fire cycle in the Gunnison Mountain big sagebrush (Artemisia each of the remaining populations. As Basin population area to date. tridenata var. vaseyana), the most the amount of sagebrush remaining Fire in All Other Population Areas – important and widespread sagebrush within a population declines, the greater Two prescribed burns conducted in species for Gunnison sage-grouse, is the potential impact is to that 1986 (105 ha (260 ac)) and 1992 (140 ha killed by fire and can require decades to population. (350 ac)) on BLM land in the San Miguel recover. In nesting and wintering sites, The invasion of the exotic cheatgrass Basin on the north side of Dry Creek fire causes direct loss of habitat due to increases fire frequency within the Basin had negative impacts on sage- reduced cover and forage (Call and sagebrush ecosystem (Zouhar et al. grouse. The burns were conducted for Maser 1985, p. 17). While there may be 2008, p. 41; Miller et al. in press, p. 39). big game forage improvement, but the limited instances where burned habitat Cheatgrass readily invades sagebrush sagebrush died and was largely replaced is beneficial, these gains are lost if communities, especially disturbed sites, with weeds (BLM 2005b, pp. 7-8). The alternative sagebrush habitat is not and changes historical fire patterns by Burn Canyon fire in the Dry Creek Basin readily available (Woodward 2006, p. providing an abundant and easily and Hamilton Mesa areas burned 890 ha 65). ignitable fuel source that facilitates fire (2,200 ac) in 2000. Three fires have Herbaceous understory vegetation spread. While sagebrush is killed by fire occurred in Gunnison sage-grouse plays a critical role throughout the and is slow to reestablish, cheatgrass habitat since 2004 on lands managed by breeding season as a source of forage recovers within 1 to 2 years of a fire the BLM in the Crawford, Cerro and cover for Gunnison sage-grouse event (Young and Evans 1978, p. 285). Summit–Cimarron–Sims Mesa, and San females and chicks. The response of This annual recovery leads to a readily Miguel Basin population areas. There herbaceous understory vegetation to fire burnable fuel source and ultimately a have been no fires since 2004 on lands varies with differences in species reoccurring fire cycle that prevents managed by the BLM within the composition, pre-burn site condition, sagebrush reestablishment (Eiswerth et Monticello–Dove Creek population. fire intensity, and pre- and post-fire al. 2009, p. 1324). The extensive Because these fires were mostly small in patterns of precipitation. In general, distribution and highly invasive nature size, we do not believe they resulted in when not considering the synergistic of cheatgrass poses substantial increased substantial impacts to Gunnison sage- effects of invasive species, any risk of fire and permanent loss of grouse. beneficial short-term flush of understory sagebrush habitat, as areas disturbed by Several wildfires near or within the grasses and forbs is lost after only a few fire are highly susceptible to further Pı˜non Mesa population area have years and little difference is apparent invasion and ultimately habitat occurred in the past 20 years. One fire between burned and unburned sites conversion to an altered community burned a small amount of occupied (Cook et al. 1994, p. 298; Fischer et al. state. For example, Link et al. (2006, p. Gunnison sage-grouse habitat in 1995, 1996, p. 196; Crawford 1999, p. 7; 116) show that risk of fire increases and several fires burned in potential Wrobleski 1999, p. 31; Nelle et al. 2000, from approximately 46 to 100 percent Gunnison sage-grouse habitat. p. 588; Paysen et al. 2000, p. 154; when ground cover of cheatgrass Individual burned areas ranged from 3.6 Wambolt et al. 2001, p. 250). increases from 12 to 45 percent or more. ha (9 ac) to 2,160 ha (5,338 ac). A In addition to altering plant We do not have a reliable estimate of the wildfire in 2009 burned 1,053 ha (2,602 community structure, fires can amount of area occupied by cheatgrass ac), predominantly within vacant or influence invertebrate food sources in the range of Gunnison sage-grouse. unknown Gunnison sage-grouse habitat (Schroeder et al. 1999, p. 5). However, However, cheatgrass is found at (suitable habitat for sage-grouse that is because few studies have been numerous locations throughout the separated from occupied habitats that conducted and the results of those Gunnison Basin (BLM 2009, p. 60). has not been adequately inventoried, or available vary, the specific magnitude Fire in the Gunnison Basin Population without recent documentation of grouse and duration of the effects of fire on Area – Six prescribed burns have presence) near the Pı˜non Mesa insect communities is still uncertain. occurred on BLM lands in the Gunnison population. Since 2004, a single 2.8 ha A clear positive response of Gunnison Basin since 1984, totaling (7 ac) wildfire occurred in the Cerro or greater sage-grouse to fire has not approximately 409 ha (1,010 ac) (BLM Summit–Cimarron–Sims Mesa been demonstrated (Braun 1998, p. 9). 2009, p. 35). The fires created large population area, and two prescribed The few studies that have suggested fire sagebrush-free areas that were further fires, both less than 12 ha (30 ac), were may be beneficial for greater sage-grouse degraded by poor post-burn livestock implemented in the San Miguel were primarily conducted in mesic management (BLM 2005a, p. 13). As a population area. There was no fire areas used for brood-rearing (Klebenow result, these areas are no longer suitable activity within occupied Gunnison sage- 1970, p. 399; Pyle and Crawford 1996, as Gunnison sage-grouse habitat. grouse habitat in the last two decades in

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59821

the Poncha Pass population area (CDOW invasive plants fragment existing sage- subsequently increases the likelihood of 2009a, pp. 125-126) or the Monticello– grouse habitat. They can create long- cheatgrass invasion (Bradley 2009, pp. Dove Creek population area (CDOW term changes in ecosystem processes, 202-204; Prevey et al. 2009, p. 11). This 2009a, p. 75; UDWR 2009, p. 5). such as fire-cycles (see discussion under could increase the susceptibility of Fire above) and other disturbance sagebrush areas in Utah and Colorado to Summary of Fire regimes that persist even after an cheatgrass invasion (Bradley 2009, p. Fires can cause the proliferation of invasive plant is removed (Zouhar et al. 204). weeds and can degrade suitable sage- 2008, p. 33). A variety of nonnative A variety of restoration and grouse habitat, which may not recover annuals and perennials are invasive to rehabilitation techniques are used to to suitable conditions for decades, if at sagebrush ecosystems (Connelly et al. treat invasive plants, but they can be all (Pyke in press, pp. 18-19). Recent 2004, pp. 7-107 and 7-108; Zouhar et al. costly and are mostly unproven and fires in Gunnison sage-grouse habitat 2008, p. 144). Cheatgrass is considered experimental at a large scale. In the last were mostly small in size and did not most invasive in Artemisia tridentata approximately 100 years, no broad-scale result in substantial impacts to ssp. wyomingensis communities cheatgrass eradication method has been Gunnison sage-grouse, and there has (Connelly et al. 2004, p. 5-9). Other developed. Habitat treatments that been no obvious change in fire cycle in invasive plants found within the range either disturb the soil surface or deposit any Gunnison sage-grouse population of Gunnison sage-grouse that are a layer of litter increase cheatgrass area. Therefore, we do not consider fire reported to take over large areas include: establishment in the Gunnison Basin to be a significant threat to Gunnison spotted knapweed (Centaurea when a cheatgrass seed source is present sage-grouse or its habitat at this time. It maculosa), Russian knapweed (Sokolow 2005, p. 51). Therefore, is not currently possible to predict the (Acroptilon repens), oxeye daisy researchers recommend using habitat extent or location of future fire events. (Leucanthemum vulgare), yellow treatment tools, such as brush mowers, However, existing data indicates that toadflax (Linaria vulgaris), and field with caution and suggest that treated climate change has the potential to alter bindweed (Convolvulus arvensis) (BLM sites should be monitored for increases changes in the distribution and extent of 2009, p. 28, 36; Gunnison Watershed in cheatgrass emergence (Sokolow 2005, cheatgrass and sagebrush and associated Weed Commission (GWWC) 2009, pp. 4- p. 49). fire frequencies. The best available data 6). Although not yet reported to create Invasive Plants in the Gunnison Basin indicates that fire frequency may large expanses in the range of Gunnison Population Area – Quantifying the total increase in the foreseeable future (which sage-grouse, the following weeds are amount of Gunnison sage-grouse habitat we consider to be indefinite) because of also known from the species’ range and impacted by invasive plants is difficult increases in cover of cheatgrass (Zouhar do cover large expanses in other parts of due to differing sampling et al. 2008, p. 41; Miller et al. in press, methodologies, incomplete sampling, western North America: diffuse p. 39; Whisenant 1990, p. 4) and the inconsistencies in species sampled, and knapweed (Centaurea diffusa), whitetop projected effects of climate change varying interpretations of what (Cardaria draba), jointed goatgrass (Miller et al. in press, p. 47; Prevey et constitutes an infestation (Miller et al., (Aegilops cylindrica), and yellow al. 2009, p. 11) (see Invasive Plants and in press, p. 19). Cheatgrass has invaded starthistle (Centaurea solstitialis). Other Climate Change discussions below). areas in Gunnison sage-grouse range, invasive plant species present within Therefore, fire is likely to become an supplanting sagebrush habitat in some the range of Gunnison sage-grouse that increasingly significant threat to the areas. However, we do not have a are problematic yet less likely to Gunnison sage-grouse in the foreseeable reliable estimate of the amount of area overtake large areas include: Canada future. occupied by cheatgrass in the range of thistle (Cirsium arvense), musk thistle Gunnison sage-grouse. While not Invasive Plants (Carduus nutans), bull thistle (Cirsium ubiquitous, cheatgrass is found at For the purposes of this finding, we vulgare), houndstongue (Cynoglossum numerous locations throughout the define invasive plants as those that are officinale), black henbane (Hyoscyamus Gunnison Basin (BLM 2009, p. 60). not native to an ecosystem and that have niger), common tansy (Tanacetum Cheatgrass infestation within a a negative impact on Gunnison sage- vulgare), and absinth wormwood particular area can range from a small grouse habitat. Invasive plants alter (Artemisia biennis) (BLM 2009, p. 28, number of individuals scattered native plant community structure and 36; GWWC 2009, pp. 4-6). sparsely throughout a site, to complete composition, productivity, nutrient Cheatgrass impacts sagebrush or near-complete understory domination cycling, and hydrology (Vitousek 1990, ecosystems by potentially shortening of a site. Cheatgrass has increased p. 7) and may cause declines in native fire intervals from several decades, throughout the Gunnison Basin in the plant populations through competitive depending on the type of sagebrush last decade and is becoming exclusion and niche displacement, plant community and site productivity, increasingly detrimental to sagebrush among other mechanisms (Mooney and to as low as 3 to 5 years, perpetuating community types (BLM 2009, p. 7). Cleland 2001, p. 5446). Invasive plants its own persistence and intensifying the Currently in the Gunnison Basin, reduce and, in cases where role of fire (Whisenant 1990, p. 4). cheatgrass attains site dominance most monocultures of them occur, eliminate Connelly et al. (2004, p. 7-5) suggested often along roadways; however, other vegetation that sage-grouse use for food that cheatgrass shortens fire intervals to highly disturbed areas have similar and cover. Invasive plants do not less than 10 years. As discussed under cheatgrass densities. Cheatgrass is provide quality sage-grouse habitat. the discussion of climate change below, currently present in almost every Sage-grouse depend on a variety of temperature increases may increase the grazing allotment in Gunnison sage- native forbs and the insects associated competitive advantage of cheatgrass in grouse occupied habitat and other with them for chick survival, and higher elevation areas where its current invasive plant species, such as Canada sagebrush, which is used exclusively distribution is limited (Miller et al. in thistle, black henbane, spotted throughout the winter for food and press, p. 47). Decreased summer knapweed, Russian knapweed, Kochia, cover. precipitation reduces the competitive bull thistle, musk thistle, oxeye daisy, Along with replacing or removing advantage of summer perennial grasses, yellow toadflax and field bindweed, are vegetation essential to sage-grouse, reduces sagebrush cover, and found in riparian areas and roadsides

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 59822 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

throughout the Gunnison Basin (BLM (1,284 ac) of BLM lands are currently bunchgrass communities (Miller and 2009, p. 7). mapped with cheatgrass as the Tausch 2001, pp. 15-16). Pı˜non-juniper Although disturbed areas most often dominant species (BLM 2009, p. 3). This woodlands have also been expanding contain the highest cheatgrass densities, is not a comprehensive inventory of throughout portions of the range of cheatgrass can readily spread into less cheatgrass occurrence, as it only Gunnison sage-grouse (BLM 2009, pp. disturbed and even undisturbed habitat. includes areas where cheatgrass 14, 17, 25). Pı˜non-juniper expansion has A strong indicator for future cheatgrass dominates the plant community and been attributed to the reduced role of locations is the proximity to current does not include areas where the fire, the introduction of livestock locations (Bradley and Mustard 2006, p. species is present at lower densities. grazing, increases in global carbon 1146) as well as summer, annual, and Cheatgrass distribution has not been dioxide concentrations, climate change, spring precipitation, and winter comprehensively mapped for the and natural recovery from past temperature (Bradley 2009, p. 196). Monticello–Dove Creek population area; disturbance (Miller and Rose 1999, pp. Although we lack the information to however, cheatgrass is beginning to be 555-556; Miller and Tausch 2001, p. 15; make a detailed determination on the assessed on a site-specific and project- Baker, in press, p. 24). In addititon, actual extent or rate of increase, given level basis. No significant invasive plant Gambel oak invasion as a result of fire its invasive nature, we believe occurrences are currently known in the suppression also has been identified as cheatgrass and its negative influence on Poncha Pass population area. a potential threat to Gunnison sage- Gunnison sage-grouse will increase in grouse (CDOW 2002, p. 139). the Gunnison Basin in the future Summary of Invasive Plants Similar to powerlines, trees provide because of potential exacerbation from Invasive plants negatively impact perches for raptors, and as a climate change interactions and the Gunnison sage-grouse primarily by consequence, Gunnison sage-grouse limited success of broad-scale control reducing or eliminating native avoid areas with Pı˜non-juniper efforts. vegetation that sage-grouse require for (Commons et al. 1999, p. 239). The Invasive Plants in All Other food and cover, resulting in habitat loss number of male Gunnison sage-grouse Population Areas – Cheatgrass is and fragmentation. Although invasive on leks in southwest Colorado doubled present throughout much of the current plants, especially cheatgrass, have after Pı˜non-juniper removal and range in the San Miguel Basin (BLM affected some Gunnison sage-grouse mechanical treatment of mountain 2005c, p. 62005d), but is most abundant habitat, the impacts do not currently sagebrush and deciduous brush in the Dry Creek Basin group (CDOW appear to be threatening individual (Commons et al. 1999, p. 238). 2005a, p. 101), which comprises 62 populations or the species rangewide. Pı˜non-Juniper Encroachment in All percent of the San Miguel Basin However, invasive plants continue to Population Areas – We have no population. It is present in the five expand their range, facilitated by information indicating that the Gunnison sage-grouse subpopulations ground disturbances such as fire, Gunnison Basin population area is east of Dry Creek Basin although at grazing, and human infrastructure. currently undergoing significant Pı˜non- much lower densities and does not Climate change will likely alter the juniper encroachment. A significant currently pose a serious threat to range of individual invasive species, portion of the Pı˜non Mesa population is Gunnison sage-grouse (CDOW 2005a, p. increasing fragmentation and habitat undergoing Pı˜non-juniper 101). Invasive species are present at low loss of sagebrush communities. Even encroachment. Approximately 9 percent levels in the Monticello group (San Juan with treatments, given the history of (1,140 ha [3,484 ac]) of occupied habitat County GSGWG 2005, p. 20). However, invasive plants on the landscape, and in the Pı˜non Mesa population area have there is no evidence that they are our continued inability to control such Pı˜non-juniper coverage, while 7 percent affecting the population. Cheatgrass species, we anticipate invasive plants (4,414 ha [10,907 ac)] of vacant or dominates 10–15 percent of the will persist and will likely continue to unknown and 13 percent (7,239 ha sagebrush understory in the current spread throughout the range of the [17,888 ac]) of potential habitat range of the Pı˜non Mesa population species. Therefore, invasive plants and (unoccupied habitats that could be (Lambeth 2005, pers comm.). It occurs associated fire risk will be on the suitable for occupation of sage-grouse if in the lower elevation areas below landscape for the foreseeable future. practical restoration were applied) have Pı˜non Mesa that were formerly Although currently not a significant encroachment (BLM 2009, p. 17). Gunnison sage-grouse range. Cheatgrass threat to the Gunnison sage-grouse at Some areas on lands managed by the invaded two small prescribed burns in the species level, we anticipate invasive BLM are known to be undergoing Pı˜non- or near occupied habitat conducted in species to become an increasingly juniper invasion. However, the extent of 1989 and 1998 (BLM 2005d, p. 62005a), significant threat to the species in the the area affected has not been quantified and continues to be a concern with new foreseeable future, particularly when (BLM 2009, p. 74; BLM 2009, p. 9). ground-disturbing projects. Invasive considered in conjunction with future Approximately 9 percent of the 1,300 ha plants, especially cheatgrass, occur climate projections and potential (3,200 ac) of the current range in the primarily along roads, other disturbed changes in sagebrush plant community Crawford population is classified as areas, and isolated areas of untreated composition and dynamics. dominated by Pı˜non-juniper (GSRSC vegetation in the Crawford population. 2005, p. 264). However, BLM (2005d, p. The threat of cheatgrass may be greater Pı˜non-Juniper Encroachment 8) estimates that as much as 20 percent to sage-grouse than all other nonnative Pı˜non-juniper woodlands are a native of the population area is occupied by species combined and could be a habitat type dominated by Pı˜non pine Pı˜non-juniper. Pı˜non and juniper trees significant limiting factor when and if (Pinus edulis) and various juniper have been encroaching in peripheral disturbance is used to improve habitat species (Juniperus spp.) that can habitat on Sims Mesa, and to a lesser conditions, unless mitigated (BLM encroach upon, infill, and eventually extent on Cerro Summit, but not to the 2005c, p. 6). No current estimates of the replace sagebrush habitat. Pı˜non-juniper point where it is a serious threat to the extent of weed invasion are available extent has increased 10-fold in the Cerro Summit–Cimarron–Sims Mesa (BLM 2005c, p. 82005d). Intermountain West since population area (CDOW 2009a, p. 47). Within the Pı˜non Mesa Gunnison EuroAmerican settlement, causing the Pı˜non and juniper trees are reported to sage-grouse population area, 520 ha loss of many bunchgrass and sagebrush- be encroaching throughout the current

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59823

range in the Monticello group, based on Domestic Grazing and Wild Ungulate for predator avoidance (Gregg et al. a comparison of historical versus Herbivory 1994, p. 165). Based on measurements current aerial photos, but no At least 87 percent of occupied of cattle foraging rates on bunchgrasses quantification or mapping of the Gunnison sage-grouse habitat on Federal both between and under sagebrush encroachment has occurred (San Juan lands is currently grazed by domestic canopies, the probability of foraging on County GSWG 2005, p. 20). A relatively livestock (USFWS 2010c, entire). We under-canopy bunchgrasses depends on recent invasion of Pı˜non and juniper lack information on the proportion of sagebrush size and shape and, trees between the Dove Creek and Gunnison sage-grouse habitat on private consequently, the effects of grazing on Monticello groups appears to be lands that is currently grazed. Excessive nesting habitats might be site specific contributing to their isolation from each grazing by domestic livestock during the (France et al. 2008, pp. 392-393). Several authors have noted that other (GSRSC 2005, p. 276). late 1800s and early 1900s, along with grazing by livestock could reduce the severe drought, significantly impacted Within the range of Gunnison sage- suitability of breeding and brood-rearing grouse, approximately 5,341 ha (13,197 sagebrush ecosystems (Knick et al. 2003, habitat, negatively affecting sage-grouse ac) of Pı˜non-juniper have been treated p. 616). Although current livestock populations (Braun 1987, p. 137; Dobkin with various methods designed to stocking rates in the range of Gunnison 1995, p. 18; Connelly and Braun 1997, remove Pı˜non and juniper trees since sage-grouse are substantially lower than p. 231; Beck and Mitchell 2000, pp. 998- 2005, and nearly half of which occurred historical levels (Laycock et al. 1996, p. 1000). Domestic livestock grazing 3), long-term effects from this in the Pı˜non Mesa population (CDOW reduces water infiltration rates and the overgrazing, including changes in plant 2009c, entire). Mechanical treatment of cover of herbaceous plants and litter, communities and soils, persist today areas experiencing Pı˜non-juniper compacts the soil, and increases soil (Knick et al. 2003, p.116). erosion (Braun 1998, p. 147; Dobkin et encroachment continues to be one of the Although livestock grazing and most successful and economical habitat al. 1998, p. 213). These impacts change associated land treatments have likely the proportion of shrub, grass, and forb treatments for the benefit of Gunnison altered plant composition, increased sage-grouse. components in the affected area, and topsoil loss, and increased spread of facilitate invasion of exotic plant Summary of Pı˜non-Juniper exotic plants, the impacts on Gunnison species that do not provide suitable Encroachment sage-grouse are not clear. Few studies habitat for sage-grouse (Mack and have directly addressed the effect of Thompson 1982, p. 761; Miller and Most Gunnison sage-grouse livestock grazing on sage-grouse (Beck Eddleman 2000, p. 19; Knick et al., in population areas are experiencing low and Mitchell 2000, pp. 998-1000; press, p. 41). to moderate levels of Pı˜non-juniper Wamboldt et al. 2002, p. 7; Crawford et Livestock may compete directly with encroachment; however, Pı˜non-juniper al. 2004, p. 11), and little direct sage-grouse for rangeland resources. encroachment in the Pı˜non Mesa experimental evidence links grazing Cattle are grazers, feeding mostly on population has been significant. The practices to Gunnison sage-grouse grasses, but they will make seasonal use encroachment of Pı˜non-juniper into population levels (Braun 1987, pp. 136- of forbs and shrub species like sagebrush habitats contributes to the 137, Connelly and Braun 1997, p. 7-9). sagebrush (Vallentine 1990, p. 226), a fragmentation of Gunnison sage-grouse Rowland (2004, p. 17-18) conducted a primary source of nutrition for sage- habitat. However, Pı˜non-juniper literature review and found no grouse. A sage-grouse hen’s nutritional treatments, particularly when experimental research that demonstrates condition affects nest initiation rate, completed in the early stages of grazing alone is responsible for clutch size, and subsequent encroachment when the sagebrush and reduction in sage-grouse numbers. reproductive success (Barnett and Despite the obvious impacts of forb understory is still intact, have the Crawford 1994, p. 117; Coggins 1998, p. grazing on plant communities within potential to provide an immediate 30). Other effects of direct competition the range of the species, the GSRSC benefit to sage-grouse. Approximately between livestock and sage-grouse (2005, p. 114) could not find a direct 5,341 ha (13,197 ac) of Pı˜non-juniper depend on condition of the habitat and correlation between historic grazing and encroachment within the range of the grazing practices. Thus, the effects reduced Gunnison sage-grouse numbers. Gunnison sage-grouse has been treated. vary across the range of Gunnison sage- While implications on population-level grouse. For example, poor livestock We expect Pı˜non-juniper encroachment impacts from grazing can be made based management in mesic sites results in a and corresponding treatment efforts to on impacts of grazing on individuals, no reduction of forbs and grasses available continue into the foreseeable future, studies have documented (positively or to sage-grouse chicks, thereby affecting which we consider to be indefinite for negatively) the actual impacts of grazing chick survival (Aldridge and Brigham this threat. Although Pı˜non-juniper at the population level. 2003, p. 30). Chick survival is one of the encroachment is contributing to habitat Sage-grouse need significant grass and most important factors in maintaining fragmentation in a limited area, the level shrub cover for protection from Gunnison sage-grouse population of encroachment is not sufficient to pose predators, particularly during nesting viability (GSRSC 2005, p. 173). a significant threat to Gunnison sage- season, and females will preferentially Livestock can trample sage-grouse and grouse at a population or rangewide choose nesting sites based on these its habitat. Although the effect of level either now or in the foreseeable qualities (Hagen et al. 2007, p. 46). In trampling at a population level is future. Pı˜non-juniper encroachment particular, nest success in Gunnison unknown, outright nest destruction has may become an increasingly significant sage-grouse habitat is related to greater been documented, and the presence of threat to the Gunnison sage-grouse if grass and forb heights and shrub density livestock can cause sage-grouse to mechanical treatment of areas (Young 1994, p. 38). The reduction of abandon their nests (Rasmussen and experiencing Pı˜non-juniper grass heights due to livestock grazing in Griner 1938, p. 863; Patterson 1952, p. encroachment declines, and if suitable sage-grouse nesting and brood-rearing 111; Call and Maser 1985, p. 17; habitat continues to be lost due to other areas has been shown to negatively Holloran and Anderson 2003, p. 309; threats such as residential and affect nesting success when cover is Coates 2007, p. 28). Coates (2007, p. 28) associated infrastructure development. reduced below the 18 cm (7 in.) needed documented nest abandonment

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 59824 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

following partial nest depredation by a press, p. 15). But, if an area has soil loss management plans or Records of cow. In general, all recorded encounters or invasive species, returning the site to Decision for permit renewals (USFWS between livestock and grouse nests the native historical plant community 2010c, pp. 1-2). Habitat objectives for resulted in hens flushing from nests, may be impossible (Daubenmire 1970, Gunnison sage-grouse within allotment which could expose the eggs to p. 82; Knick et al., in press, p. 39; Pyke, management plans were designed such predation. Visual predators like ravens in press, p. 17). Aldridge et al. (2008, p. that they provide good habitat for the likely use hen movements to locate 990) did not find any relationship species when allotments are managed in sage-grouse nests (Coates 2007, p. 33). between sage-grouse persistence and accordance with the objectives. In 2009, Livestock also may trample sagebrush livestock densities. However, the 57 percent of the area of occupied seedlings, thereby removing a source of authors noted that livestock numbers do habitat in active BLM grazing allotments future sage-grouse food and cover not necessarily correlate with range (45 percent of the entire Gunnison Basin (Connelly et al. 2004, pp. 7-31). condition. They concluded that the population area) had a recently Trampling of soil by livestock can intensity, duration, and distribution of completed land health assessment reduce or eliminate biological soil crusts livestock grazing are more influential on (LHA), and 94 percent of the area in making these areas susceptible to rangeland condition than the livestock occupied habitat in active allotments cheatgrass invasion (Mack 1981, pp. density values used in their modeling was deemed by the BLM as not meeting 148-149; Young and Allen 1997, p. 531). efforts (Aldridge et al. 2008, p. 990). LHA objectives specific to Gunnison Livestock grazing may have positive Currently, there is little direct evidence sage-grouse. The remainder of the LHA- effects on sage-grouse under some linking grazing practices to population monitored allotments were deemed to habitat conditions. Evans (1986, p. 67) levels of Gunnison or greater sage- be meeting objectives or as ‘‘unknown’’. found that sage-grouse used grazed grouse. Although grazing has not been LHAs are assessments of the on-the- meadows significantly more during late examined at large spatial scales, as ground condition and represent the best summer than ungrazed meadows discussed above, we do know that available information on the status of because grazing had stimulated the grazing can have negative impacts to the habitat. We are uncertain of habitat regrowth of forbs. Greater sage-grouse individuals, nests, breeding conditions on the remaining 55 percent sought out and used openings in productivity, and sagebrush and, of BLM lands in the Gunnison Basin. meadows created by cattle grazing in consequently, to sage-grouse at local Based on the assumption that the same northern Nevada (Klebenow 1981, p. scales. proportion of these lands are also not 121). Also, both sheep and goats have Public Lands Grazing in the Gunnison meeting LHA objectives results in an been used to control invasive weeds Basin Population Area – Our analysis of estimate of 94 percent of BLM lands in (Mosley 1996 in Connelly et al. 2004, grazing is focused on BLM lands the Gunnison Basin not meeting LHA pp. 7-49; Merritt et al. 2001, p. 4; Olsen because nearly all of the information and Wallander 2001, p. 30) and woody available to us regarding current grazing objectives specific to Gunnison sage- plant encroachment (Riggs and Urness management within the range of grouse habitat. This analysis indicates 1989, p. 358) in sage-grouse habitat. Gunnison sage-grouse was provided by that, without taking into account habitat Sagebrush plant communities are not the BLM. However, this information is conditions on private lands and other adapted to domestic grazing pertinent to over 40 percent of the land Federal and State lands, up to 48 disturbance. Grazing changed the area currently occupied by Gunnison percent of the entire Gunnison Basin functioning of systems into less sage-grouse. A summary of domestic population area is not providing optimal resilient, and in some cases, altered livestock grazing management on BLM habitat conditions for Gunnison sage- communities (Knick et al., in press, p. and USFS lands in occupied Gunnison grouse. 39). The ability to restore or rehabilitate sage-grouse habitat is provided in Table The fact that most grazing allotments areas depends on the condition of the 3. The BLM manages approximately are not meeting LHA objectives area relative to the ability of a site to 122,376 ha (301,267 ac), or 51 percent indicates that grazing is a factor that is support a specific plant community of the area currently occupied by likely contributing to Gunnison sage- (Knick et al., in press, p. 39). For Gunnison sage-grouse in the Gunnison grouse habitat degradation. In addition, example, if an area has a balanced mix Basin, and approximately 98 percent of grazing has negatively impacted several of shrubs and native understory this area is actively grazed. The USFS Gunnison sage grouse treatments vegetation, a change in grazing manages approximately 34,544 ha (projects aimed at improving habitat management can restore the habitat to (85,361 ac) or 14 percent of the condition) in the Gunnison Basin (BLM its potential historic species occupied portion of the Gunnison Basin 2009, p. 34). Although these areas are composition (Pyke, in press, p. 11). population area. In 2009, within the generally rested for 2 years after Wambolt and Payne (1986, p. 318) occupied range in the Gunnison Basin treatment, several have been heavily found that rest from grazing had a better population, 13 of 62 (21 percent) active used by cattle shortly after the perennial grass response than other BLM grazing allotments and 3 of 35 (9 treatment, and the effectiveness of the treatments. Active restoration would be percent) of USFS grazing allotments had treatments decreased (BLM 2009, p. 34) required where native understory Gunnison sage-grouse habitat objectives and reduced the potential benefits of the vegetation is much reduced (Pyke, in incorporated into the allotment treatments.

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59825

TABLE 3. SUMMARY OF DOMESTIC LIVESTOCK GRAZING MANAGEMENT ON BLM AND USFS LANDS IN OCCUPIED HABITAT FOR EACH OF THE GUNNISON SAGE-GROUSE POPULATIONS (FROM USFWSA 2010C, COMPILATION OF DATA PROVIDED BY BLMB AND USFSC).

Percent Assessed BLM Number of Ac- Number of Ac- Active Allotments BLM Allotments Allotments Population tive USFS Al- tive BLM Allot- with GUSGd with Completed e Meeting LHA lotments ments Objectives LHA Objectives

Gunnison 34 62 21 66 22

San Miguel Basin no data 13 0 77 40

Monticello–Dove Creek:

Dove Creek n/a 3 0 0 0

Monticello n/af 6 100 83 80

Pin˜on Mesa no data 15 53 27 100

Cerro Summit–Cimarron–Sims Mesa n/af 10 10 50 40

Crawfordg n/af 7 71 100 86

Poncha Pass no data 8 13 100 100

Rangewide Averages 34 63 59 aUnited States Fish and Wildlife Service bBureau of Land Management cUnited States Forest Service dGunnison sage-grouse eLand Health Assessments fNo United States Forest Service Land in occupied habitat in this population area. fIncludes allotments on National Park Service lands but managed by the Bureau of Land Management.

Public Lands Grazing in All Other active BLM grazing allotments have degradation in the Monticello Population Areas – The BLM manages Gunnison sage-grouse habitat objectives population group. approximately 36 percent of the area incorporated into the allotment The BLM manages 28 percent of currently occupied by Gunnison sage- management plans or Records of occupied habitat in the Pı˜non Mesa grouse in the San Miguel Basin, and Decision for permit renewals (USFWS population area, and approximately 97 approximately 79 percent of this area is 2010c, p. 3). In 2009, no active percent of this area is grazed. Over 50 actively grazed. Within the occupied allotments in occupied habitat had percent of occupied habitat in this range in the San Miguel population, no completed LHAs. Gunnison sage-grouse population area is privately owned and, active BLM grazing allotments have are not explicitly considered in grazing while grazing certainly occurs on these Gunnison sage-grouse habitat objectives management planning, and the lack of lands, we have no information on its incorporated into the allotment habitat data limits our ability to extent. Within the occupied range in the management plans or Records of determine the impact to the habitat on Pı˜non Mesa population, 8 of 15 (53 Decision for permit renewals (USFWS public lands. percent) active BLM grazing allotments 2010c, p. 9). In 2009, 10 of 15 (77 have Gunnison sage-grouse habitat percent) active allotments had LHAs The BLM manages on 4 percent of the objectives incorporated into the completed in the last 15 years; 4 of 10 occupied habitat in the Monticello allotment management plans or Records allotments (40 percent) were deemed by group, and 83 percent of this area is of Decision for permit renewals (USFWS the BLM to meet LHA objectives. grazed. Within the occupied range in 2010c, p. 5). In 2009, 23 percent of the Gunnison sage-grouse habitat within the the Monticello group, 6 of 6 active BLM area of occupied Gunnison sage-grouse 60 percent of allotments not meeting grazing allotments have Gunnison sage- habitat in active allotments in the Pı˜non LHA objectives and the 5 allotments grouse habitat objectives incorporated Mesa population area had LHAs with no LHAs completed are likely into the allotment management plans or completed in the last 15 years, and all being adversely impacted by grazing. Records of Decision for permit renewals of these were deemed by the BLM to Therefore, it appears that grazing in a (USFWS 2010c, p. 6). In 2009, 88 meet LHA objectives. Therefore, for the large portion of this population area is percent of the area of occupied habitat portion of the Pı˜non Mesa population a factor that is likely contributing to in active allotments had a recently area for which we have information, it Gunnison sage-grouse habitat completed LHA. Approximately 60 appears that grazing is not likely degradation. percent of the area in occupied habitat significantly contributing to Gunnison The BLM manages 11 percent of the in active allotments were deemed by the sage-grouse habitat degradation. occupied habitat in the Dove Creek BLM to meet LHA objectives. This The BLM manages on 13 percent of group, and 41 percent of this area is information suggests that grazing the the occupied habitat in the Cerro actively grazed. Within the occupied majority of lands managed by the BLM Summit–Cimarron–Sims Mesa range in the Dove Creek group of the is not likely significantly contributing to population area, and 83 percent of this Monticello–Dove Creek population, no Gunnison sage-grouse habitat area is grazed. Within the occupied

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 59826 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

range in the Cerro Summit–Cimarron– where present, has the potential to Basin (Jupuntich et al. 2010, pp. 7-9). Sims Mesa population, 1 of 10 (10 impact Gunnison sage-grouse, but we The authors raised concerns that percent) active BLM grazing allotments lack sufficient information to make an observed reductions in shrub size and have Gunnison sage-grouse habitat assessment. Table 1 summarizes the vigor will reduce drifting snow objectives incorporated into the percentage of land area potentially accumulation, resulting in decreased allotment management plans or Records available to grazing within each of the moisture availability to grasses and of Decision for permit renewals (USFWS populations. forbs during the spring melt. Reduced 2010c, p. 7). In 2009, 5 of the 10 active As discussed earlier, some private grass and forb growth could negatively allotments had LHAs completed in the lands are enrolled in the CRP program impact Gunnison sage-grouse nesting last 15 years and 3 (60 percent) of these and provide some benefits to Gunnison and early brood-rearing habitat. were deemed by the BLM as not meeting sage-grouse. The CRP land in the Grazing Summary LHA objectives. Therefore, for the small Monticello group has provided a portion of the Cerro Summit–Cimarron– considerable amount of brood-rearing Livestock management and domestic Sims Mesa population area for which habitat because of its forb component. grazing have the potential to seriously we have information, it appears that Grazing of CRP land in Utah occurred in degrade Gunnison sage-grouse habitat. grazing is a factor that is likely 2002 under emergency Farm Bill Grazing can adversely impact nesting contributing to some Gunnison sage- provisions due to drought and removed and brood-rearing habitat by decreasing grouse habitat degradation. at least some of the grass and forb vegetation available for concealment Lands administered by the BLM and habitat component thus likely from predators. Grazing also has been NPS comprise over 75 percent of negatively affecting Gunnison sage- shown to compact soils, decrease occupied habitat in the Crawford grouse chick survival. Radio-collared herbaceous abundance, increase population, and 96 percent of this area males and non-brood-rearing females erosion, and increase the probability of is actively grazed. Grazing allotments on exhibited temporary avoidance of invasion of exotic plant species. NPS lands in this area are administered grazed fields during and after grazing The impacts of livestock operations by the BLM. Within occupied range in (Lupis et al. 2006, pp. 959-960), on Gunnison sage-grouse depend upon the Crawford population, 1 of 7 (14 although one hen with a brood stocking levels and season of use. We percent) active BLM grazing allotments continued to use a grazed CRP field. recognize that not all livestock grazing have Gunnison sage-grouse habitat This indicates that when CRP lands are result in habitat degradation and many objectives incorporated into the grazed, negative impacts to their habitat livestock operations within the range of allotment management plans or Records and behavior may result. Since we have Gunnison sage-grouse are employing of Decision for permit renewals (USFWS very little information on the status of innovative grazing strategies and 2010c, p. 8). In 2009, all of the active Gunnison sage-grouse habitat on non- conservation actions (Gunnison County allotments had LHAs completed in the federal lands, we cannot assess whether Stockgrowers 2009, entire). However, last 15 years, and 86 percent were the impacts that are occurring rise to the available information suggests that LHA deemed by the BLM to meet LHA level of being a threat. objectives specific to Gunnison sage- objectives. Seasonal forage utilization Wild Ungulate Herbivory in All grouse are not being met on more than levels were below 30 percent in most Population Areas – Overgrazing by deer 50 percent of BLM-managed occupied Crawford Area allotments, although a and elk may cause local degradation of Gunnison sage-grouse habitat in the small number of allotments had nearly habitats by removal of forage and Gunnison Basin, San Miguel Basin, and 50 percent utilization (BLM 2009x, p. residual hiding and nesting cover. the Cerro Summit–Cimarron–Sims Mesa 68). Based on this information, it Hobbs et al. (1996, pp. 210-213) population areas. Cumulatively, the appears that grazing is not likely documented a decline in available BLM-managed portion of these significantly contributing to Gunnison perennial grasses as elk densities populations constitutes approximately sage-grouse habitat degradation in the increased. Such grazing could 33 percent of the entire range of the majority of the Crawford population negatively impact nesting cover for sage- species. Reduced habitat quality, as area. grouse. The winter range of deer and elk reflected in unmet LHA objectives is The BLM manages nearly half of overlaps the year-round range of the likely to negatively impact Gunnison occupied habitat in the Poncha Pass Gunnison sage-grouse. Excessive but sage-grouse, particularly nesting and population area, and approximately 98 localized deer and elk grazing has been early brood-rearing habitat, and chick percent of this area is actively grazed. documented in the Gunnison Basin survival is one of the most important Within the occupied range in the (BLM 2005a, pp. 17-18; Jones 2005, factors in maintaining Gunnison sage- Poncha Pass population, 1 of 8 (13 pers. comm.). grouse population viability (GSRSC percent) active BLM grazing allotments Grazing by deer and elk occurs in all 2005, p. 173). have Gunnison sage-grouse habitat Gunnison sage-grouse population areas. We know that grazing can have objectives incorporated into the Although we have no information negative impacts to sagebrush and allotment management plans or Records indicating that competition for consequently to Gunnison sage-grouse of Decision for permit renewals (USFWS resources is limiting Gunnison sage- at local scales. Available data indicates 2010c, p. 4). In 2009, all active grouse in the Gunnison Basin, BLM that impacts to sagebrush are occurring allotments in occupied habitat had observed that certain mountain shrubs on a significant portion of the range of completed LHAs, and all were meeting were being browsed heavily by wild the species. Given the widespread LHA objectives. Based on this ungulates (BLM 2009, p. 34). nature of grazing within the range of information it appears that grazing is Subsequent results of monitoring in Gunnison sage-grouse, the potential for not likely significantly contributing to mountain shrub communities indicated population-level impacts is highly Gunnison sage-grouse habitat that drought and big game were having likely. Further, we expect grazing to degradation in the majority of the large impacts on the survivability and persist throughout the range of Poncha Pass population area. size of mountain mahogany Gunnison sage-grouse for the Non-federal Lands Grazing in All (Cercocarpus utahensis), bitterbrush foreseeable future. Effects of domestic Population Areas –Livestock grazing on (Purshia tridentata), and serviceberry livestock grazing are likely being private and other non-federal lands, (Amelanchier alnifolia) in the Gunnison exacerbated by intense browsing of

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59827

woody species by wild ungulates in generators and powerlines (Connelly et Dove Creek population, and 1 in each of portions of the Gunnison Basin. We al. 2004, p. 7-39; BLM 2007, p. 2-110). the Crawford and Cerro Summit– conclude that habitat degradation that Surveys for recoverable resources occur Cimarron–Sims Mesa populations can result from improper grazing is a primarily through noisy seismic (derived from Colorado Oil and Gas significant threat to Gunnison sage- exploration activities. These surveys can Commission 2010, GIS dataset). grouse now and in the foreseeable result in the crushing of vegetation. No federally leased lands exist within future. Well pads vary in size from 0.10 ha the Gunnison Basin population area (0.25 ac) for coal-bed natural gas wells (BLM and USFS 2010). The Monticello Nonrenewable Energy Development in areas of level topography to greater group is in an area of high energy Energy development on Federal (BLM than 7 ha (17.3 ac) for deep gas wells potential (GSRSC 2005, p. 130); and USFS) lands is regulated by the and multiwell pads (Connelly et al. however, less than two percent of the BLM and can contain conservation 2004, pp. 7-39; BLM 2007, pp. 2-123). population area contains Federal leases measures for wildlife species (see Factor Pads for compressor stations require 5– upon which production is occurring, D for a more thorough discussion). The 7 ha (12.4–17.3 ac) (Connelly et al. 2004, and no producing leases occur in BLM (1999, p. 1) classified the area pp. 7-39). currently occupied Gunnison sage- encompassing all Gunnison sage-grouse The amount of direct habitat loss grouse habitat (BLM Geocommunicator, habitat for its gas and oil potential. within an area is ultimately determined 2010). No oil and gas wells or Three of the populations have areas by well densities and the associated loss authorized Federal leases are within the with high (San Miguel Basin, Monticello from ancillary facilities. Roads Pı˜non Mesa population area (BLM 2009, group) or medium (Crawford) oil and associated with oil and gas development p. 1; BLM Geocommunicator), and no gas potential. San Miguel County, where were suggested to be the primary impact potential for oil or gas exists in this area much oil and gas activity has occurred to greater sage-grouse due to their except for a small area on the eastern in the last few years, ranked 9 out of 39 persistence and continued use even edge of the largest habitat block (BLM in Colorado counties producing natural after drilling and production ceased 1999, p. 1; GSRSC 2005, p. 130). The gas in 2009 (Colorado Oil and Gas (Lyon and Anderson 2003, p. 489). Crawford population is in an area with Conservation Commission 2010, p. 1) Declines in male greater sage-grouse lek high to medium potential for oil and gas and 29 of 39 in oil production in 2009 attendance were reported within 3 km development (GSRSC 2005, p. 130). A (Colorado Oil and Gas Conservation (1.9 mi) of a well or haul road with a single authorized Federal lease (BLM commission 2010, p. 2). traffic volume exceeding one vehicle per Geocommunicator) constitutes less than Energy development impacts sage- day (Holloran 2005, p. 40). Because of 1 percent of the Crawford population grouse and sagebrush habitats through reasons discussed previously, we area. direct habitat loss from well pad believe the effects to Gunnison sage- Energy development is occurring construction, seismic surveys, roads, grouse are similar to those observed in primarily in the San Miguel Basin powerlines and pipeline corridors, and greater sage-grouse. Sage-grouse also Gunnison sage-grouse population area indirectly from noise, gaseous may be at increased risk for collision in Colorado. The entire San Miguel emissions, changes in water availability with vehicles simply due to the Basin population area has high potential and quality, and human presence. The increased traffic associated with oil and for oil and gas development (GSRSC interaction and intensity of effects could gas activities (Aldridge 1998, p. 14; BLM 2005, p. 130). Approximately 13 percent cumulatively or individually lead to 2003, p. 4-222). of occupied habitat area within the San habitat fragmentation (Suter 1978, pp. 6- Habitat fragmentation resulting from Miguel Basin population has authorized 13; Aldridge 1998, p. 12; Braun 1998, oil and gas development infrastructure, Federal leases; of that, production is pp. 144-148; Aldridge and Brigham including access roads, may have occurring on approximately 5 percent 2003, p. 31; Knick et al. 2003, pp. 612, greater effects on sage-grouse than the (BLM National Integrated Lands System 619; Lyon and Anderson 2003, pp. 489- associated direct habitat losses. Energy (NILS) p. 1). Currently, 25 gas wells are 490; Connelly et al. 2004, pp. 7-40 to 7- development and associated active within occupied habitat of the 41; Holloran 2005, pp. 56-57; Holloran infrastructure works cumulatively with San Miguel Basin, and an additional 18 2007 et al.,, pp. 18-19; Aldridge and other human activity or development to active wells occur immediately adjacent Boyce 2007, pp. 521-522; Walker et al. decrease available habitat and increase to occupied habitat (San Miguel County 2007a, pp. 2652-2653; Zou et al. 2006, fragmentation. Greater sage-grouse leks 2009, p. 1). All of these wells are in or pp. 1039-1040; Doherty et al. 2008, p. had the lowest probability of persisting near the Dry Creek group. The exact 193; Leu and Hanser, in press, p. 28). (40–50 percent) in a landscape with less locations of any future drill sites are not Increased human presence resulting than 30 percent sagebrush within 6.4 known, but because the area is small, from oil and gas development can km (4 mi) of the lek (Walker et al. 2007a, they will likely lie within 3 km (2 mi) impact sage-grouse either through p. 2652). These probabilities were even of one of only three leks in this group avoidance of suitable habitat, or less in landscapes where energy (CDOW 2005a, p. 108). disruption of breeding activities (Braun development also was a factor. Although the BLM has deferred et al. 2002, pp. 4-5; Aldridge and Nonrenewable Energy Development in (temporarily withheld from recent lease Brigham 2003, pp. 30-31; Aldridge and All Population Areas – Approximately sales) oil and gas parcels nominated for Boyce 2007, p. 518; Doherty et al. 2008, 33 percent of the Gunnison Basin leasing in occupied Gunnison sage- p. 194). population area ranked as low oil and grouse habitat in Colorado since 2005, The development of oil and gas gas potential with the remainder having we expect energy development in the resources requires surveys for no potential for oil and gas development San Miguel Basin on public and private economically recoverable reserves, (GSRSC 2005, p. 130). Forty-three gas lands to continue over the next 20 years construction of well pads and access wells occur on private lands within the based on the length of development and roads, subsequent drilling and occupied range of the Gunnison sage- production projects described in extraction, and transport of oil and gas, grouse. Of these, 27 wells occur in the existing project and management plans. typically through pipelines. Ancillary San Miguel population, 8 in the Current impacts from gas development facilities can include compressor Gunnison Basin population, 6 in the may exacerbate Gunnison sage-grouse stations, pumping stations, electrical Dove Creek group of the Monticello– imperilment in the Dry Creek group

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 59828 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

because this area contains some of the Gunnison sage-grouse is within a region activities to become significant threats poorest habitat and smallest grouse of known geothermal potential (BLM in the foreseeable future. populations within the San Miguel Geocommunicator 2010, p. 1). We were The only existing or proposed population (San Miguel Basin Gunnison unable to find any information on the renewable energy project we are aware sage-grouse Working Group, 2009 pp. 28 presence of active geothermal energy of is located in the Gunnison Basin. A and 36). generation facilities; however, we are portion of the Gunnison Basin The San Miguel Basin population area aware of three current applications for population will likely be adversely is the only area within the Gunnison geothermal leases within the range of affected by proposed geothermal sage-grouse range with a high potential Gunnison sage-grouse. All of the development if it is implemented. for oil and gas development. However, applications are located in the same Because of the current preliminary the immediate threat to Gunnison sage- general vicinity on private, BLM, USFS, status of geothermal development, we grouse is limited because the BLM is and Colorado State Land Board lands lack the specific project details to deferring leases until they can be near Tomichi Dome and Waunita Hot evaluate the extent to which this considered within Land Use Plans (BLM activity will affect the population’s Springs in southeastern Gunnison 2009, p. 78). We anticipate energy overall viability. Therefore, we do not County. The cumulative area of the development activities to continue over consider renewable energy development geothermal lease application parcels is the next 20 years. However, because to be a threat to the Gunnison sage- nonrenewable energy activities are approximately 4,061 ha (10,035 ac), of grouse at this time. Geothermal energy limited to a small portion of the range, which approximately 3,802 ha (9,395 development could become a future primarily the Dry Creek portion of the ac) is occupied Gunnison sage-grouse threat to the species, but we do not San Miguel Basin population of habitat, or approximately 2 percent of know to what extent future geothermal Gunnison sage-grouse, we do not the Gunnison Basin population area. energy development will occur. Future consider nonrenewable energy One active lek and two inactive leks are geothermal development could be development to be a significant threat to located within the lease application encouraged by a new Colorado State the species. parcels. In addition, six active leks and law, signed April 30, 2010, that will four inactive leks are within 6.4 km (4 facilitate streamlining of the State Renewable Energy – Geothermal, Solar, mi) of the lease application parcels permitting process. Wind indicating that over 80 percent of Geothermal energy production is Gunnison sage-grouse seasonal use Summary of Nonrenewable and similar to oil and gas development in occurs within the area associated with Renewable Energy Development that it requires surface exploration, these leks (GSRSC 2005, p. J-4). There The San Miguel Basin population area exploratory drilling, field development, are 74 active leks in the Gunnison Basin is the only area within the Gunnison and plant construction and operation. population, so approximately 10 percent sage-grouse range with a high potential Wells are drilled to access the thermal of active leks may be affected. A for oil and gas development. However, source and could take from 3 weeks to significant amount of high-quality the immediate threat to Gunnison sage- 2 months of drilling occurring on a Gunnison sage-grouse nesting habitat grouse is limited because the BLM is continuous basis (Suter 1978, p. 3), exists on and near the lease application temporarily deferring leases until they which may cause disturbance to sage- parcels (Aldridge et al. 2010, in press). can be considered within Land Use grouse. The ultimate number of wells, This potential geothermal development Plans. We anticipate energy and therefore potential loss of habitat, would likely negatively impact development activities to continue over depends on the thermal output of the Gunnison sage-grouse through the direct the next 20 years. Although we source and expected production of the loss of habitat and the functional loss of recognize that the Dry Creek portion of plant (Suter 1978, p. 3). Pipelines are habitat resulting from increased human the San Miguel Basin population may be needed to carry steam or superheated activity in the area; however, we cannot impacted by nonrenewable energy liquids to the generating plant, which is determine the potential extent of the development, we do not consider similar in size to a coal- or gas-fired impact at this time because the size and nonrenewable energy development to be plant, resulting in further habitat location of potential geothermal energy a significant threat to the species now or destruction and indirect disturbance. generation infrastructure and potential in the foreseeable future, because its Direct habitat loss occurs from well resource protection conditions are current and anticipated extent is limited pads, structures, roads, pipelines and unknown at this time. throughout the range of Gunnison sage- transmission lines, and impacts would grouse. Similarly, we do not consider be similar to those described previously Renewable Energy in All Other renewable energy development to be a for oil and gas development. The Population Areas – We could find no significant threat to Gunnison sage- development of geothermal energy information on the presence of existing, grouse now or in the foreseeable future. requires intensive human activity pending, or authorized wind energy However, geothermal energy during field development and operation. sites, solar energy sites, nor any solar development could increase in the Geothermal development could cause energy study areas within the range of future and could (depending on the toxic gas release. The type and effect of Gunnison sage-grouse. A 388-ha (960- level of development and minimization these gases depends on the geological ac) wind energy generation facility is and mitigation measures) substantially formation in which drilling occurs authorized on BLM lands in San Juan influence the overall long-term viability (Suter 1978, pp. 7-9). The amount of County, UT. However, the authorized of the Gunnison Basin population. water necessary for drilling and facility is approximately 12.9 km (8 mi) condenser cooling may be high. Local from the nearest lek in the Monticello Climate Change water depletions may be a concern if group of the Monticello–Dove Creek According to the Intergovernmental such depletions result in the loss of Gunnison sage-grouse population. Panel on Climate Change (IPCC), brood-rearing habitat. Therefore, we conclude that wind and ‘‘Warming of the climate system in Renewable Energy in the Gunnison solar energy development are not a recent decades is unequivocal, as is now Basin Population Area – Approximately significant threat to the Gunnison sage- evident from observations of increases 87 percent of the occupied range of grouse and we do not expect these in global average air and ocean

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59829

temperatures, widespread melting of summer precipitation (Ray et al. 2008, sage-grouse range to cheatgrass invasion snow and ice, and rising global sea p. 34; Karl et al. 2009, p. 30). Similarly, (Bradley 2009, p. 204), which would level’’ (IPCC 2007, p. 1). Average the multi-model averages show the reduce the overall cover of native Northern Hemisphere temperatures highest probability of a five percent vegetation, reduce habitat quality, and during the second half of the 20th increase in average winter precipitation potentially decrease fire return century were very likely higher than and a five percent decrease in average intervals, all of which would negatively during any other 50–year period in the spring-summer precipitation in 2050 affect the species. last 500 years and likely the highest in (UCAR 2009, p. 15). Summary of Climate Change at least the past 1,300 years (IPCC 2007, While it is unclear at this time p. 30). Over the past 50 years cold days, whether or not the year 2050 predicted Climate change predictions are based cold nights, and frosts have become less changes in precipitation and on models with assumptions, and there frequent over most land areas, and hot temperature will be of significant are uncertainties regarding the days and hot nights have become more magnitude to alter sagebrush plant magnitude of associated climate change frequent. Heat waves have become more community composition and dynamics, parameters such as the amount and frequent over most land areas, and the we believe climate change is likely to timing of precipitation and seasonal frequency of heavy precipitation events alter fire frequency, community temperature changes. There is also has increased over most areas (IPCC assemblages, and the ability of uncertainty as to the magnitude of 2007, p. 30). For the southwestern nonnative species to proliferate. effects of predicted climate parameters region of the United States, including Increasing temperature as well as on sagebrush plant community western Colorado, warming is occurring changes in the timing and amount of dynamics. These factors make it more rapidly than elsewhere in the precipitation will alter the competitive difficult to predict the effects of climate country (Karl et al. 2009, p. 129). advantage among plant species (Miller change on Gunnison sage-grouse. We Annual average temperature in west- et al. in press, p. 44), and may shift recognize that climate change has the central Colorado increased 3.6 °C (2 °F) individual species and ecosystem potential to alter Gunnison sage-grouse over the past 30 years, but high distributions (Bachelet et al. 2001, p. habitat by facilitating an increase in the variability in annual precipitation 174). For sagebrush, spring and summer distribution of cheatgrass and precludes the detection of long-term precipitation comprises the majority of concurrently increase the potential for trends (Ray et al. 2008, p. 5). the moisture available to the species; wildfires, which would have negative Under high emission scenarios, future thus, the interaction between reduced effects on Gunnison sage-grouse. projections for the southwestern United precipitation in the spring-summer However, based on the best available States show increased probability of growing season and increased summer information on climate change drought (Karl et al. 2009, pp. 129-134) temperatures will likely decrease projections into the next 40 years, we do and the number of days over 32 °C (90 growth of mountain big sagebrush not consider climate change to be a °F) could double by the end of the (Artemisia tridentata ssp. vaseyana). significant threat to the Gunnison sage- century (Karl et al. 2009, p. 34). Climate This could result in a significant long- grouse at this time. Existing data models predict annual temperature term reduction in the distribution of indicates that climate change has the increase of approximately 2.2 °C (4 °F) sagebrush communities (Miller et al. in potential to alter changes in the in the southwest by 2050, with summers press, pp. 41-45). In the Gunnison distribution and extent of cheatgrass warming more than winters (Ray et al. Basin, increased summer temperature and sagebrush and associated fire 2008, p. 29). Projections also show was strongly correlated with reduced frequencies and therefore is likely to declines in snowpack across the West, growth of mountain big sagebrush become an increasingly important factor with the most dramatic declines at (Poore et al. 2009, p. 558). Based on affecting Gunnison sage-grouse and its lower elevations (below 2,500 m (8,200 these results and the likelihood of habitat in the foreseeable future. ft)) (Ray et al., p. 29). increased winter precipitation falling as Summary of Factor A Localized climate projections are rain rather than snow, Poore et al. (2009, problematic for mountainous areas p. 559) predict decreased growth of Gunnison sage-grouse require large, because current global climate models mountain big sagebrush, particularly at contiguous areas of sagebrush for long- are unable to capture this topographic the lower elevation limit of the species. term persistence, and thus are affected variability at local or regional scales Because Gunnison sage-grouse are by factors that occur at the landscape (Ray et al. 2008, pp. 7, 20). To obtain sagebrush obligates, loss of sagebrush scale. Broad-scale characteristics within climate projections specific to the range would result in a reduction of suitable surrounding landscapes influence of Gunnison sage-grouse, we requested habitat and negatively impact the habitat selection, and adult Gunnison a statistically downscaled model from species. The interaction of climate sage-grouse exhibit a high fidelity to all the National Center for Atmospheric change with other stressors likely has seasonal habitats, resulting in low Research for a region covering western impacted and will impact the sagebrush adaptability to habitat changes. Colorado. The resulting projections steppe ecosystem within which Fragmentation of sagebrush habitats has indicate the highest probability scenario Gunnison sage-grouse occur. been cited as a primary cause of the is that average summer (June through Temperature increases may increase decline of Gunnison and greater sage- September) temperature could increase the competitive advantage of cheatgrass grouse populations (Patterson 1952, pp. by 2.8 °C (5.1 °F), and average winter in higher elevation areas where its 192-193; Connelly and Braun 1997, p. 4; (October through March) temperature current distribution is limited (Miller et Braun 1998, p. 140; Johnson and Braun could increase by 2.2 °C (4.0 °F) by 2050 al. in press, p. 47). Decreased summer 1999, p. 78; Connelly et al. 2000a, p. (University Corporation for precipitation reduces the competitive 975; Miller and Eddleman 2000, p. 1; Atmospheric Research (UCAR) 2009, advantage of summer perennial grasses, Schroeder and Baydack 2001, p. 29; pp. 1-15). Annual mean precipitation reduces sagebrush cover, and Johnsgard 2002, p. 108; Aldridge and projections for Colorado are unclear; subsequently increases the likelihood of Brigham 2003, p. 25; Beck et al. 2003, however, multi-model averages show a cheatgrass invasion (Prevey et al. 2009, p. 203; Pedersen et al. 2003, pp. 23-24; shift towards increased winter p. 11). This impact could increase the Connelly et al. 2004, p. 4-15; Schroeder precipitation and decreased spring and susceptibility of areas within Gunnison et al. 2004, p. 368; Leu et al. in press,

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 59830 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

p. 19). Documented negative effects of continue to expand their range, cause the species to become threatened fragmentation include reduced lek facilitated by ground disturbances such or endangered in the foreseeable future. persistence, lek attendance, population as fire, grazing, and human We do not consider nonrenewable recruitment, yearling and adult annual infrastructure. Invasive plants energy development to be a significant survival, female nest site selection, and negatively impact Gunnison sage-grouse threat to the species because its current nest initiation rates, as well as the loss primarily by reducing or eliminating and anticipated extent is limited of leks and winter habitat (Holloran native vegetation that sage-grouse throughout the range of Gunnison sage- 2005, p. 49; Aldridge and Boyce 2007, require for food and cover, resulting in grouse. Similarly, we do not consider pp. 517-523; Walker et al. 2007a, pp. habitat loss (both direct and functional) renewable energy development to be a 2651-2652; Doherty et al. 2008, p. 194). and fragmentation. Cheatgrass is present significant threat to the Gunnison sage- We examined several factors that at varying levels in nearly all Gunnison grouse at this time. However, result in habitat loss and fragmentation. sage-grouse population areas, but there geothermal energy development could Historically, losses of sagebrush habitats has not yet been a demonstrated change increase in the future. Pı˜non-juniper occurred due to conversion for in fire cycle in the range of Gunnison encroachment does not pose a agricultural croplands; however, this sage-grouse. However, climate change significant threat to Gunnison sage- trend has slowed or slightly reversed in may alter the range of invasive plants, grouse at a population or rangewide recent decades. Currently, direct and intensifying the proliferation of invasive level because of its limited distribution functional loss of habitat due to plants to the point that they and their throughout the range of Gunnison sage- residential and road development in all effects on Gunnison sage-grouse habitat grouse and the observed effectiveness of populations, including the largest will likely become a threat to the treatment projects. population in the Gunnison Basin, is the species. Even with aggressive A review of a database compiled by principal threat to Gunnison sage- treatments, invasive plants will persist the CDOW that included local, State, grouse. Functional habitat loss also and will likely continue to spread and Federal ongoing and proposed contributes to habitat fragmentation as throughout the range of Gunnison sage- Gunnison sage-grouse conservation sage-grouse avoid areas due to human grouse in the foreseeable future. actions (CDOW 2009c, entire) revealed a activities, including noise, even when Livestock management has the total of 224 individual conservation sagebrush remains intact. The collective potential to degrade sage-grouse habitat efforts. Of these 224 efforts, a total of disturbance from human activities at local scales by causing the loss of 165 efforts have been completed and around residences and roads reduces nesting cover and decreases in native the effective habitat around these areas, vegetation, and by increasing the were focused on habitat improvement or making them inhospitable to Gunnison probability of incursion of invasive protection. These efforts resulted in the sage-grouse. Human populations are plants. Given the widespread nature of treatment of 9,324 ha (23,041 ac), or increasing in Colorado and throughout grazing within the range of Gunnison approximately 2.5 percent of occupied the range of Gunnison sage-grouse. This sage-grouse, the potential for Gunnison sage-grouse habitat. A trend is expected to continue at least population-level impacts is highly monitoring component was included in through 2050. The resulting habitat loss likely. Effects of domestic livestock 75 (45 percent) of these 165 efforts, and fragmentation will continue to grazing are likely being exacerbated by although we do not have information on negatively affect Gunnison sage-grouse intense browsing of woody species by the overall effectiveness of these efforts. and its habitat. wild ungulates in portions of the Given the limited collective extent of Other threats from human Gunnison Basin. We conclude that these efforts, they do not ameliorate the infrastructure such as fences and habitat degradation that can result from effects of habitat fragmentation at a powerlines may not individually improper grazing is a significant threat sufficient scale range-wide to effectively threaten the Gunnison sage-grouse. to Gunnison sage-grouse now and in the reduce or eliminate the most significant However, the cumulative presence of all foreseeable future. threats to the species. We recognize these features, particularly when Threats identified above, particularly ongoing and proposed conservation considered in conjunction with residential development and associated efforts by all entities across the range of residential and road development, does infrastructure such as fences, roads, and the Gunnison sage-grouse, and all constitute a significant threat to powerlines, are cumulatively causing parties should be commended for their Gunnison sage-grouse as they significant habitat fragmentation that is conservation efforts. Our review of collectively contribute to habitat loss negatively affecting Gunnison sage- conservation efforts indicates that the and fragmentation. This impact is grouse. We have evaluated the best measures identified are not adequate to particularly of consequence in light of available scientific information address the primary threat of habitat the decreases in Gunnison sage-grouse available on the present or threatened fragmentation at this time in a manner population sizes observed in the six destruction, modification or curtailment that effectively reduces or eliminates the smallest populations. These of the Gunnison sage-grouse’s habitat or most significant contributors (e.g., infrastructure components are range. Based on the current and residential development) to this threat. associated with overall increases in anticipated habitat threats identified All of the conservation efforts are human populations and thus we expect above, and their cumulative effects as limited in size and the measures them to continue to increase in the they contribute to the overall provided to us were simply not foreseeable future. fragmentation of Gunnison sage-grouse implemented at the scale (even when Several issues discussed above, such habitat, we have determined that the considered cumulatively) that would be as fire, invasive species, and climate present or threatened destruction, required to effectively reduce the threats change, may not individually threaten modification, or curtailment of to the species across its range. Although the Gunnison sage-grouse. However, the Gunnison sage-grouse habitat poses a the ongoing conservation efforts are a documented synergy among these issues significant threat to the species positive step toward the conservation of result in a high likelihood that they will throughout its range. the Gunnison sage-grouse, and some threaten the species in the future. The species is being impacted by have likely reduced the severity of some Nonnative invasive plants, including several other factors, but their threats to the species (e.g., Pı˜non- cheatgrass and other noxious weeds, significance is not at a level that they juniper invasion), on the whole we find

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59831

that the conservation efforts in place at Consequently, we do not consider In fact, in 2008 and 2009 the Waunita this time are not sufficient to offset the hunting to be a significant threat to the lek increased in the number of males degree of threat posed to the species by species now or in the foreseeable future. counted along with three other leks, the present and threatened destruction, while seven leks decreased in the Lek Viewing modification, or curtailment of its Doyleville zone (CDOW 2009d, pp. 31- habitat. The Gunnison sage-grouse was 32). These data suggest that lek viewing designated as a new species in 2000 on the Waunita lek has not impacted the B. Overutilization for Commercial, (American Ornithologists’ Union 2000, Gunnison sage-grouse. Two lek-viewing Recreational, Scientific, or Educational pp. 847-858), which has prompted tours per year are organized and led by Purposes increased interest by bird watchers to UDWR on a privately owned lek in the Hunting view the species on their leks (Pfister Monticello population. The lek declined 2010, pers. comm.). Daily human Hunting for Gunnison sage-grouse in males counted in 2009, but 2007 and disturbances on sage-grouse leks could 2008 had the highest counts for several does not currently occur. Hunting was cause a reduction in mating, and some years, suggesting that lek viewing is also eliminated in the Gunnison Basin in reduction in total production (Call and not impacting that lek. Data collected by 2000 due to concerns with meeting Maser 1985, p. 19). Human disturbance, CDOW on greater sage-grouse viewing Gunnison sage-grouse population particularly if additive to disturbance by leks also indicates that controlled lek objectives (CSGWG 1997, p. 66). predators, could reduce the time a lek visitation has not impacted greater sage- Hunting has not occurred in the other is active, as well as reduce its size by grouse at the viewed leks (GSRSC 2005, Colorado populations of Gunnison sage- lowering male attendance (Boyko et al. p. 124). grouse since 1995 when the Pı˜non Mesa 2004, in GSRSC 2005, p. 125). Smaller A lek viewing protocol has been area was closed (GSRSC 2005, p. 122). lek sizes have been hypothesized to be developed and has largely been Utah has not allowed hunting of less attractive to females, thereby followed on the Waunita lek, likely Gunnison sage-grouse since 1989 conceivably reducing the numbers of reducing impacts to sage-grouse using (GSRSC 2005, p. 82). females mating. Disturbance during the the lek (GSRSC 2005, p. 125). During Both Colorado and Utah will only peak of mating also could result in some 2004-2009, the percentage of consider hunting of Gunnison sage- females not breeding (GSRSC 2005, p. individuals or groups of people in grouse if populations can be sustained 125). Furthermore, disturbance from lek vehicles following the Waunita lek (GSRSC 2005, pp. 5, 8, 229). The viewing might affect nesting habitat viewing protocol in the Gunnison Basin Gunnison Basin Plan calls for a selection by females (GSRSC 2005, p. ranged from 71–92 percent (CDOW minimum population of 500 males 126), as leks are typically close to areas 2009a, p. 86, 87; Magee et al. 2009, p. counted on leks before hunting would in which females nest. If females move 7, 10). Violations of the protocol, such occur again (CSGWG 1997, p. 66). The to poorer quality habitat farther away as showing up after the sage-grouse minimum population level has been from disturbed leks, nest success could started to display and creating noise, exceeded in all years since 1996, except decline. If chronic disturbance causes caused one or more sage-grouse to flush 2003 and 2004 (CDOW 2009d, p. 18-19). sage-grouse to move to a new lek site from the lek (CDOW 2009a, pp. 86, 87). However, the sensitive State regulatory away from preferred and presumably Despite the protocol violations, the status and potential political higher quality areas, both survival and percentage of days from 2004 to 2009 ramifications of hunting the species has nest success could decline. Whether any that grouse were flushed by humans was precluded the States from opening a or all of these have significant relatively low, ranging from 2.5 percent hunting season. If hunting does ever population effects would depend on to 5.4 percent (Magee et al. 2009, p.10). occur again, harvest will likely be timing and degree of disturbance Nonetheless, the lek viewing protocol is restricted to only 5 to 10 percent of the (GSRSC 2005, p. 126). currently being revised to make it more fall population, and will be structured Throughout the range of Gunnison stringent and to include considerations to limit harvest of females to the extent sage-grouse, public viewing of leks is for photography, research, and possible (GSRSC 2005, p. 229). limited by a general lack of knowledge education related viewing (CDOW However, the ability of these measures in the public of lek locations, seasonal 2009a, p. 86). Maintenance of this to be implemented is in question, as road closures in some areas, and protocol should preclude lek viewing adequate means to estimate fall difficulty in accessing many leks. from becoming a threat to this lek. population size have not been Furthermore, 52 of 109 active Gunnison The CDOW and UDWR will continue developed (Reese and Connelly in press, sage-grouse leks occur on private lands, to coordinate and implement lek counts p. 21) and limiting female harvest may which further limits access by the to determine population levels. We not be possible (WGFD 2004, p. 4; public. The BLM closed a lek in the expect annual lek viewing and lek WGFD 2006, pp. 5, 7). Despite these Gunnison Basin to viewing in the late counts to continue indefinitely. questions, we believe that the low level 1990s due to declining population However, all leks counted will receive of hunting that could be allowed in the counts, which were perceived as lower disturbance from counters than future would not be a significant threat resulting from recreational viewing, the Waunita lek received from public to the Gunnison sage-grouse. although no scientific studies were viewing, so we do not consider lek One sage-grouse was known to be conducted (BLM 2005a, p. 13; GSRSC counts and viewing a threat to the illegally harvested in 2001 in the 2005, pp. 124, 126). The Waunita lek Gunnison sage-grouse now or in the Poncha Pass population (Nehring 2010, east of Gunnison is the only lek in foreseeable future. pers. comm.), but based on the best Colorado designated by the CDOW for available information we do not believe public viewing (CDOW 2009a, p. 86). Scientific Research that illegal harvest has contributed to Since 1998, a comparison of male Gunnison sage-grouse have been the Gunnison sage-grouse population counts on the Waunita lek versus male subject of scientific research studies, declines in either Colorado or Utah. We counts on other leks in the Doyleville some of which included the capture and do not anticipate hunting to be opened zone show that the Waunita lek’s male handling of the species. Most of the in the Gunnison Basin or smaller counts generally follow the same trend research has been conducted in the populations for many years, if ever. as the others (CDOW 2009d, pp. 31-32). Gunnison Basin population, San Miguel

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 59832 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

Basin population, and Monticello greater sage-grouse and other sage-grouse population as a whole. portion of the Monticello–Dove Creek gallinaceous birds and concluded that Based on the available information, we population. Between zero and seven survival will be very low, unless believe scientific research on Gunnison percent mortality of handled adults or innovative strategies are developed and sage-grouse has a relatively minor juveniles and chicks has occurred tested (GSRSC 2005, pp. 181-183). impact that does not rise to the level of during recent Gunnison sage-grouse However, greater sage-grouse have been a threat to the species now or is it studies where trapping and radio- captively reared, and survival of expected to do so in the foreseeable tagging was done (Apa 2004, p. 19; released chicks was similar to that of future. Childers 2009, p. 14; Lupis 2005, p. 26; wild chicks (CDOW 2009a, p. 10). San Miguel Basin Working Group 2009, Consequently, the CDOW decided to try Summary of Factor B p. A-10). Additionally, one radio-tagged captive rearing. Of 40 Gunnison sage- We have no evidence suggesting that hen was flushed off a nest during grouse eggs taken from the wild, only 11 hunting, when it was legal, resulted in subsequent monitoring and did not chicks (about 25 percent) survived overutilization of Gunnison sage-grouse. return after the second day, resulting in through October 2009. Although chick If hunting is allowed again, future loss of 10 eggs (Ward 2007, p. 52). The survival was low, the CDOW believes hunting may result in additive mortality CDOW does not believe that these losses they have gained valuable knowledge on due to habitat degradation and or disturbance have any significant Gunnison sage-grouse rearing fragmentation, despite harvest level impacts on the sage-grouse (CDOW techniques. As techniques improve, the restrictions and management intended 2009a, p. 29). CDOW intends to develop a captive- to limit impacts to hens. Nonetheless, Some of the radio-tagged sage-grouse breeding manual (CDOW 2009a, p. 11). we do not expect hunting to be have been translocated from the Although adults or juveniles have been reinstated in the foreseeable future. Gunnison Basin to other populations. captured and moved out of the Illegal hunting has been documented Over a 5–year period (2000–2002 and Gunnison Basin, as well as eggs, the only once in Colorado and is not 2006–2007), 68 sage-grouse were removal of the grouse only accounts for considered a threat to the species. Lek translocated from the Gunnison Basin to a very small percentage of the total viewing has not affected the Gunnison the Poncha Pass and San Miguel Basin population of the Gunnison Basin sage- sage-grouse, and lek viewing protocols populations (CDOW 2009a, p. 9). These grouse population (about 1 percent). designed to reduce disturbance have experimental translocations were The CDOW has a policy regarding generally been followed. CDOW is conducted to determine translocation trapping, handling, and marking currently revising their lek viewing techniques and survivorship in order to techniques approved by their Animal protocol to make it more stringent and increase both size of the receiving Use and Care Committee (San Miguel to include considerations for populations and to increase genetic Basin Working Group 2009, p. A-10, photography, research, and education- diversity in populations outside of the Childers 2009, p. 13). Evaluation of related viewing. Mortality from Gunnison Basin. However, the research projects by the Animal Use and scientific research is low (2 percent) and translocated grouse experienced 40–50 Care Committee and improvement of is not considered a threat. We know of percent mortality within the first year trapping, handling, and marking no overutilization for commercial or after release, which is double the techniques over the last several years educational purposes. Thus, based on average annual mortality of non- has resulted in fewer mortalities and the best scientific and commercial data translocated sage-grouse (CDOW 2009a, injuries. In fact, in the San Miguel available, we have concluded that p. 9). Greater sage-grouse translocations Basin, researchers have handled over overutilization for commercial, have not appeared to fare any better. 200 sage-grouse with no trapping recreational, scientific, or educational Over 7,200 greater sage-grouse were mortalities (San Miguel Basin Working purposes does not constitute a translocated between 1933 and 1990, Group (SMBWG) 2009, p. A-10). The significant threat to the Gunnison sage- but only five percent of the CDOW has also drafted a sage-grouse grouse. translocation efforts were considered to trapping and handling protocol, which be successful in producing sustained, is required training for people handling C. Disease or Predation resident populations at the translocation Gunnison sage-grouse, to minimize Disease sites (Reese and Connelly 1997, pp. 235- mortality and injury of the birds (CDOW 238, 240). More recent translocations 2002, pp. 1-4 in SMBWG 2009, pp. A- No research has been published about from 2003 to 2005 into Strawberry 22-A-25). Injury and mortality does the types or pathology of diseases in Valley, Utah, resulted in a 40 percent occasionally occur from trapping, Gunnison sage-grouse. However, annual mortality rate (Baxter et al. 2008, handling, marking, and flushing off multiple bacterial and parasitic diseases p. 182). We believe the lack of success nests. However, research-related have been documented in greater sage- of translocations found in greater sage- mortality is typically below three grouse (Patterson 1952, pp. 71-72; grouse is applicable to Gunnison sage- percent of handled birds and equates to Schroeder et al. 1999, p. 14, 27). Some grouse since the two species exhibit one half of one percent or less of annual early studies have suggested that greater similar behavior and life-history traits, population estimates (Apa 2004, p. 19; sage-grouse populations are adversely and are managed accordingly. Childers 2009, p. 14; Lupis 2005, p. 26; affected by parasitic infections Because the survival rate for San Miguel Basin Working Group 2009, (Batterson and Morse 1948, p. 22). translocated sage-grouse has not been as p. A-10). However, the role of parasites or high as desired, the CDOW started a Research needs may gradually infectious diseases in population captive-rearing program in 2009 to dwindle over the years but annual or declines of greater sage-grouse is study whether techniques can be occasional research is expected to occur unknown based on the few systematic developed to captively rear and release for at least 50 years constituting the surveys conducted (Connelly et al. Gunnison sage-grouse and enhance their foreseeable future for this potential 2004, p. 10-3). No parasites have been survival (CDOW 2009a, pp. 9-12). The threat. Short-term disturbance effects to documented to cause mortality in Gunnison Sage-grouse Rangewide individuals occur as does injury and Gunnison sage-grouse, but the Steering Committee conducted a review mortality, but we do not believe these protozoan, Eimeria spp., which causes of captive-rearing attempts for both effects cause a threat to the Gunnison coccidiosis, has been reported to cause

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59833

death in greater sage-grouse (Connelly et sage-grouse (Walker and Naugle in develop a resistance to the disease, and al. 2004, p. 10-4). Infections tend to be press, p. 13; Cornish 2009, pers. comm.). death is certain once an individual is localized to specific geographic areas, The frequency of direct transmission exposed (Clark et al. 2006, p. 18). and no cases of greater sage-grouse has not been determined (McLean 2006, To date, West Nile virus has not been mortality resulting from coccidiosis p. 54). Cold ambient temperatures documented in Gunnison sage-grouse have been documented since the early preclude mosquito activity and virus despite the presence of West Nile virus- 1960s (Connelly et al. 2004, p. 10-4). amplification, so transmission to and in positive mosquitoes in nearly all Parasites have been implicated in sage-grouse is limited to the summer counties throughout their range greater sage-grouse mate selection, with (mid-May to mid-September) (Naugle et (Colorado Department of Public Health potentially subsequent effects on the al. 2005, p. 620; Zou et al. 2007, p. 4), 2004, pp. 1-5; U.S. Centers for Disease genetic diversity of this species (Boyce with a peak in July and August (Walker Control and Prevention 2004, entire). 1990, p.263; Deibert 1995, p. 38). These and Naugle in press, p. 10). Reduced We do not know whether this is a result relationships may be important to the and delayed West Nile virus of the small number of birds that are long-term ecology of greater sage-grouse, transmission in sage-grouse has marked, the relatively few birds that but they have not been shown to be occurred in years with lower summer exist in the wild, or unsuitable significant to the immediate status of temperatures (Naugle et al. 2005, p. 621; conditions in Gunnison sage-grouse populations (Connelly et al. 2004, p. 10- Walker et al. 2007b, p. 694). In non- habitat for the virus to become virulent. 6). Although diseases and parasites have sagebrush ecosystems, high West Nile virus activity within the range been suggested to affect isolated sage- temperatures associated with drought of Gunnison sage-grouse has been low grouse populations (Connelly et al. conditions increase West Nile virus compared to other parts of Colorado and 2004, p. 10-3), we have no evidence transmission by allowing for more rapid the western United States. A total of 77 indicating that parasitic diseases are a larval mosquito development and wild bird (other than Gunnison sage- threat to Gunnison sage-grouse shorter virus incubation periods grouse) deaths resulting from West Nile populations. (Shaman et al. 2005, p. 134; Walker and virus have been confirmed from Greater sage-grouse are subject to a Naugle in press, p. 11). Additional counties within the occupied range of variety of bacterial, fungal, and viral details on the impacts of West Nile virus Gunnison sage-grouse since 2002 when pathogens. The bacterium Salmonella on greater sage-grouse can be found in reporting began in Colorado (USGS sp. has caused a single documented our recent finding (75 FR 13910; March 2009, entire). Fifty-two (68 percent) of mortality in the greater sage-grouse and 23, 2010). these West-Nile-virus-caused bird studies have shown that infection rates Greater sage-grouse congregate in deaths were reported from Mesa County in wild birds are low (Connelly et al. mesic habitats in the mid-late summer (where the Pı˜non Mesa population is 2004, p. 10-7). The bacteria are (Connelly et al. 2000, p. 971), thereby found). Only San Miguel, Dolores, and apparently contracted through exposure increasing their risk of exposure to Hinsdale Counties had no confirmed to contaminated water supplies around mosquitoes. If West Nile virus outbreaks avian mortalities resulting from West livestock stock tanks (Connelly et al. coincide with drought conditions that Nile virus. 2004, p. 10-7). Other bacteria found in aggregate birds in habitat near water Walker and Naugle (in press, p. 27) greater sage-grouse include Escherichia sources, the risk of exposure to West predict that West Nile virus outbreaks in coli, botulism (Clostridium spp.), avian Nile virus will be elevated (Walker and small, isolated, and genetically tuberculosis (Mycobacterium avium), Naugle in press, p. 11). Greater sage- depauperate populations could reduce and avian cholera (Pasteurella grouse inhabiting higher elevation sites sage-grouse numbers below a threshold multocida). These bacteria have never in summer (similar to the northern from which recovery is unlikely because been identified as a cause of mortality portion of the Gunnison Basin) are of limited or nonexistent demographic in greater sage-grouse and the risk of likely less vulnerable to contracting and genetic exchange from adjacent exposure and hence, population effects, West Nile virus than birds at lower populations. Thus, a West Nile virus is low (Connelly et al. 2004, p. 10-7 to elevation (similar to Dry Creek Basin of outbreak in any Gunnison sage-grouse 10-8). We have no reason to expect that the San Miguel population) as ambient population, except perhaps the mortality and exposure risk are different temperatures are typically cooler Gunnison Basin population, could limit in Gunnison sage-grouse; therefore, we (Walker and Naugle in press, p. 11). the persistence of these populations. do not believe these bacteria to be a West Nile Virus has caused Although West Nile virus is a threat to the species. population declines in wild bird potential threat, the best available West Nile virus was introduced into populations on the local and regional information suggests that it is not the northeastern United States in 1999 scale (Walker and Naugle in press, p. 7) currently a significant threat to and has subsequently spread across and has been shown to affect survival Gunnison sage-grouse, since West Nile North America (Marra et al. 2004, rates of greater sage-grouse (Naugle et al. virus has not been documented in p.394). In sagebrush habitats, West Nile 2004, p. 710; Naugle et al. 2005, p. 616). Gunnison sage-grouse despite the virus transmission is primarily Experimental results, combined with presence of West Nile virus-positive regulated by environmental factors, field data, suggest that a widespread mosquitoes in nearly all counties including temperature, precipitation, West Nile virus infection has negatively throughout their range. No other and anthropogenic water sources, such affected greater sage-grouse (Naugle et diseases or parasitic infections are as stock ponds and coal-bed methane al. 2004, p. 711; Naugle et al. 2005, p. considered to be threatening the ponds that support the mosquito vectors 616). Summer habitat requirements of Gunnison sage-grouse at this time. (Reisen et al. 2006, p. 309; Walker and sage-grouse potentially increase their Naugle in press, pp. 10-12). The virus exposure to West Nile virus. Greater Predation persists largely within a mosquito-bird- sage-grouse are considered to have a Predation is the most commonly mosquito infection cycle (McLean 2006, high susceptibility to West Nile virus, identified cause of direct mortality for p. 45). However, direct bird-to-bird with resultant high levels of mortality sage-grouse during all life stages transmission of the virus has been (Clark et al. 2006, p. 19; McLean 2006, (Schroeder et al. 1999, p. 9; Connelly et documented in several species (McLean p. 54). Data collected on greater sage- al. 2000b, p. 228; Connelly et al. in 2006, pp. 54, 59) including the greater grouse suggest that sage-grouse do not press a, p. 23). However, sage-grouse

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 59834 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

have co-evolved with a variety of juveniles and older age classes (GSRSC first few weeks after hatching was predators, and their cryptic plumage 2005, p. 135). Golden eagles were found estimated to be 82 percent (Gregg et al. and behavioral adaptations have to be the dominant species recorded 2007, p. 648). Survival of juveniles to allowed them to persist despite this perching on power poles in Utah in their first breeding season was estimated mortality factor (Schroeder et al. 1999, Gunnison sage-grouse habitat (Prather to be low (10 percent). It is reasonable, p. 10; Coates 2008 p. 69; Coates and and Messmer 2009, p. 12). Twenty-two given the sources of adult mortality, to Delehanty 2008, p. 635; Hagen in press, and 40 percent of 111 adult mortalities assume that predation is a contributor to p. 3). Until recently, little published were the result of avian and mammalian the high juvenile mortality rates information has been available that predation, respectively (Childers 2009, (Crawford et al. 2004, p. 4). indicates predation is a limiting factor p. 7). Twenty-five and 35 percent of 40 Sage-grouse nests are subject to for the greater sage-grouse (Connelly et chick mortalities were caused by avian varying levels of predation. Predation al. 2004, p. 10-1), particularly where and mammalian predation, respectively can be total (all eggs destroyed) or habitat quality has not been (Childers 2009, p. 7). A causative agent partial (one or more eggs destroyed). compromised (Hagen in press, p. 3). of mortality was not determined in the However, hens abandon nests in either Although many predators will consume remaining depredations observed in the case (Coates, 2007, p. 26). Gregg et al. sage-grouse, none specialize on the western portion of the Gunnison Basin (1994, p. 164) reported that over a 3– species (Hagen in press, p. 5). Generalist from 2000 to 2009 (Childers 2009, p. 7). year period in Oregon, 106 of 124 nests predators have the greatest effect on Adult male Gunnison sage-grouse are (84 percent) were preyed upon (Gregg et ground-nesting birds because predator very susceptible to predation while on al. 1994, p. 164). Patterson (1952, p.104) numbers are independent of the density the lek (Schroeder et al. 1999, p. 10; reported nest predation rates of 41 of a single prey source since they can Schroeder and Baydack 2001, p. 25; percent in Wyoming. Holloran and switch to other prey sources when a Hagen in press, p. 5), presumably Anderson (2003, p. 309) reported a given prey source (e.g., Gunnison sage- because they are conspicuous while predation rate of 12 percent (3 of 26) in grouse) is not abundant (Coates 2007, p. performing their mating displays. Wyoming. Moynahan et al. (2007, p. 4). We believe that the effects of Because leks are attended daily by 1777) attributed 131 of 258 (54 percent) predation observed in greater sage- numerous grouse, predators also may be nest failures to predation in Montana. grouse are applicable to the effects attracted to these areas during the Studies have shown that re-nesting rates anticipated in Gunnison sage-grouse breeding season (Braun 1995, p. 2). are low in Gunnison sage-grouse since overall behavior and life-history Connelly et al. (2000b, p. 228) found (Young, 1994, p. 44; Childers, 2009, p. traits are similar for the two species. that among 40 radio-collared males, 83 7), suggesting that re-nesting is unlikely percent of the mortality was due to to offset losses due to predation. Losses Major predators of adult sage-grouse predation and 42 percent of those of breeding hens and young chicks to include many species including golden mortalities occurred during the lekking predation potentially can influence eagles (Aquila chrysaetos), red foxes season (March through June). Adult overall greater and Gunnison sage- (Vulpes fulva), and bobcats (Felis rufus) female greater sage-grouse are grouse population numbers, as these (Hartzler 1974, pp. 532-536; Schroeder susceptible to predators while on the two groups contribute most significantly et al. 1999, pp. 10-11; Schroeder and nest, but mortality rates are low (Hagen to population productivity (GSRSC, Baydack 2001, p. 25; Rowland and in press, p. 6). Hens will abandon their 2005, p. 29, Baxter et al. 2008, p. 185; Wisdom 2002, p. 14; Hagen in press, pp. nest when disturbed by predators Connelly et al, in press a, p. 18). 4-5). Juvenile sage-grouse also are killed (Patterson 1952, p. 110), likely reducing Nesting success of greater sage-grouse by many raptors as well as common this mortality (Hagen in press, p. 6). is positively correlated with the ravens (Corvus corax), badgers (Taxidea Among 77 adult hens, 52 percent of the presence of big sagebrush and grass and taxus), red foxes, coyotes (Canis latrans) mortality was due to predation and 52 forb cover (Connelly et al. 2000, p. 971). and weasels (Mustela spp.) (Braun 1995, percent of those mortalities occurred Females actively select nest sites with entire; Schroeder et al. 1999, p. 10). Nest between March and August, which these qualities (Schroeder and Baydack predators include badgers, weasels, includes the nesting and brood-rearing 2001, p. 25; Hagen et al. 2007, p. 46). coyotes, common ravens, American periods (Connelly et al. 2000b, p. 228). Nest predation appears to be related to crows (Corvus brachyrhyncos) and Sage-grouse populations are likely more the amount of herbaceous cover magpies (Pica spp.), elk (Cervus sensitive to predation upon females surrounding the nest (Gregg et al. 1994, canadensis) (Holloran and Anderson given the highly negative response of p. 164; Braun 1995, pp. 1-2; DeLong et 2003, p.309), and domestic cows (Bovus Gunnison sage-grouse population al. 1995, p. 90; Braun 1998; Coggins spp.) (Coates et al. 2008, pp. 425-426). dynamics to adult female reproductive 1998, p. 30; Connelly et al. 2000b, p. Ground squirrels (Spermophilus spp.) success and chick mortality (GSRSC, 975; Schroeder and Baydack 2001, p. 25; also have been identified as nest 2005, p. 173). Predation of adult sage- Coates and Delehanty 2008, p. 636). predators (Patterson 1952, p. 107; grouse is low outside the lekking, Loss of nesting cover from any source Schroeder et al. 1999, p. 10; Schroder nesting, and brood-rearing season (e.g., grazing, fire) can reduce nest and Baydack 2001, p. 25), but recent (Connelly et al. 2000b, p. 230; Naugle et success and adult hen survival. data show that they are physically al. 2004, p. 711; Moynahan et al. 2006, However, Coates (2007, p. 149) found incapable of puncturing eggs (Holloran p. 1536; Hagen in press, p. 6). that badger predation was facilitated by and Anderson 2003, p. 309; Coates et al. Estimates of predation rates on nest cover as it attracts small mammals, 2008, p. 426; Hagen in press, p. 6). juveniles are limited due to the a badger’s primary prey. Similarly, Several other small mammals visited difficulties in studying this age class habitat alteration that reduces cover for sage-grouse nests in Nevada, but none (Aldridge and Boyce 2007, p. 509; young chicks can increase their rate of resulted in predation events (Coates et Hagen in press, p. 8). For greater sage- predation (Schroeder and Baydack 2001, al. 2008, p. 425). The most common grouse, chick mortality from predation p. 27). predators of Gunnison sage-grouse eggs ranged from 10 to 51 percent in 2002 In a review of published nesting are weasels, ground squirrels, coyotes, and 2003 on three study sites in Oregon studies, Connelly et al. (in press, p. 14) and corvids (Young 1994, p. 37). Most (Gregg et al. 2003a, p. 15; 2003b, p. 17). reported that nesting success was raptor predation of sage-grouse is on Mortality due to predation during the greater in unaltered habitats versus

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59835

habitats affected by anthropogenic Pı˜non Mesa population, though data sagebrush habitats and the strong activities. Where greater sage-grouse have not been collected (CDOW 2009a, selection for sagebrush by the species. habitat has been altered, the influx of p. 110). Human-made structures in the Additionally, Gunnison sage-grouse predators can decrease annual environment increase the effect of raven avoid residential development, resulting recruitment into a population (Gregg et predation, particularly in low canopy in functional habitat loss (Aldridge et al. al. 1994, p. 164; Braun 1995, pp. 1-2; cover areas, by providing ravens with 2010, p. 24). Ninety-one percent of nest Braun 1998; DeLong et al. 1995, p. 91; perches (Braun 1998, pp.145-146; locations in the western portion of the Schroeder and Baydack 2001, p. 28; Coates 2007, p. 155; Bui 2009, p. 2). Gunnison Basin population occur Coates 2007, p. 2; Hagen in press, p. 7). Reduction in patch size and diversity of within 35 percent of the available Agricultural development, landscape sagebrush habitat, as well as the habitat (Aldridge et al. 2010, p. 25-26). fragmentation, and human populations construction of fences, powerlines and Unnaturally high nest densities which have the potential to increase predation other infrastructure also are likely to result from habitat fragmentation or pressure on all life stages of greater sage- encourage the presence of the common disturbance associated with the grouse by forcing birds to nest in less raven (Coates et al. 2008, p. 426; Bui presence of edges, fencerows, or trails suitable or marginal habitats, increasing 2009, p. 4). For example, raven counts may increase predation rates by making travel time through altered habitats have increased by approximately 200 foraging easier for predators (Holloran where they are vulnerable to predation, percent along the Falcon-Gondor 2005, p. C37). Increased nest density and increasing the diversity and density transmission line corridor in Nevada could negatively influence the of predators (Ritchie et al. 1994, p. 125; (Atamian et al. 2007, p. 2). Atamian et probability of a successful hatch Schroeder and Baydack 2001, p. 25; al. (2007, p. 2) found that ravens (Holloran and Anderson, 2005, p. 748). Connelly et al. 2004, p. 7-23; and contributed to lek disturbance events in The influence of the human footprint in Summers et al. 2004, p. 523). We the areas surrounding the transmission sagebrush ecosystems may be believe the aforementioned is also line. However, cause of decline in underestimated (Leu and Hanser, in applicable to Gunnison sage-grouse surrounding sage-grouse population press, pp. 24-25) since it is uncertain because overall behavior and life-history numbers could not be separated from how much more habitat sage-grouse (a traits are similar for the two species other potential impacts. Holloran (2005, large landscape-scale species) need for (Young 1994, p. 4). p. 58) attributed increased sage-grouse persistence in increasingly fragmented Abundance of red fox and corvids, nest depredation to high corvid landscapes (Connelly et al., in press, pp. which historically were rare in the abundances, which resulted from 28-34). Therefore, the influence of sagebrush landscape, has increased in anthropogenic food and perching ravens and other predators associated association with human-altered subsidies in areas of natural gas with human activities may be landscapes (Sovada et al. 1995, p. 5). In development in western Wyoming. Bui underestimated. the Strawberry Valley of Utah, low (2009, p. 31) also found that ravens used Ongoing studies in the San Miguel survival of greater sage-grouse may have road networks associated with oil fields population suggest that the lack of been due to an unusually high density in the same Wyoming location for recruitment in Gunnison sage-grouse is of red foxes, which apparently were foraging activities. Holmes (2009, pp. 2- likely due to predation (CDOW 2009a, attracted to that area by anthropogenic 4) also found that common raven p. 31). In this area, 6 of 12 observed activities (Bambrough et al. 2000). The abundance increased in association with nests were destroyed by predation, with none of the chicks from the remaining red fox population has increased within oil and gas development in the Gunnison Basin (BLM, 2009, p. 37). nests surviving beyond two weeks southwestern Wyoming. Raven Ranches, farms, and housing (CDOW 2009a, p. 30). In small and abundance was strongly associated with developments have resulted in the declining populations, small changes to sage-grouse nest failure in northeastern introduction of nonnative predators habitat abundance or quality, or in Nevada, with resultant negative effects including domestic dogs (Canis predator abundance, could have large on sage-grouse reproduction (Coates domesticus) and cats (Felis domesticus) consequences. 2007, p. 130). The presence of high into greater sage-grouse habitats Predator removal efforts have numbers of predators within a sage- (Connelly et al. 2004, p. 12-2). We sometimes shown short-term gains that grouse nesting area may negatively believe this is also applicable to may benefit fall populations, but not affect sage-grouse productivity without Gunnison sage-grouse because of the breeding population sizes (Cote and habitat similarities of the two species causing direct mortality. Coates (2007, Sutherland 1997, p. 402; Hagen in press, and similar patterns of human pp. 85-86) suggested that ravens may p. 9; Leu and Hanser in press, p. 27). development. Local attraction of ravens reduce the time spent off the nest by Predator removal may have greater to nesting hens may be facilitated by female sage-grouse, thereby potentially benefits in areas with low habitat loss and fragmentation of native compromising their ability to secure quality, but predator numbers quickly shrublands, which increases exposure of sufficient nutrition to complete the rebound without continual control nests to potential predators (Aldridge incubation period. (Hagen in press, p. 9). Red fox removal and Boyce 2007, p. 522; Bui 2009, p. As more suitable grouse habitat is in Utah appeared to increase adult 32). The presence of ravens was converted to exurban development, greater sage-grouse survival and negatively associated with greater sage- agriculture, or other non-sagebrush productivity, but the study did not grouse nest and brood fate in western habitat types, grouse nesting and brood- compare these rates against other non- Wyoming (Bui 2009, p. 27). rearing become increasingly spatially removal areas, so inferences are limited Raven abundance has increased as restricted (Bui 2009, p. 32). As (Hagen in press, p. 11). much as 1,500 percent in some areas of discussed in Factor A, we anticipate a Slater (2003, p. 133) demonstrated western North America since the 1960s substantial increase in the distribution that coyote control failed to have an (Coates 2007, p. 5). Breeding bird survey of residential development throughout effect on greater sage-grouse nesting trends from 1966 to 2007 indicate the range of Gunnison sage-grouse. This success in southwestern Wyoming. increases throughout Colorado and Utah increase will likely cause additional However, coyotes may not be an (USGS, 2009, pp. 1-2). Increases in restriction of nesting habitat within the important predator of sage-grouse. In a raven numbers are suggested in the species’ range, given removal of coyote prey base analysis, Johnson and

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 59836 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

Hansen (1979, p. 954) showed that sage- Anthropogenic influences on a potential impact to the Gunnison sage- grouse and bird egg shells made up a sagebrush habitats that increase grouse is West Nile virus. This virus is very small percentage (0.4–2.4 percent) suitability for ravens may also limit distributed throughout most of the of analyzed scat samples. Additionally, sage-grouse populations (Bui 2009, p. species’ range. However, despite its near coyote removal can have unintended 32). Current land-use practices in the 100 percent lethality, disease consequences resulting in the release of intermountain West favor high predator occurrence is sporadic in other taxa smaller predators, many of which, like (in particular, raven) abundance relative across the species’ range and has not the red fox, may have greater negative to historical numbers (Coates et al. been detected to date in Gunnison sage- impacts on sage-grouse (Mezquida et al. 2008, p. 426). The interaction between grouse. While we have no evidence of 2006, p. 752). changes in habitat and predation may West Nile virus acting on the Gunnison Removal of ravens from an area in have substantial effects to the Gunnison sage-grouse, because of its presence northeastern Nevada caused only short- sage-grouse at the landscape level within the species’ range and the term reductions in raven populations (Coates 2007, p. 3-5). Since the continued development of (less than one year), as apparently Gunnison and greater sage-grouse have anthropogenic water sources in the area, transient birds from neighboring sites such similar behavior and life-history the virus may pose a future threat to the repopulated the removal area (Coates traits, we believe the current impacts on species. We anticipate that West Nile 2007, p. 151). Additionally, badger Gunnison sage-grouse are at least as virus will persist within the range of predation appeared to partially significant as those documented in Gunnison sage-grouse indefinitely and compensate for decreases due to raven greater sage-grouse and to date in will be exacerbated by any factor (e.g., removal (Coates 2007, p. 152). In their Gunnison sage-grouse. Given the small climate change) that increases ambient review of literature regarding predation, population sizes and fragmented nature temperatures and the presence of the Connelly et al. (2004, p. 10-1) noted that of the remaining Gunnison sage-grouse vector on the landscape. only two of nine studies examining habitat, we believe that the impacts of We believe that existing and survival and nest success indicated that predation will likely be even greater as continued landscape fragmentation will predation had limited a sage-grouse habitat fragmentation continues. increase the effects of predation on this population by decreasing nest success, The studies presented above for species, particularly in the six smaller and both studies indicated low nest greater sage-grouse suggest that, in areas populations, resulting in a reduction in success due to predation was ultimately of intensive habitat alteration and sage-grouse productivity and abundance fragmentation, sage-grouse productivity in the future. related to poor nesting habitat. Bui and, therefore, populations could be We have evaluated the best available (2009, pp. 36-37) suggested removal of negatively affected by increasing scientific information regarding disease anthropogenic subsidies (e.g., landfills, predation. Nest predation may be and predation and their effects on the tall structures) may be an important step higher, more variable, and have a greater Gunnison sage-grouse. Based on the to reducing the presence of sage-grouse impact on the small, fragmented information available, we have predators. Leu and Hanser (in press, p. Gunnison sage-grouse populations, determined that predation is a 27) also argue that reducing the effects particularly the six smallest populations significant threat to the species of predation on sage-grouse can only be (GSRSC 2005, p. 134). Unfortunately, throughout all or a significant portion of effectively addressed by precluding except for the relatively few studies its range. Furthermore, we determine these features. presented here, data are lacking that that disease is not currently a significant Summary of Predation link Gunnison sage-grouse population threat but has the potential to become a numbers and predator abundance. significant threat at any time. Predation has a strong relationship However, in at least six of the seven with anthropogenic factors on the D. The Inadequacy of Existing populations (Gunnison Basin Regulatory Mechanisms landscape, and human presence on the potentially excluded), where habitats landscape will continue to increase for have been significantly altered by Under this factor, we examine the foreseeable future. human activities, we believe that whether threats to the Gunnison sage- Gunnison sage-grouse are adapted to predation could be limiting Gunnison grouse are adequately addressed by minimize predation by cryptic plumage sage-grouse populations. As more existing regulatory mechanisms. and behavior. Gunnison sage-grouse habitats face development, even Existing regulatory mechanisms that may be increasingly subject to levels of dispersed development such as that could provide some protection for predation that would not normally occurring throughout the range of Gunnison sage-grouse include: (1) local occur in the historically contiguous Gunnison sage-grouse, we expect this land use laws, processes, and unaltered sagebrush habitats. The threat to spread and increase. Studies of ordinances; (2) State laws and impacts of predation on greater sage- the effectiveness of predator control regulations; and (3) Federal laws and grouse can increase where habitat have failed to demonstrate a long-term regulations. An example of a regulatory quality has been compromised by inverse relationship between the mechanism is the terms and conditions anthropogenic activities (exurban predator numbers and sage-grouse attached to a grazing permit that development, road development, etc.) nesting success or population numbers. describe how a permittee will manage (e.g., Coates 2007, p. 154, 155; Bui 2009, Therefore, we believe that predation is livestock on a BLM allotment. They are p. 16; Hagen in press, p. 12). Landscape currently a threat to the Gunnison sage- non-discretionary and enforceable, and fragmentation, habitat degradation, and grouse and will continue to be a threat are considered a regulatory mechanism human populations have the potential to the species within the foreseeable under this analysis. Other examples to increase predator populations future. include city or county ordinances, State through increasing ease of securing prey governmental actions enforced under a and subsidizing food sources and nest Summary of Factor C State statute or constitution, or Federal or den substrate. Thus, otherwise We have reviewed the available action under statute. Actions adopted by suitable habitat may change into a information on the effects of disease and local groups, States, or Federal entities habitat sink for grouse populations predation on the Gunnison sage-grouse. that are discretionary or are not (Aldridge and Boyce 2007, p. 517). The only disease that currently presents enforceable, including conservation

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59837

strategies and guidance, are typically negatively affect Gunnison sage-grouse history needs (6.4 km (4 mi)). Because not regulatory mechanisms. by allowing for further development, research summarized in GSRSC (2005 Regulatory mechanisms, if they exist, degradation, and loss of the species’ entire) has shown that impacts occur up may preclude the need for listing if such habitat. A total of 1,190 parcels, to 6.4 km (4 mi) from the point of mechanisms are judged to adequately covering 16,351 ha (40,405 ac), within disturbance, these minimally or address the threat to the species such occupied habitat in Gunnison County unregulated negative impacts will that listing is not warranted. Conversely, currently contain development. Of those continue to fragment the habitat and threats on the landscape are exacerbated 1,190 parcels, 851 are less than 14 ha thus have substantial impacts on the when not addressed by existing (35 ac) in size and subject to County local, as well as landscape, conservation regulatory mechanisms, or when the review. However, those 851 parcels of the species. In summary, Gunnison existing mechanisms are not adequate encompass only 13.1 percent of private County is to be highly commended for (or not adequately implemented or land area with existing development in the regulatory steps they have enforced). We cannot predict when or occupied habitat within Gunnison implemented. However, the scope and how local, State, and Federal laws, County. Parcels greater than 14 ha (35 implementation of that regulatory regulations, and policies will change; ac) in size (339 of the 1,190) encompass authority is limited in its ability to however, most Federal land use plans 86.9 of the existing private land area effectively and collectively conserve are valid for at least 20 years. In this within occupied habitat within Gunnison sage-grouse due to the section we review actions undertaken Gunnison County. Cumulatively, 91 County’s limited authority within the by local, State, and Federal entities percent of the private land within the designed to reduce or remove threats to Gunnison Basin portion of the species’ Gunnison County portion of the range. Gunnison sage-grouse and its habitat. Gunnison Basin population that either In 2005, San Miguel County amended Local Laws and Regulations has existing development or is potentially developable land is allocated its Land Use Codes to include Rangewide approximately 41 percent in lots greater than 14 ha (35 ac) in size consideration and implementation, to of occupied Gunnison sage-grouse and therefore not subject to Gunnison the extent possible, of conservation habitat is privately owned (calculation County LUR 07-17. This situation limits measures recommended in GSRSC from Table 1). Gunnison County and the effectiveness of LUR 07-17 in (2005, entire) for the Gunnison sage- San Miguel County, Colorado, are the providing protection to Gunnison sage- grouse when considering land use only local or County entities that have grouse in Gunnison County. activities and development located regulations and policy, respectively, The only required review by within its habitat (San Miguel County that provide a level of conservation 2005). The County is only involved consideration for the Gunnison sage- Gunnison County under LUR 07-17 pertains to the construction of roads, when there is a request for a special use grouse or its habitats on private land permit, which limits their involvement (Dolores County 2002; Mesa County driveways, and individual building permits. Of the 79 percent of area in review of projects adversely affecting 2003; Montrose County 2003). In 2007, Gunnison sage-grouse and their habitat the Gunnison County, Colorado Board occupied by the Gunnison Basin and providing recommendations. of County Commissioners approved population that falls within Gunnison Conservation measures are solicited Land Use Resolution (LUR) Number 07- County, 37 percent of the private land from the CDOW and a local Gunnison 17 to ensure all applications for land is not subject to the County LUR sage-grouse working group. use change permits, including building because the action would not be within Implementation of the conservation permits, individual sewage disposal 1 km (0.6 mi) of a lek. Gunnison County system permits, Gunnison County reviewed 231 projects from July 2006 measure is dependent on negotiations access permits, and Gunnison County through November 2009 under the LUR between the County and the applicant. Reclamation permits be reviewed for for impacts to Gunnison sage-grouse. All Some positive measures (e.g., locating a impact to Gunnison sage-grouse habitat but one project was within the overall special use activity outside grouse within 1 km (0.6 mile) of an active lek. boundary of the Gunnison Basin habitat, establishing a 324-ha (800-ac) If impacts are determined to result from population’s occupied habitat, with conservation easement; implementing a project, impacts are to be avoided, most of the activity focused in the speed limits to reduce likelihood of minimized, and/or mitigated. northern portion of this population. All bird/vehicle collisions) have been Approximately 79 percent of private of these projects were approved and implemented as a result of the policy. land occupied by the Gunnison Basin allowed to proceed. The majority of Typically, the County has not been population is in Gunnison County, and these projects were within established involved with residential development, thereby under the purview of these areas of development, and some were and most measures that result from regulations. The remaining 21 percent of for activities such as outbuildings or discussions with applicants result in the private lands in the Gunnison Basin additions to existing buildings; measures that the Service considers population is in Saguache County where nonetheless, these projects provide an minimization, not mitigation measures, similar regulations are not in place or indication of further encroachment and but which the County considers applicable. Actions outside the 1 km fragmentation of the remaining mitigation (Henderson 2010, pers. (0.6 mi) buffer are not subject to occupied habitat. Nineteen percent (44) comm.). The San Miguel County Land Gunnison County LUR 07-17. of the projects were within 1 km (0.6 Use Codes provide some conservation Colorado State statute (C.R.S. 30-28- mi) of a lek. Nineteen percent (45) of the benefit to the species through some 101) exempts parcels of land of 14 ha projects contained language within the minimization of impacts and (35 ac) or more per home from permit that established conditions for encouraging landowners to voluntarily regulation, so county zoning laws in control of pets. The use of the 1-km (0.6- minimize/mitigate impacts of Colorado such as LUR 07-17 only apply mi) buffer around the lek provides some residential development in grouse to properties with housing densities conservation benefit to the grouse. This habitat. However, the codes allow for greater than one house per 14 ha (35 ac). buffer is not as large as that limited regulatory authority but are not This statute allows these parcels to be recommended by GSRSC (2005 entire) sufficient to prevent or mitigate for the exempt from county regulation and may to meet all the species’ year-round life- continued degradation and

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 59838 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

fragmentation of Gunnison sage-grouse threat. The permanent loss, and authorities provide individual Gunnison habitat. associated fragmentation and sage-grouse with protection from direct In addition to the county regulations, degradation, of sagebrush habitat is human-caused mortality to the level that Gunnison County hired a Gunnison considered the largest threat to hunting is not considered a threat to the Sage-grouse Coordinator (2005 to Gunnison sage-grouse (GSRSC 2005, p. species (see Factor B discussion, above). present) and organized a Strategic 2). The minimally regulated residential/ The Colorado Wildlife Commission is Committee (2005 to present) to facilitate exurban development found throughout currently considering whether to implementation of conservation the vast majority of the species range is include the Gunnison sage-grouse as an measures in the Gunnison Basin under a primary cause of this loss, endangered or threatened species in both the local Conservation Plan and fragmentation, and degradation of accordance with Administrative Rangewide Conservation Plan (RCP) Gunnison sage-grouse habitat. We are Directive W-7 (State of Colorado, 2007, (GSRSC 2005). San Miguel County hired not aware of any existing local entire). These authorities do not regulate a Gunnison Sage-grouse Coordinator for regulatory mechanisms that adequately the primary threat to the species of the San Miguel Basin population in address this threat. fragmentation of habitat as described in March 2006. The Crawford working We recognize that county or city Factor A. group hired a Gunnison sage-grouse ordinances in San Juan County, Utah, The Wildlife Resources Code of Utah coordinator in December 2009. that address agricultural lands, (Title 23) provides UDWR the powers, Saguache County has applied for a grant transportation, and zoning for various duties, rights, and responsibilities to to hire a part-time coordinator for the types of land uses have the potential to protect, propagate, manage, conserve, Poncha Pass population (grant status influence sage-grouse. However, we are and distribute wildlife throughout the still pending). These efforts facilitate not aware of any existing County State. Section 23-13-3 declares that coordination relative to sage-grouse regulations that provide adequate wildlife existing within the State, not management and reflect positively on regulatory mechanisms to address held by private ownership and legally these Counties’ willingness to conserve threats to the Gunnison sage-grouse and acquired, is property of the State. Gunnison sage-grouse, but have no its habitat. Sections 23-14-18 and 23-14-19 regulatory authority. None of the other Each of the seven populations of authorize the Utah Wildlife Board to Counties with Gunnison sage-grouse Gunnison sage-grouse has a prescribe rules and regulations for the populations have regulations, or staff, Conservation Plan written by the taking and/or possession of protected that implement regulation or policy respective local working group with wildlife, including Gunnison sage- review that consider the conservation publication dates of 1999 to 2009. These grouse. These authorities provide needs of Gunnison sage-grouse. The plans provide recommendations for adequate protection to individual inadequacy of existing regulatory management of Gunnison sage-grouse Gunnison sage-grouse from direct, mechanisms that address habitat loss, and have been the basis for identifying human-caused mortality to the level that fragmentation, and degradation, in the and prioritizing local conservation hunting is not considered a threat to the other populations constitutes a threat to efforts, but do not provide regulatory species (see Factor B discussion, above). those populations. protection for Gunnison sage-grouse or However, these laws and regulations do Conservation measures that have its habitat. not provide the regulatory authority regulatory authority that have been State Laws and Regulations needed to conserve sage-grouse habitats implemented as a result of the from the threats described in Factor A. aforementioned collective efforts State laws and regulations provide Gunnison sage-grouse are managed by include: closing of shed antler specific authority for sage-grouse CDOW and UDWR on all lands within collection in the Gunnison Basin by the conservation over lands that are directly each State as resident native game birds. Colorado Wildlife Commission due to owned by the State, provide broad In both States this classification allows its disturbance of Gunnison sage-grouse authority to regulate and protect the direct human taking of the bird during the early breeding season; and a wildlife on all lands within their during hunting seasons authorized and BLM/USFS/Gunnison County/CDOW borders, and provide a mechanism for conducted under State laws and collective effort to implement and indirect conservation through regulation regulations. In 2000, CDOW closed the enforce road closures during the early of threats to the species (e.g., noxious hunting season for Gunnison sage- breeding season (March 15 to May 15). weeds). grouse in the Gunnison Basin, the only These regulatory efforts have provided Colorado Revised Statutes, Title 33, area then open to hunting for the benefits to Gunnison sage-grouse during Article 1 gives CDOW responsibility for species. The hunting season for the breeding season. However, these the management and conservation of Gunnison sage-grouse in Utah has been measures do not adequately address the wildlife resources within State borders. closed since 1989. The Gunnison sage- primary threat to the species of Title 33 Article 1-101, Legislative grouse is listed as a species of special fragmentation of the habitat. Declaration requires a continuous concern in Colorado, as a sensitive Habitat loss is not regulated or operation of planning, acquisition, and species in Utah, and as a Tier I species monitored in Colorado counties where development of wildlife habitats and under the Utah Wildlife Action Plan, Gunnison sage-grouse occur. Therefore, facilities for wildlife-related providing heightened priority for conversion of agricultural land from one opportunities. The CDOW is required by management (CDOW 2009a, p. 40; use to another, such as native pasture statute (C.R.S. 106-7-104) to provide UDWR 2009, p. 9). The Colorado containing sagebrush converted to counties with information on Wildlife Commission is currently another use, such as cropland, would ‘‘significant wildlife habitat,’’ and considering a proposal from CDOW to not normally come before a county provide technical assistance in list the Gunnison sage-grouse as a State zoning commission. Based on the establishing guidelines for designating endangered or threatened species. State information we have available for the and administering such areas, if asked. listed species will be the focus of range of the species, we do not believe The CDOW also has authority to conservation actions such as that habitat loss from conversion of regulate possession of the Gunnison monitoring, research, enhancement, sagebrush habitat to agricultural lands is sage-grouse, set hunting seasons, and restoration, or inventory, and will occurring at a level that makes it a issue citations for poaching. These receive preferential consideration in the

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59839

annual budget development process binding documents. Therefore, we have range of the species, we believe that (State of Colorado, 2007, p. 1). Hunting determined that perpetual conservation while easements provide some level of and other State regulations that deal easements offer some level of regulatory protection from future development, with issues such as harassment provide protection to the species. Some of the they are not sufficient to ameliorate the adequate protection for individual birds easements include conservation threat of loss and fragmentation of (see discussion under Factor B), but do measures that are specific for Gunnison Gunnison sage-grouse habitat. We not protect the habitat. While we sage-grouse, while many are directed at believe this to be true now and into the strongly support the use of regulatory other species, such as big game (GSRSC future, especially considering the costs mechanisms to control hunting of the 2005, pp. 59-103). Some of these of purchasing easements when species, the protection afforded through easements protect existing Gunnison compared to the cost paid for the aforementioned State regulatory sage-grouse habitat. Sixty-nine percent development of those lands, and money mechanisms is limited. of the area under conservation Easements that prevent long-term or easements have land cover types other available through all sources to permanent habitat loss by prohibiting than agricultural (covering 31 percent) purchase easements. In addition, development are held by CDOW, that provide habitat for Gunnison sage- because entering into a conservation UDWR, Natural Resources Conservation grouse. However, considering that the easement is voluntary on the part of the Service (NRCS), NPS, and non- total easements recorded to date cover landowner, we cannot be sure that any governmental organizations (Table 4). only 5.1 percent of private lands future conservation easements will Although the decision of whether to rangewide, that not all easements have occur in such a configuration and enter into a conservation easement is sage-grouse specific habitat or magnitude that they will offer the voluntary on the part of the landowner, conservation measures, and their species or its habitat substantial conservation easements are legally scattered distribution throughout the protection.

TABLE 4. AREA OF CONSERVATION EASEMENTS IN HECTARES (HA) AND ACRES (AC) BY POPULATION AND PERCENTAGE OF OCCUPIED HABITAT IN CONSERVATION EASEMENTS AS OF SEPTEMBER 2009.

Percent of Occupied Population hectares acres Habitat in Respective Population

Gunnison Basin 11,334 28,008 4.7

Pin˜on Mesa 4,270 10,551 27.1

Cerro Summit-Cimarron-Sims Mesa 1,395 3,447 9.3

Monticello 1,036 2,560 3.6

San Miguel Basin 843 2,084 2.1

Dove Creek Group 330 815 2.0

Crawford 249 616 1.8

Poncha Pass 0 0 0

Rangewide 19,457 48,081 5.1

The CDOW has been implementing 18,211 ha (45,000 ac) within Gunnison properties constitute only 13 percent of the CCAA referenced earlier in this sage-grouse occupied habitat), have the total private land throughout the document. As of February 2010, 4 worked with the CDOW to complete species range and that they are scattered landowners have completed Certificates baseline reports in preparation for throughout the species range. Therefore, of Inclusion (CI) for their properties issuance of CIs. The reports describe we do not believe the CCAA/CI efforts enrolling 2,581 ha (6,377 ac). Because property infrastructure and number of would provide adequate regulatory the Service issues a permit to applicants acres of Gunnison sage-grouse seasonal coverage to ensure the long-term with an approved CCAA, we have some habitat. A CDOW review of all these conservation of the species on private regulatory oversight over the reports and the condition of the habitat lands. implementation of the CCAA. However, is pending. The CCAA/CI efforts On April 22, 2009, the Governor of permit holders and landowners can described in this paragragh will provide Colorado signed into law new rules voluntarily opt out of the CCAA at any conservation benefits to Gunnison sage- (House Bill 1298) for the Colorado Oil time. Thus, the CCAA provides grouse throughout their range where and Gas Conservation Commission important conservation measures that they are in place (27 in the Gunnison (COGCC), which is the entity assist the species, and provides Basin, 3 in San Miguel, 2 in Crawford, responsible for permitting oil and gas regulatory protection to enrolled 5 in Pı˜non Mesa, 1 in Dove Creek). Even well development in Colorado (COGCC landowners, but due to its voluntary assuming the area of all landowners 2009, entire). The rules went into effect nature, provides no regulatory expressing interest and with completed on private lands on April 1, 2009, and protection. An additional 38 baselines will ultimately be covered on Federal lands July 1, 2009. The new landowners (totaling approximately under CIs, the fact remains that these rules require that permittees and

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 59840 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

operators determine whether their occupied habitat in Colorado and one and invasive weeds may provide some proposed development location percent in Utah, so impacts may be protection for sage-grouse in local areas overlaps with ‘‘sensitive wildlife considered negligible. We are not aware by requiring some control of the habitat,’’ or is within a restricted surface of any conservation measures that will invasive plants, although large-scale occupancy (RSO) area. For Gunnison be implemented under regulatory control of the most problematic invasive sage-grouse, areas within 1 km (0.6 mi) authority for Gunnison sage-grouse on plants is not occurring. Rehabilitation of an active lek can be designated as State school section lands, other than a and restoration techniques for sagebrush RSOs (CDOW 2009a, p. 27), and surface request to withdraw or apply ‘‘no habitats are mostly unproven and area occupancy will be avoided except surface occupancy’’ and conservation experimental (Pyke in press, p. 25). in cases of economic or technical measures from the RCP (GSRSC 2005) to Regulatory authority has not been infeasibility (CDOW 2009a, p. 27). Areas four sections available for oil and gas demonstrated to be effective in within approximately 6.4 km (4 mi) of leasing in the San Miguel Basin addressing the overall impacts of an active lek are considered sensitive population (see Factor A for further invasive plants on the degradation and wildlife habitat (CDOW 2009a, p. 27) discussion). The State Land Board (SLB) fragmentation of sagebrush habitat and the development proponent is recently purchased the Miramonte within the species range. required to consult with the CDOW to Meadows property (approximately 809 Federal Laws and Regulations identify measures to (1) avoid impacts ha (2,000 ac) next to the Dan Noble State on wildlife resources, including sage- Wildlife Area (SWA). Roughly 526 ha Gunnison sage-grouse are not covered grouse; (2) minimize the extent and (1,300 ac) is considered prime Gunnison or managed under the provisions of the severity of those impacts that cannot be sage-grouse habitat (Garner 2010, pers. Migratory Bird Treaty Act (16 U.S.C. avoided; and (3) mitigate those effects comm.). Discussions with the SLB have 703-712) because they are considered that cannot be avoided or minimized indicated a willingness to implement resident game species. Federal agencies (COGCC 2009, section 1202.a). The habitat improvements (juniper removal) are responsible for managing 54 percent COGCC will consider CDOW’s on the property. They have also of the total Gunnison sage-grouse recommendations in the permitting accepted an application to designate the habitat. The Federal agencies with the decision, although the final permitting tract as a ‘‘Stewardship Trust’’ parcel. most sagebrush habitat are BLM, an and conditioning authority remains The Stewardship Trust program is agency of the Department of the Interior, with COGCC. As stated in Section capped at 119,383 to 121,406 ha and USFS, an agency of the Department of Agriculture. The NPS in the 1202.d of the new rules, consultation (295,000 to 300,000 ac), and no more Department of the Interior also has with CDOW is not required under property can be added until another responsibility for lands that contain certain circumstances such as, the tract is removed from the program. Gunnison sage-grouse habitat. issuance of a variance by the Director of Because of this cap, it is unknown if or the COGCC, the existence of a when the designation of the tract as a BLM previously CDOW-approved wildlife Stewardship Trust parcel may occur. About 42 percent of Gunnison sage- mitigation plan, and others. Other The scattered nature of State school categories for potential exemptions also grouse occupied habitat is on BLM- sections (single sections) across the administered land (Table 1 details can be found in the new rules (e.g., landscape and the requirement to 1203.b). percent ownership within each conduct activities to maximize financial population). The Federal Land Policy Because the new rules have only been returns minimize the likelihood of in place for less than a year and their and Management Act of 1976 (FLPMA) implementation of measures that will implementation is still being discussed, (43 U.S.C. 1701 et seq.) is the primary benefit Gunnison sage-grouse. Thus, it remains to be seen what level of Federal law governing most land uses mechanisms present on State trust lands protection will be afforded to Gunnison on BLM-administered lands. Section are inadequate to minimize degradation sage-grouse. The new rules could 102(a)(8) of FLPMA specifically and fragmentation of habitat and thus provide for greater consideration of the recognizes wildlife and fish resources as ensure conservation of the species. conservation needs of the species. It being among the uses for which these should be noted that leases that have Some States require landowners to lands are to be managed. Regulations already been approved but not drilled control noxious weeds, a potential pursuant to FLPMA and the Mineral (e.g., COGCC 2009, 1202.d(1)), or habitat threat to sage-grouse (as Leasing Act (30 U.S.C. 181 et seq.) that drilling operations that are already on discussed in Factor A). The types of address wildlife habitat protection on the landscape, may continue to operate plants considered to be noxious weeds BLM-administered land include 43 CFR without further restriction into the vary by State. Cheatgrass is listed as a 3162.3-1 and 43 CFR 3162.5-1; 43 CFR future. We are not aware of any Class C species in Colorado (Colorado 4120 et seq.; and 43 CFR 4180 et seq. situations where RSOs have been Department of Agriculture 2010, p. 3). Gunnison sage-grouse have been effectively applied or where The Class C designation delegates to designated as a BLM Sensitive Species conservation measures have been local governments the choice of whether since they were first identified and implemented for potential oil and gas or not to implement activities for the described in 2000 (BLM 2009, p. 7). The development impacts to Gunnison sage- control of cheatgrass. Gunnison, management guidance afforded grouse on private lands underlain with Saguache, and Hinsdale Counties target sensitive species under BLM Manual privately owned minerals, which are cheatgrass with herbicide applications 6840 – Special Status Species regulated by the appropriate governing (GWWC 2009, pp. 2- 3). The CDOW Management (BLM 2008, entire) states bodies. annually sprays for weeds on SWAs that ‘‘Bureau sensitive species will be Colorado and Utah have laws that (CDOW 2009a, p. 106). The State of managed consistent with species and directly address the priorities for use of Utah does not consider cheatgrass as habitat management objectives in land State school section lands, which noxious within the State (Utah use and implementation plans to require that management of these Department of Agriculture 2010, p. 1) promote their conservation and to properties be based on maximizing nor in San Juan County (Utah minimize the likelihood and need for financial returns. State school section Department of Agriculture 2010a, p. 1). listing under the ESA’’ (BLM 2008, p. lands account for only one percent of The laws dealing with other noxious 05V). BLM Manual 6840 further requires

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59841

that Resource Management Plans p. 6). In addition, several offices have 3100 et seq., and they are authorized to (RMPs) should address sensitive undergone other program-level require stipulations as a condition of species, and that implementation planning, such as travel management, issuing a lease. The BLM’s planning ‘‘should consider all site-specific that incorporate some conservation handbook has program-specific methods and procedures needed to measures to benefit the species (BLM guidance for fluid minerals (which bring species and their habitats to the 2009, p. 6). However, the information include oil and gas) that specifies that condition under which management provided to us by the BLM in Colorado RMP decisions will identify restrictions under the Bureau sensitive species did not specify what requirements, on areas subject to leasing, including policies would no longer be necessary’’ direction, measures, or guidance will closures, as well as lease stipulations (BLM 2008, p. 2A1). As a designated ultimately be included in the revised (BLM 2000, Appendix C, p.16). The sensitive species under BLM Manual Colorado RMPs to address threats to handbook also specifies that all 6840, sage-grouse conservation must be sage-grouse and sagebrush habitat. stipulations must have waiver, addressed in the development and Additionally we do not know the exception, or modification criteria implementation of RMPs on BLM lands. effectiveness of these proposed documented in the plan, and notes that RMPs are the basis for all actions and measures. the least restrictive constraint to meet authorizations involving BLM- We do not have information on RMP the resource protection objective should administered lands and resources. They implementation by Utah BLM. be used (BLM 2000, Appendix C, p. 16). establish allowable resource uses, Therefore, we cannot assess the future The BLM has regulatory authority to resource condition goals and objectives value of BLM RMPs as regulatory condition ‘‘Application for Permit to to be attained, program constraints and mechanisms for the conservation of the Drill’’ authorizations, conducted under a general management practices needed to Gunnison sage-grouse. Current BLM lease that does not contain specific sage- attain the goals and objectives, general RMPs provide some limited regulatory grouse conservation stipulations, but implementation sequences, and authority as they are being implemented utilization of conditions is discretionary intervals and standards for monitoring through project-level planning (e.g., and we are uncertain as to how this and evaluating the plan to determine its travel management (the management of authority will be applied. Also, oil and effectiveness and the need for the motorized and nonmotorized use of gas leases have a 200-m (650-ft) amendment or revision (43 CFR 1601.0- public lands) and grazing permit stipulation, which allows movement of 5(k)). renewals). We do not know the final the drilling area by that distance to The RMPs provide a framework and measures that will be included in the avoid sensitive resources. Many of the programmatic guidance for activity revised RMPs and therefore what will be BLM field offices work with the plans, which are site-specific plans implemented, so we cannot evaluate operators to move a proposed drilling written to implement decisions made in their effectiveness. Based on modeling site farther or justify such a move a RMP. Examples include Allotment results demonstrating the effects of through the site-specific NEPA process. Management Plans that address roads on Gunnison sage-grouse For existing oil and gas leases on BLM livestock grazing, oil and gas field (Aldridge and Saher 2010 entire – land in occupied Gunnison sage-grouse development, travel management discussed in detail in Factor A), we habitat, oil and gas companies can (motorized and mechanized road and believe that implementation of even the conduct drilling operations if they wish, trail use), and wildlife habitat most restrictive travel management but are always subject to permit management. Activity plan decisions alternatives proposed by the BLM and conditions. The BLM has stopped normally require additional planning USFS will still result in further issuing new drilling leases in occupied and National Environmental Policy Act degradation and fragmentation of sage-grouse habitat in Colorado at least (NEPA) analysis. If an RMP contains Gunnison sage-grouse habitat in the until the new RMPs are in place. All specific direction regarding sage-grouse Gunnison Basin. occupied habitat in the Crawford Area habitat, conservation, or management, it In addition to land use planning, BLM and Gunnison Basin populations are represents an enforceable regulatory uses Instruction Memoranda (IM) to covered by this policy. However, leases mechanism to ensure that the species provide instruction to district and field already exist in 17 percent of the Pı˜non and its habitats are considered during offices regarding specific resource Mesa population, and 49 percent of the permitting and other decision-making issues. Instruction Memoranda are San Miguel Basin population. Given the on BLM lands. guidance that require a process to be already small and fragmented nature of The BLM manages Gunnison sage- followed but do not mandate results. the populations where oil and gas leases grouse habitat under five existing RMPs. Additionally, IMs are of short duration are likely to occur, additional These RMPs contain some specific (1 to 2 years) and are intended to development within occupied habitat measures or direction pertinent to address resource concerns by providing would negatively impact those management of Gunnison sage-grouse or direction to staff until a threat passes or populations by causing additional their habitats. Three of these RMPs (San the resource issue can be addressed in actual and functional habitat loss and Juan, Grand Junction, and a long-term planning document. BLM fragmentation. Since we do not know Uncompahgre– covering all or portions issued IM Number CO-2005-038 on July what minimization and mitigation of the San Miguel, Pı˜non Mesa, 12, 2005, stating BLM’s intent and measures might be applied, we cannot Crawford, and Cerro Summit– commitment to assist with and assess the overall conservation impacts Cimarron–Sims Mesa populations, and participate in the implementation of the to those populations. the Dove Creek group) are in various RCP. Although this IM has not been The oil and gas leasing regulations stages of revision. All RMPs currently formally updated or reissued, it authorize BLM to modify or waive lease propose some conservation measures continues to be used for BLM- terms and stipulations if the authorized (measures that if implemented should administered lands in the State (BLM officer determines that the factors provide a level of benefit to Gunnison 2009, p. 6). leading to inclusion of the term or sage-grouse) outlined in GSRSC (2005, The BLM has regulatory authority for stipulation have changed sufficiently to entire) or local Gunnison sage-grouse oil and gas leasing on Federal lands and no longer justify protection, or if Conservation Plans through project- or on private lands with a severed Federal proposed operations would not cause activity-level NEPA reviews (BLM 2009, mineral estate, as provided at 43 CFR unacceptable impacts (43 CFR 3101.1-

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 59842 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

4). The Service has no information quality for native plant and animal the Gunnison Basin. Only 40 percent of indicating that the BLM has granted any populations and communities (43 CFR the allotments in the San Miguel waivers of stipulations pertaining to the 4180.2(d)(4) and (5)). The guidelines population were meeting LHA Gunnison sage-grouse and their habitat. must address restoring, maintaining, or objectives. This data suggests that The Energy Policy and Conservation enhancing habitats of BLM special regulatory mechanisms applied within Act of 2000 included provisions status species to promote their livestock grazing permits and leases are requiring the Secretary of the conservation, as well as maintaining or not being implemented such that they Department of the Interior to conduct a promoting the physical and biological ensure that habitats within two of the scientific inventory of all onshore conditions to sustain native populations largest Gunnison sage-grouse Federal lands to identify oil and gas and communities (43 CFR 4180.2(e)(9) populations are making significant resources underlying these lands and and (10). The BLM is required to take progress toward being restored or the nature and extent of any restrictions appropriate action not later than the maintained for Gunnison sage-grouse. or impediments to the development of start of the next grazing year upon USFS such resources (U.S.C. Title 42, Chapter determining that existing grazing 77, §6217(a)). On May 18, 2001, practices or levels of grazing use are The USFS manages 10 percent of the President Bush signed Executive Order significant factors in failing to achieve occupied Gunnison sage-grouse habitat 13212-Actions to Expedite Energy- the standards and conform with the (Table 1). Management of National Related Projects (66 FR 28357, May 22, guidelines (43 CFR 4180.2(c)). Forest System lands is guided 2001), which states that the executive The BLM agreed to work with their principally by the National Forest departments and agencies shall take resource advisory councils to expand Management Act (NFMA) (16 U.S.C. appropriate actions, to the extent the rangeland health standards required 1600-1614, August 17, 1974, as consistent with applicable law, to under 43 CFR 4180 so that there are amended). The NFMA specifies that all expedite projects that will increase the public land health standards relevant to National Forests must have a Land and production, transmission, or all ecosystems, not just rangelands, and Resource Management Plan (LRMP) (16 conservation of energy. The Executive that they apply to all BLM actions, not U.S.C. 1600) to guide and set standards Order specifies that this includes just livestock grazing (BLM Manual for all natural resource management expediting review of permits or taking 180.06.A). Both Colorado and Utah have activities on each National Forest or other actions as necessary to accelerate resource advisory councils. Within the National Grassland. The NFMA requires the completion of projects, while Gunnison Basin population, 16 percent USFS to incorporate standards and maintaining safety, public health, and of the BLM and USFS allotment guidelines into LRMPs (16 U.S.C. 1600). environmental protections. Due to the management plans in occupied habitat USFS conducts NEPA analysis on its relatively small amount of energy currently have incorporated Gunnison LRMPs, which include provisions to development activities occurring within sage-grouse habitat objectives (USFWS, manage plant and animal communities Gunnison sage-grouse habitat (with the 2010c, entire). Rangewide, of the offices for diversity, based on the suitability exception of the Dry Creek Basin providing information specific to and capability of the specific land area subpopulation of the San Miguel allotment management plans, only 24 in order to meet overall multiple-use population), we believe that energy percent of 148 BLM and USFS grazing objectives. The USFS planning process development activities are not a allotments have thus far incorporated is similar to that of BLM. significant threat. However, given Gunnison sage-grouse habitat objectives The Gunnison sage-grouse is a USFS scenarios such as Dry Creek Basin, if the into the allotment management plans or sensitive species in both Region 2 level of energy development activities in permit renewals. Land health (Colorado) and Region 4 (Utah). USFS should increase, current regulations and objectives were being met in 37 of the policy provides direction to analyze policies do not provide adequate 80 (46 percent) BLM active allotments potential impacts of proposed regulatory protection to prevent oil and for which data were reported. Land management activities to sensitive gas development from becoming a threat Health Assessments (LHAs) were not species in a biological evaluation. The to this subpopulation. conducted in an additional 20 forests within the range of sage-grouse As stated previously, Gunnison sage- allotments. provide important seasonal habitats for grouse are considered a BLM Sensitive The BLM Gunnison Field Office the species, particularly the Grand Species and therefore receive Special conducted Gunnison sage-grouse habitat Mesa, Uncompahgre, and Gunnison Status Species management assessments in two major occupied (GMUG) National Forests. The 1991 considerations. The BLM regulatory habitat locations in the Gunnison Basin Amended Land and Resource authority for grazing management is population quantifying vegetation Management Plan for the GMUG provided at 43 CFR 4100 (Regulations structural characteristics and plant National Forests has not directly on Grazing Administration Exclusive of species diversity. Data were collected incorporated Gunnison sage-grouse Alaska). Livestock grazing permits and and compared to Gunnison sage-grouse conservation measures or habitat leases contain terms and conditions Structural Habitat Guidelines (GSRSC, objectives. The Regional Forester signed determined by BLM to be appropriate to 2005, Appendix H) during optimal the RCP and as such has agreed to achieve management and resource growing conditions in these two major follow and implement those condition objectives on the public lands occupied areas. Guidelines for sage recommendations. Three of the 34 and other lands administered by BLM, cover, grass cover, forb cover, sagebrush grazing allotments in occupied grouse and to ensure that habitats are, or are height, grass height, and forb height habitat have incorporated Gunnison making significant progress toward were met in 45, 30, 25, 75, 81, and 39 sage-grouse habitat objectives. To date being, restored or maintained for BLM percent, respectively, of 97 transects USFS has not deferred or withdrawn oil special status species (43 CFR (BLM 2009, pp. 31-32). Using the results and gas leasing in occupied habitat, but 4180.1(d)). The State or regional of the two assessments along with sage-grouse conservation measures can standards for grazing administration results from LHAs, habitat conditions be included at the ‘‘Application for must address habitat for endangered, are not being adequately managed to Permit to Drill’’ stage. The BLM, which threatened, proposed, candidate, or meet the life history requirements of regulates oil and gas leases on USFS special status species, and habitat Gunnison sage-grouse in the majority of lands, has the authority to defer leases.

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59843

However, the only population within Gunnison sage-grouse, constraints assessment of the implementation of USFS lands that is in areas of high or include limitation of acreage burned per regulations and associated stipulations even medium potential for oil and gas year and limitation of percent of project guiding exurban development indicates reserves is the San Miguel Basin, and polygons burned. The NPS is currently that current regulatory measures do not USFS lands only make up 1.4 percent of following conservation measures in the adequately ameliorate impacts to sage- that population (GSRSC 2005, D-8). local conservation plans and the RCP grouse and its habitat. While consideration as a sensitive (Stahlnecker 2010, pers. comm.). Energy development is only In most cases, implementation of NPS species and following the considered a threat in the Dry Creek recommendations contained in the fire management policies should result Basin subpopulation of the San Miguel Gunnison sage-grouse Rangewide in minimal adverse effects since population. For the BLM and USFS, Conservation Plan (GSRSC 2005, entire) emphasis is placed on activities that RMPs and LRMPs are mechanisms can provide some conservation benefits, will minimize, or ideally benefit, through which adequate and they are voluntary in nature. impacts to Gunnison sage-grouse Considering the aforementioned, the habitat. Overall, implementation of NPS enforceable protections for Gunnison USFS has minimal regulatory authority regulations should minimize impacts to sage-grouse could be implemented. that has been implemented to provide Gunnison sage-grouse. Certain activities, However, the extent to which for the long-term conservation of such as human recreation activities appropriate measures to reduce or Gunnison sage-grouse and its habitat. occurring within occupied habitat, may eliminate threats to sage-grouse have adverse effects, although we resulting from the various activites the NPS believe the limited nature of such agencies manage have been The NPS manages two percent of activities on NPS lands would limit incorporated into those planning occupied Gunnison sage-grouse habitat their impacts on the species and thus documents, or are being implemented, (Table 1), which means that there is not be considered a threat to Gunnison vary across the range. As evidenced by little opportunity for the agency to affect sage-grouse. Grazing management the discussion above, and the ongoing range-wide conservation of the species. activities on NPS lands are governed by threats described under Factor A, BLM The NPS Organic Act (39 Stat. 535; 16 BLM regulations and their and the USFS are not fully U.S.C. 1, 2, 3, and 4) states that NPS will implementation. implementing the regulatory administer areas under their jurisdiction mechanisms available to conserve ‘‘by such means and measures as Summary of Factor D Gunnison sage-grouse and their habitats conform to the fundamental purpose of Gunnison sage-grouse conservation on their lands. said parks, monuments, and has been addressed in some local, State, We have evaluated the best available reservations, which purpose is to and Federal plans, laws, regulations, scientific information on the adequacy and policies. Gunnison County has conserve the scenery and the natural of regulatory mechanisms to address implemented regulatory authority over and historical objects and the wild life threats to Gunnison sage-grouse and its development within their area of therein and to provide for the enjoyment habitats. While 54 percent of Gunnison jurisdiction, for which they are to be of the same in such manner and by such sage-grouse habitat is managed by highly commended. No other counties means as will leave them unimpaired Federal agencies, these lands are ’’ within the range of the species have for the enjoyment of future generations. interspersed with private lands, which implemented such regulations. While Lands in the Black Canyon of the do not have adequate regulatory Gunnison National Park and the regulations implemented in Gunnison mechanisms to ameliorate the further Curecanti National Recreation Area County have minimized some impacts, loss and fragmentation of habitat in all include portions of occupied habitat of it has not curtailed the habitat loss, populations. This interspersion of the Crawford and Gunnison Basin fragmentation, and degradation private lands throughout Federal and populations. The 1993 Black Canyon of occurring within the County’s other public lands extends the negative the Gunnison Resource Management jurisidictional boundary. Due to the influence of those activities beyond the Plan (NPS 1993, entire) and the 1995 limited scope and applicability of these actual 41 percent of occupied habitat Curecanti National Recreation Area regulations throughout the range of the that private lands overlay. While we are Resource Management Plan (NPS 1995, species and within all populations, the unable to quantify the extent of the entire) do not identify any specific current local land use or development impacts on Federal lands resulting from conservation measures for Gunnison planning regulations do not provide sage-grouse. However, these Resource adequate regulatory authority to protect activities on private lands, we have Management Plans are outdated and sage-grouse from development or other determined that the inadequacy of will be replaced with Resource harmful land uses that result in habitat regulatory mechanisms on private lands Stewardship Strategies, which will be loss, degradation, and fragmentation. as they pertain to human infrastructure developed in the next five to seven The CDOW and UDWR have development and the inadequate years. In the mean time, NPS ability to implemented and continue to pursue implementation of Federal authorities actively manage for species of special conservation easements in Colorado and on some Federal lands pose a significant concern is not limited by the scope of Utah, respectively, to conserve threat to the species throughout its their management plans. Gunnison sage-grouse habitat and meet range. Further, the threat of inadequate NPS completed a Fire Management the species’ needs. These easements regulatory mechanisms is expected to Plan in 2006 (NPS 2006, entire). Both provide protection for the species where continue or even increase in the future. prescribed fire and fire use (allowing they occur, but do not cover enough of E. Other Natural or Manmade Factors wildfires to burn) are identified as a the landscape to provide for long-term Affecting Its Continued Existence suitable use in Gunnison sage-grouse conservation of the species. State habitat. However, Gunnison sage-grouse wildlife regulations provide protection Other factors potentially affecting the habitat is identified as a Category C area, for individual Gunnison sage-grouse Gunnison sage-grouse’s continued meaning that while fire is a desirable from direct mortality due to hunting but existence include genetic risks, drought, component of the ecosystem, ecological do not protect its habitat from the main recreational activities, pesticides and constraints must be observed. For threat of loss and fragmentation. Our herbicides, and contaminants.

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 59844 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

Genetics and Small Population Size Gunnison Basin, which consistently had itself appeared to have a mixture of Small populations face three primary more alleles and most of the alleles individuals with differing probabilities genetic risks: inbreeding depression; present in other populations. All other of belonging to different clusters. This loss of genetic variation; and populations had much lower levels of information suggests that the San accumulation of new mutations. diversity. Miguel population may act as a conduit Inbreeding can have individual and The lower diversity levels are linked of gene flow among the satellite population consequences by either to small population sizes and a high populations surrounding the larger increasing the phenotypic expression of degree of geographic isolation. Gunnison Basin population. recessive, deleterious alleles (the Collectively, the smaller populations Additionally, another potential expression of harmful genes through the contain 24 percent of the genetic disperser into Crawford was found from diversity of the species. Individually, physical appearance) or by reducing the the Gunnison Basin (Oyler-McCance et each of the small populations may not overall fitness of individuals in the al. 2005, p. 636). This result is not be important genetically to the survival population (GSRSC 2005, p.109 and surprising given their close geographic of the species, but collectively it is references therein). At the species level, proximity. likely that 24 percent of the genetic Effective population size (Ne) is an Gunnison sage-grouse have low levels of diversity is important to future important parameter in conservation genetic diversity particularly when rangewide survival of the species. Some biology. It is defined as the size of an compared to greater sage-grouse (Oyler- of the genetic makeup contained within idealized population of breeding adults McCance et al. 2005, p. 635). There is the smaller populations (with the that would experience the same rate of no consensus regarding how large a potential exception of the Poncha Pass (1) loss of heterozygosity (the amount population must be in order to prevent population since it consists of birds and number of different genes within inbreeding depression. However, the from the Gunnison Basin) may be individuals in a population), (2) change San Miguel Basin Gunnison sage-grouse critical to maintaining adaptability in in the average inbreeding coefficient (a effective population size was below the the face of issues such as climate change calculation of the amount of breeding by level at which inbreeding depression or other environmental change. All closely related individuals), or (3) has been observed to occur (Stiver et al. populations sampled were found to be change in variance in allele (one 2008, p. 479). Lowered hatching success genetically discrete units (Oyler- member if a pair or series of genes is a well documented correlate of McCance et al. 2005, p. 635), so the loss occupying a specific position in a inbreeding in wild bird populations of any of them would result in a specific chromosome) frequency (Stiver et al. 2008, p. 479 and references decrease in genetic diversity of the through genetic drift (the fluctuation in therein). Stiver et al. (2008, p. 479) species. In addition, multiple gene frequency occurring in an isolated suggested the observed lowered populations across a broad geographic population) as the actual population. hatching success rate of Gunnison sage- area provide insurance against a single The effective size of a population is grouse in their study may be caused by catastrophic event (such as the effects of often much less than its actual size or inbreeding depression. Similarities of a significant drought even), and the number of individuals. As effective hatchability rates exist among other bird aggregate number of individuals across population size decreases, the rate of species that had undergone genetic all populations increases the probability loss of allelic diversity via genetic drift bottlenecks. The application of the same of demographic persistence and increases. Two consequences of this loss procedures of effective population size preservation of overall genetic diversity of genetic diversity, reduced fitness estimation as used for the San Miguel by providing an important genetic through inbreeding depression and Basin to the other Gunnison sage-grouse reservoir (GSRSC 2005, p. 179). reduced response to sustained populations indicated that all Consequently, the loss of any one directional selection (‘‘adaptive populations other than the Gunnison population would have a negative effect potential’’), are thought to elevate Basin population may have population on the species as a whole. extinction risk (Stiver et al., 2008, p. 472 sizes low enough to induce inbreeding Historically, the Monticello–Dove and references therein). While no depression; and all populations could Creek, San Miguel, Crawford, and Pı˜non consensus exists on the population size be losing adaptive potential (Stiver et al. Mesa populations were larger and were needed to retain a level of genetic 2008, p. 479). connected through more contiguous diversity that maximizes evolutionary Population structure of Gunnison areas of sagebrush habitat. A 20 percent potential (i.e., the ability to adapt to sage-grouse was investigated using loss of habitat and 37 percent local changes), up to 5,000 greater sage- mitochondrial DNA sequence (mtDNA, fragmentation of sagebrush habitat was grouse may be necessary to maintain an maternally inherited DNA located in documented in southwestern Colorado effective population size of 500 birds cellular organelles called mitochondria) between the late 1950s and the early (Aldridge and Brigham, 2003, p. 30). and nuclear microsatellite data from 1990s (Oyler-McCance et al. 2001, p.), Other recent recommendations also seven geographic areas (Cerro Summit– which led to the current isolation of suggest populations of at least 5,000 Cimarron–Sims Mesa, Crawford, these populations and is consistent with individuals to deal with evolutionary Gunnison Basin, Curecanti area of the the documented low amounts of gene and demographic constraints (Trail et Gunnison Basin, Monticello–Dove flow and isolation by distance (Oyler- al. 2009, in press, p. 3, and references Creek, Pı˜non Mesa, and San Miguel McCance et al. 2005, p. 635). However, therein). While the persistence of wild Basin) (Oyler-McCance et al. 2005, Oyler-McCance et al. (2005, p. 636) populations is usually influenced more entire). The Cerro Summit–Cimarron– noted that a few individuals in their by ecological rather than by genetic Sims Mesa population was not included analysis appeared to have the genetic effects, once they are reduced in size, in the analysis due to inadequate characteristics of a population other genetic factors become increasingly sample sizes. The Poncha Pass than their own, suggesting they were important (Lande 1995, p. 318). population also was not included as it dispersers from a different population. The CDOW contracted for a is composed of individuals transplanted Two probable dispersers were population viability analysis (PVA) for from Gunnison Basin. Oyler-McCance et individuals moving from San Miguel the Gunnison sage-grouse (GSRSC 2005, al. (2005, entire) found that levels of into Monticello–Dove Creek and Appendix G). The purpose of the genetic diversity were highest in the Crawford. The San Miguel population Gunnison sage-grouse PVA was to assist

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59845

the CDOW in evaluating the relative risk viability and adaptability, as well as the ecological driver across the Great Plains of extinction for each population under contribution of these populations to (Knopf 1996, p.147). Infrequent, severe the conditions at that time (i.e., the risk connectivity and the continued drought may cause local extinctions of of extinction if nothing changed), to existence of the entire species. annual forbs and grasses that have estimate relative extinction probabilities Six of the seven Gunnison sage-grouse invaded stands of perennial species, and and loss of genetic diversity over time populations may have effective sizes recolonization of these areas by native for various population sizes, and to low enough to induce inbreeding species may be slow (Tilman and El determine the sensitivity of Gunnison depression and all seven could be losing Haddi 1992, p. 263). Drought reduces sage-grouse population growth rates to adaptive potential, with the assumption vegetation cover (Milton et al. 1994, p. various demographic parameters that the five populations smaller than 75; Connelly et al. 2004, p. 7-18), (GSRSC 2005, p. 169). The PVA was the San Miguel population are potentially resulting in increased soil used as a tool to predict the relative, not exhibiting similar demography to the erosion and subsequent reduced soil absolute or precise, probability of San Miguel population (Stiver et al. depths, decreased water infiltration, and extinction for the different populations 2008, p. 479) and thus trending towards reduced water storage capacity. Drought under various management scenarios extirpation. Stiver et al. (2008, p. 479) also can exacerbate other natural events based on information available at that suggested that long-term persistence of such as defoliation of sagebrush by time and with the understanding that no the six smaller populations would insects. For example, approximately data were available to determine how require translocations to supplement 2,544 km2 (982 mi2) of sagebrush demographic rates would be affected by genetic diversity. The only population shrublands died in Utah in 2003 as a habitat loss or fragmentation. The currently providing individuals to be result of drought and infestations with analysis indicated that small translocated is the Gunnison Basin the Aroga (webworm) moth (Connelly et populations (< 50 birds) are at a serious population, but because of substantial al. 2004, p. 5-11). Sage-grouse are risk of extinction within the next 50 population declines such as those affected by drought through the loss of years (assuming some degree of observed between the 2001 and 2004 lek vegetative habitat components, reduced consistency of environmental influences counts (Stiver et al., 2008, p. 479), insect production (Connelly and Braun in sage-grouse demography). In contrast, significant questions arise as to whether 1997, p. 9), and potential increased risk populations in excess of 500 birds had this population would be able to sustain of virus infections, such as the West an extinction risk of less than 5 percent the loss of individuals required by Nile virus. These habitat component within the same time period. These translocations. Lek counts, and losses can result in declining sage- results suggested that the Gunnison consequently population estimates, grouse populations due to increased Basin population is likely to persist long especially in the San Miguel Basin and nest predation and early brood mortality term in the absence of threats acting on Gunnison Basin populations, have associated with decreased nest cover it. In the absence of intervention, the undergone substantial declines (Table 2) and food availability (Braun 1998, p. Cerro Summit–Cimarron–Sims Mesa since peaks observed in the annual 2004 149; Moynahan et al. 2007, p. 1781). and Poncha Pass populations and the and 2005 counts, thus making Greater sage-grouse populations Dove Creek group of the Monticello– inbreeding depression even more likely declined during the 1930s period of Dove Creek population were likely to to be occurring within all populations drought (Patterson 1952, pp. 68-69; become extirpated (GSRSC 2005, pp. except the Gunnison Basin. While we Braun 1998, p. 148). Drought conditions recognize that sage-grouse population 168-179). Based on 2009 population in the late 1980s and early 1990s also sizes are cyclical, and that there are coincided with a period when sage- estimates and an overall declining concerns about the statistical reliability grouse populations were at historically population trend, the same three of lek counts and the resulting low levels (Connelly and Braun 1997, p. populations may soon be extirpated. population estimates (CDOW 2009a, pp. 8). Although drought has been a Additionally, Gunnison sage-grouse 1-3), we nonetheless believe that the consistent and natural part of the estimates in the Crawford and Pı˜non overall declining trends of 6 of the 7 sagebrush-steppe ecosystem, drought Mesa populations have declined by over Gunnison sage-grouse populations, and impacts on sage-grouse can be 50 percent since the PVA was for the species as a whole, are such that exacerbated when combined with other conducted (Table 2), so they too are they are having a significant impact on habitat impacts, such as human likely trending towards extirpation. The the species’ ability to persist. developments, that reduce cover and San Miguel population has declined by In summary, the declines in estimates food (Braun 1998, p. 148). 40 percent since 2004, so cumulative of grouse numbers since 2005 are likely Aldridge et al. (2008, p. 992) found factors may be combining to cause its to contribute to even lower levels of that the number of severe droughts from future extirpation also. genetic diversity and higher levels of 1950 to 2003 had a weak negative effect The lack of large expanses of inbreeding depression than previously on patterns of greater sage-grouse sagebrush habitat required by Gunnison considered, thus making the species as persistence. However, they cautioned sage-grouse in at least six of the seven a whole less adaptable to environmental that drought may have a greater Gunnison sage-grouse populations (as variables and more vulnerable to influence on future sage-grouse discussed in Factor A), combined with extirpation. Based on the information populations as temperatures rise over the results of the PVA and current presented above, we have determined the next 50 years, and synergistic effects population trends suggest that at least that genetic risks related to the small of other threats affect habitat quality five, and most likely six, of the seven population size of Gunnison sage-grouse (Aldridge et al. 2008, p. 992). Gunnison sage-grouse populations are at are a threat to the species now and in Populations on the periphery of the high risk of extirpation. The loss of the foreseeable future. range may suffer extirpation during a genetic diversity from the extirpation of severe and prolonged drought (Wisdom the aforementioned populations would Drought et al. in press, p. 22). result in a loss of genetic diversity of the Drought is a common occurrence Gunnison sage-grouse are capable of species as a whole and thus contribute throughout the range of the Gunnison enduring moderate or severe, but to decreased functionality of these and greater sage-grouse (Braun 1998, p. relatively short-term, drought as remaining populations in maintaining 148) and is considered a universal observed from persistence of the

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 59846 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

populations during drought conditions leks while absent from disturbed leks Environmental Impact Statement for from 1999-2003 throughout much of the during the same time period (Baydack Gunnison Basin Federal Lands Travel range. The drought that began by at least and Hein 1987, p. 537). Disturbance of Management (2009, p. 137)). The GMUG 2001 and was most severe in 2002 had incubating female sage-grouse could is the second most heavily visited varying impacts on Gunnison sage- cause displacement from nests, National Forest on the western slope of grouse habitat and is discussed in detail increased predator risk, or loss of nests. Colorado (DEIS Gunnison Basin Federal in our April 18, 2006, finding (71 FR Disruption of sage-grouse during Lands Travel Management 2009, p. 137). 19954). Habitat appeared to be vulnerable periods at leks, or during However, it is unknown what negatively affected by drought across a nesting or early brood rearing could percentage of the visits occur within broad area of the Gunnison sage- affect reproduction or survival (Baydack Gunnison sage-grouse habitat on the grouse’s range. However, the reduction and Hein 1987, pp. 537-538). Gunnison Ranger District ((DEIS of sagebrush density in some areas, Recreational use of off-highway Gunnison Basin Federal Lands Travel allowing for greater herbaceous growth vehicles (OHVs) is one of the fastest- Management 2009, p. 137). With human and stimulating the onset of sagebrush growing outdoor activities. In the populations expected to increase in seed crops may have been beneficial to western United States, greater than 27 towns and cities within and adjacent to sagebrush habitats over the long term. percent of the human population used the Gunnison Basin and nearby Six of the seven grouse populations OHVs for recreational activities between populations (see Factor A), we believe (except for the Gunnison Basin 1999 and 2004 (Knick et al., in press, p. the impacts to Gunnison sage-grouse population) have decreased in number 19). Knick et al. (in press, p. 1) reported from recreational use will continue to since counts were conducted during the that widespread motorized access for increase. drought year of 2002 (Table 2). Data are recreation facilitated the spread of The BLM and Gunnison County have not available to scientifically determine predators adapted to humans and the 38 closure points within the Basin from if the declines are due to the drought spread of invasive plants. Any high- March 15 to May 15 each year (BLM alone. The current status of the various frequency human activity along 2009, p. 40). While road closures may be populations throughout the species’ established corridors can affect wildlife violated in a small number of situations, range make it highly susceptible to through habitat loss and fragmentation we believe that road closures are having stochastic factors such as drought, (Knick et al. in press, p. 25). The effects a beneficial effect on Gunnison sage- particularly when it is acting in of OHV use on sagebrush and sage- grouse through avoidance and/or conjunction with other factors such as grouse have not been directly studied minimization of impacts during the habitat fragmentation, small population (Knick et al. in press, p. 25). However, breeding season. size, predation, and low genetic local working groups considered Dispersed camping occurs at a low diversity. We believe that the available recreational uses, such as off-road level on public lands in all of the information is too speculative to vehicle use and biking, to be a risk populations, particularly during the conclude that drought alone is a threat factor in many areas. hunting seasons for other species. to the species at this time; however, Recreation from OHVs, hikers, However, we have no information based on rapid species decline in mountain bikes, campers, snowmobiles, indicating that these camping activities drought years, it is likely that drought bird watchers, and other sources has are adversely affecting Gunnison sage- exacerbates other known threats and affected many parts of the range, grouse. thus is an indirect threat to the species. especially portions of the Gunnison Domestic dogs accompanying Basin and Pı˜non Mesa population (BLM recreationists or associated with Recreation 2005a, p. 14; BLM 2005d, p. 4; BLM residences can disturb, harass, displace, Studies have determined that 2009, p. 36). These activities can result or kill Gunnison sage-grouse. Authors of nonconsumptive recreational activities in abandonment of lekking activities many wildlife disturbance studies can degrade wildlife resources, water, and nest sites, energy expenditure concluded that dogs with people, dogs and the land by distributing refuse, reducing survival, and greater exposure on leash, or loose dogs provoked the disturbing and displacing wildlife, to predators (GSRSC 2005). most pronounced disturbance reactions increasing animal mortality, and Recreation is a significant use on from their study animals (Sime 1999 simplifying plant communities (Boyle lands managed by BLM (Connelly et al. and references within). The primary and Samson 1985, pp. 110-112). Sage- 2004, p. 7-26). Recreational activities consequences of dogs being off leash is grouse response to disturbance may be within the Gunnison Basin are harassment, which can lead to influenced by the type of activity, widespread, occur during all seasons of physiological stress as well as the recreationist behavior, predictability of the year, and have expanded as more separation of adult and young birds, or activity, frequency and magnitude, people move to the area or come to flushing incubating birds from their timing, and activity location (Knight recreate (BLM 2009, pp. 36-37). Four nest. However, we have no data and Cole 1995, p. 71). We have not wheel drive, OHV, motorcycle, and indicating that this activity is adversely located any published literature other means of mechanized travel have affecting Gunnison sage-grouse concerning measured direct effects of been increasing rapidly. The number of population numbers such that it can be recreational activities on Gunnison or annual OHV registrations in Colorado considered a rangewide or population- greater sage-grouse, but can infer increased from 12,000 in 1991 to level threat. potential impacts on Gunnison sage- 131,000 in 2007 (BLM 2009, p. 37). Recreational activities as discussed grouse from studies on related species Recreational activities are recognized as above do not singularly pose a and from research on nonrecreational a direct and indirect threat to the significant threat to Gunnison sage- activities. Baydack and Hein (1987, p. Gunnison sage-grouse and their habitat grouse now or are expected to do so in 537) reported displacement of male (BLM 2009, p. 36). The Grand Mesa, the foreseeable future. However, there sharp-tailed grouse at leks from human Uncompaghre, and Gunnison (GMUG) may be certain situations where presence resulting in loss of National Forest is the fourth most recreational activities are impacting reproductive opportunity during the visited National Forest in the Rocky local concentrations of Gunnison sage- disturbance period. Female sharp-tailed Mountain Region of the USFS (Region 2) grouse, especially in areas where habitat grouse were observed at undisturbed (Kocis et al., 2004 in Draft is already fragmented such as in the six

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59847

small populations and in certain areas crops to control the aphids during the sublethal effects on greater sage-grouse within the Gunnison Basin. late 1980s. We have no data indicating was conducted on pesticides that have there were any adverse effects to been banned or have had their use Pesticides and Herbicides Gunnison sage-grouse (GSRSC 2005, p. further restricted for more than 20 years Insects are an important component of 132). More recently, an infestation of due to their toxic effects on the sage-grouse chick and juvenile diets army cutworms (Euxoa auxiliaries) environment (e.g., dieldrin). We (GSRSC 2005, p.132 and references occurred in Gunnison sage-grouse currently do not have any information therein). Insects, especially ants habitat along the Utah-Colorado State to show that the banned pesticides are (Hymenoptera) and beetles (Coleoptera), line. Thousands of ha (thousands of ac) having negative impacts to sage-grouse can comprise a major proportion of the of winter wheat and alfalfa fields were populations through either illegal use or diet of juvenile sage-grouse and are sprayed with insecticides such as residues in the environment. For important components of early brood- permethrin by private landowners to example, sage-grouse mortalities were rearing habitats (GSRSC 2005, p. 132 control them (GSRSC 2005, p. 132) but documented in a study where they were and references therein). Most pesticide again, we have no data indicating any exposed to strychnine bait used to applications are not directed at control adverse effects to Gunnison sage-grouse. control small mammals (Ward et al. of ants and beetles. Pesticides are used Game birds that ingested sublethal 1942 as cited in Schroeder et al. 1999, primarily to control insects causing levels of pesticides have been observed p. 16). According to the U.S. damage to cultivated crops on private exhibiting abnormal behavior that may Environmental Protection Agency lands and to control grasshoppers lead to a greater risk of predation (EPA), above-ground uses of strychnine (Orthoptera) and Mormon crickets (Dahlen and Haugen 1954, p. 477; were prohibited in 1988 and those uses (Mormonius sp.) on public lands. McEwen and Brown 1966, p. 609; Blus remain temporarily cancelled today. We Few studies have examined the effects et al. 1989, p. 1141). McEwen and do not know when, or if, above-ground of pesticides to sage-grouse, but at least Brown (1966, p. 689) reported that wild uses will be permitted to resume. two have documented direct mortality sharp-tailed grouse poisoned by Currently, strychnine is registered for of greater sage-grouse from use of these malathion and dieldrin exhibited use only below-ground as a bait chemicals. Greater sage-grouse died as a depression, dullness, slowed reactions, application to control pocket gophers result of ingestion of alfalfa sprayed irregular flight, and uncoordinated (Thomomys sp.; EPA 1996, p. 4). with organophosphorus insecticides walking. Although no research has Therefore, the current legal use of (Blus et al. 1989, p. 1142; Blus and explicitly studied the indirect levels of strychnine baits is unlikely to present a Connelly 1998, p. 23). In this case, a mortality from sublethal doses of significant exposure risk to sage-grouse. field of alfalfa was sprayed with pesticides (e.g., predation of impaired No information on illegal use, if it methamidophos and dimethoate when birds), it has been assumed to be the occurs, is available. We have no other approximately 200 greater sage-grouse reason for mortality among some study information regarding mortalities or were present; 63 of these sage-grouse birds (McEwen and Brown 1966 p. 609; sublethal effects of strychnine or other were later found dead, presumably as a Blus et al. 1989, p. 1142; Connelly and banned pesticides on sage-grouse. result of pesticide exposure (Blus et al. Blus 1991, p. 4). Both Post (1951, p. 383) Although a reduction in insect 1989; p. 1142, Blus and Connelly 1998, and Blus et al. (1989, p. 1142) located population levels resulting from p. 23). Both methamidophos and depredated sage-grouse carcasses in insecticide application can potentially dimethoate remain registered for use in areas that had been treated with affect nesting sage-grouse females and the United States (Christiansen and Tate insecticides. Exposure to these chicks (Willis et al. 1993, p. 40; in press, p. 21), but we found no further insecticides may have predisposed sage- Schroeder et al. 1999, p. 16), there is no records of sage-grouse mortalities from grouse to predation. Sage-grouse information as to whether insecticides their use. In 1950, rangelands treated mortalities also were documented in a are impacting survivorship or with toxaphene and chlordane bait to study where they were exposed to productivity of the Gunnison sage- control grasshoppers in Wyoming strychnine bait used to control small grouse. resulted in game bird mortality of 23.4 mammals (Ward et al. 1942 as cited in Herbicide applications can kill percent (Christian and Tate in press, p. Schroeder et al. 1999, p. 16). While we sagebrush and forbs important as food 20). Forty-five greater sage-grouse do not have specific information of sources for sage-grouse (Carr 1968 in deaths were recorded, 11 of which were these effects occurring in Gunnison Call and Maser 1985, p. 14). The greatest most likely related to the pesticide sage-grouse, we believe the effects impact resulting from a reduction of (Christiansen and Tate in press, p. 20, observed in greater sage-grouse can be either forbs or insect populations is to and references therein). Greater sage- expected if similar situations arise nesting females and chicks due to the grouse who succumbed to vehicle within Gunnison sage-grouse habitat. loss of potential protein sources that are collisions and mowing machines in the Cropland spraying may affect critical for successful egg production same area also were likely compromised populations that are not adjacent to and chick nutrition (Johnson and Boyce from pesticide ingestion (Christian and agricultural areas, given the distances 1991, p. 90; Schroeder et al. 1999, p. Tate in press, p. 20). Neither of these traveled by females with broods from 16). A comparison of applied levels of chemicals has been registered for nesting areas to late brood-rearing areas herbicides with toxicity studies of grasshopper control since the early (Knick et al. in press, p. 17). The actual grouse, chickens, and other gamebirds 1980s (Christiansen and Tate in press, p. footprint of this effect cannot be (Carr 1968, in Call and Maser 1985, p. 20, and references therein). estimated, because the distances sage- 15) concluded that herbicides applied at Infestations of Russian wheat aphids grouse travel to get to irrigated and recommended rates should not result in (Diuraphis noxia) have occurred in sprayed fields is unknown (Knick et al. sage-grouse poisonings. Gunnison sage-grouse occupied range in in press, p. 17). Similarly, actual Use of insecticides to control Colorado and Utah (GSRSC 2005, p. mortalities from pesticides may be mosquitoes is infrequent and probably 132). Disulfoton, a systemic underestimated if sage-grouse disperse does not have detrimental effects on organophosphate extremely toxic to from agricultural areas after exposure. sage-grouse. Available insecticides that wildlife, was routinely applied to over Much of the research related to kill adult mosquitoes include synthetic 400,000 ha (million ac) of winter wheat pesticides that had either lethal or pyrethroids such as permethrin, which

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 59848 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

are applied at very low concentrations are rarely found at such sites (Domenici pesticides on Gunnison sage-grouse is and have very low vertebrate toxicity 2008, pers. comm.). However, if the the reduction of insect prey items. (Rose 2004). Organophosphates such as wastewater pits are not appropriately However, we could find no information malathion have been used at very low screened, sage-grouse may have access to indicate that use of pesticides, in rates to kill adult mosquitoes for to them and could ingest water and accordance with their label instructions, decades, and are judged relatively safe become oiled while pursing insects. If is a threat to Gunnison sage-grouse. for vertebrates (Rose 2004). these birds then return to sagebrush Thus, based on the best scientific and In summary, historically insecticides cover and die, their carcasses are commercial data available, we have have been shown to result in direct unlikely to be found as only the pits are concluded that other natural or mortality of individuals, and also can surveyed. manmade factors are a significant threat reduce the availability of food sources, A few gas and oil pipelines occur to the Gunnison sage-grouse. which in turn could contribute to within the San Miguel population. Finding mortality of sage-grouse. Despite the Exposure to oil or gas from pipeline potential effects of pesticides, we could spills or leaks could cause mortalities or We have carefully assessed the best find no information to indicate that the morbidity to Gunnison sage-grouse. scientific and commercial information use of these chemicals, at current levels, Similarly, given the network of available regarding the present and negatively affects Gunnison sage-grouse highways and railroad lines that occur future threats to the Gunnison sage- population numbers. Schroeder et al.’s throughout the range of the Gunnison grouse. We have reviewed the (1999, p. 16) literature review found that sage-grouse, there is some potential for information available in our files, the loss of insects can have significant exposure to contaminants resulting from information received during the impacts on nesting females and chicks, spills or leaks of hazardous materials comment period, and other published but those impacts were not detailed. being conveyed along these and unpublished information, and Many of the pesticides that have been transportation corridors. We found no consulted with recognized Gunnison- shown to have an effect on sage-grouse documented occurrences of impacts to sage grouse and sagebrush habitat have been banned in the United States Gunnison sage-grouse from such spills, experts. On the basis of the best for more than 20 years. We currently do and we do not expect they are a scientific and commercial information not have any information to show that significant source of mortality and a available, we find that listing of the either the illegal use of banned threat to the species because these types Gunnison sage-grouse is warranted pesticides or residues in the of spills occur infrequently and may throughout all of its range. environment are presently having involve only a small area within the Gunnison sage-grouse, a sagebrush negative impacts to sage-grouse occupied range of the species. obligate, are a landscape-scale species populations. While the reduction in requiring large, contiguous areas of Summary of Factor E insect availability via insecticide sagebrush for long-term persistence. application has not been documented to Although genetic consequences of low Gunnison sage-grouse occur in seven affect overall population numbers in Gunnison sage-grouse population isolated and fragmented populations, sage-grouse, we believe that insect numbers have not been definitively primarily in southwestern Colorado, reduction, because of its importance to detected to date, the results from Stiver with a small portion of its range chick production and survival, could be et al. (2008, p. 479) suggest that six of extending into southeastern Utah. having as yet undetected negative the seven populations may have Populations have been declining since impacts in populations with low effective sizes low enough to induce the 1960s, with the Gunnison Basin population numbers. There is no inbreeding depression and all seven population the only relatively stable information available to indicate that could be losing adaptive potential. population. Six of the seven remaining either herbicide or insecticide While some of these consequences may populations are now small enough to be applications pose a threat to the species be ameliorated by translocations, we vulnerable to extirpation (Stiver et al. now or in the foreseeable future. believe the long-term viability of 2008, p. 479). Specific issues identified Gunnison sage-grouse is compromised under Factors A, C, D, and E are threats Contaminants by this situation, particularly when to the Gunnison sage-grouse. These Gunnison sage-grouse exposure to combined with threats discussed under threats are exacerbated by small various types of environmental other Factors, and we have determined population sizes, the isolated and contaminants may potentially occur as a that genetics risks related to the small fragmented nature of the remaining result of agricultural and rangeland population size of Gunnison sage-grouse sagebrush habitat, and the potential management practices, mining, energy are a threat to the species now and in effects of climate change. development and pipeline operations, the foreseeable future. Current and future direct and and transportation of materials along While sage-grouse have evolved with functional loss of habitat due to highways and railroads. drought, population numbers suggest residential and road development in all We expect that the number of sage- that drought is at least correlated with, populations (as discussed in Factor A) grouse occurring in the immediate and potentially an underlying cause of, is the principal threat to the Gunnison vicinity of wastewater pits associated the declines. Although we cannot sage-grouse. Other threats from human with energy development would be determine whether drought alone is a infrastructure such as fences and small due to the small amount of energy threat to the species, we believe it is an powerlines (as discussed in Factor A) development within the species’ range, indirect threat exacerbating other threat may not individually threaten the the typically intense human activity in factors such as predation or habitat Gunnison sage-grouse; however, the these areas, the lack of cover around the fragmentation. Based on the available cumulative presence of these features, pits, and the fact that sage-grouse do not information, insecticides are being used particularly when considered with require free water. Most bird mortalities infrequently enough and in accordance residential and road development, do recorded in association with wastewater with manufacturer labeling such that constitute a threat to the continued pits are water-dependent species (e.g., they are not adversely affecting existence of the Gunnison sage-grouse waterfowl), whereas dead ground- populations of the Gunnison sage- as they collectively contribute to habitat dwelling birds (such as the sage-grouse) grouse. The most likely impact of loss and fragmentation. These impacts

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59849

exacerbate the fragmentation that has cumulative effects as they contribute to continued, but to date have occurred on already occurred in Gunnison sage- the overall fragmentation of Gunnison a scale that is too small to remove grouse habitat from past agricultural sage-grouse habitat, we have determined threats at a range-wide level. Many conversion and residential that threats identified under Factor A conservation efforts lacked sufficient development. Gunnison sage-grouse are pose a significant threat to the species monitoring to demonstrate their overall sensitive to these forms of habitat throughout its range. We find that the effectiveness in minimizing or fragmentation because they require large present or threatened destruction, eliminating the primary threat of habitat areas of contiguous, suitable habitat. modification, or curtailment of loss, fragmentation, and degradation. Given the increasing human population Gunnison sage-grouse habitat is a threat Therefore, we find the existing trends in Gunnison sage-grouse habitat, to the species future existence. regulatory mechanisms are ineffective at we expect urban and exurban We believe that existing and ameliorating habitat-based threats. development and associated roads and continued landscape fragmentation will Small population size and genetic infrastructure to continue to expand. increase the effects of predation factors (discussed in Factor E above) Likewise, we expect direct and indirect (discussed in Factor C above) on this subject at least six of the seven effects from these activities, including species, particularly in the six smaller populations to a high risk of extirpation habitat loss, degradation and populations, resulting in a reduction in from stochastic events. All populations fragmentation, to increase in sage-grouse sage-grouse productivity and abundance are currently isolated as documented by habitats. in the future. Predation has a strong low amounts of gene flow (Oyler- Invasive species, fire, and climate relationship with anthropogenic factors McCance et al. 2005, p. 635). The loss change (as discussed in Factor A) may on the landscape, and human presence of connectivity and the concomitant not individually threaten the Gunnison on the landscape will continue to isolation of the populations also sage-grouse; however, the documented increase in the future. We find that increase the species’ extinction risk. synergy among these factors result in a predation is a significant threat to the Fitness and population size are strongly high likelihood that they will threaten species. correlated, and smaller populations are the species in the future. Noxious and West Nile virus (discussed in Factor more subject to environmental and invasive plant incursions into sagebrush C above) is the only disease that demographic stochasticity. When ecosystems, which are facilitated by currently presents a potential threat to coupled with mortality stressors related human activities and fragmentation, are the Gunnison sage-grouse. While we to human activity and significant likely to increase wildfire frequencies, have no evidence of West Nile virus fluctuations in annual population size, further contributing to direct loss of acting on the Gunnison sage-grouse, long-term persistence of small habitat and fragmentation. Climate because of the virus’s presence within populations is always problematic. change may alter the range of invasive the species’ range and the continued Given the species’ relatively low rate of plants, intensifying the proliferation of development of anthropogenic water growth and strong site fidelity, recovery invasive plants to the point that they sources in the area, the virus may pose and repopulation of extirpated, or become a threat to the species. While a future threat to the species. We have nearly extirpated areas, will be recent local climatic moderations may determined that disease is not currently extremely challenging. Translocation of have produced some improved habitat a threat to the species. However, we Gunnison sage-grouse is difficult and to quality (increased forb and grass growth anticipate that West Nile virus will date has not been demonstrated to be providing enhanced grouse productivity persist within the range of Gunnison successful in maintaining and and survival). Habitat conservation sage-grouse indefinitely and will be improving population and species efforts have been implemented to exacerbated by factors such as climate viability. Given the limited number of benefit local habitat conditions, but they change that could increase ambient source individuals, sustainable, have not cumulatively resulted in local temperatures and the presence of the successful translocation efforts population recoveries because vector on the landscape. involving large numbers of individuals unfragmented sagebrush habitats on the An examination of regulatory are unlikely at this time. Recent captive- scale required that contain the necessary mechanisms (discussed in Factor D rearing efforts by CDOW have provided ecological attributes (e.g., connectivity above) for both the Gunnison sage- some optimistic results. Nonetheless, and landscape context) have been lost. grouse and sagebrush habitats revealed even assuming CDOW captive-rearing Sagebrush habitats are highly that while limited mechanisms exist, and tranlocation efforts prove to be fragmented due to anthropogenic they are not broad enough in their successful in the long-term, the existing impacts, and in most cases are not potential conservation value throughout condition of the habitat throughout the resilient enough to return to native the species range, and are not being species’ range will need to be improved, vegetative states following disturbance implemented consistent with our before captive rearing and translocation from fire, invasive species, and the current understanding of the species’ can be relied on to maintain population effects of climate change. We expect biology and reaction to disturbances, to and species viability. these threats to continue and potentially be effective at ameliorating threats. This The existing and continuing loss, increase in magnitude in the future. is particularly true on private lands, degradation, and fragmentation of sage- We found no evidence that the threats which comprise 41 percent of the grouse habitat; extremely small summarized above, which contribute to species’ extant range and are highly population sizes; occupancy of habitat loss, degradation and dispersed throughout all populations. extremely small, isolated, and fragmentation will subside within the Inadequate regulation of grazing fragmented sagebrush areas; increased foreseeable future. Six populations are practices on public land is occurring in susceptibility to predation; lack of extremely small and compromised by some locations within the species’ interconnectivity; low genetic diversity; existing fragmentation. The one range. Public land management agencies and the potential for catastrophic remaining relatively contiguous patch of should continue to improve habitat stochastic (random) events, combined habitat (Gunnison Basin) for the species conditions to be compatible with with the inadequacy of existing is somewhat compromised by existing Gunnison sage-grouse life-history regulations to manage habitat loss fragmentation. Based on the current and requirements. Some local conservation (either direct or functional), endanger anticipated habitat threats and their efforts are effective and should be all Gunnison sage-grouse populations

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 59850 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

and the species as a whole. Threat conservation efforts have been easements, improved grazing practices, factors affecting the Gunnison sage- implemented and are effective in small additional travel management efforts grouse are summarized in Table 5 areas, they are not at a scale that is that benefit Gunnison sage-grouse) are below. As required by the Act, we have sufficient to ameliorate threats to the being planned, but there is substantial reviewed and taken into account efforts species as a whole. Other conservation uncertainty as to whether, where, and being made to protect Gunnison sage- efforts (such as habitat treatments, when they will be implemented, and grouse. Although some local establishment of conservation whether they will be effective.

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00048 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59851 Overall Threat Low+ Moderate+ Low . a Future due to human presence and climate change Foreseeable Year 2050 Year 2050 Low Year 2050 High Year 2050 Moderate Year 2050 High Year 2050 Moderate+ Likely to increase indefinitely with cheatgrass invasion Likely to increase indefinitely increased Indefinitely Low Species’ Response to current habitat tion and degradation; degradation; increased predation; direct mortality and degradation; mortality and degradation; and degradation and degradation degradation; increased predation fragmentation and degradation. increased predation increased predation; direct increased predation contributes to habitat fragmentation and degrada- INDICATES HIGHER LEVEL OF THREAT . A ‘‘ + ’’ Likelihood GROUSE - nence Overall Immi- UNNISON SAGE G (percent) Exposure Intensity Magnitude Imminence Overall Magnitude High+ High 90% Imminent High Habitat loss, fragmentation Moderate Low loss, High 90% Imminent High+ 75% High Habitat fragmentation, Imminent loss, Moderate 60% Imminent Low Habitat High Non-Imminent Low 10% fragmentation High loss, Habitat fragmentation and Habitat Moderate 65% Imminent fragmentation, loss, Moderate Habitat High Low 85% Imminent Moderate Habitat degradation Moderate Indefinitely Habitat High Low 85% Imminent Moderate HREAT SUMMARY FOR FACTORS AFFECTING 5. T ABLE on-Juniper Encroachment Low Low 15% Imminent Moderate Habitat fragmentation and ˜ Herbivory T A Water Development Low Low <20% Non-Imminent Low Past development A Development Low Past Non-Imminent Conversion to Agriculture Low <20% A Water Moderate Moderate 40% A Non-Imminent Residential Development A Low High+ Fences Past conversion contributes A Roads High 70% A Powerlines Imminent A Fire High Habitat loss, fragmentation A Plants Invasive A Pin A Domestic and Wild Ungulate Listing Factor Threat or Impact

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 59852 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules Overall Threat Low Future .—Continued 40 years Foreseeable Year 2050 Low Year 2050 Low Climate models Low predict out to 2050 Year Indefinitely High Indefinitely Moderate+ Indefinitely Moderate Year 2050 Low Year 2050 High Year 2050 Moderate Year 2050 High Species’ Response degradation; increased predation degradation; increased predation tate increase in invasive plants and corresponding of adaptive potential stochastic events in species reproductive potential and degradation and degradation and degradation increased fire frequency degradation INDICATES HIGHER LEVEL OF THREAT Likelihood . A ‘‘ + ’’ nence GROUSE - Overall Immi- (percent) Exposure UNNISON SAGE G Intensity Magnitude Imminence Overall Magnitude Low Low 100% Non-Imminent Moderate Direct mortality Low Indefinitely Direct mortality Moderate Non-Imminent Moderate+ 90% Imminent Low 100% Indefinitely High Direct High Moderate+ Low Moderate 100% Low None Low 0% Non-Imminent Imminent Low Low+ Low Moderate Unknown, but could facili- Low+ 10% 50% Imminent Imminent Moderate Moderate Harassment; avoidance Harassment; direct mortality High Year 2050 Year 2050 Low Moderate+ Moderate+ Low Moderate+ 70% 60% Moderate+ High Imminent Imminent Low 2050 100% Low mortality High High Imminent Year Low+ Low Direct Inbreeding depression; loss Non-Imminent Population vulnerability to Low <5% 50% Moderate Habitat degradation; decline Imminent Moderate Harassment; avoidance Year 2050 Low Low+ Low+ 15% Non-Imminent Moderate Habitat fragmentation and fragmentation Low+ Habitat Moderate Moderate Low+ 15% 10% Non-Imminent Imminent Low Habitat fragmentation and High Moderate 50% Imminent High Habitat loss, fragmentation, fragmentation, loss, 50% Imminent loss, High Habitat High Moderate fragmentation, High 60% Imminent High Habitat Moderate loss, High 75% Imminent High Habitat HREAT SUMMARY FOR FACTORS AFFECTING 5. T ment and Regulations Development Regulations Regulations ABLE T A Non-renewable Energy A Non-renewable A Renewable Energy Develop- A Climate Change B Hunting B B Lek Viewing Scientific Research E E Genetic Complications E Small Population Size Drought E E Recreation E Contaminants Pesticides and Herbicides Low Low 10% Non-Imminent Low Direct mortality; habitat C Disease C Predation D D Inadequacy of Local Laws and D Inadequacy of State Laws and Inadequacy of Federal Laws The foreseeable future date of 2050 was determined for threats or impacts directly related to anthropogenic activities based on the furthest population projection from CWCB (2009, p. The foreseeable future date of 2050 was determined for threats or impacts directly related to anthropogenic activities based on a Listing Factor Threat or Impact 53).

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59853

Listing factors include: (A) The Under the Service’s LPN Guidance, future. We believe the ability of all present or threatened destruction, the magnitude of threat is the first remaining populations and habitat areas modification, or curtailment of its criterion we look at when establishing a to retain the attributes required for long- habitat or range; (B) overutilization for listing priority. The guidance indicates term sustainability of this landscape- commercial, recreational, scientific, or that species with the highest magnitude scale species are highly diminished educational purposes; (C) disease or of threat are those species facing the indicating that the magnitude of threats predation; (D) the inadequacy of greatest threats to their continued is high. existing regulatory mechanisms; or (E) existence. These species receive the Under our LPN Guidance, the second other natural or manmade factors highest listing priority. We consider the criterion we consider in assigning a affecting its continued existence. threats that the Gunnison sage-grouse listing priority is the immediacy of We have carefully assessed the best faces to be high in magnitude because threats. This criterion is intended to scientific and commercial information the major threats (exurban development, ensure that the species facing actual, available regarding the present and inadequacy of regulatory mechanisms, identifiable threats are given priority future threats to the Gunnison sage- genetic issues, roads) occur throughout over those for which threats are only grouse. We have reviewed petitions, all of the species range. Based on an potential or that are intrinsically information available in our files, and evaluation of biotic, abiotic, and vulnerable but are not known to be other published and unpublished anthropogenic factors, no strongholds presently facing such threats. We information, and consulted with are believed to exist for Gunnison sage- consider the threats imminent because recognized Gunnison sage-grouse and grouse (Wisdom et al., in press, entire). we have factual information that the threats are identifiable and that the greater sage-grouse experts. We have All seven populations are experiencing species is currently facing them in many considered and taken into account habitat degradation and fragmentation portions of its range. These actual, efforts being made to conserve protect due to exurban development and roads. identifiable threats are covered in great the species. On the basis of the best Six of the seven populations of detail in Factors A, C, D, and E of this scientific and commercial information Gunnison sage-grouse currently contain finding and currently include habitat available, we find that listing of the so little occupied habitat that continued degradation and fragmentation from Gunnison sage-grouse is warranted degradation and fragmentation will exurban development and roads, throughout all of its range. However, place their continued existence in inadequate regulatory mechanisms, listing the Gunnison sage-grouse is question. The remaining population genetic issues, predation, invasive precluded by higher priority listing (Gunnison Basin) is so interspersed with plants, and drought/weather. In actions at this time, as discussed in the development and roads that it is likely addition to their current existence, we Preclusion and Expeditious Progress to degrade and fragment the habitat expect these threats to continue and section below. (Aldridge and Saher, in press, entire). likely intensify in the foreseeable future. Listing Priority Number We believe it is not functional for a The third criterion in our LPN species that requires large expanses of guidance is intended to devote The Service adopted guidelines on sagebrush. Six of the seven populations resources to those species representing September 21, 1983 (48 FR 43098), to of Gunnison sage-grouse have highly distinctive or isolated gene pools establish a rational system for utilizing population sizes low enough to induce as reflected by taxonomy. The Gunnison available resources for the highest inbreeding depression, and all seven sage-grouse is a valid taxon at the priority species when adding species to may be losing their adaptive potential species level, and therefore receives a the Lists of Endangered or Threatened (Stiver 2008, p. 479). Predation is higher priority than subspecies or DPSs, Wildlife and Plants or reclassifying exerting a strong influence on all but a lower priority than species in a species listed as threatened to populations, but especially the six monotypic genus. endangered status. These guidelines, smaller populations. Invasive weeds are We will continue to monitor the titled ‘‘Endangered and Threatened likely to exert a strong influence on all threats to the Gunnison sage-grouse, and Species Listing and Recovery Priority populations in the future. Adequate the species’ status on an annual basis, Guidelines’’ address the immediacy and regulations are not in place at the local, and should the magnitude or the magnitude of threats, and the level of State, or Federal level to adequately imminence of the threats change, we taxonomic distinctiveness by assigning minimize the threat of habitat will re-visit our assessment of LPN. priority in descending order to degradation and fragmentation resulting Currently, work on a proposed listing monotypic genera (genus with one from exurban development. Regulatory determination for the Gunnison sage- species), full species, and subspecies (or mechanisms are not being appropriately grouse is precluded by work on higher equivalently, distinct population implemented such that land use priority listing actions with absolute segments of vertebrates). practices result in habitat conditions statutory, court-ordered, or court- As a result of our analysis of the best that adequately support the life-history approved deadlines and final listing available scientific and commercial needs of the species. Adequate determinations for those species that information, we assigned the Gunnison regulations are also not in place to were proposed for listing with funds sage-grouse an LPN of 2 based on our ameliorate the threats resulting from from FY 2009. Additionally, remaining finding that the species faces threats predation, genetic issues, or invasive listing funding from FY 2010 has been that are of high magnitude and are weeds. Due to the impacts resulting directed to work on listing imminent. These threats include the from the issues described above and the determinations for species at present or threatened destruction, current small population sizes and significantly greater risk of extinction modification, or curtailment of its habitat areas, impacts from other than the Gunnison sage-grouse faces. habitat; predation; the inadequacy of stressors such as fences, recreation, Because of the large number of high- existing regulatory mechanisms; and grazing, powerlines, and drought/ priority species, we further ranked the other natural or man-made factors weather are likely acting cumulatively candidate species with an LPN of 2. The affecting its continued existence. Our to further decrease the likelihood of at resulting ‘‘Top 40’’ list of candidate rationale for assigning the Gunnison least the six small populations, and species have the highest priority to sage-grouse an LPN 2 is outlined below. potentially all seven, persisting into the receive funding to work on a proposed

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00051 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 59854 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

listing determination (see the Preclusion Act (see 31 U.S.C. 1341(a)(1)(A)). In accompanying Public Law 97-304, and Expeditious Progress section addition, in FY 1998 and for each fiscal which established the current statutory below). This work includes all the year since then, Congress has placed a deadlines and the warranted-but- actions listed in the tables below under statutory cap on funds which may be precluded finding, states (in a expeditious progress. expended for the Listing Program, equal discussion on 90–day petition findings to the amount expressly appropriated Preclusion and Expeditious Progress that by its own terms also covers 12– for that purpose in that fiscal year. This month findings) that the deadlines were Preclusion is a function of the listing cap was designed to prevent funds ‘‘not intended to allow the Secretary to priority of a species in relation to the appropriated for other functions under delay commencing the rulemaking resources that are available and the Act (for example, recovery funds for process for any reason other than that competing demands for those resources. removing species from the Lists), or for the existence of pending or imminent Thus, in any given fiscal year (FY), other Service programs, from being used proposals to list species subject to a multiple factors dictate whether it will for Listing Program actions (see House greater degree of threat would make be possible to undertake work on a Report 105-163, 105th Congress, 1st allocation of resources to such a petition proposed listing regulation or whether Session, July 1, 1997). [that is, for a lower-ranking species] promulgation of such a proposal is Since FY 2002, the Service’s budget unwise.’’ warranted but precluded by higher- has included a critical habitat subcap to In FY 2010, expeditious progress is priority listing actions. ensure that some funds are available for that amount of work that can be The resources available for listing ‘‘ other work in the Listing Program ( The achieved with $10,471,000, which is the actions are determined through the critical habitat designation subcap will amount of money that Congress annual Congressional appropriations ensure that some funding is available to appropriated for the Listing Program process. The appropriation for the address other listing activities’’ (House (that is, the portion of the Listing Service Listing Program is available to Report No. 107 - 103, 107th Congress, 1st Program funding not related to critical support work involving the following Session, June 19, 2001)). In FY 2002 and habitat designations for species that are listing actions: Proposed and final each year until FY 2006, the Service has already listed). However these funds are listing rules; 90–day and 12–month had to use virtually the entire critical not enough to fully fund all our court- findings on petitions to add species to habitat subcap to address court- ordered and statutory listing actions in the Lists of Endangered and Threatened mandated designations of critical FY 2010, so we are using $1,114,417 of Wildlife and Plants (Lists) or to change habitat, and consequently none of the the status of a species from threatened critical habitat subcap funds have been our critical habitat subcap funds in to endangered; annual determinations available for other listing activities. In order to work on all of our required on prior ‘‘warranted but precluded’’ FY 2007, we were able to use some of petition findings and listing petition findings as required under the critical habitat subcap funds to fund determinations. This brings the total section 4(b)(3)(C)(i) of the Act; critical proposed listing determinations for amount of funds we have for listing habitat petition findings; proposed and high-priority candidate species. In FY actions in FY 2010 to $11,585,417. Our final rules designating critical habitat; 2009, while we were unable to use any process is to make our determinations of and litigation-related, administrative, of the critical habitat subcap funds to preclusion on a nationwide basis to and program-management functions fund proposed listing determinations, ensure that the species most in need of (including preparing and allocating we did use some of this money to fund listing will be addressed first and also budgets, responding to Congressional the critical habitat portion of some because we allocate our listing budget and public inquiries, and conducting proposed listing determinations so that on a nationwide basis. The $11,585,417 public outreach regarding listing and the proposed listing determination and is being used to fund work in the critical habitat). The work involved in proposed critical habitat designation following categories: compliance with preparing various listing documents can could be combined into one rule, court orders and court-approved be extensive and may include, but is not thereby being more efficient in our settlement agreements requiring that limited to: Gathering and assessing the work. In FY 2010, we are using some of petition findings or listing best scientific and commercial data the critical habitat subcap funds to fund determinations be completed by a available and conducting analyses used actions with statutory deadlines. specific date; section 4 (of the Act) as the basis for our decisions; writing Thus, through the listing cap, the listing actions with absolute statutory and publishing documents; and critical habitat subcap, and the amount deadlines; essential litigation-related, obtaining, reviewing, and evaluating of funds needed to address court- administrative, and listing program- public comments and peer review mandated critical habitat designations, management functions; and high- comments on proposed rules and Congress and the courts have in effect priority listing actions for some of our incorporating relevant information into determined the amount of money candidate species. In 2009, the final rules. The number of listing available for other listing activities. responsibility for listing foreign species actions that we can undertake in a given Therefore, the funds in the listing cap, under the Act was transferred from the year also is influenced by the other than those needed to address Division of Scientific Authority, complexity of those listing actions; that court-mandated critical habitat for International Affairs Program, to the is, more complex actions generally are already listed species, set the limits on Endangered Species Program. Starting more costly. The median cost for our determinations of preclusion and in FY 2010, a portion of our funding is preparing and publishing a 90–day expeditious progress. being used to work on the actions finding is $39, 276; for a 12–month Congress also recognized that the described above as they apply to listing finding, $100,690; for a proposed rule availability of resources was the key actions for foreign species. This has the with critical habitat, $345,000; and for element in deciding, when making a 12– potential to further reduce funding a final listing rule with critical habitat, month petition finding, whether we available for domestic listing actions. the median cost is $305,000. would prepare and issue a listing Although there are currently no foreign We cannot spend more than is proposal or instead make a ‘‘warranted species issues included in our high- appropriated for the Listing Program but precluded’’ finding for a given priority listing actions at this time, without violating the Anti-Deficiency species. The Conference Report many actions have statutory or court-

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59855

approved settlement deadlines, thus group of approximately 40 candidate taxonomic status. Because the Gunnison increasing their priority. The allocations species (‘‘Top 40’’). These 40 candidate sage-grouse is a species, we assigned it for each specific listing action are species have had the highest priority to an LPN of 2 (the highest category identified in the Service’s FY 2010 receive funding to work on a proposed available for a species). Therefore, work Allocation Table (part of our listing determination. As we work on on a proposed listing determination for administrative record). proposed and final listing rules for those the Gunnison sage-grouse is precluded Based on our September 21, 1983, 40 candidates, we apply the ranking by work on higher priority candidate criteria to the next group of candidates guidance for assigning an LPN for each species; listing actions with absolute with an LPN of 2 and 3 to determine the candidate species (48 FR 43098), we statutory, court ordered, or court- next set of highest priority candidate have a significant number of species approved deadlines; and final listing species. with a LPN of 2. Using this guidance, determinations for those species that To be more efficient in our listing were proposed for listing with funds we assign each candidate an LPN of 1 process, as we work on proposed rules to 12, depending on the magnitude of from previous fiscal years. This work for the highest priority species in the includes all the actions listed in the threats (high vs. moderate to low), next several years, we are preparing immediacy of threats (imminent or tables below under expeditious multi-species proposals when progress. nonimminent), and taxonomic status of appropriate, and these may include the species (in order of priority: species with lower priority if they As explained above, a determination monotypic genus (a species that is the overlap geographically or have the same that listing is warranted but precluded sole member of a genus); species; or part threats as a species with an LPN of 2. must also demonstrate that expeditious of a species (subspecies, distinct In addition, available staff resources are progress is being made to add or remove population segment, or significant also a factor in determining high- qualified species to and from the Lists portion of the range)). The lower the priority species provided with funding. of Endangered and Threatened Wildlife listing priority number, the higher the Finally, proposed rules for and Plants. (Although we do not discuss listing priority (that is, a species with an reclassification of threatened species to it in detail here, we are also making LPN of 1 would have the highest listing endangered are lower priority, since as expeditious progress in removing priority). Because of the large number of listed species, they are already afforded species from the Lists under the high-priority species, we have further the protection of the Act and Recovery program, which is funded by ranked the candidate species with an implementing regulations. a separate line item in the budget of the LPN of 2 by using the following We assigned the Gunnison sage- Endangered Species Program. As extinction-risk type criteria: grouse an LPN of 2, based on our explained above in our description of International Union for the finding that the species faces immediate the statutory cap on Listing Program Conservation of Nature and Natural and high magnitude threats from the funds, the Recovery Program funds and Resources (IUCN) Red list status/rank, present or threatened destruction, actions supported by them cannot be Heritage rank (provided by modification, or curtailment of its considered in determining expeditious NatureServe), Heritage threat rank habitat; predation; the inadequacy of progress made in the Listing Program.) (provided by NatureServe), and species existing regulatory mechanisms; and As with our ‘‘precluded’’ finding, currently with fewer than 50 other natural or man-made factors expeditious progress in adding qualified individuals, or 4 or fewer populations. affecting its continued existence. One or species to the Lists is a function of the Those species with the highest IUCN more of the threats discussed above resources available and the competing rank (critically endangered), the highest occurs in each known population. These demands for those funds. Given that Heritage rank (G1), the highest Heritage threats are ongoing and, in some cases, limitation, we find that we are making threat rank (substantial, imminent considered irreversible. Under our 1983 progress in FY 2010 in the Listing threats), and currently with fewer than Guidelines, a ‘‘species’’ facing imminent Program. This progress included 50 individuals, or fewer than 4 high-magnitude threats is assigned an preparing and publishing the following populations, originally comprised a LPN of 1, 2, or 3 depending on its determinations:

FY 2010 COMPLETED LISTING ACTIONS

Publication Date Title Actions FR Pages

10/08/2009 Listing Lepidium papilliferum Final Listing Threatened 74 FR 52013-52064 (Slickspot Peppergrass) as a Threatened Species Throughout Its Range

10/27/2009 90-day Finding on a Petition To List Notice of 90–day Petition Finding, Not 74 FR 55177-55180 the American Dipper in the Black substantial Hills of South Dakota as Threatened or Endangered

10/28/2009 Status Review of Arctic Grayling Notice of Intent to Conduct Status 74 FR 55524-55525 (Thymallus arcticus) in the Upper Review Missouri River System

11/03/2009 Listing the British Columbia Distinct Proposed Listing Threatened 74 FR 56757-56770 Population Segment of the Queen Charlotte Goshawk Under the Endangered Species Act: Proposed rule.

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00053 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 59856 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

FY 2010 COMPLETED LISTING ACTIONS—Continued

Publication Date Title Actions FR Pages

11/03/2009 Listing the Salmon-Crested Cockatoo Proposed Listing Threatened 74 FR 56770-56791 as Threatened Throughout Its Range with Special Rule

11/23/2009 Status Review of Gunnison sage- Notice of Intent to Conduct Status 74 FR 61100-61102 grouse (Centrocercus minimus) Review

12/03/2009 12-Month Finding on a Petition to List Notice of 12–month petition finding, 74 FR 63343-63366 the Black-tailed Prairie Dog as Not warranted Threatened or Endangered

12/03/2009 90-Day Finding on a Petition to List Notice of 90–day Petition Finding, 74 FR 63337-63343 Sprague’s Pipit as Threatened or Substantial Endangered

12/15/2009 90-Day Finding on Petitions To List Notice of 90–day Petition Finding, 74 FR 66260-66271 Nine Species of Mussels From Substantial Texas as Threatened or Endangered With Critical Habitat

12/16/2009 Partial 90-Day Finding on a Petition Notice of 90–day Petition Finding, Not 74 FR 66865-66905 to List 475 Species in the substantial and Subtantial Southwestern United States as Threatened or Endangered With Critical Habitat

12/17/2009 12–month Finding on a Petition To Notice of 12–month petition finding, 74 FR 66937-66950 Change the Final Listing of the Warranted but precluded Distinct Population Segment of the Canada Lynx To Include New Mexico

1/05/2010 Listing Foreign Bird Species in Peru Proposed Listing Endangered 75 FR 605-649 and Bolivia as Endangered Throughout Their Range

1/05/2010 Listing Six Foreign Birds as Proposed Listing Endangered 75 FR 286-310 Endangered Throughout Their Range

1/05/2010 Withdrawal of Proposed Rule to List Proposed rule, withdrawal 75 FR 310-316 Cook’s Petrel

1/05/2010 Final Rule to List the Galapagos Final Listing Threatened 75 FR 235-250 Petrel and Heinroth’s Shearwater as Threatened Throughout Their Ranges

1/20/2010 Initiation of Status Review for Agave Notice of Intent to Conduct Status 75 FR 3190-3191 eggersiana and Solanum Review conocarpum

2/09/2010 12–month Finding on a Petition to Notice of 12–month petition finding, 75 FR 6437-6471 List the American Pika as Not warranted Threatened or Endangered

2/25/2010 12-Month Finding on a Petition To Notice of 12–month petition finding, 75 FR 8601-8621 List the Sonoran Desert Population Not warranted of the Bald Eagle as a Threatened or Endangered Distinct Population Segment

2/25/2010 Withdrawal of Proposed Rule To List Withdrawal of Proposed Rule to List 75 FR 8621-8644 the Southwestern Washington/ Columbia River Distinct Population Segment of Coastal Cutthroat Trout (Oncorhynchus clarki clarki) as Threatened

3/18/2010 90-Day Finding on a Petition to List Notice of 90–day Petition Finding, 75 FR 13068-13071 the Berry Cave salamander as Substantial Endangered

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59857

FY 2010 COMPLETED LISTING ACTIONS—Continued

Publication Date Title Actions FR Pages

3/23/2010 90-Day Finding on a Petition to List Notice of 90–day Petition Finding, Not 75 FR 13717-13720 the Southern Hickorynut Mussel substantial (Obovaria jacksoniana) as Endangered or Threatened

3/23/2010 90-Day Finding on a Petition to List Notice of 90–day Petition Finding, 75 FR 13720-13726 the Striped Newt as Threatened Substantial

3/23/2010 12-Month Findings for Petitions to List Notice of 12–month petition finding, 75 FR 13910-14014 the Greater Sage-Grouse Warranted but precluded (Centrocercus urophasianus) as Threatened or Endangered

3/31/2010 12-Month Finding on a Petition to List Notice of 12–month petition finding, 75 FR 16050-16065 the Tucson Shovel-Nosed Snake Warranted but precluded (Chionactis occipitalis klauberi) as Threatened or Endangered with Critical Habitat

4/5/2010 90-Day Finding on a Petition To List Notice of 90–day Petition Finding, 75 FR 17062-17070 Thorne’s Hairstreak Butterfly as or Substantial Endangered

4/6/2010 12–month Finding on a Petition To Notice of 12–month petition finding, 75 FR 17352-17363 List the Mountain Whitefish in the Not warranted Big Lost River, Idaho, as Endangered or Threatened

4/6/2010 90-Day Finding on a Petition to List a Notice of 90–day Petition Finding, Not 75 FR 17363-17367 Stonefly (Isoperla jewetti) and a substantial Mayfly (Fallceon eatoni) as Threatened or Endangered with Critical Habitat

4/7/2010 12-Month Finding on a Petition to Re- Notice of 12–month petition finding, 75 FR 17667-17680 classify the Delta Smelt From Warranted but precluded Threatened to Endangered Throughout Its Range

4/13/2010 Determination of Endangered Status Final ListingEndangered 75 FR 18959-19165 for 48 Species on Kauai and Designation of Critical Habitat

4/15/2010 Initiation of Status Review of the Notice of Initiation of Status Review 75 FR 19591-19592 North American Wolverine in the Contiguous United States

4/15/2010 12-Month Finding on a Petition to List Notice of 12–month petition finding, 75 FR 19592-19607 the Wyoming Pocket Gopher as Not warranted Endangered or Threatened with Critical Habitat

4/16/2010 90-Day Finding on a Petition to List a Notice of 90–day Petition Finding, 75 FR 19925-19935 Distinct Population Segment of the Substantial Fisher in Its United States Northern Rocky Mountain Range as Endangered or Threatened with Critical Habitat

4/20/2010 Initiation of Status Review for Notice of Initiation of Status Review 75 FR 20547-20548 Sacramento splittail (Pogonichthys macrolepidotus)

4/26/2010 90-Day Finding on a Petition to List Notice of 90–day Petition Finding, 75 FR 21568-21571 the Harlequin Butterfly as Substantial Endangered

4/27/2010 12-Month Finding on a Petition to List Notice of 12–month petition finding, 75 FR 22012-22025 Susan’s Purse-making Caddisfly Not warranted (Ochrotrichia susanae) as Threatened or Endangered

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00055 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 59858 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

FY 2010 COMPLETED LISTING ACTIONS—Continued

Publication Date Title Actions FR Pages

4/27/2010 90–day Finding on a Petition to List Notice of 90–day Petition Finding, 75 FR 22063-22070 the Mohave Ground Squirrel as Substantial Endangered with Critical Habitat

5/4/2010 90-Day Finding on a Petition to List Notice of 90–day Petition Finding, 75 FR 23654-23663 Hermes Copper Butterfly as Substantial Threatened or Endangered

6/1/2010 90-Day Finding on a Petition To List Notice of 90–day Petition Finding, 75 FR 30313-30318 Castanea pumila var. ozarkensis Substantial

6/1/2010 12–month Finding on a Petition to Notice of 12–month petition finding, 75 FR 30338-30363 List the White-tailed Prairie Dog as Not warranted Endangered or Threatened

6/9/2010 90-Day Finding on a Petition To List Notice of 90–day Petition Finding, 75 FR 32728-32734 van Rossem’s Gull-billed Tern as Substantial Endangered orThreatened.

6/16/2010 90-Day Finding on Five Petitions to Notice of 90–day Petition Finding, 75 FR 34077-34088 List Seven Species of Hawaiian Substantial Yellow-faced Bees as Endangered

6/22/2010 12-Month Finding on a Petition to List Notice of 12–month petition finding, 75 FR 35398-35424 the Least Chub as Threatened or Warranted but precluded Endangered

6/23/2010 90-Day Finding on a Petition to List Notice of 90–day Petition Finding, 75 FR 35746-35751 the Honduran Emerald Substantial Hummingbird as Endangered

6/23/2010 Listing Ipomopsis polyantha (Pagosa Proposed Listing Endangered Pro- 75 FR 35721-35746 Skyrocket) as Endangered posed Listing Threatened Throughout Its Range, and Listing Penstemon debilis (Parachute Beardtongue) and Phacelia submutica (DeBeque Phacelia) as Threatened Throughout Their Range

6/24/2010 Listing the Flying Earwig Hawaiian Final Listing Endangered 75 FR 35990-36012 Damselfly and Pacific Hawaiian Damselfly As Endangered Throughout Their Ranges

6/24/2010 Listing the Cumberland Darter, Rush Proposed Listing Endangered 75 FR 36035-36057 Darter, Yellowcheek Darter, Chucky Madtom, and Laurel Dace as Endangered Throughout Their Ranges

6/29/2010 Listing the Mountain Plover as Reinstatement of Proposed Listing 75 FR 37353-37358 Threatened Threatened

7/20/2010 90-Day Finding on a Petition to List Notice of 90–day Petition Finding, 75 FR 42033-42040 Pinus albicaulis (Whitebark Pine) Substantial as Endangered or Threatened with Critical Habitat

7/20/2010 12-Month Finding on a Petition to List Notice of 12–month petition finding, 75 FR 42040-42054 the Amargosa Toad as Threatened Not warranted or Endangered

7/20/2010 90-Day Finding on a Petition to List Notice of 90–day Petition Finding, 75 FR 42059-42066 the Giant Palouse Earthworm Substantial (Driloleirus americanus) as Threatened or Endangered

7/27/2010 Determination on Listing the Black- Final Listing Endangered 75 FR 43844-43853 Breasted Puffleg as Endangered Throughout its Range; Final Rule

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00056 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59859

FY 2010 COMPLETED LISTING ACTIONS—Continued

Publication Date Title Actions FR Pages

7/27/2010 Final Rule to List the Medium Tree- Final Listing Endangered 75 FR 43853-43864 Finch (Camarhynchus pauper) as Endangered Throughout Its Range

8/3/2010 Determination of Threatened Status Final ListingThreatened 75 FR 45497- 45527 for Five Penguin Species

8/4/2010 90-Day Finding on a Petition To List Notice of 90–day Petition Finding, 75 FR 46894- 46898 the Mexican Gray Wolf as an Substantial Endangered Subspecies With Critical Habitat

8/10/2010 90-Day Finding on a Petition to List Notice of 90–day Petition Finding, 75 FR 48294-48298 Arctostaphylos franciscana as Substantial Endangered with Critical Habitat

8/17/2010 Listing Three Foreign Bird Species Final Listing Endangered 75 FR 50813-50842 from Latin America and the Caribbean as Endangered Throughout Their Range

8/17/2010 90-Day Finding on a Petition to List Notice of 90–day Petition Finding, Not 75 FR 50739-50742 Brian Head Mountainsnail as substantial Endangered or Threatened with Critical Habitat

8/24/2010 90-Day Finding on a Petition to List Notice of 90–day Petition Finding, 75 FR 51969-51974 the Oklahoma Grass Pink Orchid Substantial as Endangered or Threatened

9/1/2010 12-Month Finding on a Petition to List Notice of 12–month petition finding, 75 FR 53615-53629 the White-Sided Jackrabbit as Not warranted Threatened or Endangered

9/8/2010 Proposed Rule To List the Ozark Proposed Listing Endangered 75 FR 54561-54579 Hellbender Salamander as Endangered

9/8/2010 Revised 12-Month Finding to List the Notice of 12–month petition finding, 75 FR 54707-54753 Upper Missouri River Distinct Warranted but precluded Population Segment of Arctic Grayling as Endangered or Threatened

9/9/2010 12-Month Finding on a Petition to List Notice of 12–month petition finding, 75 FR 54822-54845 the Jemez Mountains Salamander Warranted but precluded (Plethodon neomexicanus) as Endangered or Threatened with Critical Habitat

Our expeditious progress also timelines, that is, timelines required they overlap geographically or have the includes work on listing actions that we under the Act. Actions in the bottom same threats as the species with the funded in FY 2010 but have not yet section of the table are high-priority high priority. Including these species been completed to date. These actions listing actions. These actions include together in the same proposed rule are listed below. Actions in the top work primarily on species with an LPN results in considerable savings in time section of the table are being conducted of 2, and selection of these species is and funding, as compared to preparing under a deadline set by a court. Actions partially based on available staff separate proposed rules for each of them in the middle section of the table are resources, and when appropriate, in the future. being conducted to meet statutory include species with a lower priority if

ACTIONS FUNDED IN FY 2010 BUT NOT YET COMPLETED

Species Action

Actions Subject to Court Order/Settlement Agreement

6 Birds from Eurasia Final listing determination

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00057 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 59860 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

ACTIONS FUNDED IN FY 2010 BUT NOT YET COMPLETED—Continued

Species Action

African penguin Final listing determination

Flat-tailed horned lizard Final listing determination

Mountain plover4 Final listing determination

6 Birds from Peru Proposed listing determination

Sacramento splittail 12–month petition finding

Pacific walrus 12–month petition finding

Gunnison sage-grouse 12–month petition finding

Wolverine 12–month petition finding

Agave eggergsiana 12–month petition finding

Solanum conocarpum 12–month petition finding

Sprague’s pipit 12–month petition finding

Desert tortoise – Sonoran population 12–month petition finding

Pygmy rabbit (rangewide)1 12–month petition finding

Thorne’s Hairstreak butterfly3 12–month petition finding

Hermes copper butterfly3 12–month petition finding

Actions with Statutory Deadlines

Casey’s june beetle Final listing determination

Georgia pigtoe, interrupted rocksnail, and rough hornsnail Final listing determination

7 Bird species from Brazil Final listing determination

Southern rockhopper penguin – Campbell Plateau population Final listing determination

5 Bird species from Colombia and Ecuador Final listing determination

Queen Charlotte goshawk Final listing determination

5 species southeast fish (Cumberland darter, rush darter, yellowcheek Final listing determination darter, chucky madtom, and laurel dace)

Salmon crested cockatoo Proposed listing determination

CA golden trout 12–month petition finding

Black-footed albatross 12–month petition finding

Mount Charleston blue butterfly 12–month petition finding

Mojave fringe-toed lizard1 12–month petition finding

Kokanee – Lake Sammamish population1 12–month petition finding

Cactus ferruginous pygmy-owl1 12–month petition finding

Northern leopard frog 12–month petition finding

Tehachapi slender salamander 12–month petition finding

Coqui Llanero 12–month petition finding

Dusky tree vole 12–month petition finding

3 MT invertebrates (mist forestfly(Lednia tumana), Oreohelix sp.3, 12–month petition finding Oreohelix sp. 31) from 206 species petition

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00058 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59861

ACTIONS FUNDED IN FY 2010 BUT NOT YET COMPLETED—Continued

Species Action

5 UT plants (Astragalus hamiltonii, Eriogonum soredium, Lepidium 12–month petition finding ostleri, Penstemon flowersii, Trifolium friscanum) from 206 species petition

2 CO plants (Astragalus microcymbus, Astragalus schmolliae) from 206 12–month petition finding species petition

5 WY plants (Abronia ammophila, Agrostis rossiae, Astragalus 12–month petition finding proimanthus, Boechere (Arabis) pusilla, Penstemon gibbensii) from 206 species petition

Leatherside chub (from 206 species petition) 12–month petition finding

Frigid ambersnail (from 206 species petition) 12–month petition finding

Gopher tortoise – eastern population 12–month petition finding

Wrights marsh thistle 12–month petition finding

67 of 475 southwest species 12–month petition finding

Grand Canyon scorpion (from 475 species petition) 12–month petition finding

Anacroneuria wipukupa (a stonefly from 475 species petition) 12–month petition finding

Rattlesnake-master borer moth (from 475 species petition) 12–month petition finding

3 Texas moths (Ursia furtiva, Sphingicampa blanchardi, Agapema 12–month petition finding galbina) (from 475 species petition)

2 Texas shiners (Cyprinella sp., Cyprinella lepida) (from 475 species 12–month petition finding petition)

3 South Arizona plants (Erigeron piscaticus, Astragalus hypoxylus, 12–month petition finding Amoreuxia gonzalezii) (from 475 species petition)

5 Central Texas mussel species (3 from 474 species petition) 12–month petition finding

14 parrots (foreign species) 12–month petition finding

Berry Cave salamander1 12–month petition finding

Striped Newt1 12–month petition finding

Fisher – Northern Rocky Mountain Range1 12–month petition finding

Mohave Ground Squirrel1 12–month petition finding

Puerto Rico Harlequin Butterfly 12–month petition finding

Western gull-billed tern 12–month petition finding

Ozark chinquapin (Castanea pumila var. ozarkensis) 12–month petition finding

HI yellow-faced bees 12–month petition finding

Giant Palouse earthworm 12–month petition finding

Whitebark pine 12–month petition finding

OK grass pink (Calopogon oklahomensis)1 12–month petition finding

Southeastern pop snowy plover & wintering pop. of piping plover1 90–day petition finding

Eagle Lake trout1 90–day petition finding

Smooth-billed ani1 90–day petition finding

Bay Springs salamander1 90–day petition finding

32 species of snails and slugs1 90–day petition finding

42 snail species (Nevada & Utah) 90–day petition finding

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00059 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 59862 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

ACTIONS FUNDED IN FY 2010 BUT NOT YET COMPLETED—Continued

Species Action

Red knot roselaari subspecies 90–day petition finding

Peary caribou 90–day petition finding

Plains bison 90–day petition finding

Spring Mountains checkerspot butterfly 90–day petition finding

Spring pygmy sunfish 90–day petition finding

Bay skipper 90–day petition finding

Unsilvered fritillary 90–day petition finding

Texas kangaroo rat 90–day petition finding

Spot-tailed earless lizard 90–day petition finding

Eastern small-footed bat 90–day petition finding

Northern long-eared bat 90–day petition finding

Prairie chub 90–day petition finding

10 species of Great Basin butterfly 90–day petition finding

6 sand dune (scarab) beetles 90–day petition finding

Golden-winged warbler 90–day petition finding

Sand-verbena moth 90–day petition finding

404 Southeast species 90–day petition finding

High-Priority Listing Actions3

19 Oahu candidate species2 (16 plants, 3 damselflies) (15 with LPN = Proposed listing 2, 3 with LPN = 3, 1 with LPN =9)

19 Maui-Nui candidate species2 (16 plants, 3 tree snails) (14 with LPN Proposed listing = 2, 2 with LPN = 3, 3 with LPN = 8)

Dune sagebrush lizard (formerly Sand dune lizard)3 (LPN = 2) Proposed listing

2 Arizona springsnails2 (Pyrgulopsis bernadina (LPN = 2), Pyrgulopsis Proposed listing trivialis (LPN = 2))

New Mexico springsnail2 (Pyrgulopsis chupaderae (LPN = 2) Proposed listing

2 mussels2 (rayed bean (LPN = 2), snuffbox No LPN) Proposed listing

2 mussels2 (sheepnose (LPN = 2), spectaclecase (LPN = 4),) Proposed listing

Altamaha spinymussel2 (LPN = 2) Proposed listing

8 southeast mussels (southern kidneyshell (LPN = 2), round ebonyshell Proposed listing (LPN = 2), Alabama pearlshell (LPN = 2), southern sandshell (LPN = 5), fuzzy pigtoe (LPN = 5), Choctaw bean (LPN = 5), narrow pigtoe (LPN = 5), and tapered pigtoe (LPN = 11)) 1 Funds for listing actions for these species were provided in previous FYs. 2 Although funds for these high-priority listing actions were provided in FY 2008 or 2009, due to the complexity of these actions and competing priorities, these actions are still being developed. 3Partially funded with FY 2010 funds; also will be funded with FY 2011 funds.

We have endeavored to make our processes or achieve economies of scale, The Gunnison sage-grouse will be listing actions as efficient and timely as such as by batching related actions added to the list of candidate species possible, given the requirements of the together. Given our limited budget for upon publication of this 12–month relevant law and regulations, and implementing section 4 of the Act, these finding. We will continue to monitor the constraints relating to workload and actions described above collectively status of this species as new information personnel. We are continually constitute expeditious progress. becomes available. This review will considering ways to streamline determine if a change in status is

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00060 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59863

warranted, including the need to make References Cited Authority prompt use of emergency listing A complete list of references cited is procedures. The authority for this section is available on the Internet at http:// section 4 of the Endangered Species Act www.regulations.gov and upon request We intend that any proposed listing of 1973, as amended (16 U.S.C. 1531 et from the Western Colorado Ecological action for the Gunnison sage-grouse will seq.). be as accurate as possible. Therefore, we Services Field Office (see ADDRESSES will continue to accept additional section). Dated: September 7, 2010 information and comments from all Author(s) Paul R. Schmidt, concerned governmental agencies, the Acting Director, Fish and Wildlife Service. The primary authors of this notice are scientific community, industry, or any [FR Doc. 2010–23430 Filed 9–27–10; 8:45 am] the staff members of the Western other interested party concerning this Colorado Ecological Services Field BILLING CODE 4310–55–S finding. Office.

VerDate Mar<15>2010 15:24 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00061 Fmt 4701 Sfmt 9990 E:\FR\FM\28SEP2.SGM 28SEP2 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS2 Tuesday, September 28, 2010

Part III

Securities and Exchange Commission 17 CFR Parts 229 and 249 Short-Term Borrowings Disclosure; Proposed Rule

VerDate Mar<15>2010 15:25 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\28SEP3.SGM 28SEP3 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 59866 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

SECURITIES AND EXCHANGE Paper Comments obligations’’ in Items 2.03 and 2.04 of COMMISSION • Form 8–K; and Send paper comments in triplicate • to Elizabeth M. Murphy, Secretary, Revisions to Item 303 of Regulation 17 CFR Parts 229 and 249 Securities and Exchange Commission, S–K and Item 5 of Form 20–F to update 100 F Street, NE., Washington, DC the references to United States generally [Release Nos. 33–9143; 34–62932; File No. 20549–1090. accepted accounting principles (‘‘U.S. GAAP’’) to reflect the release by the S7–22–10] All submissions should refer to File Financial Accounting Standards Board Number S7–22–10. This file number (‘‘FASB’’) of its FASB Accounting RIN 3235–AK72 should be included on the subject line Standards Codification (‘‘FASB if e-mail is used. To help us process and ’’ Short-Term Borrowings Disclosure review your comments more efficiently, Codification ). AGENCY: Securities and Exchange please use only one method. The Table of Contents Commission will post all comments on Commission. I. Background and Summary the Commission’s Internet Web site ACTION: Proposed rule. II. Discussion of the Proposed Amendments (http://www.sec.gov/rules/ A. Short-Term Borrowings Disclosure SUMMARY: We are proposing proposed.shtml). Comments are also B. Treatment of Foreign Private Issuers and amendments to enhance the disclosure available for Web site viewing and Smaller Reporting Companies that registrants provide about short-term printing in the Commission’s Public C. Leverage Ratio Disclosure Issues Reference Room, 100 F Street, NE., D. Technical Amendments Reflecting borrowings. Specifically, the proposals FASB Codification would require a registrant to provide, in Washington, DC 20549, on official business days between the hours of 10 E. Conforming Amendments to Definition a separately captioned subsection of ‘‘ ’’ a.m. and 3 p.m. All comments received of Direct Financial Obligation in Form Management’s Discussion and Analysis 8–K of Financial Condition and Results of will be posted without change; we do F. Transition Operations, a comprehensive not edit personal identifying III. General Request for Comment explanation of its short-term information from submissions. You IV. Paperwork Reduction Act borrowings, including both quantitative should submit only information that A. Background you wish to make available publicly. B. Burden and Cost Estimates Related to and qualitative information. The the Proposed Amendments proposed amendments would be FOR FURTHER INFORMATION CONTACT: Christina L. Padden, Attorney Fellow in C. Request for Comment applicable to annual and quarterly V. Cost-Benefit Analysis reports, proxy or information statements the Office of Rulemaking, at (202) 551– A. Introduction and Objectives of that include financial statements, 3430, or Stephanie L. Hunsaker, Proposals registration statements under the Associate Chief Accountant, at (202) B. Benefits Securities Exchange Act of 1934, and 551–3400, in the Division of C. Costs registration statements under the Corporation Finance; or Wesley R. D. Request for Comment VI. Consideration of Impact on the Economy, Securities Act of 1933. We are also Bricker, Professional Accounting Fellow, Office of the Chief Accountant Burden on Competition and Promotion proposing conforming amendments to of Efficiency, Competition and Capital Form 8–K so that the Form would use at (202) 551–5300; U.S. Securities and Exchange Commission, 100 F Street, Formation the terminology contained in the VII. Small Business Regulatory Enforcement proposed short-term borrowings NE., Washington, DC 20549. Fairness Act disclosure requirement. SUPPLEMENTARY INFORMATION: We are VIII. Initial Regulatory Flexibility Act 1 In a companion release, we are proposing amendments to Item 303 of Analysis 2 providing interpretive guidance that is Regulation S–K and amendments to A. Reasons for, and Objectives of, the Forms 8–K 3 and 20–F 4 under the Proposed Action intended to improve overall discussion B. Legal Basis of liquidity and capital resources in Securities Exchange Act of 1934 (‘‘Exchange Act’’).5 C. Small Entities Subject to the Proposed Management’s Discussion and Analysis Action of Financial Condition and Results of The proposed amendments include: • A new disclosure requirement in D. Reporting, Recordkeeping, and other Operations in order to facilitate Compliance Requirements Management’s Discussion and Analysis understanding by investors of the E. Duplicative, Overlapping, or Conflicting of Financial Condition and Results of Federal Rules liquidity and funding risks facing the Operations (‘‘MD&A’’) relating to short- registrant. F. Significant Alternatives term borrowings that would be G. Solicitation of Comments DATES: Comments should be received on designated as Item 303(a)(6) of IX. Statutory Authority and Text of the or before November 29, 2010. Regulation S–K; Proposed Amendments • Amendments to Item 303(b) of ADDRESSES: Comments may be I. Background and Summary submitted by any of the following Regulation S–K that would require methods: interim period disclosure of short-term Over the past several years, we have borrowings with the same level of detail provided guidance and have engaged in Electronic Comments as is proposed for annual presentation; rulemaking initiatives to improve the • • Use the Commission’s Internet Conforming amendments to Item 5 presentation of information about comment form (http://www.sec.gov/ of Form 20–F to add short-term funding and liquidity risk.6 As we have rules/proposed.shtml); borrowings disclosure requirements; • 6 • Send an e-mail to rule- Conforming amendments to the See, e.g., Disclosure in Management’s definition of ‘‘direct financial Discussion and Analysis About Off-Balance Sheet [email protected]. Please include File Arrangements, Contractual Obligations and Contingent Liabilities and Commitments, Release Number S7–22–10 on the subject line; 1 17 CFR 229.303. No. 33–8144 (Nov. 4, 2002) [67 FR 68054] (the ‘‘OBS or 2 • 17 CFR 229.10 et al. Proposing Release’’); Disclosure in Management’s Use the Federal eRulemaking Portal 3 17 CFR 249.308. Discussion and Analysis About Off-Balance Sheet (http://www.regulations.gov). Follow the 4 17 CFR 249.220f. Arrangements, Contractual Obligations and instructions for submitting comments. 5 15 U.S.C. 78a et seq. Contingent Liabilities and Commitments, Release

VerDate Mar<15>2010 15:25 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP3.SGM 28SEP3 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59867

emphasized in past guidance, MD&A other short-term financing techniques, Due to their short-term nature, a disclosure relating to liquidity and including commercial paper, repurchase company’s use of such arrangements capital resources is critical to an transactions and securitizations, have can fluctuate materially during a assessment of a company’s prospects for become increasingly common among reporting period, which means that the future and even the likelihood of its financial institutions and industrial presentation of period-end amounts of survival.7 We believe that leverage and companies alike.12 short-term borrowings alone may not be liquidity continue to be significant areas Recent events have shown that these indicative of that company’s funding of focus for investors,8 particularly as types of arrangements can be impacted, needs or activities during the period. many failures in the financial crisis sometimes severely and rapidly, by For example, a bank that routinely arose due to liquidity constraints.9 illiquidity in the markets as a whole.13 enters into repurchase transactions A critical component of a company’s When market liquidity is low, short- during the quarter might curtail that liquidity and capital resources is often term borrowings present increased risks: activity at quarter-end,16 resulting in a its access to short-term borrowings for that financing rates will increase or period-end amount of outstanding working capital and to fund its terms will become unfavorable, that it borrowings that does not necessarily operations.10 Traditional sources of will be more costly or impossible to roll reflect its business operations or related funding, such as trade credit, bank over short-term borrowings, or for risks. Likewise, a retailer may have loans, and long-term or medium-term financial institutions, that demand significant short-term borrowings during debt instruments, remain important for depositors will withdraw funds.14 the year to finance inventory that is sold many types of businesses.11 However, Moreover, short-term financing by year-end (and where those short-term arrangements can present complex borrowings are repaid by year-end). In No. 33–8182 (Jan. 28, 2003) [68 FR 5982] (the ‘‘OBS accounting and disclosure issues, even that case, where the need to finance Adopting Release’’) (adopting rules for disclosure in when market conditions are stable.15 inventory purchases fluctuates, MD&A of off-balance sheet arrangements and aggregate contractual obligations); and Commission impacted by the timing and volume of Guidance Regarding Management’s Discussion and Campello et al., Liquidity Management and inventory sales, the ability to have Analysis of Financial Condition and Results of Corporate Investment During a Financial Crisis (July 2010) (working paper) (examining how non- access to short-term borrowings may be Operations, Release No. 33–8350 (Dec. 19, 2003) [68 very important to the company. FR 75056] (the ‘‘2003 Interpretive Release’’) financial companies choose among various sources of liquidity), available at http:// Therefore, although the financial (providing interpretive guidance on disclosure in ∼ MD&A, including liquidity and capital resources). faculty.fuqua.duke.edu/ charvey/Research/ services sector has been in the spotlight, Working_Papers/ 7 See 2003 Interpretive Release, supra note 6, at W99_Liquidity_management_and.pdf; V. Ivashina & the issues arising from short-term 75062. See also Commission Statement About D. Scharfstein, Bank Lending During the Financial borrowings are not limited to that Management’s Discussion and Analysis of Financial Crisis of 2008, J. FIN. ECON. (forthcoming), 17 Condition and Results of Operations, Release sector. available at http://ssrn.com/abstract=1297337 No. 33–8056 (Jan. 22, 2002) [67 FR 3746] (the ‘‘2002 Recent events have suggested that (examining the increase in draw-downs or threats Interpretive Release’’) and the OBS Adopting investors could benefit from additional of draw-downs of existing credit lines by Release, supra note 6. commercial and industrial firms and the related transparency about companies’ short- 8 See L. H. Pedersen, When Everyone Runs for the impact on bank lending). term borrowings, including particularly Exit, 5 Int’l J. Cent. BankING 177 (2009) (‘‘[t]he 12 See S. Sood, Is the Ride Coming to an End?, global crisis that started in 2007 provides ample whether these borrowings vary Global Investor, May 1, 2009 (‘‘Treasurers need to evidence of the importance of liquidity risk * * * materially during reporting periods look harder at a broader range of funding [t]he crisis spilled over to other credit markets, alternatives, e.g., debt factoring, invoice factoring compared to amounts reported at money markets, convertible bonds, stocks and over- and trade finance which are essentially forms of period-end without investor the-counter derivatives.’’); M. Brunnermeier, collateralized financing’’); M. Lemmon et al., The 18 Deciphering the Liquidity and Credit Crunch 2007– appreciation of those variations. Use of Asset-backed Securitization and Capital Although current MD&A rules generally 2008, 23 J. Econ. Persp. 77 (2009); M. Brunnermeier Structure in Industrial Firms: An Empirical & L. Pedersen, Market Liquidity and Funding Investigation (May 2010), available at http:// require disclosure of a registrant’s use of Liquidity, 22 Rev. Fin. Stud. 2201 (2009); R. Huang, www.fma.org. short-term borrowing arrangements and How Committed Are Bank Lines of Credit? Evidence 13 See J. Tirole, Illiquidity and All Its Friends from the Subprime Mortgage Crisis, (working paper) the registrant’s exposure to related risks (Bank for International Settlements, Working Paper 19 (Aug. 2010), available at http://www.phil.frb.org/ and uncertainties, without a specific No. 303, 2010), available at http://www.bis.org research-and-data/publications/working-papers/ (‘‘[t]he recent crisis, we all know, was characterized 2010/wp10-25.pdf; P. Strahan et al., Liquidity Risk 16 by massive illiquidity.’’ In addition, ‘‘Overall there See V. Kotomin & D. Winters, Quarter-End Management and Credit Supply in the Financial has been a tremendous increase in the proportion Effects in Banks: Preferred Habitat or Window Crisis, (working paper) (May 2010), available at of short-term liabilities in the financial sector’’). See Dressing?, 29 J. FIN. RES. 1 (2006); M. Rappaport http://papers.ssrn.com/sol3/ & T. McGinty, Banks Trim Debt, Obscuring Risks, _ also, e.g., P. Eavis, Lehman’s Racy Repo, WALL ST. papers.cfm?abstract id=1601992. J., Mar. 12, 2010 (suggesting that repo financing ‘‘is WALL ST. J., May 25, 2010. 9 See, e.g., K. Ayotte & D. Steele, Bankruptcy or highly vulnerable in times of panic, as the credit 17 See, e.g., W. Dudley, President & CEO, FRBNY, Bailouts?, 35 J. CORP. L. 469 (2010) (discussing crisis showed’’); A. Martin et al., Repo Runs, Remarks at the Center for Economic Policy Studies illiquidity and insolvency for financial institutions FRBNY Staff Report No. 444 (Apr. 2010) Symposium: More Lessons From the Crisis, (Nov. in the context of the recent financial crisis); When (demonstrating that institutions funded by short- 13, 2009), available at http://newyorkfed.org/ the River Runs Dry, ECONOMIST, Feb. 11, 2010 term collateralized borrowings are subject to the newsevents/speeches/2009/dud091113.html (noting (‘‘Many of those clobbered in the crisis were struck threat of runs similar to those faced by commercial ‘‘[a] key vulnerability turned out to be the misplaced down by a sudden lack of cash or funding sources, banks). assumption that securities dealers and others would not because they ran out of capital.’’). 14 See, e.g., Brunnermeier, supra note 8, at 79–80; be able to obtain very large amounts of short-term 10 See D. Booth & J. Renier, Fed Policy in the see also C. Borio, Market Distress and Vanishing funding even in times of stress.’’); J. Lahart, U.S. Financial Crisis: Arresting the Adverse Feedback Liquidity: Anatomy and Policy Options (Bank for Firms Build Up Record Cash Piles, WALL ST. J., Loop, FRBD Economic Letter (Sept. 2009), available International Settlements, Working Paper No. 158, June 10, 2010 (‘‘In the darkest days of late 2008, at http://www.dallasfed.org/research/eclett/2009/ 2004), available at http://www.bis.org (‘‘Under even large companies faced the threat that they el0907.html (‘‘Many businesses were hampered by stress, risk management practices, funding liquidity wouldn’t be able to do the everyday, short-term the squeeze on short-term financing, a key source constraints, and in the most severe cases, concerns borrowing needed to make payrolls and purchase of working capital needed to prevent deeper with counter-party risk become critical.’’). inventory.’’). reductions in inventories, jobs and wages.’’). 15 See, e.g., the Division of Corporation Finance, 18 See, e.g., Financial Crisis Inquiry Commission, 11 See, generally, B. Becker & V. Ivashina, Sample Letter Sent to Public Companies Asking for Hearing on ‘‘The Shadow Banking System’’ (May 5, Cyclicality of Credit Supply: Firm Level Evidence Information Related to Repurchase Agreements, 2010) (transcript available at http://www.fcic.gov/ (May 2010) (Harvard Working Paper); C. M. James, Securities Lending Transactions, or Other hearings/pdfs/2010-0505-Transcript.pdf). Credit Market Conditions and the Use of Bank Lines Transactions Involving the Transfer of Financial 19 See Item 303(a)(1) and (2) of Regulation S–K of Credit, FRBSF Economic Letter 2009–27 (Aug. Assets (Mar. 2010) (the ‘‘2010 Dear CFO Letter’’), and Instruction 5 to paragraph 303(a) [17 CFR 2009), available at http://www.frbsf.org/ available at http://www.sec.gov/divisions/corpfin/ 229.303] (noting that liquidity generally shall be publications/economics/letter/2009/el2009-27; M. guidance/cforepurchase0310.htm. Continued

VerDate Mar<15>2010 15:25 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP3.SGM 28SEP3 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 59868 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

requirement to disclose information Second, we are proposing known demands, commitments, events about intra-period short-term amendments to the requirements or uncertainties that will result in or borrowings, investors may not have applicable to ‘‘foreign private issuers’’ in that are reasonably likely to result in the access to sufficient information to the ‘‘Operating and Financial Review registrant’s liquidity increasing or understand companies’ actual funding and Prospects’’ item in Form 20–F to decreasing in any material way.24 needs and financing activities or to add short-term borrowings disclosure Registrants are also required to identify evaluate the liquidity risks faced by requirements, which would be and separately describe internal and companies during the reporting period. substantially similar to the proposed external sources of liquidity.25 With To address these issues, we are amendments to MD&A, but without the respect to capital resources, a registrant proposing to amend the MD&A requirement for quarterly reporting is required to describe any known requirements to enhance disclosure that since foreign private issuers are not material trends, favorable or registrants provide regarding the use subject to quarterly reporting unfavorable, in its capital resources, and impact of short-term financing requirements. indicating any expected material arrangements during each reporting Third, we are proposing conforming changes in the mix and relative cost of period. The principal aspects of the amendments to the definition of ‘‘direct such resources.26 In its discussion of proposals are outlined below. financial obligations’’ in Items 2.03 and capital resources, a registrant is also First, the proposed amendments 2.04 of Form 8–K. required to consider changes between would add new disclosure requirements Finally, the proposed amendments equity, debt and any off-balance sheet relating to short-term borrowings, would update the references to U.S. financing arrangements.27 However, similar to the provisions for annual GAAP in Item 303 of Regulation S–K other than in connection with this disclosure of short-term borrowings that and Item 5 of Form 20–F to reflect the discussion of liquidity and capital are currently applicable to bank holding FASB Codification. resources under Item 303(a)(1) and (2) of companies in accordance with the Over time, to enhance the information Regulation S–K, companies that do not disclosure guidance set forth in Industry provided to investors through MD&A we provide Guide 3 disclosure are not Guide 3, Statistical Disclosure by Bank have supplemented the principles-based subject to any line item requirements for Holding Companies (‘‘Guide 3’’).20 The disclosure requirements governing the reporting of specific data regarding proposed amendments would codify the MD&A with more detailed and specific short-term borrowing amounts or Guide 3 provisions for disclosure of MD&A disclosure requirements, such as information about intra-period short-term borrowings in Regulation the contractual obligations table and the borrowing levels. S–K, would require disclosure on an off-balance sheet arrangements Registrants that are bank holding annual and quarterly basis, and would disclosure requirements.22 Our proposal companies provide statistical be expanded to apply to all companies to require quantitative and qualitative disclosures in accordance with the 28 that provide MD&A disclosure, not only information about short-term industry guidance set forth in Guide 3. to financial institutions. If the proposals borrowings is similarly designed to Guide 3 is primarily intended to provide are adopted, we expect to authorize the enhance investor understanding of a supplemental data to facilitate analysis Commission’s staff to eliminate the company’s financial position and and to allow for comparisons of sources corresponding provisions of Guide 3 to liquidity. We emphasize, however, that of income and evaluations of exposures 29 avoid redundant disclosure the addition of these specific disclosure to risk. One of the important requirements.21 requirements to MD&A supplements, provisions of Guide 3 is annual and is not a substitute for the required disclosure of average, maximum month- discussed on both a long-term and short-term basis); discussion and analysis that enables end, and period-end amounts of short- 30 see also 2002 Interpretive Release, supra note 7 investors to understand the company’s term borrowings. Registrants that (providing interpretive guidance on MD&A, noting follow the provisions of Guide 3 provide ‘‘registrants should consider describing the sources business as seen through the eyes of of short-term funding and the circumstances that management.23 three years of annual data, broken out are reasonably likely to affect those sources of In a companion release, we are into three categories of short-term liquidity’’). providing interpretive guidance that is borrowings, namely: Federal funds 20 See 17 CFR 229.801, Item VII. intended to improve the overall purchased and securities sold under 21 Guide 3, as originally promulgated in 1968 agreements to repurchase, commercial under the designations Guide 61 and Guide 3, discussion of liquidity and funding in served as an expression of the policies and practices MD&A in order to facilitate paper, and other short-term 31 of the Commission’s Division of Corporation understanding by investors of the borrowings. We believe that this data Finance in order to assist issuers in the preparation liquidity and funding risks facing 24 of their registration statements and reports. See registrants. See Item 303(a)(1) of Regulation S–K [17 CFR Guides for Preparation and Filing of Registration 229.303(a)(1)]. Statements, Release No. 33–4936 (Dec. 9, 1968) [33 II. Discussion of the Proposed 25 Id. FR 18617]. In 1982, these guides were redesignated Amendments 26 See Item 303(a)(2)(ii) of Regulation as Securities Act Industry Guide 3 and Exchange S–K [17 CFR 229.303(a)(2)]. Act Industry Guide 3, and were included in the list 27 Id. of industry guides in Items 801 and 802 of A. Short-Term Borrowings Disclosure 28 See 17 CFR 229.801. Bank holding companies Regulation S–K, but were not codified as rules. See 1. Existing Requirements for Disclosure Rescission of Guides and Redesignation of Industry typically include this disclosure in the MD&A Guides, Release No. 33–6384 [47 FR 11476], at of Short-Term Borrowings section of their filings. 29 See Proposed Revision of Financial Statement 11476 (‘‘The list of industry guides has been moved Existing MD&A requirements call for into Regulation S–K, which serves as the central Requirements and Industry Guide Disclosures for repository of disclosure requirements under the discussion and analysis of a registrant’s Bank Holding Companies, Release No. 33–6417 Securities Act and Exchange Act, in order to more liquidity and capital resources. With (July 9, 1982) [47 FR 32158] at 32159. effectively put registrants on notice of their respect to liquidity, registrants must 30 See Item VII of Guide 3. existence. These guides remain as an expression of identify any known trends or any 31 Id. Item VII of Guide 3 calls for the presentation the policies and practices of the Division of of information for each category of short-term Corporation Finance and their status is unaffected borrowings that is reported in the financial by this change.’’) If the proposed amendments are 22 See Items 303(a)(4) and (5) of Regulation S–K statements pursuant Article 9 of Regulation S–X. adopted, the Commission would authorize its staff [17 CFR 229.303(a)(4) and (5)]. Rule 9–03.13(3) of Regulation S–X [17 CFR 210.9– to amend Guide 3 to eliminate Item VII in its 23 See 2003 Interpretive Release, supra note 6, at 03.13(3)] requires separate balance sheet disclosure entirety. 75056. of ‘‘amounts payable for (1) Federal funds

VerDate Mar<15>2010 15:25 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP3.SGM 28SEP3 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59869

is useful to show the types of short-term resources that are required in MD&A borrowings. We note that the current financings constituting a portion of the would appear to be sufficiently Guide 3 disclosure of short-term bank holding company’s liquidity informational to permit elimination of borrowings does not call for a profile, as well as to highlight the short-term borrowing schedule.’’ 36 qualitative discussion of the reasons for differences between period-end and Although we believe that a thorough use by a registrant of the particular intra-period short-term financing discussion of liquidity and capital types of financing techniques, or of the activity and the overall liquidity risks it resources under existing MD&A drivers of differences between average faces during the period. Given the requirements often would provide amounts and period-end amounts utility of this data in analyzing liquidity qualitative information comparable to outstanding for the period. We believe and funding risks, we are proposing to that elicited by the proposed that including a requirement for a require all registrants to provide requirements, we expect that the narrative explanation together with disclosure in their MD&A similar to the proposed requirements would serve as a tabular data would provide important short-term borrowings information useful framework for the provision of information so that investors can better called for by Guide 3.32 Further, since both quantitative and qualitative understand the role of short-term liquidity and funding risks can change information about short-term financing and its related risks to the rapidly over the course of a year, we are borrowings that would supplement the registrant as viewed through the eyes of proposing to require the information for registrant’s discussion of liquidity and management. both annual and interim periods. capital resources. We also believe that, The proposed amendments would We note that, in 1994, in connection in contrast to the presentation required codify in Regulation S–K the Guide 3 with the elimination of various financial in the financial statement schedule that provisions for disclosure of short-term statement disclosure schedules, the was eliminated in 1994, the information borrowings applicable to bank holding Commission eliminated a short-term would be more useful to investors if it companies and would apply to all borrowings disclosure requirement for is provided in MD&A, in tabular form, companies that provide MD&A registrants that were not bank holding coupled with a discussion and analysis disclosure, not only to bank holding companies, which was similar to the to provide context for the quantitative companies and other financial existing Guide 3 short-term borrowings data. institutions. If the proposals are disclosure guidance.33 Former Rule 12– Among the primary reasons cited for adopted, we expect to authorize the 10 of Regulation S–X 34 required those the repeal of Rule 12–10 were the Commission’s staff to eliminate the registrants to include with their practical difficulties involved in corresponding provisions of Guide 3 in financial statements a schedule of short- gathering the data and preparing their entirety to avoid redundant term borrowings that disclosed the meaningful disclosure.37 We note that disclosure requirements for bank maximum amount outstanding during some of those practical difficulties may holding companies. As proposed, the year, the average amount be less relevant today because of registrants would be required to provide outstanding during the year, and the technological advancements in disclosure in MD&A of: weighted-average interest rate during accounting systems that have become • The amount in each specified the period, with amounts broken out more widely used by companies since category of short-term borrowings at the into specified categories of short-term 1994. In addition, the requirements end of the reporting period and the borrowings.35 proposed today contain a number of weighted average interest rate on those While former Rule 12–10 of features designed to address some of the borrowings; Regulation S–X was similar to the short- practical difficulties cited by prior • The average amount in each term borrowing requirements proposed commentators in connection with specified category of short-term in this release, we believe there are former Rule 12–10. More importantly, borrowings for the reporting period and important differences. In proposing to however, recent events suggest that the weighted average interest rate on eliminate the schedule, the Commission more detailed information about average those borrowings; noted that ‘‘the disclosures concerning short-term borrowings would facilitate a • For registrants meeting the the registrant’s liquidity and capital better understanding of whether a proposed definition of ‘‘financial registrant’s period-end figures are company,’’ the maximum daily amount purchased and securities sold under agreements to indicative of levels during the period. In of each specified category of short-term repurchase, (2) commercial paper, and (3) other light of these changes, we believe the borrowings during the reporting period; short-term borrowings.’’ balance of factors may have shifted, and 32 As described below in this release, in codifying • the Guide 3 short-term borrowings provisions in such that the utility of the disclosure For all other registrants, the Regulation S–K, we are proposing several changes justifies the burden of preparing it. maximum month-end amount of each from the existing provisions of Item VII of Guide 3. specified category short-term The changes include: Expanding the categories of 2. Proposed New Short-Term borrowings during the reporting period. short-term borrowings that require disclosure; Borrowings Disclosure in MD&A expanding the applicability to all registrants that We believe that the largest amount of are required to provide MD&A disclosure; requiring Summary of Proposed Requirements short-term borrowings outstanding financial companies to provide disclosure of the We are proposing to amend our during the period is an important data daily maximum amount during the period, as well point for assessing the intra-period as averages on a daily average basis; requiring a MD&A requirements to include a new discussion and analysis of short-term borrowings section that would provide tabular fluctuation of short-term borrowings arrangements; and requiring quarterly reporting of information about a company’s short- and, thus, of liquidity risk. Given the short-term borrowings. See ‘‘Proposed New Short- term borrowings, as well as a discussion critical nature of liquidity and funding Term Borrowings Disclosure in MD&A.’’ matters to a financial company’s 33 See Financial Statements of Significant Foreign and analysis of those short-term Equity Investees and Acquired Foreign Businesses business activities, we believe it may be of Domestic Issuers and Financial Schedules, 36 See Financial Statements of Significant Foreign important for an investor to know the Release No. 33–7118 (Dec. 13, 1994) [59 FR 65632]. Equity Investees and Acquired Foreign Businesses maximum amount that a financial 34 17 CFR 210.12–10. of Domestic Issuers and Financial Schedules, company has borrowed in any given 35 The categories in former Rule 12–10 were Release No. 33–7055 (Apr. 19, 1994) [59 FR 21814], period as an indication of its short-term amounts payable to: banks for borrowings; factors at 21818. or other financial institutions for borrowings; and 37 See Release No. 33–7118, supra note 30, at financing needs. We are proposing that holders of commercial paper. 65635. financial companies be required to

VerDate Mar<15>2010 15:25 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP3.SGM 28SEP3 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 59870 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

disclose the maximum daily amount of Registrants that are bank holding the objective of the disclosure short-term borrowings outstanding. Both companies and other companies that requirement.44 Guide 3 and former Rule 12–10 called follow Guide 3 prepare their financial The proposed requirements do not for disclosure of the maximum month- statements in accordance with Article 9 include a quantitative threshold for end amounts, which is the standard we of Regulation S–X and present separate purposes of disaggregating amounts into are proposing to require for registrants line items for categories of short-term categories of short-term borrowings. For that are not ‘‘financial companies.’’ As borrowings on the face of their balance bank holding companies, this would be explained below, we are proposing sheets under Rule 9–03 of Regulation S– a change from existing Guide 3 monthly, rather than daily, maximum X. Registrants that are commercial or instructions, which allow categories to amounts for non-financial companies in industrial companies prepare their be aggregated where they do not exceed view of the costs that non-financial financial statements in accordance with 30% of the company’s stockholders’ companies may encounter in recording Article 5 of Regulation S–X and present equity at the end of the period.45 On the daily amounts and the information separate categories of current liabilities one hand, including such a threshold needs of investors. on the face of their balance sheets under could ease the compliance burden for a Rule 5–02 of Regulation S–X.42 company where the distinction among Definition of Short-Term Borrowings categories of short-term borrowings is Under the proposed rule, ‘‘short-term Categories and Disaggregation not material. On the other hand, borrowings’’ would be defined by Rather than creating different including such a quantitative threshold reference to the various categories of disclosure categories for registrants could diminish the comparability of arrangements that comprise the short- based solely on existing financial information across companies and, more term obligations reflected in a reporting rules applicable to certain fundamentally, could defeat the registrant’s financial statements, and all types of entities, the proposed objective of specifically highlighting the registrants would be required to present requirement draws on the categories types of short-term borrowing information for each category of short- from both Rule 9–03 and Rule 5–02 so arrangements that expose registrants to term borrowings.38 Specifically, as that a registrant must present each of the liquidity risks. Accordingly, the proposed, ‘‘short-term borrowings’’ categories that is relevant to the types of allocation of amounts into the various would mean amounts payable for short- short-term financing activities it categories is intended to achieve this term obligations that are: conducts, even if that category is not purpose so that investors can assess the • Federal funds purchased and required to be reported as a separate line proportionate exposure to the funding securities sold under agreements to item on its balance sheet under risk and market risk inherent in the repurchase; Regulation S–X.43 As a result, for borrowing arrangements. • Commercial paper; example, registrants currently subject to In circumstances where aggregate • Borrowings from banks; amounts within a category of short-term • Guide 3 would need to provide Borrowings from factors or other disclosure for the same categories as all borrowings are subject to a wide range financial institutions; and of interest rates and exchange rates, we • other registrants. We believe this Any other short-term borrowings approach will result in more meaningful note that disclosure of those aggregate reflected on the registrant’s balance amounts may not be comparable or 39 disclosure, since it will elicit more sheet. specific information regarding the meaningful. For example, a company These categories are derived from the borrowing methods actually used by the with operations outside of the United categories of short-term borrowings registrant. Foreign private issuers that States may have, for a variety of reasons specified in Guide 3 and Rule 9–03 of do not prepare financial statements (such as the need to finance its 40 Regulation S–X, as well as certain under U.S. GAAP would be permitted to subsidiaries in local currency or as a hedge against an asset denominated in categories of current liabilities set forth provide disclosure of categories that 41 that currency), foreign currency- in Rule 5–02 of Regulation S–X. correspond to the classifications used denominated borrowings that have a for such types of short-term borrowings 38 significantly higher interest rate than Consistent with the approach taken in Guide 3 under the comprehensive set of and in former Rule 12–10 of Regulation S–X, we the rate on its dollar-denominated accounting principles that the company propose to define ‘‘short-term borrowings’’ by borrowings. Under those circumstances, reference to the amounts payable for various uses to prepare its primary financial combining the dollar-denominated categories of short-term obligations that are statements, so long as the disclosure is borrowings with the foreign currency- typically stated separately on the balance sheet in provided at a level of detail that satisfies accordance with Regulation S–X. Under U.S. denominated borrowings could distort GAAP, short-term obligations are those that are the presentation of the interest rates for scheduled to mature within one year after the date promoters and employees (other than related the company, causing the combined of an entity’s balance sheet or, for those entities that parties). Consistent with the approach taken in use the operating cycle concept of working capital, former Rule 12–10 of Regulation S–X and in weighted average interest rate on the within an entity’s operating cycle that is longer than existing Guide 3 provisions, we are proposing to one year. See FASB ASC 210–10–20. As such, the define short-term borrowings more narrowly than 44 See proposed Instruction 1 to Item 5.H of Form proposed definition of short-term borrowings is ‘‘current liabilities’’ or ‘‘short-term obligations.’’ 20–F. This approach is consistent with the existing intended to be a subset of short-term obligations 42 Registrants that are insurance companies Instruction 5 to Item 5 of Form 20–F for issuers that under U.S. GAAP. follow Article 7 of Regulation S–X, which also file financial statements that comply with 39 This last category is derived from the balance incorporates certain standards of Article 5. For International Financial Reporting Standards sheet line item in Rule 9–03.13(3) of Regulation S– example, under Rule 7–03.16(b), insurance (‘‘IFRS’’) as issued by the International Accounting X [17 CFR 210.9–03.13(3)] for ‘‘other short-term companies must include disclosure required by Standards Board (‘‘IASB’’). It is also consistent with borrowings.’’ Amounts that a registrant includes on Rule 5–02.19(b), if the aggregate short-term the approach taken for tabular disclosure of its balance sheet under a line item for ‘‘other short- borrowings from banks, factors and other financial contractual obligations in Form 20–F for filers that term borrowings’’ that do not fall into one of the institutions and commercial paper issued exceeds do not use U.S. GAAP. other proposed categories would be disclosed under five percent of total liabilities. See 17 CFR 210.5– 45 See Instruction to Item VII of Guide 3. If the this category. 02.19(b) and 17 CFR 210.7–03.16(b). proposals are adopted, we expect to authorize our 40 17 CFR 210.9–03. 43 In such circumstances, a registrant should staff to eliminate Item VII of Guide 3 in its entirety. 41 Rule 5–02.19(a) of Regulation S–X [17 CFR consider whether additional information should be In that case, a registrant that provides Guide 3 210.5–02.19(a)] also requires separate disclosure in provided to identify the financial statement line information would need to follow the proposed the balance sheet of amounts payable to trade items where the period-end short-term borrowings Item 303(a)(6) for its short-term borrowings creditors, related parties, and underwriters, amounts are reported. disclosure in MD&A.

VerDate Mar<15>2010 15:25 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP3.SGM 28SEP3 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59871

borrowings to be much higher than the lending, deposit-taking, insurance provided in the rule as guidance to company would incur to borrow in U.S. underwriting or providing investment registrants, the proposed definition dollars alone. This would be advice, or is a broker or dealer as itself is intentionally flexible, so that particularly true if the borrowings are defined in Section 3 of the Exchange disclosure of maximum daily amount denominated in the currency of an Act,47 and includes, without limitation, outstanding and the average amount economy that has experienced high an entity that is, or is the holding outstanding during the reporting period rates of inflation. To address this issue, company of, a bank, a savings computed on a daily average basis the proposal would include a association, an insurance company, a would be required to be provided by requirement to further disaggregate broker, a dealer, a business development registrants that are engaged to a amounts by currency or interest rate to company,48 an investment adviser, a significant extent in the business of the extent necessary to promote futures commission merchant, a lending, deposit-taking, insurance understanding or to prevent aggregate commodity trading advisor, a underwriting, providing investment amounts from being misleading. commodity pool operator, or a mortgage advice, or are brokers or dealers or any Additional footnote disclosure real estate investment trust.49 Although of the other enumerated types of describing the method for this non-exclusive list 50 would be entities, regardless of their nominal disaggregation is proposed to be industry affiliation, organizational required where necessary to an borrowings attributable to any non-financial structure or primary regulator. understanding of the data, stating, for operations separately using the reporting rules for Some registrants that are engaged in non-financial companies. both financial and non-financial example, the timing and exchange rates 47 15 U.S.C. 78c. See also proposed Item used for currency translations and any 303(a)(6)(iv) of Regulation S–K and Item 5.H.4 of businesses may meet the definition of other pertinent data relating to the Form 20–F. ‘‘financial company,’’ such as calculation of the amounts provided. 48 Business development companies are a manufacturing companies that have a category of closed-end investment companies that subsidiary that provides financing to its are not registered under the Investment Company Requirements for ‘‘Financial customers to purchase its products. For Companies’’ and Other Companies Act of 1940, but are subject to certain provisions of that Act. See Section 2(a)(48) and Sections 54–65 those registrants, the costs involved in As noted above, the proposed rule of the Investment Company Act of 1940 [15 U.S.C. providing averages computed on a daily would distinguish between registrants 80a–2(a)(48) and 80a–53–64]. average basis and maximum daily 49 A mortgage real estate investment trust, or that engage in financial activities as mortgage REIT, is a type of real estate investment amounts of short-term borrowings may their business and all other registrants trust that invests in mortgages and interests in not be justified by the benefit to for purposes of calculating and mortgages. Mortgage REITs typically rely on the investors, where only a portion of their reporting maximum amounts exemption from registration under the Investment activities are financial in nature. To Company Act of 1940 provided by Section outstanding and average amounts 3(c)(5)(C) of that Act. [15 U.S.C. 80a–3(c)(5)(C)]. address this, the proposal would outstanding during the reporting period. 50 We note that the Dodd-Frank Wall Street provide an instruction that would Registrants that are ‘‘financial Reform and Consumer Protection Act of 2010 (Pub. permit a company to provide separate companies’’ would be required to L. 111–203) (‘‘Dodd-Frank Act’’) includes defined short-term borrowings disclosure for its terms for ‘‘financial institution,’’ ‘‘financial compile and report data for the company,’’ and ‘‘non-bank financial company’’ financial and non-financial business maximum daily amounts outstanding which are used in various contexts in that operations. A company relying on the (meaning the largest amount legislation. Our proposed definition of ‘‘financial instruction would be required to outstanding at the end of any day in the company’’ is informed by the terms used in the provide averages computed on a daily legislation, but is not exactly the same. Because reporting period) and the average each of those terms has a definition specific to the average basis and maximum daily amounts outstanding during the regulatory purpose of the section of the legislation amounts for the short-term borrowings reporting period computed on a daily in which it is used, none is perfectly aligned with arrangements of its financial operations, the disclosure aim of our proposed requirement. and would be permitted to follow the average basis (meaning the amount Therefore, in keeping with the over-arching outstanding at the end of each day, principles-based approach to MD&A requirements, requirements and instructions averaged over the reporting period). we are proposing a definition of ‘‘financial applicable to non-financial companies Registrants that are not ‘‘financial company’’ based on the types of business activities for purposes of the short-term ’’ that expose a company to similar liquidity risks that borrowings arrangements of its non- companies would be required to report banks face. the maximum month-end amounts The enumerated examples of entities that would financial operations. The instruction outstanding (meaning the largest be considered ‘‘financial companies’’ for purposes of would also require the company to amount outstanding at the end of the the proposed rule are similar to the entities covered provide an explanatory footnote to the last day of any month in the reporting by the definition of ‘‘financial institution’’ contained table with information to enable readers in Sec. 803 of the Dodd-Frank Act, which includes: period) and would be required to A depository institution, as defined in Section 3 of to understand how the operations were disclose the basis used for calculating the Federal Deposit Insurance Act (12 U.S.C. 1813); grouped for purposes of the disclosure. the average amounts reported. These a branch or agency of a foreign bank, as defined in Although investors could benefit from registrants would not be required to Section 1(b) of the International Banking Act of having all registrants provide data for 1978 (12 U.S.C. 3101); an organization operating maximum daily amounts and average present average outstanding amounts under Section 25 or 25A of the Federal Reserve Act computed on a daily average basis, but, (12 U.S.C. 601–604a and 611 through 631); a credit amounts computed on a daily average under the proposal, the averaging period union, as defined in Section 101 of the Federal basis, we preliminarily believe that it is used must not exceed a month. Credit Union Act (12 U.S.C. 1752); a broker or appropriate to limit these daily dealer, as defined in Section 3 of the Securities requirements to entities that are engaged For purposes of the proposed Exchange Act of 1934 (15 U.S.C. 78c); an requirement, a ‘‘financial company’’ investment company, as defined in Section 3 of the would mean a registrant that, during the Investment Company Act of 1940 (15 U.S.C. 80a– engaged in activities that are financial in nature or 3); an insurance company, as defined in Section 2 incidental to a financial activity, as described in relevant reported period, is engaged to Section 4 of the Bank Holding Company Act of 1956 46 of the Investment Company Act of 1940 (15 U.S.C. a significant extent in the business of 80a–2); an investment adviser, as defined in Section (12 U.S.C. 1843(k)). 202 of the Investment Advisers Act of 1940 (15 In addition, we expect that registrants that meet 46 We are not proposing a specific threshold or U.S.C. 80b–2); a futures commission merchant, the existing definition of ‘‘bank holding company’’ definition of ‘‘significant’’ for this purpose. As commodity trading advisor, or commodity pool in Rule 1–02 of Regulation S–X [17 CFR 210.1–02] described below, we are proposing an instruction operator, as defined in Section 1a of the Commodity would be ‘‘financial companies’’ under the proposed that allows a registrant to present the short-term Exchange Act (7 U.S.C. 1a); and any company definition.

VerDate Mar<15>2010 15:25 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP3.SGM 28SEP3 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 59872 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

in activities that are financial in nature. to its liquidity, capital resources, borrowings. We believe that disclosure Because of the nature of their business market-risk support, credit-risk support of a company’s short-term borrowings activities, we believe it may be or other benefits; 53 data, with a comprehensive discussion important for an investor to have • The reasons for the maximum of its overall approach to short-term information about the daily amounts of amount for the reporting period, financings and the role of short-term borrowings of financial companies, including any non-recurring borrowings in the company’s funding of particularly where borrowed funds are transactions or events, use of proceeds its operations and business plan, can invested in assets that contribute to or other information that provides provide investors with additional their earnings activities. We believe that context for the maximum amount; and information necessary to better evaluate most banks would be able to track daily • The reasons for any material a registrant’s current short-term short-term borrowings without differences between average short-term liquidity profile and potential future unreasonable effort or expense, and borrowings for the reporting period and trends in its liquidity and funding risks. some companies that engage in financial period-end short-term borrowings. businesses may already track this type This proposed short-term borrowings Request for Comment of information for their own risk discussion and analysis is intended to 1. Is information about short-term management purposes. highlight short-term financing activities borrowings and intra-period variations We expect that many other non-bank and to complement the other MD&A in the level of short-term borrowings companies that engage in these types of requirements relating to liquidity and useful to investors? If so, should we activities do not currently track this capital resources, but it is not intended require specific line item disclosure of information on a daily basis, so this to be repetitive of other disclosures this information in MD&A, as proposed, proposed requirement could impose relating to liquidity and capital or would existing MD&A requirements significant costs on these entities. On resources. In preparing the short-term for disclosure of liquidity and capital balance, however, we preliminarily borrowings disclosure, we anticipate resources provide sufficient disclosure believe that the importance of the that a registrant would need to consider about these issues? If a specific MD&A information in the financial company its disclosures of cash requirements requirement would be appropriate, does setting justifies the increased costs. By presented in the contractual obligations the proposed requirement capture the contrast, for companies that are not table, its disclosures of off-balance sheet type of information about short-term financial companies, we are not arrangements, as well as its other borrowings that is important to proposing to require maximum daily liquidity and capital resources investors? If not, how should we change amounts or averages calculated on a disclosures.54 For example, the the proposed requirement? For example, daily average basis because we company may have significant should we require disclosure of the preliminarily believe that the payments under operating leases or may weighted average interest rate on the information with respect to those have entered into a significant short-term borrowings, as proposed? issuers is less important to investors repurchase agreement that is accounted 2. Consistent with the approach taken than in the context of financial for as a sale that will be settled shortly in Guide 3 and in former Rule 12–10 of companies, and that the combination of after the balance sheet date and that are Regulation S–X, we propose to define our existing and proposed requirements disclosed in the contractual obligations ‘‘short-term borrowings’’ by reference to should provide sufficient information table. To be able to settle these amounts, the amounts payable for various about their use of short-term the company may plan to use existing categories of short-term obligations that borrowings. However, we request short-term financing arrangements that are typically reflected as short-term comment on this issue below. will limit its ability to borrow for other obligations on the balance sheet and Narrative Discussion of Short-Term purposes, such as making loans or stated as separate line items in Borrowings financing inventory, which in turn can accordance with Regulation S–X. Is the impact operations. In this example, the proposed definition sufficiently clear? If In order to provide context for the company should discuss these items not, what changes should be made to short-term borrowings data, we are also together and explain the implications. A the proposed definition? For example, proposing to require a narrative registrant would need to consider ways should the definition refer to ‘‘short- discussion of short-term borrowings to integrate the proposed disclosures, term obligations’’ as defined in U.S. arrangements.51 This narrative together with disclosures made under GAAP? 55 In connection with any discussion is not currently included in existing MD&A requirements, into a response, please provide information as Guide 3. The topics proposed to be clear, comprehensive description of its to the costs associated with the included would be: implementation of any changes to the • A general description of the short- liquidity profile. For example, a registrant could consider organizing its proposed definition. term borrowings arrangements included 3. Are the proposed categories of in each category (including any key discussion to address overall liquidity, and then short-term and long-term short-term borrowings appropriate? If metrics or other factors that could not, why not, and how should we reduce or impair the registrant’s ability borrowings and liquidity needs. As discussed above, we believe change the proposed requirement? For to borrow under the arrangements and investors would benefit from an example, should we apply different whether there are any collateral posting expanded discussion and analysis about categories to Guide 3 companies as arrangements) and the business purpose 52 a company’s use of short-term compared to other companies, as was of those arrangements; the case when former Rule 12–10 of • The importance to the registrant of 53 its short-term borrowings arrangements Similar to the existing requirement in Item 303(a)(4)(i)(B) of Regulation S–K, this proposed 55 See, e.g., FASB ASC 210–10–20 (‘‘Short-term requirement is intended to provide investors with obligations are those that are scheduled to mature 51 See proposed Item 303(a)(6)(ii) of Regulation an understanding of the importance to the registrant within one year after the date of an entity’s balance S–K. of its short-term borrowings as a financial matter sheet or, for those entities that use the operating 52 A discussion of the business purpose of the and as they relate to the funding of its operations cycle concept of working capital described in arrangements might encompass topics such as the and to its risk management activities. paragraphs 210–10–45–3 and 210–10–45–7, within use of proceeds of the borrowings and the reasons 54 See Item 303(a)(1) and (a)(2) of Regulation an entity’s operating cycle that is longer than one for the particular structure of the arrangements. S–K. year.’’).

VerDate Mar<15>2010 17:42 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP3.SGM 28SEP3 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59873

Regulation S–X was in effect? Are the quantitative disclosure threshold apply costs of requiring companies to meet proposed categories appropriately to all companies? those requirements? tailored so that companies can monitor 6. As proposed, ‘‘financial companies’’ 9. Is the proposed accommodation for and provide the proposed disclosure? In would be required to provide the largest reporting that would allow financial particular, is the category for ‘‘any other daily amount of short-term borrowings. companies to present information about short-term borrowings reflected on the We understand that banks and bank their non-financial businesses on the registrant’s balance sheet’’ too broad? If holding companies track this same basis as other non-financial so, how should it be narrowed? Are information on a daily basis in companies appropriate? Would this there other categories of short-term connection with the preparation of address cause concerns for these borrowings that should be broken out? reports to banking regulators. We also companies? Is the proposed instruction For example, should amounts relating to expect that other non-bank companies to implement this accommodation repurchase arrangements be engaged in financial businesses that sufficiently clear? disaggregated into those that are would fall within the scope of the 10. Should registrants be required to collateralized by U.S. Treasury proposed requirement do not currently provide the largest amount of short-term securities and those that are track this type of information on a daily borrowings outstanding at any time collateralized by other assets? If so, basis. Is this information useful to during the reporting period (meaning please include in your discussion the investors? What are the burdens and intra-day as opposed to close of reasons such information would be costs of requiring registrants that meet business)? Would this amount be meaningful to investors and provide an the definition of ‘‘financial company’’ difficult for registrants to track? indication of the costs and burdens but are not banks to meet that 11. As proposed, registrants that are associated with providing that level of requirement? financial companies would be required detail. 7. Is the activities-based definition of to provide average amounts outstanding 4. Is disaggregation by currency or ‘‘financial company’’ sufficiently clear? computed on a daily average basis. other grouping useful to the Are the activities identified (lending, Should averages computed on a daily understanding of aggregate short-term deposit taking, insurance underwriting, average basis be required only for borrowing amounts? Would the providing investment advice, broker or certain companies (for example, bank proposed requirement for disaggregation dealer activities) as part of the definition holding companies, banks, savings provide an appropriate level of detail? Is appropriate, or are they overly-inclusive associations, broker-dealers)? If so, why it sufficiently clear? Instead, should we (or under-inclusive)? Should we provide and which companies? In this prescribe a specified method or a definition of the term ‘‘significant’’ as connection, please describe whether threshold for disaggregation? If so, used in the proposed definition? If so, financial companies that are not banks describe it. For example, should we should we provide a numerical, typically close their books on a daily require information to be presented threshold-based definition (e.g., 10% of basis and whether they have the systems separately by currency where there is a total assets)? If so, what should the to track and calculate this daily balance significant amount of borrowings that threshold be? Should it relate to assets information used to compute averages are not denominated in the company’s or should it relate to revenues and on a daily average basis. What are the reporting currency? If so, should we income? Should we specify certain burdens and costs for a registrant (that specify a threshold amount (e.g., 5, 15 types of entities in the definition, as is not a bank) to meet the proposed or 20% of borrowings) and what should proposed? Should other entities be requirement? Are some types of that threshold be? Or should the added to or excluded from the businesses, such as multi-nationals, amounts instead be disaggregated into definition? If so, please provide details. disproportionately affected by such more generalized categories, such as Are there any circumstances that would costs? If so, please explain why. Is there ‘‘domestic’’ and ‘‘foreign’’ borrowings? cause an entity to come under the an alternative requirement for such a Please provide details about the costs proposed definition that should be business that would still meet the and benefits of any alternatives to the excluded, and if so, why? disclosure objective? proposed disaggregation provision, and 8. Should all registrants that are 12. As proposed, registrants that are discuss whether requiring companies to financial companies be required to not financial companies would be follow a specific disaggregation method provide the maximum daily amount of permitted to use a different averaging would impose practical difficulties on short-term borrowings, as proposed? period, such as weekly or monthly, so companies (or particular types of Should registrants that are not financial long as the period used is not longer companies) when they are gathering and companies be required to provide the than a month. Is it appropriate to allow compiling the proposed short-term maximum daily amount of short-term this type of flexibility given the borrowings disclosure. borrowings, rather than permitting them possibility that longer averaging periods 5. We note that Guide 3 currently to provide the maximum month-end could mask fluctuations? Are certain provides a quantitative threshold for amount as is proposed? Do registrants borrowing practices more likely to be separate disclosure of short-term that are not financial companies have impacted than others, such as overdrafts borrowings by category. The proposed systems to track and calculate this used as financing? Is there an alternative short-term borrowings provision does information on a daily basis? What are requirement or instruction that could not contain a specific quantitative the burdens and costs of requiring eliminate this issue while not imposing disclosure threshold for separate companies engaged in non-financial undue costs and burdens and still disclosure of amounts in the different businesses to meet that requirement? meeting the disclosure objective? categories of short-term borrowings. Should registrants that are not financial 13. Should we require a narrative Should we establish a quantitative companies be required to disclose each discussion of short-term borrowing disclosure threshold for the separate month-end amount rather than the arrangements, as proposed? Are the categories of short-term borrowings, maximum, as proposed? Should narrative discussion topics useful to such as above a specified percentage of registrants also be required to provide investors? Are there other discussion liabilities or stockholders’ equity (e.g., 5, the minimum month-end (or daily for topics that would be useful to investors? 10, 20, 30 or 40%)? If so, how should financial companies) amount If so, what other topics should we the threshold be computed? Should this outstanding? What are the burdens and require to be discussed? Should we

VerDate Mar<15>2010 15:25 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP3.SGM 28SEP3 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 59874 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

tailor the disclosure to omit information Companies would need to include the would not be required to include a that may be unimportant to investors? If full presentation of quantitative and quarterly breakdown of short-term so, what information, and why, and qualitative information for short-term borrowings information in their annual which registrants would be affected? borrowings during the interim period, report. Because quarterly information 14. Do the proposed discussion topics rather than only disclosing material would be available in Forms 10–Q for provide enough flexibility to companies changes that have occurred since the all quarters other than the fourth to fully and clearly describe their short- previous balance sheet date. In addition, quarter, we do not believe that repeating term borrowings arrangements? registrants would be required to identify that quarterly information in the annual 15. If the proposals are adopted, we material changes from previously report would be useful to investors. expect to authorize our staff to amend reported disclosures in the discussion These interim period requirements Guide 3 to eliminate Item VII in its and analysis, so that any material would not apply to registrants that are entirety. Are there any other technical changes would be highlighted. This foreign private issuers or smaller amendments that would be appropriate, layered approach is intended to enhance reporting companies. In addition, such as the elimination of cross- transparency of short-term borrowing smaller reporting companies would be references in other Commission rules or activities during the specific quarterly permitted to disclose two fiscal years forms, if the staff removes Item VII from period, while still emphasizing material rather than three, in accordance with Guide 3? changes so that investors can more existing disclosure accommodations for 3. Reporting Periods easily understand how the exposures small entities. For a discussion of the have evolved from past reporting treatment of these types of entities, see As proposed, the requirements would periods. the discussion under ‘‘Treatment of be applicable to annual and quarterly In addition, registrants would be Foreign Private Issuers and Smaller reports and registration statements. For required to provide quarterly short-term Reporting Companies’’ in this release. annual reports, information would be borrowings information for the fourth Request for Comment presented for the three most recent fiscal quarter in their annual report. fiscal years and for the fourth quarter. In Because the disclosure is intended to 16. Are the proposed reporting addition, registrants preparing provide additional transparency about a periods appropriate? Should we require registration statements with audited registrant’s short-term borrowing annual short-term borrowings full-year financial statements would be practices, including the ability of the information in annual reports, as required to include short-term registrant to obtain financing to conduct proposed? Should annual reports borrowings disclosure for the three most its business, and the costs of that instead include a quarterly breakdown recent full fiscal year periods and financing, during the year, we believe of short-term borrowings information? interim information for any subsequent that short-term borrowings data for the Should annual reports include quarterly interim periods, consistent in each case fourth quarter would be useful to information for the fourth fiscal quarter with general MD&A requirements and investors. As this type of reporting in addition to annual information, as instructions applicable to the relevant requirement would be a departure from proposed? For example, would registration statement form our long-standing approach to the disclosure of information for the fourth requirements. For quarterly reports, presentation of fourth quarter financial fiscal quarter be necessary to highlight information would be presented for the information in MD&A contained in any efforts to reduce borrowings at year- relevant quarter, without a requirement annual reports, we specifically request end, below the levels prevailing for comparative data. For registrants that comment below on this issue, and throughout the fourth fiscal quarter? Is are not subject to Guide 3, we are particularly whether material the presentation of this information for proposing a yearly phase-in of the information as to short-term borrowing the fourth fiscal quarter, in isolation requirements for comparative annual activities prior to year-end would be lost without corresponding quarterly data until all three years are included in without separate quarterly disclosure for financial statements and MD&A for that the annual presentation. This is the fourth quarter. period, potentially misleading? If so, described under the heading As proposed, interim period what additional information should be ‘‘Transition’’ in this release. disclosures would be presented without required? Should quarterly reports be Notwithstanding this transitional comparative period data.57 We believe required to include quarterly accommodation, all registrants would be that this data is most meaningful to information, as proposed? Should permitted to provide three full years show changes from annual borrowing registration statements be required to during the transition period. amounts and any intra-period variations include annual and interim information, A principal objective of the proposed from period-end amounts. In addition, as proposed? In each case, explain the disclosure is to provide transparency because any seasonal trends in the reasons for requiring the applicable about intra-period borrowings activity, information should generally already be reporting periods and provide as a supplement to disclosure of period- disclosed under existing MD&A information as to whether investors end amounts. To achieve this purpose requirements, we preliminarily do not would find the information useful. in each reporting period, we are believe it is necessary to specifically Please also include details about proposing that disclosure in quarterly require prior period comparisons to additional costs involved. reports and interim period disclosure in identify seasonality in borrowing levels. 17. Should we require quarterly registration statements include short- Moreover, other than the presentation of disclosure at the same level of detail as term borrowings information presented short-term borrowings information for annual period disclosure, as proposed? with the same level of detail as would the fourth fiscal quarter, registrants Does the proposed presentation provide be provided for annual periods.56 information that is useful to investors? 57 Proposed Instruction 8 to Paragraph 303(b) Describe in detail the costs and benefits 56 We are proposing to revise the ‘‘Instructions to would require the registrant to include narrative of providing full (rather than material Paragraph 303(b)’’ in Item 303 of Regulation S–K to discussion that highlights any material changes changes) interim period disclosures of accomplish this change to interim period reporting from prior periods. In doing so, registrants should requirements. The proposed instructions would consider whether including comparative period the proposed short-term borrowings only apply to disclosure pursuant to Item 303(a)(6). data would make the presentation of those material information. Instead, should we require See 17 CFR 229.303(b). changes more clear. quarterly reports to include disclosure

VerDate Mar<15>2010 15:25 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP3.SGM 28SEP3 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59875

of material changes only? If so, why? information, and as such, issuers and or the safe harbor rules under Securities How would disclosure of material market participants expressed particular Act Rule 175 or Exchange Act Rule 3b- changes address the issue of concerns about the application of 6? transparency of intra-period existing safe harbors to that 22. Should Item 303(c) of Regulation borrowings? disclosure.62 In the proposing release for S–K be revised to also cover forward- 18. For annual periods, should we Item 303(c), we requested comment as looking information disclosed pursuant require, as proposed, three years of to whether the safe harbor in Item 303(c) to the proposed short-term borrowings comparative data? Or would data for the should be expanded to cover all disclosure requirement? current year, without historical forward-looking information in B. Treatment of Foreign Private Issuers comparison periods, provide investors 63 MD&A. We declined to adopt such an and Smaller Reporting Companies with adequate information? Describe in expansion. We preliminarily believe detail the costs and benefits of that the proposed short-term borrowings 1. Foreign Private Issuers (Other Than providing comparative period disclosure requirements, which MJDS Filers) disclosures in this context. primarily concern disclosure of The proposed amendments would 19. Is the proposed disclosure for the historical amounts together with apply to foreign private issuers that are current interim period sufficient, or qualitative information about the not MJDS filers.64 The existing MD&A- should we also require comparative registrant’s use of short-term equivalent disclosure requirements in period data? If so, which comparative borrowings, would not present any Form 20–F 65 currently mirror the periods would be most useful? Explain distinctive issues under the application substantive MD&A requirements for how prior period comparisons would be of the statutory safe harbor, and, U.S. companies, and we believe that our useful to investors; for example, would accordingly, we are not proposing to proposed changes to the MD&A prior period comparisons be needed to provide any specific provision or requirements for U.S. companies would identify seasonality in borrowing levels? guidance as to its application to this provide important disclosure to If so, instead of requiring comparative information. Companies would need to investors that should also be provided data, should we specifically require treat forward-looking information by foreign private issuers. Accordingly, companies to qualitatively describe disclosed pursuant to proposed Item we are proposing a new paragraph H trends or seasonality in borrowing 303(a)(6) in the same manner as other under Item 5 (Operational and Financial levels? Describe in detail the costs and MD&A disclosure for purposes of the benefits of providing comparative statutory safe harbor. We further note 64 The term ‘‘MJDS filers’’ refers to registrants that period disclosures in this context. that nothing in the proposed file reports and registration statements with the 20. Should we require year-to-date requirements would limit (or expand) Commission in accordance with the requirements of information in addition to quarterly the scope of the statutory safe harbor, the U.S.-Canadian Multijurisdictional Disclosure information for interim periods? Would System (the ‘‘MJDS’’). The definition for ‘‘foreign the safe harbor rules under Securities private issuer’’ is contained in Exchange Act Rule year-to-date information be useful to Act Rule 175 or Exchange Act Rule 3b–4(c) [17 CFR 240.3b–4(c)]. A foreign private investors? Describe in detail the costs 3b–6, or Item 303(c) of Regulation S–K. issuer is any foreign issuer other than a foreign and benefits of providing year-to-date government, except for an issuer that has more than information in this context. Request for Comment 50% of its outstanding voting securities held of record by U.S. residents and any of the following: 4. Application of Safe Harbors for 21. Is there any need for further A majority of its officers and directors are citizens Forward-Looking Statements guidance from the Commission with or residents of the United States, more than 50% respect to the application of either the of its assets are located in the United States, or its In some instances, the disclosure statutory or the rule-based safe harbors business is principally administered in the United provided in response to the proposed States. to the information called for by the 65 Form 20–F is the combined registration short-term borrowings narrative proposed short-term borrowings statement and annual report form for foreign private discussion requirements could include disclosure requirement? If so, please issuers under the Exchange Act. It also sets forth disclosure of forward-looking provide details as to the potential disclosure requirements for registration statements information.58 We are not, however, ambiguity in the application of existing filed by foreign private issuers under the Securities proposing to extend the safe harbor in Act. safe harbors. In particular, what In designing the integrated disclosure regime for Item 303(c) of Regulation S–K to include information called for by the proposed foreign private issuers the Commission endeavored disclosures of forward-looking requirements raises doubt as to the to ‘‘design a system that parallels the system for information made pursuant to proposed applicability of the statutory safe harbor domestic issuers but also takes into account the Item 303(a)(6). This safe harbor was different circumstances of foreign registrants.’’ Integrated Disclosure System for Foreign Private adopted in connection with the 62 See, e.g., Letter of Committee on Federal Issuers, Release No. 33–6360 (Nov. 20, 1981) [46 FR adoption of Items 303(a)(4) and (a)(5) Regulation of Securities of the American Bar 58511]. As such, the requirements of Item 5 of Form and explicitly applies the statutory safe Association’s Section of Business Law in Response 20–F are analogous to those in Item 303 of 59 to the OBS Proposing Release, available at http:// Regulation S–K. Although the wording is not harbors of Sections 27A of the www.sec.gov/rules/proposed/s74202.shtml 60 identical, we interpret Item 5 as requiring the same Securities Act and 21E of the (‘‘[B]ecause of the inherent predictive nature of disclosure as Item 303 of Regulation S–K. See Exchange Act to those Items in order to disclosures of contingent liabilities and Rules, Registration and Annual Report for Foreign remove possible ambiguity about commitments. * * * [W]e are concerned that the Private Issuers, Release No. 34–16371 (Nov. 29, whether the statutory safe harbors failure to include that provision would lead to a 1979) [44 FR 70132] (adopting Form 20–F and negative inference that such disclosure is not stating that the Commission would consider would be available for that covered by the safe harbor.’’). revisions when MD&A requirements in Regulation 61 information. The disclosure required In the OBS Adopting Release, the Commission S–K were adopted); Integrated Disclosure System by Items 303(a)(4) and (a)(5) consists emphasized that notwithstanding the safe harbor for Foreign Private Issuers, Release No. 33–6360 primarily of forward-looking provided in Item 303(c) of Regulation S–K, the (revising Form 20–F to add requirements consistent statutory safe harbor, by its terms, as well as the safe with the MD&A requirements in Regulation S–K); harbor rules under Securities Act Rule 175 [17 CFR International Disclosure Standards, Release No. 33– 58 See generally proposed Item 303(a)(6)(ii)(B), (C) 230.175] and Exchange Act Rule 3b–6 [17 CFR 7745 (Sept. 28, 1999)[64 FR 53900] (adopting and (D) of Regulation S–K. 240.3b–6] may be available for the forward-looking revisions to Form 20–F to conform to international 59 15 U.S.C. 77z–2. disclosure required by Items 303(a)(4) and (5) of disclosure standards endorsed by the International 60 15 U.S.C. 78u–5. Regulation S–K. Organization of Securities Commissions in 1998); 61 See OBS Adopting Release, supra note 6, at 63 See OBS Proposing Release, supra note 6, at see also OBS Adopting Release, supra note 6, at 5993. 68065–68066. 5992 n. 135.

VerDate Mar<15>2010 15:25 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP3.SGM 28SEP3 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 59876 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

Review and Prospects) in Form 20–F registration statement form. The instruction clear? If not, how can it be covering short-term borrowings. proposed amendments for U.S. issuers clarified? Because foreign private issuers using would require quarterly disclosure of 2. MJDS Filers a comprehensive set of accounting short-term borrowings in quarterly principles other than U.S. GAAP might reports on Form 10–Q.69 Foreign private The proposed amendments would not capture data and prepare their financial issuers, however, are not required to file affect MJDS filers. The disclosure statements using different categories of quarterly reports with the Commission, provided by Canadian issuers is short-term borrowings, we propose to and therefore the proposed amendments generally that which is required under include an instruction to paragraph H would not apply to Form 6–K 70 reports Canadian law, and we do not propose to that would permit a foreign private submitted by foreign private issuers.71 depart from our approach with respect issuer to base the categories of short- Thus, unless a foreign private issuer to financial disclosure provided by term borrowings used in the rule on the (other than an MJDS filer) files a MJDS filers. Accordingly, we are not classifications for such types of short- Securities Act registration statement proposing to further amend Form 40–F term borrowings under the that must include interim period at this time. comprehensive set of accounting financial statements and related MD&A- Request for Comment principles which the company uses to equivalent disclosure,72 it would not be prepare its primary financial statements, required to update its disclosure under 27. Should we amend Form 40–F to so long as the disclosure is provided in proposed Item 5.H of Form 20–F more include the new short-term borrowings a level of detail that satisfies the than annually. disclosure requirements? If so, why? objective of the Item 5.H disclosure 3. Smaller Reporting Companies requirement.66 This approach is Request for Comment consistent with the approach to 23. Should we apply the proposed Smaller reporting companies contractual obligations disclosure in amendments to foreign private issuers’ currently provide disclosure pursuant to Item 5.F, for which foreign private annual reports on Form 20–F, as Item 303, subject to the special issuers are instructed to base their proposed? Or should we exclude these accommodation provided in Item 303(d) tabular disclosure on the classifications annual reports from the scope of the that, among other things, permits the of obligations used in the generally amendments? If so, why? exclusion of tabular disclosure of accepted accounting principles under 24. Should we apply the proposed contractual obligations under Item which the company prepares its primary amendments to foreign private issuers’ 303(a)(5). The proposed short-term financial statements.67 Similarly, in registration statements, as proposed? Or borrowings disclosure requirements connection with references to FASB should these registration statements be would apply to smaller reporting pronouncements used in Item 5 of Form excluded from the scope of the companies, except that quarterly 20–F, issuers that file financial proposed rules? In particular, should we disclosures would not be required statements that comply with IFRS as not require the interim period short- unless material changes have occurred issued by the IASB are instructed to term borrowings information to be during that interim period (as is the case ‘‘provide disclosure that satisfies the included in the registration statements under existing requirements for interim objective of Item 5 disclosure of foreign private issuers? If not, why? period disclosure) and information for requirements.’’ 68 Other than this 25. Should we limit the application of the fourth fiscal quarter would not be instruction regarding the categorization the new disclosure requirements to required in annual reports. To this end, of short-term borrowings, the short-term foreign private issuers that are banks or we propose to amend Item 303(d) to borrowings disclosure requirement bank holding companies, or that are clarify that smaller reporting companies proposed for Form 20–F is substantially financial companies? If so, why? need only provide the proposed Item similar to the proposed provision 26. Is the instruction to proposed Item 303(a)(6) information on an annual basis 5.H regarding the categories of short- and, in interim periods, if any material applicable to U.S. issuers. 73 The reporting periods applicable to term borrowings appropriate? Is the changes have occurred. In addition, U.S. issuers are proposed to also apply for smaller reporting companies to foreign private issuers, except with 69 17 CFR 249.308a. See proposed Instruction 8 to providing financial information on net Item 303(b) of Regulation S–K [17 CFR 229.303(b)]. respect to quarterly reporting. For sales and revenues and on income from 70 17 CFR 249.306. A foreign private issuer must continuing operations for only two annual reports on Form 20–F, foreign furnish under cover of Form 6–K material private issuers would present three information that it: Makes public or is required to years, only two years of short-term years of annual short-term borrowings make public under its home country laws, files or borrowings information would be data, subject to the proposed transition is required to file with a stock exchange on which required, consistent with the scaled its securities are traded and which was made public MD&A disclosure requirement for accommodation applicable to all by that exchange under the rules of the stock registrants that are not bank holding exchange or distributes or is required to distribute smaller reporting companies under companies. Foreign private issuers to security holders. In instances where a foreign existing Item 303(d). preparing registration statements with private issuer is furnishing interim information on This accommodation for interim short-term borrowings under those circumstances, period disclosure is intended to balance audited full-year financial statements we would encourage the foreign private issuer to would be required to include short-term consider providing an update to its annual short- the practical impact of the disclosure borrowings disclosure for the three most term borrowings disclosure, although it would not requirement with the need to enhance recent full fiscal year periods and be required to do so. 71 This treatment is consistent with the approach 73 Proposed ‘‘Instruction 8 to Paragraph 303(b)’’ quarterly information for any we took when adopting off-balance sheet would exclude smaller reporting companies from subsequent interim periods included in arrangements and contractual obligations the requirement to provide all the information the registration statement in accordance disclosure. See OBS Adopting Release, supra note specified in paragraph (a)(6) in interim periods. As with the requirements of the relevant 6, at 5992 n. 139. proposed, Item 303(d) would state that smaller 72 The proposed amendments would apply to reporting companies are only required to provide Securities Act registration statements on Forms F– material changes to the information specified in 66 See proposed Instruction 1 to Item 5.H of Form 1 [17 CFR 239.31], F–3 [17 CFR 239.33] and F–4 [17 proposed Item 303(a)(6) in interim periods. The 20–F. CFR 239.34]. Each of these registration statements proposed revisions to Item 303(d) would not affect 67 See Instruction 2 to Item 5.F of Form 20–F. references the disclosure requirements in Form 20– the existing accommodation for disclosure of Item 68 See Instruction 5 to Item 5 of Form 20–F. F. 303(a)(5) information.

VerDate Mar<15>2010 15:25 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP3.SGM 28SEP3 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59877

disclosure of liquidity risks facing for registrants that are not smaller capital adequacy and leverage levels.77 smaller reporting companies. While reporting companies would not be For U.S. banks and thrifts, the standards liquidity risks, particularly those arising unduly burdensome? applied by the various banking agencies from short-term borrowings, are equally are substantially uniform,78 which C. Leverage Ratio Disclosure Issues important for smaller reporting means that the ratios that bank holding companies, we also believe that smaller Many observers believe that high companies are required to include in reporting companies are likely to have leverage at financial institutions, in the their financial statements filed with the fewer complex financing alternatives U.S. and globally, was a contributing Commission should be calculated using available. Accordingly, we believe that factor to the financial crisis.74 As a consistent methodology. Consistent smaller reporting companies would not result, investors and market participants with existing disclosure rules, where likely have as many significant changes are increasingly focused on leverage disclosed ratios are likely to be to the liquidity profile presented in ratio disclosures, particularly for banks materially impacted by known events periodic reports as other reporting and for non-bank financial such as short-term borrowings, companies. Thus, we do not believe that institutions.75 Similarly, we believe that contractual obligations or off-balance the burden of preparing expanded investors may benefit from additional sheet arrangements, or are not otherwise interim period reporting is justified by transparency about the capitalization indicative of the registrant’s leverage the incremental information that would and leverage profile of non-financial profile, additional disclosure would be be provided compared to that provided companies, particularly for those required in order to provide an under the existing interim updating companies that rely heavily on external understanding of the registrant’s model applicable to smaller reporting financing and credit markets to fund financial condition and prospects.79 companies. their businesses and future growth. We are considering whether to extend a leverage ratio disclosure requirement Request for Comment Under U.S. GAAP, bank holding companies are currently required to to companies that are not bank holding 28. Does the proposal strike the disclose certain capital and leverage companies. We understand that, outside proper balance between imposing ratios (calculated in accordance with the the banking industry, a variety of proportional costs and burdens on requirements of their primary banking metrics are used to evaluate a smaller reporting companies while regulator) in the financial statements company’s debt levels and capital providing adequate information to that are included in filings with the adequacy. There does not appear to be investors? Would the proposed new Commission.76 The Commission’s staff a ‘‘one-size-fits all’’ leverage ratio that is short-term borrowings disclosure be has observed that some bank holding used by companies or investors. For useful to investors in smaller reporting companies also include disclosure of example, we understand that financial companies? Are there any features of the these ratios in their MD&A presented in analysts, credit analysts and other proposed requirements that would annual and quarterly reports. The sophisticated users of financial impose unique difficulties or significant financial statement disclosure by bank statements tend to apply their own costs for smaller reporting companies? If holding companies of their capital and models and calculate their own ratios so, how should we change the leverage ratios provides to investors for use in their analyses of a registrant’s requirements to reduce those difficulties some of the same information that financial health, using their own 80 or costs while still achieving the banking regulators use to assess a bank’s proprietary calculation methods. We disclosure objective? also understand that there is not a 29. Should we provide the proposed consensus on how to measure and treat exemption for interim period updating 74 See, e.g., Financial Stability Board, Report of the Financial Stability Forum on Addressing Pro- ‘‘off-balance sheet’’ leverage for purposes to smaller reporting companies? If not, cyclicality in the Financial System (2009) available of calculating leverage or capital ratios. please discuss whether the expanded at http://www.financialstabilityboard.org/ We are requesting comment today as to _ level of interim period disclosure by publications/r 0904a.pdf; S. Deng, SIVs, Bank the scope of a potential disclosure smaller reporting companies would be Leverage and Subprime Mortgage Crisis, (Dec. 2009), available at http://ssrn.com/ requirement, and importantly, how such useful to investors and why. abstract=1319431. a requirement would take into account 30. Would the gathering of data and 75 See, e.g., K. D’Hulster, The Leverage Ratio, the differences among metrics and preparation of expanded interim period WORLD BANK PUB. POL’Y J. (2009); J. Gabilondo, industries while still providing disclosure be burdensome to smaller Financial Moral Panic! Sarbanes-Oxley, Financier comparability. reporting companies? Could the Folk Devils, and Off-Balance Sheet Arrangements, 36 SETON HALL L. REV. 781 (2006) (proposing that Request for Comment proposed requirement be structured a a financial transparency ratio would reduce the different way for smaller reporting public information gap arising from off-balance 32. Should all types of registrants be entities so as to enable interim period sheet arrangements); P. M. Hildebrand, Vice- required to provide leverage ratio reporting without imposing a significant Chairman of the Governing Board of the Swiss National Bank, Is Basel II Enough? The Benefits of disclosure and discussion? Are there cost? If so, please provide details of a Leverage Ratio, London School of Economics differences among industries or types of such an alternative. Financial Markets Group Lecture, Dec. 15, 2008, businesses that would need to be 31. Are the nature of the short-term available at http://www.bis.org/review/ addressed in such a requirement so that borrowings and the related risks r081216d.pdf; Standard & Poor’s, The Basel III Leverage Ratio is a Raw Measure but Could different for smaller reporting Supplement Risk Based Capital Measures, April 15, 77 See Regulation Y, Appendices A (Risk-Based companies such that additional or 2010, available at http://www.bis.org/publ/bcbs165/ Capital), B (Leverage Measure) and D (Tier I alternate disclosure would be splr.pdf. Leverage Measure) [12 CFR 225]. 78 appropriate? In particular, would the 76 See FASB ASC 942–505–50, Regulatory Capital See The Federal Reserve Board et al., Joint Disclosures. Specifically, bank holding companies Report: Differences in Capital and Accounting proposed annual requirement for must present their required and actual ratios and Standards among the Federal Banking and Thrift disclosing short-term borrowings amounts of Tier 1 leverage, Tier 1 risk based capital, Agencies (Feb. 5, 2003) [68 FR 5976]. information cause a smaller reporting and total risk based capital, (for savings 79 See, e.g., Item 303(a)(1) of Regulation S–K, and company to collect the same data it institutions) tangible capital, and (for certain banks Instructions 1, 2 and 3 to Paragraph 303(a). and bank holding companies) Tier 3 capital for 80 See, e.g., P. Kraft, Rating Agency Adjustment to would need to collect for interim market risk. Under U.S. GAAP, bank holding GAAP Financial Statements and Their Effect on reporting, such that the expanded level companies are required to include this information Ratings and Bond Yields (Nov. 1, 2009) at http:// of interim period disclosure proposed in the footnotes to their financial statements. ssrn.com/abstract=1266381.

VerDate Mar<15>2010 15:25 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP3.SGM 28SEP3 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 59878 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

it is meaningful to investors? If so, how interpretive release, the Commission of Form 8–K to conform to the should ‘‘leverage ratio’’ be defined in and its staff intend to embark on a definition of short-term borrowings used this context? Is comparability across longer term rulemaking and updating in proposed Item 303(a)(6). Specifically, companies and industries important, or initiative to revise comprehensively the proposed amendment would revise is the disclosure more meaningful if it specific references to specific standards paragraph (4) of the definition of ‘‘direct is presented in the context of the under U.S. GAAP in the Commission’s financial obligation’’ contained in Item particular registrant’s business? rules and staff guidance. Although we 2.03(c) of Form 8–K.83 33. Rather than extending the leverage plan to make those comprehensive The current definition of ‘‘direct ratio disclosure requirement to include changes at a later date, we believe it is financial obligation’’ was adopted as all registrants, should we extend it only appropriate, at the same time that we part of the 2004 adoption of Items 2.03 to other financial institutions or propose to make other amendments to and 2.04 of Form 8–K, in connection financial services companies? If so, how Item 303 of Regulation S–K and Item 5 with updates to Form 8–K to require should the scope of included companies of Form 20–F, to propose technical real-time disclosure of material be defined? Would the proposed amendments to these provisions to information regarding changes in a definition of ‘‘financial company’’ used reflect the FASB Codification. These company’s financial condition or in proposed Item 303(a)(6) work for this proposed technical amendments operations as mandated by Section 409 purpose? How should ‘‘leverage ratio’’ be include: of the Sarbanes-Oxley Act of 2002.84 defined in this context? Is there a • Updating the U.S. GAAP references Items 2.03 and 2.04 of Form 8–K are different metric that would be more in the definition of ‘‘off-balance sheet intended to provide real-time disclosure useful to investors? Should the ratio arrangement’’ in Item 303(a)(4)(ii) of when a company becomes obligated include ‘‘off-balance sheet’’ leverage or Regulation S–K and Item 5.E.2 of Form under a direct financial obligation or off-balance sheet equity adjustments? If 20–F; off-balance sheet arrangement that is so, describe how such a ratio would be • Updating U.S. GAAP references in material to the company, and upon the calculated. What are the costs and the existing definitions of ‘‘Long-Term triggering of an increase or acceleration benefits of defining a leverage ratio that Debt Obligation,’’ ‘‘Capital Lease of any of those types of transactions would be applicable to all registrants? Obligation’’ and ‘‘Operating Lease where the impact would be material to Where relevant, discuss the usefulness Obligation’’ in Item 303(a)(5)(ii) of the company. This real-time disclosure of a standardized ratio requirement Regulation S–K; 82 and was intended to supplement and align given that many users of financial • Updating U.S. GAAP references in with the requirements for annual and statements make their own calculations. instructions 8 and 9 of the Instructions quarterly disclosure of off-balance sheet 34. Should bank holding companies to Paragraph 303(a) of Regulation S–K. arrangements and contractual be required to include the same level of As part of our continuing initiative to obligations under Items 303(a)(4) and disclosure of leverage and capital ratios update the references in the (a)(5) of Regulation S–K. for quarterly financial statements as Commission’s rules and staff guidance, Acknowledging the importance of short- they do for annual financial statements, we believe that these proposed technical term financing disclosure to an rather than quarterly reporting of amendments would assist registrants in understanding of a company’s financial material changes? Should additional applying the relevant definitions and condition and risk profile, we included disclosures be required to accompany instructions, without needing to spend certain short-term debt obligations in existing ratio disclosure that would time and resources to identify the the definition of ‘‘direct financial make it more meaningful? corresponding FASB provision as obligations,’’ along with the long-term D. Technical Amendments Reflecting contemplated by the interpretive debt, leases and purchase obligations identified by reference to Item 303(a)(5) FASB Codification guidance. of Regulation S–K. On June 30, 2009, the FASB issued Request for Comment We believe it is appropriate to align FASB Statement of Financial 35. Are there any additional revisions the existing reporting requirements for Accounting Standards No. 168, The to the provisions of Regulation S–K or short-term debt obligations under Items FASB Accounting Standards Form 20–F affected by the proposal that 2.03 and 2.04 of Form 8–K with the new Codification and the Hierarchy of would be necessary or appropriate to proposed definition of short-term Generally Accepted Accounting reflect the release by the FASB of its borrowings in Item 303(a)(6), in order to Principles—a replacement of FASB FASB codification? continue to provide consistency of Statement No. 162, to establish the disclosure. Accordingly, we are FASB Codification as the source of E. Conforming Amendments to authoritative non-Commission Definition of ‘‘Direct Financial 83 Item 2.03(c) defines a ‘‘direct financial accounting principles recognized by the Obligation’’ in Form 8–K obligation’’ as any of the following: (1) a long-term debt obligation, as defined in Item 303(a)(5)(ii)(A) FASB to be applied by nongovernmental We are proposing revisions to the of Regulation S–K [17 CFR 229.303(a)(5)(ii)(A)]; (2) entities in the preparation of financial definition of ‘‘direct financial a capital lease obligation, as defined in Item statements in conformity with U.S. obligation’’ used in Items 2.03 and 2.04 303(a)(5)(ii)(B) of Regulation S–K [17 CFR GAAP. In August 2009, we issued 229.303(a)(5)(ii)(B)];(3) an operating lease obligation, as defined in Item 303(a)(5)(ii)(C) of guidance regarding the interpretation of and staff guidance to specific standards under U.S. Regulation S–K [17 CFR 229.303(a)(5)(ii)(C)]; or (4) references in the Commission’s rules GAAP should be understood to mean the a short-term debt obligation that arises other than and staff guidance to specific standards corresponding reference in the FASB Codification). in the ordinary course of business. The item defines under U.S. GAAP in light of the FASB 82 The instructions to Item 5.F (Tabular ‘‘short-term debt obligation’’ as a payment obligation 81 Disclosure of Contractual Obligations) of Form 20– under a borrowing arrangement that is scheduled to Codification. As noted in that F direct registrants to provide disclosure of mature within one year, or, for those companies contractual obligations (other than purchase that use the operating cycle concept of working 81 See Commission Guidance Regarding the obligations, for which a definition is provided) capital, within a company’s operating cycle that is Financial Accounting Standards Board’s based on the classifications used in the generally longer than one year. Accounting Standards Codification, Release No. 33– accepted accounting principles under which the 84 Public Law 107–204, 116 Stat. 745 (2002). See 9062A (Aug. 19, 2009)[74 FR 42772] (stating that, registrant prepares its primary financial statements. Additional Form 8–K Disclosure Requirements and concurrent with the effective date of the FASB Accordingly, no update for FASB codification is Acceleration of Filing Date, Release No. 33–8400 Codification, references in the Commission’s rules necessary for Item 5.F of Form 20–F. (Mar. 16, 2004) [69 FR 15594].

VerDate Mar<15>2010 15:25 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP3.SGM 28SEP3 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59879

proposing to amend clause (4) of the direct financial obligation is Should we extend it to cover bank definition of direct financial obligation unnecessary? Should the carve-out for holding companies? If so, why? to refer to ‘‘a short-term borrowing, as obligations that arise in the ordinary 40. Are any other transition defined in Item 303(a)(6)(iii) of course of business be retained, as accommodations necessary for any Regulation S–K (17 CFR proposed? Describe the costs and aspects of the proposed requirements? 229.303(a)(6)(iii) that arises other than burdens for companies if the carve-out Would any of the proposed in the ordinary course of business.’’ 85 In were eliminated, particularly the burden requirements present any particular doing so, however, we propose to retain on management to make an assessment difficulty or expense that should be the existing carve-out in the definition of materiality of each short-term addressed by a transition of direct financial obligation for borrowing transaction within the filing accommodation? If so, please explain obligations that arise in the ordinary timeframe. Is current reporting of what would be needed and why. For course of business, in order to maintain routine short-term borrowing example, should we provide a transition the focus of Items 2.03 and 2.04 on real- transactions that are material to the period to allow smaller reporting time disclosure of individual registrant sufficient? Would the new companies and/or non-bank companies transactions that are not routine or reporting requirements regarding short- time to set up systems to gather the data ‘‘ordinary course’’ financing term borrowing practices and average for the proposed disclosure? If so, what transactions. If we were to eliminate the borrowings sufficiently improve should that period be? ordinary course of business carve-out in reporting on this topic, so that Form 8– the definition, we do not believe that K reporting of ordinary course short- III. General Request for Comment the level of material information term borrowings would be unnecessary? We request and encourage any provided would justify the burden on Explain why or why not. interested person to submit comments registrants to prepare, and the burden F. Transition on any aspect of our proposals, other on investors to review and understand, matters that might have an impact on potentially voluminous disclosure about In connection with the proposed the amendments, and any suggestions routine transactions. In addition, we short-term borrowings disclosure, we for additional changes. With respect to believe that the proposed short-term are proposing a transition any comments, we note that they are of borrowings disclosures in MD&A would accommodation for registrants that are greatest assistance to our rulemaking provide investors with timely not bank holding companies or subject initiative if accompanied by supporting information about fluctuations in short- to Guide 3 that would, for purposes of data and analysis of the issues term borrowings levels and about short- the annual reporting requirement, addressed in those comments and by term borrowings practices, such that permit those companies to phase in alternatives to our proposals where current reporting on Form 8–K of compliance with the comparable annual appropriate. particular instances of significant period disclosure under proposed Item fluctuations that arise due to ordinary 303(a)(6). In the initial year of the IV. Paperwork Reduction Act course transactions would not transition period, these companies A. Background necessarily provide additional insight to would be required to include short-term investors. Moreover, a registrant that borrowings information for the most Certain provisions of the proposed ‘‘ experiences a material increase in short- recent fiscal year and permitted to omit amendments contain collection of ’’ term borrowings during a reporting information for the two preceding fiscal information requirements within the years. In the second year of the meaning of the Paperwork Reduction period that is not consistent with past 87 practices would likely need to consider transition period, these companies Act of 1995 (PRA). We are submitting carefully whether the underlying would be required to include the two the proposed amendments to the Office most recent fiscal years, and permitted of Management and Budget (OMB) for transactions causing the fluctuations fall 88 within the meaning of ‘‘ordinary course to omit the third preceding fiscal year. review in accordance with the PRA. of business’’ for purposes of Items 2.03 In the third year of the transition period, The titles for the collection of and 2.04. and thereafter, these companies would information are: be required to include disclosure for the (A) ‘‘Regulation S–K’’ (OMB Control Request for Comment each of the three most recent fiscal years No. 3235–0071); 89 36. Instead of amending the definition as prescribed in proposed Item (B) ‘‘Form 10–K’’ (OMB Control No. of ‘‘direct financial obligation’’ to refer to 303(a)(6)(v). This transition 3235–0063); proposed Item 303(a)(6), should the accommodation would not apply to (C) ‘‘Form 10–Q’’ (OMB Control No. category of short-term financings bank holding companies or other 3235–0070); included in the definition of ‘‘direct companies subject to Guide 3, since (D) ‘‘Form 8–K’’ (OMB Control No. financial obligation’’ for purposes of those companies already provide this 3235–0060); Items 2.03 and 2.04 of Form 8–K differ disclosure for the three most recent (E) ‘‘Form 20–F’’ (OMB Control No. from the standard used in proposed fiscal years (or two fiscal years for 3235–0288); Item 303(a)(6)? Describe how the certain smaller bank holding (F) ‘‘Form 10’’ (OMB Control No. standards should differ and explain companies).86 3235–0064); why. For example, should we retain the Request for Comment 87 existing reference to ‘‘short-term debt 44 U.S.C. 3501 et seq. 88 obligation’’ instead? 38. Is the proposed transition 44 U.S.C. 3507(d) and 5 CFR 1320.11. accommodation appropriate? Should we 89 The paperwork burden from Regulation S–K 37. Is the proposed definition of short- and the Industry Guides is imposed through the term borrowings sufficiently tailored so require all companies to present all forms that are subject to the disclosures in as to exclude borrowing obligations that required periods at the outset? Regulation S–K and the Industry Guides and is arise in the ordinary course of business, 39. Would the proposed transition reflected in the analysis of those forms. To avoid accommodation be useful for a Paperwork Reduction Act inventory reflecting so that the carve-out in the definition of duplicative burdens, for administrative registrants? Is it sufficiently clear? convenience, we estimate the burdens imposed by 85 See proposed revisions to Item 2.03(c)(4) of each of Regulation S–K and the Industry Guides to Form 8–K. 86 See General Instruction 3 of Guide 3. be a total of one hour.

VerDate Mar<15>2010 15:25 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP3.SGM 28SEP3 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 59880 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

(G) ‘‘Form S–1’’ (OMB Control No. Form 8–K would not increase existing professionals.91 These estimates include 3235–0065); disclosure burdens for filings of Form the time and the cost of implementing (H) ‘‘Form F–1’’ (OMB Control No. 8–K. Although we propose to amend the data gathering systems and disclosure 3235–0258); existing definition to conform to the controls and procedures, the time and (I) ‘‘Form S–4’’ (OMB Control No. terminology used in the proposed cost of in-house preparers, review by 3235–0324); MD&A requirements, we propose to executive officers, in-house counsel, (J) ‘‘Form F–4’’ (OMB Control No. retain the existing carve-out for ordinary outside counsel, in-house accounting 3235–0325); course obligations. Thus, we assume staff, independent auditors and (K) ‘‘Proxy Statements—Regulation that the proposed change in the members of the audit committee, and 14A (Commission Rules 14a–1 through definition would not substantially the time and cost of filing documents 14a–15) and Schedule 14A’’ (OMB change the existing scope of the and retaining records. Control No. 3235–0059); Our methodologies for deriving the (L) ‘‘Information Statements— disclosure requirement, and, therefore, the proposed amendments would not burden hour and cost estimates Regulation 14C (Commission Rules 14c– presented in the tables below represent increase the number of Form 8–K filings 1 through 14c–7) and Schedule 14C’’ the average burdens for all registrants nor add incremental costs and burdens (OMB Control No. 3235–0057); and who are required to provide the to the existing disclosure burden under (M) ‘‘Form N–2’’ (OMB Control No. disclosure, both large and small. As 3235–0026). Form 8–K. We solicit comment on discussed elsewhere in this release, the These regulations, schedules and whether our assumption is correct, and time required to prepare the proposed forms were adopted under the Securities if not, how to estimate the additional disclosures could vary significantly Act and the Exchange Act, and in the number of Forms 8–K that would be depending on, among other factors, the case of Form N–2, the Investment filed pursuant to the proposed nature of the registrant’s business, its Company Act of 1940.90 They set forth amendments to the definition of ‘‘direct capital structure, its internal controls the disclosure requirements for periodic financial obligation.’’ We note that, and disclosure controls systems, its risk and current reports, registration based on the number of filings made management systems and other statements, and proxy and information under Items 2.03 and 2.04 of Form 8– applicable regulatory requirements. In statements filed by companies to help K in 2009, only approximately 4% of all addition, the estimates do not investors make informed investment Form 8–K filings would be made in distinguish between registrants that are and voting decisions. The hours and connection with those Items. bank holding companies and other costs associated with preparing, filing Compliance with the proposed registrants. Although bank holding and sending each form or schedule amendments would be mandatory. companies and other companies that constitute reporting and cost burdens Responses to the information collections currently provide Guide 3 disclosure imposed by each collection of would not be kept confidential, and would already collect and disclose on information. An agency may not there would be no mandatory retention an annual basis some of the information conduct or sponsor, and a person is not period for the information disclosed. covered by the new requirements, the required to respond to, a collection of new requirements are not identical to information unless it displays a B. Burden and Cost Estimates Related to the provisions of Guide 3. Accordingly, currently valid OMB control number. the Proposed Amendments for purposes of these estimates, we We anticipate that the proposed assume that bank holding companies amendments to Item 303 of Regulation As discussed below, we have would have the same burden as other S–K and to Item 5 of Form 20–F would estimated the average number of hours registrants, although they might not increase existing disclosure burdens for a company would spend preparing and actually incur additional expenses for annual reports on Form 10–K and Form reviewing the proposed disclosure those portions of the new requirements 20–F, quarterly reports on Form 10–Q, requirements and the average hourly that are the same as the existing current reports on Form 8–K, proxy and rate for outside professionals. In provisions of Guide 3. information statements, and registration deriving our estimates, we recognize Because our estimates assume that statements on Forms 10, S–1, F–1, S–4, that some companies would experience 100% of public companies engage in F–4 and N–2 by requiring new costs in excess of those averages in the short-term borrowings from time to disclosure and discussion of short-term first year of compliance with the time, we estimate that the same borrowings to be provided on an annual proposed amendments, and some percentage of companies would be and interim basis. companies may experience less than the impacted by the proposed disclosure At the same time, the proposed average costs. The estimates of reporting requirements for short-term technical amendments to Item 303 of and cost burdens provided in this PRA borrowings.92 Therefore, for those Regulation S–K and Item 5.E of Form analysis address the time, effort and companies that do not engage in short- 20–F that update references to U.S. financial resources necessary to provide term borrowing activities during a GAAP to reflect the FASB Codification the proposed collections of information reporting period, the incremental would not increase existing disclosure and are not intended to represent the burdens and costs may be lower than burdens for annual reports on Form 10– full economic cost of complying with our estimate. However, because these K and Form 20–F, quarterly reports on the proposal. Form 10–Q, current reports on Form 8– 91 We calculated an annual average over a three- K, proxy and information statements, For purposes of the PRA, we estimate year period because OMB approval of PRA and registration statements on Forms 10, that over a three year period, the average submissions covers a three-year period. For annual incremental paperwork burden administrative convenience, the presentation of S–1, F–1, S–4, F–4 and N–2. totals related to the paperwork burden hours have We also estimate that the amendments for all companies to prepare the been rounded to the nearest whole number. The to the definition of ‘‘direct financial disclosure that would be required under estimates reflect the burden of collecting and obligation’’ for purposes of disclosure the proposals to be approximately disclosing information under the PRA. Other costs 872,458 hours of company personnel associated with the proposed amendments are requirements in Items 2.03 and 2.04 of ‘‘ ’’ time and a cost of approximately discussed in below under Cost-Benefit Analysis. 92 We further assume that the proposed 90 15 U.S.C. 80a–1 et seq. $144,061,000 for the services of outside amendments would not affect the number of filings.

VerDate Mar<15>2010 15:25 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP3.SGM 28SEP3 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59881

companies may still need to implement requirements, we added hours to those disclosure for the filing, rather than systems and controls to capture short- estimates, to reflect our best estimate of incorporating by reference from a term borrowings data that is not the additional time needed to periodic report. Second, we reduced the currently collected, we have assumed implement the new systems. number of annual responses for Form that they would share the same average The tables below illustrate the total N–2, based on our estimate of the burden and cost estimate. In addition, incremental annual compliance burden number of Form N–2 filings made by we assume that the burden hours of the of the collection of information in hours business development companies in proposed amendments would be and in cost under the proposed 2009 because only business comparable to the burden hours related amendments for annual reports, proxy development companies are required to to similar disclosure requirements, such and information statements, quarterly include MD&A disclosure in a Form N– as off-balance sheet arrangements reports and current reports on Form 8– 2.96 In addition, we recognize that disclosure requirements,93 contractual K under the Exchange Act (Table 1) and smaller reporting companies would be obligations disclosure requirements,94 for registration statements under the exempted from ‘‘full’’ interim period and requirements for the qualitative and Securities Act and Exchange Act (Table reporting in their quarterly reports quantitative disclosure of market risk,95 2). There is no change to the estimated rather than only reporting material which call for quantitative and/or burden of the collection of information changes on a quarterly basis. To reflect qualitative discussion and analysis of under Regulation S–K because the this, we reduced the number of annual financial data. burdens that Regulation S–K imposes responses of Forms 10–Q by our We derived the estimates by are reflected in our revised estimates for estimate of the number of Forms 10–Q estimating the total amount of time it the forms. The burden estimates were filed by smaller reporting companies.97 would take a company to implement calculated by multiplying the estimated systems to capture the data, implement number of annual responses by the For Exchange Act reports and proxy related disclosure controls and estimated average number of hours it and information statements, we estimate procedures, prepare and review the would take a company to prepare and that 75% of the burden of preparation disclosure pursuant to the proposed review the proposed disclosure is carried by the company internally and short-term borrowings requirements. We requirements. We recognize that some that 25% of the burden of preparation first estimated the total amount of time registrants may need to include MD&A is carried by outside professionals it would take a company to prepare and disclosure in more than one filing retained by the company at an average review the proposed disclosure for each covering the same period, accordingly cost of $400 per hour.98 For registration form, using the estimates for the actual numbers may be lower than our statements, we estimate that 25% of the comparable disclosure requirements estimates. burden of preparation is carried by the identified above as a starting point. We have based our estimated number company internally and that 75% of the Because we believe that the proposed of annual responses on the actual burden of preparation is carried by rules would impose an increased number of filings during the 2009 fiscal outside professionals retained by the burden on companies in connection year, with three exceptions. First, we company at an average cost of $400 per with the implementation of data reduced the number of annual responses hour. The portion of the burden carried gathering systems and the for Schedules 14A and 14C, based on by outside professionals is reflected as implementation of related disclosure our belief that only a minimal number a cost, while the portion of the burden controls and procedures as compared to of companies that file these schedules carried by the company is reflected in those comparable disclosure would need to prepare MD&A hours.

TABLE 1—INCREMENTAL PAPERWORK BURDEN UNDER THE PROPOSED AMENDMENTS FOR ANNUAL REPORTS, QUARTERLY REPORTS, FORMS 8–K AND PROXY AND INFORMATION STATEMENTS

Annual Incremental Total incre- 75% Company 25% Profes- Professional responses 99 burden hours/ mental burden sional costs form hours (D)=(C)*0.75 (A) (B) (C)=(A)*(B) (E)=(C)*0.25 (F)=(E)*$400

10–K ...... 13,545 40 541,800 406,350 135,450 $54,180,000 20–F ...... 942 30 28,260 7,065 21,195 8,478,000 10–Q ...... 28,841 20 574,840 431,130 143,710 57,484,000 8–K ...... 115,795 0 0 0 0 0 SCH 14A ...... 365 30 10,950 8,212.5 2,737.5 1,095,000 SCH 14C ...... 34 30 1,020 765 255 102,000

Total ...... 159,522 150 1,156,860 853,522.5 303,347.5 121,339,000

93 OBS Adopting Release, supra note 6, at 5994 Commodity Instruments and Disclosure of estimate of annual responses for Form N–2 (205 (which we estimated to be 14.5 hours for annual Qualitative and Quantitative Information About Form N–2 filings) to 29 Form N–2 filings. reports and proxy statements, 16 hours for Market Risk Inherent in Derivative Financial 97 This adjustment is based on our best estimate registration statements and 10 hours for quarterly Instruments, Other Financial Instruments and of the number of Forms 10–Q filed by smaller reports). Derivative Commodity Instruments, Release No. reporting companies in 2009. 94 OBS Adopting Release, supra note 6, at 5994 33–7386 (Jan. 31, 1997) [62 FR 6044] (which we (which we estimated to be 7.5 hours for annual estimated to be 80 hours total per registrant). 98 For Form 20–F, we estimate that 25% of the reports and proxy statements, 8.5 hours for 96 The current estimate of annual responses for burden is carried by the company and 75% by registration statements and 3 hours for quarterly Form N–2 is 205. Our best estimate of the total outside professionals because we assume that reports). number of Forms N–2 filed in 2009 by business foreign private issuers rely more heavily on outside 95 Disclosure of Accounting Policies for development companies is 29. Accordingly, for counsel for preparation of the Form. Derivative Financial Instruments and Derivative purposes of Table 2, we reduced the current

VerDate Mar<15>2010 15:25 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP3.SGM 28SEP3 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 59882 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

TABLE 2—INCREMENTAL PAPERWORK BURDEN UNDER THE PROPOSED AMENDMENTS FOR REGISTRATION STATEMENTS

Annual Incremental Total incre- 25% Company 75% Profes- Professional responses 100 burden hours/ mental burden sional costs form hours (D)=(C)*0.25 (A) (B) (C)=(A)*(B) (E)=(C)*0.75 (F)=(E)*$400

S–1 ...... 1,168 35 40,880 10,220 30,660 $12,264,000 F–1 ...... 42 35 1,470 367.5 1,102.5 441,000 S–4 ...... 619 35 21,665 5,416.25 16,248.75 6,499,500 F–4 ...... 68 35 2,380 595 1,785 714,000 10 ...... 238 35 8,330 2,082.5 6,247.5 2,499,000 N–2 ...... 29 35 1,015 253.75 761.25 304,500

Total ...... 2,164 210 75,740 18,935 56,805 22,722,000

1. Annual Reports and Proxy/ hours and an annual cost of outside currently has a total annual compliance Information Statements professionals of $607,972,400. As set burden of 1,023,273 hours and an We estimate that the preparation of forth in Table 1 above, if the proposals annual cost of outside professionals of annual reports currently results in a were adopted, we estimate that the $1,127,687,401. As set forth in Table 2 total annual compliance burden of incremental cost of outside above, if the proposals were adopted, 21,986,455 hours and an annual cost of professionals for quarterly reports we estimate that the incremental cost of outside professionals of $3,591,562,980. would be approximately $57,484,000 outside professionals for registration We estimate that the preparation of per year and the incremental company statements would be approximately proxy and information statements burden would be approximately 431,130 $22,722,000 per year and the currently result in a total annual hours per year. For purposes of our incremental company burden would be compliance burden of 735,122 hours submission to the OMB under the PRA, approximately 18,935 hours per year. and an annual cost of outside if the proposals were adopted, the total For purposes of our submission to the professionals of $86,608,526. cost of outside professionals for OMB under the PRA, if the proposals As set forth in Table 1 above, if the quarterly reports would be were adopted, the total cost of outside proposals were adopted, we estimate approximately $665,456,400 per year professionals for registration statements that the incremental cost of outside and the total annual company burden would be approximately $1,150,409,401 professionals for annual reports would for quarterly reports would be per year and the total company burden be approximately $62,658,000 per year approximately 4,990,923 hours per year. would be approximately 1,042,208 hours per year. and the incremental company burden 3. Current Reports on Form 8–K would be approximately 413,415 hours C. Request for Comment per year; and, for proxy and information Form 8–K prescribes information statements, the total incremental cost of about significant events that a registrant Pursuant to 44 U.S.C. 3506(c)(2)(B), must disclose on a current basis. We are we request comment in order to: outside professionals would be • approximately $1,197,000 per year and proposing amendments to the Evaluate whether the proposed the incremental company burden would definitions used in Items 2.03 and 2.04 collections of information are necessary be approximately 8,978 hours per year. of Form 8–K that revise the terminology for the proper performance of the For purposes of our submission to the used, but which we assume would not functions of the Commission, including OMB under the PRA, if the proposals significantly impact the scope of whether the information would have information required to be disclosed practical utility; were adopted, the total cost of outside • professionals for annual reports would under those items. Accordingly, we Evaluate the accuracy of our be approximately $3,654,220,980 per estimate that the proposed amendments estimates of the burden of the proposed year and the total company burden would not increase the number of collections of information; • Determine whether there are ways would be approximately 22,399,870 current reports filed on Form 8–K nor to enhance the quality, utility, and hours per year; and the total cost of add incremental costs and burdens to clarity of the information to be outside professionals for proxy and the existing disclosure burden under collected; information statements would be Form 8–K. If the proposed revisions to • Evaluate whether there are ways to approximately $87,805,526 per year and Items 2.03 and 2.04 of Form 8–K were minimize the burden of the collections the total company burden would be adopted, we estimate that, on average, of information on those who respond, approximately 744,100 hours per year. completing and filing a Form 8–K would require the same amount of time including through the use of automated 2. Quarterly Reports currently spent by entities completing collection techniques or other forms of the form—approximately 4 hours. information technology; and We estimate that Form 10–Q • preparation currently results in a total We estimate that Form 8–K Evaluate whether the proposed annual compliance burden of 4,559,793 preparation currently results in a total amendments would have any effects on annual compliance burden of 493,436 any other collections of information not 99 Except as described above, the number of hours and an annual cost of outside previously identified in this section. responses reflected in the table equals the actual professionals of $65,791,500. Any member of the public may direct number of forms and schedules filed with the to us any comments concerning the Commission during the 2009 fiscal year. 4. Registration Statements accuracy of these burden estimates and 100 Except as described above, the number of any suggestions for reducing the responses reflected in the table equals the actual We estimate that the preparation of number of forms filed with the Commission during registration statements that would be burdens. Persons who desire to submit the 2009 fiscal year. affected by the proposed amendments comments on the collection of

VerDate Mar<15>2010 15:25 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP3.SGM 28SEP3 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59883

information requirements should direct investment decisions and to allocate financial risk taken by the company.101 their comments to the OMB, Attention: capital on a more efficient basis. For some businesses, short-term Desk Officer for the Securities and We considered alternative regulatory borrowings may decrease or increase at Exchange Commission, Office of approaches for achieving these quarter- and year-ends due to innate Information and Regulatory Affairs, objectives, including providing further fluctuations in cash flow obligations. In Washington, DC 20503, and send a copy interpretive guidance on existing MD&A other cases, management may be of the comments to Elizabeth M. disclosure requirements and deliberately reducing short-term debt at Murphy, Secretary, Securities and encouraging companies to voluntarily period ends.102 Regardless of the cause, Exchange Commission, 100 F Street, provide quantitative and qualitative period-end financial statements could NE., Washington, DC 20549–1090, with information on short-term borrowings be less informative regarding the reference to File No. S7–22–10. where material to their financial financial risks taken by companies Requests for materials submitted to the condition. Although some public during the period. The proposed OMB by us with regard to these companies are voluntarily providing disclosures should add transparency to collections of information should be in more detailed information as to short- the ongoing risks taken by companies. writing, refer to File No. S7–22–10 and term financings in their MD&A, we have These disclosures should also help be submitted to the Securities and observed that some companies generally facilitate a more accurate understanding Exchange Commission, Office of do not provided investors with the of a company’s liquidity and capital Investor Education and Advocacy, 100 F desired level of detail in their disclosure resources. Street, NE., Washington, DC 20549– absent a specific disclosure requirement The proposed disclosures should also 0213. Because the OMB is required to or guidance, such as Guide 3. To elicit inform investors about the amount of make a decision concerning the more detailed and comparable capital deployed in earning activities by collections of information between 30 disclosures regarding a company’s a company and thus help evaluate its and 60 days after publication, your short-term borrowings activities in each overall source of profitability. Investors comments are best assured of having reporting period as part of its overall should benefit from knowing whether their full effect if the OMB receives liquidity profile, we are proposing the period-end balance sheet fully them within 30 days of publication. mandated disclosure of short-term reflects all intra-period activities and borrowings to complement existing assets. The disclosure should also V. Cost-Benefit Analysis MD&A disclosures. enable more accurate comparisons A. Introduction and Objectives of between companies that engage in a B. Benefits Proposals pattern of borrowing and those that do The proposed disclosures would not. We are proposing amendments to benefit investors by informing them Thus, the new disclosures should enhance the disclosure that companies about the fluctuations in short-term enhance transparency and competition provide about short-term borrowings in borrowings during the reporting period. especially in industries where short- order to provide more useful disclosure Information about the variability of term borrowing practices are common. to investors about liquidity and short- borrowing levels and variations in types Similar disclosure requirements exist in term financings and to enhance investor of borrowing activities over the course a more limited fashion for banks and understanding of issuers’ liquidity. The of the reporting period should enable bank holding companies under proposed amendments are intended to investors to better understand the ability applicable banking regulations.103 improve disclosure by expanding and of a registrant to obtain the financing it Therefore, bank regulators find this supplementing existing requirements. needs to conduct its business operations information to be useful in monitoring First, the proposals would require a and the costs of that financing, and how the risk of these institutions.104 registrant to provide a comprehensive those may vary during the reporting explanation of its short-term period. The transparency of the 101 K. Kelly et al., Big Banks Move To Mask Risk borrowings, including both quantitative financial statements should increase Levels—Quarter-End Loan Figures Sit 42% Below Peak, Then Rise as New Period Progresses, Wall St. and qualitative information. In addition, because investors would be able to learn J., Apr. 9, 2010; and M. Rappaport & T. McGinty, we are proposing conforming more about the amount of financial risk supra note 16 (reporting that ‘‘the practice, known amendments to Form 8–K so that the taken by the company, its liquidity and as end-of-quarter ‘window dressing’ on Wall Street, Form uses the terminology contained in capital resources, and the amount of suggests that the banks are carrying more risk most of the time than their investors or customers can the proposed short-term borrowings capital deployed in earning activities by easily see. This activity has accelerated since 2008 disclosure requirement. Finally, we are the company on an on-going basis ***’’.). making technical amendments to Item during the year, including at quarter- 102 M. Griffiths & D. Winters, The Turn of the 303 of Regulation S–K to revise ends. The proposed narrative discussion Year in Money Markets: Tests of the Risk-Shifting references to U.S. GAAP to reflect the of the short-term borrowings Window Dressing and Preferred Habitat Hypotheses, J. BUS, 2005, vol. 78, no. 4.; M. FASB Codification. arrangements, including the importance Griffiths & D. Winters, On a Preferred Habitat for The proposals seek to improve of those arrangements to the registrant Liquidity at the Turn-of-the-Year: Evidence From transparency of a company’s short-term in terms of its liquidity and capital the Term-Repo Market, 12 J. FIN. SERV. RES. 1, resources, should provide investors 1997; V. Kotomin & D. Winters, Quarter-End Effects borrowings in order to provide investors in Banks: Preferred Habitat or Window Dressing?, with comprehensive information about with insight into the magnitude of the 29 J. FIN. SERV. RES. 1, 2006. a company’s liquidity profile and registrant’s short-term borrowing 103 Banks and bank holding companies report the demands on capital resources in each activities, the specific material impact of quarterly average for Federal funds sold and the short-term borrowing arrangements securities purchased under agreements to resell reporting period. The proposals also aim (FFIEC 031 and 041 Schedule RC–K, and FR Y–9C to clarify existing MD&A requirements on the registrant, and the factors that Schedule HC–K). in these areas to assist registrants in could affect its ability to continue to use 104 See e.g., Board of Governors of the Federal preparing disclosure that is meaningful, those short-term borrowing Reserve System, Announcement of Board Approval useful and clear. Ultimately, the arrangements. Under Delegated Authority and Submission to The proposed disclosures would OMB, (March. 18, 2006) [71 FR 11194]. (‘‘The FR proposals are expected to enhance the Y–9 family of reports historically has been, and ability of investors to make informed inform investors about the amount of Continued

VerDate Mar<15>2010 15:25 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP3.SGM 28SEP3 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 59884 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

The proposed amendments are likely hours per year (84 hours per company) basis alone). These bank holding to increase transparency. Therefore, to prepare, review and file the proposed companies already report to the information asymmetry and information disclosure. We also estimated that Commission average short-term risk would be lower and investors companies would spend approximately borrowings data computed based on should demand a lower risk premium $143,756,500 ($13,849 per company) on daily averages on an annual basis, and rate of return.105 Thus, the outside professionals to comply with pursuant to Item VII of Guide 3. Of the proposed disclosures would help reduce the proposed requirements. approximately 10,380 public cost of capital and improve capital We believe that the proposed companies, we estimate that allocation and formation in the overall amendments could increase the costs for approximately 800 are bank holding economy. some companies to collect the companies. information necessary to prepare the C. Costs For registrants that meet the proposed disclosure. We also believe that the definition of ‘‘financial company’’ but The proposals to require short-term proposed amendments will impose that are not bank holding companies, borrowings disclosure on an annual and different costs for companies, such as insurance companies, broker- quarterly basis are new. In connection depending on whether they are bank- dealers, business development with the new disclosure requirements, holding companies that currently companies, and financing companies, registrants would be required to incur provide Guide 3 information, financial the costs imposed could be substantial additional direct costs to which they companies as defined in the proposed because, as requirements that are newly were previously not subject, and could rule, non-financial companies, or applicable to these entities, costs would incur indirect costs as well. Because the smaller reporting companies, as likely include implementing or proposed requirements require described below. Although management adjusting data gathering systems to additional disclosures that are not must already consider short-term capture daily balance information, currently provided in connection with borrowing information as it prepares its implementing new disclosure controls Guide 3 compliance, bank holding financial statements and MD&A under and procedures, time spent by internal companies would also incur additional existing requirements, the proposed accounting staff to compile the data, as direct and indirect costs to which they amendments could impose significant well as the preparation of narrative were previously not subject. incremental costs for the collection and disclosure. As a portion of these costs Furthermore, as noted in our PRA calculation of data, particularly in would arise from data collection, the analysis, we estimate that registrants connection with the registrant’s initial costs of compliance in the initial compliance. would incur higher costs in the initial reporting period would likely be higher In particular, this disclosure requires reporting periods than would be because systems may need to be the production of new data for incurred in ongoing reporting periods. implemented or adjusted. We estimate We estimate that the proposals would companies that are not already reporting this type of data voluntarily or to their that, in addition to the approximately impose new disclosure requirements on 800 bank holding companies, approximately 10,380 public primary regulators. In some industries, companies may readily have access to approximately 700 registrants would companies.106 We estimate that the meet the proposed definition of collection of information and the this information in their systems while others may not be producing it on a ‘‘financial company.’’ preparation of the disclosure would Registrants that do not meet the involve multiple parties, including in- daily basis as would be required for financial companies under the definition of ‘‘financial companies’’ house preparers, senior management, in- could have lower costs than those house accounting staff, in-house proposals. For example, insurance companies may find it difficult to registrants that are financial companies, counsel, information technology produce daily balances for each day that because they would not be required to personnel, outside counsel, outside is necessary for the average and compile data based on daily balances. auditors and audit committee members. maximum short-term borrowing Again, the requirements would be For purposes of our PRA analysis, we disclosures applicable to them. In newly applicable, and could require estimated that company personnel addition, companies that are not these registrants to incur costs to would spend approximately 872,204 financial companies under the proposed implement or adjust data gathering definition, particularly those with systems to capture month-end balance continues to be, the primary source of financial information on [bank holding companies] between multi-national operations, may not information, the implementation of new on-site inspections. Financial information from currently be producing the data disclosure controls and procedures, these reports is used to detect emerging financial necessary for the monthly average and time spent by internal accounting staff problems, to review performance and conduct pre- maximum short-term borrowings to compile the data, as well as inspection analysis, to monitor and evaluate capital adequacy, to evaluate [bank holding company] disclosures, and they may be faced with preparation of narrative disclosure. For mergers and acquisitions, and to analyze a [bank complex calculation issues when companies that do not currently close holding company’s] overall financial condition to gathering the data from multiple their books on a monthly basis, the costs ensure safe and sound operations.’’). jurisdictions. For many companies, the of gathering the data would likely be 105 See D. Easley & M. O’Hara, Information and costs of data production may be high. higher than those that do, because the Cost of Capital, 59 J. Fin. 1553 (2004) (arguing that the information composition between public For bank holding companies currently monthly balances would not be readily and non-public information affects the cost of subject to Guide 3, costs will likely arise available from existing books and capital because investors demand a higher return primarily from the preparation of records systems. The implementation or from their investments when they face asymmetric incremental disclosure in MD&A (i.e., adjustment of data gathering systems information); R. Lambert et al., Accounting Information, Disclosure, and the Cost of Capital, 45 the proposed requirements for would likely cause costs to be higher for J. ACCT. RES. 385 (2007) (deriving conditions maximum daily amounts instead of these companies in the initial under which an increase in information quality maximum monthly amounts and the compliance period. We estimate that the leads to an unambiguous decline in the cost of proposed narrative discussion of short- number of registrants that are not capital). financial companies and that are not 106 We estimate that all registrants who filed term borrowings arrangements) as well annual reports in 2009 would be required to as quarterly reporting of this smaller reporting companies, is provide the proposed disclosures. information (rather than on an annual approximately 7,640.

VerDate Mar<15>2010 15:25 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP3.SGM 28SEP3 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59885

For smaller reporting companies, the registered offerings or conduct competition not necessary or proposed requirements would also be unregistered offerings if they are unable appropriate in furtherance of the newly applicable, and costs incurred to gather data and prepare the new purposes of the Exchange Act. would be similar to those applicable to disclosures without significant time and Section 2(b) of the Securities Act 108 large reporting companies, except that, expense. This indirect cost should and Section 3(f) of the Exchange Act109 as proposed, smaller reporting decrease over time, as companies require us, when engaging in companies would only be required to implement disclosure controls and rulemaking where we are required to provide two years of annual short-term procedures to comply with the new consider or determine whether an action borrowings information, rather than disclosures. In other cases, companies is necessary or appropriate in the public three years, and would not be required may alter their short-term borrowings interest, to consider, in addition to the to provide quarterly disclosure on the activities in response to the proposed protection of investors, whether the same level of detail as annual disclosure, in order to avoid incurring action will promote efficiency, disclosure. Accordingly, in addition to the cost of compliance, and in doing so competition, and capital formation. the costs to prepare and review the could incur transaction costs or The proposed amendments are disclosure, smaller reporting companies opportunity costs that they would not intended to enhance disclosure in that do not currently track the data face without a mandatory disclosure MD&A relating to registrants’ liquidity needed to compile the short-term requirement. profile in each reporting period by borrowings disclosure or that do not In certain cases, mandatory required highlighting and expanding disclosure currently close their books on a monthly disclosure requirements can have requirements for short-term borrowings. basis, would incur costs to implement adverse effects for companies and their The proposed amendments to Form or adjust data collection systems and shareholders if the disclosures reveal 8–K, which would conform the disclosure controls and procedures. On confidential information and trade disclosure requirements in the Form to the other hand, small entities without secrets of a company. In the case of the the proposed amendments to Regulation such systems would be more likely to proposed short-term borrowings, S–K, are intended to continue to engage in financing activities that are however, such indirect costs should be provide real-time disclosure in less complex, where the compilation minimal due to the non-proprietary connection with these topics. and calculation of such data would not nature of short-term borrowings. There The proposed amendments may raise significant burdens. In addition, is some possibility that a company’s increase the usefulness of MD&A. The the cost estimates set forth in our PRA competitors could be able to infer ability of users of financial information analysis may be lower for a small entity proprietary or sensitive information to understand registrants’ financial to the extent its costs for personnel and about a company’s business operations statements and to determine the outside professionals are lower than our or strategy from disclosure about short- existence of trends in borrowing and assumed amounts. As discussed term borrowings arrangements. If this funding activity is expected to improve elsewhere in this release, we estimate were the case, it could as a result of the disclosure of average that there are approximately 1,240 disproportionately impact companies and maximum short-term borrowings smaller reporting companies. that meet the proposed definition of during each reporting period. In addition, registrants that are not ‘‘financial company,’’ to the extent that The proposed amendments also smaller reporting companies could amounts calculated based on daily should increase the efficiency of U.S. incur increased costs in connection with balance information provide a more capital markets by providing investors the preparation of their quarterly accurate basis for such inferences. We with additional and more timely reports, as the amendments call for preliminarily believe that the likelihood information about registrants’ borrowing disclosure in quarterly reports at the of this impact is low. and funding activities, including same level of detail as in annual reports. D. Request for Comment borrowing activities that are not To provide this increased level of detail, apparent on the face of period-end registrants may need to alter their We request data to quantify the costs financial statements and exposures to existing disclosure controls and and the value of the benefits described market and funding liquidity risks. This procedures for quarterly reporting. For above. We seek estimates of these costs information could be used by investors purposes of our PRA analysis, we and benefits, as well as any costs and in allocating capital across companies, estimated that company personnel benefits not already defined, that may and toward companies where the risk would spend approximately 18 result from the adoption of these incentives appear better aligned with an additional hours per year to prepare, proposed amendments. We also request investor’s appetite for risk. Furthermore, review and file the proposed disclosure qualitative feedback on the nature of the these reductions in the asymmetry of in Form 10–Q. We estimate that benefits and costs described above and information between registrants and approximately 8,200 registrants (based any benefits and costs we may have investors could reduce registrants’ cost on our estimated number of annual overlooked. of capital as investors may demand a report filers, less smaller reporting lower risk premium when they have companies and foreign private issuers) VI. Consideration of Impact on the Economy, Burden on Competition, and access to more information.110 would be subject to the requirement to In certain cases, mandatory required provide quarterly disclosure at the same Promotion of Efficiency, Competition, and Capital Formation disclosure requirements can have level of detail as in annual reports. adverse effects for companies and their Companies may also be faced with Section 23(a)(2) of the Exchange Act 107 shareholders if the disclosures reveal indirect costs arising from the requires us, when adopting rules confidential information and trade amendments. For example, companies under the Exchange Act, to consider the secrets of a company. In the case of the may need to consider the impact of the impact that any new rule would have on proposed short-term borrowings, amendments on their financing plans, to competition. In addition, Section the extent the gathering of data and 23(a)(2) prohibits us from adopting any 108 15 U.S.C. 77b(b). preparation of disclosure imposes rule that would impose a burden on 109 15 U.S.C. 78c(f). significant time burdens. Specifically, 110 See D. Easley & M. O’Hara, supra note 98, and companies could decide to delay 107 15 U.S.C. 78w(a)(2). R. Lambert et al., supra note 98.

VerDate Mar<15>2010 15:25 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP3.SGM 28SEP3 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 59886 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

however, such indirect costs should be A. Reasons for, and Objectives of, the Section 12 of the Exchange Act, or are minimal due to the non-proprietary Proposed Action required to file reports under Section nature of short-term borrowings. There The proposed amendments are 15(d) of the Exchange Act and (ii) are is some possibility that a company’s intended to enhance disclosure in required to provide MD&A disclosure competitors could be able to infer MD&A relating to registrants’ liquidity under applicable rules and forms or proprietary or sensitive information profile by highlighting and expanding disclosure under Items 2.03 and 2.04 of Form 8–K. In addition, the proposals about a company’s business operations disclosure requirements for short-term also would affect small entities that file, or strategy from disclosure about short- borrowings. The proposed amendments or have filed, a registration statement term borrowings arrangements. If this to Form 8–K, which would conform the (that is required to include MD&A were the case, it could disclosure requirements in the Form to disclosure under the applicable rules disproportionately impact companies the proposed amendments to Regulation and forms) that has not yet become that meet the proposed definition of S–K, are intended to continue to effective under the Securities Act and ‘‘financial company,’’ to the extent that provide real-time disclosure in that has not been withdrawn. amounts calculated based on daily connection with these topics. These balance information provide a more The data underlying the proposed amendments are being proposed to short-term borrowing disclosures should accurate basis for such inferences. We increase transparency in the preliminarily believe that the likelihood be available from a company’s books presentation of registrants’ borrowing and records, although it may not of this impact is low. and funding activities and exposure to We request comment on whether the currently be collected on month-end liquidity risks in connection with that basis or daily basis, as proposed in the proposed amendments would promote activity. This increased transparency in efficiency, competition, and capital rule. As discussed in our PRA analysis, areas of increasing importance to we believe that the collection and formation or have an impact or burden investors is intended to maintain on competition. Commentators are calculation of short-term borrowing data investor confidence in the full and fair in the form proposed may have a cost requested to provide empirical data and disclosure required of all registrants. other factual support for their view to impact on registrants, including small the extent possible. B. Legal Basis entities, that do not currently maintain information technology systems for the VII. Small Business Regulatory We are proposing the amendments collection of the required data. On the Enforcement Fairness Act pursuant to Sections 6, 7, 10, 19(a) and other hand, small entities without such 28 of the Securities Act and Sections 12, systems would be more likely to engage For purposes of the Small Business 13, 14, 15(d), 23(a) and 36 of the Regulatory Enforcement Fairness Act of in financing activities that are less Exchange Act. complex, where the compilation and 1996 (SBREFA)111 we solicit data to calculation of such data would not raise determine whether the proposed rule C. Small Entities Subject to the significant burdens. In addition, the cost amendments constitute a ‘‘major’’ rule. Proposed Action estimates set forth in our PRA analysis Under SBREFA, a rule is considered The proposed amendments would may be lower for a small entity to the ‘‘major’’ where, if adopted, it results or affect some companies that are small extent its costs for personnel and is likely to result in: entities. The Regulatory Flexibility Act • outside professionals are lower than our An annual effect on the economy of defines ‘‘small entity’’ to mean ‘‘small assumed amounts. $100 million or more (either in the form business,’’ ‘‘small organization,’’ or We are proposing an accommodation of an increase or a decrease); ‘‘small governmental jurisdiction.’’ 113 for smaller reporting companies, such • A major increase in costs or prices The Commission’s rules define ‘‘small that expanded disclosures of short-term for consumers or individual industries; business’’ and ‘‘small organization’’ for borrowings would not be required for or purposes of the Regulatory Flexibility interim periods and annual period data • Significant adverse effects on Act for each of the types of entities would only be required for two years competition, investment or innovation. regulated by the Commission. Securities rather than three years. Commentators should provide Act Rule 157 114 and Exchange Act Rule 115 D. Reporting, Recordkeeping, and Other empirical data on (a) the potential 0–10(a) define a company, other than Compliance Requirements annual effect on the economy; (b) any an investment company, to be a ‘‘small increase in costs or prices for consumers business’’ or ‘‘small organization’’ if it The proposed amendments are or individual industries; and (c) any had total assets of $5 million or less on intended to enhance disclosure about potential effect on competition, the last day of its most recent fiscal year. short-term borrowings. These proposals investment or innovation. We estimate that there are would require a small entity to: approximately 1,240 companies that • Provide, in a separately captioned VIII. Initial Regulatory Flexibility Act may be considered small entities.116 The subsection of MD&A, a comprehensive Analysis proposed amendments would affect explanation of its short-term This Initial Regulatory Flexibility small entities that (i) have a class of borrowings, including both quantitative Analysis (IRFA) has been prepared in securities that are registered under and qualitative information; and • accordance with the Regulatory Use a revised definition of ‘‘direct Flexibility Act.112 It relates to proposed 113 5 U.S.C. 601(6). financial obligation’’ for purposes of 114 revisions to the rules and forms under 17 CFR 230.157. disclosure requirements in Items 2.03 115 17 CFR 240.0–10(a). and 2.04 of Form 8–K. the Securities Act and Exchange Act to 116 This includes approximately 30 business enhance disclosure that registrants development companies that are small entities. For These proposed amendments largely provide in MD&A regarding short-term purposes of the Regulatory Flexibility Act, an would apply to both large and small borrowings. investment company (including a business entities equally, except that smaller development company) is a small entity if it, reporting companies would benefit from together with other investment companies in the 111 Public Law 104–121, tit. II, 110 Stat. 857 same group of related investment companies, has the proposed exclusion from expanded (1996). net assets of $50 million or less as of the end of interim reporting of short-term 112 5 U.S.C. 603. its most recent fiscal year. 17 CFR 270.0–10(a). borrowings and would provide two

VerDate Mar<15>2010 15:25 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP3.SGM 28SEP3 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59887

years of annual data rather than three. requirements would apply to small resources, as well as identification of As noted above, the proposed short-term entities to the same extent as larger significant uncertainties and events, borrowings disclosure should be registrants, and would require clear, makes the placement of the disclosure available from a company’s books and straightforward disclosure about short- as part of MD&A an appropriate choice. records and tracked with existing term borrowings. Because the proposed disclosure of internal controls without a significant Except for the exclusions noted above, short-term borrowings is intended to incremental burden imposed on small we are not proposing to change existing supplement the discussions of liquidity entities, except to the extent that it alternative reporting requirements and capital resources already required doesn’t track the data on a monthly under Item 303 of Regulation S–K, or to be provided by smaller reporting basis. establish additional different companies under existing rules, we compliance requirements or an believe the inclusion of the proposed E. Duplicative, Overlapping, or exemption from coverage of the requirements in MD&A would reduce Conflicting Federal Rules proposed amendments for small redundant disclosure requirements and We believe the proposed amendments entities. The proposed amendments promote investors’ understanding of this would not duplicate, overlap, or conflict would provide investors with greater important and, at times highly complex, with other Federal rules. The proposed transparency into the liquidity profile of information. new requirements for short-term registrants, by highlighting short-term We seek comment on whether we borrowings disclosures provide specific, borrowings. With potentially fewer should exempt small entities from any additional information that would be financing options available to small of the proposed amendments or scale complementary to existing MD&A entities, information about critical the proposed disclosure requirements to requirements. funding risks and future commitments reflect the characteristics of small is important to investors in the context entities and the needs of their investors. F. Significant Alternatives of small entities as it is in the context The Regulatory Flexibility Act directs of larger entities. Therefore, we do not G. Solicitation of Comments us to consider alternatives that would believe it is appropriate to develop We encourage the submission of accomplish our stated objectives, while separate requirements for small entities comments with respect to any aspect of minimizing any significant adverse that would involve clarification, this Initial Regulatory Flexibility impact on small entities. In connection consolidation, or simplification of the Analysis. In particular, we request with the proposed disclosure proposed disclosure requirements, other comments regarding: amendments, we considered the than the proposed exclusions discussed • How the proposed amendments can following alternatives: above. We do not believe that these achieve their objective while lowering • Establishing different compliance or proposed disclosures would create a the burden on small entities; reporting requirements or timetables significant new burden for small • The number of small entities that that take into account the resources entities, and, we believe that uniform, may be affected by the proposed available to small entities; comparable disclosures across all amendments; • Clarifying, consolidating or companies would be beneficial for • The existence or nature of the simplifying compliance and reporting investors and the markets. potential impact of the proposed requirements under the rules for small We have used design standards and amendments on small entities discussed entities; performance standards in connection in the analysis; and • Using performance rather than with the proposed amendments. We rely • How to quantify the impact of the design standards; and on design standards for two reasons. proposed amendments. • Exempting small entities from all or First, based on our past experience, we Respondents are asked to describe the part of the requirements. believe that the proposed requirements nature of any impact and provide Currently, small entities are subject to would result in disclosure that is more empirical data supporting the extent of the same MD&A requirements as larger useful to investors than if there were the impact. Such comments will be registrants under Item 303 of Regulation specific, enumerated informational considered in the preparation of the S–K, except that smaller reporting requirements. The proposed Final Regulatory Flexibility Analysis, if companies are permitted to exclude requirements are intended to elicit more the proposed rule amendments are information as to their contractual comprehensive and clear disclosure, adopted, and will be placed in the same obligations.117 The proposed while still affording registrants the public file as comments on the proposed amendments would not alter the ability to tailor the disclosure to reflect amendments themselves. exclusions applicable to smaller their specific activities and to provide reporting companies, except, as the information that is most important IX. Statutory Authority and Text of the discussed above, an additional in the context of their specific business. Proposed Amendments exclusion would be provided for smaller Second, the proposed amendments The amendments contained in this reporting companies so that they would would promote consistent disclosure release are being proposed under the not need to provide the proposed among all companies, providing authority set forth in Sections 6, 7, 10, expanded interim period disclosures of information that is increasingly 19(a) and 28 of the Securities Act and short-term borrowings and would be important to investors. Our existing Sections 12, 13, 14, 15(d), 23(a) and 36 permitted to provide two years of MD&A requirements are largely of the Exchange Act. annual data instead of three years. The performance standards, designed to List of Subjects in 17 CFR Parts 229 and remaining proposed disclosure elicit disclosure unique to the particular company. 249 117 Item 303(d) of Regulation S–K provides an Finally, we believe that requiring Reporting and recordkeeping exclusion for smaller reporting companies from the additional short-term borrowings requirements, Securities. requirements of Item 303(a)(5), and permits smaller information in MD&A is the most reporting companies to provide, if they meet Text of the Proposed Amendments specified conditions, only two fiscal years of effective way to elicit the disclosure information on the impact of inflation and changing both for small entities. MD&A’s existing For the reasons set out in the prices pursuant to Item 303(a)(3)(iv). emphasis on liquidity and capital preamble, the Commission proposes to

VerDate Mar<15>2010 15:25 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP3.SGM 28SEP3 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 59888 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

amend Title 17, Chapter II, of the Code (B) * * * the table by currency, interest rate or of Federal Regulations as follows: (C) Any obligation, including a other meaningful category, to the extent contingent obligation, under a contract presentation of separate amounts is PART 229—STANDARD that would be accounted for as a necessary to promote understanding or INSTRUCTIONS FOR FILING FORMS derivative instrument, except that it is to prevent aggregate amounts from being UNDER SECURITIES ACT OF 1933, both indexed to the registrant’s own misleading, and include a footnote to SECURITIES EXCHANGE ACT OF 1934 stock and classified in stockholders’ the table indicating the method of AND ENERGY POLICY AND equity in the registrant’s statement of disaggregation and any other pertinent CONSERVATION ACT OF 1975— financial position, and therefore data relating to the calculation of the REGULATION S–K excluded from the scope of FASB ASC amounts presented, including, without 1. The authority citation for Part 229 Topic 815, Derivatives and Hedging, limitation, the timing and exchange continues to read in part as follows: pursuant to FASB ASC subparagraph rates used for currency translations. 815–15–74(a), as may be modified or (ii) Discuss the registrant’s short-term Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, borrowings, including the items 77k, 77s, 77z–2, 77z–3, 77aa(25), 77aa(26), supplemented; 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, (D) Any obligation, including a specified in paragraphs (a)(6)(ii)(A) 77nnn, 77sss, 78c, 78i, 78j, 78l, 78m, 78n, contingent obligation, arising out of a through (D) of this Item to the extent 78o, 78u–5, 78w, 78ll, 78mm, 80a–8, 80a–9, variable interest (as defined in the FASB necessary to an understanding of such 80a–20, 80a–29, 80a–30, 80a–31(c), 80a–37, ASC Master Glossary, as may be borrowings and the current or future 80a–38(a), 80a–39, 80b–11, and 7201 et seq.; modified or supplemented) in an effect on the registrant’s financial and 18 U.S.C. 1350, unless otherwise noted. unconsolidated entity that is held by, condition, changes in financial * * * * * and material to, the registrant, where condition, revenues or expenses, results 2. Amend Section 229.303 by: such entity provides financing, of operations, liquidity, capital a. Removing the phrase ‘‘paragraphs liquidity, market risk or credit risk expenditures or capital resources: (a)(1) through (5) of this Item’’ and support to, or engages in leasing, (A) A general description of the short- adding in its place ‘‘paragraphs (a)(1) hedging or research and development term borrowings arrangements included through (a)(6) of this Item’’ in the second services with, the registrant. in each category (including any key sentence of the introductory text of (5) * * * metrics or other factors that could paragraph (a); (ii) * * * reduce or impair the company’s ability b. Revising paragraphs (a)(4)(ii)(A), (A) Long-Term Debt Obligation means to borrow under any of such (a)(4)(ii)(C) and (a)(4)(ii)(D), and a payment obligation under long-term arrangements and whether there are any (a)(5)(ii)(A), (a)(5)(ii)(B) and (a)(5)(ii)(C); borrowings referenced in FASB ASC collateral posting arrangements) and the c. Redesignating the ‘‘Instructions to Topic 470, Debt, paragraph 470–10–50– business purpose to the registrant of paragraph 303(a) (4)’’ to directly follow 1, as may be modified or supplemented. such short-term borrowings; paragraph (a)(4)(ii)(D); (B) Capital Lease Obligation means a (B) The importance to the registrant of d. Adding a new paragraph (a)(6) such short-term borrowings in respect of directly above the ‘‘Instructions to payment obligation under a lease classified as a capital lease pursuant to its liquidity, capital resources, market- paragraph 303(a)’’; risk support, credit-risk support or other e. Revising the fourth sentence of FASB ASC Topic 840, Leases, as may be modified or supplemented. benefits; Instruction 8 to paragraph 303(a); (C) The reasons for any material f. Revising Instruction 9 to paragraph (C) Operating Lease Obligation means a payment obligation under a lease differences between average short-term 303(a); borrowings and period-end borrowings; g. Adding the phrase ‘‘, except as classified as an operating lease and disclosed pursuant to FASB ASC Topic and provided in Instruction 8 to paragraph (D) The reasons for the maximum 303(b)’’ at the end of the first sentence 840, as may be modified or supplemented. outstanding amounts in each reported of Instruction 3 of the Instructions to period, including any non-recurring paragraph (b) of Item 303; * * * * * transactions or events, use of proceeds h. Adding Instruction 8 to the (6) Short-term Borrowings. (i) In or other information that provides Instructions to paragraph (b) of Item tabular format, provide for each category context for the maximum amount. 303; and of short-term borrowings specified in (iii) As used in this paragraph (a)(6), i. Revising paragraph (d). paragraph (a)(6)(iii) of this Item and for the term ‘‘short-term borrowings’’ The revisions and additions read as the periods specified in paragraph follows: includes amounts payable for short-term (a)(6)(v) of this Item: obligations that are: § 229.303 (Item 303) Management’s (A) The average amount outstanding (A) Federal funds purchased and Discussion and Analysis of Financial during each reported period and the securities sold under agreements to Condition and Results of Operations. weighted average interest rate thereon; repurchase; * * * * * (B) The amount outstanding at the (B) Commercial paper; (a) * * * end of each reported period and the (C) Borrowings from banks; (4) * * * weighted average interest rate thereon; (D) Borrowings from factors or other (ii) * * * (C) (1) For registrants that are financial institutions; and (A) Any obligation under a guarantee financial companies, the maximum (E) Any other short-term borrowings contract that has any of the daily amount outstanding during each reflected on the registrant’s balance characteristics identified in FASB ASC reported period or sheet. Topic 460, Guarantees, paragraph 460– (2) For registrants that are not (iv) As used in this paragraph (a)(6), 10–15–4, as may be modified or financial companies, the maximum the term ‘‘financial company’’ means a supplemented, and that is not excluded month-end amount outstanding during registrant that, during the reported from the initial recognition and each reported period; and period, is engaged to a significant extent measurement provisions of FASB ASC (D) For any of the amounts referred to in the business of lending, deposit- paragraphs 460–10–15–7, 460–10–25–1, in paragraphs (a)(6)(i)(A), (B) or (C) of taking, insurance underwriting or and 460–10–30–1; this Item, disaggregate the amounts in providing investment advice, or is a

VerDate Mar<15>2010 15:25 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP3.SGM 28SEP3 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59889

broker or dealer as defined in Section 3 registrants, the basis used for calculating paragraphs (a)(3)(iv) and (a)(6) of this of the Exchange Act (15 U.S.C. 78c), and the averages must be identified, and the Item for the last two most recent fiscal includes, without limitation, an entity averaging period used must not exceed years of the registrant if it provides that is, or is the holding company of, a a month. financial information on net sales and bank, a savings association, an Instruction 3 to Paragraph 303(a)(6): revenues and on income from insurance company, a broker, a dealer, As used in this Item 303(a)(6), the continuing operations for only two a business development company as maximum daily amount outstanding years. For interim periods, a smaller defined in Section 2(a)(48) of the during a reported period means the reporting company is not required to Investment Company Act of 1940 (15 largest amount outstanding at the end of follow Instruction 8 to paragraph 303(b) U.S.C. 80a–2(a)(48)), an investment any day in the reported period, and the and, instead, must discuss material adviser, a futures commission merchant, maximum month-end amount changes to the information specified in a commodity trading advisor, a outstanding during a reported period paragraphs (a)(4) and (a)(6) of this Item commodity pool operator, or a mortgage means the largest amount outstanding at from the end of the preceding fiscal year real estate investment trust. the end of the last day of any month in (and, if included, from the (v) Information required by this the reported period. corresponding interim balance sheet paragraph (a)(6) shall be presented for Instructions to Paragraph 303(a): date of the preceding fiscal year) to the each of the three most recent fiscal * * * * * date of the most recent interim balance years, and, in the case of annual reports 8. * * * However, registrants may sheet provided. In the case of an annual filed on Form 10–K (referenced in elect to voluntarily disclose report filed on Form 10–K (referenced in § 249.310), information for the supplemental information on the effects § 249.310), a smaller reporting company registrant’s fourth fiscal quarter of changing prices as provided for in is not required to provide information presented in accordance with the FASB ASC Topic 255, Changing Prices, for the fourth quarter of the most recent requirements for interim periods set or through other supplemental fiscal year. forth in Instruction 8 to paragraph (b) of disclosures. * * * * * * * * this Item 303; provided that a registrant 9. Registrants that elect to disclose that is a smaller reporting company may supplementary information on the PART 249—FORMS, SECURITIES provide the information required for effects of changing prices as specified by EXCHANGE ACT OF 1934 each of the two most recent fiscal years FASB ASC Topic 255 may combine in accordance with paragraph (d) of this such explanations with the discussion 3. The authority citation for part 249 Item 303 and, in the case of annual and analysis required pursuant to this continues to read in part as follows: reports filed on Form 10–K (referenced Item or may supply such information Authority: 15 U.S.C. 78a et seq. and 7201 in § 249.310), is not required to include separately with appropriate cross- et seq.; and 18 U.S.C. 1350, unless otherwise information for the fourth fiscal quarter. reference. noted. Instruction 1 to Paragraph 303(a)(6): * * * * * Where a registrant meets the definition * * * * * (b) * * * 4. Form 8–K (referenced in § 249.308) of financial company, but also has Instructions to Paragraph 303(b): is amended by: operations that do not involve lending, a. Revising paragraph (c)(4) of Item deposit-taking, insurance underwriting, * * * * * 2.03; and providing investment advice, or broker 8. Notwithstanding anything to the b. Removing paragraph (e) of Item or dealer activities, it may present the contrary in this Item 303, a registrant 2.03. information specified in Item that is not a smaller reporting company The revisions read as follows: 303(a)(6)(i) separately for such must include the disclosure required pursuant to (a)(6) of this Item for each Note: The text of Form 8–K does not, and operations. In doing so, the registrant this amendment will not, appear in the Code may disclose averages and maximum interim period for which financial of Federal Regulations. amounts for such operations using the statements are included or required to rules and instructions applicable to be included by Article 3 of Regulation Form 8–K S–X (17 CFR 210.3–01 to 3.18), and for registrants that are not financial * * * * * companies, provided that it must the registrant’s fourth fiscal quarter in disclose averages computed on a daily the case of an annual report filed on Item 2.03 Creation of a Direct average basis and maximum daily Form 10–K (referenced in § 249.310), Financial Obligation or an Obligation amounts for its operations that fall and must provide an updated Under an Off-Balance Sheet within the definition of financial discussion and analysis of the Arrangement of a Registrant information presented. The discussion company. For purposes of making this * * * * * segregation, the registrant should make and analysis should also highlight any (c)* * * the distinction assuming the business in material changes from prior periods. For (4) A short-term borrowing, as defined question were itself a registrant. purposes of interim period disclosures in Item 303(a)(6)(iii) of Regulation S–K Additional information should be of short-term borrowings required by (17 CFR 229.303(a)(6)(iii)), that arises presented by footnote to enable readers paragraph (a)(6) of this Item, the term other than in the ordinary course of to understand how the registrant’s ‘‘reported period’’ used in paragraph business. (a)(6) of this Item means the most recent operations have been grouped for * * * * * interim period presented or, in the case purposes of the disclosure. 5. Form 20–F (referenced in of an annual report filed on Form 10– Instruction 2 to Paragraph 303(a)(6): § 249.220f) Item 5 is amended by: For registrants that are financial K (referenced in § 249.310), the a. Revising paragraphs (a) and (d) of companies, averages called for by registrant’s fourth fiscal quarter. Item 5.E.2; paragraph (a)(6) of this Item are averages * * * * * b. Adding Item 5.H; and computed on a daily average basis (d) Smaller reporting companies. A c. Adding Instructions to Item 5.H (which means the amount outstanding smaller reporting company, as defined after the ‘‘Instructions to Item 5.F’’. at the end of each day, averaged over the in § 229.10(f)(1) of this Chapter, may The revisions and additions read as reporting period). For all other provide the information required in follows:

VerDate Mar<15>2010 15:25 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP3.SGM 28SEP3 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 59890 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

Note: The text of Form 20–F does not, and data relating to the calculation of the defined in Section 2(a)(48) of the this amendment will not, appear in the Code amounts presented, including, without Investment Company Act of 1940 (15 of Federal Regulations. limitation, the timing and exchange U.S.C. 80a–2(a)(48)), an investment rates used for currency translations. adviser, a futures commission merchant, Form 20–F 2. Provide a discussion of the a commodity trading advisor, a * * * * * company’s short-term borrowings, commodity pool operator, or a mortgage including the items specified in real estate investment trust. Item 5. Operating and Financial Review paragraphs (a) through (d) of this Item 5. Information required by this Item and Prospects 5.H.2 to the extent necessary to an 5.H shall be presented for each of the * * * * * understanding of such borrowings and three most recent fiscal years. E. Off-balance sheet arrangements. the current or future effect on the * * * * * * * * * * company’s financial condition, changes Instructions to Item 5.H: 2. * * * in financial condition, revenues or 1. Notwithstanding Item 5.H.3, the (a) Any obligation under a guarantee expenses, results of operations, categories of short-term borrowings contract that has any of the liquidity, capital expenditures or capital disclosed pursuant to Item 5.H of this characteristics identified in FASB ASC resources: Form may be based on the Topic 460, Guarantees, paragraph 460– (a) A general description of the short- classifications for such types of short- 10–15–4, as may be modified or term borrowings included in each term borrowings used under the supplemented, excluding the types of category (including any key metrics or comprehensive set of accounting guarantee contracts described in FASB other factors that could reduce or impair principles that the company uses to ASC paragraphs 460–10–15–7, 460–10– the company’s ability to borrow under prepare its primary financial statements, 25–1, and 460–10–30–1; any of such arrangements and whether so long as the disclosure is provided at (b) * * * there are any collateral posting a level of detail that satisfies the (c) * * * arrangements) and the business purpose objective of this Item 5.H disclosure (d) Any obligation, including a to the company of such short-term requirement. contingent obligation, arising out of a borrowings; 2. Where a company meets the variable interest (as defined in the FASB (b) The importance to the company of definition of financial company, but ASC Master Glossary, as may be such short-term borrowings in respect of also has operations that do not involve modified or supplemented) in an its liquidity, capital resources, market- lending, deposit-taking, insurance unconsolidated entity that is held by, risk support, credit-risk support or other underwriting, providing investment and material to, the company, where benefits; advice, or broker or dealer activities, it (c) The reasons for any material such entity provides financing, may present the information specified differences between average short-term liquidity, market risk or credit risk in Item 5.H.1 of this Form separately for borrowings and period-end borrowings; support to, or engages in leasing, such operations. In doing so, the and hedging or research and development company may disclose averages and (d) The reasons for the maximum services with, the company. maximum amounts for such operations outstanding amounts in each reported using the rules and instructions * * * * * period, including any non-recurring applicable to companies that are not H. Short-Term Borrowings transactions or events, use of proceeds financial companies, provided that it 1. In tabular format, provide for each or other information that provides must disclose averages computed on a category of short-term borrowings context for the maximum amount. specified in Item 5.H.3 of this Form and 3. As used in this Item 5.H, the term daily average basis and maximum daily for the periods specified in Item 5.H.5 ‘‘short-term borrowings’’ means amounts amounts for its operations that fall of this Form: payable for short-term obligations that within the definition of financial (a) The average amount outstanding are: company. For purposes of making this during each reported period and the (a) Federal funds purchased and segregation, the company should make weighted average interest rate thereon; securities sold under agreements to the distinction assuming the business in (b) The amount outstanding at the end repurchase; question were itself a registrant. of each reported period and the (b) Commercial paper; Additional information should be weighted average interest rate thereon; (c) Borrowings from banks; presented by footnote to enable readers (c)(i) For companies that are financial (d) Borrowings from factors or other to understand how the company’s companies, the maximum daily amount financial institutions; and operations have been grouped for outstanding during each reported period (e) Any other short-term borrowings purposes of the disclosure. or reflected in the company’s balance 3. For companies that are financial (ii) For companies that are not sheet. companies, averages called for by this financial companies, the maximum 4. As used in this Item 5.H, the term Item 5.H are averages computed on a month-end amount outstanding during ‘‘financial company’’ means a company daily average basis (which means the each reported period; and that, during the reported period, is amount outstanding at the end of each (d) For any of the amounts referred to engaged to a significant extent in the day, averaged over the reporting period). in (a), (b) or (c) of this Item 5.H.1, business of lending, deposit-taking, For all other companies, the basis used disaggregate the amounts in the table by insurance underwriting or providing for calculating the averages must be currency, interest rate or other investment advice, or is a broker or identified, and the averaging period meaningful category, to the extent dealer as defined in Section 3 of the used must not exceed a month. presentation of separate amounts is Exchange Act (15 U.S.C. 78c), and 4. As used in this Item 5.H, the necessary to promote understanding or includes, without limitation, an entity maximum daily amount outstanding to prevent aggregate amounts from being that is or is the holding company of, a during a reported period means the misleading, and include a footnote to bank, a savings association, an largest amount outstanding at the end of the table indicating the method of insurance company, a broker, a dealer, any day in the reported period, and the disaggregation and any other pertinent a business development company as maximum month-end amount

VerDate Mar<15>2010 15:25 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP3.SGM 28SEP3 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59891

outstanding during a reported period the end of the last day of any month in By the Commission. means the largest amount outstanding at the reported period. Elizabeth M. Murphy, * * * * * Secretary. Dated: September 17, 2010. [FR Doc. 2010–23743 Filed 9–27–10; 8:45 am] BILLING CODE P

VerDate Mar<15>2010 15:25 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00027 Fmt 4701 Sfmt 9990 E:\FR\FM\28SEP3.SGM 28SEP3 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 Tuesday, September 28, 2010

Part IV

Securities and Exchange Commission 17 CFR Parts 211, 231, and 241 Commission Guidance on Presentation of Liquidity and Capital Resources Disclosures in Management’s Discussion and Analysis; Final Rule

VerDate Mar<15>2010 15:26 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\28SER2.SGM 28SER2 WReier-Aviles on DSKGBLS3C1PROD with RULES2 59894 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations

SECURITIES AND EXCHANGE companion release, we are proposing as it covers topics relating to the COMMISSION amendments to enhance the disclosure discussion of cash requirements, cash that registrants present about short-term management, sources and uses of cash, 17 CFR Parts 211, 231, and 241 borrowings.2 The proposals in that as well as a registrant’s debt [Release Nos. 33–9144; 34–62934; FR–83] release would require a registrant to instruments, guarantees and related provide, in a separately captioned covenants, that continue to be relevant Commission Guidance on Presentation subsection of Management’s Discussion to investors. of Liquidity and Capital Resources and Analysis of Financial Condition and As we have stated in the past, MD&A Disclosures in Management’s Results of Operations (‘‘MD&A’’), a requires companies to provide investors Discussion and Analysis comprehensive explanation of its short- with disclosure that facilitates an term borrowings, including both appreciation of the known trends and AGENCY: Securities and Exchange quantitative and qualitative information. uncertainties that have impacted Commission. The proposed amendments to MD&A historical results or are reasonably likely ACTION: Interpretation. would be applicable to annual and to shape future periods.4 This disclosure SUMMARY: We are providing interpretive quarterly reports, proxy or information should both discuss and analyze the guidance that is intended to improve statements that include financial company’s business from the 5 discussion of liquidity and capital statements, registration statements perspective of management. In the resources in Management’s Discussion under the Securities Exchange Act of context of liquidity, Item 303(a)(1) of and Analysis of Financial Condition and 1934, and registration statements under Regulation S–K requires disclosure of Results of Operations in order to the Securities Act of 1933. We are also known trends or any known demands, facilitate understanding by investors of proposing conforming amendments to commitments, events or uncertainties the liquidity and funding risks facing Form 8–K so that the Form would use that will result in, or that are reasonably the registrant. the terminology contained in the likely to result in, the registrant’s DATES: Effective Date: September 28, proposed short-term borrowings liquidity increasing or decreasing in any 6 2010. disclosure requirement. To further material way. In past guidance, the improve the discussion of liquidity and Commission has highlighted a number FOR FURTHER INFORMATION CONTACT: capital resources in MD&A in order to of issues for management to consider Questions about specific filings should facilitate understanding by investors of when identifying trends, demands, be directed to staff members responsible the liquidity and funding risks facing commitments, events and uncertainties for reviewing the documents the the registrant, we are also providing the that require disclosure in MD&A.7 Some registrant files with the Commission. following guidance with respect to additional important trends and For general questions about this release, existing MD&A requirements. uncertainties relating to liquidity might contact Christina L. Padden, Attorney include, for example, difficulties II. Guidance on Presentation of Fellow in the Office of Rulemaking, at accessing the debt markets, reliance on Liquidity and Capital Resources (202) 551–3430 or Stephanie L. commercial paper or other short-term Disclosures in Management’s Hunsaker, Associate Chief Accountant, financing arrangements, maturity Discussion and Analysis at (202) 551–3400, in the Division of mismatches between borrowing sources Corporation Finance; or Wesley R. A. Liquidity Disclosure and the assets funded by those sources, Bricker, Professional Accounting As discussed in the Proposing Fellow, Office of the Chief Accountant 4 See Disclosure in Management’s Discussion and at (202) 551–5300; U.S. Securities and Release, companies have expanded the Analysis About Off Balance Sheet Arrangements, Exchange Commission, 100 F Street, types of funding methods and cash Contractual Obligations and Contingent Liabilities NE., Washington, DC 20549. management tools they use. We remind and Commitments, Release No. 33–8182 (Jan. 28, registrants that Item 303(a)(1) of 2003) [68 FR 5982] (the ‘‘OBS Adopting Release’’), SUPPLEMENTARY INFORMATION: at 5982 (‘‘MD&A also provides a unique opportunity Regulation S–K requires them to for management to provide investors with an I. Background ‘‘identify and separately describe understanding of its view of the financial Over the past several years, we have internal and external sources of performance and condition of the company, an provided guidance and have engaged in liquidity, and briefly discuss any appreciation of what the financial statements show and do not show, as well as important trends and rulemaking initiatives to improve the material unused sources of liquidity.’’ risks that have shaped the past and are reasonably presentation of information about Accordingly, as the financing activities likely to shape the future.’’). funding and liquidity risk.1 In a undertaken by registrants become more 5 ‘‘MD&A should be a discussion and analysis of diverse and complex, it is increasingly a company’s business as seen through the eyes of 1 See, e.g., Commission Statement About those who manage that business. Management has important that the discussion and a unique perspective on its business that only it can Management’s Discussion and Analysis of Financial analysis of liquidity and capital Condition and Results of Operations, Release No. present. As such, MD&A should not be a recitation 33–8056 (Jan. 22, 2002) [67 FR 3746]; Disclosure in resources provided by registrants meet of financial statements in narrative form, or an Management’s Discussion and Analysis About Off the objectives of MD&A disclosure. otherwise uninformative series of technical Balance Sheet Arrangements, Contractual responses to MD&A requirements, neither of which In 2003, the Commission issued provides this important management perspective.’’ Obligations and Contingent Liabilities and interpretive guidance relating to MD&A Commitments, Release No. 33–8144 (Nov. 4, 2002) See 2003 Interpretive Release, supra note 3, at [67 FR 68054]; Disclosure in Management’s disclosures of liquidity and capital 75056. Discussion and Analysis About Off Balance Sheet resources, as well as MD&A generally.3 6 ‘‘The scope of the discussion should thus Arrangements, Contractual Obligations and We encourage registrants to review that address liquidity in the broadest sense, encompassing internal as well as external sources, Contingent Liabilities and Commitments, Release guidance when preparing their MD&A, No. 33–8182 (Jan. 28, 2003) [68 FR 5982] (adopting current conditions as well as future commitments rules for disclosure in MD&A of off-balance sheet and known trends, changes in circumstances and arrangements and aggregate contractual 2 See Short-Term Borrowings Disclosure, Release uncertainties.’’ See Commission Statement About obligations); and Commission Guidance Regarding No. 33–9143 (the ‘‘Proposing Release’’). Management’s Discussion and Analysis of Financial Management’s Discussion and Analysis of Financial 3 See Commission Guidance Regarding Condition and Results of Operations, Release No. Condition and Results of Operations, Release No. Management’s Discussion and Analysis of Financial 33–8056 (Jan. 22, 2002) [67 FR 3746] (the ‘‘2002 33–8350 (Dec. 19, 2003) [68 FR 75056] (providing Condition and Results of Operations, Release No. Interpretive Release’’), at 3748 n.11. interpretive guidance on disclosure in MD&A, 33–8350 (Dec. 19, 2003) [68 FR 75056] (the ‘‘2003 7 See 2002 Interpretive Release, supra note 5, at including liquidity and capital resources). Interpretive Release’’). 3748.

VerDate Mar<15>2010 15:26 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\28SER2.SGM 28SER2 WReier-Aviles on DSKGBLS3C1PROD with RULES2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations 59895

changes in terms requested by relieve registrants from the disclosure composition of that portfolio, including counterparties, changes in the valuation requirements of Item 303(a)(1).10 a description of the assets held and any of collateral, and counterparty risk. Further, as stated in the 2002 related market risk, settlement risk or In addition, in the context of liquidity Interpretive Release, legal opinions other risk exposure. This could include and capital resources, if the registrant’s regarding ‘‘true sale’’ issues do not information about the nature of any financial statements do not adequately obviate the need for registrants to limits or restrictions and their effect on convey the registrant’s financing consider whether disclosure is the company’s ability to use or to access arrangements during the period, or the required.11 In evaluating whether those assets to fund its business impact of those arrangements on disclosure in MD&A may be required in operations. liquidity, because of a known trend, connection with a repurchase Transparent financial reporting that demand, commitment, event or transaction, securities lending conveys a complete and understandable uncertainty, additional narrative transaction, or any other transaction picture of a company’s financial disclosure should be considered and involving the transfer of financial assets position reduces uncertainty in our may be required to enable an with an obligation to repurchase markets. Surprises to investors can be understanding of the amounts depicted financial assets, that has been accounted reduced or avoided when a company in the financial statements. For for as a sale under applicable provides clear and understandable example, depending on the registrant’s accounting standards, the registrant information about known trends, events, circumstances, if borrowings during the should consider whether the transaction demands, commitments and reporting period are materially different is reasonably likely to result in the use uncertainties, particularly where they than the period-end amounts recorded of a material amount of cash or other are reasonably likely to have a current in the financial statements, disclosure liquid assets. Disclosure may be or future material impact on that about the intra-period variations is required in the discussion of liquidity company. The economic environment is required under current rules to facilitate and capital resources, particularly not static. Circumstances and risks investor understanding of the where the registrant does not otherwise change and, as a result, disclosure about registrant’s liquidity position. include such information in its off- those circumstances and risks must also Moreover, the Commission’s staff has balance sheet arrangements or its evolve. As we stated in the 2003 noted that there may be confusion on contractual obligations table. A Interpretive Release, if prior disclosure the part of registrants about how to registrant may determine where in its ‘‘does not adequately foreshadow address disclosure of certain repurchase MD&A this information would be most subsequent events, or if new agreements that are accounted for as informative based on the type of information that impacts known trends sales, as well as other types of short- obligation and potential exposure and uncertainties becomes apparent term financings that are not otherwise involved, with an emphasis on * * * additional disclosure should be fully captured in period-end balance providing disclosure that is clear and considered and may be required.’’ 12 sheets.8 Again, disclosure is required in not misleading. This principle is equally applicable in MD&A where a known commitment, To provide context for the exposures the context of liquidity and capital event or uncertainty will result in (or is identified in MD&A, companies should resources disclosure. reasonably likely to result in) the also consider describing cash registrant’s liquidity increasing or management and risk management B. Leverage Ratio Disclosures 9 decreasing in a material way. The policies that are relevant to an Where a registrant includes capital or absence of specific references in existing assessment of their financial condition. leverage ratio disclosure in its filings disclosure requirements for off-balance Banks, in particular, should consider with the Commission, and there are no sheet arrangements or contractual discussing their policies and practices regulatory requirements prescribing the obligations to repurchase transactions in meeting applicable banking agency calculation of that ratio, or where a that are accounted for as sales, or to any guidance on funding and liquidity risk registrant includes capital or leverage other transfers of financial assets that management, or any policies and ratios that are calculated using a are accounted for as sales, does not practices that differ from applicable methodology that is modified from its agency guidance. In addition, a prescribed form, we remind registrants 8 In its 2005 OBS Report, the Commission’s staff identified transfers of assets with continuing company that maintains or has access to of our long-standing approach to involvement as one of the principal areas in need a portfolio of cash and other disclosure of financial measures and of improvement in disclosure of off-balance sheet investments that is a material source of non-financial measures in MD&A. First, arrangements. See Staff of the U.S. Securities and liquidity should consider providing the registrant should determine whether Exchange Commission, Report and Recommendations Pursuant to Section 401(c) of the information about the nature and the measure is a financial measure. If Sarbanes-Oxley Act of 2002 On Arrangements with the measure is not a financial measure, Off-Balance Sheet Implications, Special Purpose 10 We also note that, in 1986, the Commission registrants should refer to the guidance Entities and Transparency of Filings by Issuers adopted changes to Rule 4–08 of Regulation S–X to (June 2005), available at http://www.sec.gov/news/ require financial statement footnote disclosure of we provided in 2003 for disclosures studies/soxoffbalancerpt.pdf. See also, the Division the nature and extent of a registrant’s repurchase relating to non-financial measures, such of Corporation Finance, Sample Letter Sent to and reverse repurchase transactions and the degree Public Companies Asking for Information Related to of risk involved. See Disclosure Amendments to 12 See 2003 Interpretive Release, supra note 3, at Repurchase Agreements, Securities Lending Regulation S–X Regarding Repurchase and Reverse 75061, and Management’s Discussion and Analysis Transactions, or Other Transactions Involving the Repurchase Agreements, Release No. 33–6621 (Jan. of Financial Condition and Results of Operations; Transfer of Financial Assets (Mar. 2010), available 22, 1986) [51 FR 3765]. These requirements focus Certain Investment Company Disclosures, Release at http://www.sec.gov/divisions/corpfin/guidance/ on disclosure of risk of loss due to counter-party No. 33–6835 (May 18, 1989) [54 FR 22427] (the cforepurchase0310.htm., and the Division of default. See Rule 4–08(m) of Regulation S–X [17 ‘‘1989 Interpretive Release’’). The 1989 Interpretive Corporation Finance, Sample Letter Sent to Public CFR 210.4–08m]. However, the adopting release Release clarifies that material changes to items Companies That Have Identified Investments in indicates that the requirements do not affect disclosed in MD&A in annual reports should be Structured Investment Vehicles, Conduits or obligations under MD&A requirements to discuss discussed in the quarter in which they occur. The Collateralized Debt Obligations (Off-balance Sheet ‘‘any material impact on liquidity or operations and 2003 Interpretive Release states that ‘‘there may also Entities) (Dec. 2007) available at http:// risk resulting from involvement with repurchase be circumstances where an item may not be www.sec.gov/divisions/corpfin/guidance/ and reverse repurchase agreements.’’ material in the context of a discussion of annual cfoffbalanceltr1207.htm. 11 See 2002 Interpretive Release, supra note 5, at results of operations but is material in the context 9 See Item 303(a)(1) [17 CFR 229.303(a)(1)]. 3749. of interim results.’’

VerDate Mar<15>2010 15:26 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\28SER2.SGM 28SER2 WReier-Aviles on DSKGBLS3C1PROD with RULES2 59896 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations

as industry metrics or value metrics.13 If requirements arising from contractual necessary for an understanding of the the measure is a financial measure, the payment obligations. The Commission’s timing and amount of the specified registrant should next determine staff has observed that divergent contractual obligations, as indicated in whether the measure falls within the practices have developed in connection the instructions contained in Item scope of our requirements for non- with the contractual obligations table 303(a)(5)(i), or, where necessary to GAAP financial measures, and if it is, disclosure, with registrants drawing promote understanding of the tabular the registrant would need to follow our different conclusions about the data, additional narrative discussion rules and guidance governing the information to be included and the outside of the table should be inclusion of non-GAAP financial manner of presentation. The considered. Registrants should measures in filings with the requirement itself permits flexibility so determine how best to present the Commission.14 that the presentation can reflect information that is relevant to their own In any event, any ratio or measure company-specific information in a way business in a manner that is clear, included in a filing should be that is suitable to a registrant’s business. consistent with the purpose of the accompanied by a clear explanation of Accordingly, registrants are encouraged disclosure and not misleading, and the calculation methodology. The to develop a presentation method that is should provide additional disclosure explanation would need to clearly clear, understandable and appropriately where necessary to explain what the articulate the treatment of any inputs reflects the categories of obligations that tabular data includes and does not that are unusual, infrequent or non- are meaningful in light of its capital include.17 recurring, or that are otherwise adjusted structure and business. Registrants III. Codification Update so that the ratio is calculated differently should highlight any changes in from directly comparable measures. presentation that are made, so that The ‘‘Codification of Financial Similar to our guidance for the investors are able to use the information Reporting Policies’’ announced in disclosure of non-financial measures, if to make comparisons from period to Financial Reporting Release 1 (April 15, the financial measure presented differs period. 1982) [47 FR 21028] is updated by from other measures commonly used in Since the adoption of Item 303(a)(5), adding new Section 501.03.a.i, the registrant’s industry, the registrant registrants and industry groups have captioned ‘‘Additional Guidance on would need to consider whether a raised questions to our staff about how Presentation of Liquidity and Capital discussion of those differences or to treat a number of items under the Resources Disclosures’’ to the Financial presentation of those measures would contractual obligations requirement, Reporting Codification and under that be necessary to make the disclosures not including: interest payments, caption including the text in Section II misleading. Finally, a registrant would repurchase agreements, tax liabilities, of this release. need to consider its reasons for synthetic leases, and obligations that The Codification is a separate presenting the particular financial arise under off-balance sheet publication of the Commission. It will measure, and should include disclosure arrangements. In addition, a variety of not be published in the Federal clearly stating why the measure is questions has been raised with our staff Register/Code of Federal Regulations. useful to understanding its financial in the context of purchase obligations. condition. Where the ratio is being List of Subjects in 17 CFR Parts 211, Because the questions that arise tend to 231 and 241 presented in connection with disclosure be fact-specific and closely related to a on debt instruments and related registrant’s particular business and Securities. covenants, registrants should also circumstances, we have not issued consult our past guidance on disclosure Amendments to the Code of Federal general guidance as to how to treat these Regulations of debt instruments, guarantees and items or other questions regarding the related covenants.15 presentation of the contractual ■ For the reasons set forth above, under C. Contractual Obligations Table obligations table. The purpose of the the authority at Sections 6, 7, 10 and Disclosures contractual obligations table is to 9(a) of the Securities Act and Sections provide aggregated information about 12, 13, 14, 15(d) and 23(a) of the As an aid to understanding other contractual obligations and contingent Exchange Act, the Commission is liquidity and capital resources liabilities and commitments in a single amending title 17, chapter II of the Code disclosures in MD&A, the contractual location so as to improve transparency of Federal Regulations as set forth obligations tabular disclosure should be of a registrant’s short-term and long- below: prepared with the goal of presenting a term liquidity and capital resources meaningful snapshot of cash needs and to provide context for PART 211—INTERPRETATIONS RELATING TO FINANCIAL REPORTING 13 investors to assess the relative role of See 2003 Interpretive Release, supra note 3, at 16 MATTERS 75060. off-balance sheet arrangements; 14 See Conditions for Use of Non-GAAP Financial registrants should prepare the ■ 1. Part 211, subpart A, is amended by Measures, Release No. 33–8176 (Jan. 22, 2003) [68 disclosure consistent with that adding Release No. FR–83 to the list of FR 4820] and Item 10(e) of Regulation S–K [17 CFR objective. Uncertainties about what to 229.10(e)(5)]. We note that existing rules and interpretive releases as follow: guidance governing the inclusion of non-GAAP include or how to allocate amounts over financial measures in filings with the Commission the periods required in the table should 17 As an example, if useful to a clear do not apply to financial measures that are be resolved consistent with the purpose understanding of the information presented, a ‘‘required to be disclosed by GAAP, Commission of the disclosure. To that end, footnotes registrant might consider separating amounts in the rules, or a system of regulation of a government or should be used to provide information table into those that are reflected on the balance governmental authority or self-regulatory sheet and those arising from off-balance sheet organization that is applicable to the registrant. arrangements, particularly where such a distinction 15 See 2003 Interpretive Release, supra note 3, at 16 See OBS Adopting Release, supra note 4, at helps to tie the information to financial statement 75064. 5990. disclosure and other MD&A discussion.

VerDate Mar<15>2010 15:26 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\28SER2.SGM 28SER2 WReier-Aviles on DSKGBLS3C1PROD with RULES2 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Rules and Regulations 59897

Subject Release No. Date Fed. Reg. vol. and page

******* Commission Guidance on Presentation of Liquidity and Capital FR–83 September 17, 2010 ...... 75 FR [FR PAGE PAGE Resources Disclosures in Management’s Discussion and Anal- NUMBER]. ysis.

PART 231—INTERPRETATIVE RELEASES RELATING TO THE SECURITIES ACT OF 1933 AND GENERAL RULES AND REGULATIONS THEREUNDER ■ 2. Part 231 is amended by adding Release No. 33–9144 to the list of interpretive releases as follow:

Subject Release No. Date Fed. Reg. vol. and page

******* Commission Guidance on Presentation of Liquidity and Capital 33–9144 September 17, 2010 ...... 75 FR [FR PAGE PAGE Resources Disclosures in Management’s Discussion and Anal- NUMBER]. ysis.

PART 241—INTERPRETATIVE RELEASES RELATING TO THE SECURITIES EXCHANGE ACT OF 1934 AND GENERAL RULES AND REGULATIONS THEREUNDER ■ 3. Part 241 is amended by adding Release No. 34–62934 to the list of interpretive releases as follow:

Subject Release No. Date Fed. Reg. vol. and page

******* Commission Guidance on Presentation of Liquidity and Capital 34–62934 September 17, 2010 ...... 75 FR [FR PAGE PAGE Resources Disclosures in Management’s Discussion and Anal- NUMBER]. ysis.

Dated: September 17, 2010. By the Commission. Elizabeth M. Murphy, Secretary. [FR Doc. 2010–23744 Filed 9–27–10; 8:45 am] BILLING CODE 8010–01–P

VerDate Mar<15>2010 15:26 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00005 Fmt 4701 Sfmt 9990 E:\FR\FM\28SER2.SGM 28SER2 WReier-Aviles on DSKGBLS3C1PROD with RULES2 Tuesday, September 28, 2010

Part V

Department of Commerce National Oceanic and Atmospheric Administration

50 CFR Part 226 Endangered and Threatened Wildlife and Plants: Proposed Rulemaking To Designate Critical Habitat for Black Abalone; Proposed Rule

VerDate Mar<15>2010 15:27 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 59900 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

DEPARTMENT OF COMMERCE 0648–AY62, by any one of the following We considered various alternatives to methods: the critical habitat designation for black National Oceanic and Atmospheric • Electronic Submissions: Submit all abalone. The alternative of not Administration electronic public comments via the designating critical habitat for black Federal eRulemaking Portal: http:// abalone would impose no economic, 50 CFR Part 226 www.regulations.gov. Follow the national security, or other relevant [Docket No. 100127045–0120–01] instructions for submitting comments. impacts, but would not provide any • Fax: 1–562–980–4027, Attention: conservation benefit to the species. This RIN 0648–AY62 Melissa Neuman. alternative was considered and rejected • Mail: Submit written information to because such an approach does not meet Endangered and Threatened Wildlife Chief, Protected Resources Division, the legal requirements of the ESA and and Plants: Proposed Rulemaking To Southwest Region, National Marine would not provide for the conservation Designate Critical Habitat for Black Fisheries Service, 501 West Ocean Blvd, of black abalone. The alternative of Abalone Suite 4200, Long Beach, CA 90802– designating all of the areas considered AGENCY: National Marine Fisheries 4213. for designation (i.e., no areas excluded) Service (NMFS), National Oceanic and Instructions: All comments received was also considered and rejected Atmospheric Administration (NOAA), are a part of the public record and will because, for one area, the economic Commerce. generally be posted to http:// benefits of exclusion outweighed the ACTION: Proposed rule; request for www.regulations.gov without change. benefits of designation, and NMFS did comments. All Personal Identifying Information (for not determine that exclusion of this area example, name, address, etc.) would significantly impede SUMMARY: We, the National Marine voluntarily submitted by the commenter conservation of the species or result in Fisheries Service (NMFS), propose to may be publicly accessible. Do not extinction of the species. The total designate approximately 390 square submit Confidential Business estimated annualized economic impact kilometers of critical habitat for the Information or otherwise sensitive or associated with the designation of all of endangered black abalone, pursuant to protected information. NMFS will the areas considered would be $595,900 section 4 of the Endangered Species Act accept anonymous comments (please to $158,967,500 (discounted at 7 (ESA). Specific areas proposed for enter N/A in the required fields if you percent) or $562,600 to $144,410,200 designation include rocky habitats from wish to remain anonymous). (discounted at 3 percent). the mean higher high water (MHHW) Attachments to electronic comments An alternative to designating critical line to a depth of 6 meters (m) within will be accepted in Microsoft Word, habitat within all of the areas the following areas on the California Excel, WordPerfect, or PDF file formats considered for designation is the coast: Del Mar Landing Ecological only. designation of critical habitat within a Reserve to Point Bonita; from the Reference materials and supporting subset of these areas. Under section southern point at the mouth of San documents regarding this proposed 4(b)(2) of the ESA, NMFS must consider Francisco Bay to Natural Bridges State designation can be obtained via the the economic impacts, impacts to Beach; from Pacific Grove to Cayucos; Internet at: http://swr.nmfs.noaa.gov/, national security, and other relevant from Montan˜ a de Oro State Park to just the Federal eRulemaking Portal at: impacts of designating any particular south of Government Point; Palos http://www.regulations.gov, or by area as critical habitat. NMFS has the Verdes Peninsula from the Palos submitting a request to the Assistant discretion to exclude an area from Verdes/Torrance border to Los Angeles Regional Administrator, Protected designation as critical habitat if the Harbor; the Farallon Islands; An˜ o Nuevo Resources Division, Southwest Region, benefits of exclusion (i.e., the impacts Island; San Miguel Island; Santa Rosa NMFS, 501 West Ocean Blvd., Suite that would be avoided if an area were Island; Santa Cruz Island; Anacapa 4200, Long Beach, CA 90802–4213. excluded from the designation) Island; San Nicolas Island; Santa FOR FURTHER INFORMATION CONTACT: outweigh the benefits of designation Barbara Island; Catalina Island; and San Melissa Neuman, NMFS, Southwest (i.e., the conservation benefits to black Clemente Island. We propose to exclude Region (562) 980–4115, or Marta abalone if an area were designated), so the following area from designation Nammack, NMFS, Office of Protected long as exclusion of the area will not because the economic benefits of Resources (301) 713–1401. result in extinction of the species. exclusion outweigh the benefits of SUPPLEMENTARY INFORMATION: Exclusion under section 4(b)(2) of the inclusion, and exclusion will not result ESA of one or more of the areas in the extinction of the species: rocky Background considered for designation would habitats within the MHHW line to a On January 14, 2009, we determined reduce the total impacts of designation. depth of 6 m from Corona Del Mar State that the black abalone (Haliotis The determination of which units to Beach to Dana Point, California. cracherodii) is in danger of extinction exclude depends on NMFS’ ESA section DATES: Comments on this proposed rule throughout all or a significant portion of 4(b)(2) analysis, which is conducted for to designate critical habitat must be its range and listed the species as each area and described in detail in the received by no later than 5 p.m. Pacific endangered under the ESA (74 FR draft ESA 4(b)(2) report (NMFS, 2010b). Standard Time on November 29, 2010. 1937). Under the ESA, we are Under the preferred alternative we A public hearing will be held promptly responsible for designating critical propose to exclude one of the 20 areas if any person so requests by November habitat for all endangered and considered. The total estimated 12, 2010. Notice of the date, location, threatened species (16 U.S.C. 1533). economic impact associated with this and time of any such hearing will be This rule describes the proposed critical preferred alternative is $582,500 to published in the Federal Register not habitat designation, including $155,851,400 (discounted at 7 percent) less than 15 days before the hearing is supporting information on black or $551,800 to $141,300,500 (discounted held. abalone biology, distribution, and at 3 percent). We determined that the ADDRESSES: You may submit comments habitat use, and the methods used to exclusion of this one area would not on the proposed rule, identified by RIN develop the proposed designation. significantly impede the conservation of

VerDate Mar<15>2010 15:27 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59901

black abalone nor result in extinction of events; (3) gene flow among island observations) studies of movement in the species. We selected this as the populations is relatively greater than black abalone suggest that smaller preferred alternative because it results between island and mainland abalone (<65 mm) move more frequently in a critical habitat designation that populations; and (4) the overall than larger abalone, movement is more provides for the conservation of black connectivity among black abalone frequent during night hours compared abalone while reducing the economic populations is low and likely reflects to daylight hours, and larger abalone impacts. This alternative also meets the limited larval dispersal and a low may remain in the same location for requirements under the ESA and our degree of exchange among populations. many years. joint NMFS–U.S. Fish and Wildlife Habitat Diet Service (USFWS) regulations concerning critical habitat. Black abalone generally inhabit Larvae are lecithotrophic (i.e., receive coastal and offshore island intertidal nourishment via an egg yolk) and Black Abalone Natural History habitats on exposed rocky shores where apparently do not actively feed during General Description bedrock provides deep, protective their planktonic life stage. From the crevice shelter (Leighton, 2005). These time of post-larval metamorphosis to a Black abalone (Haliotis cracherodii, complex surfaces with cracks and size of about 20 mm, black abalone are Leach, 1814) are shallow-living marine crevices in upper and middle intertidal highly cryptic, occurring primarily on gastropods with smooth, circular, and zones may be crucial recruitment the undersides of large boulders or in black to slate blue colored shells that habitat and appear to be important for deep narrow crevices in solid rocky have five to nine open respiratory pores adult survival as well (Leighton, 1959; substrata. In such locations the primary sitting flush with the shell’s surface. Leighton and Boolootian, 1963; Douros, food sources are thought to be microbial Typically, the shell’s interior is white 1985, 1987; Miller and Lawrenz-Miller, and possibly diatom films (Leighton, (Haaker et al., 1986), with a poorly 1993; VanBlaricom et al., 1993; Haaker 1959; Leighton and Boolootian, 1963; defined or no muscle scar (Howorth, et al., 1995). Black abalone range Bergen, 1971) and crustose coralline 1978). Adults attain a maximum shell vertically from the high intertidal zone algae. At roughly 20 mm black abalone length of approximately 20 cm to a depth of 6 m, with most animals move to more open locations, albeit still (throughout this notice we use the found in middle and lower intertidal relatively cryptic, gaining access to both maximum diameter of the elliptical zones. In highly exposed locations attached macrophytes and to pieces of shell as the index for individual body downwind of large offshore kelp beds, drift plants cast into the intertidal zone size). The muscular foot of the black the majority of abalone may be found in by waves and currents. As black abalone abalone allows the animal to clamp the high intertidal where drift kelp continue to grow, the most commonly tightly to rocky surfaces without being fragments, a principal food for black observed feeding method is entrapment dislodged by wave action. Locomotion abalone, tend to be concentrated by of drift plant fragments. Webber and is accomplished by an undulating breaking surf. Giese (1969), Bergen (1971), Hines and motion of the foot. A column of shell Pearse (1982), and Douros (1987) have Movement muscle attaches the body to the shell. confirmed the importance of large kelps The mantle and black epipodium, a Planktonic larval abalone movement in the diet of juvenile and adult black sensory structure and extension of the is determined primarily by patterns of abalone. The primary food species are foot which bears lobed tentacles of the water movement in nearshore habitats said to be giant kelp (Macrocystis same color (Cox, 1960), circle the foot near spawning sites. Larvae may be able pyrifera) and feather boa kelp (Egregia and extend beyond the shell of a healthy to influence movement to some degree menziesii) in southern California (i.e., black abalone. The internal organs are by adjusting their vertical position in south of Point Conception) habitats, and arranged around the foot and under the the water column, but to our knowledge, bull kelp (Nereocystis leutkeana) in shell. the ability of black abalone larvae to central and northern California habitats. move in this way has not been Historical and Current Distribution documented. Movement behavior of Reproduction Black abalone historically occurred postmetamorphic juvenile black abalone Black abalone reach reproductive from Crescent City, California, USA, to is likewise unknown. Leighton (1959) maturity between 3 and 7 years (Smith southern Baja California, Mexico and Leighton and Boolootian (1963) et al., 2003), have separate sexes, and (Geiger, 2004), but today the species’ indicate that black abalone larvae may are ‘‘broadcast’’ spawners. Gametes from constricted range occurs from Point settle and metamorphose in the upper both parents are shed into the sea, and Arena, California, USA, to Bahia intertidal zone, using crevices and fertilization is entirely external. Tortugas, Mexico, and it is rare north of depressions (including those formed by Resulting larvae are minute and San Francisco, California, USA (Morris abrasive action of other intertidal defenseless, receive no parental care or et al., 1980), and south of Punta mollusks) as habitat. Leighton and protection of any kind, and are subject Eugenia, Mexico (P. Raimondi, pers. Boolootian (1963) suggest that young to a broad array of physical and comm.). black abalone move lower in the biological sources of mortality. Species intertidal zone as they begin to grow, with a broadcast-spawning reproductive Population Structure occupying the undersides of large strategy are subject to strong selection Recent studies have evaluated boulders. To our knowledge there is no for maximum fecundity of both sexes. population structure in black abalone published information on direct Only through production of large (Hamm and Burton, 2000; Chambers et observations of movement behavior of numbers of gametes can broadcast al., 2006; Gruenthal and Burton, 2008) the smallest (<20 mm) juvenile black spawners overcome high mortality of using various methods. These studies abalone in the field. Qualitative gametes and larvae and survive across indicate: (1) Minimal gene flow among (Leighton, 2005; VanBlaricom, generations. It is not uncommon for populations; (2) black abalone unpublished observations) and broadcast-spawning marine species, a populations are composed quantitative (Bergen, 1971; Blecha et al., group including many taxa of fish and predominantly of closely related 1992; VanBlaricom and Ashworth, in invertebrates, to produce millions of individuals produced by local spawning preparation; Richards, unpublished eggs or sperm per individual per year.

VerDate Mar<15>2010 15:27 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 59902 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

Broadcast spawners are also subject to 2000; Chambers et al., 2005; Chambers tissues (Gardner et al., 1995). other kinds of selection for certain traits et al., 2006; Gruenthal, 2007). Progressive signs of the disease include associated with reproduction, including A sequence of studies and discoveries pedal atrophy, diminished spatial and temporal synchrony in suggests that availability of crustose responsiveness to tactile stimuli, spawning and mechanisms that increase coralline algae in appropriate intertidal discoloration of the epipodium, and a probabilities for union of spawned habitats may be an important settlement loss of ability to maintain adhesion to gametes. cue for larval black abalone, and that the rocky substratum (Raimondi et al., presence of adult black abalone may 2002). While population-scale mortality Spawning Density facilitate larval settlement and rates due to WS may vary in space and As intertidal organisms on exposed metamorphosis because the activities time from near zero to high proportions rocky shores, black abalone typically and presence of the abalone promote the of local populations, the available release gametes into environments of maintenance of substantial substratum evidence suggests that the highest extreme turbulence. As a consequence, cover by crustose coralline algae (Morse disease-induced mortality events have eggs and sperm must be released from et al., 1979; Morse and Morse, 1984; followed periods of elevated sea surface adults in relatively close spatial and Douros, 1985; Trapido- Rosenthal and temperature (e.g., Raimondi et al., temporal proximity in order to have any Morse, 1986; Morse, 1990; Morse, 1992; 2002). Laboratory studies have chance of union and fertilization before Miner et al., 2006). Although crustose demonstrated that elevated water rapid dispersal and loss of opportunity. coralline algae are ubiquitous in rocky temperature, while not a direct cause of A central problem for conservation of benthic habitats along the west coast of WS, accelerates the mortality of black black abalone is the dramatic reduction North America, a mechanistic abalone carrying the pathogen that in densities over the past quarter understanding of processes that sustain causes the disease (Friedman et al., century in almost the entire geographic these algal populations has not been 1997). A recent study examined the range of the species. Reductions in established, to our knowledge. effects of elevated sea surface density are so extreme and widespread Growth and Longevity temperature on abalone at the individual level, and suggested that that considerable attention is now Available data on black abalone warming ocean temperatures are likely focused on assessment of critical growth suggest that young animals reach to have negative consequences on those density thresholds for successful maximum shell diameters of about 2 cm species associated with cooler water reproduction, recruitment, and in their first year, then grow at rates of temperatures and/or particularly population sustainability. Critical 1–2 cm per year for the next several susceptible to WS (Vilchis et al., 2005). density thresholds, below which years. Growth begins to slow at lengths Although there is no explicitly recruitment failure occurs, exist across a of about 10 cm, corresponding to an age broad taxonomic range of marine, range of 4–8 years. Beyond this point, documented causal link between the broadcast-spawning invertebrates (e.g., growth is less predictable, shell erosion persistence of WS and long-term climate sea urchins, sea cucumbers, hard clams, may become a significant factor, and change, patterns observed over the past scallops, giant clams, and geoduck size distributions for older animals may 3 decades suggest that progression of clams). Neuman et al. (in press) vary according to local conditions. ocean warming associated with large- reviewed recruitment patterns in three Growth and erosion of shells may come scale climate change may facilitate long-term data sets for black abalone in into equilibrium in older black abalone, further and more prolonged California, and in each case, recruitment such that growth can be viewed as vulnerability of black abalone to the failed when declining population facultatively determinant. Maximum effects of WS. The preponderance of ¥2 densities fell below 0.34 m . Densities recorded shell length for black abalone evidence indicates that WS continues to in most black abalone populations in was listed at 213 mm by Wagner and damage the size and sustainability of Southern California have fallen below Abbott (1990). Ault (1985) reported a black abalone populations on a large the densities noted. Recent evidence maximum shell length of black abalone scale, with little plausible basis for any suggests that disease-induced increases at 215 mm. Leighton (2005) indicated a predictions of reversal except in in the mortality rate of black abalone shell length of 216 mm reported by localized, spatially isolated cases. continue to move northward along the Owen (unpublished observation). Factors such as poaching, reduced mainland coast of California (e.g., Maximum longevity of black abalone is genetic diversity, ocean acidification, Raimondi et al., 2002; Miner et al., thought to be 20–30 years. non-anthropogenic predation (e.g., by 2006). Thus, the number and geographic octopuses, lobsters, sea stars, fishes, sea scope of populations with densities Mortality otters, and shorebirds) and competition falling below sustainable levels is The most important source of black (e.g., with sea urchins), food limitation, expected to increase. abalone mortality is the disease known environmental pollutants and toxins, Larval Dispersal, Settlement, and as withering syndrome (hereafter WS). and substrate destruction may all Recruitment Disease transmission and manifestation impose mortality on black abalone at is intensified when local sea surface varying rates, but predicting the relative Most abalone larvae drift in the water temperatures increase by as little as impacts of each of these factors on the for a period of about 3–10 days before 2.5 °C above ambient sea surface long-term viability of black abalone is settlement and metamorphosis (e.g., temperatures and remain elevated over difficult without further study. In McShane, 1992). During that short a prolonged period of time (i.e., a few addition to the aforementioned present- period of time, abalone have limited months or more) (Friedman et al., 1997; day sources of mortality, commercial capacity for dispersal over distances Raimondi et al., 2002; Harley and and recreational fisheries operating in beyond a few kilometers. Indirect Rogers-Bennett, 2004; Vilchis et al., California until 1993 likely contributed methods for assessing larval dispersal in 2005). WS is caused by a Rickettsiales- to the species’ decline. For more abalone support the conclusion that like prokaryotic pathogen of unknown information on historic and present-day black abalone exhibit limited larval origin that invades digestive epithelial factors leading to the decline of black dispersal (Tegner and Butler, 1985; cells and disrupts absorption of digested abalone populations, please see the Prince et al., 1988; Hamm and Burton, materials from the gut lumen into the NMFS status review for black abalone

VerDate Mar<15>2010 15:27 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59903

(VanBlaricom et al., 2009), and the those physical and biological features range were found at higher intertidal proposed and final listing rules for black that are essential to the conservation of zones in narrow crevices and in abalone (71 FR 1986, January 11, 2008; a given species and that may require depressions abraded into rock surfaces 74 FR 1937, January 14, 2009). special management considerations or by the intertidal chiton, Nutallina protection.’’ Features to consider may californica (Reeve, 1847). Black abalone Methods and Criteria Used To Identify include, but are not limited to: ‘‘(1) observed at greater depths (3–6 m) Critical Habitat Space for individual and population typically were mature adults. California In accordance with section 4(b)(2) of growth, and for normal behavior; (2) contains approximately 848.5 miles the ESA and our implementing Food, water, air, light, minerals, or other (1365.5 km) of consolidated rocky regulations (50 CFR 424.12(a)), this nutritional or physiological coastline and 599.3 miles (964.5 km) or proposed rule is based on the best requirements; (3) Cover or shelter; (4) 70 percent of it falls within the areas scientific information available Sites for breeding, reproduction, rearing considered in this proposed critical concerning the present and historical of offspring, germination, or seed habitat designation. range, habitat, biology, and threats to dispersal; and generally; (5) Habitats (2) Food resources. Abundant food habitat for black abalone. In preparing that are protected from disturbance or resources including bacterial and this rule, we reviewed and summarized are representative of the historic diatom films, crustose coralline algae, current information on black abalone, geographical and ecological and a source of detrital macroalgae, are including recent biological surveys and distributions of a species.’’ The required for growth and survival of all reports, peer-reviewed literature, the regulations also require the agencies to stages of black abalone. From post-larval NMFS status review for black abalone ‘‘focus on the principal biological or metamorphosis to a size of about 20 (VanBlaricom et al., 2009), and the physical constituent elements’’ mm, black abalone consume microbial proposed and final listing rules for black (hereafter referred to as ‘‘Primary and possibly diatom films (Leighton, abalone (71 FR 1986, January 11, 2008; Constituent Elements’’ or PCEs) within 1959; Leighton and Boolootian, 1963; 74 FR 1937, January 14, 2009). To assist the specific areas considered for Bergen, 1971) and crustose coralline with the evaluation of critical habitat, designation that are essential to algae. At roughly 20 mm black abalone we convened a black abalone critical conservation of the species, which ‘‘may begin feeding on both attached habitat review team (CHRT), comprised include, but are not limited to, the macrophytes and pieces of drift plants of seven Federal biologists from NMFS, following: * * * spawning sites, cast into the intertidal zone by waves the National Park Service (NPS), US feeding sites, seasonal wetland or and currents. The primary macroalgae Geological Survey (USGS), Minerals dryland, water quality or quantity, consumed by juvenile and adult black Management Service (hereafter MMS; * * * geological formation, vegetation abalone are giant kelp (Macrocystis MMS has been renamed the Bureau of type, tide, and specific soil types.’’ pyrifera) and feather boa kelp (Egregia Ocean Energy Management, Regulation, Based on the best available scientific menziesii) in southern California (i.e., and Enforcement, or BOEMRE, as of information, the CHRT identified the south of Point Conception) habitats, and June 18, 2010), and the Monterey Bay following PCEs essential for the bull kelp (Nereocystis leutkeana) in National Marine Sanctuary with conservation of black abalone: central and northern California habitats experience in abalone research, (1) Rocky substrate. Suitable rocky (i.e., north of Santa Cruz). Southern sea monitoring and management. The CHRT substrate includes rocky benches palm (Eisenia arborea), elk kelp used the best available scientific and formed from consolidated rock of (Pelagophycus porra), stalked kelp commercial data and their best various geological origins (e.g., igneous, (Pterygophora californica), and other professional judgment to: (1) Verify the metamorphic, and sedimentary) that brown kelps (Laminaria sp.) may also be geographical area occupied by black contain channels with macro- and consumed by black abalone. abalone at the time of listing; (2) micro-crevices or large boulders (greater (3) Juvenile settlement habitat. Rocky identify the physical and biological than or equal to 1 m in diameter) and intertidal habitat containing crustose features essential to the conservation of occur from mean higher high water coralline algae and crevices or cryptic the species; (3) identify specific areas (MHHW) to a depth of 6 m. All types of biogenic structures (e.g., urchins, within the occupied area containing relief (high, medium and low; 0.5 to mussels, chiton holes, conspecifics, those essential physical and biological greater than 2 m vertical relief; anemones) is important for successful features; (4) verify whether the essential Wentworth, 1922) support black abalone larval recruitment and juvenile growth features within each specific area may and complex configurations of rock and survival of black abalone less than need special management surfaces likely afford protection from approximately 25 mm shell length. The considerations or protection and predators, direct impacts of breaking presence of adult abalone may facilitate identify activities that may affect these waves, wave-born projectiles, and larval settlement and metamorphosis, essential features; (5) evaluate the excessive solar heating during daytime because adults may: (1) Promote the conservation value of each specific area; low tides. Most black abalone occupy maintenance of substantial substratum and (6) determine if any unoccupied the middle and lower intertidal zones. cover by crustose coralline algae by areas are essential to the conservation of In highly exposed locations downwind grazing other algal species that could black abalone. The CHRT’s evaluation of large offshore kelp beds, the majority compete with crustose coralline algae; and conclusions are described in detail of abalone may be found in the high and/or (2) outcompete encrusting sessile in the following sections, as well as in intertidal where drift kelp fragments invertebrates (e.g., tube worms and tube the draft biological report (NMFS, tend to be concentrated by breaking snails) for space on rocky substrates 2010c). surf. Leighton (1959) found evidence for thereby promoting the growth of ontogenetic shifts in depth distribution crustose coralline algae and settlement Physical or Biological Features Essential among juvenile abalone on the Palos of larvae; and/or (3) emit chemical cues for Conservation Verdes Peninsula. Juvenile black necessary to induce larval settlement Joint NMFS–USFWS regulations, at abalone (10–30 mm) were found at mid- (Miner et al., 2006; Toonen and 50 CFR 424.12(b), state that in intertidal depths on undersides of rock Pawlick, 1994). Increasing partial determining what areas are critical providing clear beneath-rock open space pressure of CO2 may decrease habitat, the agencies ‘‘shall consider while juveniles in the 5–10 mm size calcification rates of coralline algae,

VerDate Mar<15>2010 15:27 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 59904 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

thereby reducing their abundance and settlement of abalone (Morse et al., may decrease the likelihood that ultimately affecting the survival of 1979) and severely reduce algal growth abalone larvae will successfully settle to newly settled black abalone (Feely et al., (Silver and Riley, 2001). We are not suitable habitats. However, retention of 2004; Hall-Spencer et al., 2008). aware of other studies that have larvae inshore due to bottom friction Laboratory experiments have shown established direct and indirect links and minimal advective flows near kelp that the presence of pesticides (e.g., between currently used pesticides and beds (the ‘‘sticky water’’ phenomenon; dichlorodiphenyltrichloroethane (DDT), effects on black abalone habitat quality Wolanski and Spagnol, 2000; Zeidberg 2,4-dichlorophenoxyacetic acid (2,4-D), and solicit the public for more and Hamner, 2002) may increase the methoxychlor, dieldrin) interfered with information on this topic. The suitable likelihood that larvae will successfully larval settlement of abalone because the salinity range for black abalone is from settle to suitable habitats. chemical cues emitted by coralline algae 30 to 35 parts per thousand (ppt), and Geographical Area Occupied by the and its associated diatom films which the suitable pH range is 7.5–8.5. Ocean Species and Specific Areas Within the trigger abalone settlement are blocked pH values that are outside of the normal Geographical Area Occupied (Morse et al., 1979), and the pesticide range for seawater (i.e., pH less than 7.5 oxadiazon was found to severely reduce or greater than 8.5; http:// One of the first steps in the critical algal growth (Silver and Riley, 2001). www.marinebio.net/marinescience/ habitat designation process is to define We are not aware of additional 02ocean/swcomposition.htm) may cause the geographical area occupied by the information regarding processes that reduced growth and survivorship in species at the time of listing and to mediate crustose coralline algae abalone as has been observed in other identify specific areas, within this abundance and solicit the public for marine gastropods (Shirayama and geographically occupied area, that more information on this topic. Thornton, 2005). Specifically, with contain at least one PCE that may increasing uptake of atmospheric CO require special management (4) Suitable water quality. Suitable 2 considerations or protection. In the water quality includes temperature, by the ocean, the pH of seawater becomes more acidic, which may January 2009 final ESA listing rule, the salinity, pH, and other chemical range of black abalone was defined to characteristics necessary for normal decrease calcification rates in marine organisms and result in negative extend from Crescent City (Del Norte settlement, growth, behavior, and County, California) to Cape San Lucas, viability of black abalone. The impacts to black abalone in at least two ways: (1) Disrupting an abalone’s ability Baja California, Mexico, including all biogeographical water temperature offshore islands. The northern and to maintain and grow its protective range of black abalone is from 12 to 25 southern extent of the range was ° shell; and/or (2) reducing abundance of C, but they are most abundant in areas determined based on museum coralline algae (and associated diatom where the water temperature ranges specimens collected more than 10 years ° films and bacteria), a calcifying from 18 to 22 C (Hines et al., 1980). prior to the listing of the species (Geiger, organism that may mediate settlement There is increased mortality due to WS 2004). Because this range was based on through chemical cues and support and during periods following elevated sea dated records, and because we cannot provide food sources for newly settled surface temperature (Raimondi et al., designate critical habitat in areas abalone (Feely et al., 2004; Hall-Spencer 2002). The CHRT did not consider the outside of the United States (see 50 CFR et al., 2008). presence of the bacteria that causes WS 424.12(h)), the CHRT reconsidered the when evaluating the condition of this (5) Suitable nearshore circulation scope of the current (i.e., at the time of PCE because it is thought to be present patterns. Suitable circulation patterns the final ESA listing) occupied range of throughout a large portion of the are those that retain eggs, sperm, black abalone. The CHRT examined data species’ current range (greater than 60 fertilized eggs and ready-to-settle larvae from ongoing monitoring studies along percent), including all coastal specific enough so that successful fertilization the California coast (Neuman et al., in areas south of Monterey County, CA and and settlement to suitable habitat can press) and literature references to the Farallon Islands (J. Moore, pers. take place. Nearshore circulation determine that, within the United comm.). Instead the CHRT relied on sea patterns are controlled by a variety of States, the geographical area currently surface temperature information to factors including wind speed and occupied by black abalone extends from evaluate water quality in terms of direction, current speed and direction, the Del Mar Landing Ecological Reserve disease virulence, recognizing that tidal fluctuation, geomorphology of the in Sonoma County, California, to Dana elevated sea surface temperatures are coastline, and bathymetry of subtidal Point, Orange County, California, on the correlated with increased rates of WS habitats adjacent to the coastline. mainland and includes the Farallon transmission and manifestation in Anthropogenic activities may also have Islands, An˜ o Nuevo Island, and all of abalone. Elevated levels of contaminants the capacity to influence nearshore the California Channel Islands. The (e.g., copper, oil, polycyclic aromatic circulation patterns (e.g., intake pipes, CHRT noted that there are pockets of hydrocarbon (PAH) endocrine sand replenishment, dredging, in water unoccupied habitat within this broader disrupters, persistent organic construction, etc.). These factors, in area of occupation (NMFS, 2010c). compounds (POC)) can cause mortality combination with the early life history Within this geographically occupied of black abalone. In 1975, toxic levels of dynamics of black abalone, may area, black abalone typically inhabit copper in the cooling water effluent of influence retention or dispersal rates of coastal and offshore island rocky a nuclear power plant near Diablo eggs, sperm, fertilized eggs and ready-to- intertidal habitats from MHHW to Canyon, California, were associated settle larvae (Siegel et al., 2008). Given depths of 6 m (Leighton, 2005). The with abalone mortalities in a nearshore that black abalone gamete and larval CHRT then identified ‘‘specific areas’’ cove that received significant effluent durations are relatively short, larvae within the geographical area occupied flows (Shepherd and Breen, 1992; have little control over their position in by the species that may be eligible for Martin et al., 1977). As mentioned the water column, and ready-to-settle critical habitat designation under the above for the Juvenile settlement habitat larvae require shallow, intertidal habitat ESA. For an occupied specific area to be PCE, laboratory experiments have for settlement. Forces that disperse eligible for designation it must contain shown that the presence of some larvae offshore (i.e., by distances on the at least one PCE that may require special pesticides interfere with larval order of greater than tens of kilometers) management considerations or

VerDate Mar<15>2010 15:27 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59905

protection. For each occupied specific Activities that exacerbate global climate affected by WS. The CHRT was of the area, the CHRT reviewed the available change (most notably fossil fuel opinion that the area could support data regarding black abalone presence combustion, which contributes to an higher densities and multiple size and verified that each area contained increase in atmospheric CO2 levels and classes of black abalone in the future if one or more PCE(s) that may require subsequent sea level rise, sea surface habitat changes (e.g., sea surface special management considerations or temperature elevation, and ocean temperature rise) render it more suitable protection. The CHRT determined that acidification) were identified as a for promoting population growth. Thus, for all specific areas, unless otherwise concern for all of the specific areas. The the CHRT scored the conservation value noted, MHHW delineates the landward Black Abalone Proposed Critical Habitat of this area as ‘‘High.’’ boundary, and the 6 m bathymetric Designation maps below, as well as the Specific Area 2. Specific Area 2 contour delineates the seaward draft biological report (NMFS, 2010c), includes rocky intertidal habitat from boundary. The CHRT also agreed to show the location of each specific area Bodega Head in Sonoma County, consider naturally occurring considered for designation. California, to Point Bonita in Marin geomorphological formations and size Specific Area 1. Specific Area 1 County, California. Point Bonita was (i.e., area) to delineate the northern and includes the rocky intertidal habitat chosen to delineate the southern southern boundaries of the specific from the Del Mar Landing Ecological boundary of this specific area because it areas. The CHRT intentionally aimed to Reserve to Bodega Head in Sonoma sits at the southern point of the Marin delineate specific areas of similar sizes County, California. Bodega Head is a Headlands, the final promontory encountered as one moves south along in order to minimize biases in the small peninsula that creates a natural the coast before reaching the entrance to economic cost estimates for the specific barrier between it and the coastline that San Francisco Bay. Historical presence areas. lies to the east and south. In addition, of black abalone within this area is The CHRT scored and rated the the geological origin of Bodega Head limited, but in locations where black relative conservation value of each differs from that of the coastline to the abalone were observed, they were occupied specific area. Areas rated as east and south of it. For these reasons, considered rare (Light, 1941; Chan, ‘‘High’’ were deemed to have a high this location was chosen to delineate the 1980; S. Allen, pers. comm.). Since the likelihood of promoting the southern boundary of Specific Area 1. mid-2000s, Point Reyes National conservation of the species. Areas rated Based on the limited historical data Seashore and Golden Gate National ‘‘ ’’ ‘‘ ’’ as Medium or Low were deemed to available for this area (Geiger 2003, Recreation Area staff have observed have a moderate or low likelihood of State Water Resources Control Board black abalone at several locations, but promoting the conservation of the 1979, J. Sones pers. comm.), black their qualitative abundance is species, respectively. The CHRT abalone were encountered occasionally considered to be rare (see definition of considered several factors in assigning in some locations. Black abalone have rare above). This area contains good to the conservation value ratings, been present in this area in low excellent quality consolidated rocky including the PCEs present, the numbers since the Partnership for substrate (e.g., 71 percent of rocky condition of the PCEs, and the Interdisciplinary Studies of Coastal substrate available is consolidated), food historical, present, and potential future Oceans (PISCO) began its long-term resources, and water quality, and fair to use of the area by black abalone. These intertidal sampling program in the early good settlement habitat, but as with factors were scored by the CHRT and 2000s. Black abalone are currently Specific Area 1 above, the area is at the summed to generate a total score for considered to be rare (i.e., difficult to limit of the species’ northern range, each specific area, which was find with some search effort and rarely which may explain its rarity. There are considered in the CHRT’s evaluation seen at sampling sites; J. Sones pers. several activities occurring within this and assignment of the final conservation comm.), and the CHRT expressed area that may threaten the quality of the value ratings. The draft biological report uncertainty regarding the area’s ability PCEs, including: sand replenishment, (NMFS, 2010c; available via our Web to support early life stages of black waste-water discharge, coastal site at http://swr.nmfs.noaa.gov, via the abalone because historical and current development, non-native species Federal eRulemaking Web site at http:// data are lacking. However, the presence introduction and management, activities www.regulations.gov, or upon request— of good to excellent quality rocky that exacerbate global climate change, see ADDRESSES) describes in detail the substrate (e.g., 87 percent of rocky and agricultural pesticide application methods used by the CHRT in their substrate available is consolidated), food and irrigation. This area is at the limit assessment of the specific areas and resources, and water quality (Water of the species’ northern range, which provides the biological information Quality Control Board, 1979) and fair to may explain the rarity of black abalone supporting the CHRT’s assessment as good settlement habitat led the CHRT to here, but it is also one of the few areas well as the final conservation value conclude that the area could support a along the California coast that has not ratings and justifications. The following larger black abalone population yet been affected by WS. The CHRT was paragraphs provide a brief description comprised of multiple size classes. of the opinion that the area could of the presence and distribution of black There are several activities occurring support higher densities and multiple abalone within each area, additional within this area that may threaten the size classes of black abalone in the detail regarding the CHRT’s methods for quality of the PCEs including waste- future if habitat changes (e.g., sea delineating the specific areas, and the water discharge, agricultural pesticide surface temperature rise) render it more justification for assigning conservation application and irrigation, construction suitable for promoting population scores. The following paragraphs also and operation of tidal and wave energy growth. Thus, the CHRT scored the provide a brief description of the projects, and activities that exacerbate conservation value of this area as activities within each area that may global climate change (e.g., fossil fuel ‘‘High.’’ threaten the quality of the PCEs, which combustion). This area is at the limit of Specific Area 3. Specific Area 3 are discussed in more detail in the the species’ northern range, which may includes the rocky intertidal habitat Special Management Considerations or explain the rarity of black abalone here, surrounding the Farallon Islands, San Protection section below and the draft but it is also one of the few areas along Francisco County, California. This area economic report (NMFS, 2010a). the California coast that has not yet been is a group of islands and rocks found in

VerDate Mar<15>2010 15:27 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 59906 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

the Gulf of the Farallones, 27 miles (43 agricultural pesticide application and An˜ o Nuevo State Reserve, the rest of km) west of the entrance to San irrigation, non-native species which is on the mainland opposite the Francisco Bay and 20 miles (32 km) introduction and management, oil and island. Black abalone were common in south of Point Reyes. The islands are a chemical spills and clean-up, and intertidal habitats surrounding the National Wildlife Refuge and are activities that exacerbate global climate island during surveys conducted from currently managed by the USFWS, in change. The CHRT scored the 1987–1995, with mean densities ranging conjunction with the Point Reyes Bird conservation value of this area as from 6–8 per m2 (Tissot, 2007; Observatory Conservation Science. The ‘‘Medium.’’ VanBlaricom et al., 2009). To our waters surrounding the islands are part Specific Area 5. Specific Area 5 knowledge, the island has not been of the Gulf of the Farallones National includes rocky intertidal habitat from surveyed for black abalone since that Marine Sanctuary. Historical presence Moss Beach to Pescadero State Beach, time. The CHRT verified that good to of black abalone in intertidal habitats San Mateo County, California. This area excellent quality rocky substrate, food surrounding the Farallon Islands was was considered separately from Specific resources, and water quality, and fair to noted in the late 1970s (Farallones Area 4, even though each area alone is good settlement habitat exist at An˜ o Research Group, 1979) and again in the smaller in size compared to the majority Nuevo Island, but expressed uncertainty early 1990s (E. Ueber, unpublished of the other specific areas. The reasons regarding whether the area currently data). Black abalone have been observed for separate consideration were that: (1) supports early life stages and long-term in Specific Area 3 during limited The CHRT team viewed the PCEs in survival of juveniles and adults. The surveys conducted during the past 5 Specific Area 5 as being of lower quality impact of global climate change on the years, and researchers have confirmed overall than those contained within habitat features important to black that all of the PCEs are present and of Specific Area 4; and (2) the level of abalone was the only concern identified good to excellent quality, and adverse certainty the CHRT had in evaluating within this specific area. The CHRT impacts due to anthropogenic activities the conservation value of Specific Area scored the conservation value of this on these isolated islands are relatively 4 was higher than that for Specific Area area as ‘‘High.’’ 5. The CHRT recognized that all of the low. However, the CHRT expressed Specific Area 7. Specific Area 7 PCEs were present in the area and their concern over the following activities includes the rocky intertidal habitat current quality ranged from poor to that may affect habitat features from Pescadero State Beach, San Mateo good. The CHRT expressed a high important for black abalone County, California, to Natural Bridges conservation and recovery, including: degree of uncertainty regarding the area’s ability to support early life stages State Beach, Santa Cruz County, waste-water discharge, agricultural California. Situated to the north of pesticide application and irrigation, and and long-term survival of juveniles and adults because the area has not been Monterey Bay, Natural Bridges State activities that exacerbate global climate Beach marks the last stretch of rocky change. The CHRT scored the adequately studied. Since the species was listed in 2009, only one survey has intertidal habitat before reaching the conservation value of this area as primarily fine-to medium-grained sand ‘‘High.’’ been conducted by Reyes National Seashore and Golden Gate National beaches of Monterey Bay (http:// Specific Area 4. Specific Area 4 www.sanctuarysimon.org/monterey/ Recreation Area researchers. One black _ _ extends from the land mass framing the abalone was identified during this sections/beaches/b overview map.php). southern entrance to San Francisco Bay survey. Waste-water discharge, oil and Historical data are limited, but the to Moss Beach, San Mateo County, chemical spills and clean-up, and information available suggests that black California, and includes all rocky activities that exacerbate global climate abalone were common at a couple of intertidal habitat within this area. There change may compromise the quality of sites within this specific area in the late is limited historical and current the PCEs within this specific area. The 1970s and early 1980s (Water Quality information regarding black abalone CHRT scored the conservation value of Control Board, 1979; J. Pearse, pers. occurrence and abundance along this this area as ‘‘Medium,’’ recognizing that comm.) and rare at the majority of sites stretch of the coast. At the one site it lies to the north of areas that have (Water Quality Control Board, 1979; J. where black abalone were noted experienced population declines, and Pearse, pers. comm.). PISCO began historically, they were considered to be thus the habitat in this area may still intertidal black abalone surveys in this rare (Light, 1941). PISCO, Point Reyes provide a refuge from the devastating area in 1999 and, at that time, National Seashore and Golden Gate effects of WS. qualitative abundance ranged from rare National Recreation Area researchers Specific Area 6. Specific Area 6 to common, depending on the specific found ten individuals within this includes the rocky intertidal habitat site. Sampling by PISCO within the last specific area during limited surveys surrounding An˜ o Nuevo Island, San 5 years indicates that black abalone are conducted since 2007. The CHRT Mateo County, California. The island present and common at about 50 considered the PCEs within the area to lies 50 miles (74 km) south of San percent of the sites within this area, but be of fair to good quality. While the Francisco Bay and, two hundred years that abundance may be declining at a CHRT was uncertain about this area’s ago, it was connected to the mainland few of these sites. At the other sites, ability to support early life stages by a narrow peninsula. Today it is black abalone are either present, but because data are lacking, it was more separated from the mainland by a rare, or completely absent. The CHRT confident that the area can support the channel that grows wider with each confirmed that all of the PCEs are long-term survival of juveniles and winter storm. An˜ o Nuevo Island is present and of good to excellent quality adults based on several lines of managed by the University of California here. PISCO data (Raimondi et al., 2002; evidence from historical records (Light, Santa Cruz’s Long Marine Laboratory Tissot, 2007) provide evidence that the 1941, J. Sones, pers. comm..; M. Wilson, under an agreement with the California area supports early life stages (i.e., small pers. comm.). The CHRT noted that the Department of Parks and Recreation. individuals (< 30mm) are present following activities may threaten the The An˜ o Nuevo Island Reserve, currently; see definition in NMFS, quality of the PCEs within this specific including the island and surrounding 2010c) and long-term survival of area: Sand replenishment, waste-water waters, comprises approximately 25 of juveniles and adults (i.e., there is stable discharge, coastal development, the 4,000 acres (10 of 1,600 ha) of the or increasing abundance, and multiple

VerDate Mar<15>2010 15:27 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59907

size classes of black abalone evident in northern edge of Estero Bay, Cayucos that they were considered to be common length-frequency distributions; see marks the last stretch of rocky intertidal at a majority of the sites sampled definition in NMFS, 2010c). The CHRT habitat before reaching the primarily (Raimondi et al., 2002; Tissot, 2007). identified the following activities that fine-to medium-grained sand beaches of PISCO and UCSC established long-term may threaten the quality of habitat Estero Bay. PISCO and the University of monitoring sites within this area features essential to black abalone California Santa Cruz (UCSC) between 1992 and 2007, and, within the within this area: Sand replenishment, established long-term monitoring sites last 5 years, population declines have waste-water discharge, coastal within this area between 1995 and 2008. been noted at most locations within this development, sidecasting (i.e., the piling Surveys conducted prior to 2004 specific area, with local extinction of excavated dirt on the edge of a ditch indicated that black abalone of a range occurring in at least one sampling site. or elsewhere in a wetland or other water of sizes were present and common at all Despite declines in abundance and lack body because of road maintenance), but one of the sites surveyed within this of evidence of recent recruitment in this agricultural pesticide application and area (Water Quality Control Board, specific area, the CHRT confirmed that irrigation, oil and chemical spills and 1979; Raimondi et al., 2002; Tissot, the PCEs range from fair to excellent clean-up, construction and operation of 2007). More recent information gathered quality along this stretch of the desalination plants, vessel grounding, by PISCO and UCSC indicates that black California coast. The CHRT identified non-native species introduction and abalone of a range of sizes are present several activities that may threaten the management, kelp harvesting, and at all sites within the area and are quality of the PCEs within this specific activities that exacerbate global climate commonly found at 57 percent of the area, including: in-water construction, change. The CHRT scored the sites, occasionally found with some waste-water discharge, coastal conservation value of this area as search effort at 14 percent of the sites, development, agricultural pesticide ‘‘High.’’ and rarely found at 29 percent of the application and irrigation, construction Specific Area 8. Specific Area 8 sites. The CHRT confirmed that all of and operation of power generating and includes rocky intertidal habitats from the PCEs are present and of good to desalination plants, mineral and Pacific Grove to Prewitt Creek, excellent quality. The area supports petroleum exploration and extraction, Monterey County, California. Pacific early life stages and long-term survival non-native species introduction and Grove marks the first stretch of rocky of juveniles and adults (see NMFS, management, kelp harvesting and intertidal habitat to the south of the 2010c for details). However, the CHRT activities that exacerbate global climate fine-to medium-grained sand beaches of also noted that PISCO researchers have change. The CHRT scored the Monterey Bay (http:// reported recent population declines at conservation value of this area as www.sanctuarysimon.org/monterey/ 57 percent of the sites sampled within ‘‘High.’’ sections/beaches/b_overview_map.php). this area and in at least one site, the Specific Area 11. Specific Area 11 In order to keep the size of this area population decline has been severe. comparable to other specific areas, includes rocky intertidal habitats Activities that may threaten the habitat surrounding the Palos Verdes Peninsula Prewitt Creek was chosen to delineate features important for black abalone its southern boundary. Surveys and extends from the Palos Verdes/ conservation are: waste-water discharge, Torrance border to Los Angeles Harbor conducted prior to 2004 indicated that agricultural pesticide application and black abalone encompassing a range of in southwestern Los Angeles County, irrigation, oil and chemical spills and California. This small peninsula is one sizes were present and common at all of clean-up, construction and operation of the sampled sites within this area of only two areas within Santa Monica desalination plants, kelp harvesting, and (Water Quality Control Board, 1979; Bay that contain intertidal and subtidal activities that exacerbate global climate Raimondi et al., 2002; Tissot, 2007). rocky substrate suitable for supporting change. The CHRT scored the More recent information gathered black abalone. The limited extent of conservation value of this area as within the last 5 years by PISCO rocky intertidal habitat is what defines ‘‘High.’’ indicates that black abalone the northern and southern boundaries of encompassing a range of sizes remain at Specific Area 10. Specific Area 10 this specific area. Long-term intertidal all sites sampled and are considered includes rocky intertidal habitats from monitoring on the Peninsula conducted common at 93 percent of the sites. The Montan˜ a de Oro State Park in San Luis by the California State University Long CHRT confirmed that all of the PCEs are Obispo County, California, to just south Beach (CSULB) and the Cabrillo Marine present and of good to excellent quality, of Government Point, Santa Barbara Aquarium began in 1975, and, at that but may be threatened by waste-water County, California. Montan˜ a de Oro time, densities ranged from 2 to 7 per discharge, coastal development, State Park is the first stretch of rocky m2. Densities declined throughout the agricultural pesticide application and intertidal habitat encountered to the 1980s, and by the 1990s black abalone irrigation, oil and chemical spills and south of the sandy beaches of Estero were locally extinct at a majority of clean-up, construction and operation of Bay, thus it was chosen to delineate the sampling sites within the area. Good to desalination plants, kelp harvesting, and northern boundary of this specific area. high quality rocky substrate and food activities that exacerbate global climate The southern boundary of this area, resources and fair to good settlement change. PISCO data (Raimondi et al., Government Point, is where the Santa habitat persist within this area, which 2002; Tissot, 2007) provide evidence Barbara Channel meets the Pacific led to the CHRT’s conclusion that this that the area supports early life stages Ocean, the mostly north-south trending area is of ‘‘Medium’’ conservation value. and long-term survival of juveniles and portion of coast transitions to a mostly The CHRT recognized that water quality adults (see NMFS, 2010c for details). east-west trending part of the coast, and within this area is in poor condition. The CHRT scored the conservation a natural division between Southern Unlike the majority of the other areas value of this area as ‘‘High.’’ and Central California occurs. For these where significant declines in black Specific Area 9. Specific Area 9 reasons, it was chosen as the southern abalone abundance have been observed, includes rocky intertidal habitats from boundary of this specific area. Historical declines in this area occurred prior to Prewitt Creek, Monterey County, data indicates that black abalone were the onset of WS and have been California to Cayucos, San Luis Obispo present at 100 percent of the sites attributed to the combined effects of County, California. Situated on the sampled within this specific area and significant El Nin˜ o events and poor

VerDate Mar<15>2010 15:27 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 59908 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

water quality resulting from large- putative black abalone was observed at abundance of >99 percent were volume domestic sewage discharge by one additional location in January, observed at all of the CINP sampling Los Angeles County during the 1950s 2010. The area contains rocky substrate sites. Within the last 5 years, abundance and 1960s (Leighton, 1959; Cox, 1962; (88 percent of rocky substrate is at most locations remains depressed; Young, 1964; Miller and Lawrenz- consolidated) and food resources that however, at a small number of sites Miller, 1993). From the mid-1970s to are in fair to good condition, but abundance has increased and repeated 1997, however, improved wastewater settlement habitat and water quality are recruitment events have occurred. These treatment processes resulted in an 80 in poor to fair condition. Abundance of areas contain fair to excellent rocky percent reduction in the discharge of crustose coralline algae is limited in the substrate, food resources, settlement total suspended solids from the White rocky intertidal area and the extirpation habitat and water quality, despite the Point outfall. That, along with kelp of abalone from the habitat has resulted fact that abundance has declined replanting efforts in the 1970s, resulted in a shift in its biogenic structure, dramatically since the 1980s. Because in a remarkable increase in the kelp rendering the area less suitable for these islands are somewhat remote, canopy from a low of 5 acres (2 settling abalone larvae. Water quality there is a limited list of activities that hectares) in 1974 to a peak of more than may be tainted by waste-water may threaten the PCEs in these specific 1,100 acres (445 hectares) in 1989. More discharge, agricultural pesticide areas and they include: oil and chemical recently, erosion and sedimentation application and irrigation, construction spills and clean-up on Santa Cruz have threatened the kelp beds off the and operation of desalination plants, Island; waste-water discharge, Palos Verdes Peninsula. Since 1980, an and changes in the thermal and agricultural pesticide application and active landslide at Portuguese Bend on chemical properties of sea water irrigation on Anacapa Island; and kelp the Palos Verdes Peninsula has supplied through global climate change. Food harvesting and activities that exacerbate more than seven times the suspended resources within this area may be global warming. The CHRT recognized solids as the Whites Point outfall impacted by kelp harvesting activities. that, although these areas are currently (LACSD, 1997). Currently, there is no The CHRT scored this area of ‘‘Low’’ lacking multiple size classes of black evidence that this area supports conservation value primarily because abalone, there is evidence of small-scale recruitment, and, given the extremely the quality of the PCEs is relatively low recovery at a few locations, and, low numbers of juveniles and adults, it and because black abalone have not therefore, these areas received ‘‘High’’ is suspected that the area does not been identified at regularly monitored conservation value scores. support long-term persistence of this sampling locations within the last five Specific Areas 17–20. Specific Areas population (Miller and Lawrenz-Miller, years. 17–20 include the rocky intertidal 1993; J. Kalman and B. Allen, pers. habitat surrounding the Southern Specific Areas 13–16. Specific Areas California Channel Islands: San Nicolas comm.). However, because many of the 13–16 include the rocky intertidal habitat features important to black Island in Ventura County, CA, Santa habitat surrounding the Northern Barbara Island in Santa Barbara County, abalone are still present and are in fair California Channel Islands: San Miguel, to excellent condition, the CHRT scored CA, and Santa Catalina and San Santa Rosa, and Santa Cruz islands in Clemente islands in Los Angeles the conservation value of this area as Santa Barbara County, California, and ‘‘Medium.’’ The activities that may County, California. The Southern Anacapa Island in Ventura County, Channel Islands are part of the same threaten the habitat features important California. The Northern Channel to the conservation of black abalone are archipelago that includes the Northern Islands lay just off California’s southern Channel Islands. San Nicolas and San sand replenishment, waste-water coast in the Santa Barbara Channel and Clemente islands have been owned and management, non-native species remain somewhat isolated from operated by the U.S. Navy since the introduction and management, kelp mainland anthropogenic impacts. In early 1930s. These islands accommodate harvesting, and activities that exacerbate 1980, Congress designated these islands a variety of Navy training, testing and global climate change. and approximately 100,000 acres (405 evaluation activities including naval Specific Area 12. Specific Area 12 km2) of submerged land surrounding surface fire support, air-to-ground includes rocky intertidal habitats from them as a national park because of their ordnance delivery operations, special Corona Del Mar State Beach to Dana unique natural and cultural resources. operations, surface weapon launch Point in Orange County, California. The This area was augmented by the support, and radar testing. Santa limited extent of rocky intertidal habitat designation of Channel Islands National Barbara Island and its surrounding is what defines the northern and Marine Sanctuary later that year. The waters out to six nautical miles (11km) southern boundaries of this specific sanctuary boundaries stretch 6 nautical were designated part of the CINP and area. Historical information for this area miles (11 km) offshore, including their the Channel Islands National Marine indicates that black abalone were interconnecting channels. Channel Sanctuary in 1980. Since 1972, Santa present along this stretch of coastline, Islands National Park (CINP) began an Catalina Island has been owned and limited abundance information intertidal monitoring program on San primarily by a nonprofit organization, suggests densities of <1 per m2 (Tissot, Miguel, Santa Rosa, and Anacapa the Catalina Island Conservancy, whose 2007; S. Murray, pers. comm.) in the islands in the early to mid-1980s, while mission is to preserve and conserve the late 1970s and early 1980s. Thus, there monitoring on Santa Cruz Island did not island. is uncertainty regarding whether these begin until 1994. Historically, black Since 1981, the U. S. Geological populations were viable at that time. By abalone were present and common at 76 Survey (USGS) and the University of 1986, local extinction of black abalone percent of the sampling locations within Washington (UW) have monitored at one sampling location within this these specific areas (Water Quality multiple sites around San Nicolas specific area was reported (Tissot, Control Board, 1979; Water Quality Island. Black abalone were considered 2007). The University of California Control Board, 1982; Water Quality common at all of the sites up until Fullerton began monitoring four sites Control Board, 1982; B. Douros, pers. approximately 1993, when mass within this area in 1996, and no black comm.; CINP, pers. comm.; Tissot, mortalities due to WS swept through the abalone have been observed at these 2007). Severe population declines began island (VanBlaricom, 2009). Within the locations within the last 5 years. A in 1986 and by the 1990s declines in last 5 years, slight increases in

VerDate Mar<15>2010 15:27 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59909

abundance have been observed at 33 to excellent condition. There is a great and the areas in which those threats percent of the sampled sites and deal of uncertainty regarding whether occur. NMFS and the CHRT then moderate increases in abundance at one the island supports early life stages and determined whether at least one PCE in site. At 55 percent of the sampled sites, the long-term survival of juveniles and each specific area may require special abundance remains low with densities adults because data are lacking. The management considerations or less than 2 percent of their former CHRT scored the conservation value of protection because of a threat or threats. values prior to population declines. this area as ‘‘High,’’ despite uncertainty NMFS and the CHRT worked together to Recent repeated recruitment events have in the demographic history and current identify activities that could be linked occurred at a few sites as evidenced by status of populations on Catalina, to threats, and when possible, identified the presence of small individuals (<30 because the habitat is in good condition ways in which activities might be mm; VanBlaricom, unpublished data). and could support black abalone altered in order to protect and improve Thus, this specific area supports early populations in the future. Several the quality of black abalone PCEs. These life stages. However, the long-term activities may compromise the generally activities are described briefly in the survival of juveniles and adults is good habitat quality surrounding following paragraphs and Table 1. These questionable, given that relative Catalina Island, including in-water activities are documented more fully in abundance levels remain low and construction, waste-water discharge, the draft biological report (NMFS, evidence of multiple size classes is still coastal development, oil and chemical 2010c) and draft economic report lacking at the majority of sampling sites. spills and clean-up, construction and (NMFS, 2010a), which provide a All of the PCEs are present and are of operation of desalination plants and description of the potential effects of good to excellent quality, which led the tidal and wave energy projects, kelp each category of activities on the PCEs. CHRT to score this area as one of ‘‘High’’ harvesting and activities that exacerbate The major categories of habitat-related conservation value. The CHRT global climate change. activities include: (1) Coastal identified the following activities that San Clemente Island was surveyed by development (e.g., construction or may compromise the quality of habitat the California Department of Fish and expansion of stormwater outfalls, features essential to the conservation of Game from 1988–1993. As late as residential and commercial black abalone within this specific area: October 1988, black abalone were construction); (2) in-water construction in-water construction, waste-water present and populations were robust at (e.g., coastal armoring, pier management, coastal development, a number of locations, but by 1990, construction, jetty or harbor construction and operation of population declines due to WS were construction, pile driving); (3) sand desalination plants, kelp harvesting, and underway (CDFG, 1993). Densities replenishment or beach nourishment activities that exacerbate global climate decreased to less than 1 per m2 by 1993 activities; (4) dredging and disposal of change. (CDFG, 1993). The Department of dredged material; (5) agricultural CINP began limited sampling at Santa Defense initiated a San Clemente Island- activities (e.g., irrigation, livestock Barbara Island in 1985. At that time wide investigation to determine the farming, pesticide application); (6) black abalone were present on the current extent of remaining black National Pollutant Discharge island, and their qualitative abundance abalone populations on the island in Elimination System (NPDES) activities levels ranged from rare to common. 2008. During 30-minute timed searches and activities generating non-point Within the last 5 years black abalone at 61 locations that each covered source pollution; (7) sidecasting have disappeared from one sampling approximately 1500 m2 of potential activities (e.g., the piling of excavated site and remain present, but rare, at black abalone habitat, ten black abalone dirt on the edge of a ditch or elsewhere another. The CHRT considered the (all > 100 mm) were identified and all in a wetland or other water body rocky substrate and settlement habitat to but two of the animals were solitary because of road maintenance); (8) oil be of fair to good quality, food resources individuals (Tierra Data Inc., 2008). All and chemical spills and clean-up to be of poor to fair quality, and water of the PCEs are present and are in good activities; (9) mineral and petroleum quality to be good to excellent. to excellent condition, despite the fact exploration or extraction activities; (10) However, given the lack of evidence of that there is no evidence of recruitment power generation operations involving recruitment both historically and and the island currently does not water withdrawal from and discharge to currently and very low numbers of support long-term survival of adults. In marine coastal waters; (11) construction juveniles and adults, the CHRT scored order to protect these high quality PCEs and operation of alternative energy the conservation value of this area as and promote the conservation of black hydrokinetic projects (tidal or wave ‘‘Medium.’’ The only activities that abalone, certain activities may require energy projects); (12) construction and threaten the PCEs and that may require modification, such as in-water operation of desalination plants; (13) special management on Santa Barbara construction, coastal development, kelp construction and operation of liquefied Island are those that alter the thermal harvesting, and activities that exacerbate natural gas (LNG) projects; (14) vessel and chemical properties of sea water global climate change. Thus, the CHRT groundings; (15) non-native species through global climate change, most deemed this area as being of ‘‘High’’ introduction and management (from notably fossil fuel combustion. conservation value. commercial shipping and aquaculture); Surveys conducted around Catalina (16) kelp harvesting activities; and (17) Special Management Considerations or Island in the 1960s, 1970s, and 1980s activities that exacerbate global climate Protection confirm that black abalone were present change (e.g., fossil fuel combustion). at a variety of locations around the Joint NMFS and USFWS regulations The draft Biological Report (NMFS island, but size distribution and at 50 CFR 424.02(j) define ‘‘special 2010a) and draft Economic Analysis abundance information are lacking. The management considerations or Report (NMFS 2010b) provide a PISCO University of California Los protection’’ to mean ‘‘any methods or description of the potential effects of Angeles group established two long- procedures useful in protecting physical each category of activities and threats on term sampling sites in 1982 and 1995, and biological features of the the PCEs. For example, activities such and, since the 1990s, black abalone have environment for the conservation of as in-water construction, coastal not been encountered at these sites. All listed species.’’ The CHRT identified development, dredging and disposal, of the PCEs are present and are in fair several threats to black abalone PCEs sidecasting, mineral and petroleum

VerDate Mar<15>2010 15:27 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 59910 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

exploration and extraction, and sand projects may also increase local water and settlement habitat if these species replenishment may result in increased temperatures with the discharge of alter the natural algal communities. sedimentation, erosion, turbidity, or heated effluent, introduce elevated Shifts in water temperatures and sea scouring in rocky intertidal habitats and levels of certain metals or contaminants level related to global climate change may have adverse impacts on rocky into the water, or alter nearshore water may also affect black abalone habitat. substrate, settlement habitat, food circulation patterns. The discharge of For example, coastal water temperatures resources, water quality, or nearshore contaminants from activities such as may increase to levels above the optimal circulation patterns. The construction of NPDES activities may affect water range for black abalone, and sea level proposed energy and desalination quality, food resources (by affecting the rise may alter the distribution of rocky algal community), and settlement projects along the coast would result in intertidal habitats along the California increased in-water construction and habitat (by affecting the ability of larvae coast. coastal development. The operation of to settle). Introduction of non-native these energy projects and desalination species may also affect food resources

TABLE 1—SUMMARY OF ACTIVITIES THAT MAY AFFECT BLACK ABALONE PCES, INCLUDING: THE AREA(S) IN WHICH THE ACTIVITY IS LOCATED, THE PCE(S) THE ACTIVITY COULD AFFECT AND THE NATURE OF THAT THREAT, THE ESA SEC- TION 7 NEXUS FOR THAT ACTIVITY, AND THE POSSIBLE MODIFICATIONS TO THE ACTIVITY DUE TO THE BLACK ABA- LONE CRITICAL HABITAT DESIGNATION

Possible modification(s) to the Activity Specific areas PCE and nature of the threat Section 7 nexus activity

Dredging ...... Unknown ...... Rocky substrate PCE—Dredging The U.S. Army Corps of Engi- Restrictions on the spatial and We solicit the that does occur near rocky neers (USACE) issues permits temporal extent of dredging ac- public for intertidal areas may increase pursuant to Section 404 of the tivities and the deposition of more informa- sedimentation into the rocky Clean Water Act (CWA), dredge spoil. Requirements to tion (see habitat. A variety of harmful among several others. The treat (detoxify) dredge spoil. ‘‘Public Com- substances, including heavy USACE must then consult with ments Solic- metals, oil, tributyltin (TBT), NMFS under section 7 of the ited’’). polychlorinated biphenyls ESA. (PCBs) and pesticides, can be absorbed into the seabed sedi- ments and contaminate them. Water quality PCE—Dredging and disposal processes can re- lease contaminants into the water column, affecting water quality, and making them avail- able to be taken up by animals and plants, which could cause morphological or reproductive disorders. In-water construc- 10, 17, 19, and Rocky substrate PCE—Increased The USACE issues permits pur- Bank stabilization measures and tion. 20. sedimentation, a side effect of suant to Section 10 of the Riv- more natural erosion control. some in-water construction ers and Harbors Act of 1899 projects, can reduce the quality (RHA) among several others. and/or quantity of rocky sub- Although in-water construction strate. projects are commonly Food resources PCE—The pres- unertaken by private or non- ence of in-water structures Federal parties, in most cases may affect black abalone habi- they must obtain a USACE tat by affecting the distribution permit. The USACE must then and abundance of algal spe- consult with NMFS under sec- cies that provide food for aba- tion 7 of the ESA. lone or the distribution and abundance of other intertidal invertebrate species.

VerDate Mar<15>2010 17:52 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59911

TABLE 1—SUMMARY OF ACTIVITIES THAT MAY AFFECT BLACK ABALONE PCES, INCLUDING: THE AREA(S) IN WHICH THE ACTIVITY IS LOCATED, THE PCE(S) THE ACTIVITY COULD AFFECT AND THE NATURE OF THAT THREAT, THE ESA SEC- TION 7 NEXUS FOR THAT ACTIVITY, AND THE POSSIBLE MODIFICATIONS TO THE ACTIVITY DUE TO THE BLACK ABA- LONE CRITICAL HABITAT DESIGNATION—Continued

Possible modification(s) to the Activity Specific areas PCE and nature of the threat Section 7 nexus activity

Settlement habitat PCE— Changes in algal communities could affect settlement of larval abalone (believed to be influ- enced by the presence of coralline algae).. Nearshore circulation pattern PCE—Nearshore circulation patterns may affect intertidal communities by providing step- ping-stones between popu- lations, resulting in range ex- tensions for species with lim- ited dispersal distances. Artifi- cial structures, like break- waters, may also alter the physical environment by reduc- ing wave action and modifying nearshore circulation and sedi- ment transport. Sand replenish- 2, 4, 7, and 11 .. Rocky substrate PCE—Sand The USACE is responsible for Monitor the water quality (tur- ment. movements could cover up administering Section 404 per- bidity) during and after the rocky substrate thereby reduc- mits under the CWA, which are project. Place a buffer around ing its quality and/or quantity. required for sand replenish- pertinent areas within critical ment activities. habitat that sand replenish- ment projects have to work around. Ensure any dredge discharge pipelines are sited to avoid rocky intertidal habitat. Construct training dikes to help retain the sand at the receiving location, which should mini- mize movement of sand into the rocky intertidal areas. NPDES-permitted 1, 2, 3, 4, 5, 7, Food resources PCE—Sewage Issuance of CWA permits. State Where Federal permits are nec- activities. 8, 9, 10, 11, outfalls may affect food re- water quality standards are essary, ensure discharge 12, 16, 17, sources by causing light levels subject to an ESA section 7 meets standards other than ex- and 19. to be reduced to levels too low consultation between NOAA isting federal standards and to support Macrocystis germi- and the EPA and NOAA can regulations (EPA, CWA). Re- nation and growth. Eutrophica- review individual NPDES per- quire measures to prevent or tion occurs around southern mit applications for impacts on respond to a catastrophic California sewage outfalls ESA-listed species. event (i.e., using best tech- where phytoplankton crops and nology to avoid unnecessary primary production exceed typ- discharges). ical levels and approach val- ues characteristic of upwelling periods. Water quality PCE—Exposure to heavy metals can affect growth of marine organisms, either promoting or inhibiting growth depending on the combination and concentrations of metals. There is little information on these effects on black abalone, however.

VerDate Mar<15>2010 17:52 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 59912 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

TABLE 1—SUMMARY OF ACTIVITIES THAT MAY AFFECT BLACK ABALONE PCES, INCLUDING: THE AREA(S) IN WHICH THE ACTIVITY IS LOCATED, THE PCE(S) THE ACTIVITY COULD AFFECT AND THE NATURE OF THAT THREAT, THE ESA SEC- TION 7 NEXUS FOR THAT ACTIVITY, AND THE POSSIBLE MODIFICATIONS TO THE ACTIVITY DUE TO THE BLACK ABA- LONE CRITICAL HABITAT DESIGNATION—Continued

Possible modification(s) to the Activity Specific areas PCE and nature of the threat Section 7 nexus activity

Coastal develop- 2, 4, 7, 8, 10, Rocky substrate PCE—Increased The USACE permits construction Stormwater pollution prevention ment. 17, 19, and 20. sediment load that may result or expansion of stormwater plan; permanent stormwater from urbanization of the coast outfalls, discharge or fill of wet- site plan; and stormwater best and of watersheds (increased lands, flood control projects, management practice oper- transport of fine sediments into bank stabilization, and in- ations and maintenance. the coastal zone by rivers or stream work. runoff) can reduce the quality and/or quantity of rocky sub- strate. For example, in a study on San Nicolas Island, black abalone ‘‘dominated areas where rock contours provided a refuge from sand deposition’’ (Littler et al., 1983, cited in Airoldi, 2003). Overall, there has been little study of the ef- fects of increased sedimenta- tion on rocky shoreline com- munities (Airoldi, 2003). In ad- dition, construction of coastal armoring is often associated with coastal urban develop- ment to protect structures from wave action or prevent erosion (see ‘‘in-water construction’’ in Section 2.1). Food resources PCE—Increased sedimentation may also affect feeding by covering up food re- sources, altering algal commu- nities (including algal commu- nities on the rocky reef and the growth of kelp forests that sup- ply drift algae), and altering in- vertebrate communities (affect- ing biological interactions). Ephemeral and turf-forming algae were found to be favored in rocky intertidal areas that experience intermittent inunda- tion (Airoldi, 1998, cited in Thompson et al., 2002). Settlement habitat PCE—In- creased sedimentation may af- fect settlement of larvae and propagules by covering up set- tlement habitat as well as af- fecting the growth of encrusting coralline algae (see Steneck et al., 1997, cited in Airoldi, 2003), thought to be important for settlement. Sidecasting ...... 7 and 8 ...... Rocky substrate and settlement National Marine Sanctuary Haul away (or store locally) ex- habitat PCEs—Increased likeli- (NMS) regulations prohibit dis- cess material from road main- hood of sediment input into charge of materials within its tenance activities, rather than rocky intertidal habitats may boundaries, as well as outside sidecast; place excess material reduce its quality and quantity. its boundaries if the material at a stable site at a safe dis- Food resources PCE— may enter the sanctuary and tance from rocky intertidal Sidecasting may result in pos- harm sanctuary resources. habitats; and use mulch or sible reductions or changes to However, under certain cir- vegetation to stabilize the ma- food resources. See sedi- cumstances, a permit may be terial. mentation effects as described obtained from the Monterey under ‘‘Coastal development’’, Bay National Marine Sanctuary above. (MBNMS) to allow for a prohib- ited activity.

VerDate Mar<15>2010 17:52 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59913

TABLE 1—SUMMARY OF ACTIVITIES THAT MAY AFFECT BLACK ABALONE PCES, INCLUDING: THE AREA(S) IN WHICH THE ACTIVITY IS LOCATED, THE PCE(S) THE ACTIVITY COULD AFFECT AND THE NATURE OF THAT THREAT, THE ESA SEC- TION 7 NEXUS FOR THAT ACTIVITY, AND THE POSSIBLE MODIFICATIONS TO THE ACTIVITY DUE TO THE BLACK ABA- LONE CRITICAL HABITAT DESIGNATION—Continued

Possible modification(s) to the Activity Specific areas PCE and nature of the threat Section 7 nexus activity

Agricultural activi- 1, 2, 3, 4, 7, 8, Rocky substrate PCE—Soil ero- Irrigation—any water supplier For irrigated agriculture: con- ties (including 9, 10, 12, and sion from intensive irrigated providing water via contract servation crop rotation, under- pesticide appli- 16. agriculture or livestock farming with U.S. Bureau of Reclama- ground outlets, land smooth- cation, irriga- of areas adjacent to the coast tion (USBR) or using infra- ing, structures for water con- tion, and live- can cause increased sedi- structure owned or maintained trol, subsurface drains, field stock farming). mentation thereby reducing the by the USBR is subject to sec- ditches, mains or laterals, and quality and quantity of rocky tion 7 consultation under ESA. toxic salt reduction. substrate. Privately owned diversions For pesticides application: restric- Food resources PCE—Herbi- may require a Federal permit tions on application of some cides are designed to kill from USACE under sections pesticides within certain dis- plants, thus herbicide contami- 401 or 404 of the CWA. tances of streams. nation of water could have Pesticide Application—Environ- For livestock farming: fencing ri- devastating effects on aquatic mental Protection Agency parian areas; placing salt or plants. (EPA) consultation on the Fed- mineral supplements to draw Settlement habitat PCE—Labora- eral Insecticide, Fungicide, and cattle away from rivers; total tory experiments showed that Rodenticide Act (FIFRA), pes- rest of allotments when pos- the presence of pesticides ticide registration program, and sible; and frequent monitoring. (those examined in the study NPDES permits for aquatic were DDT, methoxychlor, pesticides. dieldrin, and 2,4–D) interfered Livestock farming—Bureau of with larval settlement. Pres- Land Management (BLM) and ence of pesticides had a much the U.S. Forest Service lesser effect on survival of lar- (USFS). vae. Water quality PCE—Pesticides alter the chemical properties of sea water such that they can interfere with settlement cues emitted by coralline algae and associated diatom films and/or they may inhibit growth of ma- rine algae upon which black abalone depend for food. There is little information on these effects on black abalone or related species, however, especially for pesticides that are currently in use.

VerDate Mar<15>2010 17:52 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 59914 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

TABLE 1—SUMMARY OF ACTIVITIES THAT MAY AFFECT BLACK ABALONE PCES, INCLUDING: THE AREA(S) IN WHICH THE ACTIVITY IS LOCATED, THE PCE(S) THE ACTIVITY COULD AFFECT AND THE NATURE OF THAT THREAT, THE ESA SEC- TION 7 NEXUS FOR THAT ACTIVITY, AND THE POSSIBLE MODIFICATIONS TO THE ACTIVITY DUE TO THE BLACK ABA- LONE CRITICAL HABITAT DESIGNATION—Continued

Possible modification(s) to the Activity Specific areas PCE and nature of the threat Section 7 nexus activity

Oil & chemical 4, 5, 7, 8, 9, 12, Rocky substrate and settlement Review of oil spill response plan Restrict or minimize the use or spills & clean- 15, and 19. habitat PCEs—Oil spill clean- from United States Coast type of response to oil spills up. up activities may be as de- Guard (USCG). Regulations (e.g. boom, dispersants, in situ structive, or more destructive, under the Water Pollution Con- burning) in areas where black than the oil spill itself. Oil spill trol Act. abalone habitat exists. Mitiga- clean-up may involve applica- tion measures include adoption tion of toxic dispersants and of oil/chemical spill clean-up the use of physical cleaning protocols and oil/chemical spill methods such as the use of prevention plans, more Clean high pressure and/or high tem- Seas boats as first responders perature water to flush out oil to prevent oil/chemical spills which may decrease the qual- from coming onshore, and re- ity of rocky substrate and set- location of proposed oil/chem- tlement habitat in an area. Oil, ical platforms further away oil/dispersant mixtures, and from black abalone habitats. dispersants used in oil spill clean-up may adversely affect grazing mollusks like abalone in rocky intertidal areas, al- though less-toxic dispersants have been developed in recent years. Food resources PCE—The use of dispersants and physical cleaning methods may affect black abalone food resources (algal community). Chemical spills could also affect food re- sources, if the chemicals kill algae or affect algal growth. Water quality PCE—Effects of oil spills vary from no discernable differences to widespread mor- tality of marine invertebrates over a large area and reduced densities persisting a year after the spill. Vessel grounding 8 ...... Rocky substrate and settlement The USCG has the authority to Best management practices habitat PCEs—Vessel ground- respond to all oil and haz- (BMP) for oil spill and debris ing can affect the rocky sub- ardous substance spills in the clean-up to reduce trampling. strate and have substantial ef- offshore/coastal zone, while Education of USCG, NMS biolo- fects on the environment, rang- the EPA has the authority to gists, and others involved in ing from minor displacement of respond in the inland zone. clean-up to raise awareness of sediment to catastrophic dam- black abalone. age to reefs. Wave activity may also cause the vessel to roll excessively and do more damage to the ocean floor. Food resources and water quality PCEs—The risk of invasion by foreign species attached to the ship’s hull into a local environ- ment. The wreck of an ocean- going vessel can result in large masses of steel distributed over substantial areas of sea- bed, particularly in high en- ergy, shallow water environ- ments. The wreckage may be a chronic source of dissolved iron. Elevated levels of iron may affect water quality and result in an increase of oppor- tunistic algae blooms.

VerDate Mar<15>2010 17:52 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59915

TABLE 1—SUMMARY OF ACTIVITIES THAT MAY AFFECT BLACK ABALONE PCES, INCLUDING: THE AREA(S) IN WHICH THE ACTIVITY IS LOCATED, THE PCE(S) THE ACTIVITY COULD AFFECT AND THE NATURE OF THAT THREAT, THE ESA SEC- TION 7 NEXUS FOR THAT ACTIVITY, AND THE POSSIBLE MODIFICATIONS TO THE ACTIVITY DUE TO THE BLACK ABA- LONE CRITICAL HABITAT DESIGNATION—Continued

Possible modification(s) to the Activity Specific areas PCE and nature of the threat Section 7 nexus activity

Construction and 10 ...... Water quality PCE—The power The Diablo Canyon Nuclear Require cooling of thermal efflu- operation of plants’ use of coastal waters Power Plant, located in specific ent before release to the envi- power plants. for cooling and subsequently area 10, is licensed through ronment (may require use of discharging of heated water the Nuclear Regulatory Com- different technology). Require back into the marine environ- mission. treatment of any contaminated ment may raise water tempera- waste materials. tures and introduce contami- Modifications associated with nants into the water. Elevated permit issued under NPDES water temperatures have been (any updates from current linked to increased virulence of early 1990s issuance). Dry the withering syndrome dis- cooling systems (not as fea- ease. sible as wet cooling systems due to greater logistical con- straints and total costs). Modi- fications to cooling water in- take flow by season and oper- ational conditions using vari- able speed pumps/variable fre- quency drives (benefits depend on the frequency and degree that flow can be reduced with- out affecting operations). Use of reclaimed water as a source of makeup water for wet cool- ing towers or as a source for once-through cooling water systems. Construction and 4, 7, 8, 9, 10, Water quality PCE—Discharge of A desalination facility may re- Potential conservation efforts to operation of de- 12, 17, and 19. hyper-saline water results in in- quire a Section 404 permit mitigate desalination impacts salination plants. creased salinity and fluctuating under the CWA from the may include the treatment of salinity conditions that may af- USACE if it involves placing fill hyper-saline effluent to ensure fect sensitive organisms near in navigable waters, and a that salinity levels are restored the outfall. The impacts of Section 10 permit under the to normal values. The costs of brine effluent are generally RHA if the proposal involves treating hyper-saline effluent or more severe in rocky substrate placing a structure in a navi- finding an alternate manner of than on sandy seafloor habi- gable waterway. brine disposal can vary widely tats. However, more research across plants depending on is needed on the tolerance plant capacity and design. level of black abalone for dif- ferent salinities. Other effects of the discharge on water qual- ity include increased turbidity, concentration of organic sub- stances and metals contained in the feed waters, concentra- tion of metals picked up through contact with the plant components, thermal pollution, and decreased oxygen levels. Entrainment and impingement of black abalone larvae may also occur from water intake at desalination plants, but this is primarily a take issue.

VerDate Mar<15>2010 17:52 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 59916 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

TABLE 1—SUMMARY OF ACTIVITIES THAT MAY AFFECT BLACK ABALONE PCES, INCLUDING: THE AREA(S) IN WHICH THE ACTIVITY IS LOCATED, THE PCE(S) THE ACTIVITY COULD AFFECT AND THE NATURE OF THAT THREAT, THE ESA SEC- TION 7 NEXUS FOR THAT ACTIVITY, AND THE POSSIBLE MODIFICATIONS TO THE ACTIVITY DUE TO THE BLACK ABA- LONE CRITICAL HABITAT DESIGNATION—Continued

Possible modification(s) to the Activity Specific areas PCE and nature of the threat Section 7 nexus activity

Construction and 1 and 19 ...... Rocky substrate PCE—Impacts Subject to the Federal Energy Use of non-toxic fluids instead of operation of on rocky substrate may result Regulatory Commission toxic fluids. tidal and wave from the installation of power (FERC) permitting and licens- When the project requires the energy projects. lines to transport power to ing requirements, as well as use of power lines, use exist- shore. These projects typically requirements under Section ing power lines, instead of con- involve placement of struc- 401 of the CWA. structing new ones, and avoid tures, such as buoys, cables, rocky intertidal areas. and turbines, in the water col- umn. Water quality PCE—Alternative energy projects may result in reduced wave height by as much as 5 to 13 percent, which may benefit abalone habitat. Effects on wave height would generally only be ob- served 1–2 km away from the wave energy device. Another concern is the potential for liq- uids used in the system to leak or be accidentally spilled, re- sulting in release of toxic fluids. Toxins may also be re- leased in the use of biocides to control the growth of marine organisms. The potential ef- fects of coastal wave and tidal energy projects on black aba- lone habitat are uncertain, be- cause these projects are rel- atively new and the impacts are very site-specific. Construction and Unknown ...... Rocky substrate PCE—Onshore CWA permits under section 401 Offshore facilities: In the installa- operation of liq- We solicit the LNG terminals, construction of (water quality certificate) and/ tion of pipelines, avoid rocky uefied natural public for breakwaters, jetties, or other or section 404 (a dredge and intertidal habitats or use exist- gas (LNG) more informa- shoreline structures and the fill permit) and Clean Air Act ing pipelines. Onshore siting projects. tion (see activities associated with con- permits under section 502 may considerations: Avoid siting ‘‘Public Com- struction (e.g., dredging) may be required. LNG projects within or adja- ments Solic- affect black abalone habitat. cent to rocky intertidal habitats. ited’’). Offshore LNG terminals involve construction of pipelines to transport LNG onshore and may affect rocky habitat. See sedimentation effects de- scribed under ‘‘dredging’’, ‘‘in- water construction’’, and ‘‘coastal development’’. Food resource and water quality PCEs—There is an increased potential for oil spills and po- tential effects on water quality from the presence of vessels transporting and offloading LNG at the terminals.

VerDate Mar<15>2010 17:52 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59917

TABLE 1—SUMMARY OF ACTIVITIES THAT MAY AFFECT BLACK ABALONE PCES, INCLUDING: THE AREA(S) IN WHICH THE ACTIVITY IS LOCATED, THE PCE(S) THE ACTIVITY COULD AFFECT AND THE NATURE OF THAT THREAT, THE ESA SEC- TION 7 NEXUS FOR THAT ACTIVITY, AND THE POSSIBLE MODIFICATIONS TO THE ACTIVITY DUE TO THE BLACK ABA- LONE CRITICAL HABITAT DESIGNATION—Continued

Possible modification(s) to the Activity Specific areas PCE and nature of the threat Section 7 nexus activity

Mineral and petro- 10 ...... Rocky substrate PCE—This ac- The Mineral Management Serv- Adoption of erosion control leum explo- tivity may result in increased ice (MMS) manages the na- measures. Adoption of oil spill ration and ex- sedimentation into rocky tion’s offshore energy and min- clean-up protocols and oil spill traction. intertidal habitats. See sedi- eral resources, including oil, prevention plans; more Clean mentation effects described gas, and alternative energy Seas boats as first responders under ‘‘dredging’’, ‘‘in-water sources, as well as sand, grav- to prevent oil spills from com- construction’’, and ‘‘coastal de- el and other hard minerals on ing onshore; and relocation of velopment’’. the outer continental shelf. proposed oil platforms further Food resources and settlement away from black abalone habi- habitat PCE—In a laboratory tats. study, water-based drilling muds from an active platform were found to negatively affect the settlement of red abalone larvae on coralline algae, but fertilization and early develop- ment were not affected. Water quality PCE—The activity may cause an increased risk of oil spills or leaks and in- creased sedimentation thereby affecting water quality. Non-native spe- 2, 4, 8, 10, and Food resources PCE—The re- The National Invasive Species For commercial shipping: safe cies introduction 11. lease of wastewater, sewage, Act of 1996 (NISA) and the (non-contaminated) ballast dis- and manage- and ballast water from com- Nonindigenous Aquatic Nui- posal; rinse anchors and an- ment. mercial shipping presents a sance Prevention and Control chor chains when retrieving the risk to kelp and other Act of 1990 under the USCG. anchor to remove organisms macroalgal species because of and sediments at their place of the potential introduction of ex- origin; remove hull fouling or- otic species. ganisms from hull, piping, pro- Settlement habitat PCE—Non- pellers, sea chests, and other native species may displace submerged portions of a ves- native organisms by preying on sel, on a regular basis, and them or out-competing them dispose of removed sub- for resources such as food, stances in accordance with space or both. Non-native spe- local, state, and federal law. cies may introduce disease- For aquaculture: inspect aqua- causing organisms and can culture facilities to prevent non- cause substantial population, native species transport in community, and habitat packing materials. changes. Other possible con- sequences of non-native spe- cies introductions could be im- pacts on flow patterns, sedi- ment and nutrient dynamics, and impacts on native bio- engineering species. Kelp harvesting ... 7–20 ...... Food resources PCE—Kelp is None ...... None. the primary source of food for black abalone. Kelp is har- vested for algin, which is used as a binder, emulsifier, and molding material in a broad range of products, and as a food source in abalone aqua- culture operations. The harvest is small, but the kelp grows quickly, and harvest could gen- erate drift (which can poten- tially be beneficial to black ab- alone). Potential impacts re- lated to kelp harvesting are un- clear.

VerDate Mar<15>2010 17:52 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 59918 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

TABLE 1—SUMMARY OF ACTIVITIES THAT MAY AFFECT BLACK ABALONE PCES, INCLUDING: THE AREA(S) IN WHICH THE ACTIVITY IS LOCATED, THE PCE(S) THE ACTIVITY COULD AFFECT AND THE NATURE OF THAT THREAT, THE ESA SEC- TION 7 NEXUS FOR THAT ACTIVITY, AND THE POSSIBLE MODIFICATIONS TO THE ACTIVITY DUE TO THE BLACK ABA- LONE CRITICAL HABITAT DESIGNATION—Continued

Possible modification(s) to the Activity Specific areas PCE and nature of the threat Section 7 nexus activity

Activities leading 1–20 ...... Affects all PCEs. There is little Uncertain ...... Uncertain. to global cli- information on these effects, mate change however. We solicit the public (e.g., fossil fuel for more information (see combustion). ‘‘Public Comments Solicited’’). Water quality PCE—Sea surface water temperatures that ex- ceed 25ßC may increase risks to black abalone. Ocean pH values that are outside of the normal range for seawater (i.e., pH less than 7.5 or great- er than 8.5) may cause re- duced growth and survivorship in abalone as has been ob- served in other marine gastro- pods (Shirayama and Thorn- ton, 2005). Food resources and settlement habitat PCE–Increasing partial pressure of carbon dioxide may reduce abundance of coralline algae and thereby af- fect the survival of newly set- tled black abalone (Feely et al., 2004; Hall-Spencer et al., 2008).

Unoccupied Areas the past 5 years. In the area from Cape were not considered in further analyses. Arago, Oregon, to the Del Mar Landing We solicit comments from the public Section 3(5)(A)(ii) of the ESA Ecological Reserve, California, four regarding the historical, current, and ‘‘ authorizes the designation of specific museum specimens of black abalone potential condition of the habitat and of areas outside the geographical area were noted from two survey sites black abalone populations within the occupied at the time [the species] is (Geiger, 2004), one specimen was noted unoccupied areas identified above and listed’’ if these areas are essential for the from another site where red abalone are the importance of these areas to conservation of the species. Regulations considered common (Thompson, 1920), conservation of the species. at 50 CFR 424.12(e) emphasize that the and no data on black abalone were Military Lands agency ‘‘shall designate as critical available for the other sites. Black habitat areas outside the geographical abalone were not observed during rocky Under the Sikes Act of 1997 (Sikes area presently occupied by a species intertidal surveys conducted in the Act) (16 U.S.C. 670a), ‘‘each military only when a designation limited to its 1970s and 1980s at several sites within installation that includes land and water present range would be inadequate to this area (J. DeMartini, pers. comm.). In suitable for the conservation and ensure the conservation of the species.’’ the area from just south of Government management of natural resources’’ is The CHRT identified potential Point to Point Dume State Beach in required to develop and implement an unoccupied areas to consider for California, black abalone were reported integrated natural resources designation. These areas represent as rare at one site (Morin and management plan (INRMP). An INRMP segments of the California and Oregon Harrington, 1979), but have never been integrates implementation of the coast that contain rocky intertidal observed at the other survey sites. In the military mission of the installation with habitats that historically supported area from Cardiff State Beach to Cabrillo stewardship of the natural resources black abalone and that may support National Monument in California, black found there. Each INRMP includes: An black abalone populations in the future. abalone were noted to be historically assessment of the ecological needs on The CHRT identified the following present at a few sites (Zedler, 1976, the military installation, including the unoccupied areas: (1) From Cape Arago 1978) and rare at one site (California need to provide for the conservation of State Park, Oregon, to Del Mar Landing State Water Resources Control Board, listed species; a statement of goals and Ecological Reserve, California; (2) from 1979). priorities; a detailed description of just south of Government Point to Point At this time, the CHRT concluded that management actions to be implemented Dume State Beach, California; and (3) the three unoccupied areas may be to provide for these ecological needs; from Cardiff State Beach in Encinitas, essential for conservation, but that there and a monitoring and adaptive California, to Cabrillo National is currently insufficient data to management plan. Each INRMP must, to Monument, California. conclude that any of the areas are the extent appropriate and applicable, In each of these areas, black abalone essential for conservation. Therefore, provide for fish and wildlife have not been observed in surveys in the three presently unoccupied areas management, fish and wildlife habitat

VerDate Mar<15>2010 17:52 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59919

enhancement or modification, wetland Reserve to Bodega Head, Bodega Head impacts that may result from the protection, enhancement, and to Point Bonita, Farallon Islands, etc.). designation and the application of ESA restoration where necessary to support Delineating the ‘‘particular areas’’ as the section 7(a)(2). fish and wildlife and enforcement of same units as the ‘‘specific areas’’ In determining the impacts of the applicable natural resource laws. The allowed us to most effectively consider designation, we focused on the ESA was amended by the National the conservation value of the different incremental change in Federal agency Defense Authorization Act for Fiscal areas when balancing conservation actions as a result of the critical habitat Year 2004 (Pub. L. 108–136) to address benefits of designation against economic designation and the adverse the designation of military lands as benefits of exclusion. Delineating modification prohibition, beyond the critical habitat. ESA section 4(a)(3)(B)(i) particular areas based on impacts on changes predicted to occur as a result of states: ‘‘The Secretary shall not national security or other relevant listing and the jeopardy provision. designate as critical habitat any lands or impact should be based on land Following a line of recent court other geographical areas owned or ownership or control (e.g., land decisions, in particular, Cape Hatteras controlled by the Department of controlled by the Department of Defense Access Preservation Alliance v. Norton, Defense, or designated for its use, that (DOD) within which national security 344 F. Supp. 2d 1080 (D.D.C. 2004)) are subject to an integrated natural impacts may exist, or Indian lands). We (Cape Hatteras) we analyzed the impact resources management plan prepared request information on other relevant of this proposed regulation based on a under section 101 of the Sikes Act (16 impacts that should be considered (see comparison of the world with and U.S.C. 670a), if the Secretary determines ‘‘Public Comments Solicited’’). The next without the action. Consistent with the in writing that such plan provides a step in the ESA section 4(b)(2) analysis Cape Hatteras decision, we focus on the benefit to the species for which critical involves identification of the impacts of potential incremental impacts beyond habitat is proposed for designation.’’ The designation (i.e., the benefits of the impacts that would result from the Navy’s facilities on San Clemente Island designation and the benefits of listing and jeopardy provision. In some and San Nicolas Island are covered by exclusion). We then weigh the benefits instances, however, it was difficult to INRMPs that are currently being revised of designation against the benefits of exclude potential impacts that may to address black abalone conservation. If exclusion to identify areas where the already occur under the baseline (i.e., these INRMPs are finalized and benefits of exclusion outweigh the protections already afforded black determined to provide benefits to black benefits of designation. These steps and abalone under its listing or under other abalone, as described under section the resulting list of areas proposed for Federal, State, and local regulations). 4(a)(3)(B) of the ESA, then the areas exclusion from designation are Many uncertainties exist with regard to would be ineligible for designation and described in detail in the sections future management actions that may be a determination on whether the areas below. required due to black abalone critical warrant exclusion under section 4(b)(2) habitat because of the short consultation Impacts of Designation of the ESA based on national security history for black abalone and overlap impacts would no longer be necessary. The primary impact of a critical with protections provided under the habitat designation stems from the listing and other existing regulations. Application of ESA Section 4(b)(2) requirement under section 7(a)(2) of the Thus, the analysis included some Section 4(b)(2) of the ESA requires the ESA that Federal agencies ensure their impacts that would have occurred under Secretary to consider the economic, actions are not likely to result in the the baseline regardless of the critical national security, and any other relevant destruction or adverse modification of habitat designation. As such, the impacts of designating any particular critical habitat. Determining this impact consideration of impacts cannot be area as critical habitat. Any particular is complicated by the fact that section characterized as exclusively incremental area may be excluded from critical 7(a)(2) contains the overlapping impacts of the critical habitat habitat if the Secretary determines that requirement that Federal agencies must designation (New Mexico Cattle Growers the benefits of excluding the area also ensure their actions are not likely Association v. U.S. Fish and Wildlife outweigh the benefits of designating the to jeopardize the species’ continued Service, 248 F.3d 1277 (10th Cir. 2001)) area. The Secretary may not exclude a existence. One incremental impact of (NMCA). Instead, the impacts of the particular area from designation if designation is the extent to which designation are more correctly exclusion will result in the extinction of Federal agencies modify their actions to characterized as black abalone impacts. the species. Because the authority to ensure their actions are not likely to Once we determined the impacts of exclude is discretionary, exclusion is adversely modify the critical habitat of the designation, we then determined the not required for any areas. We propose the species, beyond any modifications benefits of designation and the benefits to exclude one occupied specific area they would make because of the listing of exclusion based on the impacts of the (i.e., Corona Del Mar State Beach to and the jeopardy requirement. When a designation. The benefits of designation Dana Point, Orange County, CA) from modification would be required due to include the conservation impacts for the critical habitat designation because impacts to both the species and critical black abalone and its habitat that result the economic benefits of exclusion habitat, the impact of the designation is from the critical habitat designation and outweigh the benefits of designation. considered co-extensive with the ESA the application of ESA section 7(a)(2). The first step in conducting the ESA listing of the species. Additional The benefits of exclusion include the section 4(b)(2) analysis is to identify the impacts of designation include state and economic impacts, impacts on national ‘‘particular areas’’ to be analyzed. Where local protections that may be triggered security, and other relevant impacts we considered economic impacts and as a result of the designation and the (e.g., impacts on Indian lands) of the weighed the economic benefits of benefits from educating the public about designation that would be avoided if a exclusion against the conservation the importance of each area for species particular area were excluded from the benefits of designation, we used the conservation. Thus, the impacts of the critical habitat designation. The same biologically-based ‘‘specific areas’’ designation include conservation following sections describe how we we identified in the previous sections impacts for black abalone and its determined the benefits of designation pursuant to section 3(5)(A) of the ESA habitat, economic impacts, impacts on and the benefits of exclusion and how (e.g., Del Mar Landing Ecological national security, and other relevant these benefits were weighed, as required

VerDate Mar<15>2010 17:52 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 59920 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

under section 4(b)(2) of the ESA, to critical habitat, or of the monetary value to determine the types of activities and identify particular areas that may be of education and outreach benefits). As potential range of changes. For each eligible for exclusion from the an alternative approach, we determined potential impact, we tried to provide designation. We also summarize the the benefits of designation based on the information on whether the impact is results of this weighing process and CHRT’s biological analysis of the more closely associated with adverse determinations on the areas that may be specific areas. We used the CHRT’s modification or with jeopardy, to eligible for exclusion. conservation value ratings (High, distinguish the impacts of applying the Medium, and Low) to represent the Benefits of Designation jeopardy provision versus the adverse qualitative conservation benefits of modification provision. The primary benefit of designation is designation for each of the specific areas While the statute and our agency the protection afforded under section 7 considered for designation. In guidance directs us to identify activities of the ESA, requiring all Federal evaluating the conservation value of that may affect the habitat features agencies to ensure their actions are not each specific area, the CHRT focused on important to black abalone conservation likely to destroy or adversely modify the habitat features present in each area, within a specific area in order to designated critical habitat. This is in the habitat functions provided by each determine its eligibility for designation, addition to the requirement that all area, and the importance of protecting not all of these activities may be affected Federal agencies ensure their actions are the habitat for the overall conservation by the critical habitat designation (i.e., not likely to jeopardize the continued of the species. The CHRT considered a subject to a section 7 consultation) and existence of the species. In addition, the number of factors to determine the designation may provide education and sustain an economic impact. It is only conservation value of each specific area, those activities with a federal nexus that outreach benefits by informing the including: (a) The present condition of public about areas and features would sustain an economic impact as a the primary constituent elements or result of the designation. Within the set important to the conservation of black PCEs; (b) the level at which the habitat abalone. By delineating areas of high of activities identified in the Special supports recruitment of early life stages, Management Considerations and conservation value, the designation may based on the level of recruitment help focus and contribute to Protections above, we were only able to observed at survey sites within the area; estimate economic impacts for a subset conservation efforts for black abalone and (c) the level at which the habitat of them because of: (1) The limited and their habitats. supports long-term survival of juvenile consultation history; (2) uncertainty in The designation of critical habitat has and adult black abalone, based on the types of modification that would be been found to benefit the status and trends in the abundance and size required; (3) uncertainty in the number recovery of ESA-listed species. Recent frequencies of black abalone and locations of activities based on reports by the USFWS indicated that populations observed at survey sites currently available data; and (4) the lack species with critical habitat were more within the area. These conservation of available cost data. The draft likely to have increased and less likely value ratings represent the estimated economic report analyzes the potential to have declined than species without conservation impact to black abalone economic impacts to the following critical habitat (Taylor et al. 2005). In and its habitat if the area were addition, species with critical habitat designated as critical habitat, and thus categories of activities: (1) Coastal were also more likely to have a recovery were used to represent the benefit of development; (2) in-water construction; plan and to have these plans designation. The draft Biological Report (3) sand replenishment or beach implemented, compared to species (NMFS 2010a) provides detailed nourishment activities; (4) agricultural without critical habitat (Harvey et al., information on the CHRT’s biological activities (e.g., irrigation); (5) NPDES 2002; Lundquist et al. 2002). These analysis and evaluation of each specific activities and activities generating non- benefits may result from the unique, area. point source pollution; (6) sidecasting; species-specific protections afforded by (7) oil and chemical spills and clean-up critical habitat (e.g., enhanced habitat Benefits of Exclusion Based on activities; (8) power generation protection, increased public awareness Economic Impacts and Proposed operations involving water withdrawal and education of important habitats) Exclusions from and discharge to marine coastal that are more comprehensive than other The economic benefits of exclusion waters; (9) construction and operation of existing regulations (Hagen and Hodges, are the economic impacts that would be alternative energy hydrokinetic projects 2006). avoided by excluding particular areas (tidal or wave energy projects); and (10) The benefits of designation are not from the designation. To determine construction and operation of directly comparable to the benefits of these economic impacts, we first asked desalination plants. The following exclusion for the purposes of weighing the CHRT to identify activities within activities were discussed qualitatively: the benefits under conducting the ESA each specific area that may affect black Dredging and disposal of dredged section 4(b)(2) analysis as described abalone and its critical habitat. The 17 material; agricultural pesticide below. Ideally, the benefits of categories of activities identified by the application and livestock farming; designation and benefits of exclusion CHRT are identified in the Special mineral and petroleum exploration or should be monetized in order to directly Management Considerations and extraction; construction and operation compare and weigh them. With Protections above. We then considered of LNG projects; vessel groundings; non- sufficient information, it may be the range of modifications NMFS might native species introduction and possible to monetize the benefits of a seek in these activities to avoid management; kelp harvesting; and critical habitat designation by first destroying or adversely modifying black activities that lead to global climate quantifying the benefits expected from abalone critical habitat. Where possible, change. The economic impacts of the an ESA section 7 consultation and we focused on changes beyond those designation on these activities could not translating that into dollars. We are not that may be required under the jeopardy be quantified because a federal nexus aware, however, of any available data to provision. Because of the limited does not exist (i.e., for kelp harvesting monetize the benefits of designation consultation history, we relied on activities) or is uncertain (i.e., for (e.g., estimates of the monetary value of information from other section 7 activities that lead to global climate the PCEs within areas designated as consultations and the CHRT’s expertise change), or because the potential

VerDate Mar<15>2010 17:52 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59921

economic impacts are uncertain, for the statute emphasizes that the decision to CHRT gave the area a ‘‘Low’’ reasons described above. The draft exclude is discretionary. Thus, the level conservation value, because the current economic report (NMFS, 2010a) at which the economic benefits of habitat conditions are of lower quality provides a more detailed description exclusion outweigh the conservation compared to other areas along the coast. and analysis of the potential economic benefits of designation is a matter of While rocky intertidal habitat of good impacts to each of these categories of discretion and depends on the policy quality occurs within the area, these activities. context. For critical habitat, the ESA habitats are patchy and may be affected We had sufficient information to directs us to consider exclusions to by sand scour due to the presence of monetize the economic benefits of avoid high economic impacts, but also many sandy beaches. In addition, the exclusion, but were not able to monetize requires that the areas designated as rocky habitat within the area consists of the conservation benefits of designation. critical habitat are sufficient to support narrow benches and fewer crevices Thus, to weigh the benefits of the conservation of the species and to compared to other areas and has been designation against the economic avoid extinction. In this policy context, degraded by the establishment of benefits of exclusion, we compared the we developed decision rules with dollar sandcastle worm (Phragmatopoma conservation value ratings with thresholds representing the levels at californica) colonies. There is also little economic impact ratings that were which we believe the economic benefit to no coralline algae to provide adequate based on the mean annualized economic of exclusion associated with a specific larval settlement habitat. Low densities impact estimates (discounted at 7%; see area could outweigh the conservation of black abalone were observed at a few draft economic report (NMFS 2010a) for benefits of designation. These dollar sites in the area in the 1970s and 1980s. additional details) for each specific area. thresholds and decision rules provided However, no recruitment has been To develop the economic impact a relatively simple process to identify, observed and black abalone have been ratings, we examined the mean in a limited amount of time, specific absent from the area except for one annualized economic impacts areas warranting consideration for black abalone found in January 2010. (discounted at 7 percent) across all of exclusion based on economic impacts. For these reasons, the CHRT concluded the specific areas. We then divided the Based on this analysis, two areas were that excluding specific area 12 (from economic impacts into four economic identified preliminarily as eligible for Corona Del Mar State Beach to Dana impact rating categories corresponding exclusion. These areas were: (1) Specific Point) from the designation would not to ‘‘Low’’ ($0 to $100,000), ‘‘Medium’’ area 10, from Montan˜ a de Oro State Park significantly impede the conservation of (greater than $100,000 to $500,000), to just south of Government Point; and black abalone. The high estimated ‘‘High’’ (greater than $500,000 to $10 (2) specific area 12, from Corona Del economic impact for this area was million), and ‘‘Very High’’ (greater than Mar State Beach to Dana Point. We primarily due to impacts associated $10 million) economic impact ratings. presented the two areas to the CHRT to with construction and operation of a The four economic impact rating help us further characterize the benefits proposed desalination plant, which categories were determined by visually of designation by determining whether made up about 93% of the mean inspecting the economic impact values excluding any of these areas would annualized economic impact estimate of and identifying natural breakpoints in significantly impede conservation of $1,563,500 for this area. The estimated the economic impacts data where the black abalone. If exclusion of an area economic impacts to the desalination estimated economic impacts would significantly impede plant were based on the costs for using experienced a large increase. We then conservation, then the benefits of alternate methods of brine disposal (i.e., compared these economic impact exclusion would likely not outweigh the injection wells). ratings (representing the benefits of benefits of designation for that area. The exclusion) with the conservation value CHRT considered this question in the The CHRT determined, and we ratings (representing the benefits of context of all of the areas eligible for concur, that exclusion of specific area designation) and applied the following exclusion as well as the information 10 (from Montan˜ a de Oro State Park to decision rules to identify areas eligible they had developed in providing the just south of Government Point) would for exclusion based on economic conservation value ratings. If the CHRT significantly impede conservation of impacts: (1) Areas with a conservation determined that exclusion of an area black abalone. The CHRT gave the area value rating of ‘‘High’’ were eligible for would significantly impede a ‘‘High’’ conservation value in their exclusion if the mean annualized conservation of black abalone, the biological evaluation. Historically, black economic impact estimate exceeded $10 conservation benefits of designation abalone were considered common at million (i.e., the economic impact rating were increased one level in the several sites within the area. The was ‘‘Very High’’); (2) areas with a weighing process. This necessitated the populations have since suffered conservation value rating of ‘‘Medium’’ creation of a Very High conservation declines due to WS, but continue to were eligible for exclusion if the mean value rating. Areas rated as ‘‘Very High’’ persist at several sites. Although the annualized economic impact estimate were deemed to have a very high habitat has changed since the decline in exceeded $500,000 (i.e., the economic likelihood of promoting the abalone (e.g., sea urchins and encrusting impact rating was at least a ‘‘High’’); and conservation of the species. invertebrates have moved in to some (3) areas with a conservation value The CHRT determined, and we crevice habitats), the habitat remains of rating of ‘‘Low’’ were eligible for concur, that exclusion of specific area high quality. The CHRT also exclusion if the mean annualized 12 (from Corona Del Mar State Beach to emphasized the importance of this area economic impact estimate exceeded Dana Point) would not significantly in maintaining connectivity between $100,000 (i.e., the economic impact impede conservation of black abalone black abalone populations on the north- rating was at least a ‘‘Medium’’). and that the economic benefit of central California coast and the southern These dollar thresholds should not be exclusion for this area outweighs the California coast. Therefore, the CHRT interpreted as estimates of the dollar conservation benefit of designation. The determined, and we concur, that the value of High, Medium, or Low CHRT based their determinations on the conservation value of this area should conservation value areas. Under the best available data regarding the present be raised by one level (i.e., from High ESA, we are to weigh dissimilar impacts condition of the habitat and black to Very High). In addition, the estimated given limited time and information. The abalone populations in the area. The economic impact for this area is likely

VerDate Mar<15>2010 17:52 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 59922 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

overestimated. The very high economic the designation of particular areas as ‘‘Public Comments Solicited’’). After impact estimate for this area was critical habitat for black abalone. In a assessing any additional information primarily due to costs associated with letter dated May 20, 2010 (5090 Ser N40 provided by the DOD as well as by the the Diablo Canyon Nuclear Power Plant JJR.cs/0011), representatives of the DOD public, a final determination will be (DCNPP), which made up about 46 identified the following particular areas made in the final critical habitat percent of the low annualized economic owned or controlled by the U.S. Navy designation. The Navy’s facilities on impact estimate and 99 percent of the and requested exclusion of these areas San Clemente Island and San Nicolas mean and high annualized economic from the designation based on potential Island are covered by INRMPs that are impact estimate for the area (see NMFS, national security impacts: (1) Naval currently being revised to address black 2010a for details). These estimated costs Auxiliary Landing Field (NALF) San abalone conservation. If these INRMPs were based on the costs required to Clemente Island; (2) Outlying Landing are finalized and determined to provide retrofit the DCNPP with a closed cooling Field (OLF) San Nicolas Island; (3) benefits to black abalone, as described system. However, there are less costly Naval Support Detachment Monterey; under section 4(a)(3)(B) of the ESA, then actions that we could not monetize that (4) Naval Weapons Station Seal Beach; the areas would be ineligible for could be taken to avoid or minimize and (5) Naval Base Ventura County designation and a determination on effects on black abalone habitat, such as (Point Mugu and Port Hueneme). whether the areas warrant exclusion restoring habitat in other areas around We determined that the Naval under section 4(b)(2) of the ESA based the DCNPP and conducting biological Support Detachment Monterey, Naval on national security impacts would no monitoring of black abalone and its Weapons Station Seal Beach, and Naval longer be necessary. The response habitat. Thus, the economic benefits of Base Ventura County do not occur summarized above was transmitted to exclusion were not determined to within the specific areas being the Navy via a letter from NMFS dated outweigh the conservation benefits of considered for designation (NMFS, July 9, 2010. designation for specific area 12 for the 2010b). Thus, these areas were not Benefits of Exclusion for Indian Lands following reasons: (a) The area has a included in further analyses. The NALF and Proposed Exclusions Very High conservation value to black San Clemente Island and OLF San abalone and exclusion of this area Nicolas Island do occur within the The only other relevant impacts of the would significantly impede specific areas being considered for designation identified were potential conservation of the species; and (b) the designation and were analyzed for impacts on Indian lands. The benefits of very high economic impacts are likely potential exclusion under section 4(b)(2) exclusion for Indian lands are the overestimated. We solicit comments of the ESA. impacts on Indian lands that would be from the public regarding the estimate The Navy did not provide information avoided if particular areas were of economic impacts to the DCNPP, the about the activities occurring within the excluded from the designation. A broad effects of the DCNPP on black abalone OLF San Nicolas Island, but did provide array of activities on Indian lands may and its habitat, and the potential information regarding activities trigger ESA section 7 consultations and modifications that may be required to conducted within the NALF San be affected by the designation of critical address these effects (including the Clemente Island that may be affected by habitat. The longstanding and feasibility and estimated costs of such the designation of critical habitat for distinctive relationship between the modifications; see ‘‘Public Comments black abalone. An overview of these Federal and tribal governments is Solicited’’). If information obtained activities is provided in the draft ESA defined by treaties, statutes, executive during the public comment period section 4(b)(2) report (NMFS, 2010b). orders, judicial decisions, and suggests that the very high economic More specific information is needed agreements, which differentiate tribal impact estimate for retrofitting the regarding which of the Navy activities governments from the other entities that DCNPP is a realistic impact of the may affect black abalone habitat (i.e., deal with, or are affected by, the Federal designation, we will re-examine our rocky intertidal habitat within MHHW government. This relationship has given analysis regarding this area and to a depth of 6 m), how these activities rise to a special Federal trust consider other approaches that may may be affected by the critical habitat responsibility involving the legal allow exclusion of a particular area designation, and how these effects may responsibilities and obligations of the within this specific area. result in impacts on national security. United States toward Indian Tribes and In summary, we propose to exclude We request additional information from the application of fiduciary standards of specific area 12 (from Corona Del Mar the Navy identifying and describing in due care with respect to Indian lands, State Beach to Dana Point) from the detail the activities that may occur in or tribal trust resources, and the exercise of critical habitat designation. Based on that may affect the areas being tribal rights. Pursuant to these the best scientific and commercial data considered for designation (i.e., rocky authorities, lands have been retained by currently available, we have determined habitat) and thus trigger consultation Indian Tribes or have been set aside for that exclusion of this area will not under section 7 of the ESA. This tribal use. These lands are managed by impede the conservation of black information is necessary to assess Indian Tribes in accordance with tribal abalone, nor will it result in the whether the areas warrant exclusion goals and objectives within the extinction of the species. from the designation based on national framework of applicable treaties and security impacts. laws. E.O. 13175 (Consultation and Benefits of Exclusion Based on National At this time, we do not propose to Coordination with Indian Tribal Security and Proposed Exclusions exclude the NALF San Clemente Island Governments) outlines the The national security benefits of or OLF San Nicolas Island from the responsibilities of the Federal exclusion are the impacts on national designation based on national security Government in matters affecting tribal security that would be avoided by impacts but will continue to coordinate interests. excluding particular areas from the with the Navy to assess the potential For this proposed critical habitat designation. We contacted national security impacts. Additional designation for black abalone, we representatives of the DOD to request information is also solicited from the reviewed maps indicating that none of information on potential national public regarding the potential national the specific areas under consideration security impacts that may result from security impacts of this designation (see for designation as critical habitat

VerDate Mar<15>2010 17:52 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59923

overlap with Indian lands. Therefore, no provided in the section titled ‘‘226.220 habitat is subsequently designated; or areas were considered for exclusion Critical habitat for the black abalone (2) new information or changes to the based on impacts on Indian lands. We (Haliotis cracherodii)’’ are provided for action may result in effects to critical solicit information from the public general guidance purposes only and not habitat not previously considered in the regarding any Indian lands that may as a definitive source for determining biological opinion. Consequently, some overlap with and may warrant exclusion critical habitat boundaries. As discussed Federal agencies may request from critical habitat for black abalone in previous critical habitat designations, reinitiation of consultation or (see ‘‘Public Comments Solicited’’). human activities that occur outside of conference with NMFS on actions for Indian lands are those defined in the designated critical habitat can destroy or which formal consultation has been Secretarial Order ‘‘American Indian adversely modify the essential physical completed, if those actions may affect Tribal Rights, Federal-Tribal Trust and biological features of these areas. designated critical habitat. Activities Responsibilities, and the Endangered This designation will help to ensure that subject to the ESA section 7 Species Act’’ (June 5, 1997) and include: Federal agencies are aware of the consultation process include activities (1) Lands held in trust by the United impacts that activities occurring outside on Federal lands and activities on States for the benefit of any Indian tribe; of the proposed critical habitat area private or state lands requiring a permit (2) land held in trust by the United (e.g., coastal development, activities that from a Federal agency (e.g., a section States for any Indian Tribe or individual exacerbate global warming, agricultural 10(a)(1)(B) permit from NMFS) or some subject to restrictions by the United irrigation and pesticide application) other Federal action, including funding States against alienation; (3) fee lands, may have on black abalone critical (e.g., Federal Highway Administration either within or outside the reservation habitat. (FHA) or Federal Emergency boundaries, owned by the tribal Management Agency (FEMA) funding). government; and (4) fee lands within the Effects of Critical Habitat Designation ESA section 7 consultation would not reservation boundaries owned by ESA Section 7 Consultation be required for Federal actions that do individual Indians. Should any Indian Section 7(a)(2) of the ESA requires not affect listed species or critical lands be identified within the specific Federal agencies, including NMFS, to habitat nor for actions on non-Federal and private lands that are not federally areas considered and proposed for ensure that any action authorized, designation as black abalone critical funded, authorized, or carried out. funded, or carried out by the agency habitat, they will be considered for (agency action) does not jeopardize the Activities Likely To Be Affected exclusion under section 4(b)(2) of the continued existence of any threatened ESA if the tribe or tribes request ESA section 4(b)(8) requires, to the or endangered species or destroy or exclusion (see ‘‘Public Comments maximum extent practicable, in any adversely modify designated critical Solicited’’). proposed regulation to designate critical habitat. When a species is listed or habitat, an evaluation and brief Critical Habitat Designation critical habitat is designated, Federal description of those activities (whether This rule proposes to designate agencies must consult with NMFS on public or private) that may adversely approximately 390 square kilometers of any agency actions to be conducted in modify such habitat or that may be habitat in California within the an area where the species is present and affected by such designation. A wide geographical area presently occupied by that may affect the species or its critical variety of activities may affect black black abalone. These critical habitat habitat. During the consultation, NMFS abalone critical habitat and may be areas contain physical or biological evaluates the agency action to determine subject to the ESA section 7 features essential to the conservation of whether the action may adversely affect consultation process when carried out, the species that may require special listed species or critical habitat and funded, or authorized by a Federal management considerations or issues its findings in a biological agency. The activities most likely to be protection. This rule proposes to opinion. If NMFS concludes in the affected by this critical habitat exclude from the designation the area biological opinion that the agency designation once finalized are: (1) from Corona Del Mar State Beach to action would likely result in the Coastal development; (2) in-water Dana Point, Orange County, CA. destruction or adverse modification of construction; (3) sand replenishment or Although we have identified three critical habitat, NMFS would also beach nourishment activities; (4) presently unoccupied areas, we are not recommend any reasonable and prudent agricultural activities (e.g., irrigation); proposing any unoccupied areas for alternatives to the action. Reasonable (5) NPDES activities and activities designation as critical habitat at this and prudent alternatives are defined in generating non-point source pollution; time, because we do not have sufficient 50 CFR 402.02 as alternative actions (6) sidecasting; (7) oil and chemical information to determine that any of the identified during formal consultation spills and clean-up activities; (8) unoccupied areas are essential to the that can be implemented in a manner construction and operation of power conservation of the species. consistent with the intended purpose of plants that take in and discharge water the action, that are consistent with the from the ocean; (9) construction and Lateral Extent of Critical Habitat scope of the Federal agency’s legal operation of alternative energy The lateral extent of the proposed authority and jurisdiction, that are hydrokinetic projects (tidal or wave critical habitat designation offshore is economically and technologically energy projects); and (10) construction defined by the 6 m depth bathymetry feasible, and that would avoid the and operation of desalination plants. contour relative to the line of mean destruction or adverse modification of Private entities may also be affected by lower low water (MLLW) and shoreward critical habitat. Regulations at 50 CFR this critical habitat designation if a to the MHHW line. The textual 402.16 require Federal agencies that Federal permit is required, Federal descriptions of critical habitat in the have retained discretionary involvement funding is received, or the entity is section titled ‘‘226.220 Critical habitat or control over an action, or where such involved in or receives benefits from a for the black abalone (Haliotis discretionary involvement or control is Federal project. These activities would cracherodii)’’ are the definitive source authorized by law, to reinitiate need to be evaluated with respect to for determining the critical habitat consultation on previously reviewed their potential to destroy or adversely boundaries. The overview maps actions in instances where: (1) Critical modify critical habitat. Changes to the

VerDate Mar<15>2010 17:52 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 59924 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

actions to minimize or avoid destruction habitat; (9) information regarding the for Peer Review (Bulletin). The Bulletin or adverse modification of designated benefits of excluding particular areas was published in the Federal Register critical habitat may result in changes to from the critical habitat designation; on January 14, 2005 (70 FR 2664), and some activities. Please see the draft (10) current or planned activities in the went into effect on June 16, 2005. The economic report (NMFS, 2010a) for areas proposed for designation and their primary purpose of the Bulletin is to more details and examples of changes possible impacts on proposed critical improve the quality and credibility of that may need to occur in order for habitat; and (11) any foreseeable scientific information disseminated by activities to minimize or avoid economic, national security, tribal, or the Federal government by requiring destruction or adverse modification of other relevant impacts resulting from peer review of ‘‘influential scientific designated critical habitat. Questions the proposed designations. With regard information’’ and ‘‘highly influential regarding whether specific activities to Indian lands, we request that the scientific information’’ prior to public would constitute destruction or adverse following information be provided to modification of critical habitat should inform our ESA section 4(b)(2) analysis: dissemination. Influential scientific ‘‘ be directed to NMFS (see ADDRESSES (1) A map and description of the Indian information is defined as information and FOR FURTHER INFORMATION CONTACT). lands (e.g., location, latitude and the agency reasonably can determine longitude coordinates to define the will have or does have a clear and Public Comments Solicited boundaries, extent into waterways); (2) substantial impact on important public To ensure the final action resulting a description of tribal activities that may policies or private sector decisions.’’ The from this proposal will be as accurate be affected within the area; (3) a Bulletin provides agencies broad and as effective as possible, we solicit description of past, ongoing, or future discretion in determining the comments and suggestions from the conservation measures conducted by the appropriate process and level of peer public, other concerned governments tribes that may protect black abalone review. Stricter standards were and agencies, the scientific community, habitat within the area; and (4) a point established for the peer review of industry, or any other interested party of contact. ‘‘highly influential scientific concerning this proposed rule. We encourage comments on this assessments,’’ defined as information Specifically, public comments are proposal. You may submit your whose ‘‘dissemination could have a sought concerning: (1) The role that comments and materials by any one of potential impact of more than $500 ocean acidification plays in reducing several methods (see ADDRESSES). The million in any one year on either the growth and survivorship of abalone as proposed rule, maps, references, and public or private sector or that the has been observed in other marine other materials relating to this proposal dissemination is novel, controversial, or gastropods (Shirayama and Thornton, can be found on our Web site at precedent-setting, or has significant 2005); (2) the impact that reduced http://swr.nmfs.noaa.gov, on the Federal ’’ abundance of coralline algae resulting eRulemaking Portal at http:// interagency interest. The draft from increased partial pressure of www.regulations.gov, or can be made biological report and draft economic carbon dioxide (hereafter CO2) (Feely et available upon request. We will analysis report supporting this rule al., 2004; Hall-Spencer et al., 2008) has consider all comments and information proposing to designate critical habitat on the survival of newly settled black received during the comment period for for the black abalone are considered abalone; (3) the effects that this proposed rule in preparing the final influential scientific information and environmental pollutants have on rule. subject to peer review. These two growth, reproduction, and survival of reports will each be distributed to three black abalone at varying spatial scales, Public Hearings independent peer reviewers for review as has been demonstrated in a few, Regulations at 50 CFR 424.16(c)(3) on or before the publication date of this locally isolated cases (e.g., Diablo require the Secretary to promptly hold proposed rule. The peer reviewer Canyon-Martin et al., 1977; Palos at least one public hearing if any person comments will be compiled into a peer Verdes Peninsula-Leighton, 1959; Cox, requests one within 45 days of review report to be made available to 1962; Young, 1964; Miller and Lawrenz- publication of a proposed rule to the public at the time the black abalone Miller, 1993); (4) the impacts that designate critical habitat. Requests for a critical habitat designation is finalized. accidentally spilled oil from offshore public hearing must be made in writing drilling platforms or various types of (see ADDRESSES) by November 12, 2010. Required Determinations commercial vessels and subsequent If a public hearing is requested, a notice Regulatory Planning and Review (E.O. clean-up operations have on the quality detailing the specific hearing location of black abalone habitat; (5) information and time will be published in the 12866) describing the abundance, distribution, Federal Register at least 15 days before This proposed rule has been and habitat use of black abalone the hearing is to be held. Information on determined to be significant for throughout its current and historical specific hearing locations and times will purposes of E.O. 12866. A draft range; (6) information on the also be posted on our Web site at http:// economic analysis report and ESA identification, location, and quality of swr.nmfs.noaa.gov. These hearings section 4(b)(2) report have been physical or biological features which provide the opportunity for interested prepared to support the exclusion may be essential to the conservation of individuals and parties to give process under section 4(b)(2) of the ESA black abalone; (7) information regarding comments, exchange information and potential impacts of designating any opinions, and engage in a constructive and our consideration of alternatives to particular area, including the types of dialogue concerning this proposed rule. this rulemaking as required under E.O. Federal activities that may trigger an We encourage the public’s involvement 12866. The draft economic analysis ESA section 7 consultation and the in such ESA matters. report and ESA section 4(b)(2) report are possible modifications that may be available on the Southwest Region Web required of those activities as a result of Peer Review site at http://swr.nmfs.noaa.gov, on the section 7 consultation; (8) information On December 16, 2004, the Office of Federal eRulemaking Web site at http:// regarding the benefits of designating any Management and Budget (OMB) issued www.regulations.gov, or upon request particular area of the proposed critical its Final Information Quality Bulletin (see ADDRESSES).

VerDate Mar<15>2010 17:52 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59925

Regulatory Flexibility Act (5 U.S.C. 601 activities occur and which could be $407,050, and $325,300, respectively et seq.) affected by the designation. (NMFS, 2010a). Ideally, this analysis would directly In accordance with the requirements Under the Regulatory Flexibility Act identify the number of small entities of the RFA (as amended by SBREFA of (RFA) (5 U.S.C. 601 et seq., as amended that are located within the coastal areas 1996) this analysis considered various by the Small Business Regulatory adjacent to the specific areas. However, alternatives to the critical habitat Enforcement Fairness Act (SBREFA) of it is not possible to directly determine designation for the black abalone. The 1996), whenever an agency publishes a the number of firms in each industry alternative of not designating critical notice of rulemaking for any proposed sector within these areas because habitat for the black abalone was or final rule, it must prepare and make business activity data is maintained at considered and rejected because such an available for public comment a the county level. Therefore, this analysis approach does not meet the legal regulatory flexibility analysis describing provides a maximum number of small requirements of the ESA. We considered the effects of the rule on small entities businesses that could be affected. This the alternative of designating all specific (i.e., small businesses, small number is most likely inflated since all areas (i.e., no areas excluded); however, organizations, and small government of the identified small businesses are in one case, the benefits of excluding jurisdictions). We have prepared an unlikely to be located in close proximity specific area 12 (Corona Del Mar to initial regulatory flexibility analysis of the specific areas. Dana Point) outweighed the benefits of (IRFA), which is part of the draft After determining the number of including it in the designation. Thus, economic analysis report (NMFS, small entities, this analysis estimates NMFS also considered the alternative of 2010a). This document is available upon the impact per entity for each area and designating all specific areas, but request (see ADDRESSES), via our Web industry sector. The following steps excluding specific area 12. This site at http://swr.nmfs.noaa.gov, or via were used to provide these estimates: (1) alternative helps to reduce the number the Federal eRulemaking Web site at Total impact for every area and activity of small businesses potentially affected http://www.regulations.gov. type is determined based on the results from 3,671 to 3,193; however, the total In summary, the IRFA did not presented in the draft economic report potential annualized economic impact consider all types of small businesses (NMFS, 2010a); (2) the proportion of to small businesses ($76,858,250; that could be affected by the black businesses that are small is calculated NMFS, 2010a) remains largely abalone critical habitat designation due for every area for every activity type; (3) unchanged because the estimated to lack of information. Impacts to small the impact to small businesses for every annualized cost borne by small entities businesses involved in 10 activities area and activity type is estimated by associated with specific area 12 was were considered: (1) In-water multiplying the total impacts estimated very low ($27,200; NMFS, 2010a) and construction; (2) dredging; (3) NPDES- for all businesses with the proportion of only accounts for 0.04 percent of the permitted facilities that discharge water businesses that are determined to be total small business impacts. small; and (4) the average impact per into or adjacent to the coastal marine E.O. 13211 environment; (4) coastal urban small businesses is estimated by taking On May 18, 2001, the President issued development; (5) agriculture (including the ratio of the total estimated impacts an Executive Order on regulations that pesticide use, irrigation, and livestock to the total number of small businesses. There is a maximum of 3,671 small significantly affect energy supply, farming); (6) oil and chemical spills and businesses involved in activities most distribution, and use. E.O. 13211 clean-up; (7) construction and operation likely to be affected by this rule. This is requires agencies to prepare Statements of power plants; (8) construction and based on the assumption that all small of Energy Effects when undertaking an operation of tidal and wave energy businesses counted across areas and action expected to lead to the projects; (9) construction and operation activity types are separate entities. promulgation of a final rule or of liquefied natural gas (LNG) projects; However, it is likely that a particular regulation that is a significant regulatory and (10) mineral and petroleum small business may appear multiple action under E.O. 12866 and is likely to exploration and extraction. The IRFA times as being affected by conservation have a significant adverse effect on the estimates the potential number of small measures for multiple areas and activity supply, distribution, or use of energy. businesses that may be affected by this types. Hence, total small business An energy impacts analysis was rule, and the average annualized impact estimates across areas and activity types prepared under E.O. 13211 and is per entity for a given area and activity are likely to be overestimated. The available as part of the draft economic type. Specifically, based on an potential annualized impacts borne by analysis report. The results of the examination of the North American small entities were highest for specific analysis are summarized here, and more Industry Classification System (NAICS), area 10 (Montan˜ a de Oro State Park to detail is provided in the NMFS draft this analysis classifies the potentially just south of Government Point) with economic report (NMFS, 2010a). affected economic activities into potential costs as high as $75 million. The Office of Management and Budget industry sectors and provides an This is mainly due to the impacts on the provides guidance for implementing estimate of the number of small three facilities that are associated with this Executive Order, outlining nine businesses affected in each sector based power plants, which are estimated to be outcomes that may constitute ‘‘a on the applicable NAICS codes. 97.5 percent of the total costs. It is significant adverse effect’’ when The specific areas considered for important to note here that these costs compared with the regulatory action designation as critical habitat, and area likely overestimated, due to the fact under consideration: (1) Reductions in hence the action area for this rule, span that the modification costs for power crude oil supply in excess of 10,000 from the Del Mar Landing Ecological plants are based solely on the closed barrels per day (bbls); (2) reductions in Reserve to Dana Point in California, cooling system retrofit. Specific areas 3 fuel production in excess of 4,000 bbls; including several offshore islands. (Farallon Islands), 4 (southern point at (3) reductions in coal production in Although the areas of concern include the mouth of San Francisco Bay to Moss excess of 5 million tons per year; (4) marine areas off the coast, the small Beach), and 2 (Bodega Head to Point reductions in natural gas production in business analysis is focused on land Bonita) have potential annualized small excess of 25 million cubic feet per year; based areas where most economic business impacts of about $614,850, (5) reductions in electricity production

VerDate Mar<15>2010 17:52 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 59926 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

in excess of 1 billion kilowatts-hours Regulatory Commission (FERC).1 Future costs. However, the construction of LNG per year or in excess of 500 megawatts management and required project facilities and associated increased of installed capacity; (6) increases in modifications for black abalone critical energy supplies to consumers aim to energy use required by the regulatory habitat related to tidal and wave energy generally result in lower energy prices action that exceed the thresholds above; projects are uncertain and could vary than would have otherwise been (7) increases in the cost of energy widely in scope from project to project. expected. Therefore, this analysis is production in excess of one percent; (8) Moreover, because the proposed unable to forecast potential energy increases in the cost of energy projects are still in the preliminary impacts resulting from changes to LNG distribution in excess of one percent; or stages, the potential impact of possible projects without specific information (9) other similarly adverse outcomes. black abalone conservation efforts on about recommended black abalone Of these, the most relevant criteria to the project’s energy production and the conservation measures or future this analysis are potential changes in associated cost of that energy are forecasts of energy prices that reflect natural gas and electricity production, unclear. Proposed tidal and wave energy future markets with increased energy as well as changes in the cost of energy projects within the study area have a supplies from LNG projects. production. Possible energy impacts combined production capacity of 21 Unfunded Mandates Reform Act (2 may occur as the result of requested megawatts. It is more likely that any U.S.C. 1501 et seq.) project modifications to power plants, additional cost of black abalone tidal and wave energy projects, and LNG conservation efforts would be passed on In accordance with the Unfunded facilities. There is currently only one to the consumer in the form of slightly Mandates Reform Act, NMFS makes the power plant, the Diablo Canyon Nuclear higher energy prices. That said, any following findings: Power Plant (DCNPP), located within an increase in energy prices as a result of (A) This proposed rule would not produce a Federal mandate. In general, area that could be affected by black black abalone conservation would have a Federal mandate is a provision in abalone critical habitat. Future to be balanced against changes in energy legislation, statute, or regulation that management and required project price resulting from the development of would impose an enforceable duty upon modifications for black abalone critical these projects. That is, the construction State, local, tribal governments, or the habitat related to power plants include: of tidal and wave energy projects may private sector and includes both cooling of thermal effluent before result in a general reduction in energy ‘‘Federal intergovernmental mandates’’ release to the environment, treatment of prices in affected areas. Without and ‘‘Federal private sector mandates.’’ any contaminated waste materials, information about the effect of the tidal These terms are defined in 2 U.S.C. retrofitting to a wet cooling system, and and wave projects on future electricity 658(5)–(7). ‘‘Federal intergovernmental prices and more specific information modifications associated with permits mandate’’ includes a regulation that about recommended conservation issued under NPDES. These ‘‘would impose an enforceable duty measures for black abalone, this analysis modifications could affect energy upon State, local, or tribal governments’’ is unable to forecast potential energy production; however, the potential with two exceptions. It excludes ‘‘a impacts resulting from changes to tidal impact of possible black abalone condition of Federal assistance.’’ It also and wave energy projects. conservation efforts on the project’s excludes ‘‘a duty arising from Similar to tidal and wave energy energy production and the associated participation in a voluntary Federal projects, the number of future LNG cost is unknown. DCNPP has a program,’’ unless the regulation ‘‘relates projects that will be built within the production capacity of 2,200 megawatts to a then-existing Federal program specific areas is unknown. Many LNG and therefore, if about half of this under which $500,000,000 or more is projects are likely to be abandoned capacity is affected by black abalone provided annually to State, local, and during the development stages for critical habitat, it would be higher than tribal governments under entitlement reasons unrelated to black abalone the 500 megawatts of installed capacity authority,’’ if the provision would critical habitat. In addition, the threshold. It is unlikely that any project ‘‘increase the stringency of conditions of potential impact of LNG facilities on modifications would have a large assistance’’ or ‘‘place caps upon, or impact on the amount of electricity black abalone habitat remains uncertain, otherwise decrease, the Federal produced. It is more likely that any as is the nature of any project Government’s responsibility to provide additional cost of black abalone modifications that might be requested to funding’’ and the State, local, or tribal conservation efforts would be passed on mitigate adverse impacts. Since there governments ‘‘lack authority’’ to adjust to the consumer in the form of slightly are no LNG projects in the development accordingly. ‘‘Federal private sector higher energy prices. Without stage, the potential impact of possible mandate’’ includes a regulation that information about the effect of power black abalone conservation efforts on ‘‘would impose an enforceable duty plants on future electricity prices and the project’s energy production and the upon the private sector, except (i) a more specific information about how associated cost of that energy are condition of Federal assistance; or (ii) a recommended conservation measures unclear. Project modifications may duty arising from participation in a for black abalone would affect include biological monitoring, spatial voluntary Federal program.’’ The electricity production, this analysis is restrictions on project installation, and designation of critical habitat does not unable to forecast potential energy specific measures to prevent or respond impose an enforceable duty on non- impacts resulting from changes to power to catastrophes. Out of these project Federal government entities or private plants. modifications, spatial restrictions on parties. The only regulatory effect of a The number of future tidal and wave project installation could have effects on critical habitat designation is that energy projects that will be constructed energy production. This modification Federal agencies must ensure that their within the specific areas is unknown. could increase LNG construction costs, actions do not destroy or adversely Currently there are no actively- which may result in higher natural gas modify critical habitat under ESA generating wave or tidal energy projects section 7. Non-Federal entities that located within the study area. However, 1 FERC. Issued and Valid Hydrokinetic Projects Preliminary Permit. Accessed at: http:// receive funding, assistance, or permits four projects have received preliminary www.ferc.gov/industries/hydropower/indus-act/ from Federal agencies, or otherwise permits from the Federal Energy hydrokinetics/permits-issued.xls on April 5, 2010. require approval or authorization from a

VerDate Mar<15>2010 17:52 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59927

Federal agency for an action may be may have some benefit to state and local resources and coastal effects) must be indirectly affected by the designation of resource agencies in that the areas consistent to the maximum extent critical habitat. Furthermore, to the essential to the conservation of the practicable with the enforceable policies extent that non-Federal entities are species are more clearly defined, and of a coastal state’s federally approved indirectly impacted because they the PCEs of the habitat necessary for the coastal management program. We have receive Federal assistance or participate survival of black abalone are specifically determined that this proposed critical in a voluntary Federal aid program, the identified. While this designation would habitat designation is consistent to the Unfunded Mandates Reform Act would not alter where and what non-federally maximum extent practicable with the not apply, nor would critical habitat sponsored activities may occur, it may enforceable policies of the approved shift the costs of the large entitlement assist local governments in long-range Coastal Zone Management Program of programs listed above to state planning. California. This determination will be governments. submitted for review by the California Civil Justice Reform (B) Due to the prohibition against take Coastal Commission. of black abalone both within and In accordance with E.O. 12988, we outside of the designated areas, we do have determined that this proposed rule Government-to-Government not anticipate that this proposed rule would not unduly burden the judicial Relationship With Tribes would significantly or uniquely affect system and meets the requirements of The longstanding and distinctive small governments. As such, a Small sections 3(a) and 3(b)(2) of the E.O. We relationship between the Federal and Government Agency Plan is not are proposing to designate critical tribal governments is defined by required. habitat in accordance with the treaties, statutes, executive orders, Takings provisions of the ESA. This proposed judicial decisions, and agreements, rule uses standard property descriptions which differentiate tribal governments Under E.O. 12630, Federal agencies and identifies the PCEs within the from the other entities that deal with, or must consider the effects of their actions designated areas to assist the public in are affected by, the Federal government. on constitutionally protected private understanding the habitat needs of black This relationship has given rise to a property rights and avoid unnecessary abalone. special Federal trust responsibility takings of property. A taking of property involving the legal responsibilities and includes actions that result in physical Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) obligations of the United States toward invasion or occupancy of private Indian Tribes and the application of property, and regulations imposed on This proposed rule does not contain fiduciary standards of due care with private property that substantially affect new or revised information collections respect to Indian lands, tribal trust its value or use. In accordance with E.O. that require approval by the Office of resources, and the exercise of tribal 12630, this proposed rule would not Management and Budget (OMB) under rights. Pursuant to these authorities have significant takings implications. A the Paperwork Reduction Act. This lands have been retained by Indian takings implication assessment is not proposed rule would not impose Tribes or have been set aside for tribal required. The designation of critical recordkeeping or reporting requirements use. These lands are managed by Indian habitat affects only Federal agency on State or local governments, Tribes in accordance with tribal goals actions. This proposed rule would not individuals, businesses, or and objectives within the framework of increase or decrease the current organizations. applicable treaties and laws. E.O. 13175, restrictions on private property Consultation and Coordination with concerning take of black abalone, nor do National Environmental Policy Act of Indian Tribal Governments, outlines the we expect the critical habitat 1969 (NEPA) responsibilities of the Federal designation to impose substantial We have determined that an Government in matters affecting tribal additional burdens on land use or environmental analysis as provided for interests. There is a broad array of substantially affect property values. under the NEPA of 1969 for critical activities on Indian lands that may Additionally, the critical habitat habitat designations made pursuant to trigger ESA section 7 consultations. As designation would not preclude the the ESA is not required. See Douglas described in the section above titled development of Habitat Conservation County v. Babbitt, 48 F.3d 1495 (9th Cir. ‘‘Exclusions Based on Impacts on Indian Plans and issuance of incidental take 1995), cert. denied, 116 S.Ct 698 (1996). Lands,’’ we have not identified any permits for non-Federal actions. Owners tribal lands that overlap with the of areas included within the proposed Coastal Zone Management Act of 1972 proposed critical habitat designation for critical habitat designation would (CZMA) black abalone. continue to have the opportunity to use The CZMA emphasizes the primacy of their property in ways consistent with state decision-making regarding the References Cited coastal zone. Section 307 of the CZMA the survival of endangered black A complete list of all references cited (16 U.S.C. 1456), called the federal abalone. herein is available upon request (see consistency provision, is a major ADDRESSES section) or via our Web site Federalism incentive for states to join the national at http://swr.nmfs.noaa.gov. In accordance with E.O. 13132, we coastal management program and is a determined that this proposed rule powerful tool that states use to manage List of Subjects in 50 CFR Part 226 would not have significant Federalism coastal uses and resources and to Endangered and threatened species. effects and that a Federalism assessment facilitate cooperation and coordination is not required. In keeping with with federal agencies. Dated: September 20, 2010. Department of Commerce policies, we Federal consistency is the CZMA Eric C. Schwaab, request information from, and will requirement where federal agency Assistant Administrator for Fisheries, coordinate development of this activities that have reasonably National Marine Fisheries Service. proposed critical habitat designation foreseeable effects on any land or water For the reasons set out in the with, appropriate state resource use or natural resource of the coastal preamble, this proposed rule proposes agencies in California. This designation zone (also referred to as coastal uses or to amend part 226, title 50 of the Code

VerDate Mar<15>2010 17:52 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 59928 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

of Federal Regulations as set forth (iii) South of San Francisco Bay to Los Angeles County, California: below: Moss Beach, San Mateo County, northern seaward coordinates: California: northern seaward 33°48′22.604″ N, 118°24′3.534″ W; PART 226—DESIGNATED CRITICAL coordinates: 37°47′17.078″ N, northern shoreward coordinates: HABITAT 122°31′13.59″ W; northern shoreward 33°48′22.268″ N, 118°23′35.504″ W; coordinates: 37°47′17.524″ N, southern seaward coordinates: 1. The authority citation of part 226 ° ′ ″ ° ′ ″ ° ′ ″ continues to read as follows: 122 30 21.458 W; southern seaward 33 42 10.303 N, 118 16 50.17 W; coordinates: 37°30′11.763″ N, southern shoreward coordinates: Authority: 16 U.S.C. 1533. 122°30′35.06″ W; southern shoreward 33°42′25.816″ N, 118°16′41.059″ W. 2. Add § 226.220, to read as follows: coordinates: 37°30′12.815″ N, (2) Coastal Islands: The black abalone ° ′ ″ § 226.220 Critical habitat for black abalone 122 30 2.083 W. critical habitat areas surrounding the (Haliotis cracherodii). (iv) Moss Beach to Pescadero State coastal islands listed below are defined Beach, San Mateo County, California: Critical habitat is designated for black by a seaward boundary that extends northern seaward coordinates: abalone as described in this section. The offshore to the 6m depth bathymetry 37°30′11.763″ N, 122°30′35.06″ W; textual descriptions of critical habitat in line (relative to mean lower low water), northern shoreward coordinates: this section are the definitive source for and a shoreward boundary that is the 37°30′12.815″ N, 122°30′2.083″ W; determining the critical habitat line marking mean higher high water. southern seaward coordinates: Critical habitat only includes rocky boundaries. The overview maps are 37°16′42.635″ N, 122°24′52.453″ W; provided for general guidance purposes intertidal habitats to a depth of 6 m. southern shoreward coordinates: (i) Farallon Islands, San Francisco only and not as a definitive source for 37°16′45.728″ N, 122°24′32.42″ W. determining critical habitat boundaries. County, California. (v) Just north of Pescadero State (ii) An˜ o Nuevo Island, San Mateo (a) Critical habitat boundaries. Beach, San Mateo County, California to (1) Coastal Marine Areas: Each coastal County, California. Natural Bridges State Beach, Santa Cruz (iii) San Miguel Island, Santa Barbara marine area below is defined by four County, California: northern seaward County, California. latitude and longitude coordinates that coordinates: 37°16′42.635″ N, (iv) Santa Rosa Island, Santa Barbara set the northern, southern, seaward and 122°24′52.453″ W; northern shoreward County, California. shoreward boundaries for the critical coordinates: 37°16′45.728″ N, (v) Santa Cruz Island, Santa Barbara habitat designation for black abalone in 122°24′32.42″ W; southern seaward County, California. U.S. coastal marine waters. The coordinates: 36°57′11.547″ N, (vi) Anacapa Island, Ventura County, northern boundary is the straight line 121°58′36.276″ W; southern shoreward California. between the northern seaward and coordinates: 36°57′15.208″ N, (vii) San Nicolas Island, Ventura shoreward coordinates and the southern 121°58′31.424″ W. County, California. boundary is the straight line between (vi) Pacific Grove to Prewitt Creek, (viii) Santa Barbara Island, Santa the southern seaward and shoreward Monterey County, California: northern Barbara County, California. coordinates. The seaward boundary seaward coordinates: 36°36′41.16″ N, (ix) Santa Catalina Island, Los extends offshore to the 6 m depth 121°53′30.453″ W; northern shoreward Angeles County, California. bathymetry line (relative to mean lower coordinates: 36°36′41.616″ N, (x) San Clemente Island, Los Angeles low water) between the northern 121°53′47.763″ W; southern seaward County, California. seaward and southern seaward coordinates: 35°56′5.324″ N, (b) Primary constituent elements. The coordinates and the shoreward 121°28′45.131″ W; southern shoreward primary constituent elements essential boundary is the line that marks mean coordinates: 35°56′6.025″ N, for the conservation of the black abalone higher high water between the northern 121°28′34.36″ W. are: shoreward and southern shoreward (vii) Prewitt Creek, Monterey County, (1) Rocky substrate. Suitable rocky coordinates. Critical habitat only California to Cayucos, San Luis Obispo substrate includes rocky benches includes rocky intertidal habitats to a County, California: northern seaward formed from consolidated rock of depth of 6 m. coordinates: 35°56′5.324″ N, various geological origins (e.g., igneous, (i) Del Mar Landing Ecological 121°28′45.131″ W; northern shoreward metamorphic, and sedimentary) that Reserve to Bodega Head, Sonoma coordinates: 35°56′6.025″ N, contain channels with macro- and County, California: northern seaward 121°28′34.36″ W; southern seaward micro-crevices or large boulders (greater coordinates: 38°44′25.04″ N, coordinates: 35°26′22.887″ N, than or equal to 1 m in diameter) and 123°30′52.067″ W; northern shoreward 120°54′6.264″ W; southern shoreward occur from mean higher high water coordinates: 38°44′25.948″ N, coordinates: 35°26′23.708″ N, (MHHW) to a depth of 6 m. All types of 123°30′19.175″ W; southern seaward 120°53′39.427″ W. relief (high, medium and low; 0.5 to coordinates: 38°18′38.623″ N, (viii) Montan˜ a de Oro State Park in greater than 2 m vertical relief) support 123°4′21.549″ W; southern shoreward San Luis Obispo County, California to black abalone. coordinates: 38°18′39.478″ N, just south of Government Point, Santa (2) Food resources. Abundant food 123°4′7.573″ W. Barbara County, California: northern resources including bacterial and (ii) Bodega Head, Sonoma County, seaward coordinates: 35°17′15.72″ N, diatom films, crustose coralline algae, California to Point Bonita, Marin 120°53′30.537″ W; northern shoreward and a source of detrital macroalgae, are County, California: northern seaward coordinates: 35°17′15.965″ N, required for growth and survival of all coordinates: 38°18′38.623″ N, 120°52′59.583″ W; southern seaward stages of black abalone. The primary 123°4′21.549″ W; northern shoreward coordinates: 34°27′12.95″ N, macroalgae consumed by juvenile and coordinates: 38°18′39.478″ N, 120°22′10.341″ W; southern shoreward adult black abalone are giant kelp 123°4′7.573″ W; southern seaward coordinates: 34°27′25.11″ N, (Macrocystis pyrifera) and feather boa coordinates: 37°49′3.404″ N, 120°22′3.731″ W. kelp (Egregia menziesii) in southern 122°31′56.339″ W; southern shoreward (ix) Palos Verdes Peninsula extending California (i.e., south of Point coordinates: 37°49′3.082″ N, from the Palos Verdes/Torrance border Conception) habitats, and bull kelp 122°31′50.549″ W. to Los Angeles Harbor in southwestern (Nereocystis leutkeana) in central and

VerDate Mar<15>2010 17:52 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59929

northern California habitats (i.e., north Adult abalone may facilitate larval tolerance range: 12 to 25 °C, optimal of Santa Cruz). Southern sea palm settlement and metamorphosis by, range: 18 to 22 °C), salinity (i.e., 30 to (Eisenia arborea), elk kelp grazing down algal competitors and 35 ppt), pH (i.e., 7.5 to 8.5), and other (Pelagophycus porra), stalked kelp thereby promoting the maintenance of chemical characteristics necessary for (Pterygophora californica), and other substantial substratum cover by crustose normal settlement, growth, behavior, brown kelps (Laminaria sp.) may also be coralline algae, outcompeting encrusting and viability of black abalone. consumed by black abalone. sessile invertebrates (e.g., tube worms (5) Suitable nearshore circulation (3) Juvenile settlement habitat. Rocky and tube snails) for space and thereby patterns. Suitable circulation patterns intertidal habitat containing crustose promoting the maintenance of are those that retain eggs, sperm, coralline algae and crevices or cryptic substantial substratum cover by crustose fertilized eggs and ready-to-settle larvae biogenic structures (e.g., urchins, coralline algae as well as creating space within 100 km from shore so that mussels, chiton holes, conspecifics, for settling abalone, and emitting successful fertilization and settlement to anemones) is important for successful chemical cues that may induce shallow intertidal habitat can take place. larval recruitment and juvenile growth settlement of abalone larvae. (c) Overview maps of black abalone and survival of black abalone less than (4) Suitable water quality. Suitable critical habitat follow: approximately 25 mm shell length. water quality includes temperature (i.e., BILLING CODE 3510–22–P

VerDate Mar<15>2010 17:52 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 59930 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules

VerDate Mar<15>2010 17:52 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4725 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 EP28SE10.003 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59931

[FR Doc. 2010–24215 Filed 9–27–10; 8:45 am] BILLING CODE 2510–22–C

VerDate Mar<15>2010 17:52 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00033 Fmt 4701 Sfmt 9990 E:\FR\FM\28SEP4.SGM 28SEP4 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4 EP28SE10.004 i

Reader Aids Federal Register Vol. 75, No. 187 Tuesday, September 28, 2010

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING SEPTEMBER Federal Register/Code of Federal Regulations General Information, indexes and other finding 202–741–6000 At the end of each month, the Office of the Federal Register aids publishes separately a List of CFR Sections Affected (LSA), which Laws 741–6000 lists parts and sections affected by documents published since Presidential Documents the revision date of each title. 1250...... 55255 Executive orders and proclamations 741–6000 2 CFR 3430...... 54759, 59058 The United States Government Manual 741–6000 Proposed Rules: Subt. A...... 55671 205...... 57194 Other Services 170...... 55663 253...... 54530 Electronic and on-line services (voice) 741–6020 3 CFR 319...... 57864 Privacy Act Compilation 741–6064 761...... 57866 Public Laws Update Service (numbers, dates, etc.) 741–6043 Proclamations: 763...... 57866 8549...... 53563 TTY for the deaf-and-hard-of-hearing 741–6086 764...... 57866 8550...... 54449 810...... 56911 8551...... 54451 ELECTRONIC RESEARCH 868...... 56911 8552...... 54453 987...... 56019 World Wide Web 8553...... 54455 1250...... 55292 Full text of the daily Federal Register, CFR and other publications 8554...... 54757 is located at: http://www.gpoaccess.gov/nara/index.html 8555...... 55253 8 CFR Federal Register information and research tools, including Public 8556...... 56457 Inspection List, indexes, and links to GPO Access are located at: 8557...... 56459 103...... 58962 http://www.archives.gov/federallregister 8558...... 56461 204...... 58962 E-mail 8559...... 56463 244...... 58962 274A ...... 58962 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 8560...... 56465 an open e-mail service that provides subscribers with a digital 8561...... 57369 9 CFR form of the Federal Register Table of Contents. The digital form 8562...... 57837 of the Federal Register Table of Contents includes HTML and 8563...... 57839 91...... 57658 PDF links to the full text of each document. 8564...... 58279 161...... 59605 162...... 57658 To join or leave, go to http://listserv.access.gpo.gov and select 8565...... 58281 Online mailing list archives, FEDREGTOC-L, Join or leave the list 8566...... 58283 Proposed Rules: (or change settings); then follow the instructions. Executive Orders: 56...... 57200 PENS (Public Law Electronic Notification Service) is an e-mail 13551...... 53837 91...... 56912, 56914 service that notifies subscribers of recently enacted laws. 13552...... 54263 101...... 56916 114...... 56916 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html Administrative Orders: and select Join or leave the list (or change settings); then follow Presidential 145...... 57200 the instructions. Determinations: 146...... 57200 147...... 57200 FEDREGTOC-L and PENS are mailing lists only. We cannot No. 2010-13 of respond to specific inquiries. September 2, 10 CFR Reference questions. Send questions and comments about the 2010 ...... 54459 Federal Register system to: [email protected] Notices: 72...... 57841 The Federal Register staff cannot interpret specific documents or Notice of September Proposed Rules: regulations. 10, 2010 ...... 55661 Ch. I ...... 59160 Reminders. Effective January 1, 2009, the Reminders, including Notice of September 54...... 59158 Rules Going Into Effect and Comments Due Next Week, no longer 16, 2010 ...... 57159 429...... 56796, 57410 appear in the Reader Aids section of the Federal Register. This 430 ...... 54048, 56021, 56796, 5 CFR information can be found online at http://www.regulations.gov. 57410, 57556, 59470 CFR Checklist. Effective January 1, 2009, the CFR Checklist no 6201...... 55941 431 ...... 55068, 56796, 57410, longer appears in the Federal Register. This information can be 9201...... 57657 59657 Proposed Rules: found online at http://bookstore.gpo.gov/. 11 CFR 532...... 58339 FEDERAL REGISTER PAGES AND DATE, SEPTEMBER 100...... 55257 6 CFR 109...... 55947 53563–53840...... 1 57841–58284...... 23 Proposed Rules: 53841–54004...... 2 58285–59056...... 24 5...... 54528, 55290 12 CFR 54005–54270...... 3 59057–59604...... 27 226 ...... 58470, 58489, 58539 7 CFR 54271–54460...... 7 59605–59932...... 28 400...... 55941 54461–54758...... 8 6...... 53565 604...... 59060 54759–55254...... 9 301...... 54461 607...... 59060 55255–55452...... 10 457...... 59057 612...... 59060 55453–55662...... 13 761...... 54005 614...... 59060 55663–55940...... 14 762...... 54005 615...... 59060 55941–56466...... 15 764...... 54005 618...... 59060 56467–56856...... 16 765...... 54005 627...... 59060 56857–57158...... 17 766...... 54005 701...... 57841, 58285 57159–57368...... 20 915...... 55942 740...... 53841 57369–57656...... 21 930...... 57161 745...... 53841 57657–57840...... 22 984...... 55944 1249...... 55892

VerDate Mar 15 2010 18:29 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00001 Fmt 4712 Sfmt 4712 E:\FR\FM\28SECU.LOC 28SECU hsrobinson on DSK69SOYB1PROD with PROPOSALS3 ii Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Reader Aids

1282...... 55892 17 CFR 555...... 56489 501...... 56471 Proposed Rules: Proposed Rules: 1...... 55410 28 CFR 226...... 58505, 58539 3...... 55410 111 ...... 56920, 56922, 57410 614...... 56487 35...... 56164 4...... 55410 40 CFR 1101...... 54052 5...... 55410 36...... 56236 9...... 56880, 57169 10...... 55410 29 CFR 14 CFR 140...... 55410 51...... 55636 4022...... 55966 39 ...... 53843, 53846, 53849, 52 ...... 54031, 54773, 54778, 145...... 55410 4044...... 55966 53851, 53855, 53857, 53859, 147...... 55410 55271, 55977, 55978, 55988, 53861, 54462, 55453, 55455, 160...... 55410 Proposed Rules: 56424, 56889, 57186, 57390, 1908...... 54064 55459, 55461, 57371, 57659, 166...... 55410 57862, 58305, 58312, 59081, 2570...... 54542 57660, 57664, 57666, 57844, 200...... 54464, 56668 59084, 59086, 59090 55...... 55277 57846, 58290, 59060, 59062, 201...... 57384 30 CFR 59065, 59067, 59071, 59073, 60 ...... 54970, 55271, 55636 210...... 57385 75...... 57849 59077, 59606 211...... 59894 61...... 55271, 55636 Proposed Rules: 47...... 58292 229...... 57385 63...... 54970, 55636 Ch. I ...... 54804 71 ...... 55267, 57373, 57374, 231...... 59894 80...... 59622 81 ...... 54031, 54497, 58312, 57375, 57376, 57383, 57846, 232...... 55965, 56668 31 CFR 57847, 57848, 59608 240...... 54465, 56668 59090 560...... 59611 98...... 57669 73...... 53863 241...... 59894 575...... 55462 97 ...... 54766, 54769, 55961, 249 ...... 54465, 56668, 57385 180 ...... 53577, 53581, 53586, 576...... 55463 54033, 55991, 55997, 56013, 55963 Proposed Rules: 141...... 56857 32 CFR 56892, 56897 4...... 54794, 55698 228...... 54497 Proposed Rules: 16...... 54801, 54802 706...... 58303 261...... 57686, 58315 39 ...... 53609, 54536, 55492, 35...... 59666 865...... 59613 271...... 57188, 58328 55691, 56487, 57880, 57882, Ch. II ...... 55295 1701...... 57163 300 ...... 54779, 55479, 56015 57885, 58340, 59167, 59170, 229...... 59866 Proposed Rules: 721...... 56880, 57169 59658 232...... 54059 199...... 59193 790...... 56472 71 ...... 53876, 54057, 54058, 249...... 59866 222...... 59176 1060...... 56477 57215, 57216 117...... 55852 18 CFR 33 CFR Proposed Rules: 51 ...... 53613, 55711, 57220 121...... 55852 35...... 58293 3...... 58304 52 ...... 53613, 53883, 53892, 187...... 59961 Proposed Rules: 100 ...... 55677, 55968, 56866, 53907, 54292, 54805, 54806, 35...... 54063 57388 55494, 55711, 55713, 55725, 15 CFR 104...... 59617 56027, 56923, 56928, 56935, 20 CFR 105...... 59617 730...... 53864 56942, 57221, 57412, 59179, 117 ...... 54023, 54024, 54770, 732...... 53864 416...... 54285, 56858 59180 54771, 55475 734...... 53864, 54271 606...... 57146 60...... 53908 127...... 54025 736...... 53864 641...... 53786 72...... 53613, 55711 147...... 55970 738...... 53864 78...... 53613, 55711 740...... 53864 21 CFR 154...... 54025 155 ...... 54025, 54026, 55973 81...... 56943 742...... 53864, 54271 2...... 56858 85...... 58078, 59673 743...... 53864, 54271 510 ...... 54016, 54017, 55676 160...... 59617 165 ...... 53572, 53574, 53870, 86...... 58078, 59673 744...... 53864, 54271 520 ...... 54018, 54492, 55676 97...... 53613, 55711 746...... 53864 522 ...... 54017, 54018, 59610 54026, 54771, 55270, 55272, 55477, 55973, 55975, 56467, 136...... 58024 747...... 53864 524...... 54492 140...... 53914 748...... 53864 558...... 54019, 55676 56469, 57167, 57857, 58304, 59078, 59620 260...... 58024 750...... 53864 866...... 59611 261...... 58346 752...... 53864 870...... 54493 Proposed Rules: 100...... 56024 300...... 54821 754...... 53864 1310...... 53867 423...... 58024 756...... 53864 Proposed Rules: 117...... 54069 167...... 55709, 56919 430...... 58024 758...... 53864 866...... 59670 435...... 58024 760...... 53864 36 CFR 600...... 58078, 59673 762...... 53864 24 CFR Proposed Rules: 799...... 55728 764...... 53864 Ch. II ...... 54020 1060...... 56491 766...... 53864 200...... 55710 768...... 53864 25 CFR 294...... 54542 41 CFR 770...... 53864 1192...... 54543 542...... 55269 1253...... 54543 300-80...... 58329 772...... 53864, 54271 543...... 55269 301-10...... 59094 774...... 53864, 54271 1254...... 54543 Proposed Rules: 1280...... 54543 301-11...... 59094 922...... 53567 Ch. I ...... 59672 301-70...... 59094 Proposed Rules: 37 CFR 26 CFR 42 CFR 742...... 54540 201...... 56868 744...... 54540 1 ...... 55677, 56858, 57163 380...... 56873 411...... 56015 746...... 54540 602...... 56858, 57163 Proposed Rules: 806...... 53611, 57217 Proposed Rules: 38 CFR Ch. I...... 57230, 57233 922...... 55692 1 ...... 54541, 54802, 55698, 3...... 54496, 57859 5...... 59674 59172 17...... 54028, 54496 100...... 55503 16 CFR 31...... 54541, 59172 36...... 56875 405...... 58204 307...... 59609 40...... 59172 Proposed Rules: 424...... 58204 310...... 55269 301...... 55699, 59172 5...... 53744 431...... 56946 Proposed Rules: 76...... 54069 438...... 58204 801...... 57110 27 CFR 447...... 54073, 58204 802...... 57110 Proposed Rules: 39 CFR 455...... 58204 803...... 57110 9...... 53877 111...... 54287 457...... 58204

VerDate Mar 15 2010 18:29 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00002 Fmt 4712 Sfmt 4712 E:\FR\FM\28SECU.LOC 28SECU hsrobinson on DSK69SOYB1PROD with PROPOSALS3 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Reader Aids iii

498...... 58204 252 ...... 54527, 59101, 59102, 179...... 53593 241...... 57598 1007...... 58204 59103 180...... 53593 575...... 58078, 59673 907...... 57690 220...... 59580 595...... 59674 43 CFR 923...... 57690 236...... 59108 3000...... 55678, 58330 936...... 57690 325...... 57191 3910...... 55678 952...... 57690 383...... 59118 50 CFR 3930...... 55678 970...... 57690 384...... 59118 17 ...... 53598, 55686, 59645 Proposed Rules: 385...... 55488, 57696 20 ...... 53774, 58250, 58994, 44 CFR 8...... 59195 390...... 59118 59042 64 ...... 55280, 55683, 57688 12...... 59195 391...... 59118 32...... 57698 67 ...... 55480, 59095, 59634 16...... 59195 392...... 59118 300...... 56903, 59136 Proposed Rules: 52...... 57719 393...... 57393 600...... 57698, 59143 61...... 54076 53...... 54560 395...... 55488 622...... 58334, 58335 544...... 54041 67 ...... 55507, 55515, 55527, 212...... 59412 635 ...... 53871, 57407, 57698 59181, 59184, 59188, 59192 227...... 59412 593...... 57396 1503...... 58331 648 ...... 53871, 54290, 55286, 246...... 59412 56016, 59154 45 CFR Proposed Rules: 252...... 59412 660...... 54791, 59156 Ch. XXV...... 54789 Ch. II ...... 56961 177...... 59197 192...... 56972 665...... 53606, 54044 Proposed Rules: 3001...... 55529 679 ...... 53606, 53608, 53873, 1307...... 57704 3002...... 55529 195...... 56972 209...... 57598 53874, 53875, 54290, 54792, 3003...... 55529 213...... 57598 55288, 55689, 55690, 56016, 46 CFR 3004...... 55529 214...... 57598 56017, 56018, 56483, 57702, 8...... 56015 3005...... 55529 215...... 57598 58337, 59157 3006...... 55529 217...... 57598 680...... 56485 47 CFR 3009...... 55529 218...... 57598 Proposed Rules: 20...... 54508 3012...... 55529 219...... 57598 10...... 57413 64...... 54040 3018...... 55529 220...... 57598 13...... 57413 73...... 59645 3022...... 55529 221...... 57598 76...... 59099, 59645 3023...... 55529 16...... 56975 222...... 57598 17 ...... 53615, 54561, 54708, 300...... 54790 3033...... 55529 223...... 57598 301...... 59100 3035...... 55529 54822, 55730, 56028, 57426, 224...... 57598 57720, 59804 Proposed Rules: 3036...... 55529 225...... 57598 21...... 57413 Ch. I ...... 55297 3042...... 55529 227...... 57598 22...... 57413 20...... 54546 3045...... 55529 228...... 57598 23...... 54579 54...... 56494 3052...... 55529 229...... 57598 3053...... 55529 230...... 57598 32...... 56360 48 CFR 231...... 57598 223...... 53925, 57431 203...... 59101 49 CFR 232...... 57598 224...... 57431 204...... 59102 40...... 59105 233...... 57598 226...... 59900 207...... 54524 107...... 53593 234...... 57598 300...... 54078 211...... 54524, 59102 171...... 53593 235...... 57598 622...... 57734 217...... 54526 172...... 53593 236...... 57598 635...... 57235, 57240 227...... 54527 173...... 53593 238...... 57598 648 ...... 53939, 54292, 57249, 237...... 54524 176...... 53593 239...... 57598 59204 247...... 59103 177...... 53593 240...... 57598 660...... 56976

VerDate Mar 15 2010 18:29 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00003 Fmt 4712 Sfmt 4712 E:\FR\FM\28SECU.LOC 28SECU hsrobinson on DSK69SOYB1PROD with PROPOSALS3 iv Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Reader Aids

www.gpoaccess.gov/plaws/ the Elbert P. Tuttle United (Aug. 16, 2010; 124 Stat. index.html. Some laws may States Court of Appeals 2497) LIST OF PUBLIC LAWS not yet be available. Building in Atlanta, Georgia, as the ‘‘John C. Godbold Last List August 16, 2010 This is a continuing list of H.R. 511/P.L. 111–231 Federal Building’’. (Aug. 16, public bills from the current To authorize the Secretary of 2010; 124 Stat. 2494) session of Congress which Agriculture to terminate certain H.R. 5278/P.L. 111–235 have become Federal laws. It easements held by the Public Laws Electronic may be used in conjunction Secretary on land owned by To designate the facility of the Notification Service with ‘‘P L U S’’ (Public Laws the Village of Caseyville, United States Postal Service Update Service) on 202–741– Illinois, and to terminate located at 405 West Second (PENS) 6043. This list is also associated contractual Street in Dixon, Illinois, as the available online at http:// arrangements with the Village. ‘‘President Ronald W. Reagan www.archives.gov/federal- (Aug. 16, 2010; 124 Stat. Post Office Building’’. (Aug. PENS is a free electronic mail register/laws.html. 2489) 16, 2010; 124 Stat. 2495) notification service of newly H.R. 2097/P.L. 111–232 The text of laws is not H.R. 5395/P.L. 111–236 enacted public laws. To Star-Spangled Banner subscribe, go to http:// published in the Federal To designate the facility of the Commemorative Coin Act listserv.gsa.gov/archives/ Register but may be ordered United States Postal Service (Aug. 16, 2010; 124 Stat. publaws-l.html in ‘‘slip law’’ (individual located at 151 North Maitland pamphlet) form from the 2490) H.R. 3509/P.L. 111–233 Avenue in Maitland, Florida, Superintendent of Documents, as the ‘‘Paula Hawkins Post Note: This service is strictly Agricultural Credit Act of 2010 U.S. Government Printing Office Building’’. (Aug. 16, for E-mail notification of new (Aug. 16, 2010; 124 Stat. Office, Washington, DC 20402 2010; 124 Stat. 2496) laws. The text of laws is not (phone, 202–512–1808). The 2493) available through this service. text will also be made H.R. 4275/P.L. 111–234 H.R. 5552/P.L. 111–237 PENS cannot respond to available on the Internet from To designate the annex Firearms Excise Tax specific inquiries sent to this GPO Access at http:// building under construction for Improvement Act of 2010 address.

VerDate Mar 15 2010 18:29 Sep 27, 2010 Jkt 220001 PO 00000 Frm 00004 Fmt 4712 Sfmt 4711 E:\FR\FM\28SECU.LOC 28SECU hsrobinson on DSK69SOYB1PROD with PROPOSALS3