1–29–10 Friday Vol. 75 No. 19 Jan. 29, 2010

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Contents Federal Register Vol. 75, No. 19

Friday, January 29, 2010

Administration on Aging Privacy Act; Systems of Records, 4788–4791 See Aging Administration Defense Nuclear Facilities Safety Board Aging Administration NOTICES NOTICES Draft Revised Strategic Plan (FY 2010–2015), 4794 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 4824 Education Department NOTICES Agriculture Department Agency Information Collection Activities; Proposals, See Food and Nutrition Service Submissions, and Approvals, 4794 See Rural Housing Service Meetings: Army Department National Assessment Governing Board; Cancellation, See Engineers Corps 4794–4795 NOTICES Non-Exclusive, Exclusive, or Partially Exclusive Licensing Energy Department of U.S. Provisional Patent Application Concerning Blast See Federal Energy Regulatory Commission Wave Sensor; Availability, 4793 NOTICES Energy Conservation Program for Certain Industrial Blind or Severely Disabled, Committee for Purchase From Equipment: People Who Are Petition for Waiver from Daikin AC (Americas), Inc., etc., See Committee for Purchase From People Who Are Blind or 4795–4801 Severely Disabled Environmental Impact Statements; Availability, etc.: Decommissioning and/or Long-Term Stewardship, West Centers for Disease Control and Prevention Valley Demonstration Project and Western New York NOTICES Nuclear Service Center, 4803–4805 Agency Information Collection Activities; Proposals, Draft Long-Term Management and Storage of Elemental Submissions, and Approvals, 4823–4825 Mercury, 4801–4802 Meetings: Meetings: Advisory Committee to the Director, Ethics Environmental Management Site–Specific Advisory Subcommittee, 4830–4831 Board, Portsmouth, 4805

Centers for Medicare & Medicaid Services Engineers Corps NOTICES NOTICES Agency Information Collection Activities; Proposals, Environmental Impact Statements; Availability, etc.: Submissions, and Approvals, 4825–4826 Proposed Construction of Lake Columbia, Cherokee and Smith Counties, TX, 4793 Coast Guard Relocation of New River Inlet Ebb Tide Channel, Onslow RULES County, NC, 4791–4793 Drawbridge Operation Regulation: Inner Harbor Navigational Canal, New Orleans, LA, 4693 Environmental Protection Agency Commerce Department RULES See International Trade Administration Approvals and Promulgations of Air Quality See National Oceanic and Atmospheric Administration Implementation Plans: Montana; Revisions to Administrative Rules of Montana, Committee for Purchase From People Who Are Blind or 4698–4700 Severely Disabled PROPOSED RULES NOTICES Approval and Promulgation of Implementation Plans: Procurement List; Additions and Deletions, 4783–4785 State of California; Legal Authority, 4742–4745 State of California; San Joaquin Valley Unified Air Corporation for National and Community Service Pollution Control District, New Source Review, NOTICES 4745–4758 Meetings; Sunshine Act, 4785 Approvals and Promulgations of Air Quality Implementation Plans: Defense Department Montana; Revisions to Administrative Rules of Montana, See Army Department 4758–4759 See Engineers Corps Manufacturing Import Exemption for Veolia ES Technical NOTICES Solutions, L.L.C.: 36(b)(1) Arms Sales Notification, 4785–4788 Polychlorinated Biphenyls; Withdrawal, 4759–4760 FY 2010 Grant Competition Announcement: Revisions to the California State Implementation Plan: Promoting Student Achievement at Schools Impacted by San Joaquin Valley Unified Air Pollution Control District; Military Force Structure Change, 4788 Withdrawal, 4759

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NOTICES Federal Railroad Administration Agency Information Collection Activities; Proposals, RULES Submissions, and Approvals, 4809–4810 Track Safety Standards: Environmental Impact Statements; Availability, etc., 4810– Continuous Welded Rail (CWR), 4703–4705 4812 NOTICES Inquiry To Learn Whether Businesses Assert Business Railroad Safety Advisory Committee (RSAC); Working Confidentiality Claims, 4812–4815 Group Activity Update, 4904–4909 Integrated Science Assessment for Carbon Monoxide, 4815– 4816 Federal Reserve System Meetings: NOTICES Two Public Teleconferences of Chartered Science Agency Information Collection Activities; Proposals, Advisory Board, 4816–4817 Submissions, and Approvals, 4819–4821 Receipt of a Request for an Amendment to Delete a Use in Formations of, Acquisitions by, and Mergers of Bank a Pesticide Registration: Holding Companies, 4821 Beauveria Bassiana Strain GHA, 4817–4818 Fish and Wildlife Service Executive Office of the President NOTICES See Science and Technology Policy Office Endangered and Threatened Wildlife and Plants: Indiana Bat; 30-day Scoping Period on Proposed Habitat Federal Aviation Administration Conservation Plan and Incidental Take Permit, 4840– RULES 4842 Amendment of Class E Airpsace: Permit, St. Lucie County, FL, 4839–4840 Graford, TX, 4683 PROPOSED RULES Food and Drug Administration Airworthiness Directives: RULES Airbus Model A330–200 and –300 Series Airplanes and Implantation or Injectable Dosage Form New Animal Drugs: A340–200, –300, –500, and –600 Series Airplanes, Ceftiofur Crystalline Free Acid, 4692 4710–4713 Ophthalmic and Topical Dosage Form New Animal Drugs: NOTICES Miconazole, Polymixin B, and Prednisolone Suspension, Petition for Exemption; Summary of Petition Received, 4692–4693 4904 Food and Nutrition Service Federal Bureau of Investigation RULES NOTICES Food Stamp Program: Agency Information Collection Activities; Proposals, Eligibility and Certification Provisions of the Farm Submissions, and Approvals, 4848 Security and Rural Investment Act of 2002, 4912– 4962 Federal Communications Commission General Services Administration RULES NOTICES In the Matter of Procedural Amendments to Commission 2010 Travel and Relocation Excellence Award, 4822 Part 1 Competitive Bidding Rules, 4701–4703 PROPOSED RULES Review of Emergency Alert System, 4760–4768 Geological Survey NOTICES NOTICES Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals, Submissions, and Approvals, 4818–4819 Submissions, and Approvals, 4837–4838 Meetings: Consumer Advisory Committee, 4819 Health and Human Services Department See Aging Administration See Centers for Disease Control and Prevention Federal Emergency Management Agency See Centers for Medicare & Medicaid Services NOTICES See Food and Drug Administration Committee Management: See National Institutes of Health Request for Applicants for Appointment to the National NOTICES Advisory Council, 4834–4835 Decision to Evaluate Petition to Designate Class of Employees: Federal Energy Regulatory Commission Lawrence Livermore National Laboratory, Livermore, CA, RULES to be included in the Special Exposure Cohort, 4822 Electronic Tariff Filings, 4689–4692 Linde Ceramics, Tonawanda, NY, to be included in the NOTICES Special Exposure Cohort, 4822 Inquiry: Meetings: Electricity Market Transparency Provisions of Section Presidents Advisory Council for Faith-based and 220 of the Federal Power Act, 4805–4809 Neighborhood Partnerships, 4822–4823

Federal Maritime Commission Homeland Security Department NOTICES See Coast Guard Agreements Filed, 4821–4822 See Federal Emergency Management Agency

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NOTICES Millennium Challenge Corporation Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 4833–4834 Entering into a Compact with the Republic of Moldova, 4849–4875 Housing and Urban Development Department PROPOSED RULES Mine Safety and Health Administration Federal Housing Administration (FHA): NOTICES Hospital Mortgage Insurance Program-Refinancing Agency Information Collection Activities; Proposals, Hospital Loans, 4964–4971 Submissions, and Approvals, 4848–4849 NOTICES Agency Information Collection Activities; Proposals, National Aeronautics and Space Administration Submissions, and Approvals, 4835–4836 NOTICES Federal Property Suitable as Facilities to Assist the Meetings: Homeless, 4836 NASA Advisory Council, 4875 NASA Commercial Space Committee, 4875–4876 Indian Affairs Bureau National Institutes of Health NOTICES NOTICES Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals, Submissions, and Approvals, 4836–4839 Submissions, and Approvals, 4827–4828 Meetings: Interior Department Center for Scientific Review, 4828–4832 See Fish and Wildlife Service Eunice Kennedy Shriver National Institute of Child See Geological Survey Health and Human Development, 4828, 4832, 4833 See Indian Affairs Bureau National Heart, Lung, and Blood Institute, 4829 See Land Management Bureau National Institute of Child Health and Human See National Park Service Development Special Emphasis Panel, etc., 4828 National Institute of Dental and Craniofacial Research, International Trade Administration 4833 NOTICES National Institute of Dental and Craniofacial Research, Decision of the Court of International Trade Not in 4833 Harmony: National Institute of Diabetes and Digestive and Kidney Hand Trucks and Certain Parts Thereof from The People’s Diseases, 4830 Republic of China, 4769–4770 National Institute on Aging, 4829–4830 Initiation of Antidumping and Countervailing Duty Administrative Reviews: National Oceanic and Atmospheric Administration Request for Revocation in Part, and Deferral of Initiation RULES of Administrative Review, 4770–4774 Fisheries of the Caribbean, Gulf of Mexico, and South Preliminary Results of Antidumping Duty Administrative Atlantic: Reviews: Coastal Migratory Pelagic Resources of the Gulf of Mexico Certain Cut to Length Carbon Quality Steel Plate Products and South Atlantic; Closure, 4705–4706 from Italy, 4779–4783 Fisheries off West Coast States: Pacific Coast Groundfish Fishery; Data Collection for the International Trade Commission Trawl Rationalization Program, 4684–4689 NOTICES NOTICES Possible Modifications to the U.S. Generalized System of Availability of Grant Funds and Proposed Implementation Preferences, 2010 Special Review: Guidelines: Certain Sleeping Bags, 4845 Solicitation for the Marine Aquaculture Initiative; Withdrawal, 4769 Fisheries of the Exclusive Economic Zone Off Alaska: Justice Department Recordkeeping and Requirements; Public Workshops, See Federal Bureau of Investigation 4770 NOTICES Issuances of Incidental Harassment Authorizations: Agency Information Collection Activities; Proposals, Takes of Marine Mammals Incidental to Specified Submissions, and Approvals, 4846–4847 Activities; St. George Reef Light Station Restoration, Lodging of Consent Decrees, 4847–4848 etc., 4774–4779 Stay-Closure of Administrative Appeal Decision Record: Labor Department Federal Consistency Appeal by Villa Marina Yacht See Mine Safety and Health Administration Harbour, Inc., 4783 See Occupational Safety and Health Administration National Park Service Land Management Bureau NOTICES NOTICES Agency Information Collection Activities; Proposals, Environmental Impact Statements; Availability, etc.: Submissions, and Approvals, 4838 Record of Decision for the Yuma Field Office Resource Environmental Impact Statements; Availability, etc.: Management Plan, 4842 Winter Use Plan, Yellowstone National Park, 4842–4843 Filing of Plats of Survey: Meetings: Alaska, 4843–4844 Acadia National Park Advisory Commission, 4844–4845

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Chesapeake and Ohio Canal National Historical Park NASDAQ OMX PHLX, Inc., 4884–4889, 4893–4894 Advisory Commission, 4844 National Securities Clearing Corporation, 4894–4897 New York Stock Exchange LLC, 4889–4891, 4897–4900 National Science Foundation NYSE Arca, Inc., 4887–4888 NOTICES Agency Information Collection Activities; Proposals, Social Security Administration Submissions, and Approvals, 4876 NOTICES Meetings: Drug Addiction and Alcoholism; Request for Comments, Proposal Review Panel for Materials Research, 4876 4900

Nuclear Regulatory Commission State Department NOTICES NOTICES Confirmatory Order Modifying License: Agency Information Collection Activities; Proposals, Beta Gamma Nuclear Radiology, 4877–4879 Submissions, and Approvals, 4901 Juan E. Perez Monte, M.D., 4879–4881 Renewal of the U.S. Advisory Commission for Public Meetings: Diplomacy, 4901 ACRS Subcommittee on Radiation Protection and Nuclear Materials, 4881–4882 Susquehanna River Basin Commission ACRS U.S. Evolutionary Power Reactor (EPR) NOTICES Subcommittee, 4882 Projects Approved for Consumptive Uses of Water, 4901– 4904 Occupational Safety and Health Administration PROPOSED RULES Thrift Supervision Office Occupational Injury and Illness Recording and Reporting NOTICES Requirements, 4728–4741 Appointment of Receiver: Postal Regulatory Commission Charter Bank; Santa Fe, NM, 4909 RULES New Postal Products, 4693–4698 Transportation Department See Federal Aviation Administration Postal Service See Federal Railroad Administration PROPOSED RULES Express Mail Open and Distribute and Priority Mail Open Treasury Department and Distribute Changes and Updates, 4741–4742 See Thrift Supervision Office

Rural Housing Service PROPOSED RULES Separate Parts In This Issue Continuous Construction-Permanent Loan Guarantees, etc., 4707–4710 Part II Agriculture Department, Food and Nutrition Service, 4912– Science and Technology Policy Office 4962 NOTICES Meetings: Part III Subcommittee on Forensic Science; Committee on Housing and Urban Development Department, 4964–4971 Science; National Science and Technology Council, 4882–4883

Securities and Exchange Commission Reader Aids PROPOSED RULES Consult the Reader Aids section at the end of this page for Purchases of Certain Equity Securities by the Issuer and phone numbers, online resources, finding aids, reminders, Others, 4713–4728 and notice of recently enacted public laws. NOTICES To subscribe to the Federal Register Table of Contents Agency Information Collection Activities; Proposals, LISTSERV electronic mailing list, go to http:// Submissions, and Approvals, 4883–4884 listserv.access.gpo.gov and select Online mailing list Self-Regulatory Organizations; Proposed Rule Changes: archives, FEDREGTOC-L, Join or leave the list (or change International Securities Exchange, LLC, 4891–4893 settings); then follow the instructions.

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CFR PARTS AFFECTED IN THIS ISSUE

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

7 CFR 272...... 4912 273...... 4912 Proposed Rules: 3565...... 4707 14 CFR 71...... 4683 Proposed Rules: 39...... 4710 15 CFR 902...... 4684 17 CFR Proposed Rules: 240...... 4713 18 CFR 35...... 4689 131...... 4689 154...... 4689 157...... 4689 250...... 4689 281...... 4689 284...... 4689 300...... 4689 341...... 4689 344...... 4689 346...... 4689 347...... 4689 348...... 4689 375...... 4689 385...... 4689 21 CFR 522...... 4692 524...... 4692 24 CFR Proposed Rules: 242...... 4964 29 CFR Proposed Rules: 1904...... 4728 33 CFR 117...... 4693 39 CFR 3020...... 4693 Proposed Rules: 111...... 4741 40 CFR 52...... 4698 Proposed Rules: 52 (4 documents) ...4742, 4745, 4758, 4759 761...... 4759 47 CFR 1...... 4701 Proposed Rules: 11...... 4760 49 CFR 213...... 4703 50 CFR 622...... 4705 660...... 4684

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Rules and Regulations Federal Register Vol. 75, No. 19

Friday, January 29, 2010

This section of the FEDERAL REGISTER written comments on the proposal to the safety of aircraft and the efficient use of contains regulatory documents having general FAA. No comments were received. Class airspace. This regulation is within the applicability and legal effect, most of which E airspace designations are published in scope of that authority as it amends are keyed to and codified in the Code of paragraph 6005 of FAA Order 7400.9T controlled airspace at Possum Kingdom Federal Regulations, which is published under signed August 27, 2009, and effective Airport, Graford, TX. 50 titles pursuant to 44 U.S.C. 1510. September 15, 2009, which is List of Subjects in 14 CFR Part 71 The Code of Federal Regulations is sold by incorporated by reference in 14 CFR the Superintendent of Documents. Prices of Part 71.1. The Class E airspace Airspace, Incorporation by reference, new books are listed in the first FEDERAL designations listed in this document Navigation (air). REGISTER issue of each week. will be published subsequently in the Order. Adoption of the Amendment DEPARTMENT OF TRANSPORTATION The Rule ■ In consideration of the foregoing, the This action amends Title 14 Code of Federal Aviation Administration Federal Aviation Administration Federal Regulations (14 CFR) Part 71 by amends 14 CFR Part 71 as follows: amending Class E airspace for the PART 71—DESIGNATION OF CLASS A, 14 CFR Part 71 Graford, TX area, adding additional B, C, D, AND E AIRSPACE AREAS; AIR [Docket No. FAA–2009–0927; Airspace controlled airspace extending upward TRAFFIC SERVICE ROUTES; AND Docket No. 09–ASW–27] from 700 feet above the surface to REPORTING POINTS accommodate SIAPs at Possum Amendment of Class E Airspace; Kingdom Airport. Adjustments to the ■ 1. The authority citation for 14 CFR Graford, TX geographic coordinates also will be Part 71 continues to read as follows: AGENCY: Federal Aviation made in accordance with the FAA’s Administration (FAA), DOT. National Aeronautical Charting Office. Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– ACTION: Final rule. This action is necessary for the safety and management of IFR operations at 1963 Comp., p. 389. SUMMARY: This action amends Class E the airport. § 71.1 [Amended] airspace for Graford, TX, adding The FAA has determined that this additional controlled airspace to regulation only involves an established ■ 2. The incorporation by reference in accommodate Area Navigation (RNAV) body of technical regulations for which 14 CFR Part 71.1 of the Federal Aviation Standard Instrument Approach frequent and routine amendments are Administration Order 7400.9T, Airspace Procedures (SIAPs) at Possum Kingdom necessary to keep them operationally Designations and Reporting Points, Airport, Graford, TX. The FAA is taking current. Therefore, this regulation: (1) Is signed August 27, 2009, and effective this action to enhance the safety and not a ‘‘significant regulatory action’’ September 15, 2009, is revised as management of Instrument Flight Rule under Executive Order 12866; (2) is not follows: (IFR) operations at the airport. a ‘‘significant rule’’ under DOT * * * * * DATES: Effective 0901 UTC, April 8, Regulatory Policies and Procedures (44 Paragraph 6005 Class E airspace areas 2010. The Director of the Federal FR 11034; February 26, 1979); and (3) extending upward from 700 feet or more Register approves this incorporation by does not warrant preparation of a above the surface. reference action under 1 CFR Part 51, regulatory evaluation as the anticipated * * * * * subject to the annual revision of FAA impact is so minimal. Since this is a Order 7400.9 and publication of routine matter that will only affect air ASW TX E5 Graford, TX [Amended] conforming amendments. traffic procedures and air navigation, it Possum Kingdom Airport, TX FOR FURTHER INFORMATION CONTACT: is certified that this rule, when (Lat. 32°55′24″ N., long. 98°26′13″ W.) Scott Enander, Central Service Center, promulgated, will not have a significant That airspace extending upward from 700 Operations Support Group, Federal economic impact on a substantial feet above the surface within a 6.3-mile Aviation Administration, Southwest number of small entities under the radius of Possum Kingdom Airport and Region, 2601 Meacham Blvd., Fort criteria of the Regulatory Flexibility Act. within 4 miles each side of the 031° bearing Worth, TX 76137; telephone (817) 321– The FAA’s authority to issue rules from the airport extending from the 6.3-mile radius to 10.8 miles northeast of the airport, 7716. regarding aviation safety is found in ° Title 49 of the U.S. Code. Subtitle 1, and within 4 miles each side of the 210 SUPPLEMENTARY INFORMATION: bearing from the airport extending from the Section 106, describes the authority of History 6.3-mile radius to 10.8 miles southwest of the the FAA Administrator. Subtitle VII, airport. On November 9, 2009, the FAA Aviation Programs, describes in more * * * * * published in the Federal Register a detail the scope of the agency’s notice of proposed rulemaking to amend authority. This rulemaking is Issued in Fort Worth, Texas, on January 11, Class E airspace for Graford, TX, promulgated under the authority 2010. reconfiguring controlled airspace at described in Subtitle VII, Part A, Anthony D. Roetzel, Possum Kingdom Airport (74 FR 57620) Subpart I, Section 40103. Under that Manager, Operations Support Group, ATO Docket No. FAA–2009–0927. Interested section, the FAA is charged with Central Service Center. parties were invited to participate in prescribing regulations to assign the use [FR Doc. 2010–1367 Filed 1–28–10; 8:45 am] this rulemaking effort by submitting of airspace necessary to ensure the BILLING CODE 4910–13–P

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DEPARTMENT OF COMMERCE FOR FURTHER INFORMATION CONTACT: Council or the Secretary of Commerce to Jamie Goen, phone: 206–526–4656, fax: ensure that limited access privilege National Oceanic and Atmospheric 206–526–6736, and e-mail holders do not acquire an excessive Administration [email protected]. share of the total limited access privileges in the program, and to SUPPLEMENTARY INFORMATION: 15 CFR Part 902 establish a maximum share, expressed Electronic Access as a percentage, that each limited access 50 CFR Part 660 This rule is accessible via the Internet privilege holder may hold, acquire, or [Docket No. 0907281183–91427–02] at the Office of the Federal Register’s use. For the trawl rationalization Website at http://www.gpoaccess.gov/fr/ program, the Council has adopted limits RIN 0648–AX98 index.html. Background information on the amount of harvest privileges that can be held, acquired, or used by Fisheries off West Coast States; and documents are available at the Pacific Fishery Management Council’s individuals and vessels (i.e., Pacific Coast Groundfish Fishery; Data accumulation limits). Collection for the Trawl Rationalization website at http://www.pcouncil.org/ and Program at NMFS Northwest Region’s website at Collection of Ownership Information http://www.nwr.noaa.gov/Groundfish- Pursuant to section 402(a)(2) of the AGENCY: National Marine Fisheries Halibut/Groundfish-Fishery- MSA, if the Secretary of Commerce Service (NMFS), National Oceanic and Management/index.cfm. determines that additional information Atmospheric Administration (NOAA), is necessary for developing or Commerce. Background implementing an FMP, the Secretary ACTION: Final rule. On September 16, 2009, NMFS may, by regulation, implement an published a proposed rule (74 FR SUMMARY: NMFS is collecting data to information collection program 47545) announcing our intent to collect requiring submission of such additional support implementation of a future ownership information from potential trawl rationalization program under the information for the fishery. This rule participants in the Pacific Coast provides for the collection of ownership Pacific Coast Groundfish Fishery groundfish trawl rationalization Management Plan (FMP). NMFS will information from the potential program and announcing the databases participants in the trawl rationalization collect ownership information from all NMFS intends to use to determine potential participants in the trawl program, including the at-sea fleet initial allocations for the program. Since (whiting motherships, whiting rationalization program. In addition, 2003, the Pacific Fishery Management NMFS is notifying potential participants mothership catcher vessels, and whiting Council (Council) has been developing catcher/processors), the shore-based that the agency intends to use the a trawl rationalization program, which Pacific States Marine Fisheries fleet (whiting and non-whiting permit would affect the limited entry trawl owners and holders) and the shore- Commission’s Pacific Fisheries fishery of the Pacific Coast groundfish based whiting processors. Ownership Information Network (PacFIN) database, fishery. The trawl rationalization information would be collected through NMFS’ Northwest Fisheries Science program is intended to increase net the Trawl Identification of Ownership Center’s Pacific whiting observer data economic benefits, create individual Interest Form, and would support and from NORPAC (a database of North economic stability, provide full facilitate the timely implementation of Pacific fisheries and Pacific whiting utilization of the trawl sector allocation, the potential future trawl rationalization information), and the NMFS, Northwest consider environmental impacts, and program under the Groundfish FMP. Region, Sustainable Fisheries Division achieve individual accountability for Trawl Identification of Ownership trawl-endorsed groundfish limited entry catch and bycatch. Interest Forms will be mailed to permit database to determine initial The Council has developed the trawl potential participants and will be made allocation of quota share (QS) for the rationalization program through two available on NMFS website (see trawl rationalization program, if it is amendments to the Groundfish FMP: (1) SUPPLEMENTARY INFORMATION, approved and implemented. Amendment 20, the trawl Electronic Access). All forms must be DATES: Effective March 1, 2010. rationalization program; and (2) completed and returned to NMFS with ADDRESSES: NMFS prepared a Final Amendment 21, intersector allocation. a postmark no later than the deadline Regulatory Flexibility Analysis (FRFA), Amendment 20 would create the date of May 1, 2010. which is contained in the Classification structure and management details of the section of this final rule. Copies of the trawl rationalization program, while Databases to be Used for Initial FRFA and the Small Entity Compliance Amendment 21 would allocate the Allocation of Quota Share Guide are available from Barry A. Thom, groundfish stocks between trawl and Potential participants in the trawl Acting Regional Administrator, non-trawl fisheries. The Groundfish rationalization program should be aware Northwest Region, NMFS, 7600 Sand FMP amendment approval process and that the agency intends to use data from Point Way NE, Seattle, WA 98115 0070; implementation, if appropriate, are the Pacific States Marine Fisheries or by phone at 206–526–6150. expected to occur in 2010. Commission’s PacFIN database and Written comments regarding the The trawl rationalization program NMFS’ Northwest Fisheries Science burden hour estimates or other aspects would be a limited access privilege Center’s Pacific whiting observer data of the collection of information program (LAPP) under the Magnuson- from NORPAC to determine initial requirements contained in this final rule Stevens Fishery Conservation and allocations of QS for the trawl may be submitted to Barry A. Thom, Management Act (MSA), 16 U.S.C. rationalization program. Landings data Acting Regional Administrator, §§ 1851–1891d, as reauthorized in 2007. from state fish tickets, as provided by Northwest Region, NMFS, 7600 Sand It would consist of: (1) An individual the states to the PacFIN database, will Point Way NE, Seattle, WA 98115 0070, fishing quota (IFQ) program for the be used to determine initial allocation of or by e-mail to shore-based trawl fleet; and (2) IFQ QS for the shore-based whiting and [email protected], or by fax to cooperative (co-op) programs for the at- nonwhiting harvesters and for the shore- 202–395–7285. sea trawl fleet. The MSA requires the based whiting processors. The first

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receiver listed on the state fish ticket, as corrected before NMFS extracts the data Therefore, after considering the options recorded in PacFIN, will be used to for initial issuance of QS. For concerns for limiting the burden while furthering determine to whom whiting processing over the accuracy of limited entry the goals of the MSA, NMFS concluded history should be attributed for whiting permit or permit combination data, that modifying the Trawl Identification QS. Through NMFS’ initial issuance and check NMFS’ website at http:// of Ownership Interest Form to set a appeals process for QS, there will be an www.nwr.noaa.gov/Groundfish-Halibut/ threshold limit of 2 percent ownership opportunity to reassign the whiting Groundfish-Permits/index.cfm or interest, below which individual owners processing history. In addition, state contact Kevin Ford (206–526–6115, need not be listed, is the most effective logbook information from 2003 through [email protected]). way to relieve the potential burden 2006, as recorded in PacFIN, will be described above while implementing Comments and Responses used to determine the area fished the requirements of the MSA. The associated with individual permits NMFS received comments on the rationale for this approach is described (depth and latitudinal strata associated proposed rule from five members of the below. with permits). This information will be public, including three from fishing NMFS considered and rejected the used in a formula to determine a industry organizations and two from suggestion that it should exempt large permit’s initial allocation of overfished individuals. Comments relevant to this corporations and other organizations species. Landings data from the rulemaking are addressed here: from reporting individual ownership NORPAC database will be used to Comment 1: Four of the commenters levels. A broad exemption is not determine initial allocation of at-sea QS suggested alternative requirements for necessary to alleviate the possible for the whiting mothership catcher reporting ownership accumulation burden described above. Additionally, vessels. Information on trawl-endorsed limits. These comments focused on the NMFS believes that in the context of the groundfish limited entry permits or practicality of collecting ownership potential trawl rationalization program, permit combinations will come from information at the individual level for in which accumulation limits are likely limited entry permit records at NMFS, large companies, such as publicly- to be relatively small for some species, Northwest Region, Sustainable Fisheries owned corporations (domestic or an ownership threshold for reporting Division. foreign), non-governmental would best further the intent of the NMFS intends to ‘‘freeze’’ the organizations, and Community MSA while reducing the reporting databases for the purposes of initial Development Quota (CDQ) groups. burden on entities with large numbers allocation on the date the proposed rule These groups may consist of thousands of small owners. for implementing Amendment 20 to the of individuals that could be considered NMFS also considered and rejected FMP is published in the Federal shareholders. Suggestions from the suggestion that business entities Register. ‘‘Freezing’’ the databases commenters included: (1)exempting could comply with the data collection means that NMFS will extract a these groups from listing individual requirement by signing an affidavit snapshot of the databases as of the shareholders; (2) requiring a signed stating that the business entity owning proposed rule publication date, and it affidavit provided to NMFS or the the permit, vessel, or processing plant, will use the ‘‘frozen’’ data for initial Maritime Administration (MARAD) and any individuals with ownership allocation of QS. Thus, it is important stating that shareholders within the interest in that business entity, are that participants ensure, as soon as group are within accumulation limits, within the ownership interest possible and before NMFS ‘‘freezes’’ the and that failure to report amounts accumulation limits. Requiring an databases, that their data are accurate. exceeding accumulation limits would affidavit would reduce NMFS’ burden of If potential participants in the trawl subject the company or its shareholders monitoring accumulation limits. rationalization program, including to enforcement action; and (3) setting a However, this option would not be as harvesters and shore-based whiting minimum threshold level where percent effective at achieving the goal of processors, have concerns over the ownership for only those individual ensuring that the ownership of quota accuracy of their data in the PacFIN shareholders above that level need to be share is not inappropriately database, it is important that they reported. concentrated, particularly during the contact the state in which they landed Response: NMFS considered the initial implementation of the trawl those fish as soon as possible to correct comments received on the proposed rationalization program. By requiring any errors. Any revisions to an entity’s rule and input from the Groundfish the reporting of ownership information fish tickets or logbooks will have to be Advisory Subpanel (GAP) at the prior to the issuance of quota shares, approved by the state in order to be November 2009 Pacific Fishery NMFS can ensure that accumulation accepted. For logbooks, only existing Management Council meeting. As stated limits are not exceeded before fishing logbook information in PacFIN may be in the proposed rule, the MSA requires under the program occurs, rather than corrected (i.e., only transcription errors); NMFS to ensure that no one in the after a violation has been identified and no new logbooks dating back to 2003 program acquires an excessive share of corrected. through 2006 will be accepted. State the resource, in this case, through Commenters proposed two alternative contacts are as follows: (1) Washington accumulation limits. NMFS agrees with approaches to setting a minimum - Carol Turcotte (360–902–2253, the commenters that collecting reporting threshold level. The minimum [email protected]); (2) Oregon ownership information for all threshold could be set at levels - Nadine Hurtado (503–947–6247, individual owners of large organizations appropriate to each fishery (at-sea [email protected]); and (3) with large numbers of small individual mothership, at-sea mothership catcher California - Gerry Kobylinski (916–323– owners may be unduly burdensome. vessels, and shoreside fleet), or it could 1456, [email protected]). For Further, collecting such information be one number applicable to all fisheries concerns over the accuracy of NORPAC from individuals with a small (e.g., all individuals with greater than or data, contact Janell Majewski (206–860– ownership interest does not equal to 10 percent ownership interest 3293, [email protected]). significantly contribute to achieving the in a company must report). Public Potential QS owners should go directly statutory requirement that no comments described an example of a to the source where fisheries data is shareholder be permitted to acquire an fishery-specific minimum threshold for entered in the database to get it excessive share of the allocated quota. the mothership fishery: if there are only

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six potential participants in the for all individual owners be reported, mailing address and business phone mothership fishery, and the even if the individual’s ownership in numbers are necessary to ensure NMFS accumulation limit for individuals is 45 the permit, vessel, or processor/first has accurate contact information on file percent, then it may be appropriate to receiver is very small (e.g., 0.1 percent), for the potential participant in the trawl set the reporting threshold level at to requiring that ownership interest on rationalization program. In addition, as greater than or equal to 10 percent the individual level be reported for all described in the proposed rule, NMFS ownership for individuals. While this individuals with greater than or equal to intends to mail pre-filled applications approach makes sense, NMFS decided 2 percent ownership interest in a for the future trawl rationalization that the variable minimum threshold permit, vessel, or processor/first program. To do so, NMFS will need the among sectors would add unnecessary receiver. In addition, the Trawl contact information for potential complexity to an already complex Identification of Ownership Interest participants. For established owner program. One minimum threshold that Form will be revised to reflect that the entities that have responded to this is the same for participants in all percentage of ownership of all collection of information, they will only fisheries would be easier for shareholders reported may not equal need to provide information for new participants to understand, and for 100 percent for entities with shareholders or indicate if there are NMFS to implement. shareholders that own amounts smaller changes in ownership interest amounts NMFS next considered the level at than 2 percent. for various shareholders. which a minimum threshold should be Comment 2: Some commenters were Business entities are required to set. Public comment suggested a 10 concerned about the confidentiality of report the TIN for corporations or other percent threshold, similar to the the ownership information collected. business entities or the DOB for threshold for Alaska’s crab Response: NMFS addressed individuals in order to provide a unique rationalization program. NMFS decided confidentiality in the supporting identifier for Federal agencies to the 10 percent minimum threshold may statement for the Paperwork Reduction identify individuals and/or entities be too high for some sectors with Act (PRA) submission that accompanied doing business with the government accumulation limits of less than 10 the proposed rule. That submission and, for the TIN, to verify that the percent, such as the IFQ fishery. At the stated that some of the information business entity does not owe a November Council meeting, the GAP collected is considered or protected as delinquent debt to the government. The responded to NMFS’ report (Agenda confidential under section 402(b) of the TIN is required to comply with Debt Item G.8.b, NMFS Report, November MSA and NOAA Administrative Order Collection Act of 1996. Specifically, 31 2009), which outlined the public 216–100, Protection of Confidential U.S.C. § 7701 (c)(1) states that, ‘‘the head comments made on the proposed rule. Fisheries Statistics. Accordingly, the of each Federal agency shall require The GAP report (Agenda Item G.8.c, names of individuals who have an each person doing business with that Supplemental GAP Report, November ownership interest in an entity that agency to furnish that agency such 2009) suggested that ownership owns a permit, vessel or processing person’s taxpayer identification information from large companies plant and the actual percentage of number.’’ Further, at 31 U.S.C. § 7701 (publicly-held corporations, ownership are considered business (c)(2)(B), the Act provides that, ‘‘[f]or environmental organizations, and CDQ confidential and are not released to the purposes of the subsection, a person groups, etc.) should be collected for public. The phone number, fax, email, shall be considered doing business with individuals holding an ownership TIN, and date of birth are also a Federal agency if the person is - an interest in those entities at a threshold confidential. While the names and applicant for, or recipient of, a Federal that is slightly below the lowest percent ownership of the individuals license, permit, right away, grant or accumulation limits (e.g., at 2 percent if behind the entity are confidential, the benefit payment administered by the the lowest accumulation limit is 2.5 name of the entity listed as owning the agency .’’ percent). The GAP’s rationale was that permit, vessel, or processing plant is Moreover, the scope of information this formula will fulfill the requirement public information, even if the owning requested in this collection supports a to monitor control of the resource entity is an individual. In addition, the number of important purposes for the without creating an undue business address for that entity is public Agency. This information will establish administrative burden by collecting information, even if the owning entity is an initial baseline of contact ownership information from every an individual. information and unique identifiers for shareholder with any interest in the Comment 3: One commenter believes potential participants in the trawl entity, no matter how small. NMFS does not need to collect the rationalization program. First, NMFS After reviewing the comments, NMFS following information, ‘‘tax must uniquely identify individuals to decided the GAP recommended 2 identification number (TIN) for each determine whether individuals or percent minimum threshold for entity; date of birth (DOB) for each entities would exceed accumulation reporting ownership interest was individual; state in which each business limits specified for the trawl reasonable, given the rationale that it is entity is registered; business mailing rationalization program, if just below the lowest accumulation address; physical address for processing implemented. Unique identification of limit for the trawl rationalization plants; business phone number, fax individuals and entities is important to program, and that it would reduce the number and email.’’ In the event of ensuring that NMFS data is accurate and reporting burden on potential confusion between entities or will reliably identify the proper participants with large numbers of individuals, NMFS could request that recipient of harvest privileges. Second, individuals that have ownership interest information on a case-by-case basis. it will help NMFS understand where in a permit or vessel. In order to be Response: NMFS has determined that ownership groups may have crossover equitable, NMFS will apply the 2 the TIN, DOB, state in which each into other parts of the groundfish percent minimum threshold to everyone business entity is registered; business fishery. owning a permit or vessel, not just large mailing address; physical address for To reiterate for clarification purposes, companies. Therefore, this final rule processing plants; business phone NMFS intends to mail pre-filled changes the proposed rule from number are necessary for this applications for the future trawl requiring that ownership information information collection. The business rationalization program to potential

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LAPP participants based on the and would be non-transferable amounts that information collected under this information collected from the forms as associated with the vessel.’’ What is not final rule is necessary for developing part of the rulemaking. For permit clear in this sentence is that the QS and implementing the trawl owners, vessel owners, or processors/ would be issued to individual catcher rationalization program. The NMFS first receivers that have completed the vessels in the mothership fishery as part Assistant Administrator has also Trawl Identification of Ownership of the limited entry permit. Once the QS determined that this final rule is Interest Forms as part of this is assigned to a specific limited entry consistent with other provisions of the rulemaking, subsequent forms will be permit based on the catch history of the MSA and other applicable law. mailed out if the future trawl vessel registered to that permit at the This final rule has been determined to rationalization program is implemented. time of initial issuance, that QS is non- be not significant for purposes of These subsequent forms will be pre- severable from the limited entry permit. Executive Order 12866. filled, but would say ‘‘on file’’ in the While the QS cannot be split from the Pursuant to the Regulatory Flexibility TIN/DOB field of the forms. This is limited entry permit, the permit itself is Act, 5 U.S.C. §§ 601–612, a FRFA was intended to protect the privacy of that transferable to another vessel or permit prepared. The FRFA incorporates the information. The TIN/DOB field is only owner either permanently through a sale IRFA, a summary of the significant required to be filled out the first time or temporarily through a lease issues raised by the public comments in the business entity or individual’s arrangement. response to the IRFA, and NMFS’ information is collected by the NMFS, responses to those comments, along Changes From the Proposed Rule Northwest Region. with a summary of the analyses As explained in the preamble to the The proposed rule listed who completed to support the action. A copy proposed rule, each business entity potential participants in the trawl of the FRFA is available from NMFS must be registered in a state before the rationalization program should contact (see ADDRESSES). A summary of the initial allocation of harvest privileges, if they have concerns over the accuracy analysis follows: such as QS, to ensure compliance with of their data in the PacFIN database or This final rule allows NMFS to collect the MSA. Business entities established NORPAC databases. The Oregon contact data to support implementation of a under the laws of the United States or has changed. The correct contact for future trawl rationalization program, of any state would be required to Oregon is: Oregon - Nadine Hurtado Amendment 20, to the Groundfish FMP. provide proof of the establishment of (503–947–6247, A separate Regulatory Impact Review/ their business and to verify that they are [email protected]). The IRFA will be prepared for the full trawl an active corporation. If an entity was contacts listed earlier in the preamble to rationalization program as part of the not established under the laws of the this final rule have been updated with rulemaking for Amendment 20. This United States or of any other state, this this change. rule also announces that NMFS intends rule would not require the entity to For reasons explained above in the to use landings data from the PacFIN become so established. However, an response to comment 1, this final rule and NORPAC databases to determine entity must be established under the changes the reporting requirements initial allocations of QS for the trawl laws of the United States or of any state listed in the proposed rule from rationalization program. Section in order to qualify for an initial requiring that all individuals report 402(a)(2) of the MSA gives the legal allocation of QS, pursuant to section their level of ownership interest even if authority for the action. If the Secretary 303A(c)(1)(D) of the MSA. Providing the the ownership interest in the permit, determines that additional information information at this stage will expedite vessel, or processor/first receiver is very is necessary for developing or the initial issuance process. small (e.g., 0.1 percent), to requiring that implementing an FMP, the Secretary For processors or first receivers, the all individuals with greater than or may, by regulation, implement an physical address for processing plants is equal to 2 percent ownership interest in information collection requiring necessary to distinguish multiple a permit, vessel, or processor/first submission of such additional processing facilities that may be part of receiver must report their ownership information for the fishery. a larger parent company with the same interest to the individual level. The The trawl rationalization program name and same business mailing Trawl Identification of Ownership would be a LAPP under the MSA. The address. Those multiple processing Interest Form will be revised to reflect MSA requires the Council or the facilities may have unique ownership this change. In addition, the Trawl Secretary of Commerce to ensure that interests and would be required to Identification of Ownership Interest limited access privilege holders do not report their ownership interest. Form will be revised to reflect that the acquire an excessive share of the total Respondents are not required to percentage of ownership of all limited access privileges in the program complete the business fax number and shareholders reported may not equal and to establish a maximum share, business email fields on the form; they 100 percent for entities with expressed as a percentage that each are optional. shareholders that own amounts smaller limited access privilege holder may Comment 4: One commenter noted than 2 percent. hold, acquire, or use. For the trawl that NMFS incorrectly referred to the Non-substantive changes were made rationalization program, the Council has mothership catcher vessel co-op shares to paragraphs § 660.337 (a)(2)(i)(A) and adopted limits on the amount of pounds as being allocated to the vessel, and that (B), and to paragraph (a)(2)(ii)(C) to a vessel can hold, acquire, or use (i.e., these quota shares are non-transferable make them more clear. vessel limits), and limits on the amount amounts associated with the vessel. An update was made to the chart at of quota share that can be held, Response: NMFS agrees the 15 CFR Part 902 tracking OMB control acquired, or used (i.e., control limits). In description in the proposed rule was not numbers assigned pursuant to the PRA. order to prepare for implementation of clear. The proposed rule stated, ‘‘QS for the accumulation limits in the trawl the at-sea mothership fleet (called ‘‘catch Classification rationalization program, this rule will history assignments’’ in Council Pursuant to section 402(a)(2) of the allow NMFS to begin collecting documents) would initially be allocated MSA, the NMFS Assistant ownership information from potential to the individual whiting catcher vessels Administrator, acting on behalf of the participants in the program, including associated with the mothership fishery, Secretary of Commerce, has determined the at-sea fleet (whiting motherships,

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whiting mothership catcher vessels, and identification number (TIN) for each States or of any other State, they will whiting catcher/processors), the shore- entity; date of birth (DOB) for each not be required to do so by this rule. based fleet (whiting and non-whiting individual; state registered in for each However, being an established entity permit owners and holders) and the business entity; business mailing under the laws of the United States or whiting shore-based processors. address; physical address for processing under the laws of any state is a NMFS received no comments on the plants, business phone number, fax requirement to qualify for an initial IRFA. However, there were comments number and email; authorized allocation of quota share, pursuant to recommending simplification of the representative’s name; name of each section 304(c)(1)(D) of the MSA. reporting requirements. It is not clear individual having ownership interest in Providing the information at this stage how many of these comments were from the limited entry permit, vessel or will expedite the initial issuance ‘‘small’’ entities. Four of the commenters processing plant; the individual’s process. suggested alternative requirements for business addresses; percentage of Additional documentation that NMFS reporting ownership accumulation ownership by each entity (if there are may request after review of the limits. These comments focused on the multiple entities given as an owner of completed Trawl Ownership Interest practicality of collecting ownership the permit, vessel, or processing plant) Form include articles of incorporation, information at the individual level for and each individual shareholder in each a contract, or any other credible large companies, such as publicly- entity; printed name of authorized documentation that substantiates those owned corporations (domestic or representative, signature, and date. The with ownership interest in the entity foreign), non-governmental total ownership interest of all and the their percent ownership. NMFS organization, and Community shareholders in an entity or partnership may require a certified copy of the Development Quota (CDQ) groups. must equal 100 percent, except for cases current vessel document (U.S. Coast These groups may consist of thousands where some shareholders/partners in Guard or state) as evidence of vessel of individuals that could be considered the business entity own less than 2% ownership. NMFS may also request or shareholders and possibly small and are, therefore, not required to be consider any other relevant, credible businesses. reported. Only shareholders with greater evidence. The final rule changes the than or equal to 2% ownership interest The ownership interest form will be requirements listed in the proposed rule in the business entity are required to mailed to respondents in early 2010, from requiring that all individuals report their ownership interest. The and respondents will have at least 60 report even if the ownership interest in form will require all owners to certify days from the effective date of the the permit, vessel, or processor/first whether or not they are a small business Federal Register final rule to return the receiver is very small (e.g., 0.1 percent), according to SBA and Regulatory completed form. The form must be completed and returned to NMFS no to requiring that all individuals with Flexibility Act standards. Typically, greater than or equal to 2 percent later than May 1, 2010. This form does NMFS has assumed that shoreside ownership interest in a permit, vessel, NOT prequalify these persons for QS harvest vessels are small entities while or processor/first receiver must report nor guarantee that they will qualify for assuming that catch processors, their ownership interest to the QS under the future trawl mothership processors and several individual level. The Trawl rationalization program. shoreside processors are large entities. Identification of Ownership Interest The professional skills required to However, NMFS does not currently Form will be revised to reflect this complete the Trawl Ownership Interest have information to confirm this change. In addition, the Trawl Form are no different than those assumption is true. The information Identification of Ownership Interest currently employed by fishermen and requested in Section C of the form will Form will be revised to reflect that the businessmen to register their vessels percentage of ownership of all assist NMFS in better understanding the and companies under U.S. and state shareholders reported may not equal nature of these entities. The individual laws. 100 percent for entities with signing the form will certify under NMFS does not believe that this one shareholders that own amounts smaller penalty of perjury that the information time reporting will have a significant than 2 percent. provided is true and correct, and the economic impact on small entities, as This final rule will collect ownership form will be required to be notarized by the estimated reported burden is information from approximately 250 a notary public. approximately 30 minutes per response, potential participants in the trawl In addition to completing the and cost approximately $19.15 per rationalization program. Using Small mandatory ownership interest form, response (including the respondent’s Business Administration (SBA) potential trawl rationalization program time ($8.51), mailing, photocopying, standards (described in the IRFA), most participants may be required to submit and notary fee), are amounts that even of the estimated 250 entities are additional documentation. If the small businesses can bear without considered small businesses, except for ownership interest in the permit, vessel, financial hardship. There is no fee for some catcher vessels that also fish off or potential quota share involves a this form. Alaska, some shoreside processors and business entity, then additional Section 212 of the Small Business all catcher-processors and motherships documentation will be required. If an Regulatory Enforcement Fairness Act of (fewer than 30) that are affiliated with authorized representative signs this 1996 states that, for each rule or group larger processing companies or large form for a business entity, then a of related rules for which an agency is international seafood companies. corporate resolution is required that required to prepare a FRFA, the agency NMFS will send an ownership authorizes the person signing to do so shall publish one or more guides to interest form to all potential participants on behalf of the entity. Business entities assist small entities in complying with in the trawl rationalization program, established under the laws of the United the rule, and shall designate such requiring the following information: States or any state will be required to publications as ‘‘small entity compliance type of entity; qualifying permit provide proof that they had done so and guides.’’ The agency shall explain the number; name of company or name of to verify that they are an active actions a small entity is required to take individuals owning the limited entry corporation. If an entity was (is) not to comply with a rule or group of rules. permit, vessel or processing plant; tax established under the laws of the United As part of this rulemaking process, a

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letter to permit holders that also serves 15 CFR Chapter IX (iii) Owners of each vessel registered as small entity compliance guide (the to a Pacific whiting vessel license that guide) was prepared. Copies of this final PART 902—NOAA INFORMATION are not covered by paragraphs (a)(1)(i) COLLECTION REQUIREMENTS UNDER rule are available from the Northwest and (ii) above; and THE PAPERWORK REDUCTION ACT: Regional Office, and the guide, i.e., (iv) First receivers issued current OMB CONTROL NUMBERS permit holder letter, will be sent to all Pacific whiting first receiver exempted holders of permits for the fishery. The ■ 1. The authority citation for part 902 fishing permits. guide and this final rule will be continues to read as follows: (2) Supporting documentation. available upon request. (i) Business entities completing the Authority: 44 U.S.C. 3501 et seq. Trawl Identification of Ownership This final rule contains a collection- ■ 2. In § 902.1, paragraph (b), under ‘‘50 Interest Form are required to submit the of-information requirement subject to CFR’’, the entry ‘‘660.337’’ is added in following: the PRA that has been approved by the numerical order to read as follows: (A) A corporate resolution or any Office of Management and Budget other credible documentation as proof (OMB) under control number 0648– § 902.1 OMB control numbers assigned that the representative of the entity is 0599 (expires 12/31/12). The public pursuant to the Paperwork Reduction Act. authoirzed to act on behalf of the entity; reporting burden for the Trawl * * * * * and Identification of Ownership Interest (b)* * * (B) Proof that the business entity was Form is estimated to average 30 minutes established and is currently recognized Current as active under the laws of the United per response, including the time for OMB con- reviewing instructions, searching CFR part or section where the trol num- States or any state. existing data sources, gathering and information collection require- ber (all (ii) After review of the Trawl maintaining the data needed, and ment is located numbers Identification of Ownership Interest begin with Form, NMFS may require the following completing and reviewing the collection 0648–) information. This form is estimated to additional documentation: (A) Articles of incorporation, a cost approximately $19.15 per response ***** notarized contract, or any other credible (including the respondent’s time documentation that identifies each ($8.51), mailing, photocopying, and 50 CFR person who owns an interest in the notary fee). There is no fee for this form. ***** entity and their percentage of Send comments regarding these burden ownership; estimates or any other aspect of this data 660.337 –0599 (B) A certified copy of the current collection, including suggestions for ***** vessel document (United States Coast reducing the burden, to NMFS, Guard or state) as evidence of vessel Northwest Region (see ADDRESSES) ownership; or and by e-mail to (C) Such other relevant, credible 50 CFR Chapter VI [email protected], or fax to information as the applicant may 202–395–7285. PART 660—FISHERIES OFF WEST submit, or as the SFD or the Regional Notwithstanding any other provision COAST STATES Administrator may request or require. of the law, no person is required to (3) Deadline. Persons listed in ■ respond to, and no person shall be 1. The authority citation for part 660 paragraph (a)(1) will be provided at least subject to penalty for failure to comply continues to read as follows: 60 calendar days to submit completed forms. All forms must be completed and with, a collection of information subject Authority: 16 U.S.C. 1801 et seq. returned to NMFS with a postmark no to the requirements of the PRA, unless ■ 2. A new § 660.337 is added to read later than the deadline date of May 1, that collection of information displays a as follows: 2010. currently valid OMB control number. § 660.337 Trawl rationalization program - (b) [Reserved] List of Subjects data collection requirements. [FR Doc. 2010–1877 Filed 1–28–10; 8:45 am] BILLING CODE 3510–22–S 15 CFR Part 902 (a) Ownership reporting requirements - (1) In 2010, NMFS will send a Trawl Reporting and recordkeeping Identification of Ownership Interest DEPARTMENT OF ENERGY requirements. Form to the current address on record requesting information from Federal Energy Regulatory 50 CFR Part 660 participants in the trawl fishery. Receipt Commission of this form does NOT prequalify these Fisheries, Fishing, and Indian persons for quota share nor does it Fisheries. 18 CFR Parts 35, 131, 154, 157, 250, guarantee that they will qualify for 281, 284, 300, 341, 344, 346, 347, 348, Dated: January 25, 2010. quota share under a future trawl 375 and 385 Samuel D. Rauch III, rationalization program. The following Deputy Assistant Administrator for participants in the trawl fishery must [Docket No. RM01–5–000] Regulatory Programs, National Marine complete and return the form to NMFS: Fisheries Service. (i) Owners of each limited entry Electronic Tariff Filings permit endorsed for trawl gear; ■ Issued January 21, 2010. For the reasons set out in the (ii) Owners of each vessel registered preamble, 15 CFR Chapter IX and 50 AGENCY: Federal Energy Regulatory to a limited entry permit endorsed for Commission. CFR Chapter VI are amended as follows: trawl gear (i.e., permit holder) if not ACTION: Order establishing procedures identical to the permit owner covered relating to tariffs filed electronically. by paragraph (a)(1)(i) of this section;

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SUMMARY: The adoption of electronic Statutory Filings metadata to establish statutory action tariff filing necessitates changes in the 3. As the Commission explained in dates throughout its electronic systems, Commission’s processing of tariff Order No. 714, the electronic format the primacy of the Type of Filing code filings. This order identifies the ways in developed through the collaborative is necessary to ensure the integrity of which such changes affect aspects of process relies upon the use of metadata Commission processes and to ensure Commission procedures, particularly (or information) about the tariff filing, Commission action on such filings within the time period provided under the determination of statutory filings including such data elements as the the appropriate statute.6 While and statutory action dates, as well as type of filing that is being made, the Commission staff will try, where changes in docketing procedures. proposed effective date of proposed possible, to notify a filer of DATES: Effective date: This order is tariff changes, and the version number discrepancies between its transmittal effective January 29, 2010. Applicability of the effective tariff.2 As the letter and the Type of Filing code it date: This order becomes applicable Commission explained, these data selected, the Type of Filing code when tariff filings are submitted in elements ‘‘are required to properly selected will govern the appropriate electronic format. identify the nature of the tariff filing, filing type and thus whether and what organize the tariff database, and FOR FURTHER INFORMATION CONTACT: actions dates may be applicable.7 maintain the proper relationship of tariff H. Keith Pierce (Technical Information), 6. Similarly, the Commission will be provisions in relation to other Office of Energy Market Regulation, using the Tariff Record Proposed provisions.’’ 3 Federal Energy Regulatory Effective Date code to establish the Commission, 888 First Street, NE., 4. The Commission will be using proposed effective date for any statutory these data elements to establish Washington, DC 20426, (202) 502– filing.8 As is current practice, the date statutory filing and other procedural 8525, [email protected]. established by the Tariff Record dates.4 Anthony Barracchini (IT Information), The Commission will use the Proposed Effective Date, if that date is ‘‘ ’’ _ Office of the Executive Director, Type of Filing code (filing type) after the otherwise statutorily- ‘‘ Federal Energy Regulatory together with the Tariff Record established effective date, will establish Proposed Effective Date’’ Commission, 888 First Street, NE., _ _ the date on which, by statute, a tariff Washington, DC 20426, (202) 502– (proposed effective date) to establish filing would go into effect by operation 8940, [email protected]. whether a filing is statutory and the of law in the absence of Commission applicable statutory timelines. Andre Goodson (Legal Information), action.9 In a tariff filing that contains 5. All filers making statutory filings Office of the General Counsel, Federal different proposed effective dates for must choose a statutory filing type and Energy Regulatory Commission, 888 different proposed tariff changes, the include a proposed effective date to First Street, NE., Washington, DC earliest proposed effective date will have their filings treated as statutory 20426, (202) 502–8560, establish the proposed effective date for filings upon which the Commission [email protected]. determining the date on which the filing must act within statutorily-established would go into effect in the absence of SUPPLEMENTARY INFORMATION: time frames. That is, the filing type Commission action.10 While the 1 selected by the filer will determine the 1. In Order No. 714, the Commission Commission will continue its current type of filing and whether the filing is adopted regulations requiring that, practice of considering requests in starting April 1, 2010, all tariffs and to be treated as a statutory filing. Any tariff revisions filed with the discrepancy between the description of 6 The Type of Filing code will be used in all of Commission must be filed electronically the filing in the transmittal letter (or the Commission’s electronic systems to establish according to a format developed through other pleading) and the Type of Filing the applicable statutory action dates, and so, collaboration between Commission staff code chosen will be resolved in favor of notwithstanding a filing party’s wish expressed in 5 its transmittal letter or in other pleadings, the and the wholesale electric and gas the Type of Filing code. Because the Commission may not review a filing that is quadrants of the North American Energy Commission is using the electronic incorrectly coded within the time period requested Standards Board, and representatives by a filing party in such pleadings. from the Association of Oil Pipelines. 2 These data elements, or codes, are described in 7 Commission staff’s efforts in this regard are The adoption of electronic tariff filing the Implementation Guide for Electronic Filing of intended simply as a voluntary and informal aid to Parts 35, 154, 284, 300, and 341 Tariff Filing filers, and any action or failure on the part of provides the framework for a more (Implementation Guide), found on the Commission staff will not bind or otherwise affect efficient document processing system as Commission’s Web site, http://www.ferc.gov/docs- how the Commission processes such filings. See 18 well as providing a user-friendly filing/etariff/implementation-guide.pdf. CFR 388.104(a) (2009); accord, e.g., 18 CFR 154.8 interface from which the Commission, 3 Order No. 714 at P 23. See The National Center (2009). It is, and remains, the filer’s responsibility for State Courts, Standards for Electronic Filing to ensure that it is selecting the appropriate Type its staff, and the public may retrieve and Processes (Technical and Business Approaches), of Filing code, as well as accurately providing any review tariffs. Standard 1.1F (2003) (concluding that the other metadata. 2. The adoption of electronic tariff responsibility for data entry needs to be assigned to 8 In order to constitute a statutory tariff filing, the filing necessitates changes in the the filer, since it has the greatest familiarity with filer, therefore, must both select a statutory Type of the data to be entered), http://www.ncsconline.org/ Filing code and include a Tariff Record with a business practices used by the d_tech/standards/Documents/pdfdocs/ Tariff Record Proposed Effective Date. Commission to process tariff filings. Recommended_%20Process_%20 9 For example, if the Tariff Record Proposed This order identifies ways in which standards_02_26_03.pdf. Effective Date is after the otherwise applicable such changes affect aspects of 4 A statutory filing is a filing made pursuant to statutorily-established effective date, the statutory section 4 of the Natural Gas Act (NGA), section 205 period will be extended until the Tariff Record Commission procedures, particularly of the Federal Power Act (FPA), or section 6 of the Proposed Effective Date. the determination of whether a filing is Interstate Commerce Act (ICA) to revise rates or 10 As explained in the Implementation Guide, for a statutory filing, and the statutory terms and conditions of service. statutory filings with indeterminate effective dates, action date, as well as changes in 5 For example, if the transmittal letter states that for example, where the effective date is contingent docketing procedures. a statutory FPA section 205 filing is contemplated, on Commission approval, plant construction, or the but the Type of Filing code selected represents a closing of a plant sale, filers must still include a compliance filing, the Commission will treat the Tariff Record Proposed Effective Date, but should 1 Electronic Tariff Filings, Order No. 714, 73 FR filing as a compliance filing, which is not subject set that date to 12/31/9998. Implementation Guide, 57515 (Oct. 3, 2008), FERC Stats. & Regs ¶ 31,276 to action within the period prescribed by FPA at 10, http://www.ferc.gov/docs-filing/etariff/ (2008). section 205. implementation-guide.pdf.

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transmittal letters or other pleadings for metadata provided by the pipeline or the pipeline or utility, but rather by a issuance of orders on an expedited utility making the filing. Each pipeline third-party, typically a customer. In the basis, statements in transmittal letters or or utility is required to identify every process of resolving the complaint, the other pleadings will not establish filing using a discrete number, ‘‘Filing Commission may require the pipeline or statutory action dates for tariff filings. Identifier’’ (filing_id). When making utility to file a revision to its tariff. In 7. Because of the importance of the filings related to or associated with a such a circumstance, the pipeline or Type of Filing code and the Tariff prior filing (such as a compliance utility will not have an initial filing in Record Proposed Effective Date, these filing), the pipeline or utility must its database with which to associate the metadata will be included in the include the Filing Identifier of the prior compliance filing. Therefore, as electronic notices sent to the filers and filing that is associated with its current described above, the compliance filing posted on eLibrary.11 Filers should filing. (The Filing Identifier of the initial made through the electronic tariff filing check these sources carefully to verify filing will be included as the portal will receive a new root docket, that their tariff filings and proposed ‘‘Associated Filing Identifier’’ rather than a subdocket from the effective dates are what they intended. (associated_filing_id) in the subsequent original complaint case. In other words, 8. Filers also need to be careful when filing). For example, if the pipeline or the compliance filing in a complaint making combined filings, i.e., filings utility is making a compliance filing, it proceeding will parallel the situation in whose different parts would, if filed will include as the Associated Filing which the pipeline or utility is individually, have different Type of Identifier in the compliance filing, the complying with a rulemaking, and the Filing codes.12 Each filing can have only Filing Identifier it assigned to the initial compliance filing will receive a new one Type of Filing code, and so the tariff filing giving rise to the compliance root docket.15 treatment of any combined filing will filing. That Associated Filing Identifier 15. In situations in which new root depend on the particular Type of Filing will permit the Commission to dockets are assigned to compliance code chosen.13 determine the relevant root docket filings, the pipeline or utility making Docketing Procedures number assigned to the initial tariff the filing still is required to serve the filing, so that a subdocket for the compliance filing on all parties in the 9. The Commission will use the compliance filing can be assigned. original docket.16 For example, in a metadata supplied with the tariff filing 12. However, in those circumstances complaint case, the pipeline or utility to help speed up its docketing and in which the pipeline or utility does not will need to serve the compliance filing notice process. As far as possible, these include (in a subsequent filing) the on all parties in the original complaint data will permit docketing that closely Filing Identifier of its initial filing, the docket giving rise to the compliance parallels current practice. However, root docket number for the initial obligation. some of the docket prefixes previously proceeding will not be available. 16. In order to establish a simple and used may not be assigned to electronic Accordingly, a new root docket number uniform method for determining parties tariff filings and these filings will be will be assigned to the compliance and service lists when a new root docket assigned only a single docket number filing. The practice of assigning a new is established, the Commission will rather than multiple docket numbers as root docket parallels the Commission’s follow its existing practice with respect may have occurred in the past. typical practice with respect to to the need to intervene. Currently, 10. Procedures for identifying root compliance filings in rulemaking parties who have intervened in initial 14 and subsequent subdockets will proceedings, in which each pipeline’s or proceedings do not have to re-intervene remain the same for the vast majority of utility’s individual filing to comply with in subdockets.17 However, when the compliance and other filings. However, the rule typically receives a new root Commission establishes new root in a few cases, parties will experience docket number. dockets (such as for compliance with differences, particularly for compliance 13. However, new root docket rulemaking proceedings), intervention is filings made in the context of complaint numbers may be assigned in situations required to become a party to the new cases. in which subdockets traditionally had root docket proceeding and to appear on 11. Subdockets for compliance filings been assigned manually and new the service list for that proceeding.18 will be established based on the procedures need to be followed in these The same approach will be taken circumstances. A common situation in whenever a new root docket is assigned 11 An example of how eLibrary will display the which this will occur will be during the metadata for an electronic tariff filing is posted at in a compliance proceeding: those http://www.ferc.gov/EventCalendar/Files/ implementation phase of electronic wishing to become parties to a new root 20091119114331- tariff filing. New root docket numbers docket will have to intervene in that Example%20eTariff%20eLibrary%20Rendition.rtf. will be assigned to compliance filings docket. A simple-to-apply rule will help 12 The Commission’s regulations and policies when companies have outstanding already prohibit combined filings in some situations. See 18 CFR 154.203 (2009) (compliance compliance obligations at the time they 15 The complaint proceeding will determine filings cannot be combined with any other type of make their original, baseline tariff whether the pipeline or utility is in violation of its filing); Calpine Eastern Corporation, 97 FERC filings. Because the original tariff filing tariff or whether the tariff is unjust and ¶ 61,078, at 61,382 (2001) (cannot combine filings giving rise to the compliance obligation unreasonable. The compliance proceeding focuses made in compliance with a prior Commission order on whether the filing by the pipeline or utility with new FPA section 205 filings). will not be part of the pipeline’s or satisfies the Commission’s determination in the 13 Instead of combining filings, filers can make utility’s electronic database, it will not complaint proceeding. separate filings for each type of filing have a Filing Identifier and therefore the 16 If service is made electronically by including a contemplated—each filing containing the portions pipeline or utility will not be able to link to the document in the Commission’s eLibrary relevant to the specific filing type. include the Filing Identifier in the system, parties will be notified of the new root 14 The Commission typically assigns a root docket docket assigned to the compliance filing. 18 CFR number to an initial filing and then adds compliance filing, and the compliance 385.2010(f)(3) (2009) (providing for service through subdockets to later filings in the same proceeding. filing will be assigned a new root docket ‘‘the transmission of a link to that document in the As an illustration, for Docket No. ER12–6789–000, number. Commission’s eLibrary system’’). the root docket number is ‘‘ER12–6789’’ and the 14. This situation also may occur on 17 The Commission maintains one service list for subdocket is ‘‘000.’’ When a subsequent compliance root dockets and all subdockets, not individual filing is made, the root docket is retained and the a limited scale on an ongoing basis. For service lists for each subdocket. subdocket will be incremented, usually by 1, so that example, in complaint cases, the filing 18 18 CFR 385.214 (requiring intervention to the new docket number will be ER12–6789–001. initiating the complaint is not filed by become a party).

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ensure that the parties to proceedings Medicine (HFV–110), Food and Drug Authority: 21 U.S.C. 360b. are known to each other and to the Administration, 7500 Standish Pl., ■ 2. In § 522.313a, add paragraph (e)(3) Commission and that service of Rockville, MD 20855, 240–276–8337, e- to read as follows: pleadings and orders is provided to all mail: [email protected]. § 522.313a Ceftiofur crystalline free acid. parties. SUPPLEMENTARY INFORMATION: Pharmacia 17. Moreover, to permit the easy & Upjohn Co., a Division of Pfizer, Inc., * * * * * identification of related filings for 235 East 42d St., New York, NY 10017, (e) * * * compliance filings receiving new root filed a supplement to NADA 141–209 (3) Horses—(i) Amount. Two dockets,19 pipelines and utilities are for EXCEDE (ceftiofur crystalline free intramuscular injections, 4 days apart, urged to include as part of their eFiling acid) Sterile Suspension. The at a dose of 3.0 mg/lb (6.6 mg/kg) body description an indication that they are supplemental NADA provides for weight. making a compliance filing and the veterinarian prescription use of ceftiofur (ii) Indications for use. For the docket number to which they are crystalline free acid injectable treatment of lower respiratory tract complying. This filing description will suspension for the treatment of lower infections in horses caused by appear in the Commission’s notice and respiratory tract infections in horses susceptible strains of Streptococcus equi will aid in the identification of the caused by susceptible strains of ssp. zooepidemicus. relationship between the compliance Streptococcus equi ssp. zooepidemicus. (iii) Limitations. Do not use in horses filing and the original proceeding. The application is approved as of intended for human consumption. The Commission Orders December 16, 2009, and the regulations Dated: January 22, 2010. are amended in 21 CFR 522.313a to Bernadette Dunham, (A) The procedures described in the reflect the approval. body of this order will apply to tariff Director, Center for Veterinary Medicine. In accordance with the freedom of filings that are submitted in electronic [FR Doc. 2010–1790 Filed 1–28–10; 8:45 am] information provisions of 21 CFR part format. BILLING CODE 4160–01–S (B) The Secretary shall publish a copy 20 and 21 CFR 514.11(e)(2)(ii), of this order in the Federal Register. summaries of the safety and effectiveness data and information DEPARTMENT OF HEALTH AND By the Commission. Commissioner Norris submitted to support approval of these HUMAN SERVICES voting present. applications may be seen in the Division Kimberly D. Bose, of Dockets Management (HFA–305), Food and Drug Administration Secretary. Food and Drug Administration, 5630 [FR Doc. 2010–1538 Filed 1–28–10; 8:45 am] Fishers Lane, rm. 1061, Rockville, MD 21 CFR Part 524 BILLING CODE 6717–01–P 20852, between 9 a.m. and 4 p.m., [Docket No. FDA–2010–N–0002] Monday through Friday. Under section 512(c)(2)(F)(iii) of the Ophthalmic and Topical Dosage Form DEPARTMENT OF HEALTH AND Federal Food, Drug, and Cosmetic Act New Animal Drugs; Miconazole, HUMAN SERVICES (21 U.S.C. 360b(c)(2)(F)(iii)), this Polymixin B, and Prednisolone supplemental approval qualifies for 3 Suspension Food and Drug Administration years of marketing exclusivity beginning on the date of approval. AGENCY: Food and Drug Administration, 21 CFR Part 522 The agency has determined under 21 HHS. [Docket No. FDA–2010–N–0002] CFR 25.33 that this action is of a type ACTION: Final rule. that does not individually or Implantation or Injectable Dosage cumulatively have a significant effect on SUMMARY: The Food and Drug Form New Animal Drugs; Ceftiofur the human environment. Therefore, Administration (FDA) is amending the Crystalline Free Acid neither an environmental assessment animal drug regulations to reflect nor an environmental impact statement approval of a new animal drug AGENCY: Food and Drug Administration, is required. application (NADA) filed by Janssen HHS. This rule does not meet the definition Pharmaceutica NV. The NADA provides ACTION: Final rule. of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because for use of miconazole nitrate, polymixin it is a rule of ‘‘particular applicability.’’ B sulfate, and prednisolone acetate for SUMMARY: The Food and Drug the treatment of otitis externa in dogs. Administration (FDA) is amending the Therefore, it is not subject to the animal drug regulations to reflect congressional review requirements in 5 DATES: This rule is effective January 29, approval of a supplemental new animal U.S.C. 801–808. 2010. drug application (NADA) filed by List of Subjects in 21 CFR Part 522 FOR FURTHER INFORMATION CONTACT: Melanie R. Berson, Center for Veterinary Pharmacia & Upjohn Co., a Division of Animal drugs. Pfizer, Inc. The supplemental NADA Medicine (HFV–110), Food and Drug ■ Therefore, under the Federal Food, provides for veterinarian prescription Administration, 7500 Standish Pl., use of ceftiofur crystalline free acid Drug, and Cosmetic Act and under Rockville, MD 20855, 240–276–8337, e- injectable suspension for the treatment authority delegated to the Commissioner mail: [email protected]. of Food and Drugs and redelegated to of lower respiratory tract infections in SUPPLEMENTARY INFORMATION: Janssen the Center for Veterinary Medicine, 21 horses. Pharmaceutica NV, Turnhoutseweg 30, CFR part 522 is amended as follows: DATES: This rule is effective January 29, B–2340 Beerse, Belgium, filed NADA 2010. PART 522—IMPLANTATION OR 141–298 that provides for veterinary FOR FURTHER INFORMATION CONTACT: INJECTABLE DOSAGE FORM NEW prescription use of SUROLAN Melanie R. Berson, Center for Veterinary ANIMAL DRUGS (miconazole nitrate, polymixin B sulfate, and prednisolone acetate) Otic ■ 19 These will be filings without the Filing 1. The authority citation for 21 CFR Suspension in dogs for the treatment of Identifier of a related filing. part 522 continues to read as follows: otitis externa associated with

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susceptible strains of yeast (Malassezia (c) Conditions of use in dogs—(1) e-mail Lindsey Middleton, Bridge pachydermatis) and bacteria Amount. Instill five drops in the ear Administration Branch; telephone 504– (Staphylococcus pseudintermedius). canal twice daily for 7 consecutive days. 671–2128, e-mail The NADA is approved as of November (2) Indications for use. For the [email protected]. If you 23, 2009, and the regulations are treatment of canine otitis externa have questions on viewing the docket, amended in 21 CFR part 524 by adding associated with susceptible strains of call Renee V. Wright, Program Manager, new 21 CFR 524.1445 to reflect the yeast (Malassezia pachydermatis) and Docket Operations, telephone 202–366– approval. bacteria (Staphylococcus 9826. In accordance with the freedom of pseudintermedius). SUPPLEMENTARY INFORMATION: The bridge information provisions of 21 CFR part (3) Limitations. Federal law restricts owner approved the request for the 20 and 21 CFR 514.11(e)(2)(ii), a this drug to use by or on the order of closure of the Senator Ted Hickey (Leon summary of safety and effectiveness a licensed veterinarian. C. Simon) Bascule Bridge on Seabrook data and information submitted to Dated: January 22, 2010. Highway crossing the Inner Harbor support approval of this application Bernadette Dunham, Navigational Canal, mile 4.6, in New may be seen in the Division of Dockets Director, Center for Veterinary Medicine. Orleans, LA. In the closed-to-navigation Management (HFA–305), Food and Drug position, the vertical clearance of the [FR Doc. 2010–1794 Filed 1–28–10; 8:45 am] Administration, 5630 Fishers Lane, rm. bridge is 45 feet above mean sea level. 1061, Rockville, MD 20852, between 9 BILLING CODE 4160–01–S Currently, according to 33 CFR 117.458 a.m. and 4 p.m., Monday through (c), The draw of the Leon C. Simon Friday. Blvd. (Seabrook) bridge, mile 4.6, shall FDA has determined under 21 CFR DEPARTMENT OF HOMELAND open on signal; except that, from 7 a.m. 25.33 that this action is of a type that SECURITY to 8:30 a.m. and 5 p.m. to 6:30 p.m. does not individually or cumulatively Monday through Friday, the draw need Coast Guard have a significant effect on the human not be opened. This deviation allows environment. Therefore, neither an the draw span of the bridge to remain 33 CFR Part 117 environmental assessment nor an closed to navigation between 5 a.m. and environmental impact statement is [Docket No. USCG–2009–1129] 2 p.m. on April 18, 2010 while the required. Ironman contenders travel across the Under section 512(c)(2)(F)(ii) of the Drawbridge Operation Regulation; bridge as part of the 56 mile bike course. Federal Food, Drug, and Cosmetic Act Inner Harbor Navigational Canal, New Navigation on the waterway consists (21 U.S.C. 360b(c)(2)(F)(ii)), this Orleans, LA mainly of tugs with tows. As a result of approval qualifies for 3 years of coordination between the Coast Guard AGENCY: Coast Guard, DHS. marketing exclusivity beginning on the and the waterway users, it has been date of approval. ACTION: Notice of temporary deviation determined that this closure will not This rule does not meet the definition from regulations. have a significant effect on these of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because vessels. The Coast Guard will inform SUMMARY: The Commander, Eighth it is a rule of ‘‘particular applicability.’’ Coast Guard District, has issued a users through the Local and Broadcast Therefore, it is not subject to the temporary deviation from the regulation Notice to Mariners of the closure period. congressional review requirements in 5 governing the operation of the Senator There are alternate routes available to U.S.C. 801–808. Ted Hickey (Leon C. Simon) Bascule vessel traffic. Vessels that can pass List of Subjects in 21 CFR Part 524 Bridge across the Inner Harbor under the bridge in the closed-to- navigation position can do so at any Animal drugs. Navigational Canal, mile 4.6, at New Orleans, LA. The deviation is necessary time. The bridge will not be able to open ■ Therefore, under the Federal Food, to ensure the safety of pedestrians as for emergencies. Drug, and Cosmetic Act and under they bike across the bridge for the In accordance with 33 CFR 117.35(e), authority delegated to the Commissioner Ochsner Ironman 70.3 New Orleans the drawbridge must return to its regular of Food and Drugs and redelegated to event. This deviation allows the bridge operating schedule immediately at the the Center for Veterinary Medicine, 21 to remain closed during the event. end of the designated time period. This CFR part 524 is amended as follows: deviation from the operating regulations DATES: This deviation is effective from is authorized under 33 CFR 117.35. 5 a.m. to 2 p.m. on April 18, 2010. PART 524—OPHTHALMIC AND Dated: January 19, 2010. TOPICAL DOSAGE FORM NEW ADDRESSES: Documents mentioned in David M. Frank, ANIMAL DRUGS this preamble as being available in the docket are part of docket USCG–2009– Bridge Administrator. ■ 1. The authority citation for 21 CFR 1129 and are available online by going [FR Doc. 2010–1801 Filed 1–28–10; 8:45 am] part 524 continues to read as follows: to http://www.regulations.gov, inserting BILLING CODE 9110–04–P Authority: 21 U.S.C. 360b. USCG–2009–1129 in the ‘‘Keyword’’ box ‘‘ ’’ ■ 2. Add § 524.1445 to read as follows: and then clicking Search . They are also available for inspection or copying POSTAL REGULATORY COMMISSION § 524.1445 Miconazole, polymixin B, and at the Docket Management Facility (M– prednisolone suspension. 30), U.S. Department of Transportation, 39 CFR Part 3020 (a) Specifications. Each milliliter of West Building Ground Floor, Room [Docket Nos. MC2010–13 and CP2010–12; suspension contains 23 milligrams (mg) W12–140, 1200 New Jersey Avenue, SE., Order No. 365] miconazole nitrate, 0.5293 mg Washington, DC 20590, between 9 a.m. polymixin B sulfate, and 5 mg and 5 p.m., Monday through Friday, New Postal Product except Federal holidays. prednisolone acetate. AGENCY: Postal Regulatory Commission. (b) Sponsor. See No. 012578 in FOR FURTHER INFORMATION CONTACT: If ACTION: Final rule. 510.600(c) of this chapter. you have questions on this rule, call or

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SUMMARY: The Commission is adding general applicability’’ necessary to the agreement became effective on July Inbound International Expedited implement those prices. Id. at 1. 15, 2008, and continued in effect until International Services 3 to the The Postal Service July 14, 2009. Request at 3. The Postal Competitive Product List. This action is contemporaneously filed notice, Service entered into a new agreement consistent with changes in a recent law pursuant to 39 U.S.C. 3632(b)(3) and 39 with the China Post Group on November governing postal operations. CFR 3015.5, that it has entered into a 16, 2009. The Postal Service now Republication of the lists of market contractual bilateral agreement requests to restore the Inbound dominant and competitive products is (Agreement) governing bilateral rates for International Expedited Services 1 also consistent with new requirements Express Mail Service (EMS) with China product to the Competitive Product List. in the law. Post Group, the public postal operator Id. DATES: Effective January 29, 2010 and is in the People’s Republic of China. The The bilateral agreement establishes applicable beginning December 22, Postal Service states that the supporting alternative, negotiated rates to China 2009. financial materials included in this Post Group for inbound EMS, instead of filing indicate that the inbound EMS the EMS 2 product rates that would FOR FURTHER INFORMATION CONTACT: rates comply with the requirements of otherwise be applicable.11 The Postal Stephen L. Sharfman, General Counsel, 39 U.S.C. 3633(a). Id. at 2. The rates as Service notes that the inbound portion 202–789–6820 or established in the bilateral agreement of the bilateral agreement fits within the [email protected]. are assigned Docket No. CP2010–12. MCS language included as Attachment SUPPLEMENTARY INFORMATION: Regulatory In support of its Request, the Postal A to Governors’ Decision No. 08–5. The History, 74 FR 65170 (December 9, Service filed the following materials: (1) agreement becomes effective upon 2009). An application for non-public treatment completion of all necessary regulatory I. Introduction of pricing and supporting documents reviews, but in no case earlier than 3 II. Background filed under seal; (2) a redacted version January 1, 2010. The agreement III. Comments of Governors’ Decision No. 08–5 continues in effect until terminated, IV. Commission Analysis establishing prices and classifications which may occur upon 30 days’ notice V. Ordering Paragraphs for services offered under EMS bilateral/ by either party. The negotiated prices multilateral agreements; Mail are subject to change based upon I. Introduction Classification Schedule (MCS) language contingencies included in the The Postal Service seeks to add a new applicable to Inbound EMS bilateral/ agreement. Id. at 4. If rates change, the product identified as Inbound multilateral agreements; formulas for Postal Service will offer China Post International Expedited Services 1 to inbound prices under EMS bilateral/ Group EMS rates reflecting an adjusted the Competitive Product List. For the multilateral agreements; and an analysis rate. Id. reasons discussed below, the of the formulas, certification of the The Postal Service states that the new Commission approves the Request, but Governors’ vote, and certification of agreement is functionally equivalent to 4 designates the new product as Inbound compliance with 39 U.S.C. 3633(3)(a); the prior contract reviewed by the International Expedited Services 3. (3) a redacted version of the China Post Commission except for different rates Group bilateral agreement;5 (4) that may be applicable to certain flows II. Background certification of prices for the bilateral in the new agreement. Id. at 5. It notes 6 On November 20, 2009, the Postal agreement; and (5) a Statement of the instant agreement exhibits the same Service filed a request pursuant to 39 Supporting Justification as required by cost and market characteristics as the 7 U.S.C. 3642 and 39 CFR 3020.30 et seq. 39 CFR 3020.32. previous agreement. The Postal Service to add Inbound International Expedited On June 1, 2008, the Postal Service describes minor changes in the instant Services 1 to the Competitive Product filed notice of Governors’ Decision No. agreement which include changes in 1 08–5 in Docket Nos. CP2008–6 and standard clauses due to the List. The Postal Service asserts that 8 Inbound International Expedited CP2008–7. These dockets gave notice Commission’s confidentiality rules and of a competitive negotiated service Services 1 is a competitive product other internal issues. Id. agreement with China Post Group within the meaning of 39 U.S.C. In the Statement of Supporting covering EMS prices.9 In Order No. 84, 3632(b)(3). Justification, Kang Zhang, General the Commission added the China Post The Postal Service states that prices Manager, Business Development, Asia/ Agreement as a product not of general and classifications underlying these Pacific, Global Business Development, applicability to the competitive product rates are supported by Governors’ asserts that ‘‘[t]he addition of [the list as Inbound International Expedited Decision No. 08–5.2 Id. at 1–2. This Bilateral] Agreement as a competitive Services 1.10 The Postal Service states Request has been assigned Docket No. product will enable the Commission to MC2010–13. verify that each contract covers its 3 Attachment 1 to the Request. attributable costs and enables The Postal Service states that 4 Attachment 2 to the Request. competitive products, as a whole, to Governors’ Decision No. 08–5 5 Attachment 3 to the Request. make a positive contribution to coverage establishes the prices for Inbound 6 Attachment 4 to the Request. International Expedited Services 1 and 7 Attachment 5 to the Request. of institutional costs.’’ He further states the changes in classification ‘‘not of 8 See Docket Nos. CP2008–6 and CP2008–7, that as a result, ‘‘no issue of Notice and Order Concerning Prices Under Express subsidization of competitive products Mail International Bilateral/Multilateral by market dominant products arises.’’ 1 Request to Add Inbound International Expedited Agreements, June 3, 2008. The Commission Services 1 to the Competitive Product List, and consolidated Docket No. CP2008–6 with Docket No. Id., Attachment 5. Notice of United States Postal Service of Filing CP2008–7 in this Order. China Post Group-United States Postal Service 9 See Docket No. CP2008–7, Notice of United 11 The Postal Service states that in the absence of Contractual Bilateral Agreement (Under Seal), States Postal Service of Filing an Agreement for this negotiated agreement, EMS rates for calendar November 20, 2009 (Request). Inbound Express Mail International (EMS) Prices, year 2010 as reviewed by the Commission in Docket 2 Governors’ Decision No. 08–5, April 1, 2008, May 20, 2008. No. CP2009–57 would apply. Id. at 4. See Docket established prices for the inbound services offered 10 Docket No. CP2008–7, Order Concerning the No. CP2009–57, Order Concerning Filing of under Express Mail International bilateral/ China Post Group Inbound EMS Agreement, June Changes in Rates for Inbound International multilateral agreements. 27, 2008 (Order No. 84). Expedited Services 2, August 19, 2009.

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Joseph Moeller, Manager, Regulatory it, and the comments filed by the Public competitive because of its exclusion Reporting and Cost Analysis, Finance Representative. from the letter monopoly and the level Department, certifies that the contract Statutory requirements. The of competition in the relevant market. complies with 39 U.S.C. 3633(a). Id., Commission’s statutory responsibilities Id. It contends that even if the EMS Attachment 4. He asserts that the prices in this instance entail assigning the tendered under the bilateral agreement for the China Post Group bilateral Agreement to either the Market might contain ‘‘letters’’ as defined in agreement ‘‘should cover its attributable Dominant Product List or to the postal regulations, the EMS items at costs and preclude the subsidization of Competitive Product List. 39 U.S.C. issue in the agreement fall outside the competitive products by market 3642. As part of this responsibility, the Private Express Statutes because all dominant products.’’ Id. Commission also reviews the proposal prices paid by China Post Group exceed The Postal Service filed much of the for compliance with the Postal six times the rate for the first ounce of supporting materials, including the Accountability and Enhancement Act a First-Class Mail letter. Id., para. (e). specific bilateral agreement, under seal. (PAEA) requirements. This includes, for Additionally, the Postal Service Request at 5. In its Request, the Postal proposed competitive products, a contends that many inbound EMS items Service maintains that certain portions review of the provisions applicable to may be expected to weigh more than of the contract, the rates, descriptions of rates for competitive products. 39 U.S.C. 12.5 ounces. Id. the rates, and related financial 3633. Finally, the Postal Service states that information should remain under seal. Product list assignment. In private consolidators, freight Id., Attachment 1. determining whether to assign the forwarders, and integrators offer In Order No. 347, the Commission Agreement to the Market Dominant international shipping services using gave notice of the two dockets, Product List or the Competitive Product EMS. It notes that delivery of EMS in appointed a public representative, and List, the Commission must consider the domestic service area of the United provided the public with an opportunity whether ‘‘the Postal Service exercises States requires a substantial to comment.12 sufficient market power that it can infrastructure to support a national effectively set the price of such product network and as a result large carriers III. Comments substantially above costs, raise prices serve this market. Id., para. (f). The Comments were filed by the Public significantly, decrease quality, or Postal Service mentions that it has no Representative.13 No other interested decrease output, without risk of losing specific data on China Post Group’s or person submitted comments. The Public a significant level of business to other its customers’ view on the regulatory Representative states that the prices and firms offering similar products.’’ 39 classification of this agreement. Id., classifications underlying the rates in U.S.C. 3642(b)(1). If so, the product will para. (g). However, it contends that the bilateral agreement are supported by be categorized as market dominant. The presumably China Post Group and its Governor’s Decision No. 08–5, which competitive category of products shall end users find this type of product was originally filed in Docket Nos. consist of all other products. satisfactory since they have a choice of CP2008–6 and CP2008–7. Id. at 2. He The Commission is further required to competitors providing similar services. finds that the agreement appears to be consider the availability and nature of Id. Finally, the Postal Service states that in compliance with 39 CFR 3015.5, enterprises in the private sector engaged the market for expedited delivery 3020.30 and 39 U.S.C. 3632, 3633(a) and in the delivery of the product, the views services is highly competitive, and the 3642. Id. of those who use the product, and the bilateral agreement should not have a He states that the Postal Service has likely impact on small business significant impact on small businesses. provided adequate justification for concerns. 39 U.S.C. 3642(b)(3). Accordingly, the Postal Service states maintaining confidentiality in this case. The Postal Service asserts that its that it is unaware of any small business Id. at 2–3. The Public Representative bargaining position is constrained by concerns that could offer comparable further states that based on review of the the existence of other shippers who can service for this customer. Id., para. (h). supporting data, the agreement satisfies provide similar services, thus It contends that the bilateral agreement the requirements of 39 U.S.C. 3633(a). precluding it from taking unilateral gives China Post Group’s small business Id. at 2. action to increase prices without the customers another option for shipping The Public Representative concludes risk of losing volume to private articles to the United States resulting in that the bilateral agreement comports companies. Request, Attachment 5, a positive impact on small business. Id. with the provisions of title 39 and offers para. (d). It also contends that it may not No commenter opposes the proposed negotiated pricing, dispatch methods, decrease quality or output without classification of the Agreement as and other negotiated provisions risking the loss of business to large competitive. Having considered the favorable both to the Postal Service and competitors that offer similar expedited statutory requirements and the support general public. Id. at 3. delivery services. Id. The Postal Service offered by the Postal Service, the states that the bilateral agreement prices Commission finds that the Agreement is IV. Commission Analysis provide sufficient incentive for China appropriately classified as a competitive The Commission has reviewed the Post Group and its customers to tender product and should be added to the agreement, the financial analysis EMS volume to the Postal Service rather Competitive Product List. provided under seal that accompanies than a competitor. The Postal Service Cost considerations. The Postal further states that raising its prices Service presents a financial analysis 12 PRC Order No. 347, Notice and Order could risk losing its China Post Group showing that the Agreement covers its Concerning Adding Inbound International volume to a private competitor in the attributable costs, does not result in Expedited Services 1 to the Competitive Product List and China Post Group Bilateral Agreement, international shipping industry. Id. subsidization of competitive products November 25, 2009 (Order No. 347). The Postal Service relates that the by market dominant products, and 13 See Public Representatives Comments in instant bilateral agreement’s terms relate increases contribution from competitive Response to United States Postal Service Request to to the exchange between the Postal products. Add Inbound International Expedited Services 1 to the Competitive Product List and China Post Service and China Post Group for Based on the data submitted, the Bilateral Agreement, December 10, 2009 (Public Inbound EMS at negotiated prices Commission finds that the new product, Representative Comments). which has been classified as which, as noted below, is designated as

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International Expedited Services 3, 3. The Secretary shall arrange for the HSBC North America Holdings Inc. Ne- should cover its attributable costs (39 publication of this order in the Federal gotiated Service Agreement U.S.C. 3633(a)(2)), should not lead to Register. Bookspan Negotiated Service Agree- the subsidization of competitive ment List of Subjects in 39 CFR Part 3020 products by market dominant products Bank of America Corporation Nego- tiated Service Agreement (39 U.S.C. 3633(a)(1)), and should have Administrative practice and procedure; Postal Service. The Bradford Group Negotiated Service a positive effect on competitive Agreement products’ contribution to institutional By the Commission. Inbound International costs (39 U.S.C. 3633(a)(3)). Thus, an Shoshana M. Grove, Canada Post—United States Postal initial review of proposed International Secretary. Service Contractual Bilateral Agreement for Inbound Market Expedited Services 3 indicates that it ■ comports with the provisions applicable For the reasons discussed in the Dominant Services to rates for competitive products. preamble, the Postal Regulatory Market Dominant Product Descriptions Other considerations. Inbound Commission amends chapter III of title First-Class Mail International Expedited Services 1 was 39 of the Code of Federal Regulations as [Reserved for Class Description] follows: Single-Piece Letters/Postcards added to the Competitive Product List [Reserved for Product Description] in Docket No. CP2008–7. See Order No. PART 3020—PRODUCT LISTS Bulk Letters/Postcards 84, supra. That agreement terminated on [Reserved for Product Description] July 15, 2009. Request at 3. The Postal ■ 1. The authority citation for part 3020 Flats Service seeks to restore the Inbound continues to read as follows: [Reserved for Product Description] Parcels International Expedited Services 1 Authority: Authority: 39 U.S.C. 503; 3622; [Reserved for Product Description] product on the Competitive Product 3631; 3642; 3682. Outbound Single-Piece First-Class Mail List. Id. Given that the prior Inbound ■ 2. Revise Appendix A to Subpart A of International Expedited Services 1 International Part 3020–Mail Classification Schedule [Reserved for Product Description] product agreement has ended and the to read as follows: Inbound Single-Piece First-Class Mail Postal Service has negotiated a International comparable new agreement with a Appendix A to Subpart A of Part [Reserved for Product Description] different term and rates, the 3020—Mail Classification Schedule Standard Mail (Regular and Nonprofit) Commission will designate the [Reserved for Class Description] Agreement as Inbound International High Density and Saturation Letters Expedited Services 3. The Commission Part A—Market Dominant Products [Reserved for Product Description] has followed this practice with other 1000 Market Dominant Product List High Density and Saturation Flats/Par- products which exhibited sufficient First-Class Mail cels variation from the original agreement to Single-Piece Letters/Postcards [Reserved for Product Description] Bulk Letters/Postcards Carrier Route warrant classification as a new [Reserved for Product Description] 14 Flats product. Letters The China Post Group agreement Parcels Outbound Single-Piece First-Class Mail [Reserved for Product Description] indicates that it becomes effective upon International Flats receipt of all necessary regulatory Inbound Single-Piece First-Class Mail [Reserved for Product Description] approvals. Request at 4. The Postal International Not Flat-Machinables (NFMs)/Parcels Service shall notify the Commission of Standard Mail (Regular and Nonprofit) [Reserved for Product Description] the effective dates of the China Post High Density and Saturation Letters Periodicals Group agreement. The agreement states High Density and Saturation Flats/Par- [Reserved for Class Description] it is to remain in effect until terminated. cels Within County Periodicals The Postal Service shall inform the Carrier Route [Reserved for Product Description] Letters Outside County Periodicals Commission of the termination date. [Reserved for Product Description] Conclusion. The Commission Flats Not Flat-Machinables (NFMs)/Parcels Package Services approves International Expedited Periodicals [Reserved for Class Description] Services 3 as a new product. The Within County Periodicals Single-Piece Parcel Post revision to the Competitive Product List Outside County Periodicals [Reserved for Product Description] is shown below the signature of this Package Services Inbound Surface Parcel Post (at UPU order and is effective upon issuance of Single-Piece Parcel Post rates) this order. Inbound Surface Parcel Post (at UPU [Reserved for Product Description] rates) Bound Printed Matter Flats V. Ordering Paragraphs Bound Printed Matter Flats [Reserved for Product Description] It is ordered: Bound Printed Matter Parcels Bound Printed Matter Parcels 1. International Expedited Services 3 Media Mail/Library Mail [Reserved for Product Description] (MC2010–13 and CP2010–12) is added Special Services Media Mail/Library Mail to the Competitive Product List as a new Ancillary Services [Reserved for Product Description] International Ancillary Services Special Services product under Express Mail Inbound Address List Services [Reserved for Class Description] International Expedited Services, as Caller Service Ancillary Services discussed in this order. Change-of-Address Credit Card Au- [Reserved for Product Description] 2. The Postal Service shall notify the thentication Address Correction Service Commission upon termination of the Confirm [Reserved for Product Description] agreement as discussed in this order. International Reply Coupon Service Applications and Mailing Permits International Business Reply Mail [Reserved for Product Description] 14 See Docket No. CP2009–50, Order Granting Service Business Reply Mail Clarification and Adding Global Expedited Package Money Orders [Reserved for Product Description] Services 2 to the Competitive Product List, August Post Office Box Service Bulk Parcel Return Service 28, 2009. Negotiated Service Agreements [Reserved for Product Description]

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Certified Mail Part B—Competitive Products Express Mail & Priority Mail Con- [Reserved for Product Description] 2000 Competitive Product List tract 7 (MC2009–32 and Certificate of Mailing Express Mail CP2009–43) [Reserved for Product Description] Express Mail Express Mail & Priority Mail Con- Collect on Delivery Outbound International Expedited tract 8 (MC2009–33 and [Reserved for Product Description] Services CP2009–44) Delivery Confirmation Inbound International Expedited Serv- Parcel Select & Parcel Return Serv- [Reserved for Product Description] ices ice Contract 1 (MC2009–11 and Insurance Inbound International Expedited CP2009–13) [Reserved for Product Description] Services 1 (CP2008–7) Parcel Select & Parcel Return Serv- Merchandise Return Service Inbound International Expedited ice Contract 2 (MC2009–40 and [Reserved for Product Description] Services 2 (MC2009–10 and CP2009–61) Parcel Airlift (PAL) CP2009–12) Parcel Return Service Contract 1 [Reserved for Product Description] Inbound International Expedited (MC2009–1 and CP2009–2) Registered Mail Services 3 (MC2010–13 and Priority Mail Contract 1 (MC2008– [Reserved for Product Description] CP2010–12) 8 and CP2008–26) Return Receipt Priority Mail Priority Mail Contract 2 (MC2009– [Reserved for Product Description] Priority Mail 2 and CP2009–3) Return Receipt for Merchandise Outbound Priority Mail International Priority Mail Contract 3 (MC2009– [Reserved for Product Description] Inbound Air Parcel Post (at non-UPU 4 and CP2009–5) Restricted Delivery rates) Priority Mail Contract 4 (MC2009– [Reserved for Product Description] Royal Mail Group Inbound Air 5 and CP2009–6) Shipper-Paid Forward Parcel Post Agreement Priority Mail Contract 5 (MC2009– [Reserved for Product Description] Inbound Air Parcel Post (at UPU rates) 21 and CP2009–26) Signature Confirmation Parcel Select Priority Mail Contract 6 (MC2009– [Reserved for Product Description] Parcel Return Service 25 and CP2009–30) Special Handling International Priority Mail Contract 7 (MC2009– [Reserved for Product Description] International Priority Airlift (IPA) 25 and CP2009–31) Stamped Envelopes International Surface Airlift (ISAL) Priority Mail Contract 8 (MC2009– [Reserved for Product Description] International Direct Sacks—M—Bags 25 and CP2009–32) Stamped Cards Global Customized Shipping Services [Reserved for Product Description] Inbound Surface Parcel Post (at non- Priority Mail Contract 9 (MC2009– Premium Stamped Stationery UPU rates) 25 and CP2009–33) [Reserved for Product Description] Canada Post—United States Postal Priority Mail Contract 10 Premium Stamped Cards Service Contractual Bilateral (MC2009–25 and CP2009–34) [Reserved for Product Description] Agreement for Inbound Competi- Priority Mail Contract 11 International Ancillary Services tive Services (MC2009–8 and (MC2009–27 and CP2009–37) [Reserved for Product Description] CP2009–9) Priority Mail Contract 12 International Certificate of Mailing International Money Transfer Service (MC2009–28 and CP2009–38) [Reserved for Product Description] International Ancillary Services Priority Mail Contract 13 International Registered Mail Special Services (MC2009–29 and CP2009–39) [Reserved for Product Description] Premium Forwarding Service Priority Mail Contract 14 International Return Receipt Negotiated Service Agreements (MC2009–30 and CP2009–40) [Reserved for Product Description] Domestic Priority Mail Contract 15 International Restricted Delivery Express Mail Contract 1 (MC2008– (MC2009–35 and CP2009–54) [Reserved for Product Description] 5) Priority Mail Contract 16 Address List Services Express Mail Contract 2 (MC2009– (MC2009–36 and CP2009–55) [Reserved for Product Description] 3 and CP2009–4) Priority Mail Contract 17 Caller Service Express Mail Contract 3 (MC2009– (MC2009–37 and CP2009–56) [Reserved for Product Description] 15 and CP2009–21) Priority Mail Contract 18 Change-of-Address Credit Card Au- Express Mail Contract 4 (MC2009– (MC2009–42 and CP2009–63) thentication 34 and CP2009–45) Priority Mail Contract 19 [Reserved for Product Description] Express Mail Contract 5 (MC2010– (MC2010–1 and CP2010–1) Confirm 5 and CP2010–5) Priority Mail Contract 20 [Reserved for Product Description] Express Mail Contract 6 (MC2010– (MC2010–2 and CP2010–2) International Reply Coupon Service 6 and CP2010–6) Priority Mail Contract 21 [Reserved for Product Description] Express Mail Contract 7 (MC2010– (MC2010–3 and CP2010–3) International Business Reply Mail 7 and CP2010–7) Priority Mail Contract 22 Service Express Mail & Priority Mail Con- (MC2010–4 and CP2010–4) [Reserved for Product Description] tract 1 (MC2009–6 and CP2009– Priority Mail Contract 23 Money Orders 7) (MC2010–9 and CP2010–9) [Reserved for Product Description] Express Mail & Priority Mail Con- Outbound International Post Office Box Service tract 2 (MC2009–12 and Direct Entry Parcels Contracts [Reserved for Product Description] CP2009–14) Direct Entry Parcels 1 Negotiated Service Agreements Express Mail & Priority Mail Con- (MC2009–26 and CP2009– [Reserved for Class Description] tract 3 (MC2009–13 and 36) HSBC North America Holdings Inc. Ne- CP2009–17) Global Direct Contracts (MC2009– gotiated Service Agreement Express Mail & Priority Mail Con- 9, CP2009–10, and CP2009–11) [Reserved for Product Description] tract 4 (MC2009–17 and Global Expedited Package Services Bookspan Negotiated Service Agree- CP2009–24) (GEPS) Contracts ment Express Mail & Priority Mail Con- GEPS 1 (CP2008–5, CP2008– [Reserved for Product Description] tract 5 (MC2009–18 and 11, CP2008–12, CP2008–13, Bank of America Corporation Nego- CP2009–25) CP2008–18, CP2008–19, tiated Service Agreement Express Mail & Priority Mail Con- CP2008–20, CP2008–21, The Bradford Group Negotiated Service tract 6 (MC2009–31 and CP2008–22, CP2008–23, and Agreement CP2009–42) CP2008–24)

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Global Expedited Package Negotiated Service Agreements • Hand Delivery: Director, Air Services 2 (CP2009–50) [Reserved for Group Description] Program, Environmental Protection Global Plus Contracts Domestic Agency (EPA), Region 8, Mailcode 8P– Global Plus 1 (CP2008–8, [Reserved for Product Description] AR, 1595 Wynkoop Street, Denver, CP2008–46 and CP2009–47) Outbound International Colorado 80202–1129. Such deliveries Global Plus 2 (MC2008–7, [Reserved for Group Description] are only accepted Monday through CP2008–48 and CP2008–49) Part C—Glossary of Terms and Condi- Inbound International tions [Reserved] Friday, 8 a.m. to 4:30 p.m., excluding Inbound Direct Entry Contracts Part D—Country Price Lists for Inter- Federal holidays. Special arrangements with Foreign Postal Administra- national Mail [Reserved] should be made for deliveries of boxed tions [FR Doc. 2010–1804 Filed 1–28–10; 8:45 am] information. Inbound Direct Entry Con- Instructions: Direct your comments to tracts with Foreign Postal BILLING CODE 7710–FW–S Docket ID No. EPA–R08–OAR–2009– Administrations (MC2008–6, 0198. EPA’s policy is that all comments CP2008–14 and MC2008–15) received will be included in the public Inbound Direct Entry Con- ENVIRONMENTAL PROTECTION docket without change and may be tracts with Foreign Postal AGENCY made available online at http:// Administrations 1 (MC2008– www.regulations.gov, including any 6 and CP2009–62) 40 CFR Part 52 International Business Reply Serv- personal information provided, unless ice Competitive Contract 1 [EPA–R08–OAR–2009–0198; FRL–9102–7] the comment includes information (MC2009–14 and CP2009–20) claimed to be Confidential Business Competitive Product Descriptions Approval and Promulgation of Air Information (CBI) or other information Express Mail Quality Implementation Plans; whose disclosure is restricted by statute. [Reserved for Group Description] Montana; Revisions to the Do not submit information that you Express Mail Administrative Rules of Montana consider to be CBI or otherwise [Reserved for Product Description] protected through http:// Outbound International Expedited AGENCY: Environmental Protection Services Agency (EPA). www.regulations.gov or e-mail. The http://www.regulations.gov Web site is [Reserved for Product Description] ACTION: Direct final rule. Inbound International Expedited an ‘‘anonymous access’’ system, which Services SUMMARY: EPA is taking direct final means EPA will not know your identity [Reserved for Product Description] action approving State Implementation or contact information unless you Priority Plan (SIP) revisions submitted by the provide it in the body of your comment. [Reserved for Product Description] If you send an e-mail comment directly Priority Mail State of Montana on January 16, 2009 and May 4, 2009. The revisions are to to EPA without going through http:// [Reserved for Product Description] www.regulations.gov, your e-mail Outbound Priority Mail Inter- the Administrative Rules of Montana. national Revisions include minor editorial and address will be automatically captured [Reserved for Product Description] grammatical changes, updates to the and included as part of the comment Inbound Air Parcel Post citations and references to federal laws that is placed in the public docket and [Reserved for Product Description] and regulations, and a clarification of made available on the Internet. If you Parcel Select agricultural activities exempt from submit an electronic comment, EPA [Reserved for Group Description] recommends that you include your control of emissions of airborne Parcel Return Service name and other contact information in particulate matter. This action is being [Reserved for Group Description] the body of your comment and with any taken under section 110 of the Clean Air International disk or CD–ROM you submit. If EPA Act. [Reserved for Group Description] cannot read your comment due to International Priority Airlift (IPA) DATES: This rule is effective on March [Reserved for Product Description] technical difficulties and cannot contact 30, 2010 without further notice, unless you for clarification, EPA may not be International Surface Airlift (ISAL) EPA receives adverse comment by [Reserved for Product Description] able to consider your comment. International Direct Sacks—M– March 1, 2010. If adverse comment is Electronic files should avoid the use of Bags received, EPA will publish a timely special characters, any form of [Reserved for Product Description] withdrawal of the direct final rule in the encryption, and be free of any defects or Global Customized Shipping Serv- Federal Register informing the public viruses. For additional instructions on ices that the rule will not take effect. submitting comments, go to Section I. [Reserved for Product Description] ADDRESSES: Submit your comments, General Information of the International Money Transfer Serv- identified by Docket ID No. EPA–R08– SUPPLEMENTARY INFORMATION section of ice OAR–2009–0198, by one of the [Reserved for Product Description] this document. following methods: Docket: All documents in the docket Inbound Surface Parcel Post (at • non-UPU rates) http://www.regulations.gov. Follow are listed in the http:// [Reserved for Product Description] the online instructions for submitting www.regulations.gov index. Although International Ancillary Services comments. listed in the index, some information is [Reserved for Product Description] • E-mail: [email protected]. not publicly available, e.g., CBI or other International Certificate of Mailing • Fax: (303) 312–6064 (please alert information whose disclosure is [Reserved for Product Description] the individual listed in the FOR FURTHER restricted by statute. Certain other International Registered Mail INFORMATION CONTACT if you are faxing material, such as copyrighted material, [Reserved for Product Description] comments). will be publicly available only in hard International Return Receipt • copy. Publicly available docket [Reserved for Product Description] Mail: Director, Air Program, International Restricted Delivery Environmental Protection Agency materials are available either [Reserved for Product Description] (EPA), Region 8, Mailcode 8P–AR, 1595 electronically in http:// International Insurance Wynkoop Street, Denver, Colorado www.regulations.gov or in hard copy at [Reserved for Product Description] 80202–1129. the Air Program, Environmental

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Protection Agency (EPA), Region 8, 2. Tips for Preparing Your Comments. provisions. The purpose of the revision 1595 Wynkoop Street, Denver, Colorado When submitting comments, remember is to align the ARM with language of the 80202–1129. EPA requests that if at all to: legislation upon which the regulation is possible, you contact the individual Identify the rulemaking by docket based. The ARM as revised meets the listed in the FOR FURTHER INFORMATION number and other identifying requirement of the CAA section 110(l) CONTACT section to view the hard copy information (subject heading, Federal and does not interfere with any of the docket. You may view the hard Register date and page number). applicable requirements concerning copy of the docket Monday through Follow directions—The agency may attainment. The revision adds definition Friday, 8 a.m. to 4 p.m., excluding ask you to respond to specific questions to and as a result reduces the number of Federal holidays. or organize comments by referencing a sources of airborne particulate matter which are exempt from emissions FOR FURTHER INFORMATION CONTACT: Code of Federal Regulations (CFR) part Kathy Dolan, Air Program, U.S. or section number. controls under provisions of the ARM. This provision is approvable. Environmental Protection Agency Explain why you agree or disagree; The revision to ARM section 17.8.744 (EPA), Region 8, Mailcode 8P–AR, 1595 suggest alternatives and substitute references the State’s air quality Wynkoop Street, Denver, Colorado language for your requested changes. Describe any assumptions and permitting program. The State has 80202–1129. 303–312–6142, several provisions pending relative to [email protected]. provide any technical information and/ or data that you used. the State’s air quality permitting SUPPLEMENTARY INFORMATION: If you estimate potential costs or program and these will be processed as one action at a later date. Table of Contents burdens, explain how you arrived at your estimate in sufficient detail to IV. Final Action I. General Information allow for it to be reproduced. The EPA is approving the 2008 II. Summary of SIP Revisions Provide specific examples to illustrate III. EPA’s Review of the State of Montana’s revisions to ARM sections 17.8.102, January 16, 2009 and May 4, 2009 your concerns, and suggest alternatives. 17.8.301, 17.8.901, and 17.8.1007 that Submittals Explain your views as clearly as the State submitted on January 16, 2009. IV. Final Action possible, avoiding the use of profanity The Montana Board of Environmental V. Statutory and Executive Order Reviews or personal threats. Review adopted these revisions on Make sure to submit your comments Definitions October 3, 2008 and they became by the comment period deadline effective on October 24, 2008. For the purpose of this document, we identified. The EPA is approving the 2009 are giving meaning to certain words or II. Summary of SIP Revisions revision to ARM section 17.8.308. The initials as follows: EPA is not taking action on the 2009 (i) The words or initials Act or CAA A. On January 16, 2009 the State of revision to ARM sections 17.8.744 and mean or refer to the Clean Air Act, Montana submitted formal revisions to will take action at a later date. The unless the context indicates otherwise. its State Implementation Plan (SIP) Montana Board of Environmental (hereafter, the ‘‘2008 SIP revisions’’). The (ii) The words EPA, we, us or our Review adopted these revisions on 2008 SIP revisions contain amendments mean or refer to the United States January 23, 2009 and they became to the following sections of the Environmental Protection Agency. effective on February 13, 2009. Administrative Rules of Montana EPA is publishing this rule without (iii) The initials SIP mean or refer to (ARM): 17.8.102, 17.8.301, 17.8.901, and State Implementation Plan. prior proposal because the Agency 17.8.1007. views this as a noncontroversial (iv) The words State or Montana B. On May 4, 2009 the State of amendment and anticipates no adverse mean the State of Montana, unless the Montana submitted formal revisions to comments; we are merely approving context indicates otherwise. its State Implementation Plan (SIP) administrative and other minor changes I. General Information (hereafter, the ‘‘2009 SIP revisions’’). The to Montana’s air rules. However, in the 2009 SIP revisions contain amendments ‘‘Proposed Rules’’ section of today’s A. What Should I Consider as I Prepare to the following sections of the ARM: Federal Register publication, EPA is My Comments for EPA? 17.8.308 and 17.8.744. publishing a separate document that 1. Submitting CBI. Do not submit this III. EPA’s Review of the State of will serve as the proposal to approve the information to EPA through http:// Montana’s January 16, 2009 and May 4, SIP revisions if adverse comments are regulations.gov or e-mail. Clearly mark 2009 Submittals filed. This rule will be effective March the part or all of the information that 30, 2010 without further notice unless you claim to be CBI. For CBI A. 2008 SIP Revisions the Agency receives adverse comments information in a disk or CD–ROM that The 2008 SIP revisions are strictly by March 1, 2010. If the EPA receives you mail to EPA, mark the outside of the administrative; they make minor adverse comments, EPA will publish a disk or CD–ROM as CBI and then editorial and grammatical changes, and timely withdrawal in the Federal identify electronically within the disk or update the citations and references to Register informing the public that the CD–ROM the specific information that Federal laws and regulations. All of the rule will not take effect. EPA will is claimed as CBI. In addition to one revisions are approvable. Therefore, in address all public comments in a complete version of the comment that this action we are approving ARM subsequent final rule based on the includes information claimed as CBI, a sections 17.8.102, 17.8.301, 17.8.901, proposed rule. The EPA will not copy of the comment that does not and 17.8.1007. institute a second comment period on contain the information claimed as CBI this action. Any parties interested in must be submitted for inclusion in the B. 2009 SIP Revisions commenting must do so at this time. public docket. Information so marked Revision to ARM section 17.8.308 Please note that if EPA receives adverse will not be disclosed except in clarifies the agricultural sources of comment on an amendment, paragraph, accordance with procedures set forth in airborne particulate matter which are or section of this rule and if that 40 CFR part 2. exempt from control measure provision may be severed from the

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remainder of the rule, EPA may adopt provided that they meet the criteria of List of Subjects in 40 CFR Part 52 as final those provisions of the rule that the Clean Air Act. In this context, in the are not the subject of an adverse absence of a prior existing requirement Environmental protection, Air comment. for the State to use voluntary consensus pollution control, Carbon monoxide, standards (VCS), EPA has no authority Incorporation by reference, V. Statutory and Executive Order Intergovernmental relations, Lead, Reviews to disapprove a SIP submission for failure to use VCS. It would thus be Nitrogen dioxide, Ozone, Particulate Under Executive Order 12866 (58 FR inconsistent with applicable law for matter, Reporting and recordkeeping 51735, October 4, 1993), this action is EPA, when it reviews a SIP submission, requirements, Sulfur oxides, Volatile not a ‘‘significant regulatory action’’ and to use VCS in place of a SIP submission organic compounds. therefore is not subject to review by the that otherwise satisfies the provisions of Dated: January 5, 2010. Office of Management and Budget. For the Clean Air Act. Thus, the Carol Rushin, this reason, this action is also not requirements of section 12(d) of the subject to Executive Order 13211, National Technology Transfer and Acting Regional Administrator, Region 8. ‘‘Actions Concerning Regulations That Advancement Act of 1995 (15 U.S.C. ■ Significantly Affect Energy Supply, 40 CFR part 52 is amended to read as 272 note) do not apply. This rule does Distribution, or Use’’ (66 FR 28355, May follows: not impose an information collection 22, 2001). This action merely approves burden under the provisions of the State law as meeting Federal PART 52—[AMENDED] Paperwork Reduction Act of 1995 (44 requirements and imposes no additional ■ requirements beyond those imposed by U.S.C. 3501 et seq.). 1. The authority citation for part 52 State law. Accordingly, the The Congressional Review Act, 5 continues to read as follows: Administrator certifies that this rule U.S.C. 801 et seq., as added by the Small Authority: 42 U.S.C. 7401 et seq. will not have a significant economic Business Regulatory Enforcement impact on a substantial number of small Fairness Act of 1996, generally provides Subpart BB—Montana entities under the Regulatory Flexibility that before a rule may take effect, the Act (5 U.S.C. 601 et seq.). Because this agency promulgating the rule must ■ 2. Section 52.1370 is amended by rule approves pre-existing requirements submit a rule report, which includes a adding paragraph (c)(68) to read as under State law and does not impose copy of the rule, to each House of the follows: any additional enforceable duty beyond Congress and to the Comptroller General that required by State law, it does not of the United States. EPA will submit a § 52.1370 Identification of plan. contain any unfunded mandate or report containing this rule and other * * * * * significantly or uniquely affect small required information to the U.S. Senate, (c) * * * governments, as described in the the U.S. House of Representatives, and Unfunded Mandates Reform Act of 1995 the Comptroller General of the United (68) Revisions to the State (Pub. L. 104–4). States prior to publication of the rule in Implementation Plan which were This rule also does not have tribal the Federal Register. A major rule submitted by the State of Montana on implications because it will not have a cannot take effect until 60 days after it January 16, 2009 and May 4, 2009. The substantial direct effect on one or more is published in the Federal Register. revisions are to the Administrative Indian tribes, on the relationship This action is not a ‘‘major rule’’ as Rules of Montana; they make minor between the Federal Government and defined by 5 U.S.C. 804(2). editorial and grammatical changes, Indian tribes, or on the distribution of Under section 307(b)(1) of the Clean update the citations and references to power and responsibilities between the Federal laws and regulations, and make Federal Government and Indian tribes, Air Act, petitions for judicial review of this action must be filed in the United other minor changes to conform to as specified by Executive Order 13175 federal regulations. (65 FR 67249, November 9, 2000). This States Court of Appeals for the action also does not have Federalism appropriate circuit by March 30, 2010. (i) Incorporation by reference. implications because it does not have Filing a petition for reconsideration by (A) Administrative Rules of Montana substantial direct effects on the States, the Administrator of this final rule does (ARM) sections 17.8.102 Incorporation on the relationship between the national not affect the finality of this action for by Reference—Publication Dates, government and the States, or on the the purposes of judicial review nor does 17.8.301 Definitions, 17.8.901 distribution of power and it extend the time within which a Definitions, and 17.8.1007 Baseline for responsibilities among the various petition for judicial review may be filed, Determining Credit for Emissions and and shall not postpone the effectiveness levels of government, as specified in Air Quality Offsets, effective October 24, of such rule or action. Parties with Executive Order 13132 (64 FR 43255, 2008. August 10, 1999). This action merely objections to this direct final rule are approves a State rule implementing a encouraged to file a comment in (B) Administrative Rules of Montana Federal standard, and does not alter the response to the parallel notice of (ARM) section 17.8.308 Particulate relationship or the distribution of power proposed rulemaking for this action Matter, Airborne, effective February 13, and responsibilities established in the published in the proposed rules section 2009. Clean Air Act. This rule also is not of today’s Federal Register, rather than [FR Doc. 2010–1748 Filed 1–28–10; 8:45 am] subject to Executive Order 13045 file an immediate petition for judicial BILLING CODE 6560–50–P ‘‘Protection of Children from review of this direct final rule, so that Environmental Health Risks and Safety EPA can withdraw this direct final rule Risks’’ (62 FR 19885, April 23, 1997), and address the comment in the because it approves a State rule proposed rulemaking. This action may implementing a Federal standard. not be challenged later in proceedings to In reviewing SIP submissions, EPA’s enforce its requirements. (See section role is to approve State choices, 307(b)(2).)

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FEDERAL COMMUNICATIONS Introduction 4. The creation and filing of the COMMISSION required reports unavoidably creates a 1. The Commission makes two risk that information that the rule is 47 CFR Part 1 procedural amendments to its intended to restrict may be competitive bidding rules. First, the [WT Docket No. 10–18; FCC 10–4] disseminated inadvertently. The reports Commission amends the rule specifying required under the rule themselves may In the Matter of Procedural how to report potential violations of 47 constitute or contain information that Amendments to Commission Part 1 CFR 1.2105(c), which prohibits certain applicants are otherwise barred from Competitive Bidding Rules communications between auction sharing. The Bureau has attempted to applicants. The Commission provides address this concern by advising AGENCY: Federal Communications that such reports shall be made as applicants to request confidential Commission. directed by public notice or, absent such treatment when filing reports. The ACTION: Final rule. direction, solely to the Auctions and Commission concludes that it can Spectrum Access Division (Division) of further minimize the risk of inadvertent SUMMARY: The Commission makes two the Wireless Telecommunications dissemination by requiring parties to procedural amendments to its Bureau (Bureau) by the most file only a single report and to file that competitive bidding rules. The expeditious means available. Currently, report with Commission personnel Commission amends the rule specifying such reports are made both to the expressly charged with administering how to report potential violations of the Division and to the Office of the the Commission’s auctions. prohibition on certain communications Secretary of the Commission. This Accordingly, the Commission amends in order to reduce the risk that bidding- revised procedure will reduce the risk 47 CFR 1.2105(c)(6) of its rules to related information might be that bidding-related information might provide that reports required by that disseminated to auction applicants. The be disseminated to auction applicants, section shall be filed as directed in the Commission also amends the rules which would be contrary to the purpose public notices that describe the specifying how quickly applicants must of 47 CFR 1.2105(c). The Commission procedures for the bidding that was the modify pending auction applications in also amends the heading of 47 CFR subject of the reported communication. order to enhance the usefulness of 1.2105(c). If no public notice provides direction, application information during the 2. Second, the Commission amends such reports shall be filed with the auction process and enable the the rules specifying how quickly Chief of the Auctions and Spectrum Commission to respond promptly to applicants must modify pending auction Access Division, Wireless changing circumstances if necessary. applications. The Commission provides Telecommunications Bureau, by the DATES: Effective March 1, 2010. that such modifications shall be made most expeditious means available. The FOR FURTHER INFORMATION CONTACT: within five business days after the Commission delegates to the Bureau the Wireless Telecommunications Bureau, reportable event occurs, or no more than authority to specify how such reports Auctions and Spectrum Access Division: five business days after the applicant shall be made. Sayuri Rajapakse at (202) 418–0660. becomes aware of the need to make an 5. The current heading of 47 CFR SUPPLEMENTARY INFORMATION: This is a amendment or modification, whichever 1.2105(c) of the Commission’s rules is summary of the Commission’s Part 1 is later. This revision will enhance the Prohibition of collusion. Given that Procedural Amendments Order adopted usefulness of application information collusion is a term used in many January 6, 2010, and released on January during the auction process and enable contexts, legal and economic, the 7, 2010. The complete text of the Part the Commission to respond promptly to Commission recognizes that using it to 1—Procedural Amendments Order is changing circumstances if necessary. describe the prohibitions of this section available for public inspection and Reporting Potential Violations of may cause confusion. Accordingly, the copying from 8 a.m. to 4:30 p.m. ET Section 1.2105(c) Commission amends the heading of 47 Monday through Thursday or from 8 CFR 1.2105(c) to read Prohibition of a.m. to 11:30 a.m. ET on Fridays in the 3. Subject to specific exceptions, 47 certain communications. This FCC Reference Information Center, 445 CFR 1.2105(c) of the Commission’s rules amendment makes no change to the 12th Street, SW., Room CY–A257, prohibits applicants from cooperating or substance of the rule, or to its Washington, DC 20554. The Part 1— collaborating with respect to, discussing interpretation or application. Procedural Amendments Order may be with certain other applicants, or Modifying Applications To Participate purchased from the Commission’s disclosing to such other applicants, the in Commission Auctions duplicating contractor, Best Copy and substance of any applicant’s bids or Printing, Inc. (BCPI), 445 12th Street, bidding strategies, or discussing or 6. 47 CFR 1.65(a) of the rules SW., Room CY–B402, Washington, DC negotiating settlement agreements. The currently obligates an applicant to 20554, telephone 202–488–5300, fax rule’s prohibitions begin at the deadline maintain the accuracy and completeness 202–488–5563, or you may contact BCPI for filing short-form applications to of information furnished in any at its Web site: http:// participate in an auction and end at the application pending before the www.BCPIWEB.com. When ordering post-auction down payment deadline. Commission and to notify the documents from BCPI, please provide Applicants making or receiving Commission as promptly as possible the appropriate FCC document number, prohibited communications must report and in any event within 30 days of any for example, FCC 10–4. The Part 1— such communications in writing to the substantial change that may be of Procedural Amendments Order is also Commission immediately. The current decisional significance to that available on the Internet at the rule provides that such reports be filed application. Failure to comply exposes Commission’s Web site: with the Office of the Secretary, and that an applicant to dismissal of its http://wireless.fcc.gov/auctions, or by a copy be sent to the Chief of the application and, potentially, using the search function for WT Docket Auctions and Spectrum Access enforcement action. 47 CFR 1.2105(b) No. 10–18 on the ECFS Web page at Division, Wireless Telecommunications contains additional rules specifically http://www.fcc.gov/cgb/ecfs/. Bureau. addressing the modification and

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dismissal of short-form applications in accordingly, is not subject to the § 1.65 Substantial and significant changes competitive bidding proceedings. Paperwork Reduction Act of 1995, in information furnished by applicants to 7. The Commission finds that, in the Public Law 104–13. More specifically, the Commission. context of competitive bidding for the rule amendments will modify the (a) Each applicant is responsible for Commission construction permits and provision specifying how parties make the continuing accuracy and licenses, it is appropriate and reports required pursuant to 47 CFR completeness of information furnished reasonable to require that applicants 1.2105(c)(6) so that parties shall make in a pending application or in furnish additional or corrected the reports as directed by public notice Commission proceedings involving a information more quickly than within or only to the Chief of the Auctions and pending application. Except as 30 days. Most, if not all, information in Spectrum Access Division, Wireless otherwise required by rules applicable auction applications is made available Telecommunications Bureau, rather to particular types of applications, to the public and all auction than to the Chief and the Office of the whenever the information furnished in participants during the auction. Auction Secretary of the Commission, as the pending application is no longer participants may depend on ownership required prior to the modification. substantially accurate and complete in information in other participants’ Given that this change is neither all significant respects, the applicant applications when determining whether material nor substantive, this document shall as promptly as possible and in any contact with a third party regarding does not contain any new or modified event within 30 days, unless good cause potential financing is permissible under information collection burden for small is shown, amend or request the 47 CFR 1.2105(c). In addition, if a business concerns with fewer than 25 amendment of the application so as to change to an application could raise an employees, pursuant to the Small furnish such additional or corrected issue as to the applicant’s continued Business Paperwork Relief Act of 2002, information as may be appropriate. eligibility to participate, the Bureau Public Law 107–198, 44 U.S.C. Except as otherwise required by rules needs the information as soon as 3506(c)(4). applicable to particular types of possible in order to consider whether to applications, whenever there has been a take any action and minimize Congressional Review Act substantial change as to any other disruption of the auction. Accordingly, matter which may be of decisional 11. The Commission will not send a through its public notices, the practice significance in a Commission of the Bureau has been to require reports copy of this Order to Congress and the proceeding involving the pending or amendments to short-form Government Accountability Office application, the applicant shall as applications within a shorter interval pursuant to the Congressional Review promptly as possible and in any event than 30 days. The Bureau also has long Act, 5 U.S.C. 801(a)(1)(A), because the within 30 days, unless good cause is required that any change that causes a amended rules are rules of agency shown, submit a statement furnishing loss of or reduction in eligibility for a organization, procedure or practice that such additional or corrected information bidding credit be reported immediately. do not substantially affect the rights or as may be appropriate, which shall be 8. The Commission amends 47 CFR obligations of non-agency parties. served upon parties of record in 1.65(a) and 1.2105(b) of its rules to Ordering Clause accordance with § 1.47. Where the require applicants in competitive matter is before any court for review, bidding proceedings to furnish 12. Accordingly, it is ordered, that statements and requests to amend shall additional or corrected information pursuant to sections 4(i), 4(j), 5(c), in addition be served upon the within five days of a significant 303(r), 47 U.S.C. 154(i), 154(j), 155(c), Commission’s General Counsel. For the occurrence, or to amend their short-form 303(r) of the Communications Act of purposes of this section, an application applications no more than five days 1934, as amended, 47 CFR part 1 is is ‘‘pending’’ before the Commission after the applicant becomes aware of the amended effective March 1, 2010. from the time it is accepted for filing by need for amendment. The Commission the Commission until a Commission List of Subjects in 47 CFR Part 1 believes this change will facilitate the grant or denial of the application is no auction process, making the information Administrative practice and longer subject to reconsideration by the available promptly to all participants procedure, Competitive bidding, Commission or to review by any court. and enabling the Bureau to act Telecommunications. * * * * * expeditiously on those changes when ■ Federal Communications Commission. 3. Section 1.2105 is amended by such action is necessary. Moreover, the Alethea Lewis, revising the section heading, adding Commission emphasizes that applicants paragraph (b)(4), and by revising Federal Register Liaison. can readily make and submit any paragraph (c)(6) to read as follows: changes to their short-form applications Final Rules electronically using the FCC Auction § 1.2105 Prohibition of certain System. ■ For the reasons discussed in the communications. 9. The rule amendments adopted in preamble, the Federal Communications * * * * * the Order involve rules of agency Commission amends 47 CFR part 1 as (b) * * * organization, procedure, or practice. follows: (4) Applicants shall have a continuing The notice and comment and effective obligation to make any amendments or date provisions of the Administrative PART 1—PRACTICE AND modifications that are necessary to Procedure Act are therefore PROCEDURE maintain the accuracy and completeness inapplicable. of information furnished in pending ■ 1. The authority of part 1 continues to applications. Such amendments or Paperwork Reduction Act read as follows: modifications shall be made as 10. The Order contains a change to Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. promptly as possible, and in no case previously approved information 151, 154(j), 160, 201, 225, and 303. more than five business days after collection requirements with respect to applicants become aware of the need to 47 CFR 1.2105(c). The change is neither ■ 2. Section 1.65 is amended by revising make any amendment or modification, material nor substantive and, paragraph (a) to read as follows: or five business days after the reportable

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event occurs, whichever is later. An SUPPLEMENTARY INFORMATION: temperature is only above the rail applicant’s obligation to make such Background neutral temperature, without reaching amendments or modifications to a the critical temperature that can cause pending application continues until Pursuant to (SAFETEA–LU), FRA track misalignment. As a result, FRA they are made. published a final rule revising the Track has determined that the definition in the (c) * * * Safety Standards on August 25, 2009 (74 final rule could be misleading by stating (6) Any applicant that makes or FR 42988). FRA published a correcting ‘‘when the actual rail temperature is amendment on October 21, 2009, which receives a communication of bids or above the actual rail neutral added compliance dates for railroads bidding strategies prohibited under temperature.’’ paragraph (c)(1) of this section shall that had been inadvertently omitted report such communication in writing from the final rule’s compliance After consideration, FRA has to the Commission immediately, and in schedule. On September 25, 2009, FRA determined that ‘‘buckling-prone no case later than five business days received a petition for reconsideration condition’’ means a condition that can after the communication occurs. An from the Association of American result in the track being laterally applicant’s obligation to make such a Railroads (AAR). This publication displaced due to high compressive report continues until the report has announces amendments to the final rule forces caused by critical rail been made. Such reports shall be filed in response to the concerns expressed temperature combined with insufficient as directed in public notices detailing by the petitioner. track strength and/or train dynamics. procedures for the bidding that was the ‘‘Buckling-Prone Condition’’ Definition ‘‘Adjusting/De-Stressing’’ Definition subject of the reported communication. In the petition, AAR stated that the If no public notice provides direction, The petition also noted an error in the such notices shall be filed with the definition of ‘‘buckling prone condition’’ included in the final rule at § 213.119(l) definition of ‘‘adjusting/de-stressing.’’ Chief of the Auctions and Spectrum The final rule defines ‘‘adjusting/de- Access Division, Wireless was not proposed by FRA in the notice of proposed rulemaking. As such, the stressing’’ as a ‘‘procedure by which a Telecommunications Bureau, by the rail’s temperature is re-adjusted to the most expeditious means available. petitioner did not have an opportunity until the review of the final rule to desired value. It typically consists of * * * * * address the definition. The final rule cutting the rail and removing rail [FR Doc. 2010–1878 Filed 1–28–10; 8:45 am] provides that a ‘‘buckling-prone anchoring devices, which provides for BILLING CODE 6712–01–P condition’’ exists ‘‘when the actual rail the necessary expansion and temperature is above the actual rail contraction, and then re-assembling the neutral temperature. This varies given track.’’ AAR points out that it is not the DEPARTMENT OF TRANSPORTATION the geographical composition of the temperature of the rail that is adjusted, track.’’ Section 213.119(g)(2)(ii) requires but rather the rail neutral temperature Federal Railroad Administration remedial action to be taken whenever a that is adjusted. AAR suggested that buckling prone condition exists. AAR 49 CFR Part 213 FRA replace ‘‘a rail’s temperature’’ with argues that, literally interpreted, the ‘‘the rail neutral temperature’’ in the [Docket No. FRA–2008–0036] final rule requires remedial action definition for ‘‘adjusting/de-stressing’’ in whenever the rail neutral temperature is RIN 2130–AB90 § 213.119(l). FRA has also noted this exceeded. AAR states that this is not unintended omission in the definition Track Safety Standards; Continuous what FRA intended, as the neutral and is amending the first sentence of the Welded Rail (CWR) temperature is supposed to be between definition of ‘‘adjusting/de-stressing’’ to the maximum and minimum mean ‘‘a procedure by which a rail’s AGENCY: Federal Railroad temperatures the rail is subject to and neutral temperature is re-adjusted to the Administration (FRA), Department of thus the neutral temperature will ’’ Transportation (DOT). commonly be exceeded. AAR suggested desired value. ACTION: Final rule; response to petition that ‘‘buckling-prone condition’’ be Regulatory Impact and Notices for reconsideration. defined as follows: A. Executive Order 12866 and DOT Buckling-prone condition means when SUMMARY: This document responds to a track conditions may be insufficient to Regulatory Policies and Procedures petition for reconsideration of FRA’s restrain the track laterally at the rail final rule published on August 25, 2009, temperatures actually experienced at that This action has been evaluated in which revised the Track Safety location. accordance with existing policies and procedures, and determined to be non- Standards. FRA received one petition FRA reviewed the definition of significant under both Executive Order questioning the definitions of ‘‘buckling-prone condition’’ and 12866 and DOT policies and procedures ‘‘adjusting/de-stressing’’ and ‘‘buckling- consulted with the Volpe Center to more prone condition’’ as they are used with narrowly define what is intended by (44 FR 11034, Feb. 26, 1979). The regard to continuous welded rail (CWR). this term. In the railroad industry, ‘‘track original final rule was determined to be DATES: Effective Date: This final rule is buckling’’ refers to the sudden lateral non-significant. Furthermore, the effective on March 30, 2010. movement of the track due to thermally- amendments contained in this action FOR FURTHER INFORMATION CONTACT: generated longitudinal rail forces. As are not considered significant because Kenneth Rusk, Staff Director, Office of the temperature rises above the actual they generally clarify requirements Railroad Safety, FRA, 1200 New Jersey rail neutral temperature, longitudinal currently contained in the final rule or Avenue, SE., Washington, DC 20590 expansion in rail can occur once a allow for greater flexibility in complying (telephone: (202) 493–6236); or Sarah critical rail temperature is reached that with the rule. These amendments, Grimmer Yurasko, Trial Attorney, Office can cause lateral misalignment of the additions, and clarifications will have a of the Chief Counsel, FRA, 1200 New track. Therefore, FRA concluded that minimal net effect on FRA’s original Jersey Avenue, SE., Washington, DC CWR cannot always be considered in a analysis of the costs and benefits 20950 (telephone: (202) 493–6390). ‘‘buckling-prone condition’’ if the rail associated with the final rule.

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B. Regulatory Flexibility Act and officials in the process of developing the E. Environmental Impact Executive Order 13272 regulation. FRA has evaluated this action in FRA has determined that this action accordance with its ‘‘Procedures for The Regulatory Flexibility Act (5 would not have substantial direct effects Considering Environmental Impacts’’ U.S.C. 601 et seq.) and Executive Order on the States, on the relationship (FRA’s Procedures) (64 FR 28545, May 13272 require a review of proposed and between the national government and 26, 1999) as required by the National final rules to assess their impact on the States, nor on the distribution of Environmental Policy Act (42 U.S.C. small entities. FRA certifies that this power and responsibilities among the 4321 et seq.), other environmental action is not expected to have a various levels of government. In significant economic impact on a addition, FRA has determined that this statutes, Executive Orders, and related substantial number of small entities action would not impose any direct regulatory requirements. FRA has under the Regulatory Flexibility Act or compliance costs on State and local determined that this action is not a Executive Order 13272. Because the governments. Therefore, the major FRA action (requiring the amendments contained in this consultation and funding requirements preparation of an environmental impact document generally clarify requirements of Executive Order 13132 do not apply. statement or environmental assessment) currently contained in the final rule or However, this final rule has because it is categorically excluded from allow for greater flexibility in complying preemptive effect. Section 20106 detailed environmental review pursuant with the rule, FRA has concluded that provides that States may not adopt or to section 4(c)(20) of FRA’s Procedures. there are no substantial economic continue in effect any law, regulation, or 64 FR 28547, May 26, 1999. In impacts on small units of government, order related to railroad safety or accordance with sections 4(c) and (e) of businesses, or other organizations security that covers the subject matter of FRA’s Procedures, the agency has resulting from this action. a regulation prescribed or order issued further concluded that no extraordinary by the Secretary of Transportation (with circumstances exist with respect to this C. Paperwork Reduction Act respect to railroad safety matters) or the regulation that might trigger the need for This action does not change the Secretary of Homeland Security (with a more detailed environmental review. information collection requirements respect to railroad security matters), As a result, FRA finds that this action contained in the original final rule. except when the State law, regulation, is not a major Federal action or order qualifies under the local safety significantly affecting the quality of the D. Federalism Implications or security exception to Section 20106. human environment. This action has been analyzed in The intent of Section 20106 is to F. Unfunded Mandates Act of 1995 promote national uniformity in railroad accordance with the principles and Pursuant to Section 201 of the criteria contained in Executive Order safety and security standards. 49 U.S.C. 20106(a)(1). Thus, subject to a limited Unfunded Mandates Reform Act of 1995 13132, ‘‘Federalism’’ (64 FR 43255, Aug. (Pub. L. 104–4, 2 U.S.C. 1531), each 10, 1999). As discussed earlier in the exception for essentially local safety or security hazards, this final rule Federal agency ‘‘shall, unless otherwise preamble, these amendments to the final prohibited by law, assess the effects of rule clarify definitions for compliance establishes a uniform Federal safety standard that must be met, and State Federal regulatory actions on State, with the final rule governing CWR. requirements covering the same subject local, and tribal governments, and the Executive Order 13132 requires FRA matter would be displaced, whether private sector (other than to the extent to develop an accountable process to those State requirements are in the form that such regulations incorporate ensure ‘‘meaningful and timely input by of a State law, including common law, requirements specifically set forth in State and local officials in the regulation, or order. Part 213 establishes law).’’ Section 202 of the Act (2 U.S.C. development of regulatory policies that Federal standards of care that preempt 1532) further requires that ‘‘before have federalism implications.’’ ‘‘Policies State standards of care, but this part promulgating any general notice of that have federalism implications’’ are does not preempt an action under State proposed rulemaking that is likely to defined in the Executive Order to law seeking damages for personal result in the promulgation of any rule include regulations that have injury, death, or property damage that includes any Federal mandate that ‘‘substantial direct effects on the States, alleging that a party has failed to may result in expenditure by State, on the relationship between the national comply with the Federal standard of local, and tribal governments, in the government and the States, or on the care established by this part, including aggregate, or by the private sector, of distribution of power and a plan or program required by this part. $100,000,000 or more (adjusted responsibilities among the various Provisions of a plan or program that annually for inflation) currently levels of government.’’ Under Executive exceed the requirements of this part are $141,300,000 in any 1 year, and before Order 13132, the agency may not issue not included in the Federal standard of promulgating any final rule for which a a regulation with federalism care. general notice of proposed rulemaking implications that imposes substantial In sum, FRA has analyzed this action was published, the agency shall prepare direct compliance costs and that is not in accordance with the principles and a written statement’’ detailing the effect required by statute, unless the Federal criteria contained in Executive Order on State, local, and tribal governments government provides the funds 13132. As explained above, FRA has and the private sector. This action necessary to pay the direct compliance determined that this action has no would not result in the expenditure, in costs incurred by State and local federalism implications, other than the the aggregate, of $141,300,000 or more governments, the agency consults with preemption of State laws covering the in any one year, and thus preparation of State and local governments, or the subject matter of this final rule, which such a statement is not required. agency consults with State and local occurs by operation of law under government officials early in the process Section 20106 whenever FRA issues a G. Energy Impact of developing the regulation. Where a rule or order. Accordingly, FRA has Executive Order 13211 requires regulation has federalism implications determined that preparation of a Federal agencies to prepare a Statement and preempts State law, the agency federalism summary impact statement of Energy Effects for any ‘‘significant seeks to consult with State and local for this action is not required. energy action.’’ 66 FR 28355, May 22,

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2001. Under the Executive Order, a value. It typically consists of cutting the Mexico and South Atlantic Fishery ‘‘significant energy action’’ is defined as rail and removing rail anchoring Management Councils (Councils) and is any action by an agency (normally devices, which provides for the implemented under the authority of the published in the Federal Register) that necessary expansion and contraction, Magnuson-Stevens Fishery promulgates or is expected to lead to the and then re-assembling the track. Conservation and Management Act promulgation of a final rule or * * * * * (Magnuson-Stevens Act) by regulations regulation, including notices of inquiry, Buckling-prone condition means a at 50 CFR part 622. advance notices of proposed track condition that can result in the Based on the Councils’ recommended rulemaking, and notices of proposed track being laterally displaced due to total allowable catch and the allocation rulemaking: (1)(i) That is a significant high compression forces caused by ratios in the FMP, on April 30, 2001 (66 regulatory action under Executive Order critical rail temperature combined with FR 17368, March 30, 2001) NMFS 12866 or any successor order, and (ii) is insufficient track strength and/or train implemented a commercial quota of likely to have a significant adverse effect dynamics. 2.25 million lb (1.02 million kg) for the eastern zone (Florida) of the Gulf on the supply, distribution, or use of * * * * * energy; or (2) that is designated by the migratory group of king mackerel. That Administrator of the Office of Issued in Washington, DC, on January 25, quota is further divided into separate Information and Regulatory Affairs as a 2010. quotas for the Florida east coast subzone significant energy action. FRA has Joseph C. Szabo, and the northern and southern Florida evaluated this action in accordance with Administrator. west coast subzones. The quota Executive Order 13211. FRA has [FR Doc. 2010–1873 Filed 1–28–10; 8:45 am] implemented for the Florida east coast determined that this action is not likely BILLING CODE 4910–06–P subzone is 1,040,625 lb (472,020 kg) (50 to have a significant adverse effect on CFR 622.42(c)(1)(i)(A)(1)). the supply, distribution, or use of Under 50 CFR 622.43(a)(3), NMFS is required to close any segment of the energy. Consequently, FRA has DEPARTMENT OF COMMERCE determined that this regulatory action is king mackerel commercial fishery when not a ‘‘significant energy action’’ within National Oceanic and Atmospheric its quota has been reached, by filing a the meaning of Executive Order 13211. Administration notification at the Office of the Federal Register. NMFS has determined that the H. Privacy Act Statement 50 CFR Part 622 commercial quota of 1,040,625 lb Anyone is able to search the (472,000 kg) for Gulf group king electronic form of all comments [Docket No. 001005281–0369–02] mackerel in the Florida east coast subzone will be reached on February 4, received into any of DOT’s dockets by RIN 0648–XU12 the name of the individual submitting 2010. Accordingly, the commercial the comment (or signing the comment, Fisheries of the Caribbean, Gulf of fishery for king mackerel in the Florida if submitted on behalf of an association, Mexico, and South Atlantic; Coastal east coast subzone is closed at 12:01 business, labor union, etc.). You may Migratory Pelagic Resources of the a.m., local time, February 4, 2010, review DOT’s complete Privacy Act Gulf of Mexico and South Atlantic; through 12:01 a.m., local time, April 1, Statement published in the Federal Closure 2010. Register on April 11, 2000 (Volume 65, From November 1 through March 31 Number 70, Pages 19477–78), or you AGENCY: National Marine Fisheries the Florida east coast subzone of the may visit http://DocketsInfo.dot.gov. Service (NMFS), National Oceanic and Gulf group king mackerel is that part of Atmospheric Administration (NOAA), the eastern zone north of 25°20.4′ N. lat. List of Subjects in 49 CFR Part 213 Commerce. (a line directly east from the Miami- Penalties, Railroad safety, Reporting ACTION: Temporary rule; closure. Dade/Monroe County, FL, boundary) to and recordkeeping requirements. 29°25′N. lat. (a line directly east from ■ Accordingly, 49 CFR part 213 is SUMMARY: NMFS closes the commercial the Flagler/Volusia County, FL, amended by making the following fishery for king mackerel in the Florida boundary). Beginning April 1, the correcting amendments: east coast subzone. This closure is boundary between Atlantic and Gulf necessary to protect the Gulf king groups of king mackerel shifts south and PART 213—TRACK SAFETY mackerel resource. west to the Monroe/Collier County STANDARDS DATES: The closure is effective 12:01 boundary on the west coast of Florida. a.m., local time, February 4, 2010, From April 1 through October 31, king ■ 1. The authority citation for part 213 through 12:01 a.m., local time, April 1, mackerel harvested along the east coast continues to read as follows: 2010. of Florida, including all of Monroe Authority: 49 U.S.C. 20102–20114 and FOR FURTHER INFORMATION CONTACT: County, are considered to be Atlantic 20142; 28 U.S.C. 2461, note; and 49 CFR group king mackerel. 1.49(m). Susan Gerhart, telephone: 727–824– 5305, fax: 727–824–5308, e-mail: Classification ■ 2. In § 213.119(l), revise the [email protected]. This action responds to the best definitions for ‘‘adjusting/de-stressing’’ SUPPLEMENTARY INFORMATION: The available information recently obtained and ‘‘buckling-prone condition’’ to read fishery for coastal migratory pelagic fish from the fishery. The Assistant as follows: (king mackerel, Spanish mackerel, cero, Administrator for Fisheries, NOAA, § 213.119 Continuous welded rail (CWR); cobia, little tunny, and, in the Gulf of finds that the need to immediately plan contents. Mexico only, dolphin and bluefish) is implement this action to close the * * * * * managed under the Fishery fishery constitutes good cause to waive (l) * * * Management Plan for the Coastal the requirements to provide prior notice Adjusting/de-stressing means a Migratory Pelagic Resources of the Gulf and opportunity for public comment procedure by which a rail’s neutral of Mexico and South Atlantic (FMP). pursuant to the authority set forth in 5 temperature is re-adjusted to the desired The FMP was prepared by the Gulf of U.S.C. 553(b)(B), as such procedures

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would be unnecessary and contrary to this action to protect the fishery since Authority: 16 U.S.C. 1801 et seq. the public interest. Such procedures the capacity of the fishing fleet allows Dated: January 26, 2010. would be unnecessary because the rule for rapid harvest of the quota. Prior Emily H. Menashes, itself already has been subject to notice notice and opportunity for public and comment, and all that remains is to comment would require time and would Acting Director, Office of Sustainable notify the public of the closure. potentially result in a harvest well in Fisheries, National Marine Fisheries Service. Allowing prior notice and excess of the established quota. [FR Doc. 2010–1879 Filed 1–26–10; 4:15 pm] opportunity for public comment is This action is taken under 50 CFR BILLING CODE 3510–22–S contrary to the public interest because 622.43(a) and is exempt from review of the need to immediately implement under Executive Order 12866.

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Proposed Rules Federal Register Vol. 75, No. 19

Friday, January 29, 2010

This section of the FEDERAL REGISTER Regulations and Paperwork governments, in the aggregate, or to the contains notices to the public of the proposed Management Branch, U.S. Department private sector, of $100 million or more issuance of rules and regulations. The of Agriculture, 300 7th Street, SW., 7th in any one year. When such a statement purpose of these notices is to give interested Floor, Washington, DC 20024. is needed for a rule, section 205 of the persons an opportunity to participate in the All written comments will be UMRA generally requires the Agency to rule making prior to the adoption of the final rules. available for public inspection during identify and consider a reasonable regular work hours at 300 7th Street, number of regulatory alternatives and SW., 7th Floor address listed above. adopt the least costly, more cost- DEPARTMENT OF AGRICULTURE FOR FURTHER INFORMATION CONTACT: effective or least burdensome alternative Tammy S. Daniels, Financial and Loan that achieves the objectives of the rule. Rural Housing Service Analyst, USDA Rural Development This rule contains no Federal mandates Guaranteed Rural Rental Housing (under the regulatory provisions of Title 7 CFR Part 3565 Program, Multi-Family Housing II of the UMRA) for State, local, and tribal governments or the private sector. RIN–0575–AC80 Guaranteed Loan Division, U.S. Department of Agriculture, South Therefore, this rule is not subject to the Continuous Construction-Permanent Agriculture Building, Room 1271, STOP requirements of sections 202 and 205 of Loan Guarantees Under the Section 0781, 1400 Independence Avenue, SW., the UMRA. 538 Guaranteed Rural Rental Housing Washington, DC 20250–0781. E-mail: Executive Order 13132 [email protected]. Program The policies contained in this rule do Telephone: (202) 720–0021. This not have any substantial direct effect on AGENCY: Rural Housing Service, USDA. number is not toll-free. Hearing or ACTION: Proposed rule. States, on the relationship between the speech-impaired persons may access National government and States, or on that number by calling the Federal SUMMARY: The Rural Housing Service the distribution of power and Information Relay Service toll-free at responsibilities among the various (an agency within the Rural (800) 877–8339. Development mission area) is proposing levels of government. Nor does this rule an additional form of guarantee under SUPPLEMENTARY INFORMATION: impose substantial direct compliance the Guaranteed Rural Rental Housing Classification costs on State and local governments. Program regulation. This action is taken Therefore, consultation with the States This rule has been determined not to to enhance efficiency, flexibility, and is not required. be significant for the purposes of effectiveness in managing the program. Executive Order 12866 and, therefore, Environmental Impact Statement The Agency currently offers a guarantee has not been reviewed by the Office of on a permanent loan only and a This document has been reviewed in Management and Budget (OMB). guarantee on construction advances and accordance with 7 CFR part 1940, the permanent financing phase of a Executive Order 12988 § 1940.310(e)(3). Rural Development has determined that this action does not project. In addition to the proposed This rule has been reviewed under form of guarantee, the Agency will constitute a major Federal action Executive Order 12988, Civil Justice significantly affecting the quality of the continue to offer the two types of Reform. If this rule is adopted: (1) guarantees currently provided. human environment, and in accordance Unless otherwise specifically provided, with the National Environmental Policy DATES: Written or e-mail comments all State and local laws and regulations Act (NEPA) of 1969, 42 U.S.C. 4321 et must be received on or before March 30, that are in conflict with this rule will be seq., an Environmental Impact 2010. preempted; (2) no retroactive effect will Statement is not required. Loan ADDRESSES: You may submit comments be given to this rule except as applications will be reviewed to this rule by any of the following specifically prescribed in the rule; and individually to determine compliance methods: (3) the appeal procedures of the with NEPA. • E-Mail: [email protected]. National Appeals Division (7 CFR part Include ‘‘RIN No. 0575–AC80’’ in the 11) must be exhausted before bringing Regulatory Flexibility Act subject line of the message. suit. This rule has been reviewed with • Federal eRulemaking Portal: http:// regard to the requirements of the www.regulations.gov. Follow the Unfunded Mandates Reform Act Regulatory Flexibility Act (5 U.S.C. instructions for submitting comments. Title II of the Unfunded Mandates 601–612). The undersigned has • Mail: Submit written comments via Reform Act of 1995 (UMRA), Public determined and certified by signature of the U.S. Postal Service to the Branch Law 104–4, establishes requirements for this document that this rule will not Chief, Regulations and Paperwork Federal agencies to assess the effects of have a significant economic impact on Management Branch, U.S. Department their regulatory actions on State, local, a substantial number of small entities. of Agriculture, STOP 0742, 1400 and tribal governments and the private This rule will affect both small and large Independence Avenue, SW., sector. Under section 202 of the UMRA, entities in the same manner. This rule Washington, DC 20250–0742. the Agency generally must prepare a has no significant changes in • Hand Delivery/Courier: Submit written statement, including a cost- information collection or regulatory written comments via Federal Express benefit analysis, for final rules with requirements that would have a negative Mail or other courier service requiring a ‘‘Federal mandates’’ that may result in impact on either small or large entities street address to the Branch Chief, expenditures to State, local, or tribal in an economic way.

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Programs Affected List of Subjects in 7 CFR Part 3565 Loan-to-cost ratio. The amount of the This program is listed in the Catalog Bankruptcy, Banks, Banking, civil loan divided by the total cost to develop of Federal Domestic Assistance under rights, Conflict of interests, Credit, the project. Number 10.438. Environmental impact statements, Fair * * * * * housing, Government procurement, Operating and maintenance reserve. Intergovernmental Consultation Guaranteed loans, Hearing and appeal A cash reserve required of all projects of For the reasons set forth in the Final procedures, Housing standards, at least 2 percent of the loan amount Rule related Notice to 7 CFR part 3015, Lobbying, Low and moderate income held by the lender that is used for the Subpart V, this program is subject to housing, Manufactured homes, up-keep of the project. Executive Order 12372 which requires Mortgages, Real property acquisition, * * * * * intergovernmental consultation with Surety bonding. State and local officials. The Agency has Accordingly, chapter XXXV, title 7, Subpart B—Guarantee Requirements conducted intergovernmental Code of Federal Regulations is proposed 3. Section 3565.51 is revised to read consultation in the manner delineated to be amended as follows: in RD Instruction 1940–J (available in as follows: any Rural Development office). PART 3565—GUARANTEED RURAL § 3565.51 Eligible loans and advances. Paperwork Reduction Act of 1995 RENTAL HOUSING PROGRAM Upon approval of an application from The information collection 1. The authority citation for part 3565 an eligible or approved lender, the requirements contained in this continues to read as follows: Agency will commit to providing a regulation have been approved by OMB guarantee for a permanent loan or a Authority: 5 U.S.C. 301; 7 U.S.C. 1989; 42 construction and permanent loan, under the provisions of 44 U.S.C. U.S.C. 1480. chapter 35 and have been assigned OMB subject to the availability of funds. control number 0575–0174 in Subpart A—General Provisions 4. Section 3565.52 is amended by accordance with the Paperwork revising paragraph (c) and adding a new 2. Section 3565.3 is amended by Reduction Act of 1995. No person is paragraph (d) and (e) to read as follows: removing the definition for required to respond to a collection of ‘‘ § 3565.52 Conditions of guarantee. information unless it displays a valid combination construction and ’’ OMB control number. permanent loan and by adding * * * * * alphabetically a definition for (c) Types of guarantees. The Agency E-Government Act Compliance ‘‘construction and permanent loan,’’ may provide a lesser guarantee based Rural Development is committed to ‘‘construction contingency reserve,’’ upon its evaluation of the credit quality complying with the E-Government Act ‘‘lease-up period,’’ ‘‘lease-up reserve,’’ of the loan. Penalties incurred as a to promote the use of the Internet and ‘‘loan-to-cost ratio,’’ and ‘‘operating and result of default are not covered by the other information technologies to maintenance reserve,’’ to read as guarantee. The Agency liability under provide increased opportunities for follows: any guarantee will decrease or increase, in proportion to any increase or citizen access to Government § 3565.3 Definitions. information and services and for other decrease in the amount of the unpaid purposes. * * * * * portion of the loan, up to the maximum Construction and permanent loan. A amount specified in the Loan Note Background Information loan which provides advances during Guarantee. The Agency will not The Guaranteed Rural Rental Housing the construction period and remains in guarantee construction loans only. The Program (GRRHP) currently offers two place as a permanent loan at the Agency offers the following types of forms of guarantees: (1) A guaranty for completion of construction. guarantees: permanent loans and (2) a guarantee Construction contingency reserve. A (1) Option One. The Agency may which provides a limited duration cash reserve of at least 2 percent of the guarantee permanent loans subject to guarantee for advances during the construction contract, inclusive of the the conditions specified in construction period with the limited contractor’s fee, and all hard and soft § 3565.303(d). The maximum guarantee duration provision being automatically costs, that must be set up and fully for a permanent loan will be 90 percent removed if certain conditions are met. funded by the closing of the [unless the Agency established a Under this proposed rule, the Agency construction loan. This reserve will be different percent and announces this proposes, for loans that meet certain held by the lender and will only be different percent through a Notice in the criteria, to provide a single, continuous disbursed for Agency and lender Federal Register] of the unpaid guarantee during the construction phase approved change order requests. principal and interest up to default and for construction advances and the * * * * * accrued interest 90 calendar days from permanent financing phase of the Lease-up period. The period of time the date the liquidation plan is project. This third form of guarantee is that begins when the first unit in the approved by the Agency, as defined in being proposed in response to input project receives a certificate of § 3565.452. from GRRHP stakeholders who believe occupancy until the time that (2) Option Two. The Agency may that this option will allow the program occupancy of 90% of the units for a provide a guarantee which will cover to serve more borrowers thus making minimum of 90 consecutive days is construction loan advances (advances) affordable housing available for more achieved. during construction. The maximum low to moderate income families. Lease-up reserve. A cash deposit guarantee of construction advances In addition, the proposed rule makes which is available to a property to help related to a construction and permanent several technical corrections and pay operating costs and debt service at loan will not at any time exceed the clarifications and eliminates the the initiation of operations while units lesser of 90 percent [or the percent anachronistic requirement that lenders are being leased to their initial established by the Agency and certify that their computer systems occupants. announced through a Notice in the comply with year 2000 technology. * * * * * Federal Register] of the amount of

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principal and interest up to default principal and interest up to default (c) Guarantee during construction. advanced for eligible uses of loan advanced for eligible uses of loan When requesting a guarantee on proceeds or 90 percent of the original proceeds or 90 percent of the original construction loan advances under principal amount and interest up to principal amount and interest up to § 3565.52(c)(2) and (c)(3), the Agency default of the Loan. The Agency’s default. will only issue a guarantee to an guarantee will cover losses to the extent (d) Maximum loss payment. The approved lender that the Agency aforementioned once all sureties/ maximum loss payment to a lender or determines is eligible under § 3565.106 insurances and or performance and Holder is as follows: of this part. payment bonds have fully performed (1) To any Holder, 100 percent of any (1) This guarantee will be subject to their contractual obligations. A loss sustained by the Holder on the the limits contained in subpart B of this construction contingency reserve is guaranteed portion of the loan and on part and in the loan closing required. This guarantee will be interest due on such portion. documentation. enforceable during the construction (2) To the lender, the lesser of: (2) In all cases, the lender must obtain (i) Any loss sustained by the lender period, but will cease to be enforceable one of the following protections: on the guaranteed portion, including once construction is completed unless (i) Surety bonding or performance and principal, interest and accrued interest and until the requirements for the payment bonding acceptable to the up to 90 days evidenced by the notes or continuation of the guarantee contained Agency; assumption agreements and secured in the Conditional Commitment and this (ii) An irrevocable letter of credit advances for protection and part are completed and approved by the acceptable to the Agency; or preservation of collateral made with the Agency by the date stated in the (iii) A pledge to the lender of Conditional Commitment and any Agency’s authorization; or (ii) The guaranteed principal collateral that is acceptable to the Agency approved extension(s). The Agency. Agency will provide written advanced to or assumed by the borrower and any interest and accrued interest up (3) The lender must verify amounts confirmation to the lender when all of expended prior to each payment for the requirements for continuation of the to 90 days due thereon. (e) Funding of reserves. For each completed work and certify that an guarantee to cover the permanent loan independent inspector has inspected the have been satisfied. Any losses Option under paragraph (c) of this section, the lender must require an property and found it to be in sustained while the guarantee is conformance with Agency standards. unenforceable (after the end of the operating and maintenance reserve and provide the Agency adequate evidence The lender must provide verification construction period and, if applicable, that all subcontractors have been paid before the continuation of the guarantee) of the funding of all required reserves. (1) For Option 1 under paragraph (c) and no liens have been filed against the are not covered by the guarantee. For of this section, the funding schedule for property. purposes of this guarantee, the the lease-up reserve and the operating (d) Permanent loan guarantee. The construction period will end on the and maintenance reserve, must be guarantee of a permanent loan provided earlier of: (i) 24 months from the closing of the included in the Agency-approved under § 3565.52(c)(1) or (c)(2) will be construction loan, if the certificates of construction budget and be fully funded issued once the following items have occupancy for all units in the project before the issuance of the permanent been submitted to and approved by the have not been issued by then, or guarantee. Agency: (ii) The date of the issuance of the last (2) For Option 2 under paragraph (c) (1) Certification from the lender certificate of occupancy, if the of this section, the funding schedule for stating that the lender or its qualified certificates of occupancy for all units in the lease-up reserve and the operating representative inspected the property the project are issued on or before 24 and maintenance reserve must be and found that the construction meets months from the closing of the included in the Agency-approved the Government’s requirements for the construction loan. construction budget and be fully funded standards and conditions for housing (3) Option Three. The Agency may before the issuance of the permanent and facilities in 7 CFR part 1924, provide a single, continuous guarantee guarantee. subpart A and the standards for site for construction and permanent loans. (3) For Option 3 under paragraph (c) development in 7 CFR part 1924, Only projects that have low loan-to-cost of this section, the lease-up reserve, and subpart C; ratios, as specified by the Agency in a the operating and maintenance reserve, (2) Cash flow certification—lender Notice published periodically in the must be fully funded before the issuance certifies in writing the project’s cash Federal Register, are eligible for this of the guarantee. flow assumptions are still valid and depict compliance with the section 538 type of guarantee. A construction Subpart C—Lender Requirements contingency reserve is required. The program’s debt service coverage ratio Agency may require that a lease-up § 3565.103 [Amended] requirement of at least 1.15, based on reserve, in an amount established by the 5. Section 3565.103 is amended by the lender’s analysis of current market Agency and announced through a removing paragraph (d)(9). conditions and comparable properties in Notice in the Federal Register, be set- the project’s market area; aside prior to closing the construction § 3565.106 [Amended] (3) Documentation that either: loan. This lease-up reserve is an 6. Section 3565.106 is amended by (i) The project has attained a additional amount, over and above the removing the word ‘‘combination.’’ minimum level of acceptable occupancy required initial operating and of 90% for 90 continuous days within maintenance contribution. The Subpart G—Processing Requirements the 120-day period immediately maximum guarantee of construction 7. Section 3565.303 is amended by preceding the issuance of the permanent advances will not at any time exceed the revising paragraphs (c) and (d) to read guarantee, or lesser of 90 percent [or the percent as follows: (ii) Additional funds, supplementing established by the Agency and the funds required under announced through a Notice in the § 3565.303 Issuance of loan guarantee. § 3565.303(d)(1) have been added to the Federal Register] of the amount of * * * * * lease-up reserve in an amount the

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Agency determines is necessary to cover DEPARTMENT OF TRANSPORTATION For service information identified in projected shortfalls. this proposed AD, contact Airbus SAS— (4) An appraisal of the project as built. Federal Aviation Administration Airworthiness Office—EAL, 1 Rond Upon a lender’s written request, the Point Maurice Bellonte, 31707 Blagnac Agency may exempt a project from this 14 CFR Part 39 Cedex, France; telephone +33 5 61 93 36 requirement if requested by the lender [Docket No. FAA–2009–1212; Directorate 96; fax +33 5 61 93 45 80, e-mail and the project meets the following Identifier 2008–NM–167–AD] [email protected]; criteria: Internet http://www.airbus.com. You RIN 2120–AA64 (i) Original appraisal—an original may review copies of the referenced appraisal that meets Agency’s appraisal Airworthiness Directives; Airbus Model service information at the FAA, requirements with a valuation date no A330–200 and –300 Series Airplanes Transport Airplane Directorate, 1601 older than 36 months; and A340–200, –300, –500, and –600 Lind Avenue, SW., Renton, Washington. (ii) Valuation—the appraisal’s lowest Series Airplanes For information on the availability of valuation regardless of valuation this material at the FAA, call 425–227– approach and rent restrictions AGENCY: Federal Aviation 1221 or 425–227–1152. considered, is greater than the section Administration (FAA), DOT. Examining the AD Docket 538 guaranteed loan amount; and ACTION: Notice of proposed rulemaking (NPRM). You may examine the AD docket on (iii) Guaranteed loan balance—the the Internet at http:// Agency’s guaranteed loan’s principal SUMMARY: We propose to adopt a new www.regulations.gov; or in person at the balance does not exceed 50 percent airworthiness directive (AD) for the Docket Operations office between 9 a.m. [unless a different percent has been products listed above that would and 5 p.m., Monday through Friday, announced in a Notice published in the supersede an existing AD. This except Federal holidays. The AD docket Federal Register] of the project’s total proposed AD results from mandatory contains this proposed AD, the development costs. continuing airworthiness information regulatory evaluation, any comments (5) A certificate of substantial (MCAI) originated by an aviation received, and other information. The completion; authority of another country to identify street address for the Docket Operations (6) A certificate of occupancy or and correct an unsafe condition on an office (telephone (800) 647–5527) is in similar evidence of local approval; aviation product. The MCAI describes the ADDRESSES section. Comments will (7) A final inspection conducted by a the unsafe condition as: The revision 00 be available in the AD docket shortly qualified Agency representative; of the AIRBUS A330 ALS after receipt. (8) A final cost certification in a form [Airworthiness Limitations Section] Part FOR FURTHER INFORMATION CONTACT: acceptable to the Agency; 3 was issued primarily to introduce two Vladimir Ulyanov, Aerospace Engineer, (9) A submission to the Agency of the new CMR [Certification Maintenance International Branch, ANM–116, complete closing docket; Requirements] tasks, referenced Transport Airplane Directorate, FAA, (10) A certification by the lender that 282400–G0001–1–C and 282400– 1601 Lind Avenue, SW., Renton, the project has reached an acceptable P0001–1–C. ALS Part 3 Revision 01 Washington 98057–3356; telephone minimum level occupancy; introduces more restrictive (425) 227–1138; fax (425) 227–1149. (11) An executed regulatory requirements for aircraft configurations SUPPLEMENTARY INFORMATION: agreement; already in service. The unsafe condition Comments Invited (12) The Lender certifies that it has is safety-significant latent failures that approved the borrower’s management would, in combination with one or more We invite you to send any written plan and assures that the borrower is in other specific failures or events, result relevant data, views, or arguments about compliance with Agency standards in a hazardous or catastrophic failure this proposed AD. Send your comments regarding property management, condition. The proposed AD would to an address listed under the contained in subparts E and F of this require actions that are intended to ADDRESSES section. Include ‘‘Docket No. part; address the unsafe condition described FAA–2009–1212; Directorate Identifier in the MCAI. (13) Necessary information to 2008–NM–167–AD’’ at the beginning of complete an updated necessary DATES: We must receive comments on your comments. We specifically invite assistance review by the Agency; and this proposed AD by March 15, 2010. comments on the overall regulatory, (14) Compliance with all conditions ADDRESSES: You may send comments by economic, environmental, and energy any of the following methods: aspects of this proposed AD. We will contained in the conditional • commitment for guarantee. Federal eRulemaking Portal: Go to consider all comments received by the http://www.regulations.gov. Follow the closing date and may amend this * * * * * instructions for submitting comments. proposed AD based on those comments. • Fax: (202) 493–2251. We have lengthened the 30-day Subpart J—Assignment, Conveyance, • and Claims Mail: U.S. Department of comment period for proposed ADs that Transportation, Docket Operations, M– address MCAI originated by aviation § 3565.457 [Amended] 30, West Building Ground Floor, Room authorities of other countries to provide 8. Section 3565.457 is amended in W12–140, 1200 New Jersey Avenue, SE., adequate time for interested parties to paragraph (c)(1) by revising the word Washington, DC 20590. submit comments. The comment period • ‘‘collectibility’’ to read ‘‘collectability.’’ Hand Delivery: U.S. Department of for these proposed ADs is now typically Transportation, Docket Operations, M– 45 days, which is consistent with the Dated: January 21, 2010. 30, West Building Ground Floor, Room comment period for domestic transport Tammye Trevin˘ o W12–40, 1200 New Jersey Avenue, SE., ADs. Administrator, Rural Housing Service. Washington, DC, between 9 a.m. and 5 We will post all comments we [FR Doc. 2010–1792 Filed 1–28–10; 8:45 am] p.m., Monday through Friday, except receive, without change, to http:// BILLING CODE 3410–XV–P Federal holidays. www.regulations.gov, including any

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personal information you provide. We FAA’s Determination and Requirements Part A, Subpart III, Section 44701: will also post a report summarizing each of This Proposed AD General requirements.’’ Under that substantive verbal contact we receive This product has been approved by section, Congress charges the FAA with about this proposed AD. the aviation authority of another promoting safe flight of civil aircraft in air commerce by prescribing regulations Discussion country, and is approved for operation in the United States. Pursuant to our for practices, methods, and procedures On February 22, 2007, we issued AD bilateral agreement with the State of the Administrator finds necessary for 2007–05–08, Amendment 39–14969 (72 Design Authority, we have been notified safety in air commerce. This regulation FR 9658, March 5, 2007). That AD of the unsafe condition described in the is within the scope of that authority required actions intended to address an MCAI and service information because it addresses an unsafe condition unsafe condition on the products listed referenced above. We are proposing this that is likely to exist or develop on above. AD because we evaluated all pertinent products identified in this rulemaking action. Since we issued AD 2007–05–08, the information and determined an unsafe European Aviation Safety Agency condition exists and is likely to exist or Regulatory Findings (EASA), which is the Technical Agent develop on other products of the same We determined that this proposed AD for the Member States of the European type design. would not have federalism implications Community, has issued EASA Differences Between This AD and the under Executive Order 13132. This Airworthiness Directive 2008–0138, MCAI or Service Information proposed AD would not have a dated July 23, 2008 (referred to after this We have reviewed the MCAI and substantial direct effect on the States, on as ‘‘the MCAI’’), to correct an unsafe related service information and, in the relationship between the national condition for the specified products. general, agree with their substance. But Government and the States, or on the The MCAI states: we might have found it necessary to use distribution of power and The Certification Maintenance different words from those in the MCAI responsibilities among the various Requirements (CMR) were given in the to ensure the AD is clear for U.S. levels of government. AIRBUS A330 CMR Document up to revision operators and is enforceable. In making For the reasons discussed above, I 19, and referenced in the Airworthiness these changes, we do not intend to differ certify this proposed regulation: Limitations Section (ALS) Part 3 Revision 00. substantively from the information 1. Is not a ‘‘significant regulatory The content of the CMR Document has been provided in the MCAI and related action’’ under Executive Order 12866; recently transferred into the ALS Part 3, service information. which is approved by the European Aviation We might also have proposed 2. Is not a ‘‘significant rule’’ under the Safety Agency (EASA). different actions in this AD from those DOT Regulatory Policies and Procedures The revision 00 of the AIRBUS A330 ALS (44 FR 11034, February 26, 1979); and Part 3 was issued primarily to introduce two in the MCAI in order to follow FAA new CMR tasks, referenced 282400–G0001– policies. Any such differences are 3. Will not have a significant 1–C and 282400–P0001–1–C. The highlighted in a Note within the economic impact, positive or negative, compliance times associated to these two proposed AD. on a substantial number of small entities under the criteria of the Regulatory tasks are re-stated in the Record Of Revisions Costs of Compliance (ROR) of the ALS Part 3 Revision 01. Flexibility Act. ALS Part 3 Revision 01 introduces more Based on the service information, we We prepared a regulatory evaluation restrictive requirements for aircraft estimate that this proposed AD would of the estimated costs to comply with configurations already in service. affect about 43 products of U.S. registry. this proposed AD and placed it in the EASA AD 2006–0224 [which corresponds The actions that are required by AD AD docket. to FAA AD 2007–05–08 and includes Model 2007–05–08 and retained in this A340 airplanes], mandating compliance with proposed AD take about 1 work-hour List of Subjects in 14 CFR Part 39 the requirements of the A330 CMR Document per product, at an average labor rate of Air transportation, Aircraft, Aviation at issue 19, is therefore superseded by this $80 per work hour. Based on these safety, Incorporation by reference, AD. figures, the estimated cost of the Safety. The unsafe condition is safety- currently required actions is $80 per significant latent failures that would, in product. The Proposed Amendment We estimate that it would take about combination with one or more other 1 work-hour per product to comply with Accordingly, under the authority specific failures or events, result in a the new basic requirements of this delegated to me by the Administrator, hazardous or catastrophic failure proposed AD. The average labor rate is the FAA proposes to amend 14 CFR part condition. The required actions also $80 per work-hour. Based on these 39 as follows: include deleting Airbus A330 CMR Task figures, we estimate the cost of the 272400–00001–1–C and adding new PART 39—AIRWORTHINESS proposed AD on U.S. operators to be Task 272400–00003–1–C. You may DIRECTIVES $3,440, or $80 per product. obtain further information by examining the MCAI in the AD docket. Authority for This Rulemaking 1. The authority citation for part 39 continues to read as follows: Relevant Service Information Title 49 of the United States Code specifies the FAA’s authority to issue Authority: 49 U.S.C. 106(g), 40113, 44701. Airbus has issued Airbus A330 ALS rules on aviation safety. Subtitle I, § 39.13 [Amended] Part 3—Certification Maintenance section 106, describes the authority of Requirements (CMR), Revision 01, the FAA Administrator. ‘‘Subtitle VII: 2. The FAA amends § 39.13 by including Appendices 1 and 2, dated Aviation Programs,’’ describes in more removing Amendment 39–14969 (72 FR May 7, 2008. The actions described in detail the scope of the Agency’s 9658, March 5, 2007) and adding the this service information are intended to authority. following new AD: correct the unsafe condition identified We are issuing this rulemaking under Airbus: Docket No. FAA–2009–1212; in the MCAI. the authority described in ‘‘Subtitle VII, Directorate Identifier 2008–NM–167–AD.

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Comments Due Date for this determination in Advisory Circular Limitations Section (ALS), Part 3— (a) We must receive comments by March (AC) 25–1529–1. Certification Maintenance Requirements 15, 2010. (CMR), Revision 01, dated May 7, 2008, Restatement of Requirements of AD 2007– except as provided by paragraphs (g)(1), Affected ADs 05–08 (g)(2), (g)(3), and (g)(4) of this AD. Doing this (b) The proposed AD supersedes AD 2007– Revise the Airworthiness Limitations revision terminates the requirements of 05–08, Amendment 39–14969. Section of the Instructions for Continued paragraph (f) of this AD for that airplane Airworthiness only. Applicability (1) The associated interval for any new task (f) Unless already done: Within 90 days is to be counted from the effective date of this (c) This AD applies to all Airbus Model after April 9, 2007 (the effective date of AD AD. A330–201, –202, –203, –223, –243, –301, 2007–05–08), revise the Airworthiness (2) The associated interval for any revised –302, –303, –321, –322, –323, –341, –342, Limitations section of the Instructions for task is to be counted from the previous and –343 series airplanes; Model A340–211, Continued Airworthiness by incorporating –212, –213, –311, –312, –313 series airplanes; Airbus A330 Certification Maintenance performance of the task. and Model A340–541, and –642 series Requirements, Document 955.2074/93, Issue (3) Delete the Airbus A330 CMR Task airplanes, certificated in any category; all 19, dated March 22, 2006 (for all Model A330 272400–00001–1–C ‘‘Remove Rudder Servo serial numbers. airplanes); or Airbus A340 Certification Controls for Workshop Check of Internal Seals.’’ Subject Maintenance Requirements, Document 955.3019/92, Issue 14, dated December 19, (4) Add the new Airbus A330 CMR Task (d) Air Transport Association (ATA) of 2005 (for all Model A340 airplanes). 272400–00003–1–C ‘‘Functional Check of America Code 05. Accomplish the actions specified in the Rudder Individual Servo Controls.’’ This task must be accomplished before the airplane Reason applicable CMR at the times specified in the applicable CMR and in accordance with the accumulates 50,000 total flight hours, or (e) The mandatory continuing applicable CMR, except as provided by within 90 days after the effective date of this airworthiness information (MCAI) states: paragraphs (f)(1), (f)(2), (f)(3), and (f)(4) of AD, whichever occurs later. The Certification Maintenance this AD. FAA AD Differences Requirements (CMR) were given in the (1) The associated interval for any new task AIRBUS A330 CMR Document up to revision is to be counted from April 9, 2007. Note 2: This AD differs from the MCAI 19, and referenced in the Airworthiness (2) The associated interval for any revised and/or service information as follows: No Limitations Section (ALS) Part 3 Revision 00. task is to be counted from the previous differences. The content of the CMR Document has been performance of the task. recently transferred into the ALS Part 3, (3) For Model A340 airplanes that have Other FAA AD Provisions which is approved by the European Aviation exceeded the more restrictive limitations of (h) The following provisions also apply to Safety Agency (EASA). Airbus A340 Certification Maintenance this AD: The revision 00 of the AIRBUS A330 ALS Requirements, Document 955.3019/92, Issue (1) Alternative Methods of Compliance Part 3 was issued primarily to introduce two 14, Maintenance Significant Items (MSI) (AMOCs): The Manager, International new CMR tasks, referenced 282400–G0001– 21.28.00 and 21.43.00: Do the task within Branch, ANM–116, Transport Airplane 1–C and 282400–P0001–1–C. The 2,500 flight hours after the previous Directorate, FAA, has the authority to compliance times associated to these two accomplishment. Repeat the task thereafter at approve AMOCs for this AD, if requested tasks are re-stated in the Record of Revisions the applicable interval in the Airbus A340 using the procedures found in 14 CFR 39.19. (ROR) of the ALS Part 3 Revision 01. Certification Maintenance Requirements, Send information to ATTN: Vladimir ALS Part 3 Revision 01 introduces more Document 955.3019/92, Issue 14. Ulyanov, Aerospace Engineer, International restrictive requirements for aircraft (4) For Model A340 airplanes that have Branch, ANM–116, Transport Airplane configurations already in service. accumulated more than 2,700 flight hours Directorate, FAA, 1601 Lind Avenue, SW., EASA AD 2006–0224 [which corresponds since the last maintenance done in Renton, Washington 98057–3356; telephone to FAA AD 2007–05–08 and includes Model accordance with Airbus A340 Certification (425) 227–1138; fax (425) 227–1149. Before A340 airplanes], mandating compliance with Maintenance Requirements, Document using any approved AMOC on any airplane the requirements of the A330 CMR Document 955.3019/92, Issue 14, MSI 28.24.00: Do the to which the AMOC applies, notify your at issue 19, is therefore superseded by this next task within 800 flight hours after April principal maintenance inspector (PMI) or AD. 9, 2007. Repeat the task thereafter at the principal avionics inspector (PAI), as The unsafe condition is safety-significant applicable interval in the Airbus A340 appropriate, or lacking a principal inspector, latent failures that would, in combination Certification Maintenance Requirements, your local Flight Standards District Office. Document 955.3019/92, Issue 14. with one or more other specific failures or The AMOC approval letter must specifically events, result in a hazardous or catastrophic New Requirements of This AD reference this AD. AMOCs approved failure condition. The required actions also previously in accordance with AD 2007–05– include deleting Airbus A330 CMR Task Actions and Compliance 08, Amendment 39–14969, are approved as 272400–00001–1–C and adding new Task (g) Unless already done, for Airbus Model AMOCs for the corresponding requirements 272400–00003–1–C. A330–201, –202, –203, –223, –243, –301, of this AD. Note 1: This AD requires revisions to –302, –303, –321, –322, –323, –341, –342, (2) Airworthy Product: For any requirement certain operator maintenance documents to and –343 series airplanes: Within 90 days of in this AD to obtain corrective actions from include new inspections. Compliance with the effective date of this AD, revise the a manufacturer or other source, use these these inspections is required by 14 CFR Airworthiness Limitations section (ALS) of actions if they are FAA-approved. Corrective 91.403(c). For airplanes that have been the Instructions for Continued Airworthiness actions are considered FAA-approved if they previously modified, altered, or repaired in by incorporating Airbus A330 ALS, Part 3— are approved by the State of Design Authority the areas addressed by these inspections, the Certification Maintenance Requirements (or their delegated agent). You are required operator may not be able to accomplish the (CMR), Revision 01, dated May 7, 2008. to assure the product is airworthy before it inspections described in the revisions. In this Accomplish the actions specified in Airbus is returned to service. situation, to comply with 14 CFR 91.403(c), A330 Airworthiness Limitations Section (3) Reporting Requirements: For any the operator must request approval for an (ALS), Part 3—Certification Maintenance reporting requirement in this AD, under the alternative method of compliance according Requirements (CMR), Revision 01, dated May provisions of the Paperwork Reduction Act to paragraph (h) of this AD. The request 7, 2008, at the times specified in the Airbus (44 U.S.C. 3501 et seq.), the Office of should include a description of changes to A330 ALS—Part 3—Certification Management and Budget (OMB) has the required inspections that will ensure the Maintenance Requirements (CMR), Revision approved the information collection continued damage tolerance of the affected 01, dated May 7, 2008, and in accordance requirements and has assigned OMB Control structure. The FAA has provided guidance with the Airbus A330 Airworthiness Number 2120–0056.

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Related Information Paper Comments of returning capital to shareholders.2 Issuer repurchases also provide (i) Refer to EASA Airworthiness Directives • 2006–0224, dated July 27, 2006, and 2008– Send paper comments in triplicate liquidity in the marketplace, which 0138, dated July 23, 2008; Airbus A330 to Elizabeth M. Murphy, Secretary, benefits shareholders.3 Certification Maintenance Requirements, Securities and Exchange Commission, At the same time, an issuer has a Document 955.2074/93, Issue 19, dated 100 F Street, NE., Washington, DC strong interest in the market March 22, 2006; Airbus A340 Certification 20549–1090. performance of its securities. Among Maintenance Requirements, Document All submissions should refer to File other things, an issuer’s securities may 955.3019/92, Issue 14, dated December 19, be the consideration in an acquisition, 2005; and Airbus A330 ALS, Part 3— Number S7–04–10. This file number or serve as collateral for financing. Since Certification Maintenance Requirements should be included on the subject line the market price determines the price of (CMR), including Appendices 1 and 2, if e-mail is used. To help us process and offerings of additional securities, an Revision 01, dated May 7, 2008; for related review your comments more efficiently, issuer may have an incentive to information. please use only one method. The manipulate the price of its securities.4 Issued in Renton, Washington, on January Commission will post all comments on One way that an issuer can positively 22, 2010. the Commission’s Internet Web site Ali Bahrami, affect the price of its securities is to (http://www.sec.gov/rules/ purchase the securities in the open Manager, Transport Airplane Directorate, proposed.shtml). Comments are also market.5 Because issuer repurchases Aircraft Certification Service. available for public inspection and could affect the market price of an [FR Doc. 2010–1924 Filed 1–28–10; 8:45 am] copying in the Commission’s Public issuer’s stock, an issuer may be exposed BILLING CODE 4910–13–P Reference Room, 100 F Street, NE., to claims that the repurchases were Washington, DC 20549, on official made in a manipulative manner even business days between the hours of 10 when the repurchases were not SECURITIES AND EXCHANGE a.m. and 3 p.m. All comments received intended to move market prices. COMMISSION will be posted without change; we do Rule 10b–18 addresses this concern. not edit personal identifying In 1982, the Commission adopted Rule 17 CFR Part 240 information from submissions. You 10b–18,6 which provides issuers 7 with [Release No. 34–61414; File No. S7–04–10] should submit only information that a safe harbor from liability for you wish to make available publicly. manipulation under Sections 9(a)(2) and RIN 3235–AH37 10(b) of the Exchange Act, and Rule FOR FURTHER INFORMATION CONTACT: Purchases of Certain Equity Securities Josephine Tao, Assistant Director, 10b–5 under the Exchange Act, when they repurchase their common stock in by the Issuer and Others Elizabeth Sandoe, Branch Chief, Joan the market in accordance with the Collopy, Special Counsel, Jeffrey AGENCY: Securities and Exchange Rule’s manner, timing, price, and Dinwoodie, Staff Attorney, Office of Commission. volume conditions.8 Rule 10b–18’s safe Trading Practices and Processing, ACTION: Proposed rule. Division of Trading and Markets, at 2 See Securities Exchange Act Release No. 46980 SUMMARY: The Securities and Exchange (202) 551–5720, at the Securities and (Dec. 10, 2002), 67 FR 77594 (Dec. 18, 2002) (‘‘2002 Commission (‘‘Commission’’ or ‘‘SEC’’) is Exchange Commission, 100 F Street, Proposing Release’’). proposing amendments to Rule 10b–18 NE., Washington, DC 20549–7010. 3 See id. 4 under the Securities Exchange Act of Id. SUPPLEMENTARY INFORMATION: The 5 Id. ‘‘ ’’ 1934 ( Exchange Act ), which provides Commission is requesting public 6 1982 Adopting Release, 47 FR 53333. Since issuers with a ‘‘safe harbor’’ from comment on proposed amendments to 1967, the Commission has considered on several liability for manipulation when they Rule 10b–18 (the safe harbor rule for occasions the issue of whether to regulate an repurchase their common stock in the issuer’s market purchases of its own securities. The issuer repurchases) [17 CFR 240.10b–18] Commission first proposed Rule 10b–10 to govern market in accordance with the Rule’s under the Exchange Act. issuer repurchases in connection with proposed manner, timing, price, and volume legislation that became the Williams Act conditions. The proposed amendments I. Introduction Amendments of 1968. Public Law 90–439, 82 Stat. are intended to clarify and modernize 454 (July 29, 1968), reprinted in Hearings on S. 510 the safe harbor provisions in light of Issuers repurchase their securities for before Senate Committee on Banking and Currency, many legitimate business reasons. For 90th Cong., 1st Sess. 214–216 (1967). The market developments since Rule 10b– Commission then published for public comment 18’s adoption in 1982. example, issuers may repurchase their proposed Rule 13e–2 in 1970, 1973, and 1980. Rule stock in order to have shares available DATES: Comments should be received on 13e–2, which was later withdrawn with the for dividend reinvestment, stock option adoption of Rule 10b–18, would have been a or before March 1, 2010. and employee stock ownership plans, or prescriptive rule with mandatory disclosure requirements, substantive purchasing limitations, ADDRESSES: Comments may be to reduce the outstanding capital stock submitted by any of the following and general anti-fraud liability. Securities Exchange following the cash sale of operating Act Release Nos. 8930 (July 13, 1970), 35 FR 11410 methods: divisions or subsidiaries.1 Issuers may (July 16, 1970); 10539 (Dec. 6, 1973), 38 FR 34341 believe that a repurchase program is (Dec. 13, 1973); and 17222 (Oct. 17, 1980), 45 FR Electronic Comments 70890 (Oct. 27, 1980) (‘‘1980 Proposing Release’’). preferable to paying dividends as a way • Use the Commission’s Internet 7 The safe harbor is also available for ‘‘affiliated comment form (http://www.sec.gov/ purchasers’’ of the issuer. In this Release, the term rules/proposed.shtml); or 1 Securities Exchange Act Release No. 19244 ‘‘issuer’’ includes affiliated purchasers. See 17 CFR • (Nov. 17, 1982), 47 FR 53333, 53334 (Nov. 26, 1982) 240.10b–18(a)(3), (a)(13) and (b). Send an e-mail to rule- (‘‘1982 Adopting Release’’). See also Gustavo 8 In other words, an issuer will not be deemed to [email protected]. Please include File Grullon and David L. Ikenberry, ‘‘What Do We have violated Sections 9(a)(2) and 10(b) of the Number S7–04–10 on the subject line; Know About Stock Repurchases?,’’ 13 Journal of Exchange Act or Rule 10b–5 under the Exchange or Applied Corporate Finance, pp. 31–51 (2000) Act, solely by reason of the timing, price, volume, • (noting issuers repurchase their stock for several or manner of its repurchases, if the repurchases are Use the Federal eRulemaking Portal reasons, including to convey management’s made within the limitations of the rule. However, (http://www.regulations.gov). Follow the expectation of future increases in earnings and cash some repurchase activity that meets the safe harbor instructions for submitting comments. flow). Continued

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harbor conditions are designed to repurchases using alternative trading price condition would provide issuers minimize the market impact of the strategies or pricing mechanisms, such with greater flexibility to conduct their issuer’s repurchases, thereby allowing as repurchases effected on a volume- issuer repurchase programs within the the market to establish a security’s price weighted average price (‘‘VWAP’’) basis safe harbor under conditions designed based on independent market forces (i.e., where a security’s price is generally to reduce the potential for abuse. Our without undue influence by the issuer.9 derived from adding up the dollar proposal to limit the general The safe harbor conditions are amounts traded for each transaction in disqualification provision would also intended to offer issuers guidance when the security (price multiplied by shares provide issuers with additional repurchasing their common stock in the traded) and then dividing by the total flexibility to conduct their share open market. Rule 10b–18, however, is number of shares traded for the day), repurchase programs in fast moving not the exclusive means of making non- has increased significantly. However, markets. At the same time, our manipulative issuer repurchases.10 As because such transactions may be priced proposals to modify the timing the Rule states, there is no presumption without reference to the quoted price of condition and the ‘‘merger exclusion’’ that an issuer’s bids or purchases the stock at the time of execution and, provision 17 under the Rule are intended outside of the safe harbor violate thus, possibly above Rule 10b–18’s to maintain reasonable limits on the safe Sections 9(a)(2) or 10(b) of the Exchange current price limitation, many issuers harbor consistent with the objectives of Act, or Rule 10b–5 under the Exchange that repurchase their shares using such the Rule to minimize the market impact Act.11 Given the widely varying market trading strategies must forego the of the issuer’s repurchases, thereby characteristics for the stock of different protections of the safe harbor for such allowing the market to establish a issuers, it is possible for issuer purchases. security’s price based on independent repurchases to be made outside of the In connection with the 2003 market forces without undue influence safe harbor conditions and not be amendments to Rule 10b–18,13 the by the issuer, and to promote safe manipulative.12 Commission sought comment as to harbor availability only during normal Since Rule 10b–18’s adoption in 1982, whether Rule 10b–18’s price condition market conditions for an issuer.18 there have been significant market should apply where the issuer has no control, directly or indirectly, over the II. Overview of Current Rule 10b–18 changes with respect to trading Conditions strategies and developments in price at which a Rule 10b–18 purchase automated trading systems and will be effected, for example, ‘‘passive’’ Rule 10b–18 provides a safe harbor for technology that have increased the or independently-derived pricing, such an issuer’s purchases of shares of its speed of trading and changed the profile as the VWAP.14 While the Commission common stock on a given day. To come of how issuer repurchases are effected. did not adopt an exception for VWAP within the safe harbor for that day, an We understand that the increased speed transactions at that time, it stated that it issuer must satisfy the Rule’s manner, of today’s market activity, as evidenced would take into account commenters’ timing, price, and volume conditions by flickering quotes, has made it recommendations, as well as current when purchasing its own common stock 19 increasingly difficult for issuers to market practices involving VWAP in the market. The current Rule ensure that every purchase of its transactions, in considering whether provides that failure to meet any one of common stock during the day will meet any future changes to Rule 10b–18 were the four conditions removes (or appropriate.15 Since that time, we disqualifies) all of an issuer’s purchases the Rule’s current price condition. As 20 discussed below, currently, failure to understand from the industry that from the safe harbor for that day. meet any one of the four conditions VWAP has become one of the most A. Manner of Purchase Condition under the Rule with respect to any of widely recognized and accepted pricing 16 The manner of purchase condition the issuer’s repurchases during the day mechanisms and trading benchmarks. Based on our experience with the requires an issuer to use a single broker will disqualify all of the issuer’s other or dealer per day to bid for or purchase Rule 10b–18 purchases from the safe operation of Rule 10b–18 and to respond to these market developments, its common stock.21 This requirement is harbor for that day. Moreover, the intended to avoid the appearance of opportunity for issuers to effect we propose to revise Rule 10b–18 as described below. The proposed widespread trading in a security that amendments are intended to clarify and could result if an issuer used many conditions may still violate the anti-fraud brokers or dealers to repurchase its provisions of the Exchange Act. For example, as the modernize the safe harbor provisions. In 22 Commission noted in 1982 when adopting Rule particular, our proposal to modify the stock. The ‘‘single broker or dealer’’ 10b–18, ‘‘Rule 10b–18 confers no immunity from condition, however, applies only to possible Rule 10b–5 liability where the issuer 13 See 2003 Adopting Release, 68 FR 64952. Rule 10b–18 purchases that are engages in repurchases while in possession of 14 See 2002 Proposing Release, 67 FR at 77594. ‘‘solicited’’ by or on behalf of an issuer.23 favorable, material nonpublic information 15 concerning its securities.’’ 1982 Adopting Release, See id., 67 FR at 77599. See also Comment 47 FR at 53334. See also Securities Exchange Act letters from William A. Lupien, Director, and 17 See 17 CFR 240.10b–18(a)(13)(iv). As discussed Release No. 48766 (Nov. 10, 2003), 68 FR 64952 William W. Uchimoto, Executive Vice President below, the ‘‘merger exclusion’’ precludes issuer (Nov. 17, 2003) at n. 5 (‘‘2003 Adopting Release’’). and General Counsel, Vie Financial Group, Inc., repurchases effected during the period from the 9 dated June 26, 2003, and William W. Uchimoto, time of public announcement of a merger, See, e.g., 2003 Adopting Release, 68 FR at Executive Vice President and General Counsel, Vie 64953. acquisition, or similar transaction involving a Financial Group, Inc., dated Mar. 3, 2003 recapitalization, until the earlier of the completion 10 See 1982 Adopting Release, 47 FR at 53334. (suggesting that the Commission provide an 11 of such transaction or the completion of the vote by See 17 CFR 240.10b–18(d). The safe harbor is exception from the Rule’s pricing condition for the target shareholders, including any period where available for repurchases of an issuer’s common issuers’ VWAP transactions that meet certain the market price of a security will be a factor in stock (or an equivalent interest including a unit of specific VWAP calculation standards) (‘‘Uchimoto determining the consideration to be paid pursuant beneficial interest in a trust or a limited partnership Letter’’). to a merger, acquisition, or similar transaction. See or a depository share). See 17 CFR 240.10b– 16 See, e.g., Uchimoto Letter (noting that VWAP also 2003 Adopting Release, 68 FR at 64955. 18(a)(13). See also 2003 Adopting Release, 68 FR at is the most widely recognized and accepted trading 18 See 2003 Adopting Release, 68 FR at 64953. 64954. However, the safe harbor is not intended to benchmark). See also Securities Exchange Act 19 define the appropriate limits to be observed by 17 CFR 240.10b–18(b)(1)–(4). Release No. 54003 (June 16, 2006), 71 FR 36141, 20 those persons not covered by the safe harbor nor the 36142 (SR–NASD–2006–056) (noting that VWAP is See Preliminary Note 1 to 17 CFR 240.10b–18. appropriate limits to be observed when a benchmark often used by institutional investors 21 17 CFR 240.10b–18(b)(1). repurchasing securities other than common stock. to determine whether they received a good price for 22 See 1980 Proposing Release, 45 FR at 70891. 12 See 1982 Adopting Release, 47 FR at 53334. a large trade). 23 17 CFR 240.10b–18(b)(1)(i).

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Accordingly, an issuer may purchase purchases under the safe harbor for that limitation for that day.38 The ‘‘one block shares from more than one broker-dealer day.29 per week’’ exception to the volume if the issuer does not solicit the condition is intended to provide issuers C. Price Condition transactions. An issuer must evaluate with moderate or low ADTV greater whether a transaction is ‘‘solicited’’ The Rule’s price condition specifies flexibility in carrying out their based on the facts and circumstances of the highest price an issuer may bid or repurchase programs.39 24 30 each case. pay for its common stock. The price III. Proposed Amendments to condition is intended to prevent an B. Timing Condition Rule 10b–18 issuer from leading the market for the In this release, we are proposing The timing condition restricts the security through its repurchases by revisions to the safe harbor rule. In periods during which an issuer may bid limiting the issuer to bidding for or particular, we propose to: for or purchase its common stock.25 buying its security at a purchase price • Modify the timing condition to Market activity at the open and close of that is no higher than the highest preclude Rule 10b–18 purchases as the trading is considered to be a significant independent bid or last independent opening purchase in the principal indicator of the direction of trading, the transaction price, whichever is higher, market for the security and in the strength of demand, and the current quoted or reported in the consolidated 26 system.31 As such, the price condition market where the purchase is effected market value of the security. (in addition to the current prohibition Accordingly, the timing condition uses an independent reference price that has not been set by an issuer.32 against effecting Rule 10b–18 purchases precludes an issuer from being the as the opening purchase reported in the For those securities that are not opening (regular way) purchase reported consolidated system); 27 quoted or reported in the consolidated in the consolidated system. The • Relax the price condition for certain system, the issuer must look to the timing condition also excludes from the VWAP transactions; safe harbor purchases effected during highest independent bid or the last • Limit the disqualification provision the last half hour (or during the last ten independent transaction price, in fast moving markets under certain minutes for actively-traded securities) whichever is higher, that is displayed specific conditions; before the scheduled close of the and disseminated on any national • Modify the ‘‘merger exclusion’’ primary trading session in the principal securities exchange or on any inter- provision to extend the time in which market for the security and in the dealer quotation system, as defined in the safe harbor is unavailable in 28 market where the purchase is effected. Exchange Act Rule 15c2–11(e)(2), that connection with an acquisition by a Rule 10b–18’s limitation on bids and displays at least two independent priced 33 special purpose acquisition company purchases near the close of trading for quotations for the security. For all (‘‘SPAC’’); and purposes of qualifying for the safe other securities, the issuer must look to • Update certain definitional harbor is to prevent the issuer from the highest independent bid obtained 34 provisions consistent with the current creating or sustaining a high bid or from three independent dealers. Rule. transaction price at or near the close of D. Volume Condition We solicit any comment on our trading. Where there is no independent approach and the specific proposals. We opening transaction on a given day, an The volume condition limits the also encourage commenters to present issuer is precluded from making amount of securities an issuer may data in support of their positions. repurchase in the market in a single 24 Although Rule 10b–18 does not define day.35 The volume condition is A. Discussion of Amendments to the ‘‘solicitation,’’ the issuer’s disclosure and designed to prevent an issuer from Purchasing Conditions announcement of a repurchase program would not dominating the market for its securities necessarily cause a subsequent purchase to be 1. Time of Purchases through substantial purchasing deemed ‘‘solicited’’ by or on behalf of an issuer. See We propose to modify Rule 10b–18’s 1982 Adopting Release, 47 FR at 53337. activity.36 An issuer dominating the 25 17 CFR 240.10b–18(b)(2). market for its securities in this way can timing condition to preclude Rule 10b– 26 2003 Adopting Release, 68 FR 64953. mislead investors about the integrity of 18 purchases as the opening purchase in 27 17 CFR 240.10b–18(b)(2)(i). For purposes of the securities market as an independent the principal market for the security and Rule 10b–18’s timing and price conditions, Rule pricing mechanism. Under the current in the market where the purchase is 10b–18(a)(6) defines ‘‘consolidated system’’ to mean effected.40 Currently, to qualify for the ‘‘a consolidated transaction or quotation reporting volume condition, an issuer may effect system that collects and publicly disseminates on daily purchases in an amount up to 25 safe harbor, an issuer’s purchase may a current and continuous basis transaction or percent of the ADTV in its shares, as not be the opening regular way purchase 41 quotation information in common equity securities ‘‘ reported in the consolidated system. pursuant to an effective transaction reporting plan calculated under the Rule (the 25% 37 Under the current rule, an issuer’s or an effective national market system plan (as volume limitation’’). Alternatively, those terms are defined in § 242.600).’’ once each week an issuer may purchase purchase, however, may be the opening 28 17 CFR 240.10b–18(b)(2). Reliance on the safe one block of its common stock in lieu purchase in the principal market for its harbor under Rule 10b–18 is precluded if a of purchasing under the 25% volume security and the opening purchase in purchase is effected during the 10 minutes before the market where the purchase is the scheduled close of the primary trading session in the principal market for the security, and the 10 29 See 2003 Adopting Release, 68 FR at 64954. 38 See 17 CFR 240.10b–18(a)(5) (defining ‘‘block’’). minutes before the scheduled close of the primary 30 17 CFR 240.10b–18(b)(3). However, shares purchased by the issuer relying on trading session in the market where the purchase 31 See 2003 Adopting Release, 68 FR at 64954. the ‘‘one block per week’’ exception may not be is effected, for a security that has an average daily 32 17 CFR 240.10b–18(b)(3). trading volume (‘‘ADTV’’) value of $1 million or included when calculating a security’s four-week 33 17 CFR 10b–18(b)(3)(ii). more and a public float value of $150 million or ADTV under the Rule. See 2003 Adopting Release, 34 more; and purchases during the 30 minutes before 17 CFR 240.10b–18(b)(3)(iii). 68 FR at 64960; 17 CFR 240.10b–18(b)(4)(ii). the scheduled close of the primary trading session 35 17 CFR 240.10b–18(b)(4). 39 See 2003 Adopting Release, 68 FR at 64960. in the principal market for the security, and the 30 36 See 2003 Adopting Release, 68 FR at 64954. 40 The proposed amendment would continue to minutes before the scheduled close of the primary 37 17 CFR 240.10b–18(a)(1) (defining ADTV for limit an issuer from effecting a Rule 10b–18 trading session in the market where the purchase purposes of the safe harbor). See also supra note 28 purchase as the opening purchase reported in the is effected, for all other securities. 17 CFR 240.10b– (noting that ‘‘ADTV’’ means a security’s average consolidated system. 18(b)(2)(ii) and (b)(2)(iii). daily trading volume). 41 See 17 CFR 240.10b–18(b)(2)(i).

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effected, provided there is already an Moreover, because the principal Q. Is the proposed opening purchase opening purchase reported in the market’s official opening price has limitation appropriate? If not, why not? consolidated system that day.42 become a widely-recognized benchmark Are there other aspects of the limitation However, similar to transactions in within the industry, we are concerned that the Commission should consider the principal market for a security at the that this much larger official opening revising? If so, please explain in what end of a trading day,43 the opening transaction in the principal market may way. transaction in the principal market for a be a more significant indicator of the Q. Are there aspects of the Rule’s end security and in the market where the direction of trading, the strength of of the day timing limitation that the repurchase is effected, can be a demand, and the current market value Commission should consider revising? significant indicator of the direction of of a security than the smaller regional If so, please explain in what way. For trading, the strength of demand, and the exchange’s opening purchase reported example, for securities that have an current market value of a security.44 in the consolidated system that day.47 ADTV value of $1 million or more and This is particularly true considering the To address these developments, we a public float value of $150 million or large trading volume that can occur at propose to amend the Rule’s opening more, Rule 10b–18 currently excludes the principal market’s open as the result purchase limitation. Specifically, the from the safe harbor purchases of such of the increased use of electronic proposed amendment would continue securities effected during the 10 opening crosses and opening auctions to to limit an issuer from effecting a Rule minutes (rather than 30 minutes) before establish a security’s official opening 10b–18 purchase as the opening the scheduled close of the primary trading session in the principal market price for the day. However, we purchase reported in the consolidated understand from industry sources that for the security, and the 10 minutes system. However, consistent with the the dissemination of market data from before the scheduled close of the limitations placed on purchases at the these larger opening crosses has led to primary trading session in the market end of the trading day,48 the proposal some confusion as to which opening where the purchase is effected.49 Should would amend paragraph (b)(2)(i) of the transaction Rule 10b–18’s opening eligibility for the current end of the day Rule to also preclude the issuer from purchase limitation applies when there timing limitation, i.e., 10 minutes before being the opening purchase in both the is a delayed opening in the principal the scheduled close of trading, continue principal market for the security and in market for a stock.45 For example, when to be based on a security’s ADTV and the market where the purchase is a small number of an issuer’s shares an issuer’s public float? Should the effected. prints as a regional exchange’s opening current ADTV and public float value transaction in the consolidated system As discussed above, similar to qualifying thresholds be raised to adjust and then immediately thereafter, a transactions at the end of a trading day, for inflation? Are there alternative tests substantially larger number of the the opening transaction in the principal we should consider? For example, issuer’s shares prints in the market for the security and in the should the 10 minutes before the consolidated system as the official market where the repurchase is effected scheduled close of trading limitation be opening transaction in the principal can be a significant indicator of the based on the securities offering reform market for the issuer’s securities, we direction of trading, the strength of standard? 50 Further, does the 10 minute understand that some issuers are unsure demand, and the current market value limitation adequately protect against an as to which transaction is the relevant of a security. Thus, the proposed issuer affecting the closing price of its opening transaction for purposes of Rule modification to the timing condition is security? Please explain. Is a shorter or 10b–18’s opening purchase limitation.46 designed to maintain reasonable limits longer period warranted for an issuer on the safe harbor consistent with the whose security meets the applicable 42 For example, if the principal market has a objectives of the Rule to minimize the ADTV and public float thresholds? If so, delayed opening in the issuer’s stock and, therefore, market impact of the issuer’s please identify what time limitation is not the opening purchase reported in the repurchases, thereby allowing the consolidated system that day, the issuer would be would be appropriate and provide data able to effect a Rule 10b–18 purchase as the opening market to establish a security’s price and a detailed rationale supporting the purchase in the principal market for its security that based on independent market forces suggested alternative, including how it day. without undue influence by the issuer. will promote securities prices based on 43 See supra note 28. The amendment also would allow independent market forces without 44 See, e.g., James Ramage, ‘‘Primary Market Still Guides Open,’’ Traders Magazine (June 2008) issuers to carry out their repurchase undue issuer influence. (‘‘Primary Market’’); Raymond M. Brooks and programs more effectively by providing Q. Currently, repurchases of OTC Jonathan Moulton, ‘‘The Interaction between issuers with guidance in complying Bulletin Board (‘‘OTCBB’’) and Pink Opening Call Auctions and Ongoing Trade: with Rule 10b–18 in the situation Sheet securities do not have an opening Evidence from the NYSE,’’ 13 Review of Financial purchase timing restriction under the Economics, pp. 341–356 (2004); Michael J. Barclay described above where the principal and Terrence Henderschott, ‘‘A Comparison of market has a delayed opening in a stock safe harbor. Should Rule 10b–18’s Trading and Non-trading Mechanisms for Price and another exchange’s smaller opening timing condition be amended to apply Discovery,’’ Journal of Empirical Finance 15, 839– transaction is reported in the to repurchases effected in markets 849 (2008). consolidated system first. In such where there is no official opening of 45 See, e.g., Security Traders Association, ‘‘Special Report: STA’s Perspective on U.S. Market situation, the proposed amendments trading, such as on the OTCBB and Pink Structure,’’ at p. 10 (May 2008) (noting that would require the issuer to wait until Sheets? If so, what opening timing competing venues can open the same stock using both of these opening transactions were limitation should be applied to such different processes and different order flows, which reported in the consolidated system securities? Should such a limitation be can create confusion for investors if the first based on normal market hours or such reported price is different from the primary (rather than just the first transaction) market’s opening price) (‘‘STA Special Report’’). before it could effect a Rule 10b–18 market’s regular hours of operation 46 See, e.g., id. See also NYSE Trader ‘‘Opening purchase within the safe harbor that Trades Update—15 Sept. 2008’’ (noting that day. 49 17 CFR 240.10b–18(b)(2)(ii). different vendors will process trades marked with 50 See Securities Offering Reform, Securities ‘‘OPD’’ (indicating an out-of-sequence, opening Exchange Act Release No. 52056 (July 19, 2005), 70 trade) differently for purposes of their VWAP 47 See, e.g., STA Special Report, supra note 45 at FR 44722, 44731 at n. 88 (Aug. 3, 2005) (setting a calculations) at http://traderupdates.nyse.com/ pp. 10–11. See also Primary Market, supra note 44. public float threshold of $700 million and noting 2008/09/as_previously_reported_the_con.html. 48 See 17 CFR 240.10b–18(b)(2)(ii) and (b)(2)(iii). that those issuers had $52 million ADTV).

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rather than the opening of trading? the Rule 10b–18’s timing condition, the the purpose of creating actual, or Should the current end of the day proposed exception would incorporate apparent, active trading in or otherwise timing limitation be modified in any Regulation M’s standards and methods affecting the price of any security.59 way with respect to OTCBB and Pink of calculating ADTV and public float These conditions are similar to the Sheets securities? If so, how? If not, why value. Under Regulation M, issuers with conditions contained in the exemptive not? Please explain. In what way could a security that has an ADTV value of $1 relief from former Rule 10a–1 granted market activity at the end of the trading million or more and a public float value for VWAP short sale transactions.60 We day be considered a significant indicator of $150 million or more are excluded believe that such conditions would of the direction of trading, the strength from Rule 101 of Regulation M under its similarly work well in restricting the of demand, and the current market ‘‘actively-traded securities’’ exception.54 exemptive relief to situations that value of an OTCBB or a Pink Sheets The securities of issuers that have an generally would not raise the harms that security? ADTV value of at least $1 million and a public float value at or above $150 Rule 10b–18 is designed to prevent. 2. Price of Purchases million are considered to have a Additionally, the VWAP must be a. VWAP Transactions sufficient market presence to make them calculated by first calculating the values 55 for every regular way trade reported in Rule 10b–18 limits an issuer to less likely to be manipulated. the consolidated system (except those bidding for or buying its security at a Moreover, the public float value test is purchase price that is no higher than the intended in part to exclude issuers from trades that are expressly excluded under highest independent bid or last the ‘‘actively-traded securities’’ category proposed paragraph (a)(14)(iii) of the independent transaction price, where a high trading volume level is an Rule, as described below), by whichever is higher, quoted or reported aberration.56 multiplying each such price by the total in the consolidated system at the time Additionally, the VWAP purchase number of shares traded at that price; the purchase is effected.51 We must be entered into or matched before then compiling an aggregate sum of all understand that issuers would like to be the regular trading session opens, and values; and then dividing this aggregate able to repurchase their securities on a the execution price of the VWAP sum by the total number of trade VWAP basis knowing that such matched trade must be determined reported shares for that day in the 57 purchases are within the safe harbor. based on a full trading day’s volume. security that represent regular way However, because VWAP transactions We believe that requiring the VWAP trades effected in accordance with the are priced on the basis of individual calculation to be based on a full day of conditions of paragraphs (b)(2) and trades that are executed and reported trading would be the method of (b)(3) of Rule 10b–18 that are reported calculation that is the least susceptible throughout the trading day, there may in the consolidated system during the to manipulation, because it would take be instances where the execution price primary trading session for the into account the greatest volume of of an issuer’s VWAP purchase effected security.61 This method of calculating transactions occurring during regular at the end of that trading day (after the VWAP is consistent with the method of trading hours. security’s VWAP has been calculated calculation contained in the exemptive and assigned to the transaction) exceeds To qualify for the exception, the issuer’s VWAP purchase also must not relief from former Rule 10a–1 granted the highest independent bid or last for VWAP short sale transactions, and it independent transaction price quoted or exceed 10% of the ADTV in the 58 is consistent with industry practices for reported in the consolidated system for security and must not be effected for calculating VWAP for purposes of the that security and, therefore, will be outside of the safe harbor’s current price 54 See 17 CFR 242.101(c)(1). Rule 10b–18 safe harbor. In addition, 55 condition. See Securities Exchange Act Release No. 38067 the VWAP assigned to the purchase (Dec. 20, 1996), 62 FR 520 (Jan. 3, 1997). must be based on trades effected in In order to provide issuers with 56 Id. accordance with the Rule’s timing and additional flexibility to conduct 57 Proposed Rules 10b–18(a)(14)(ii) and (iii). repurchase programs using VWAP Specifically, under proposed paragraph (a)(14)(iii) price conditions and, therefore, must within the safe harbor, we propose to of Rule 10b–18 would require the execution price not include trades effected as the except from the Rule 10b–18’s price of the VWAP matched trade must be determined opening purchase reported in the based on all regular way trades effected in condition Rule 10b–18 purchases accordance with the Rule’s timing and price consolidated system (including the effected on a VWAP basis, provided conditions that are reported in the consolidated opening purchase in the principal certain criteria are met. Specifically, the system during the primary trading session for the market for the security and in the proposal would amend paragraph (b)(3) security. See Proposed Rule 10b–18(a)(14)(iii). market where the purchase is effected) The proposed criteria are similar to the criteria of the Rule to except those Rule 10b–18 contained in VWAP exemptive relief from former or during the last 10 minutes before the VWAP purchases that satisfy the criteria Rule 10a–1 under the Exchange Act. See, e.g., Letter scheduled close of the primary trading set forth in proposed paragraph (a)(14) from Larry E. Bergmann, Senior Associate Director, session in the principal market for the of the Rule.52 Division of Market Regulation, SEC, to Edith security, and in the market where the To qualify for the proposed exception, Hallahan, Counsel, Phlx, dated Mar. 24, 1999; letter Larry E. Bergmann, Senior Associate Director, purchase is effected. Moreover, the the VWAP purchase must be for a Division of Market Regulation, SEC, to Soo J. Yim, VWAP assigned to the purchase must security that qualifies as an actively- Wilmer, Cutler & Pickering, dated Dec. 7, 2000 not include trades effected at a price traded security (as defined under Rule (‘‘Wilmer, Cutler & Pickering’’); letter from James that exceeds the highest independent 101(c)(1) of Regulation M).53 Similar to Brigagliano, Assistant Director, Division of Market Regulation, SEC, to William W. Uchimoto, Esq., Vie bid or the last independent transaction Institutional Services, dated Feb. 12, 2003. price, whichever is higher, quoted or 51 17 CFR 240.10b–18(b)(3). 58 The VWAP exemptive relief from former Rule 52 Proposed Rule 10b–18(b)(3)(i)(a). The proposed 10a–1 VWAP included the condition that a broker amendment would except issuers’ VWAP Rule 10b– or dealer will act as principal on the contra-side to exceed 10% of the covered security’s relevant 18 purchases from only the pricing condition of the fill customer short sale orders only if the broker- average daily trading volume, as defined in safe harbor. Issuers would remain responsible for dealer’s position in the subject security, as Regulation M. See, e.g., Wilmer, Cutler & Pickering, compliance with all other conditions of Rule 10b– committed by the broker-dealer during the pre- id. 18 to secure the protections of the safe harbor. opening period of a trading day and aggregated 59 Proposed Rule 10b–18(a)(14)(iv) and (v). 53 Proposed Rule 10b–18(a)(14)(i). See also 17 across all of its customers who propose to sell short 60 See text accompanying supra note 57. CFR 242.101(c)(1). the same security on a VWAP basis, does not 61 Proposed Rule 10b–18(a)(14)(vi).

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reported in the consolidated system at particular time interval from 9:30 a.m. such that issuers would be able to meet the time such trade is effected.62 EST through 1 p.m. EST, rather than on the conditions of the proposed In addition, the VWAP purchase also a full-day’s trading volume? If so, please exception. must be reported using a special VWAP describe, in light of the objectives of the Q. Do VWAP transactions create (e.g., a ‘‘.W’’) trade modifier 63 in order safe harbor, which time intervals would improper incentives for broker-dealers, to indicate to the market that such be appropriate. such that an exception should not be purchases are unrelated to the current or Q. Similar to the conditions contained granted? If the proposed exception is closing price of the security. The special in the exemptive relief from former Rule adopted, are there ways to detect and trade modifier requirement is intended 10a–1 granted for VWAP short sale limit the effects of such incentives? to prevent the issuer’s Rule 10b–18 transactions, the proposed definition of Q. How would trading systems and VWAP purchase from providing any a VWAP Rule 10b–18 purchase uses an strategies used in today’s marketplace price discovery information or ‘‘actively-traded’’ standard. Should the be impacted by the proposed exception? influencing the pricing direction of the proposed definition also include How might market participants alter security. securities that also comprise the S&P their trading systems and strategies in The proposed VWAP exception from Index, similar to the conditions response to the proposed amendments? the Rule’s price condition is intended to contained in the exemptive relief from Please provide an estimate of costs if provide issuers and their brokers with former Rule 10a–1 granted for VWAP possible. greater certainty and flexibility in short sale transactions? Should we effecting qualifying VWAP transactions consider requiring the securities offering b. Other Alternative Passive Pricing within the safe harbor. We believe that reform thresholds,65 instead of the Systems VWAP transactions meeting the above proposed ‘‘actively traded’’ standard? We are considering whether to except criteria would present little potential for Should a different standard be used? other passive pricing mechanisms from manipulative abuse and, therefore, Q. The proposed definition of a the Rule’s price condition. We should be exempt from the Rule’s price VWAP Rule 10b–18 purchase is based understand that some issuers may effect condition.64 In using VWAP as a pricing on all regular way trades reported in the repurchases through electronic trading mechanism to effect repurchases, consolidated system. Should the systems that use passive or issuers relinquish control over the proposed definition also permit an independently-derived pricing pricing of their executions, thereby issuer in listed securities to calculate mechanisms, such as the mid-point of reducing the risk of potential the VWAP based only on trades the national best bid and offer (‘‘NBBO’’) manipulation. In addition, the nature of occurring in the principal market for the or ‘‘mid-peg’’ orders. Under Rule 10b– the pricing is objective since VWAP is security? Please explain. Would 18, matches to a mid-peg order a commonly used benchmark that is permitting issuers to use either a involving an issuer repurchase will based on independent market forces and consolidated or a principal market necessarily be above the highest bid and is identifiable to all market participants. calculation for their VWAP purchases may also occur at a price above the last Q. Should the proposed VWAP be consistent with securities sale price and, therefore, would fall exception be modified in any way? If so, information vendor standards used in outside of the Rule’s price condition, please explain. Are all of the proposed the dissemination of VWAP calculations absent an exception. Thus, we seek criteria for the VWAP exception to market participants? comment regarding the appropriateness appropriate, or should any be Q. Should the proposed exception of expanding the proposed exception to eliminated or modified? What, if any, distinguish between manually executed include issuer repurchases effected additional or alternative criteria should VWAP purchases and VWAP purchases through certain electronic trading the Commission consider including in executed through automated trading systems that match and execute trades the proposed definition of a VWAP Rule systems? If so, how? at various times and at independently- 10b–18 purchases in order to prevent Q. Should we require an issuer to derived prices, such as at the mid-point any potential manipulative abuse? establish and maintain written policies of the NBBO. We believe it may be Q. Should a ‘‘full day’’ of trading be and procedures reasonably designed to appropriate to expand the safe harbor to defined to permit VWAP purchases to assure that the issuer’s VWAP purchase permit an issuer to submit a buy order be entered into or matched between 9:30 was effected in accordance with the that is ‘‘pegged’’ to the mid-point of the a.m. EST and 10 a.m. EST (rather than proposed criteria and that it has NBBO at the time of execution (a ‘‘mid- requiring the VWAP purchase to be supervisory systems in place to produce peg’’ order) where the issuer’s mid-peg entered into or matched before the records that enable the issuer to order is matched and executed against regular trading session opens)? Please accurately and readily reconstruct, in a a sell order that also is pegged to the explain. time-sequenced manner, all orders mid-point of the NBBO at the time of Q. Should we consider excepting effected in reliance on the exception? If execution, provided certain criteria are VWAP purchases that are based on an no, why not? Please explain. How long met, as discussed below. In the past, the intra-day VWAP (or a time-weighted would it take to update systems and Commission has granted limited average price, or ‘‘TWAP’’), such as a procedures in a manner that ensured exemptive relief in connection with compliance with the proposed these systems under former Rule 10a–1 62 Proposed Rule 10b–18(a)(14)(iii). exception? Please explain. What under the Exchange Act because 63 Proposed Rule 10b–18(a)(14)(vii). For example, technological challenges, if any, would matches could potentially occur at a FINRA rules require VWAP transaction reports to be encountered? price below the last sale price.66 be identified with a special modifier to indicate to Q. What types of costs, if any, would the market that such transaction reports are unrelated to the current or closing price of the be associated with implementing the 66 See, e.g., Letter from Larry E. Bergmann, Senior security. See FINRA Rule 6380A(a)(5)(E). proposed exception? We seek specific Associate Director, Division of Market Regulation, 64 The staff has previously recognized the limited comment as to what length of SEC, to Andre E. Owens, Schiff Hardin & Waite, potential to influence the price of transactions implementation period, if any, would be dated Apr. 23, 2003 (granting exemptive relief from effected pursuant to passive pricing mechanisms, former Rule 10a–1 for trades executed through an such as the VWAP, by exempting such transactions necessary and appropriate and, why, alternative trading system that matches buying and from the former Rule 10a–1 under the Exchange selling interest among institutional investors and Act. See, e.g., supra note 57. 65 See supra note 50. broker-dealers at various set times during the day).

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Thus we are considering whether to could be imposed to address the Q. Are there other benchmark/ except from Rule 10b–18’s price concern that such orders are not derivatively priced transactions that condition purchases that are effected in reported using any special trade should be excepted from Rule 10b–18’s an electronic trading system that modifier to indicate to the market that price condition? For example, should matches buying and selling interest at such transactions are priced at the mid- we consider excepting benchmark/ various times throughout the day if, for point of the NBBO. derivatively priced purchases that example: (i) Matches occur at an Q. Should the safe harbor’s price qualify for the trade through exception externally derived price within the condition be modified to except in Rule 611(b)(7) of Regulation NMS? If existing market and above the current electronic trading systems that effect so, please provide specific examples of national best bid; (ii) sellers and issuer repurchases at the mid-point of transactions (and specific supporting purchasers are not assured of receiving the NBBO? For example, should the safe criteria) where modifying the Rule’s a matching order; (iii) sellers and harbor permit an issuer to submit a buy price condition would be appropriate. purchasers do not know when a match mid-peg order that is ‘‘pegged’’ to the We also seek comment concerning the will occur; (iv) persons relying on the mid-point of the NBBO at the time of potential for manipulative abuse that exception are not represented in the execution where the issuer’s mid-peg permitting such transactions may primary market offer or otherwise order can only be matched and executed present. influence the primary market bid or against a sell order that also is pegged 3. Volume of Purchases offer at the time of the transaction; (v) to the mid-point of the NBBO at the transactions in the electronic trading time of execution? If so, should the Under the current volume condition, system are not made for the purpose of exception be limited to repurchases of an issuer may effect daily purchases in creating actual, or apparent, active actively-traded securities effected an amount up to 25 percent of the trading in, or depressing or otherwise through an electronic trading system ADTV in its shares, as calculated under manipulating the price of, any security; that automatically matches and executes the Rule.68 Alternatively, once each (vi) the covered security qualifies as an trades at random times, within specific week an issuer may purchase one block ‘‘actively-traded security’’ (as defined in time intervals, at an independently- of its common stock in lieu of Rule 101(c)(1) of Regulation M); and derived mid-point of the NBBO price? purchasing under the 25% volume (vii) during the period of time in which Q. If such an exception were adopted, limitation for that day (the ‘‘one block the electronic trading system may match what other conditions should apply? per week’’ exception).69 Rule 10b– buying and selling interest, there is no For instance, should we require that 18(a)(5) currently defines a ‘‘block’’ as a solicitation of customer orders, or any sellers and purchasers must not be quantity of stock that either: (i) Has a communication with customers that the assured of receiving a matching order or purchase price of $200,000 or more; or match has not yet occurred. know when a match will occur? Should (ii) is at least 5,000 shares and has a These conditions parallel the we require that persons relying on the purchase price of at least $50,000; or conditions provided in the exemptive exception not be represented in the (iii) is at least 20 round lots of the relief granted under former Rule 10a– primary market offer or otherwise security and totals 150 percent or more 1.67 Consistent with the relief granted influence the primary market bid or of the trading volume for that security under former Rule 10a–1 and the offer at the time of the transaction, and or, in the event that trading volume data rationales provided in granting such that during the period of time in which are unavailable, is at least 20 round lots relief, we believe it may be appropriate to expand the proposed VWAP the electronic trading system may match of the security and totals at least one- exception to Rule 10b–18’s price buying and selling interest, there is no tenth of one percent (.001) of the condition for purchases effected through solicitation of customer orders, or any outstanding shares of the security, communication with customers that the exclusive of any shares owned by any these electronic trading systems due to 70 the passive nature of pricing and the match has not yet occurred? What, if affiliate. When we adopted the ‘‘one lack of price discovery. As such, we any, other criteria would be block per week’’ exception in believe issuer repurchases effected appropriate? connection with the 2003 amendments through these passive pricing systems Q. What, if any, additional safeguards to Rule 10b–18, we had retained the generally do not appear to involve the could be imposed to address the former Rule’s ‘‘block’’ definition, types of abuses that the Rule 10b–18 is concern that such orders are not including paragraph (iii) which designed to prevent. reported using any special trade references ‘‘trading volume’’ rather than Although purchases effected using modifier to indicate to the market that ‘‘ADTV.’’ However, Rule 10b–18, as mid-point NBBO pricing algorithms such transactions are priced at the mid- amended in 2003, uses the term ‘‘ADTV’’ may be passively priced, such purchases point of the NBBO? Should we require instead of the former term ‘‘trading are not reported using any special trade mid-point priced trades to be reported volume.’’ We therefore propose a non- modifier to indicate to the market that with a special trade modifier? What substantive conforming change to Rule they are priced according to a special technological challenges would be 10b–18 that would amend paragraph formula and, therefore, may be away encountered as a result? How long (a)(5)(iii) of the ‘‘block’’ definition to from the quoted price of the stock at the would it take to update systems and reference ‘‘ADTV’’ instead of ‘‘trading time of execution. We, therefore, are procedures in order to mark such trades volume’’ in order to make the definition concerned that a sizable purchase or with a special trade modifier? Please consistent with the current Rule. We series of purchases effected at the mid- explain. also request and encourage comment on point of the NBBO may result in the Q. What types of costs, if any, would the following: issuer leading the market for its security be associated with requiring mid-point through its repurchases, which could priced trades to be reported to the 68 17 CFR 240.10b–18(b)(4). See 17 CFR 240.10b– undermine the purpose of the price market with a special trade modifier? 18(a)(1) (defining ADTV for purposes of the safe condition. Thus, we seek comment Please explain what length of harbor). 69 17 CFR 240.10b–18(b)(4). See text below on what additional safeguards implementation period, if any, would be accompanying supra note 38 (regarding ‘‘block’’ necessary and appropriate to comply purchases under Rule 10b–18). 67 See, e.g., id. with such a requirement and why. 70 See 17 CFR 240.10b–18(a)(5).

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Q. We seek specific comment B. Amendments Concerning Scope of outside of the price condition solely due concerning the proposal to amend the the Safe Harbor to flickering quotes.76 In these instances, ‘‘ ’’ only the non-compliant purchase, rather definition of a block to reference 1. ‘‘Flickering Quotes’’ ‘‘ADTV’’ instead of ‘‘trading volume’’ in than all of the issuer’s other Rule 10b– paragraph (a)(5)(iii) of Rule 10b–18. Rule 10b–18 provides a safe harbor for 18 purchases for that day, would be purchases on a given day. To come disqualified from the safe harbor.77 In Q. Is a volume limitation based on an within the safe harbor on a particular ADTV calculation feasible with respect this way, if an issuer’s repurchase fails day, an issuer must satisfy the Rule’s to meet the price condition due to to Rule 10b–18 purchases of thinly manner, timing, price, and volume flickering quotes, the issuer would not traded securities? Should we raise (or conditions when purchasing its own forfeit the safe harbor for all of its lower) the volume limit for these 72 common stock in the market. compliant purchases that day. This securities? Would this increase the Moreover, the Rule provides that failure proposed limitation to the general potential for manipulative activity in to meet any one of the four conditions disqualification provision would allow such securities? with respect to any of the issuer’s an issuer in fast moving markets to Q. Should we retain the current 25% repurchases during the day will effect one otherwise compliant Rule volume limitation? Is the 25% a disqualify all of the issuer’s Rule 10b– 10b–18 purchase that was inadvertently reasonable limitation that furthers the 18 purchases from the safe harbor for purchased outside of the safe harbor, objectives of the Rule or should the that day (the ‘‘disqualification due to flickering quotes, without 73 volume limitation be reduced? provision’’). However, as noted above, disqualifying all of the issuer’s other we understand that the increased speed Q. Should we retain the current ‘‘one purchases from the safe harbor for that of today’s markets, as evidenced by day. block per week’’ exception? What, if flickering quotes,74 has made it any, modifications should be made to While we recognize that today’s fast increasingly difficult for an issuer to moving markets may still present the definition of a ‘‘block’’ purchase for ensure that every purchase of its purposes of this exception? For challenges to issuers attempting to common stock during the day will meet repurchase their securities within the example, should we retain the current the Rule’s current price condition. safe harbor, Rule 10b–18(b)(3) would ‘‘one block per week exception’’ but Accordingly, even if an issuer also continue to retain the ‘‘last increase the amount of shares inadvertently effects a Rule 10b–18 independent transaction price’’ constituting a block (for instance, purchase outside of the Rule’s price alternative (in addition to the highest should the amount of shares 75 condition due to flickering bid quotes independent bid), which should provide constituting a block conform to the in a market, the Rule’s general 71 issuers with additional flexibility and a markets’ definition of a block trade, disqualification provision would cause reliable mechanism in which to comply that is, typically at least 10,000 shares)? the issuer to forfeit the safe harbor for with the safe harbor’s price condition in Q. Does the current ‘‘one block per all of its Rule 10b–18 compliant the event of flickering bid quotes.78 week’’ exception enable issuers of thinly purchases that day. Q. Do flickering bid quotes make the or moderately traded securities to avail In order to accommodate the Rule’s ‘‘highest independent bid’’ themselves of the Rule 10b–18 safe increasing occurrence of flickering price alternative difficult to satisfy? Does the harbor? If not, why not? quotations in today’s markets, we ‘‘last independent transaction price’’ propose to limit the general alternative help issuers comply with Q. Should we modify the volume disqualification provision in Rule 10b– condition to allow issuers, for example, Rule’s price condition when there are 18. Specifically, we propose to amend flickering bid quotes? If not, why not? once a week to purchase up to a daily Preliminary Note 1 to Rule 10b–18 and aggregate amount of 500 shares, as an Please provide specific examples paragraph (d) of the Rule to limit the concerning the impact of quote alternative to the 25% volume Rule’s disqualification provision in limitation? Would this allow issuers of flickering with respect to the Rule’s instances where an issuer’s repurchase price condition, including specific thinly traded securities to carry out their order is entered in accordance with the repurchase programs more effectively? alternatives to address these concerns. Rule’s four conditions but is, Q. Should we condition reliance on Please provide specific examples of immediately thereafter, executed the disqualification limitation on issuers where modifying the Rule’s current executing their otherwise compliant volume condition with respect to thinly 72 17 CFR 240.10b–18(b)(1)–(4). purchase within a certain period of time traded securities would be appropriate. 73 See Preliminary Note 1 to 17 CFR 240.10b–18. (i.e., a second) after being entered? If so, We also seek comment concerning the 74 ‘‘Flickering quotes’’ occur when there are rapid how much time would be appropriate? potential for manipulative abuse that and repeated changes in the current national best Please explain. such transactions may present. bid during the period between identification of the current national best bid and the execution or Q. Should we require issuers wishing Q. We encourage commenters to display of the Rule 10b–18 bid or purchase. In to rely on the disqualification limitation submit data regarding what percentage many active NMS stocks, the price of a trading to have specific data management center’s best displayed quotations can change of individual issuer repurchase trading multiple times in a single second. See, e.g., volume over the past three years has Securities Exchange Act Release No. 51808 (June 9, 76 See Proposed Preliminary Note No. 1 to Rule been effected in reliance on the current 2005), 71 FR 37496, 37522–23 (June 29, 2005) 10b–18. ‘‘one block per week’’ exception. The (providing an exception in Rule 611 of Regulation 77 The disqualified non-compliant purchase NMS for flickering quotations). would still count toward an issuer’s daily volume Commission requests data and analysis 75 As discussed above, Rule 10b–18(b)(3) limits an limitation and would still have to satisfy the Rule’s on what effect limiting the former block issuer to bidding for or buying its security at a ‘‘single broker or dealer’’ and timing conditions, in exception has had on such issuer’s purchase price that is no higher than the highest order for the issuer’s remaining purchases during repurchasing activity. independent bid or last independent transaction that day to still qualify for the safe harbor. price, whichever is higher, quoted or reported in 78 We note, however, that trade prices also may the consolidated system at the time the purchase is flicker quickly, which can complicate compliance 71 See, e.g., NYSE Rule 97.10 (defining a ‘‘block’’ effected. 17 CFR 240.10b–18(b)(3). See also 17 CFR with Rule 10b–18’s price condition because the last as consisting of at least 10,000 shares, or a quantity 240.10b–18(b)(3)(iii) (price limits for securities for trade price printed to the Tape may not necessarily of securities that has a current market value of at which bids and transaction prices not reported in be the last trade price in terms of the actual order least $200,000). the consolidated system). of trades.

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strategies to retain and recall order and 2. ‘‘Merger Exclusion’’ Provision raising the market price of an issuer’s trade history to demonstrate compliance The proposed amendments also stock in order to facilitate the merger or with the safe harbor’s price condition at would add a provision that extends the acquisition in a contested takeover. The the time of order entry? We understand time in which the safe harbor is exclusion advanced the goal of making that most broker-dealers already retain unavailable in connection with a the safe harbor available to an issuer the appropriate market data, order SPAC 79 acquisition until the only during those times when there is status, and execution report elements to completion of the vote by the SPAC no special event that may impact an provide a ‘‘snap shot’’ of the market shareholders. Rule 10b–18 assumes issuer’s purchasing activity. Since 2003, conditions at time of order entry versus normal market conditions.80 securities markets and capital raising execution. In order to rely on the safe Accordingly, the definition of a ‘‘Rule have evolved significantly, and we once harbor, what, if any, specific procedures 10b–18 purchase’’ excludes issuer bids again believe it is appropriate to modify should be established and enforced that and purchases made during certain the merger exclusion with respect to would help issuers develop the corporate events because of the issuer purchases aimed at facilitating necessary protocols to deal with the heightened incentive of an issuer to corporate actions. This proposal is various market centers when flickering facilitate a corporate action, such as a triggered by the rapid growth of SPAC quotes appear or fast-moving markets merger. We do not believe that it is capital raising, and its objective is to occur in order to help reduce any appropriate to make the safe harbor maintain the integrity of the safe harbor unnecessary or undue reliance on the available when an issuer is under by narrowing its use during corporate proposed limitation? How long would it pressure to complete a merger or similar actions that can impact an issuer’s 83 take to develop these protocols, corporate action and may attempt to purchasing activity. including updating systems and bring about a successful conclusion to SPAC acquisitions can present unique procedures in a manner that would help the corporate action with issuer conflicts of interest and significant reduce any unnecessary or undue repurchases. Currently, paragraph financial incentives for SPAC reliance on the proposed limitation? (a)(13)(iv) of Rule 10b–18, which management. For instance, a SPAC Please explain. What technological generally must complete its acquisition defines a Rule 10b–18 purchase, 84 challenges, if any, would be precludes purchases effected during the within 18 to 24 months, which can encountered? What types of costs, if period from the time of public put SPAC management under severe any, would be associated with announcement of a merger, acquisition, time pressure to identify an appropriate implementing the necessary protocols? or similar transaction involving a target and complete the acquisition. Q. We seek specific comment as to recapitalization, until the earlier of the Typically, if an acquisition target is what length of implementation period, completion of such transaction or the identified during this timeframe, both if any, would be necessary and completion of the vote by the target the SPAC shareholders and target appropriate and, why, such that issuers shareholders (the ‘‘merger exclusion’’).81 shareholders are given the opportunity would be able to reduce any Thus, ordinarily, it is the target to vote on whether or not to approve the unnecessary or undue reliance on the shareholder vote that determines the proposed acquisition. However, because proposed limitation. completion of the merger exclusion of the special incentives and deferred Q. Should we limit the number of compensation involved with a SPAC,85 period for purposes of Rule 10b–18. times that an issuer may rely on the Paragraph (a)(13)(iv) illustrates the if SPAC management believes that disqualification limitation, for example, modernization of the safe harbor in SPAC holders will vote against an once per day? 2003. The Commission adopted the acquisition, or to otherwise ensure that Q. Should we specify the volume of the acquisition will be approved, they purchases that are eligible to rely on the amended merger exclusion in recognition of issuers’ incentives to may attempt to rely on Rule 10b–18 to disqualification limitation to, for repurchase a substantial percentage of example, 1%, 2%, or 5% of ADTV? facilitate corporate actions with issuer purchases. The Commission adopted shares of the SPAC’s common stock in Q. Should we restrict use of the the open market,86 thereby reducing the disqualification limitation during this modified provision of Rule 10b–18 out of concern for issuer activity certain times of the day in order to 83 See FINRA Regulatory Notice 08–54: Guidance maintain reasonable limits on the safe designed to facilitate a merger, which on Special Purpose Acquisition Companies. (stating harbor consistent with the objectives of had been highlighted by news articles that 22% of all IPOS in 2007 were SPAC IPOs the Rule to minimize the market impact suggesting that banks repurchased their totaling $12 billion in raised capital). respective securities in order to boost 84 This 18- to 24-month deadline is designed to of the issuer’s repurchases, thereby help investors by forcing a timely return of most of allowing the market to establish a their stock price to enhance the value of their capital (previously held in an escrow or trust 82 security’s price based on independent their competing merger proposals. At account) if an acquisition is not completed within market forces without undue influence that time, the concern about issuers this timeframe and the SPAC must liquidate. See id. facilitating corporate actions was on 85 SPAC managers, as well as underwriters, often by the issuer? For example, should the have significant financial incentives that may limitation not be available for purchases conflict with their investors’ interests and may 79 effected immediately after the opening SPACs are shell, developmental stage, or blank- cause them to effect an acquisition regardless of the check companies that raise capital in initial public or just before the last half hour of merit of the target or the potential for future success offerings (‘‘IPOs’’) generally for the purpose of of the entity as a public company. For instances, the trading? acquiring or merging with an unidentified company SPAC underwriters may be paid a portion of their Q. What effect, if any, would the or companies, or other entity, that will be identified fee, usually half, following the IPO, but the proposed disqualification limitation at a future date (a ‘‘target’’). See generally 17 CFR remainder is only paid upon the closing of an 230.419 (defining blank-check companies). have on Rule 10b–18 purchases effected acquisition. In addition, SPAC managers may not be 80 2002 Proposing Release, 67 FR at 77595. paid a salary but will receive an equity stake, in reliance on the proposed VWAP 81 17 CFR 240.10b–18(a)(13)(iv). This would roughly 20%, in the company post-acquisition. exception? Similarly, what effect, if any, include any period where the market price of a 86 See, e.g., Douglas S. Ellenoff, ‘‘Facilitating a would the proposed VWAP exception security will be a factor in determining the Business Combination: The Valuation and have on issuers’ ability to effect Rule consideration to be paid pursuant to a merger, Economics of a Proposed SPAC Don’t Determine a acquisition, or similar transaction. See 2008 Successful Outcome,’’ Equities Magazine (Sept. 10b–18 purchases in instances where Adopting Release, 68 FR at 64955. 2009) (stating that SPAC sponsors and affiliates there may be flickering quotes? Please 82 See 2003 Adopting Release, 68 FR at 64955 n. consider additional purchases of open market explain. 29. Continued

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possibility that the acquisition will be effected during the period from the time repurchases of SPAC securities from the disapproved.87 These open market of public announcement of a merger, definition of a Rule 10b–18 purchase. repurchases can also have the effect of acquisition, or similar transaction until Are there other types of securities for supporting and/or raising the market the earlier of such transaction or the which the safe harbor should not apply? price of the SPAC shares, and cause completion of the vote by both the target We also seek specific comment other investors to buy up shares in the shareholders and the SPAC concerning the potential for SPAC in the open market when they shareholders.89 By extending the manipulative abuse that transactions in might not otherwise have done so.88 ‘‘merger exclusion’’ to the time of the such securities may present. Moreover, because the SPAC vote by the shareholders of the SPAC 3. Preliminary Note to Rule 10b–18 shareholder vote typically occurs much (and not just the vote by the target later than the vote by the target shareholders), the proposal would We also propose a non-substantive shareholders, this allows the SPAC maintain reasonable limits on the safe amendment that would update management an even longer period of harbor and prevent it from being used Preliminary Note No. 2 to Rule 10b–18 time in which to engage in substantial in contexts where there is a heightened to reference ‘‘Item 16E’’ (instead of ‘‘Item open market repurchases of the SPAC’s incentive to engage in substantial 15(e)’’) of Form 20–F. Preliminary Note stock in order to secure ‘‘yes’’ votes in repurchase activity solely in order to No. 2 currently states, ‘‘[r]egardless of favor of the proposed merger or facilitate a corporate action. The benefit whether the repurchases are effected in acquisition. In view of this heightened of a safe harbor is only appropriate accordance with § 240.10b–18, reporting incentive, we do not believe it is during ‘‘normal’’ market conditions.90 issuers must report their repurchasing appropriate to provide a safe harbor for We note, however, that SPACs would activity as required by Item 703 of purchases made in connection with an still have the ability to make safe harbor Regulations S–K and S–B (17 CFR acquisition by a SPAC during this repurchases following an announcement 229.703 and 228.703) and Item 15(e) of period and, therefore, believe a longer of a merger or covered transaction Form 20–F (17 CFR 249.220f) (regarding exclusionary period is warranted. (subject to Regulation M’s restricted foreign private issuers), and closed-end Thus, we propose to add a provision period and any other applicable management investment companies that that would increase the time in which restriction) so long as the total amount are registered under the Investment the safe harbor is unavailable in of the issuer’s Rule 10b–18 purchases Company Act of 1940 must report their connection with an acquisition by a effected on any single day does not repurchasing activity as required by SPAC until the completion of the vote exceed the lesser of 25% of the Item 8 of Form N–CSR (17 CFR 249.331; by the SPAC’s shareholders. security’s four-week ADTV or the 17 CFR 274.128).’’ 93 The proposed Specifically, the proposal would amend issuer’s average daily Rule 10b–18 amendment would update this note by the language of paragraph (a)(13)(iv) to purchases during the three full calendar changing ‘‘Item 15(e)’’ to ‘‘Item 16E’’ provide that, in connection with a months preceding the date of the consistent with the current Form 20–F. announcement of the merger or other SPAC, Rule 10b–18’s ‘‘merger exclusion’’ 4. Additional Request for Comments covered transaction.91 Moreover, the would apply to purchases that are Regarding Scope of Safe Harbor issuer may effect block purchases shares in order to implement a favorable approval pursuant to paragraph (b)(4) of the Rule Q. Should the safe harbor in general process); Frederick D. Lipman, ‘‘International and (subject to Regulation M’s restricted continue to apply to less liquid, less US IPO Planning: A Business Strategy Guide,’’ at p. period and any other applicable transparent securities, such as OTCBB 218 and 223 (2008) (‘‘Lipman’’) (stating that business and Pink Sheet securities? If so, should combinations that trade below the Trust’s per share restrictions) provided that the issuer amount after announcement require the SPAC’s does not exceed the average size and these securities be subject to more sponsors or the target’s owners to enter into frequency of block purchases effected restrictive limitations in order to agreements to incentivize the SPAC’s public pursuant to paragraph (b)(4) of the Rule minimize the risk of manipulation by an stockholders or potential investors to support the issuer making market repurchases in transaction’’ and that ‘‘SPAC sponsors may commit during the three full calendar months to spend funds to buy stock in the open market that preceding the date of the announcement these less liquid, less transparent can be targeted during the proxy process’’). of such transaction.92 securities? 87 See, e.g., Lipman, id. at p. 217 (noting that Q. Given the significant financial Q. Should the Rule 10b–18 safe getting the SPAC’s stockholder vote and limiting incentives on the part of SPAC harbor be available for issuer exercises of conversions is by for the most difficult repurchases during periods when an and uncertain part of the process and that this managers and underwriters to engage in uncertainty affects the extent to which concessions repurchase activity solely to facilitate an issuer’s insiders are selling their own will be made by the SPAC sponsors to complete the acquisition, should the safe harbor in shares of the issuer’s stock? If not, transaction—the greater the percentage of general continue to apply to issuer please provide specific suggestions arbitrageurs holding the SPAC’s stock and the less regarding what, if any, limitations favorable the transaction is perceived, the greater repurchases of SPAC securities? If so, the concessions that will have to be made). ‘‘In most should the Commission consider other should be placed on the availability of [SPAC] transactions, negotiations and deals need to modifications, either in addition to or the safe harbor during such periods. occur during the proxy process because at the time instead of, the safe harbor conditions Q. Should the Rule require that an of the IPO, it is not possible to foresee all the proposed here in the case of issuer issuer have current financial disclosures variables involved in the business combination that as a prerequisite to receiving the will affect how much stock will need to be turned repurchases of SPAC securities? If not, over from no votes to yes votes.’’ Id. at p. 218 what specific types of costs or burdens, protection of the safe harbor? For (emphasis added) if any, would be associated with making example, should it be available to 88 See, e.g., id. (stating that SPAC sponsors may the safe harbor in general unavailable to companies that do not make public enter into Rule 10b5–1 trading plans which require filings of financial information, or are them to purchase up to a specified number of shares issuer repurchases of SPAC securities? or dollar amount of shares at the prevailing market Please explain. Please provide detailed not current in required filings? If so, prices, and that these purchases are intended to comment regarding excepting all issuer how should we require the issuer to support the market price of the stock during the demonstrate such compliance? Should proxy process and provide potential sellers the 89 such information be required to be made ability to dispose of their shares and achieve the Proposed Rule 10b–18(a)(13)(iv). same or greater return than if they were to vote 90 See supra note 80. See infra note 106. available on the issuer’s website for the against the transaction and exercise their 91 See 17 CFR 240.10b–18(a)(13)(iv)(B)(1). conversion rights). 92 See 17 CFR 240.10b–18(a)(13)(iv)(B)(2). 93 17 CFR 240.10b–18.

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investing public? What, if any, other 25% daily volume limitation? What Commission should consider a different requirements should be a prerequisite to effect, if any, should taking delivery of approach. receiving the protection of the safe common stock pursuant to a security The Commission encourages harbor? futures contract or upon exercise of an commenters to provide information Q. Item 703 of Regulation S–K option have regarding the Rule’s other regarding the advantages and requires disclosure of repurchases of all conditions (e.g., price, timing, and disadvantages of each proposed shares of a company’s equity securities manner of purchase) with respect to the amendment. The Commission invites of a class registered under Section 12 of availability of the safe harbor for commenters to provide views and data the Exchange Act regardless of whether purchases effected in accordance with as to the costs and benefits associated an issuer relies on the safe harbor. Rule 10b–18? with the proposed amendments. We Should compliance with the disclosure Q. Currently, the Rule 10b–18 safe also seek comment regarding other requirements of Item 703 be made a harbor is not available for an issuer and matters that may have an effect on the condition of using the safe harbor? the broker-dealer who engage in an proposed amendments. Should Rule 10b–18 contain a specific accelerated share repurchase plan or use disclosure requirement as a condition of a forward contract to repurchase the V. Paperwork Reduction Act the safe harbor, similar to other issuer’s stock, or for the broker’s A. Background Commission regulations that link a safe covering transactions. What, if any, harbor with disclosure (e.g., Regulation manipulative concerns are raised by One provision of the proposed D with Form D and Rule 144 with Form alternative or novel methods of amendments to Rule 10b–18 would 144)? What specific types of information repurchasing securities (e.g., use of result in new ‘‘collection of information’’ would be useful to investors regarding derivatives or share accumulation requirements within the meaning of the an issuer’s repurchase activity? programs)? Please provide specific Paperwork Reduction Act of 1995 94 Q. Would requiring specific comment as to what limitations should (‘‘PRA’’). The Commission is therefore disclosure as a condition of the safe apply to such repurchases to address submitting this proposal to the Office of harbor provide a useful way to monitor these concerns. Management and Budget (‘‘OMB’’) for the operation of (or verify compliance Q. Should the safe harbor apply to an review in accordance with 44 U.S.C. with) the safe harbor? Would it provide issuer’s repurchases of its common 3507(d) and 5 CFR 1320.11. The title for useful information in assessing the level stock effected outside of the United the collection of information and market impact of issuer States (e.g., on foreign exchanges)? If so, requirements is ‘‘Purchases of Certain repurchases? If so, should the safe how should the safe harbor conditions Equity Securities by the Issuer and harbor require disclosure on a daily apply to such purchases (e.g., should a Others.’’ If adopted, this collection basis, or would more frequent security’s ADTV include worldwide would not be mandatory, but would be disclosure (e.g., on a ‘‘real time’’ basis) trading volume)? necessary for issuers that wish to avail be more meaningful to investors? If so, Q. Should the safe harbor only be themselves of the proposed VWAP how should the disclosure be made available outside of the United States to exception to Rule 10b–18’s price (e.g., issuing daily press releases, foreign private issuers, or to foreign condition. Responses to the collection of posting daily notices on the issuer’s companies whose principal market is information requirements of the website, or reporting such purchases to outside the United States? If so, are proposed VWAP exception to Rule 10b– the tape using a special trade indicator)? there certain conditions of Rule 10b–18 18’s price condition would not be kept Please provide specific suggestions. that should be modified or that should confidential. An agency may not Q. Should the safe harbor require not apply at all with respect to conduct or sponsor, and a person is not issuers to maintain (and provide to the purchases outside the United States required to respond to, a collection of Commission, upon request) separately and, if so, why? information unless it displays a retrievable written records concerning Q. Are there different conditions currently valid OMB control number. the trade details (trade-by-trade under Rule 10b–18 that should apply OMB has not yet assigned a control information) about the manner, timing, with respect to purchases outside the number to the new collection for the price, and volume of their Rule 10b–18 United States and, if so, why are those proposed VWAP exception to the Rule’s repurchases? conditions more appropriate than the price condition. Q. Should the safe harbor be made conditions currently proposed for Rule B. Summary available to securities other than 10b–18? common equity, such as preferred stock, In order to provide issuers with warrants, rights, convertible debt IV. General Request for Comment additional flexibility to conduct securities, or other products? If the safe We request and encourage any repurchase programs using VWAP harbor were to include such securities, interested person to comment generally within the safe harbor, we are proposing what price, volume, and time of on these proposals. In addition to the to except from the Rule 10b–18’s price purchase conditions should apply? We specific requests for comment, the condition Rule 10b–18 purchases seek specific comment concerning the Commission invites interested persons effected on a VWAP basis, provided potential for manipulative abuse that to submit written comments on all certain criteria are met. Proposed Rule transactions in such securities may aspects of the proposed amendments. 10b–18(a)(14)’s definition of a ‘‘Rule present. The Commission also requests 10b–18 VWAP Purchase’’ would require Q. Should the safe harbor be available commenters to address whether the a new collection of information in that for issuer repurchases involving security proposed Rule 10b–18 amendments one of the requirements for qualifying futures or option contracts (including provide appropriate safe harbor for the exception is that the VWAP the receipt or purchase for delivery of conditions in light of recent market purchase must be reported using a securities underlying such contracts)? developments. The Commission seeks special VWAP (e.g., a ‘‘.W’’) trade Should the number of shares underlying comment on whether the safe harbor modifier 95 in order to indicate to the an option or security futures contract (or proposals raise any manipulation risks. other derivative security) entered into Commenters may also discuss whether 94 44 U.S.C. 3501 et seq. by an issuer count against an issuer’s there are legal or policy reasons why the 95 Proposed Rule 10b–18(a)(14)(vii).

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market that such purchases are requirement are currently required to professionals, regulators, and others. unrelated to the current or closing price retain records in accordance with Rule Commenters should provide analysis of the security. 17a–4(e)(7) under the Exchange Act. and data to support their views on the costs and benefits associated with the C. Proposed Use of Information G. Request for Comment proposed amendments. The information that would be We invite comment on these collected under the special trade estimates. Pursuant to 44 U.S.C. A. Costs modifier requirement would help 3506(c)(2)(B), we request comment in As an aid in evaluating costs and prevent the issuer’s Rule 10b–18 VWAP order to: (i) Evaluate whether the reductions in costs associated with the purchase from providing any price collection of information is necessary proposed amendments, the Commission discovery information or influencing the for the proper performance of our requests the public’s views and any pricing direction of the security. The functions, including whether the supporting information. The information collected also would aid the information will have practical utility; Commission believes that the proposed Commission in monitoring compliance (ii) evaluate the accuracy of our estimate amendments would impose negligible with the proposed VWAP exception. of the burden of the collection of costs, if any, on issuers and would not information; (iii) determine whether compromise investor protection. The D. Respondents there are ways to enhance the quality, Commission notes that any costs related The collection of information that utility and clarity of the information to to complying with the proposed would be required by the proposed be collected; and (iv) evaluate whether amendments to Rule 10b–18 are special trade modifier requirement of there are ways to minimize the burden assumed voluntarily because the Rule the proposed VWAP exception to Rule of the collection of information on those provides an optional safe harbor.99 The 10b–18 would apply to all 5,561 who respond, including through the use Commission, however, notes that issuer registered broker-dealers effecting Rule of automated collection techniques or repurchases effected under the proposed 10b–18 VWAP on behalf of issuers in other forms of information technology. VWAP exception, or other passive reliance on the proposed VWAP Persons submitting comments on the pricing mechanisms, may create costs to exception to Rule 10b–18’s price collection of information requirements both issuers and market participants to condition. As discussed below, the should direct them to the Office of update systems and enhance Commission has considered the above Management and Budget, Attention: recordkeeping in order to comply with respondents for the purposes of Desk Officer for the Securities and the proposed exception. Also, to qualify calculating the reporting burdens under Exchange Commission, Office of as a ‘‘Rule 10b–18 VWAP Purchase’’ the proposed amendments to Rule 10b– Information and Regulatory Affairs, under the proposed Rule 10b–18(a)(14), 18. The Commission requests comment Washington, DC 20503, and should also the VWAP purchase be reported using a on the accuracy of these figures. send a copy of their comments to special VWAP trade modifier.100 VWAP Elizabeth M. Murphy, Secretary, trade reports are already required to be E. Total Annual Reporting and Securities and Exchange Commission, identified with a special trade indicator Recordkeeping Burdens 100 F Street, NE., Washington, DC or modifier to indicate that such Proposed Rule 10b–18(a)(14)’s 20549–1090, with reference to File No. transaction reports are unrelated to the definition of a ‘‘Rule 10b–18 VWAP S7–04–10. Requests for materials current or closing price of the Purchase’’ would require that the VWAP submitted to OMB by the Commission security.101 Thus, this identification is purchase must be reported using a with regard to this collection of usual and customary and no new special VWAP trade modifier.96 VWAP information should be in writing, with burden would be imposed. In addition, trade reports are already required to be reference to File No. S7–04–10, and be if adopted, an issuer may need to identified with a special trade indicator submitted to the Securities and establish specific procedures that would or modifier to indicate that such Exchange Commission, Office of help them develop the necessary transaction reports are unrelated to the Investor Education and Advocacy, 100 F protocols to deal with the various current or closing price of the security.97 Street, NE., Washington, DC 20549– market centers when flickering quotes Thus, this identification is usual and 0213. As OMB is required to make a appear or fast-moving markets occur in customary in the conduct of this activity decision concerning the collections of order to help reduce any unnecessary or and no new burden would be information between 30 and 60 days undue reliance on the proposed imposed.98 after publication, a comment to OMB is disqualification limitation. The best assured of having its full effect if Commission seeks estimates of such F. Record Retention Period OMB receives it within 30 days of costs. The Commission also solicits The proposed VWAP exception’s publication. comments as to whether the proposed special modifier requirement does not VI. Costs and Benefits of the Proposed contain any new record retention 99 See discussion in Section VII, infra, noting that, requirements. All registered broker- Amendments even with the proposed modification to the ‘‘merger dealers that would be subject to the The Commission is considering the exclusion,’’ all issuers, including SPACs, still have the ability to make safe harbor repurchase following proposed special trade modifier costs and the benefits of the proposed an announcement of a merger or covered amendments. The Commission transaction (subject to Regulation M’s restricted 96 Id. encourages commenters to discuss any period and any other applicable restriction) so long 97 For example, FINRA rules require VWAP additional costs or benefits. In as the total amount of the issuer’s Rule 10b–18 transaction reports to be identified with a special particular, the Commission requests purchases effected on any single day does not modifier to indicate to the market that such exceed the lesser of 25% of the security’s four-week transaction reports are unrelated to the current or comment on the potential costs for any ADTV or the issuer’s average daily Rule 10b–18 closing price of the security. See FINRA Rule modifications to information gathering, purchases during the three full calendar months 6380A(a)(5)(E) (requiring members to append the management, and recordkeeping preceding the date of the announcement of the applicable trade report modifier, as specified by systems or procedures, as well as any merger or other covered transaction. See 17 CFR FINRA, to all last sale reports that occur at a price 240.10b–18(a)(13)(iv)(B)(1). See also 2003 Adopting based on an average weighting or another special potential benefits resulting from the Release, 68 FR at 64955. pricing formula). proposals for issuers, investors, broker- 100 Id. 98 5 CFR 1320.3(b)(2). dealers, other securities industry 101 See, e.g., text accompanying supra note 97.

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amendments would impose greater costs purchasing activity. Nevertheless, the is reported in the consolidated system on issuers than the current Rule. Commission seeks estimates of any first. The Commission also notes that the potential costs associated with the The proposed VWAP exception from proposed modification to the ‘‘merger proposed modification to the ‘‘merger the Rule’s price condition would exclusion’’ in connection with SPAC exclusion,’’ including the extent to provide issuers and their brokers with acquisitions may create costs to issuers which, if at all, the proposed flexibility and greater certainty in in terms of not being able to effect all modification would affect a SPAC’s effecting qualifying VWAP transactions of their issuer repurchases within the ability to effect issuer repurchases within the safe harbor. The proposed safe harbor. We understand that this, in within the safe harbor or otherwise VWAP exception to the Rule’s price turn, could affect some SPACs’ ability to complete an acquisition or other condition also may increase the complete an acquisition or other covered transaction. likelihood that firms would engage in covered transaction. However, we open market repurchases since the price preliminary do not believe that the B. Benefits condition would be less restrictive for proposed modification to the ‘‘merger The proposed amendments would such transactions. As such, the exclusion’’ would significantly hinder a update the safe harbor in light of market proposed VWAP exception may further SPAC’s ability to complete an developments since the 2003 Adopting provide increased liquidity to the acquisition or other covered transaction. Release, as well as provide issuers with marketplace. The proposed modification is designed greater flexibility to conduct their issuer In addition, if an issuer’s repurchase to maintain reasonable limits on the repurchase programs within the safe meets all of the conditions under Rule availability of the safe harbor consistent harbor without sacrificing investor 10b–18 but fails to meet the Rule’s price with the objectives of the Rule to protection or market integrity. The condition due solely to flickering minimize the market impact of the proposed amendments would allow quotes, the proposed limitation to the issuer’s repurchases, thereby allowing issuer repurchases under conditions general disqualification provision the market to establish a security’s price designed to reduce the potential for would disqualify only this otherwise based on independent market forces manipulative abuse without either compliant Rule 10b–18 purchase, rather without undue influence by the issuer. imposing undue restrictions on the than disqualifying all of the issuer’s Moreover, even with the proposed operation of issuer repurchases or other purchases from the safe harbor for modification to the ‘‘merger exclusion,’’ undermining the economic benefit such that day. The proposed amendments to SPAC issuers, similar to other issuers, purchases provide investors, issuers, the disqualification provision under the would still be able to effect other and the marketplace. In addition, the Rule also may increase the likelihood repurchases (i.e., privately negotiated proposed amendments would provide that firms would engage in open market repurchases) and certain ordinary clarity as to the scope of permissible repurchases since the execution of an course Rule 10b–18 purchases following market activity for issuers and the otherwise compliant Rule 10b–18 the announcement of a merger or broker-dealers that assist them in their purchase in a fast moving market would covered transaction (subject to repurchasing. Many issuers may be no longer jeopardize the availability of Regulation M’s restricted period and reluctant to repurchase without the the safe harbor for all of an issuer’s any other applicable restriction) so long certainty that their activity comes other Rule 10b–18 purchases that day. as the total amount of the issuer’s Rule within the safe harbor. If an issuer As such, the proposed limitations to the 10b–18 purchases effected on any single effects repurchases in compliance with general disqualification provision may day does not exceed the lesser of 25% Rule 10b–18, it may avoid what might further provide increased liquidity to of the security’s four-week ADTV or the otherwise be substantial and the marketplace. issuer’s average daily Rule 10b–18 unpredictable risks of liability under the The proposal to modify the ‘‘merger purchases during the three full calendar anti-manipulative provisions of the exclusion’’ under the Rule in connection months preceding the date of the Exchange Act. Therefore, the safe harbor with a SPAC acquisition, merger, or announcement of the merger or other may provide increased liquidity to the similar transaction is designed to covered transaction.102 As such, we do marketplace from issuers that would not maintain the integrity of the safe harbor not believe that the proposed repurchase but for the safe harbor. by narrowing its use where an issuer is modification to the ‘‘merger exclusion’’ The proposed modification to the under considerable pressure to complete would unfairly hinder a SPAC’s ability timing condition would maintain an acquisition, merger, or similar to complete an acquisition or other reasonable limits on the safe harbor transaction and effects a substantial covered transaction. In fact, by consistent with the objectives of the amount of open market repurchases extending the ‘‘merger exclusion’’ to the Rule to minimize the market impact of solely to facilitate the intended merger time of the vote by the shareholders of the issuer’s repurchases, thereby or other covered transaction. the SPAC (and not just the vote by the allowing the market to establish a Additionally, as discussed above, these target shareholders), the proposal would security’s price based on independent open market repurchases can have the simply make the safe harbor unavailable market forces without undue influence effect of supporting and/or raising the to SPAC issuers during the period when by the issuer. As such, the proposed market price of the SPAC shares, and the incentive to engage in substantial condition would establish additional cause other investors to buy up shares repurchases to facilitate a corporate reasonable limits on issuer activity that in the SPAC in the open market when action is greatest.103 We also note that may influence market prices at or near they might not otherwise have done so. some SPAC issuers may conduct the open. In addition, the amendment Thus, the proposed modification would privately negotiated repurchases for would allow issuers to carry out their maintain reasonable limits on the which the safe harbor is already repurchase programs more effectively by availability of the safe harbor consistent unavailable. As such, this proposal providing issuers with guidance in with the objectives of the Rule to would not trigger new costs for that complying with Rule 10b–18’s opening minimize the market impact of the purchase limitation, particularly when, issuer’s repurchases, thereby allowing 102 See 17 CFR 240.10b–18(a)(13)(iv)(B)(1). See for example, the principal market has a the market to establish a security’s price also 2003 Adopting Release, 68 FR at 64955. delayed opening in a stock and another based on independent market forces 103 Proposed Rule 10b–18(a)(13)(iv). exchange’s smaller opening transaction without undue influence by the issuer

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and, therefore, help to promote price programs more effectively and within as the total amount of the issuer’s Rule efficiency in the marketplace. the safe harbor. For example, the 10b–18 purchases effected on any single The Commission encourages proposed VWAP exception to the safe day does not exceed the lesser of 25% commenters to provide empirical data harbor’s existing price condition may of the security’s four-week ADTV or the or other facts to support their views increase the likelihood that firms would issuer’s average daily Rule 10b–18 concerning these and any other benefits engage in open market purchases, purchases during the three full calendar not mentioned here. thereby potentially providing increased months preceding the date of the liquidity in issuers’ securities. Finally, announcement of the merger or other VII. Consideration of Burden on 107 Competition and Promotion of the commission preliminarily believes covered transaction. As such, we do Efficiency, Competition, and Capital that the proposed amendments should not believe that the proposed ‘‘ ’’ Formation improve market efficiency by providing modification to the merger exclusion greater clarity and uniformity of the safe would unfairly hinder a SPAC’s ability Section 3(f) of the Exchange Act harbor conditions. It is our to complete an acquisition or other requires the Commission, whenever it understanding that significant market covered transaction. In fact, by engages in rulemaking and is required to changes with respect to trading extending the ‘‘merger exclusion’’ to the consider or determine whether an action strategies and developments in time of the vote by the shareholders of is necessary or appropriate in the public automated trading systems that have the SPAC (and not just the vote by the interest, to consider whether the action increased the speed of trading target shareholders), the proposal would would promote efficiency, competition, simply make the safe harbor unavailable 104 (evidenced by flickering quotes) have and capital formation. In addition, made it increasingly difficult for issuers to SPAC issuers when the incentive to Section 23(a)(2) of the Exchange Act to operate within the Rule. As such, the engage in substantial repurchases to requires the Commission, when making proposed modifications to the Rule facilitate a corporate action is rules under the Exchange Act, to 108 would clarify and modernize the Rule’s greatest. consider the impact such rules would provisions in light of market The Commission has considered the have on competition.105 Exchange Act developments since the Rule’s adoption, proposed amendments in light of the Section 23(a)(2) prohibits the providing the market with additional standards cited in Section 23(a)(2) and Commission from adopting any rule that comfort while engaging in issuer believes preliminarily that, if adopted, would impose a burden on competition repurchases. they would not likely impose any not necessary or appropriate in In addition, we believe that the significant burden on competition not furtherance of the purposes of the proposed modification to the ‘‘merger necessary or appropriate in furtherance Exchange Act. exclusion’’ in connection with SPAC of the Exchange Act. We believe the We believe the proposed amendments proposed VWAP exception to the Rule’s would have minimal impact on the acquisitions would have minimal impact on the promotion of price price condition, the proposed promotion of price efficiency and amendments to the Rule’s opening capital formation and preliminarily efficiency and capital formation. While the proposed modification may impact purchase condition, and the proposed believe that these proposals would limitation of the general disqualification promote efficiency, competition and an issuer’s ability to effect all of their issuer repurchases within the safe provision under the Rule might help to capital formation by enhancing market avoid undermining competition by transparency, promoting liquidity in harbor, the proposed modification is designed to maintain reasonable limits increasing the likelihood that more issuer securities and providing clarity to issuers will be able to effect qualifying on the availability of the safe harbor 106 market participants engaging in issuer Rule 10b–18 repurchases within the safe repurchases. consistent with the objectives of the Rule to minimize the market impact of harbor. In addition, we believe that the First, the proposed modification to ‘‘ the issuer’s repurchases, thereby proposed modification to the merger the timing condition would promote exclusion’’ in connection with a SPAC price transparency in issuer securities. allowing the market to establish a security’s price based on independent acquisition would have a minimal The proposed modifications to Rule impact on competition as SPAC issuers, 10b–18’s timing condition are designed market forces without undue influence by the issuer. An efficient market similar to other issuers, would still be to minimize the market impact of an able to effect other repurchases (i.e., issuer’s repurchases during a period (the generally promotes capital formation. Moreover, even with the proposed privately negotiated repurchases) and market open) where market activity is certain ordinary course Rule 10b–18 considered to be a significant indicator modification to the ‘‘merger exclusion,’’ SPAC issuers, similar to other issuers, purchases following the announcement of the direction of trading, the strength of a merger or other acquisition. of demand, and the current market would still be able to effect other repurchases (i.e., privately negotiated Moreover, Rule 10b–18 is a safe harbor value of the security. This additional, rather than a mandatory rule, and as reasonable limit on issuer activity, repurchases) and certain ordinary course Rule 10b–18 purchases following such, issuers choose whether or not to consistent with the objectives of the use it. Many issuers might be reluctant Rule, would allow the market to the announcement of a merger or covered transaction (subject to to repurchase without the safe harbor. establish a security’s price based on Therefore, the safe harbor may provide independent market forces without Regulation M’s restricted period and any other applicable restriction) so long increased liquidity to the marketplace undue influence by the issuer, thereby from issuers that would not repurchase further promoting price transparency at but for the safe harbor. Issuers also have the market open. Second, the proposed 106 As discussed above, because the benefit of a safe harbor is only appropriate during ‘‘normal’’ the option to repurchase securities amendments to the Rule would promote market conditions, and not where there is a outside the Rule 10b–18 safe harbor increased liquidity in issuer securities, heightened incentive to engage in substantial conditions without raising a by providing issuers with additional repurchase activity solely to facilitate a corporate presumption of manipulation. flexibility to conduct their repurchase action, we believe that extending the ‘‘merger exclusion’’ to the time of the vote by the shareholders of the SPAC (and not just the vote by 107 See 17 CFR 240.10b–18(a)(13)(iv)(B)(1). See 104 15 U.S.C. 78c(f). the target shareholders) is warranted. See also supra also 2003 Adopting Release, 68 FR at 64955. 105 15 U.S.C. 78c(f). note 80. 108 Proposed Rule 10b–18(a)(13)(iv).

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Moreover, the proposed version of the The proposed amendments are 78i(a)(6), 78j(b), 78l, 78m(e), 78o, 78o(c), Rule 10b–18 safe harbor, like the current intended to clarify and modernize the and 78w(a). Rule, would apply to all issuers. Thus, safe harbor provisions. In particular, the List of Subjects in 17 CFR Part 240 we do not believe the proposed proposal to modify the price condition amendments would have a significant is intended to provide issuers with Brokers, Dealers, Issuers, Securities. effect on competition because all issuers greater flexibility to conduct their issuer For the reasons set forth in the have the option of complying with the repurchase programs within the safe preamble, Title 17, Chapter II of the manner, volume, time and price harbor under conditions designed to Code of Federal Regulations is proposed conditions. reduce the potential for abuse. The to be amended as follows: The Commission requests comment proposal to limit the general on whether the proposed amendments, disqualification provision is intended to PART 240—GENERAL RULES AND if adopted, would promote efficiency, provide issuers with additional REGULATIONS, SECURITIES competition, and capital formation. flexibility to conduct their share EXCHANGE ACT OF 1934 Commenters are requested to provide repurchase programs in fast moving empirical data and other factual support markets. At the same time, the proposals 1. The authority citation for Part 240 for their views if possible. to modify the timing condition and the continues to read in part as follows: ‘‘merger exclusion’’ provision are Authority: 15 U.S.C. 77c, 77d, 77g, 77j, VIII. Consideration of Impact on the intended to maintain reasonable limits 77s, 77z–2, 77z–3, 77eee, 77ggg, 77nnn, Economy on the safe harbor while furthering the 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 78j, For purposes of the Small Business objectives of Rule 10b–18. The 78j–1, 78k, 78k–1, 78l, 78m, 78n, 78o, 78p, Regulatory Enforcement Fairness Act of Commission believes that the proposed 78q, 78s, 78u–5, 78w, 78x, 78ll, 78mm, 80a– 1996, or ‘‘SBREFA,’’ 109 we must advise 20, 80a–23, 80a–29, 80a–37, 80b–3, 80b–4, amendments would impose negligible 80b–11, and 7201 et seq.; and 18 U.S.C. 1350, the Office of Management and Budget as costs, if any, on issuers and would not, unless otherwise noted. to whether the proposed regulation if adopted, have a significant impact on * * * * * constitutes a ‘‘major’’ rule. Under a substantial number of small entities. 2. Section 240.10b–18 is amended by: SBREFA, a rule is considered ‘‘major’’ Based on Exchange Act Rule 0–10, a a. Revising the next to last sentence of where, if adopted, it results or is likely small issuer is one that on the last day the Preliminary Note 1; to result in: of its most recent fiscal year had total b. Revising the term ‘‘Item 15(e)’’ to • An annual effect on the economy of assets of $5,000,000 or less. The read ‘‘Item 16E’’ in Preliminary Note 2; $100 million or more (either in the form Commission believes that the majority c. Revising paragraph (a)(5)(iii) and of an increase or a decrease); of issuers effecting repurchase programs the introductory text of paragraph • A major increase in costs or prices 112 are not small entities. Moreover, any (a)(13)(iv); for consumers or individual industries; costs related to complying with the d. Adding paragraph (a)(14); and or proposed amendments to Rule 10b–18 e. Revising paragraphs (b)(2)(i), • Significant adverse effect on would be assumed voluntarily because (b)(3)(i) and (d). competition, investment or innovation. the Rule provides an optional safe The addition and revisions read as ‘‘ ’’ If a rule is major, its effectiveness harbor. follows: will generally be delayed for 60 days We encourage written comments pending Congressional review. We regarding this certification. The § 240.10b–18 Purchases of certain equity request comment on the potential Commission requests that commenters securities by the issuer and others. impact of the proposed amendments on describe the nature of any impact on * * * * * the economy on an annual basis. small entities and provide empirical 1. * * * Except as provided in Commenters are requested to provide data to support the extent of such paragraph (d)(2) of this section, failure empirical data and other factual support impact. In particular, the Commission to meet any one of the four conditions for their view to the extent possible. requests comment on: (i) The number of will remove all of the issuer’s IX. Regulatory Flexibility Act small entities that would be affected by repurchases from the safe harbor for that Certification the proposed amendments to the Rule, day. * * * (ii) the nature of any impact the * * * * * Section 3(a) of the Regulatory proposed amendments would have on (a) * * * ‘‘ ’’ 110 Flexibility Act ( RFA ) requires the small entities and empirical data (5) * * * Commission to undertake an initial supporting the extent of the impact, and (iii) Is at least 20 round lots of the regulatory flexibility analysis of a (iii) how to quantify the number of security and totals 150 percent or more proposed rule on small entities, unless small entities that would be affected by of the ADTV for that security or, in the the Commission certifies that the rule, if or how to quantify the impact of the event that ADTV data are unavailable, is adopted, would not have a significant proposed amendments. at least 20 round lots of the security and economic impact on a substantial totals at least one-tenth of one percent number of small entities.111 Pursuant to X. Statutory Basis and Text of Proposed Amendment (.001) of the outstanding shares of the Section 605(b) of the RFA, the security, exclusive of any shares owned Commission hereby certifies that the The Rule amendments are being by any affiliate; Provided, however, That proposed amendments to Rule 10b–18, proposed pursuant to Sections 2, 3, a block under paragraph (a)(5)(i), (ii), would not, if adopted, have a significant 9(a)(6), 10(b), 12, 13(e), 15, 15(c), 23(a) and (iii) of this section shall not include economic impact on a substantial of the Exchange Act, 15 U.S.C. 78b, 78c, any amount a broker or dealer, acting as number of small entities. principal, has accumulated for the 112 The Commission’s OEA estimates that, of the purpose of sale or resale to the issuer or 109 Pub. L. No. 104–121, Title II, 110 Stat. 857 2,218 issuers that announced repurchases during to any affiliated purchaser of the issuer (1996) (codified in various sections of 5 U.S.C. and the years 2005 through 2008 (and that had total as a note to 5 U.S.C. 601). asset figures available), only 25 had assets below $5 if the issuer or such affiliated purchaser 110 5 U.S.C. 603(a). million. Source: Securities Data Company ‘‘SDC’’ knows or has reason to know that such 111 5 U.S.C. 605(b). database. amount was accumulated for such

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purpose, nor shall it include any that day in the security that represent DEPARTMENT OF LABOR amount that a broker or dealer has sold regular way trades effected in short to the issuer or to any affiliated accordance with the conditions of Occupational Safety and Health purchaser of the issuer if the issuer or paragraphs (b)(2) and (b)(3) of this Administration such affiliated purchaser knows or has section that are reported in the reason to know that the sale was a short consolidated system during the primary 29 CFR Part 1904 sale. trading session for the security; and [Docket No. OSHA–2009–0044] * * * * * (vii) The purchase is reported using a (13) * * * RIN 1218–AC45 (iv) Effected during the period from special VWAP trade modifier. the time of public announcement (as (b) * * * Occupational Injury and Illness Recording and Reporting defined in § 230.165(f) of this chapter) (2) * * * of a merger, acquisition, or similar Requirements (i) The opening regular way purchase transaction involving a recapitalization, AGENCY: Occupational Safety and Health reported in the consolidated system, the until either the earlier of the completion Administration (OSHA), Labor. of such transaction or the completion of opening regular way purchase in the principal market for the security, and ACTION: Proposed rule; announcement of the vote by target shareholders or, in the public meeting. case of an acquisition or other covered the opening regular way purchase in the transaction by a special purpose market where the purchase is effected; SUMMARY: OSHA is proposing to revise acquisition company (‘‘SPAC’’), the * * * * * its Occupational Injury and Illness earlier of the completion of such (3) * * * Recording and Reporting transaction or the completion of the (Recordkeeping) regulation to restore a votes by the target and SPAC (i) Does not exceed the highest column to the OSHA 300 Log that shareholders. This exclusion does not independent bid or the last independent employers would use to record work- apply to Rule 10b–18 purchases: transaction price, whichever is higher, related musculoskeletal disorders * * * * * quoted or reported in the consolidated (MSD). The 2001 Recordkeeping final (14) Rule 10b–18 VWAP purchase system at the time the Rule 10b–18 regulation included an MSD column, means a purchase effected at the purchase is effected; Provided, however, but the requirement was deleted before volume-weighted average price that Rule 10b–18 VWAP purchases, as the regulation became effective. This (‘‘VWAP’’) by or on behalf of an issuer defined in paragraph (a)(14) of this proposed rule would require employers or an affiliated purchaser of the issuer section, shall be deemed to satisfy to place a check mark in the MSD that meets the conditions of paragraphs paragraph (b)(3)(i) of this section; column, instead of the column they (b)(1), (b)(2), and (b)(4) of this section * * * * * currently mark, if a case is an MSD that and the following criteria: meets the Recordkeeping regulation’s (i) The purchase is for a security that (d) Other purchases. (1) No general recording requirements. presumption shall arise that an issuer or qualifies as an ‘‘actively-traded security’’ DATES: Written comments: Comments (as defined in § 242.101(c)(1) of this an affiliated purchaser has violated the must be submitted (postmarked, sent, or chapter); anti-manipulation provisions of section received) by March 15, 2010. (ii) The purchase is entered into or 9(a)(2) or 10(b) of the Act (15 U.S.C. Public meeting: OSHA will hold a matched before the opening of the 78i(a)(2) or 78j(b)), or § 240.10b–5, if the public meeting on the proposed rule regular trading session; Rule 10b–18 purchases of such issuer or from 9 a.m. to 5 p.m. on March 9, 2010. (iii) The execution price of the VWAP affiliated purchaser do not meet the If necessary, the meeting may be purchase is determined based on all conditions specified in paragraph (b) or extended to subsequent days. regular way trades effected in (c) of this section; and Requests to speak at the public accordance with the conditions of meeting and requests for special paragraphs (b)(2) and (b)(3) of this (2) A Rule 10b–18 purchase of an issuer or affiliated purchaser that meets accommodation at the meeting: You section that are reported in the must submit requests to speak at the consolidated system during the primary the conditions specified in paragraph (b) or (c) of this section at the time the public meeting and requests for special trading session for the security; accommodations to attend the meeting (iv) The purchase does not exceed purchase order is entered but does not by February 16, 2010. 10% of the security’s relevant average meet the price condition specified in daily trading volume; paragraph (b)(3)(i) of this section at the ADDRESSES: Written comments and (v) The purchase is not effected for time the purchase is effected due to requests to speak at the public meeting: the purpose of creating actual, or flickering quotes shall remove only such You may submit comments and requests apparent, active trading in or otherwise purchase, rather than all of the issuer’s to speak, identified by docket number OSHA–2009–0044, or regulatory affecting the price of any security; other Rule 10b–18 purchases, from the information number (RIN) 1218–AC45, (vi) The VWAP assigned to the safe harbor for that day. purchase is calculated by: by any of the following methods: (A) Calculating the values for every Dated: January 25, 2010. Electronically: You may submit regular way trade reported in the By the Commission. comments, requests to speak, and consolidated system during the regular Elizabeth M. Murphy, attachments electronically at http:// www.regulations.gov, which is the trading session, except as provided in Secretary. paragraph (a)(14)(iii) of this section, by Federal eRulemaking Portal. Follow the [FR Doc. 2010–1856 Filed 1–28–10; 8:45 am] multiplying each such price by the total instructions on-line for making number of shares traded at that price; BILLING CODE 8011–01–P electronic submissions; (B) Compiling an aggregate sum of all Fax: If your submission, including values; and attachments, does not exceed 10 pages, (C) Dividing the aggregate sum by the you may fax them to the OSHA Docket total number of trade reported shares for Office at (202) 693–1648; or

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Mail, hand delivery, express mail, available for inspection and copying at enforcement efforts to address messenger or courier service: You must the OSHA Docket Office. workplace MSDs; and will provide submit your comments, requests to Electronic copies of this Federal useful establishment-level information speak, and attachments to the OSHA Register document are available at that will help both employers and Docket Office, Docket Number OSHA– http://www.regulations.gov. This employees readily identify the 2009–0044, U.S. Department of Labor, document, as well as news releases and incidence of MSDs. Room N–2625, 200 Constitution other relevant information, is available OSHA stresses that the purpose of this Avenue, NW., Washington, DC 20210; at OSHA’s Web page at http:// rulemaking is solely to improve data telephone (202) 693–2350 (OSHA’s TTY www.osha.gov. gathering regarding work-related MSDs. number is (877) 889–5627). Deliveries FOR FURTHER INFORMATION CONTACT: For The proposed rule does not require (hand, express mail, messenger and press inquiries: Jennifer Ashley, OSHA, employers to take any action other than courier service) are accepted during the Office of Communications, Room N– to check the MSD column on the OSHA Department of Labor’s and Docket 3647, U.S. Department of Labor, 200 300 log if a work-related MSD case Office’s normal business hours, 8:15 Constitution Avenue, NW., Washington, occurs that meets the general recording a.m.–4:45 p.m., e.t. DC 20210; telephone (202) 693–1999. requirements of the Recordkeeping Public meeting: The public meeting For general and technical information regulation. Unlike OSHA standards, the will be held in C 5320, Room 6, U.S. on the proposed rule: Jim Maddux, proposed rule does not require Department of Labor, 200 Constitution Acting Deputy Director, OSHA employers to implement controls to Avenue, NW., Washington, DC 20210. Directorate of Standards and Guidance, prevent and control employee exposure Requests for special accommodation: Room N–3718, U.S. Department of to an identified occupational hazard. Submit requests for special Labor, 200 Constitution Avenue, NW., I. Background accommodations to attend the public Washington, DC 20210; telephone (202) meeting to Veneta Chatmon, OSHA, 693–1950. Regulatory History Office of Communications, Room N– For the public meeting: Veneta On January 19, 2001, OSHA 3647, U.S. Department of Labor, 200 Chatmon, OSHA, Office of published the revised Recordkeeping Constitution Avenue, NW., Washington, Communications, Room N–3647, U.S. rule, which took effect on January 1, DC 20210; telephone (202) 693–1999; Department of Labor, 200 Constitution 2002 (66 FR 5916). The rule contained e-mail [email protected]. Avenue, NW., Washington, DC 20210; a section, which never became effective Instructions for submitting comments, telephone (202) 693–1999. (Section 1904.12), that would have requests to speak, and requests for SUPPLEMENTARY INFORMATION: OSHA is required that any MSD meeting the special accommodation: All proposing to revise its Recordkeeping regulation’s general recording criteria be submissions must include the docket regulation (29 CFR part 1904) to restore recorded on the OSHA 300 Log by number (Docket No. OSHA–2009–0044) a column to the OSHA 300 Log that checking the MSD column. Section or the RIN number (RIN 1218–AC45) for employers would use to record work- 1904.12(b)(1) of the Recordkeeping rule this rulemaking. Because of security- related musculoskeletal disorders defined MSDs as ‘‘disorders of the related procedures, submission by (MSD). The 2001 Recordkeeping final muscles, nerves, tendons, ligaments, regular mail may result in significant regulation included an MSD column, joints, cartilage and spinal discs, except delay. Please contact the OSHA Docket but the requirement was deleted before those caused by slips, trips, falls, motor Office for information about security it became effective (66 FR 5916, 6129 (1/ vehicle accidents or other similar procedures for making submissions by 19/2001)). The proposed rule would accidents’’ (66 FR 6129). Section hand delivery, express delivery, and require employers to place a check mark 1904.12(b)(2) clarified that an MSD, like messenger or courier service. in the MSD column, instead of the any other injury or illness, was All comments and requests to speak, column they mark now, if the case is an recordable if it ‘‘is work-related, and is including any personal information you MSD and meets the general recording a new case, and meets one or more of provide, are placed in the public docket requirements of the Recordkeeping rule. the general recording criteria’’ in without change and may be made The rule also proposes, for this §§ 1904.5, 1904.6 and 1904.7 (66 FR available online at http:// recordkeeping purpose only, a 6129–6130). www.regulations.gov. Therefore, OSHA definition of MSD that is identical to the Prior to revision of the Recordkeeping cautions you about submitting personal one contained in the 2001 final regulation in 2001, OSHA’s injury and information such as social security Recordkeeping rule. In addition, OSHA illness recording form (the OSHA 200 numbers and birthdates. For further proposes an entry for the total number Log) did not contain an MSD column. information on submitting comments of MSDs on the OSHA 300A form, the Instead, the OSHA 200 Log had a and requests to speak, plus additional form that employers use to annually column for ‘‘repeated trauma’’ cases. information on the rulemaking process, summarize their work-related injuries Repeated trauma included some, but not see the ‘‘Public Participation’’ heading in and illnesses (see 29 CFR 1904.32). all, MSDs (e.g., it excluded back MSDs) the SUPPLEMENTARY INFORMATION section In 2003 OSHA deleted the MSD and included some non-MSD cases, of this notice. provisions (column and definition) from such as occupational hearing loss. In the Docket: To read or download the 2001 Recordkeeping rule (68 FR preamble to the 2001 Recordkeeping submissions in response to this Federal 38601). However, after further rule, the Agency concluded, after Register notice, go to docket number consideration and analysis, the Agency extensive consultation with the Bureau OSHA–2009–0044, at http:// believes that information generated from of Labor Statistics (BLS) and the regulations.gov. All submissions are the MSD column will improve the National Institute for Occupational listed in the http://regulations.gov accuracy and completeness of national Safety and Health (NIOSH), that adding index, however, some information (e.g., occupational injury and illness an MSD column to the new OSHA 300 copyrighted material) is not publicly statistics; will provide valuable and Log was ‘‘essential to obtain an accurate available to read or download through industry specific information to assist picture of the MSD problem in the that Web page. All submissions, OSHA in effectively targeting its United States’’ (66 FR 6030). OSHA also including copyrighted material, are inspection, outreach, guidance and noted that, in the past, determining the

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number of MSD cases had been warranted if a type of injury or illness BLS Statistical Program complicated. It required close was misrepresented in the BLS data for cooperation between OSHA and BLS, cases resulting in days away from work BLS is the Federal agency responsible since MSDs were not recorded in a (68 FR at 38605). Based on this, OSHA for producing national occupational single column. It also required special concluded there was a need to create a injury and illness statistics. BLS computer analyses to calculate MSD separate column for occupational produces information on two basic numbers. OSHA said that adding an hearing loss. OSHA reasoned that, since categories of non-fatal occupational MSD column to the 300 Log not only many hearing loss cases do not result in injuries and illnesses: (1) all injuries would permit ‘‘more complete and days away from work, the BLS statistics and illnesses combined, and (2) injuries accurate reporting of these disorders’’ in on those cases ‘‘represented only a and illnesses that result in days away the national statistics, but also ‘‘provide minor fraction’’ of the total occupational from work. a useful analytical tool at the hearing loss that workers experienced For all occupational injuries and establishment level’’ (66 FR 6030). In (68 FR at 38605). The column for illnesses combined, BLS publishes addition, OSHA said that capturing all hearing loss was added to the log in aggregate and industry totals for the recordable MSDs in a ‘‘single entry’’ 2003 (67 FR at 44037). number and rates of injuries and would ‘‘allow employers, employees, illnesses. BLS breaks down the authorized representatives, and Consultation With ACCSH and HHS aggregate and industry injury and government representatives to As required by the Contract Work illness totals into cases that result in determine, at a glance, what the Hours and Safety Standards Act lost-work days and those that do not incidence of these disorders in the (Construction Safety Act) (40 U.S.C. result in lost-workdays. For establishment is’’ (66 FR 6030). 3704) and OSHA regulations (29 CFR occupational illnesses (skin diseases or On October 12, 2001, after providing 1911.10(a) and 1912.3(a)), OSHA has disorders, respiratory conditions, notice and seeking comment (66 FR consulted with the Advisory Committee poisonings, hearing loss, and all other 35113 (7/3/2001)), OSHA delayed the on Construction Safety and Health illnesses), BLS also publishes the totals effective date of § 1904.12 of the (ACCSH) about this proposal. OSHA from the illness columns on the OSHA Recordkeeping rule (66 FR 52031). At provided ACCSH with the materials 300 Log (BLS, ‘‘Workplace Injuries and that time, the Agency was reconsidering necessary to deliberate about the Illnesses in 2007,’’ available on the BLS the MSD column requirement and MSD proposed rule and, in December 2009, Web page at http://www.bls.gov). BLS definition in light of the Secretary of OSHA met with ACCSH to discuss the makes the detailed and aggregate results Labor’s decision to develop a rulemaking, answer their questions, and available for both research and for comprehensive plan to address receive the committee’s comments and public information. ergonomic hazards (66 FR 52032). On recommendations. BLS only publishes detailed April 5, 2002, OSHA announced the On December 11, 2009, ACCSH information about injuries and illnesses plan, which included a combination of unanimously recommended that OSHA that result in days away from work. The industry-targeted guidelines, add an MSD column to the OSHA 300 detailed information on injuries and enforcement measures, workplace and 300A recordkeeping forms. The illnesses resulting in days away from outreach, and a National Advisory committee also unanimously work, called case characteristics, is Committee on Ergonomics (see OSHA’s recommended that OSHA: highlight the derived from a survey BLS conducts to Web page at http://www.osha.gov; 68 FR ‘‘ ’’ elicit information from employers about 38601, 38602). On December 17, 2002, do not include language in the the specific characteristics of these following notice and comment (67 FR proposed MSD definition that is cases. Case characteristics include the 44121 (7/1/2002)), OSHA again delayed intended to make clear that MSDs do employee’s age, sex, occupation, and the effective date of § 1904.12, not include disorders caused by slips, length of service; the employer’s explaining that the Agency had not yet trips, falls, motor vehicle accidents, or industry classification; the part of the decided on the correct approach for other similar accidents; and, to the body affected; the source of injury (e.g., dealing with the MSD definition in the extent possible, include additional bodily motion or position, machinery, Recordkeeping regulation (67 FR 77165, common examples of MSDs. OSHA is fire); and the causal event or exposure 77166). requesting comment on the definition of On June 30, 2003, OSHA deleted MSD in this rulemaking, including (e.g., overexertion, repetitive motion, § 1904.12 from the Recordkeeping rule, identification of any additional fall). after determining that the MSD column examples of common MSDs that would To produce information on MSDs that was not necessary or supported by the make clear the MSDs that are to be resulted in days away from work, BLS record (68 FR 38601, 38605). OSHA recorded. OSHA has modified the uses information from its survey about explained that it was not persuaded that proposed regulatory text to highlight the the nature of the injury or illness and the MSD column would provide the ‘‘DO NOT include’’ language by using all the event or exposure leading to the type of detailed information that would capital letters. Other highlighting injury or illness. Cases that BLS reports make it a useful tool for addressing techniques, such as italics, bold, or as MSDs include those in which the MSDs at the establishment level; underline are reserved by the Federal nature of the injury is a sprain, strain, materially improve national statistics on Register for other purposes, and cannot tear, soreness, hernia, carpal tunnel MSDs; or help to ensure effective be used for emphasis. OSHA asks for syndrome or other similar type of injury enforcement of section 5(a)(1) (the comments on alternative methods the to the soft tissue structures, and in General Duty Clause) of the Agency could use to make clear that which the causal event is bodily Occupational Safety and Health Act of MSDs do not include disorders caused movement, such as bending, climbing, 1970 (OSH Act) (29 U.S.C. 651, 656). by slips, trips, falls, motor vehicle reaching, twisting, overexertion, or The Agency said that the existing MSD accidents, or other similar accidents. repetition (BLS, ‘‘Lost-Worktime Injuries data published by BLS were adequate to OSHA has also consulted with the and Illnesses: Characteristics and provide information for OSHA and the Department of Health and Human Resulting Time Away From Work, public. The Agency did note, however, Services (HHS), as required by Section 2007,’’ available on the BLS Web page at that the addition of columns might be 8(c) of the OSH Act (29 U.S.C. 657). http://www.bls.gov).

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II. Legal Authority regulations ‘‘requiring employers to illnesses statistics. It will ensure that The OSH Act authorizes the Secretary maintain accurate records of, and to OSHA has more complete information to issue two types of occupational safety make periodic reports on, work-related to help the agency effectively target its and health rules: standards and deaths, injuries and illnesses other than inspection, guidance, outreach, and regulations. The OSH Act defines minor injuries requiring only first aid enforcement efforts to address MSDs. ‘‘occupational safety and health treatment and which do not involve Finally, the proposal will provide easily standard,’’ which is authorized by medical treatment, loss of identifiable information at the section 6 of the OSH Act (29 U.S.C. consciousness, restriction of work or establishment level that will be useful ’’ 655), as a rule that ‘‘requires conditions, motion, or transfer to another job (29 for both employers and employees. U.S.C. 657(c)(2). Section 8(g)(2) of the or the adoption or use of one or more III. Summary and Explanation of practices, means, methods, operations, OSH Act broadly empowers the ‘‘ Proposed Rule or processes, reasonably necessary or Secretary to prescribe such rules and regulations as [s]he may deem necessary appropriate to provide safe or healthful MSD Column to carry out [her] responsibilities under employment and places of employment’’ OSHA proposes to restore on the the Act’’ (29 U.S.C. 657(g)(2)). (29 U.S.C. 652(8)). Standards specify Section 24 of the OSH Act contains a OSHA 300 Log the MSD column that the remedial measures to be taken to similar grant of authority. It requires the Agency included in the 2001 final prevent and control employee exposure Secretary to ‘‘develop and maintain an Recordkeeping rule. After further to identified occupational hazards effective program of collection, consideration and analysis, OSHA (Louisiana Chemical Ass’n v. Bingham, compilation, and analysis of believes that the MSD column would 657 F.2d 777, 781 (5th Cit. 1981); United occupational safety and health provide valuable information for Steelworkers of America v. Reich, 763 statistics’’ and ‘‘compile accurate maintaining complete and accurate F.2d 728, 735 (3d Cir. 1985) (court held statistics on work injuries and illnesses national occupational injury and illness Hazard Communication rule was a which shall include all disabling, statistics; assist OSHA in targeting its standard because it aimed to ameliorate serious, or significant injuries and inspection, outreach, guidance, and the significant risk of inadequate illnesses, whether or not involving loss enforcement efforts to address MSDs; communication about hazardous of time from work, other than minor and provide easily identifiable chemicals)). injuries requiring only first aid information at the establishment level Regulations, by contrast, are the treatment and which do not involve that will be useful for both employers means to effectuate other statutory medical treatment, loss of and employees. purposes, including the collection and consciousness, restriction of work or Having data from the MSD column dissemination of records of motion, or transfer to another job’’ (29 would improve national statistics on occupational injuries and illnesses. U.S.C. 673(a)). Section 24 also requires MSDs in several ways. It would allow Courts of appeals have held that OSHA employers to ‘‘file such reports [of work BLS to collect and annually report the recordkeeping rules are regulations and injuries and illnesses] with the total number and rate of MSDs, both not standards (Louisiana Chemical Secretary’’ as she may prescribe by nationally and in specific industries, not Ass’n, 657 F.2d at 782–785 (Access to regulation (29 U.S.C. 673(e)). just the figures for cases that result in Employee Exposure and Medical In addition, the Secretary’s days away from work (as is currently Records); Workplace Health & Safety responsibilities under the OSH Act are reported). Currently, this basic Council v. Reich, 56 F.3d 1465, 1467– defined largely by its enumerated information is unavailable. Having the 1469 (D.C. Cir. 1995) (Reporting of purposes, which include ‘‘[p]roviding total number of MSDs would provide Fatality or Multiple Hospitalization appropriate reporting procedures that BLS with more complete data for Incidents)). These courts applied a will help achieve the objectives of this analyzing the magnitude of the MSD functional test to differentiate between Act and accurately describe the nature problem and trends over time in the standards and regulations: standards of the occupational safety and health country as a whole, as well as in aim toward correction of identified problem’’ (29 U.S.C. 651(b)(12)). specific industries. Having more hazards, while regulations serve general Where an agency is authorized to complete MSD data would assist OSHA, enforcement and detection purposes prescribe regulations necessary to and other safety and health policy (Workplace Health & Safety Council, 56 implement a statutory provision or makers, in understanding MSDs and F.3d at 1468). purpose, a regulation promulgated making informed decisions on policies OSHA is issuing this proposed under such authority is valid ‘‘so long as concerning workplace MSDs. revision of the Recordkeeping regulation it is reasonably related to the enabling Prior to the 2001 Recordkeeping rule, pursuant to authority expressly granted legislation.’’ Mourning v. Family the OSHA 200 Log did not contain an by sections 8 and 24 of the OSH Act (29 Publications Service, Inc., 411 U.S. 356, MSD column, but it did have a U.S.C. 657, 673). Section 8(c)(1) requires 369 (1973). See also Louisiana Chemical ‘‘repeated trauma’’ column. However, each employer to ‘‘make, keep and Assn. v. Bingham, 550 F. Supp. 1136, the column did not include all MSDs preserve, and make available to the 1138–1140 (W.D. La. 1982), aff’d, 731 (i.e., it excluded back MSDs) and Secretary [of Labor] or the Secretary of F.2d 280 (5th Cir. 1984) (records access included some non-MSDs (i.e., Health and Human Services, such rule is directly related to the goals stated occupational hearing loss). As a result, records regarding his activities relating in the OSH Act and supported by the the column did not provide accurate to this Act as the Secretary, in language of section 8). The proposed information on MSDs. The MSD column cooperation with the Secretary of Health MSD requirements are reasonably that OSHA proposes would correct that and Human Services, may prescribe by related to the purposes of the OSH Act problem. The proposed MSD definition, regulation as necessary or appropriate and serve administrative functions which is identical to the definition in for the enforcement of this Act or for necessary to carry out the purposes of the 2001 final Recordkeeping rule, developing information regarding the sections 8 and 24 of the OSH Act. As covers all MSDs, including back cases. causes and prevention of occupational discussed below, the proposed rule will The proposed definition does not cover accidents and illnesses.’’ Section 8(c)(2) improve the completeness and quality hearing loss cases, which already have directs the Secretary to prescribe of national occupational injuries and a separate column on the OSHA 300

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Log. OSHA believes that information injuries and illnesses with days away injuries and illnesses, cases with days from the MSD column would help to from work (BLS, ‘‘Lost-Worktime away from work, cases involving ensure that national statistics more Injuries and Illnesses: Characteristics restricted work or job transfer, and cases accurately reflect the full extent of MSD and Resulting Time Away From Work, of each specific illness listed on the log. problems in U.S. workplaces. 2007’’) and 8.4% of all occupational However, the summary data do not In its 2003 notice rescinding the MSD injuries and illnesses combined. Clearly include any data specifically on MSDs. column, the agency stated that the total of all MSDs (i.e., cases with Restoring the MSD column on the information from the column would be and without days away from work) OSHA 300 Log would provide the of little statistical value because it would account for a significantly greater Agency with such data. would be general for all MSDs and portion of all occupational injuries and Data from the MSD column would would lack the detailed breakdown of illnesses. OSHA believes it is reasonable also allow OSHA to better target its case characteristics that is available for and appropriate to have a column on the future outreach and guidance efforts and days away from work cases (68 FR log for the type of case that accounts for to more accurately measure the 38605). After careful reconsideration, such a significant portion of all effectiveness of its ongoing efforts. OSHA believes that this conclusion occupational illnesses. OSHA currently uses information about substantially understated the usefulness Further, OSHA believes that having MSDs that resulted in days away from of the MSD column information. As both types of data, the overall number work to estimate whether its programs noted above, the column would enable and rate of MSDs by industry, combined have been effective in reducing the the agency and the public to learn, for with the existing detailed demographic severity of MSDs. Data from an MSD the first time, the total number of MSDs and case characteristic data on cases column, however, would allow the both nationally and by industry sector. with days away from work, will provide agency to better measure whether those Moreover, the MSD category is no a strong statistical tool for researchers. programs have been effective in broader than the other illness categories Having both types of data available may reducing MSDs, including those that did that are included as columns on the allow researchers to make new not result in days away from work. For OSHA 300 Log, and the information inferences about MSDs that have example, if the MSD column had been from those columns has proved useful. previously not been possible. on the OSHA 300 Log when OSHA Like MSDs, each of these columns OSHA also believes that restoring the issued guidelines for nursing homes, combines a class or range of illnesses or MSD column on the 300 Log would help poultry processing, grocery stores, and disorders into a single category. For to eliminate some of the uncertainties in shipyards, the information from that example, respiratory illness includes a existing national occupational illness column would have provided baseline broad range of illnesses differing in statistics. In 2007, the ‘‘all other and post-intervention data to allow etiology and severity. OSHA believes illnesses’’ column on the OSHA 300 Log OSHA to more effectively measure the that information from the MSD column accounted for 62% of all occupational success of those guidelines in reducing would be at least as useful as the illnesses (BLS, ‘‘Workplace Injuries and MSDs. Such data could also be used in valuable data generated from the other Illnesses in 2007’’). OSHA believes that developing inspection programs aimed illness columns already present on the MSDs account for a large portion of ‘‘all at identifying and reducing MSD Log (i.e., skin disorders, respiratory other illnesses.’’ In 2000, the last year hazards. conditions, poisonings, and hearing the OSHA 200 Log contained a repeated Data from the column also would be loss). trauma column, repeated trauma was useful at the establishment level. Having Furthermore, OSHA believes that, the dominant illness reported, an MSD column would provide compared to MSDs, each of these other accounting for 67% of all illnesses (BLS, information that both employers and categories individually account for a ‘‘Workplace Injuries and Illnesses in employees could quickly and easily smaller fraction of the total number of 2000,’’ available on the BLS Webpage at identify at a glance. Although OSHA occupational illnesses. In 2007, for http://www.bls.gov). Even if hearing loss noted in 2003 that employers can instance, skin disorders, the category cases were removed, repeated trauma identify MSDs without the aid of a with the highest number of cases still would have accounted for the specific column (68 FR 38604), OSHA (35,000), accounted for 17% of all majority of all occupational illnesses believes that having readily available illnesses while poisonings, the category reported that year. OSHA believes that MSD information in a single column with the fewest cases (3,400), accounted having the MSD column not only would will save employers and employees time for less than 2% (BLS, ‘‘Workplace help to eliminate some of the in identifying and tracking the Injuries and Illnesses in 2007’’). The uncertainties concerning occupational incidence of MSDs at the establishment. hearing loss column, which OSHA illnesses in the national statistics, but In the absence of the column, a person added in 2001, accounted for 11% of all would also provide better information interested in MSD incidence must study illnesses. The number of skin disorders, on the nature of the large proportion of every entry on the log to determine respiratory conditions, poisonings and illnesses currently reported in the ‘‘all which cases are MSDs. Having the hearing loss cases combined was 78,400 other illnesses’’ column. person responsible for the log identify a in 2007, which was only 38% of all In addition to its statistical value, the case as an MSD up front, at the time it occupational illnesses and less than 2% MSD column would provide valuable is recorded, will be far easier and faster of the total number of occupational information to assist OSHA’s than studying every entry to identify injuries and illnesses (4,002,700) that inspection, outreach, guidance, and which ones are MSDs. Employers would year. enforcement efforts. Each year, OSHA be able to use MSD column data in MSDs, on the other hand, accounted collects summary data from OSHA 300 connection with their efforts to for significantly more occupational Logs from approximately 80,000 determine whether their workplace illnesses than the combined total for the establishments and uses them to programs are effective in reducing specific illnesses currently listed on the schedule targeted inspections in high MSDs. Having the column would also OSHA 300 Log. Looking only at MSDs hazard industries. The summary data make it easier for employees to remain that resulted in days away from work, are comprised of the totals for each informed about MSD hazards associated BLS reported 335,390 MSDs, which column on the OSHA 300 Log. These with their jobs. Being able to easily accounted for 29% of the 1,158,870 data include totals for the number of access data on MSDs in the workplace

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will give employees the type of restricted work and job transfer has • Should OSHA put the MSD column information that will help them to grown significantly during the past back on the OSHA 300 Log? Please actively participate in their own decade. In 1997, for instance, explain. protection. occupational injuries and illnesses • Will the MSD column make it easier OSHA is also reconsidering restoring involving restricted work or job transfer to analyze MSDs? Please explain. the MSD column in light of recent accounted for 36% of all cases (BLS, • If OSHA restores the MSD column, information that indicates employers are ‘‘Lost-Worktime Injuries and Illnesses: how will your industry and recording fewer and fewer cases as days Characteristics and Resulting Time establishment use the additional away from work cases. This increases Away From Work, 1997,’’ available on information? • the importance of understanding what is the BLS Web page at http:// To what extent are employers using happening with the other kinds of cases, www.bls.gov). In 2007, they accounted restricted work and job transfer instead which are not reflected in the BLS for 43% of all injuries and illnesses of time away from work for managing detailed case characteristics analyses. (BLS, ‘‘Lost-Worktime Injuries and MSDs? How are these changes affecting Recently, concerns have been raised the reporting of MSDs? Illnesses: Characteristics and Resulting • about accuracy of workplace injury and Time Away From Work, 2007’’). Will the MSD column result in illness records. In 2008, the U.S. House additional costs to employers? If so, OSHA believes that MSD data may be of Representatives Committee on what are the costs? Will easier analysis particularly affected by these changes in Education and Labor held a hearing to of MSDs offset some of these costs? employer practices, since many MSDs examine the extent of this problem and Please explain. may not fully incapacitate workers and its causes. In June 2008, the Committee may still enable them to perform MSD Definition Staff Majority published a report titled alternative work duties during the ‘‘Hidden Tragedy: Underreporting of Proposed section 1904.12(b)(1) recovery period. As the number of MSD Workplace Injuries and Illnesses’’ defines MSDs as ‘‘disorders of the cases being shifted from days away from (Ex.A). The report identified ergonomics muscles, nerves, tendons, ligaments, work to restricted work continues to injuries as one type of case that has been joints, cartilage and spinal discs.’’ The ‘‘significantly underreported’’ (Ex. A, p. grow, there will be fewer and fewer proposal clarifies that MSDs ‘‘do not 10). The report discussed a series of MSDs represented in BLS detailed include disorders caused by slips, trips, articles in the Charlotte Observer about statistics on cases with days away from falls, motor vehicle accidents, or other MSDs at poultry plants in North and work. The MSD column would ensure similar accidents.’’ In addition, it gives South Carolina (Ex. B, Hall, Alexander that serious MSDs are included in the examples of MSDs, including ‘‘Carpal & Ordonez, ‘‘The Cruelest Cuts: The BLS statistics, regardless of employer tunnel syndrome, Rotator cuff Human Cost of Bringing Poultry to Your practices. syndrome, De Quervain’s disease, Table, Charlotte Observer, February 10, The House Committee on Education Trigger finger, Tarsal tunnel syndrome, 2008). The Charlotte Observer reported and Labor Majority Staff Report also Sciatica, Epicondylitis, Tendinitis, that one South Carolina plant had not found that OSHA’s withdrawal of the Raynaud’s phenomenon, Carpet layers reported any MSDs during a four-year MSD column provision may have knee, Herniated spinal disc, and Low period, even though 12 employees who contributed to the underreporting of back pain.’’ The proposed definition is worked at the plant during that time these incidents (Ex. A, p. 13). When identical to the one OSHA included in said they suffered pain brought on by OSHA removed the MSD column the 2001 final Recordkeeping rule, MSDs, and two said they had carpal provision in 2003, some employers were which never became effective. tunnel surgery paid for by the company. confused about whether they were MSDs have been studied for many The Charlotte Observer reported that the required to record MSD cases. Since years. During that time different terms plant avoided having to record these 2003, OSHA has received numerous have been used to describe these injuries as days away from work cases calls from employers asking whether disorders, including cumulative trauma by bringing injured employees back to MSDs are considered recordable injuries disorders, repetitive motion injuries, the factory within hours of surgery. and illnesses. Although the Agency has repetitive strain injuries, occupational Similarly, OSHA has received been clear in all of its communications overuse syndrome, occupational information about MSD cases in which and outreach activities that, even cervicobrachial disease, occupational employers have scheduled employees without an MSD column, MSDs must be overexertion syndrome, and ergonomic for surgery on Friday afternoons and recorded on the OSHA 300 Log just as injuries. In recent years, MSD has brought them back on Monday using any other injury or illness, some become one of the most frequently used restricted work. Those cases would not confusion remains. Including a specific terms. be recorded as resulting in days away reference in the regulation making it Different definitions for MSDs have from work, so they would not be clear that employers are required to been used for different purposes and by included in the BLS detailed case record MSDs, combined with the different organizations (Exs. C). Despite characteristics analysis. specific MSD column, should provide the differences, these definitions all OSHA believes that these types of clarity and help to finally resolve this share a common goal: to aggregate into changes in employer practices for confusion. one category a class of injuries and illnesses that have certain connections medically managing MSDs may be OSHA requests comment on the or commonalities. These definitions also resulting in underrepresentation in BLS proposal to put back the MSD column statistics for cases with days away from have some common approaches. Like on the OSHA 300 Log, including work. OSHA is concerned that OSHA’s proposed definition, most comment on the following: employers are increasingly using definitions use a general description, • restricted work, job transfers and What are current employer usually of the parts of the body MSDs medical treatment or surgeries without practices regarding recording, tracking, generally affect. For instance, NIOSH lost work time to bring employees back and analysis of MSDs in workplaces? has defined an MSD as a condition or to work more quickly and to avoid • How do employers, employees, ‘‘disorder that involves the muscles, recording MSDs as cases with days researchers and others use MSD data nerves, tendons, ligaments, joints, away from work. Employer use of that are recorded on the OSHA 300 Log? cartilage, or spinal discs’’ (NIOSH,

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‘‘Proceedings of a Meeting to Explore the for Occupational Ergonomics, Second • Should the definition include use of Ergonomics Interventions for the Edition, 1999). examples of MSDs? Should the Mechanical and Electrical Trades,’’ The BLS detailed definition of MSDs, examples be expanded to include hand 2002; NIOSH ‘‘Elements of Ergonomics which has been used for over 10 years, arm vibration syndrome, Guyon’s canal Programs: A Primer Based on utilizes a combination of all these syndrome, radial tunnel syndrome, or Evaluations of Musculoskeletal approaches: hypothenar hammer syndrome. Should Disorders,’’ 1997 DHHS (NIOSH) the definition include other examples? Musculoskeletal Disorders (MSDs) include • Publication No. 97–117. Both cases where the nature of the injury is Are there any MSDs that the documents are available on the NIOSH sprains; strains; tears; back pain; hurt back; proposed definition should exclude? If Web page at http://www.cdc.gov). soreness; pain; hurt; except the back; carpal so, which ones and why? • Many definitions using a general tunnel syndrome; hernia; or musculoskeletal Should the MSD definition include description also contain examples of system and connective tissue diseases and language on exposure or causal risk disorders, when the event or exposure specific types of MSDs to help illustrate factors? Please explain. leading to the injury or illness is bodily • Are there other definitions of MSD the types of disorders the definition is reaction/bending, climbing, crawling, intended to cover. OSHA’s proposed that would be more effective for reaching, twisting, overexertion, or recordkeeping purposes? If so, please definition uses this approach, as does repetition. Cases of Raynaud’s phenomenon, provide them and explain why. the American National Standard tarsal tunnel syndrome, and herniated spinal A10.40, 2007, Reduction of discs are not included, although they may be MSD Recording Criteria Musculoskeletal Problems in considered MSDs, the survey classifies these injuries and illnesses in categories that also Proposed section 1904.12(b)(2) Construction, which defines identifies which injuries and illnesses ‘‘musculoskeletal problems’’ as: include non-MSD cases (See the BLS Webpage at http://www.bls.gov/iif/ must be identified as MSDs on the [I]njuries to the muscle, tendon, sheath, oshdef.htm). OSHA 300 Log. MSDs that meet the nerve, bursa, blood vessel, bone, joint, or general criteria for recordability (i.e., a ligament and musculoskeletal pain or Because there currently is not an MSD work-related new case resulting in swelling, and also where there may not be column on the OSHA 300 Log, BLS medical treatment, job transfer or any obvious evidence of injury, and where must obtain statistics on the number of restriction, or days away from work) are occupational exposure is clearly identified. MSDs resulting in days away from work already required to be recorded on the The injuries include, but are not limited to: by aggregating cases that fall under —Muscular log. The proposed section, like the 2001 —Carpal Tunnel Syndrome certain nature of injury/illness and Recordkeeping rule, specifies that ‘‘there —Throracic Outlet event or exposure codes used to classify are no special criteria’’ for determining —Tenosynovitis cases. As the BLS definition notes, which MSDs to record. Employers —Myalgia having to aggregate cases and would continue to use the same process —Double Crush Syndrome classification codes to obtain the to decide whether an MSD must be —Connective Tissue number of MSDs with days away from recorded, as they are required to do for —Bursitis work has the unavoidable result of any other injury or illness under the —Spasms omitting some disorders (e.g., Raynaud’s Recordkeeping regulation. Under the —Sciatica phenomenon, tarsal tunnel syndrome, —Disc Damage proposal, employers would simply be —Neurological herniated spinal discs) that could required to identify which of those —Vascular otherwise be classified as MSDs. injuries and illnesses are MSDs by —Tendonitis Like BLS, the proposed MSD checking the MSD column on the log —Back definition incorporates a combination of instead of the column they currently approaches. The proposed definition is A number of MSD definitions include mark. essentially identical to the summary The proposed section also guides causal risk factors, events or sources of description of MSDs that BLS uses in its employers to the appropriate sections of exposure to clarify the types of news releases reporting annual case the Recordkeeping regulation that disorders the definition covers. For characteristics data (see e.g., BLS, ‘‘Lost- discuss how to determine whether an example, the U.S. Navy definition of Worktime Injuries and Illnesses: MSD is work-related, is a new case and MSDs includes risk factors such as Characteristics and Resulting Time not a recurrence, and meets the general force, repetition, awkward or static Away From Work, 2007’’), except that recording criteria (i.e., days away from postures, vibration, and contact stress the proposed definition also includes a work, restricted work or transfer to (resulting from occasional, repeated or list of examples of disorders, and the another job, or medical treatment continuous contact between sensitive proposed list includes Raynaud’s beyond first aid). The proposed section body tissues and a hard or sharp object) phenomenon, tarsal tunnel syndrome, is identical to the section OSHA (Ex. C, OPNAVINST 5100.23G, and herniated spinal discs. OSHA included in the 2001 final December 30, 2005). believes that the proposed definition Recordkeeping rule. To clarify the scope, some definitions provides clarity without imposing too OSHA request comments on the exclude disorders that may result from much complexity. OSHA notes that the proposed section. other causes, exposures, or events. The Agency is proposing this MSD MSD definition in ‘‘NIOSH Elements of definition for recordkeeping purposes Subjective Symptoms Ergonomics Programs’’ excludes only, and that there may be other Section 1904.12(b)(3) of the proposed disorders that are ‘‘the result of any definitions that are useful for other rule specifies that the symptoms of an instantaneous or acute event (such as a purposes. MSD are to be treated in exactly the slip, trip, or fall).’’ The Occupational OSHA requests comment on the same manner as symptoms for any other Ergonomics Handbook also used this proposed definition of MSD, including injury or illness. That is, an employer approach (Waldemar Karwowski & comment on the following: must record a case as an MSD if (1) The William S. Marras, eds., The • What MSD definitions are employee experiences ‘‘pain, tingling, Occupational Ergonomics Handbook: employers using currently and for what burning, numbness or any other Fundamentals and Assessment Tools purposes? subjective symptom of an MSD;’’ (2) the

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symptoms are work-related; (3) new; investigation by the employer to indicative of injury or illness under the and (4) meet the general recording determine whether there is a work Recordkeeping regulation’s definition of criteria in the Recordkeeping regulation connection (66 FR 6020). Third, OSHA ‘‘injury or illness.’’ This confusion could (e.g., restricted work, job transfer, days pointed out that the International result in the underreporting of work- away from work, medical treatment Classifications of Diseases, Clinical related MSDs. beyond first aid). As with any injury or Modification (ICM–CM), the official Second, OSHA finds that the language illness, an MSD case would be system of assigning codes to diagnoses in the Compliance Directive also creates recordable only if it meets all of these to diseases, injuries, and illnesses, lists confusion about recordability of MSDs requirements. OSHA included this several MSDs that consist only of pain involving work restriction or job provision in section 1904.12 of the 2001 (66 FR 6020). When health care transfer. OSHA is concerned that Recordkeeping rule (66 FR 6130), but, as professionals diagnose these disorders, employers who assign job transfers or discussed, that section was deleted in they do so on the basis of employee- work restrictions to prevent an injury 2003. OSHA is including the proposed reported pain, evaluating and from worsening may misinterpret the provision to eliminate any potential for confirming them by physical Compliance Directive language and not confusion about when and what MSDs examination (66 FR 6020). Therefore, record the case. Again, this could result are recordable and to carry out the basic OSHA concluded that pain and other in the underreporting of work-related principle that, for recordkeeping subjective symptoms, of and by MSDs. purposes, MSDs should not be treated themselves, may indicate an injury or In addition, OSHA believes that the differently from other occupational illness (66 FR 6020). The agency language in the Compliance Directive is injuries and illnesses. stressed that MSDs should not be not necessary because § 1904.4 of the The Recordkeeping regulation in treated differently from any other kind Recordkeeping regulation clearly and section 1904.46 defines ‘‘injury or of case (66 FR 6021). When the agency fully specifies when cases involving illness’’ as ‘‘an abnormal condition or revoked section 1904.12 in 2003, it work restrictions and transfers must be disorder.’’ As explained in the preamble noted that it was not changing which recorded. The decision tree to the rule, this definition includes pain injuries and illnesses were required to accompanying that provision clearly and other subjective symptoms. ‘‘Pain be recorded, but was only deleting the delineates the decisionmaking process and other symptoms that are wholly requirement to identify cases as MSDs the employer must use to determine subjective are also considered an (68 FR 38606). Thus, this discussion has whether the case is recordable. The abnormal condition or disorder. There is remained an authoritative guide to the decision tree specifies that the first no need for the abnormal condition to current rule’s definition of injury and decision the employer must make is include objective signs to be considered illness. whether the case is an injury or illness an injury or illness.’’ (66 FR 6080). To eliminate any potential for within the meaning of the Although the definition is broad, and is confusion, OSHA also intends to Recordkeeping regulation. If it is not, intentionally so, it captures ‘‘only those remove language from the the case does not meet the very first changes that reflect an adverse change Recordkeeping Compliance Directive requirement for recording, therefore, in the employee’s condition that is of that says that ‘‘minor musculoskeletal any work restriction or job transfer the some significance, i.e., that reach the discomfort’’ is not recordable under employer assigns or voluntarily level of abnormal condition or disorder’’ § 1904.7(b)(4) as a restricted work case implements at this point (i.e., before the (66 FR 6080). OSHA pointed out that ‘‘if a health care professional determines employee has an injury or illness) does including pain and other symptoms in that the employee is fully able to not turn the case into a recordable one. the definition of injury or illness is perform all of his or her routine job On the other hand, if the employer appropriate because their occurrence is functions, and the employer assigns a determines that the employee’s injury or only the starting point of the inquiry work restriction for the purpose of illness, including an MSD, meets the into whether the case is a recordable preventing a more serious injury’’ (CPL definition of ‘‘injury or illness’’ and the injury or illness. Unless the pain or 02–00–135, Chapter 2, Section I(F)). next two inquiries indicate that the case other symptoms are also work-related, This language was first introduced into is work-related and new, then the job new, and reach the level of seriousness OSHA’s initial Recordkeeping transfer or work restriction that results in the Recordkeeping regulation’s Compliance Directive as a result of a from the injury or illness MSD is general recording criteria, the employer settlement agreement between OSHA recordable regardless of its purpose (i.e., does not have to record it (66 FR 6080). and the National Association of to prevent the injury or illness from This definition applies to all injuries Manufacturers (66 FR 66943 (12/27/ getting worse or to allow the employee and illnesses, regardless of whether they 2001)). OSHA agreed to include the to recover from the injury or illness or are MSDs or any other kind of language in its initial Compliance both). OSHA believes that by following condition. Directive but the agreement did not the decision tree in § 1904.4, employers In its 2001 preamble discussion of change the language of the will be able to accurately determine section 1904.12, the agency elaborated Recordkeeping regulation itself. The whether an injury or illness, including on the reasons for including pain and agreement also stipulated that nothing an MSD, must be recorded. similar symptoms within the definition in it affected the Agency’s right to The agency underscored this point in of an ‘‘injury or illness.’’ First, OSHA modify or interpret its Recordkeeping the preamble discussion of job transfer explained that ‘‘symptoms such as pain regulations in the future (66 FR 66943– in the 2001 rule. The agency rejected are one of the primary ways that injuries 44). suggestions to add an exception to and illnesses manifest themselves,’’ OSHA intends to remove the language recordability for voluntary or preventive regardless of the type of injury or illness in the Compliance Directive because of job transfers. The agency explained that (66 FR 6020). Second, symptoms such concerns that it creates confusion about this concept is not relevant to the as pain, burning, and numbness also recording MSDs. First, OSHA is recordkeeping rule: ‘‘generally indicat[e] the existence of concerned that employers may Transfers or restrictions taken before the some underlying physiological misinterpret ‘‘minor musculoskeletal employee has experienced an injury or condition’’ (e.g., inflammation, spinal discomfort’’ to include MSD pain and illness do not meet the first recording disc damage) that warrants further other subjective symptoms that are truly requirement of the recordkeeping rule, i.e.

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that a work-related injury or illness must will consider adding such language to and had no significant impact on small have occurred for recording to be considered the final rule. OSHA requests comment entities, were established at that time at all. * * * However, transfers or on the issue of privacy concern cases, and need not be revisited here. restrictions whose purpose is to allow an including comment on the following: Therefore, the potential costs associated employee to recover from an injury or illness • as well as to keep the injury or illness from Currently, are employers having with this proposal are limited to the becoming worse are recordable because they any difficulty determining whether an time for affected employers to involve restriction or work transfer caused by MSD is a privacy concern case? If so, familiarize themselves with the MSD injury or illness. All restricted work cases how should OSHA clarify this issue in column reporting procedures and the and job transfer cases that result from an the final rule? time to mark MSDs on the OSHA 300 • injury or illness that is work-related are Should OSHA include language in Log. As noted in the Summary and recordable on the employer’s Log’’ (66 FR the final rule clarifying that MSDs are Explanation, this rule involves no 5981). not to be considered privacy concern change in when and under what OSHA requests comment on proposed cases? If so, please explain why. circumstances MSDs are recordable section 1904.12(b)(3). IV. Preliminary Economic Analysis and injuries or illnesses. Since employers Startup Date Regulatory Flexibility Act Certification will use the general recording criteria in the existing Recordkeeping rule for This proposed rule is not a Proposed § 1904.12(b)(4) explains that recording MSDs, there are no costs to ‘‘significant regulatory action’’ within employers would be required to start either employees or employers with the context of Executive Order 12866 1 using the MSD column of the OSHA 300 respect to becoming familiar with Log on January 1, 2011. Changes in or the Unfunded Mandates Reform Act recordability criteria. recording procedures are implemented (UMRA) (2 U.S.C. 1532(a)), or a ‘‘major on January 1 of each year to ensure that rule’’ under the Congressional Review Familiarization With Reporting occupational injury and illness data for Act (5 U.S.C. 801 et seq.).2 The Procedures that year reflect the same process and rulemaking imposes far less than $100 The Agency expects the largest time criteria. The January 1 effective date million in annual costs on the economy, required to comply with the proposed and does not meet any of the other also reflects the annual summary rule will be related to familiarization criteria specified for a significant requirements of section 1904.32. with the MSD column reporting regulatory action or major rule in the Choosing any other date would procedure. At the time of the 2001 Executive Order, UMRA and the complicate the annual summary, result recordkeeping rulemaking, the Agency Congressional Review Act. in errors, and affect the statistics and estimated that it would take 20 minutes programs that rely on the records. The This section addresses the potential costs of the proposed rule. OSHA notes for the average affected employer to 2001 Recordkeeping rule also became familiarize themselves with all of the effective on January 1. In the preamble that this proposal would merely restore the Recordkeeping rule as issued in new recordkeeping requirements and to the 2001 Recordkeeping rule, OSHA procedures (66 FR 6092).3 That estimate agreed with commenters that beginning 2001 (i.e., before the deletion of the MSD column). All findings related to included time for learning the a new requirement on any other date but procedures for recording MSDs. When ‘‘ the economic impact of the 2001 rule, January 1 would create an the Agency subsequently removed the ’’ such as the determinations that the insurmountable number of problems MSD-column requirement in 2003, the (66 FR 6071). For example, if the startup regulation (including the MSD column requirement) was economically feasible Agency did not provide a quantitative date occurred during the middle of a estimate of time or cost savings (68 FR year, it would necessitate that 1 38606). OSHA believes that the employers go back through their OSHA ‘‘Significant regulatory action’’ means any regulatory action that is likely to result in a proposed MSD reporting requirement 300 Log and update it to reflect the regulation that may: would require a fraction of the time that change in the columns on the log. (1) Have an annual effect on the economy of $100 the Agency estimated for employers to or more or adversely affect in a material way the Former Privacy Provisions economy, a sector of the economy, productivity, familiarize themselves with all of the In § 1904.29 of the 2001 competition, jobs, the environment, public health or provisions in the 2001 Recordkeeping Recordkeeping rule, OSHA clarified that safety, or State, local, or tribal governments or rule, including the MSD column. As communities; such, OSHA preliminarily estimates that certain sensitive occupational injuries (2) Create a serious inconsistency or otherwise and illnesses were to be considered interfere with an action taken or planned by another it would take affected employers five privacy concern cases (§ 1904.29(b)(7)), agency; minutes to familiarize themselves with and set forth specific requirements for (3) Materially alter the budgetary impact of the proposed MSD reporting entitlements, grants, user fees, or loan programs or protecting the identity of injured or ill procedures. the rights and obligations of recipients thereof; or The proposed rule affects all firms workers (§ 1904.29(b)(9) and (10)). The (4) Raise novel legal or policy issues arising out MSD provisions in the 2001 rule of legal mandates, the President’s priorities, or the within OSHA jurisdiction that have 10 clarified that MSDs were not to be principles set forth in this Executive Order (E.O. or more employees at some time in the considered privacy concern cases 12866 Section 3(f)). year, except for those low hazard 2 A ‘‘major rule’’ means any rule that the industries that are not required to (§ 1904.29(b)(7)(vi)). Administrator of the Office of Information and At this time OSHA is not proposing Regulatory Affairs of the Office of Management and routinely prepare an OSHA Form 300 to add a provision specifying that MSDs Budget finds has resulted in or is likely to result and 301. In 2008, OSHA put out an are not considered privacy concern in: Information Collection Request (ICR), cases. The privacy concern provisions (A) An annual effect on the economy of $100 million or more; 3 The 20-minute estimate for familiarization was have been in place since 2002, and the (B) A major increase in costs or prices for for employers who were already required to keep Agency is not aware of any difficulty consumers, individual industries, Federal, State or OSHA injury and illness records. OSHA estimated with MSD cases being entered as local government agencies, or geographic regions; or that familiarization would take longer for employers privacy concern cases. However, if (C) Significant adverse effects on competition, who were required to keep injury and illness employment, investment, productivity, innovation, records for the first time. Since 2001, all affected comments on the proposed rule support or on the ability of United States-based enterprises employers have been keeping OSHA 300 Logs and including language concerning MSDs or compete with foreign-based enterprises in OSHA assumes they are familiar with the and privacy concern cases, the Agency domestic and export markets (5 U.S.C. 804(2)). recordkeeping procedures.

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which calculated that the software, such as software that uses occur in establishments with fewer than Recordkeeping rule affects 1,542,000 questions and decision logic to aid the 10 employees, and others occur in low establishments (Recordkeeping ICR employer in filling out the OSHA Form hazard, ‘‘partially exempt’’ industries in Supplemental Statement (SS) 1218– 300, may necessitate slightly more the trade and service industries. Based 1706 (1–17–08)). Multiplying the modification. on the pattern of injuries and illnesses estimate of the total number of affected OSHA is considering developing generally, only approximately 80 facilities by the estimated time (five software for free public distribution to percent of the cases annually are minutes) to familiarize the record assist employers, particularly smaller actually recorded (2008 ICR, SS 1218– keeper with the proposed MSD employers, with recordkeeping. The 1706 (1–17–08)).4 Therefore, the Agency recording requirement, the proposed Agency requests comment on the use of estimates approximately 1.254 million regulation would require 129,000 hours computer software for recordkeeping, MSDs (80% of 1.568 million MSDs) in the first year it takes effect. particularly among small businesses. would be recorded annually. At the OSHA believes the occupational For example, OSHA requests comment same time, the Agency also recognizes category most likely to prepare OSHA on whether computer software reduces that there will be some cases, perhaps injury and illness records is a Human employer recordkeeping burdens and, if 20 percent more than the total, that Resource, Training, and Labor Relations so, in what ways or by how much. might require consideration as possible Specialist, not elsewhere classified OSHA also requests comment about MSDs, but which employers would (Human Resources Specialist). The BLS whether the proposed change in the ultimately determine not to be MSDs, Occupational Employment Survey Recordkeeping rule might affect current leaving 1.505 million MSDs (1.254 times (OES) indicated that in May 2008, recordkeeping software and, if so, in 1.2) that employers would be required Human Resources Specialists earned a what ways. to record. At one minute of recording mean hourly wage of $28 (BLS OES, BLS reported that in 2007 there were time per case, and using the hourly rate 2009). In June 2009, the BLS National 335,390 MSD cases that involved days of $40.04, the actual data entry would Compensation Survey indicated a mean away from work (DAFW). While we do cost $1.004 million annually for all fringe benefit factor of 1.43 for civilian not currently know how many non- affected establishments combined. This workers in general. This would indicate days-away-from-work (non-DAFW) cost estimate assumes that no an hourly compensation of $40.04 for cases are MSDs, in 2007 BLS estimated establishments are currently making any Human Resources Specialists. Using there were 4,002,700 total workplace determinations as to whether a case is this estimate of the cost of labor, the injuries and illnesses, of which an MSD for other reasons. The addition cost of initial familiarization with the 1,158,870 were days-away-from-work of the MSD entry on the OSHA 300A proposed MSD recording requirement cases. If it is assumed that the pattern summary form is expected to impose no of DAFW MSDs and non-DAFW MSDs annualized over 10 years at a discount new costs, as the summary totals will mirrors that of DAFW and non-DAFW rate of 7 percent would be $735,000 per simply be tallied in the MSD column injuries and illnesses as a whole, it year for all affected establishments instead of the injury and all other illness would suggest the total number of MSDs combined. columns. The annualized cost of both would be approximately 3.45 times (4.0 initial familiarization and annual MSD Recording MSDs divided by 1.159) the number of DAFW recording costs combined would be The Agency believes that there will be MSDs reported in 2007. The number of $1.739 million per year for all affected some small incremental cost above what non-DAFW MSDs implied by this firms currently incur for recordkeeping ¥ establishments combined. calculation would be 2.45 (3.45 1) OSHA welcomes comment on all to decide whether specific cases are times greater than the DAFW MSDs aspects of these cost estimates. MSDs and mark them on the MSD reported in 2007. column. Given the recordkeeping As discussed in Section III of this Economic Impacts guidance OSHA provides, as well as notice, the Agency anticipates that the The economic impact on any affected information already recorded on the number of non-DAFW MSDs, relative to establishment would obviously be quite OSHA Form 301 and workers’ the DAFW MSD count, may be higher small. As mentioned, 1.505 million compensation reports, the Agency than implied by taking a simple division recordable MSD cases are expected to believes that the incremental time to of the total number of injuries and occur annually among the 1.542 million decide and record cases in the MSD illnesses by the number of all DAFW affected establishments, which averages column will be minimal. The Agency cases. To ensure that the costs of the to approximately one case per also believes that, in the large majority proposed rule are not underestimated, establishment per year. This suggests of cases, it will be obvious whether a the Agency is estimating that the ratio that the average establishment would case is an MSD. Therefore, the Agency of non-DAFW MSDs to DAFW MSDs is require an extra 6 minutes (5 minutes to estimates it will take employers 50 percent higher than for the ratio for familiarize and 1 minute to record an approximately one minute per case to injuries and illnesses as a whole. This MSD) in the first year and 1 minute to record it in the MSD column. results in a ratio of 3.68 non-DAFW record MSDs in subsequent years. The The Agency is aware that some MSDs for each DAFW MSD. Using this resulting costs for the typical affected establishments use computer software to ratio, the total estimated number of non- establishment would be $4.00 in the track worker injuries, although the DAWF MSDs is estimated to be 1.233 first year, and 67 cents in future years. Agency does not have information on million. Combined with the 335,390 In smaller establishments with fewer employer patterns of use. Currently, DAFW MSDs reported in 2007, OSHA injuries, the cost would be even lower. commercially available recordkeeping estimates that a total of 1.568 million Costs on this order should not pose an software comes in various forms. While recordable MSDs are occurring economic difficulty for any firm. the software would presumably reduce annually. OSHA’s guideline for determining the amount of time required for While the Agency estimates that 1.568 whether a regulation has a significant recordkeeping, employers may incur million MSDs occur annually, not all of some costs to slightly modify the these cases would occur in 4 The estimate of 80% of cases was based on an software to provide an extra column on establishments that are required to estimate of 3.365 million recorded cases out of a the OSHA Form 300. More sophisticated maintain OSHA 300 Logs. Some cases total of 4.214 million cases in 2005.

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impact on a substantial number of small to the OSHA 300 Log that employers use subjective symptom of an MSD;’’ (2) the firms is whether the costs of the to record work-related injuries and symptoms are work-related; (3) new; regulation exceed one percent of illnesses. This proposed rule would and (4) meet the general recording revenues or 5 percent of profits. Costs of require employers to place a check in criteria in the Recordkeeping regulation $4.00 in the first year and lower the MSD column if a case is an MSD and (e.g., restricted work, job transfer, days thereafter will never represent more meets the Recordkeeping regulation’s away from work, medical treatment than 1 percent of revenues or 5 percent general recording requirements. beyond first aid). A case would be of profits for a substantial number of OSHA has submitted a revised recordable only if it meets all of these small firms. Even if considerably more Recordkeeping ICR to OMB for review requirements. MSDs occurred in an establishment in a (44 U.S.C. 3507(d)). OSHA solicits Description of Need: OSHA believes given year, it still would be very comments on the collection of that an MSD column would provide unlikely that the costs would pose any information requirements and the valuable information for maintaining economic difficulty. Accordingly, in estimated burden hours associated with complete and accurate national accordance with the Regulatory these collections, including comments occupational injury and illness Flexibility Act (5 U.S.C. 605), OSHA on the following: statistics; assist OSHA in targeting its certifies that the proposed rule will not • Whether the proposed collection of inspection, outreach, guidance, and have a significant impact on a information requirements are necessary enforcement efforts to address MSDs; substantial number of small entities. for the proper performance of the and provide easily identifiable Agency’s functions, including whether information at the establishment level V. Environmental Impact Assessment the information is useful; that will be useful for both employers In accordance with the requirements • The accuracy of OSHA’s estimate of and employees. of the National Environmental Policy the burden (time and cost) of the Adding an MSD column to the OSHA Act (NEPA) (42 U.S.C. 4231 et seq.), information collection requirements, 300 Log would improve national Council on Environmental Quality including the validity of the statistics on MSDs in several ways. It NEPA regulations (40 CFR part 1500 et methodology and assumptions used; would allow BLS to collect and seq.), and the Department of Labor • Ways to enhance the quality, utility, annually report the total number and NEPA regulations (29 CFR Part 11), the and clarity of the information collected; rates of MSDs, both nationally and in Assistant Secretary has determined that and specific industries, not just the figures this proposed rule will not have a • Ways to minimize the burden on for cases that result in days away from significant impact on the external employers who must comply, for work. Currently, this basic information environment. example, by using automated or other is unavailable. Having the total number technological techniques for collecting VI. OMB Review Under the Paperwork of MSDs would provide BLS with more and transmitting information. Reduction Act of 1995 complete data for analyzing the The title of the ICR, summary of the magnitude of the MSD problem and The proposed regulation contains paperwork requirements, description of trends over time in the country as a revised collections of information the need, respondent description, whole as well as in specific industries. requirements (paperwork) that are estimated recordkeeping burden, and Having more complete MSD data would subject to review by the Office of the proposed frequency of the assist OSHA, and other safety and Management and Budget (OMB) under information collection requirements are health policy makers in understanding the Paperwork Reduction Act of 1995 described below. MSDs and making informed decisions (‘‘PRA–95’’), 44 U.S.C. 3501 et seq., and Title: 29 CFR Part 1904 on policies concerning workplace OMB’s regulations at 5 CFR part 1320. Recordkeeping and Reporting MSDs. The PRA–95 defines a ‘‘collection of Occupational Injuries and Illnesses. Affected Public: Business or other for- information’’ as ‘‘obtaining, causing to be OMB Control Number: 1218–0176. profit. The proposed rule affects all obtained, soliciting, or requiring the Summary: Proposed section firms within OSHA jurisdiction that disclosure to third parties or the public 1904.12(b)(2) identifies which injuries have 10 or more employees at some time of facts or opinions by or for an agency and illnesses must be identified as in the year, except for those low hazard regardless of form or format’’ (44 U.S.C. MSDs on the OSHA 300 Log. MSDs that industries that are not required to 3502(3)(A)). OSHA’s existing meet the general criteria for routinely prepare an OSHA Form 300 Recordkeeping forms are promulgated recordability (i.e., a work-related new and 301. under 29 CFR part 1904, and consist of case resulting in medical treatment, job Number of Respondents: 1,541,900 the OSHA Form 300, the Log of Work- transfer or restriction, or days away employers. Related Injuries and Illnesses; the OSHA from work) are already required to be Frequency: On occasion. Form 300A, Summary of Work-Related recorded on the log. The proposed Average Time per Response: Five Injuries and Illnesses; and the OSHA section explains that employers would minutes for employers to familiarize Form 301, and the Injury and Illness continue to use the same process to themselves with the proposed MSD Incident Report. These forms are decide whether an MSD must be reporting procedure; and. approximately contained in the Information Collection recorded as they are required to do for one minute per MSD to record it in the Request (ICR) (paperwork package) any other injury or illness under the MSD column. The addition of the MSD titled, 29 CFR Part 1904 Recordkeeping Recordkeeping regulation. Under the entry on the OSHA 300A summary form and Reporting Occupational Injuries proposal, however, employers would be is expected to impose no new and Illnesses (‘‘Recordkeeping’’), and are required to identify which of those paperwork burden, as the summary approved by OMB under OMB control injuries and illnesses are MSDs by totals will simply be tallied in the MSD number 1218–0176, (expiration date 03/ checking the MSD column on the log. column instead of the injury and all 31/2011). OSHA is proposing to revise Section 1904.12(b)(3) of the proposed other illness columns. its Occupational Injury and Illness rule specifies that an employer must Estimated Total Burden Hours: Recording and Reporting record a case as an MSD if (1) The 127,978 hours for employers to become (Recordkeeping) regulation to add a employee experiences ‘‘pain, tingling, familiar with the MSD reporting musculoskeletal disorder (MSD) column burning, numbness or any other procedure; and, 25,585 hours for

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employers to mark 1,505,000 MSDs in display a currently valid OMB control that they will not interfere with uniform the MSD column. number. reporting objectives. Because this proposed rule Estimated Costs (Capital Operation VII. Unfunded Mandates and Maintenance): $0. determines how MSD injuries and Submitting comments. Members of For purposes of the Unfunded illnesses are entered onto the OSHA 300 the public who wish to comment on the Mandates Reform Act of 1995 (2 U.S.C. Log, the State-Plan State requirements paperwork requirements in this 1501 et seq.), as well as Executive Order must be the same as the Federal OSHA proposal may send their written 12875, this proposed rule does not requirements to ensure the consistency comments to the Office of Information include any Federal mandate that may of the occupational injury and illness and Regulatory Affairs, Attn: OSHA result in increased expenditures by information across the States. Desk Officer (RIN 1218–AC45), Office of State, local, and tribal governments, or X. Public Participation Management and Budget, Room 10235, increased expenditures by the private This rulemaking is governed by the 725 17th Street, NW., Washington, DC sector of more than $100 million. notice and comments requirements in 20503. The Agency encourages VIII. Federalism the Administrative Procedures Act commenters to also submit their (APA) (5 U.S.C. 553) rather than section comments on these paperwork The proposed rule has been reviewed 6 of the OSH Act (29 U.S.C. 655) and 29 requirements to the rulemaking docket in accordance with Executive Order CFR part 1911, which only apply to (Docket Number OSHA–2009–0044), 13132 (52 FR 41685), regarding ‘‘promulgating, modifying or revoking along with their comments on other Federalism. Because this rulemaking occupational safety and health parts of the proposed rule. For involves a ‘‘regulation’’ issued under standards’’ (29 CFR part 1911). For instructions on submitting these Sections 8 and 24 of the OSH Act, and example, section 6(b)(3) of the OSH Act comments to the rulemaking docket, see is not an ‘‘occupational safety and health and 29 CFR 1911.11 state that the the sections of this Federal Register standard’’ issued under Section 6 of the requirement to hold an informal public notice titled DATES and ADDRESSES. OSH Act, the rule will not preempt hearing on a proposed rule only applies Comments submitted in response to this State law (29 U.S.C. 667(a)). The effect to rulemakings on occupational safety notice are public records; therefore, of the proposed rule on States is and health standards, not to those OSHA cautions commenters about discussed in section IX. State Plan dealing with regulations. submitting personal information such as States. Section 553(b)(1) of the APA requires Social Security numbers and date of IX. State Plan States the agency to specify the type of rule birth. involved, the time during which the Docket and inquiries. To access the If the proposed rule is issued in final agency will receive comments on the docket to read or download comments form, the 27 States and territories with proposal, and the instructions regarding and other materials related to this their own OSHA-approved occupational the procedures for submitting paperwork determination, including the safety and health plans must adopt an comments. The APA does not specify a complete ICR (containing the identical regulation within six months minimum period for submitting Supporting Statement with attachments of the publication date. These states and comments. In accordance with the goals describing the paperwork territories are: Alaska, Arizona, of E.O. 12866, OSHA is providing 60 determinations in detail), use the California, Hawaii, Indiana, Iowa, days for public comment (E.O. 12866 procedures described under the section Kentucky, Maryland, Michigan, § 6(a)(1)). of this notice titled ADDRESSES. You also Minnesota, Nevada, New Mexico, North may obtain an electronic copy of the Carolina, Oregon, Puerto Rico, South Public Submissions complete ICR by visiting the Web page Carolina, Tennessee, Utah, Vermont, OSHA invites comment on all aspects at http://www.reginfo.gov/public/do/ Virginia, Virgin Islands, Washington, of the proposed rule. Interested persons PRAMain, scroll under ‘‘Currently and Wyoming. Connecticut, Illinois, must submit comments by March 15, Under Review’’ to ‘‘Department of Labor New Jersey, and New York have OSHA 2010. The Agency will carefully review (DOL)’’ to view all of the DOL’s ICRs, approved State Plans that apply to state and evaluate all comments, information, including those ICRs submitted for and local government employees only. and data, as well as all other proposed rulemakings. To make Consistent with Section 18 of the OSH information in the rulemaking record, to inquiries, or to request other Act (29 U.S.C. 667) and the determine how to proceed. information, contact Mr. Todd Owen, requirements of 29 CFR 1904.41 and You may submit comments in Directorate of Standards and Guidance, 1952.4, State-Plan States must response to this document, requests to OSHA, Room N–3609, U.S. Department promulgate occupational injury and speak at the public meeting, and of Labor, 200 Constitution Avenue, illness recording and reporting requests for special accommodation to NW., Washington, DC 20210; telephone requirements that are the same as the attend the meeting (1) electronically at (202) 693–2222. Federal requirements for determining http://www.regulations.gov, which is The Department notes that a Federal which injuries and illnesses will be the Federal eRulemaking Portal; (2) by agency cannot conduct or sponsor a entered into the records and how they facsimile (FAX); or (3) by hard copy. All collection of information unless it is are entered. All other injury and illness submissions must identify the Agency approved by OMB under the PRA and recording and reporting requirements name and the OSHA docket number displays a currently valid OMB control that are promulgated by State-Plan (Docket No. OSHA–2009–0044) or RIN number, and the public is not required States may be more stringent than, or number (RIN No. 1218–AC45) for this to respond to a collection of information supplemental to, the Federal rulemaking. You may supplement unless it displays a currently valid OMB requirements, but, because of the unique electronic submissions by uploading control number. Also, not withstanding nature of the national recordkeeping document files electronically. If, any other provisions of law, no person program, States must consult with instead, you wish to mail additional shall be subject to penalty for failing to OSHA and obtain approval of such materials in reference to an electronic or comply with a collection of information additional or more stringent reporting fax submission, you must submit them if the collection of information does not and recording requirements to ensure to the OSHA Docket Office (see

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ADDRESSES section). The additional oral comments on the proposed rule, List of Subjects in 29 CFR Part 1904 materials must clearly identify your which is a limited rulemaking to revise Health statistics, Occupational safety electronic comments by name, date, and one provision of the Recordkeeping and health, Recording and reporting of docket number, so OSHA can attach regulation. Although OSHA is not occupational injuries and illnesses, them to your comments. required to hold a public meeting on State plans. Because of security-related proposed regulations, the Agency procedures, the use of regular mail may believes that the public meeting will Authority and Signature cause a significant delay in the receipt help to facilitate the development of a This document was prepared under of submissions. For information about clear and complete rulemaking record. the direction of David Michaels, PhD, security procedures concerning the Consistent with this purpose, OSHA has MPH, Assistant Secretary of Labor for delivery of materials by hand, express the discretion to limit the time of Occupational Safety and Health. It is delivery, messenger or courier service, speakers whose presentation goes issued under Sections 8 and 24 of the please contact the OSHA Docket Office beyond the scope of the proposed Occupational Safety and Health Act (29 at (202) 693–2350 (TTY (877) 889– regulation. U.S.C. 657, 673), 5 U.S.C. 553, and 5627). Individuals interested in speaking at Secretary of Labor’s Order No. 5–2007 Access to Docket the public meeting must submit their (72 FR 31160). Comments in response to this Federal request by February 16, 2010. The Signed at Washington, DC, this 27th day of Register notice, requests to speak, and request must provide the following January 2010. submissions at the public meeting are information: David Michaels, posted without change at http:// • Name, address, and telephone Assistant Secretary of Labor for Occupational www.regulations.gov, the Federal number of each individual who will Safety and Health. eRulemaking portal. Therefore, OSHA speak at the public meeting; Proposed Rule cautions individuals about submitting • Name of organization or Part 1904 of Title 29 of the Code of personal information such as social establishment each individual Federal Regulations is hereby proposed security numbers and birthdates. represents, if any; to be amended as follows: Exhibits referenced in this Federal • Occupational title and position of Register document are posted at http:// each person speaking at the meeting; PART 1904—[AMENDED] www.regulations.gov. Although • Date on which each individual submissions are listed in the http:// 1. The authority citation for part 1904 wishes to speak at the meeting; www.regulations.gov indexes, some is to be revised to read as follows: • Approximate amount of time each information (e.g., copyrighted material) Authority: 29 U.S.C. 657, 658, 660, 666, is not publicly available to read or individual wishes to speak; 669, 673, Secretary of Labor’s Order No. 3– download through that Web page. All • An outline of the statement each 2000 (65 FR 50017) and 5–2007 (72 FR comments, requests to speak, materials individual wishes to make at the 31160), and 5 U.S.C. 553. presented at the public meeting, and meeting. 2. A new § 1904.12 is to be added to exhibits, including copyrighted OSHA will review each request to read as follows: material, are available for inspection speak and determine whether the and copying at the OSHA Docket Office. information it contains warrants the § 1904.12 Recording criteria for cases Information on using http:// amount of time the individual requested involving work-related musculoskeletal disorders. www.regulations.gov to submit to speak. To ensure that each participant comments and access dockets is has an opportunity to speak, OSHA will (a) Basic requirement. If any of your available on the Webpage. Contact the generally limit the time allotted to each employees experiences a recordable OSHA Docket Office for information speaker to a maximum of 15 minutes. work-related musculoskeletal disorder about materials not available through Therefore, OSHA urges speakers to (MSD), you must record it on the OSHA the Web page and for assistance in using submit written comments of their 300 Log by checking the the internet to locate docket presentation and to summarize and ‘‘musculoskeletal disorder’’ column. (b) Implementation—(1) What is a submissions. clarify their written submissions during ‘‘musculoskeletal disorder’’ or MSD? Electronic copies of this Federal the meeting. OSHA may also limit the MSDs are disorders of the muscles, Register document are available at time to speak of any individual who nerves, tendons, ligaments, joints, http://www.regulations.gov. This fails to comply substantially with the cartilage and spinal discs. MSDs DO document, as well as news releases and procedures for submitting a request to NOT include disorders caused by slips, other relevant information, also are speak. available at OSHA’s Web page at http:// trips, falls, motor vehicle accidents, or At OSHA’s discretion and as time www.osha.gov. For specific information other similar accidents. Examples of permits, individuals who did not submit about OSHA’s Recordkeeping rule, go MSDs include: Carpal tunnel syndrome, a request to speak may be allowed time the Recordkeeping page on OSHA’s Web Rotator cuff syndrome, De Quervain’s to make a brief oral statement not page. disease, Trigger finger, Tarsal tunnel exceeding five minutes at the end of the syndrome, Sciatica, Epicondylitis, Public Meeting scheduled presentations. Tendinitis, Raynaud’s phenomenon, OSHA will hold a two-day public OSHA will post the schedule of Carpet layers knee, Herniated spinal meeting on the proposed rule on March appearances for the public meeting as disc, and Low back pain. 9, 2010 at the U.S. Department of Labor well as additional information about the (2) How do I decide which MSDs to in Washington, DC (see ADDRESSES meeting on the OSHA Web page at record? There are no special criteria for section). If necessary, the meeting may http://www.osha.gov. The meeting will determining which MSDs to record. An be extended to subsequent days. be transcribed. The transcription and all MSD case is recorded using the same The purpose of the public meeting is materials submitted during the public process you would use for any other to allow interested persons to provide meeting will be put in the public docket injury or illness. If an MSD disorder is of this rulemaking. work-related, is a new case, and meets

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one or more of the general recording Library, 475 L’Enfant Plaza, SW., 11th also propose to update the standards to criteria, you must record the case as an Floor N, Washington, DC, between 9 reflect these requirements. MSD in the MSD column. The following a.m. and 4 p.m., Monday through Although we are exempt from the table will guide you to the appropriate Friday. E-mail comments, containing notice and comment requirements of the section of the rule for guidance on the name and address of the commenter, Administrative Procedure Act [5 U.S.C. recording MSD cases. may be sent to: 553 (b), (c)], regarding proposed (i) Determining if the MSD is work- [email protected], with a rulemaking by 39 U.S.C. 410(a), the related. See § 1904.5. subject line of ‘‘Open and Distribute Postal Service invites comments on the (ii) Determining if the MSD is a new Comments.’’ Faxed comments are not following proposed revision of the case. See § 1904.6. accepted. Mailing Standards of the United States (iii) Determining if the MSD meets Postal Service, Domestic Mail Manual, one or more of the general recording FOR FURTHER INFORMATION CONTACT: incorporated by reference in the Code of criteria: Karen Key, 202–268–7492 or Garry (A) Days away from work, See Rodriguez, 202–268–7281. Federal Regulations. See 39 CFR part 111. § 1904.7(b)(3); SUPPLEMENTARY INFORMATION: The Open (B) Restricted work or transfer to and Distribute feature of Express Mail List of Subjects in 39 CFR Part 111 another job, See § 1904.7(b)(4); or and Priority Mail service allows (C) Medical treatment beyond first customers to expedite the transportation Administrative practice and aid. See § 1904.7(b)(5). of shipments of other classes of mail to procedure, Postal Service. (3) If a work-related MSD case destination facilities using Express Mail Accordingly, the Postal Service involves only subjective symptoms like or Priority Mail service. proposes to amend 39 CFR part 111 as pain or tingling, do I have to record it Currently, for customers using USPS- follows: as an MSD? The symptoms of an MSD provided letter trays for Priority Mail are treated the same way as symptoms Open and Distribute, the Postal Service PART 111—[AMENDED] for any other injury or illness. You must provides the option to use sacks, USPS- record the case on the OSHA 300 Log supplied tray boxes, or Label 23, an 1. The authority citation for 39 CFR as an MSD if: adhesive label which must be affixed to part 111 continues to read as follows: (i) An employee has pain, tingling, the outside of the letter tray. Tray boxes burning, numbness or any other Authority: 5 U.S.C. 552(a); 39 U.S.C. 101, were introduced April 6, 2009, to 401, 403, 404, 414, 416, 3001–3011, 3201– subjective symptom of an MSD; address Open and Distribute customers’ (ii) The symptoms are work-related; 3219, 3403–3406, 3621, 3622, 3626, 3632, concerns that a USPS-provided letter 3633, and 5001. (iii) The MSD is a new case; and tray sleeve might not maintain the (iv) The case meets one or more of the integrity of all mail inside a letter tray 2. Revise the following sections of general recording criteria. during processing. Customers now have (4) When do I have to start recording Mailing Standards of the United States the option to place their trays in either work-related MSDs on the MSD column? Postal Service, Domestic Mail Manual sacks or Open and Distribute tray boxes, ® You must begin recording work-related (DMM ) as follows: which are more secure. The Open and MSDs on the MSD column as of January * * * * * Distribute tray boxes are provided free 1, 2011. of charge by the Postal Service to all 700 Special Standards [FR Doc. 2010–2010 Filed 1–28–10; 8:45 am] Open and Distribute customers and are * * * * * BILLING CODE 4510–26–P available for both half-size and full-size trays. Customers using the customer- 705 Advanced Preparation and supplied containers must affix the Special Postage Payment Systems POSTAL SERVICE appropriate USPS-supplied tag (e.g., Tag * * * * * 161, Tag 190). Label 23 is no longer 39 CFR Part 111 needed since the letter trays will be 16.0 Express Mail Open and enclosed in sacks or tray boxes and the Express Mail Open and Distribute and Distribute and Priority Mail Open and Postal Service proposes to discontinue Priority Mail Open and Distribute Distribute its use. Changes and Updates 16.1 Prices and Fees The Postal Service also proposes to AGENCY: Postal ServiceTM. discontinue the optional use of 16.1.1 Basis of Price ACTION: Proposed rule. facsimile Tag 190, Priority Mail Open and Distribute—Destination Delivery [Add new second sentence to 16.1.1 to SUMMARY: The Postal Service proposes Unit. Customers will now be required to clarify the maximum weight as follows:] to revise its standards to reflect changes use the USPS-supplied Tag 190, which * * * The maximum weight for each ® and updates for Express Mail Open is pink and easy to identify. This change container is 70 pounds.* * * ® and Distribute and Priority Mail Open will help to ensure accurate and * * * * * and Distribute to improve efficiencies in efficient processing of Open and processing and to control costs. Distribute containers. 16.1.5 Payment Method DATES: Submit comments on or before When presenting a mailing, Open and March 1, 2010. [Revise the third sentence of 16.1.5 to Distribute customers have always been eliminate Label 23 as follows:] ADDRESSES: Mail or deliver written required to leave containers unsealed comments to the Manager, Mailing until the business mail entry * * * Priority Mail postage must be Standards, U.S. Postal Service, 475 verification and acceptance of the affixed to or hand-stamped on green Tag L’Enfant Plaza, SW., Room 3436, contents have been completed, provide 161, pink Tag 190, or to the Open and Washington, DC 20260–3436. You may PS Form 3152, Confirmation Services Distribute tray box, or be part of the inspect and photocopy all written Certification, and not exceed the 70 address label. comments at USPS® Headquarters pound weight limit per container. We * * * * *

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16.2 Basic Standards 16.5.6 Address Labels implementation plan for the State of 16.2.1 Description of Express Mail [Revise the first sentence of 16.5.6 by California under the Clean Air Act. Open and Distribute and Priority Mail removing Label 23 as follows:] Specifically, EPA is proposing to clarify Open and Distribute In addition to Tag 157, Tag 161, or that the statutory provisions submitted Tag 190, USPS-supplied containers and by California and approved by EPA in [Revise the second sentence of 16.2.1 envelopes and mailer-supplied 1972 supporting the State’s legal and add a new third sentence to clarify containers used for Express Mail Open authority chapter of the original the requirement to leave containers and Distribute or Priority Mail Open implementation plan were superseded unsealed and present a PS Form 3152 and Distribute must bear an address by a subsequent approval by EPA in as follows:] label that states ‘‘OPEN AND 1980 of California’s revision to the legal * * * Mailers prepare the mailings DISTRIBUTE AT:’’ followed by the authority chapter of the plan. EPA is according to standards for the enclosed facility name. * * * proposing this action to clarify the class of mail and enclose the mail in * * * * * status in the California plan of the containers for expedited service as statutory provisions submitted and either Express Mail Open and Distribute 16.6 Enter and Deposit approved in 1972. or Priority Mail Open and Distribute. [Delete the heading 16.6.1, DATES: Any comments must arrive by The containers must be presented Verification and Entry, and move text March 1, 2010. unsealed, with the affixed barcoded under 16.6. Revise 16.6 to include the ADDRESSES: Submit comments, address label and applicable tag, to the requirements to present PS Form 3152 identified by docket number EPA–R09– Business Mail Entry Unit or authorized and to leave containers unsealed until OAR–2009–0269, by one of the USPS facility with a completed PS Form verification and acceptance of contents following methods: 3152, Confirmation Services as follows:] • Federal eRulemaking Portal: http:// Certification, by the critical entry time Mailers must prepare Express Mail www.regulations.gov. Follow the online for USPS shipment under 16.0. * * * Open and Distribute and Priority Mail instructions. * * * * * Open and Distribute shipments under • E-mail: [email protected]. 16.2 through 16.5. Shipments must be • Mail or deliver: Gerardo Rios, Chief, 16.5 Preparation presented with PS Form 3152, Permits Office (AIR–3), U.S. * * * * * Confirmation Services Certification, to a Environmental Protection Agency, business mail entry unit (BMEU) or Region IX, 75 Hawthorne Street, San 16.5.4 Tags 161 and 190—Priority other location designated by the Mail Open and Distribute Francisco, CA 94105. postmaster to accept both the enclosed Instructions: All comments will be [Revise the first sentence of the mail and Priority Mail or Express Mail. included in the public docket without introductory paragraph of 16.5.4 to Open and Distribute containers must change and may be made available remove the optional use of facsimiles as not be sealed until the BMEU online at http://www.regulations.gov, follows:] verification and acceptance of the including any personal information Tag 161 and Tag 190 provide a place contents has been completed. Mailers provided, unless the comment includes to affix Priority Mail postage and the must present shipments to the BMEU Confidential Business Information (CBI) address label for the destination facility. with enough time for acceptance, or other information whose disclosure is *** processing, and dispatch before the restricted by statute. Information that facility’s critical entry time for Express [Revise 16.5.4a by adding a new you consider CBI or otherwise protected Mail or Priority Mail. second sentence as follows:] should be clearly identified as such and a. * * * This tag also must be affixed * * * * * should not be submitted through We will publish an appropriate to containers used for Priority Mail http://www.regulations.gov or e-mail. amendment to 39 CFR 111 to reflect Open and Distribute shipments http://www.regulations.gov is an these changes if our proposal is ‘‘ ’’ prepared under 16.5.1c or 16.5.1d. anonymous access system, and EPA adopted. will not know your identity or contact [Revise the second sentence in 16.5.4b Stanley F. Mires, information unless you provide it in the to remove the option of a facsimile to body of your comment. If you send e- Chief Counsel, Legislative. read as follows:] mail directly to EPA, your e-mail b. * * * This tag also must be affixed [FR Doc. 2010–1867 Filed 1–28–10; 8:45 am] address will be automatically captured to containers used for Priority Mail BILLING CODE 7710–12–P and included as part of the public Open and Distribute shipments comment. If EPA cannot read your prepared under 16.5.1c or 16.5.1d. comment due to technical difficulties [Revise heading of 16.5.5 to read as ENVIRONMENTAL PROTECTION and cannot contact you for clarification, follows:] AGENCY EPA may not be able to consider your 16.5.5 Tray Boxes—Express Mail 40 CFR Part 52 comment. Open and Distribute and Priority Mail Docket: The index to the docket for Open and Distribute [EPA–R09–OAR–2009–0269; FRL–9107–6] this action is available electronically at http://www.regulations.gov and in hard [Revise 16.5.5 to read as follows:] Approval and Promulgation of copy at EPA Region IX, 75 Hawthorne As an alternative to sacks for Express Implementation Plans; State of Street, San Francisco, California. While Mail Open and Distribute and Priority California; Legal Authority all documents in the docket are listed in Mail Open and Distribute shipments, AGENCY: Environmental Protection the index, some information may be unless prepared under 16.5.1c or Agency (EPA). publicly available only at the hard copy 16.5.1d, mailers may use USPS-supplied ACTION: Proposed rule. location (e.g., copyrighted material), and tray boxes for this service. Mailers must some may not be publicly available in place a 1-foot or 2-foot letter tray into SUMMARY: EPA is proposing to clarify either location (e.g., CBI). To inspect the the appropriate size tray box. the contents of the applicable hard copy materials, please schedule an

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appointment during normal business copies of such laws or regulations shall monitoring rules, the California Public hours with the contact listed in the FOR be submitted with the plan.’’ See 40 CFR Records Act, a Letter Opinion of the FURTHER INFORMATION CONTACT section 51.11(c) (1972). In other words, the laws California Attorney General dated below. or regulations relied upon by the State March 8, 1971 related to authority for FOR FURTHER INFORMATION CONTACT: to provide the necessary assurances of regulating fuel composition, a Letter Gerardo Rios, Chief, Permits Office adequate legal authority must be Opinion of the California Attorney (AIR–3), U.S. Environmental Protection identified in the plan, but copies of the General dated October 6, 1971 related to Agency, Region IX, (415) 972–3974: actual laws or regulations themselves, authority of the San Francisco Bay Area [email protected]. while they must be submitted with the air pollution control district to prevent plan, need not be part of the plan itself. new construction, certain California SUPPLEMENTARY INFORMATION: On February 21, 1972, Governor Vehicle Code sections related to bus and Throughout this document, ‘‘we,’’ ‘‘us’’ Ronald Reagan submitted the original commuter freeway lanes, SB 325 (1971) and ‘‘our’’ refer to EPA. California SIP to EPA. The original SIP establishing a sales tax on gasoline, and Table of Contents consisted of 13 parts, the first of which various land use laws, including was referred to as the ‘‘State General Assembly Bill (AB) 2070 (1970) related I. Summary of Today’s Proposed Action Plan.’’ The other parts contained air- to land use planning requirements and II. Background III. Proposed Action basin-specific elements and appendices. the establishment of the Office of IV. Public Comment and Final Action The ‘‘State General Plan’’ was divided Planning and Research, certain V. Statutory and Executive Order Reviews into eight chapters. Chapter 7 (‘‘Legal California Government Code provisions, Considerations,’’ or, as referred to and AB 1301 (1970) related to I. Summary of Today’s Proposed Action herein, the ‘‘legal authority’’ chapter) consistency between zoning and general In today’s action, under the Clean Air was submitted as part of the original SIP plans. Act (CAA or ‘‘Act’’), we are proposing to to meet the statutory and regulatory In May 1972, EPA approved in part clarify that the statutory provisions requirements described above in and disapproved in part the original submitted by California in 1972 connection with legal authority. Chapter California SIP. See 37 FR 10842 (May supporting the State’s legal authority 7 describes, among other things, the 31, 1972) and 40 CFR 52.220(b). With chapter of the original implementation history of air pollution control in respect to legal authority, EPA approved plan were superseded by a subsequent California, the legal authority of the the submittal but found that the SIP did approval by EPA in 1980 of a revision California Air Resources Board (ARB) not meet certain requirements related to to California’s legal authority chapter of and the local air districts to adopt air pollution emergencies and the plan. emission limitations, enforce applicable availability of emission data. See 37 FR laws, prevent new construction, obtain 10842, at 10852 and 40 CFR 52.225. II. Background emission information, require source EPA’s approval included both chapter 7 Pursuant to the Clean Air Act (CAA monitoring, and describes various and the statutory and other documents or ‘‘Act’’), as amended in 1970, EPA principles governing transportation and contained in appendix II as described promulgated national ambient air land use controls. Chapter 7 includes above. quality standards (NAAQS) for certain many citations to individual sections In response to EPA’s request and in air pollutants, including photochemical within the California Health & Safety, response to the Clean Air Act oxidants, hydrocarbons, carbon Penal, Civil Procedure, Government, Amendments of 1977, California monoxide, nitrogen dioxide, sulfur and Vehicle codes, as well as citations undertook a comprehensive update to oxides, and particulate matter. The 1970 to (then) recently approved legislation, the California SIP. On March 16, 1979, Amended Act required each state to and attorney general opinions as the ARB submitted a revision to the submit to EPA a plan which provides support for the assurance that adequate legal authority chapter of the SIP, for the implementation, maintenance, legal authority exists in the state to meet entitled ‘‘Chapter 3—Legal Authority, and enforcement of the NAAQS within CAA and EPA SIP requirements. Revision to State of California the state. These plans are referred to as The state included an appendix to Implementation Plan for the Attainment state implementation plans (SIPs). chapter 7 (entitled ‘‘Appendix II: State and Maintenance of Ambient Air The 1970 Amended Act also Statutes and other Legal Documents Quality Standards (December 1978),’’ established content requirements for Pertinent to Air Pollution Control in (also referred to herein as the revised SIPs. Among other elements, the 1970 California’’) in the plan (herein, ‘‘legal authority’’ chapter). Much like the Amended Act required SIPs to provide ‘‘appendix II’’) that included the specific original legal authority chapter, the ‘‘necessary assurances that the State will sections of California code and other revised legal authority chapter provides have adequate * * * authority to carry legal documents cited in chapter 7, but an overview of air pollution control in out such implementation plan, * * *.’’ also included many sections of the California, generally describes the See section 110(a)(2)(F)(i) of the 1970 California Health & Safety Code statutory responsibilities and authority Amended Act. In 40 CFR 51.11 (now (CH&SC) that were not cited specifically of the ARB and the air pollution control codified at 40 CFR 51.230–51.232), EPA in chapter 7. Appendix II was organized districts, and addresses specific legal regulations further specify that ‘‘Each into 14 categories: CH&SC provisions authorities for enforcement of the SIP, plan shall show that the State has legal related to air pollution and pertinent right of entry and source information authority to carry out the plan, 1971 amendments (not then yet gathering, public availability of data, including authority to (1) Adopt codified), certain Penal Code sections, emergency episodes, new source review, emission standards and limitations, Senate Bill 678 (related to authority of vehicular controls, and transportation * * *. (2) Enforce applicable laws, attorney general to protect the and land use controls. While the general regulations, standards, * * *.’’ EPA environment), the California Emergency topics covered in the revised legal regulations further specify: ‘‘The Services Act, an order approved by the authority chapter were similar to those provisions of law or regulation which Governor related to emergencies, certain covered in the original legal authority the State determines provide the California Code of Civil Procedure chapter, the discussion is completely re- authorities required under this section sections, certain Government Code organized and updated to reflect, among shall be specifically identified, and sections, examples of continuous other things, recodifications of statutory

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provisions. Also, like the legal authority believe that clarification of the status of SIP under CAA section 110 or EPA’s SIP chapter in the original SIP, the revised the statutory provisions (and other legal regulations in 40 CFR part 51 (although legal authority chapter includes documents) submitted in connection such provisions are required to be numerous citations to individual with the original SIP is necessary and submitted with the plan). Thus, EPA sections of the CH&SC (which had been appropriate at this time. could approve, consistent with CAA re-numbered and re-codified since the and EPA requirements, and did so in III. Proposed Action time of the original SIP), certain this instance, a wholesale revision to the citations to other California codes (e.g., As shown from the State’s submittals original legal authority chapter without Business and Professions Code, and the regulatory history of EPA’s also approving the actual statutory Administrative Code, Government Code actions on the legal authority chapter, provisions and other legal documents and Vehicle Code) and an attorney and revisions thereto, of the California cited therein.3 general’s letter opinion. However, SIP (as described in the previous section To memorialize our interpretation of unlike the legal authority chapter in the of this document), the statutory the effect of our 1980 approval of the original SIP, the revised legal authority provisions and other legal documents revised legal authority chapter of the chapter, as submitted in 1979, did not submitted in support of the legal California SIP and thereby clarify the include physical copies of the actual authority chapter in the original SIP are status of the statutory and other legal statutory provisions nor the other no longer part of the California SIP. The documents submitted in connection documents cited in the chapter. Instead, statutory provisions and other legal with the original California SIP’s legal the 1979 SIP revision simply documents were superseded by our authority chapter, we propose today incorporates by reference the 1978 1980 approval of the revised legal under CAA section 301(a)(1) 4 to revise edition of California Air Pollution authority chapter of the California SIP 40 CFR 52.220(b)(12)(i). Control Laws as ‘‘appendix 3–A’’ to the (codified at 40 CFR 52.220(c)(48)). Our The relevant provision of the CFR, 40 chapter. Later in 1979, we proposed conclusion in this regard follows from CFR 52.220(b)(12), currently lists certain approval of the revised SIP ‘‘Chapter 3— our finding, based on the nature and CH&SC provisions related to variances Legal Authority’’ as an update and scope of the revised chapter and the that EPA deleted from the California SIP clarification of the 1972 SIP. See 44 FR mismatch between the statutory in 2004. See 69 FR 67062 (November 16, 38912 (July 3, 1979). The following year, citations in the revised chapter and 2004). In today’s action, we are we took final action, effective those contained in the original chapter, proposing to revise 40 CFR September 10, 1980, to approve the that the 1979 submittal of the revised 52.220(b)(12) to clarify that none of the revised legal authority chapter. See 45 legal authority chapter represented a statutory provisions (and other legal FR 53136 (August 11, 1980) and 40 CFR wholesale replacement of the original documents) submitted in connection 52.220(c)(48). Since that time, EPA has chapter.2 We also note that the actual with chapter 7 (Legal Considerations) of not approved any other revision to the statutory provisions and other legal the original California SIP remain in the chapter that addresses legal authority in documents relied upon to support a SIP, not just the few provisions the California SIP. state’s assurance of adequate legal currently listed. We propose to revise 40 Recently, the status of the statutory authority need not be approved into the CFR 52.220(b)(12) to codify the date provisions from the original SIP has (September 10, 1980) on which the come into question in the context of remain in effect as part of the current applicable statutory provisions (and other legal California SIP. For the purposes of State law, documents) were superseded in the third party litigation, an EPA effective January 1, 2004, Senate Bill 700 (2003) rulemaking action on a revision to new repealed the full permitting exemption for California SIP. source review rules in the San Joaquin agricultural sources then in CH&SC 42310(e) and The effect of our action, if finalized as Valley, and a lawsuit filed against EPA added a new section that provides a limited proposed, would be to clarify that the permitting exemption for minor agricultural subject statutory provisions, including challenging certain EPA actions on the sources. However, the California SIP has premise that such actions were arbitrary historically included, and continues to include, the statutory-based agricultural and capricious if a certain statutory certain local district permitting rules that explicitly permitting exemption contained in provision submitted and approved by exempt agricultural sources or refer to the statutory CH&SC section 24265, have not been agricultural exemption. EPA expects California to part of the California SIP since the EPA in connection with the original SIP continue the process of revising local district remains in effect as part of the current permitting rules as necessary to amend the SIP effective date (September 10, 1980) of applicable California SIP.1 Thus, we consistent with the provisions of Senate Bill 700. our 1980 approval of the revised legal 2 ARB described the nature and purpose of that authority chapter of the California SIP.5 agency’s comprehensive update of the California 1 See Ass’n of Irritated Residents v. C&R SIP during the late 1970’s as follows: ‘‘The [EPA] 3 We view the revised legal authority chapter’s Vanderham Dairy, No. 1:05–CV–01593(OWW) (E.D. has formally requested that the [ARB] update the incorporation (as appendix 3–A) of the 1978 edition Cal.) (third-party litigation); 73 FR 9260 (February State of California Implementation Plan for of California Air Pollution Control Laws as simply 20, 2008) (EPA proposed rule approving changes to Achieving and Maintaining the National Ambient providing a general reference to where the statutory San Joaquin Valley new source review rules); and Air Quality Standards, usually referred to simply as citations in the chapter could be located rather than Sierra Club v. EPA, No. 08–70395 (9th Cir. filed the ‘SIP.’ The original SIP document, submitted to as having the effect of a literal reading of the January 28, 2008) (petition for review of three EPA EPA in 1972, has become obsolete largely because provisions into the chapter. actions). The particular provision at issue in these of the many modifications to federal, state, and 4 examples is CH&SC section 24265, which excludes local air pollution rules and regulations and CAA section 301(a)(1) states: ‘‘The certain categories of emissions sources, including substantial advancements in technical aspects of air Administrator is authorized to prescribe such equipment used in agricultural operations in the pollution prediction and control. A new SIP 1978 regulations as are necessary to carry out his growing of crops or raising of fowls or animals, Working Document has been prepared as an initial functions under this chapter. * * *.’’ We believe from the general grant of authority to local air response to the EPA request and contains an that our rule proposed herein today is necessary to districts to require permits for new and existing updated summary and description of the California clarify the contents of the California SIP and emissions sources. CH&SC section 24265 was not SIP. * * * The SIP 1978 Working Document is a thereby carry out the functions of EPA in cited specifically in the legal authority chapter of step towards replacing the obsolete 1972 SIP.’’ See connection with the state’s plan. the original SIP but was included within the large page 1 of Chapter 1 (‘‘Introduction’’) (April 1978) of 5 However, as noted in footnote #1 in this excerpt from the CH&SC submitted by the State of the SIP—78 Working Document. Therefore, the document, the California SIP has historically California in support of the original legal authority revised legal authority was intended by ARB, and included, and continues to include, certain local chapter. (CH&SC section 24265 was later re-codified approved by EPA, as a wholesale replacement of the district permitting rules that explicitly exempt as CH&SC section 42310.) As proposed in this original legal authority chapter, including the agricultural sources or refer to the statutory action, it is clear that the statutory agricultural related statutory provisions and other materials agricultural exemption. EPA expects California to permitting exemption from the original SIP does not submitted in support of the original chapter. continue the process of revising local district

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IV. Public Comment and Final Action affect small governments, as described Dated: January 21, 2010. Under CAA section 301(a)(1) and for in the Unfunded Mandates Reform Act Jared Blumenfeld, the reasons discussed above, EPA is of 1995 (Pub. L. 104–4); Regional Administrator, Region IX. • Does not have Federalism proposing to clarify that the statutory [FR Doc. 2010–1839 Filed 1–28–10; 8:45 am] implications as specified in Executive provisions and other legal documents BILLING CODE 6560–50–P Order 13132 (64 FR 43255, August 10, submitted in connection with the legal 1999); authority chapter of the original 1972 • Is not an economically significant California SIP were superseded by ENVIRONMENTAL PROTECTION regulatory action based on health or EPA’s approval of a revised legal AGENCY safety risks subject to Executive Order authority chapter in 1980 (and codified 13045 (62 FR 19885, April 23, 1997); 40 CFR Part 52 at 40 CFR 52.220(c)(48)). To • Is not a significant regulatory action [EPA–R09–OAR–2010–0062; FRL–9107–5] memorialize EPA’s interpretation of the subject to Executive Order 13211 (66 FR effect of the 1980 final rule on the 28355, May 22, 2001); Approval and Promulgation of earlier submitted and approved • Is not subject to requirements of statutory provisions and other legal Implementation Plans, State of Section 12(d) of the National California, San Joaquin Valley Unified documents, EPA is proposing to revise Technology Transfer and Advancement 40 CFR 52.220(b)(12)(i) to read as Air Pollution Control District, New Act of 1995 (15 U.S.C. 272 note) because Source Review follows: application of those requirements would ‘‘(i) Previously approved on May 31, 1972 be inconsistent with the Clean Air Act; AGENCY: Environmental Protection and deleted without replacement, effective and Agency (EPA). September 10, 1980, chapter 7 of part I and • Does not provide EPA with the ACTION: Proposed rule. all of the statutory provisions and other legal discretionary authority to address, as documents contained in appendix II to appropriate, disproportionate human SUMMARY: Under section 110(k)(6) of the chapter 7 (Legal Considerations).’’ health or environmental effects, using Clean Air Act, EPA is proposing to EPA is soliciting public comments on practicable and legally permissible correct our May 2004 final approval of the issues discussed in this document methods, under Executive Order 12898 revisions to the San Joaquin Valley and will accept comments for the next (59 FR 7629, February 16, 1994). Unified Air Pollution Control District 30 days. These comments will be In addition, this proposed rule does portion of the California State considered before taking final action. not have tribal implications as specified Implementation Plan. EPA is also by Executive Order 13175 (65 FR 67249, proposing to take action on three V. Statutory and Executive Order November 9, 2000), because the SIP is amended District rules, one of which Reviews not approved to apply in Indian country was submitted on March 7, 2008 and the Under the Clean Air Act, the located in the state, and EPA notes that other two of which were submitted on Administrator is required to approve a it will not impose substantial direct March 17, 2009. Two of the submitted SIP submission that complies with the costs on tribal governments or preempt rules reflect revisions to approved provisions of the Act and applicable tribal law. District rules that provide for review of Federal regulations. 42 U.S.C. 7410(k); new and modified stationary sources 40 CFR 52.02(a). Thus, in reviewing SIP List of Subjects in 40 CFR Part 52 (‘‘new source review’’ or NSR) within submissions, EPA’s role is to approve Environmental protection, Air the District, and the third reflects state choices, provided that they meet pollution control, Intergovernmental revisions to an approved District rule the criteria of the Clean Air Act. relations, Oxides of nitrogen, Ozone, that provides a mechanism by which Accordingly, this action merely Reporting and recordkeeping existing stationary sources may be proposes to clarify the effect of a requirements, Volatile organic exempt from the requirement to secure previous approval by EPA of a state compounds. a Federally-mandated operating permit. submittal as meeting Federal Accordingly, 40 CFR Part 52 is The NSR rule revisions relate to requirements and does not impose proposed to be amended as follows: exemptions from permitting and from additional requirements beyond those offsets for certain agricultural imposed by state law. For that reason, PART 52—[AMENDED] operations, to the establishment of NSR applicability and offset thresholds this proposed action: 1. The authority citation for part 52 • ‘‘ consistent with a classification of Is not a significant regulatory continues to read as follows: action’’ subject to review by the Office ‘‘extreme’’ nonattainment for the ozone of Management and Budget under Authority: 42 U.S.C. 7401 et seq. standard, and to the implementation of Executive Order 12866 (58 FR 51735, 2. Section 52.220 is amended by EPA’s NSR Reform Rules. With respect October 4, 1993); revising paragraph (b)(12)(i) to read as to the revised District NSR rules, EPA is • Does not impose an information follows: proposing a limited approval and collection burden under the provisions limited disapproval because, although § 52.220 Identification of plan. of the Paperwork Reduction Act (44 the changes would strengthen the SIP, U.S.C. 3501 et seq.); * * * * * there are deficiencies in enforceability • Is certified as not having a (b) * * * that prevent full approval. With respect significant economic impact on a (12) * * * to the operating permit rule, EPA is (i) Previously approved on May 31, substantial number of small entities proposing a full approval. Lastly, EPA is 1972 and deleted without replacement, under the Regulatory Flexibility Act (5 proposing to rescind certain obsolete effective September 10, 1980, chapter 7 U.S.C. 601 et seq.); permitting requirements from the of part I and all of the statutory • Does not contain any unfunded District portion of the California plan. provisions and other legal documents mandate or significantly or uniquely If EPA were to finalize the limited contained in appendix II to chapter 7 approval and limited disapproval permitting rules as necessary to amend the SIP (Legal Considerations). action, as proposed, then a sanctions consistent with the provisions of Senate Bill 700. * * * * * clock, and EPA’s obligation to

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promulgate a Federal implementation SUPPLEMENTARY INFORMATION: proposed for approval included plan, would be triggered because certain Throughout this document, ‘‘we,’’ ‘‘us’’ paragraph 6.20 of District Rule 2020 revisions to the District rules that are and ‘‘our’’ refer to EPA. (‘‘Exemptions’’) and paragraph 4.6.9 of the subject of this action are required Table of Contents District Rule 2201 (‘‘New and Modified under anti-backsliding principles Stationary Source Review Rule’’). These established for the transition from the I. Regulatory Context provisions relate to review and 1-hour to the 8-hour ozone standard. II. Correction of EPA’s May 2004 Final permitting of new or modified Approval DATES: Any comments must arrive by A. CAA Legal Authority stationary sources (‘‘NSR’’) specifically March 1, 2010. B. Background on District NSR Rules 2020 in connection with agricultural sources. ADDRESSES: Submit comments, and 2201 and Related EPA Actions We received substantive comments on identified by docket number EPA–R09– C. Correction of Erroneous Final Approval our proposed rule, and, since OAR–2010–0062, by one of the III. The State’s Submittals of Revised District publication of the February 2008 following methods: Rules proposed rule, the District has adopted • Federal eRulemaking Portal: http:// A. What rules did the State submit? B. Are there other versions of these rules? further revisions to Rules 2020 and 2201 www.regulations.gov. Follow the on-line C. What are the purposes for revisions to that have been submitted to EPA for instructions. approval by CARB. The further • these rules? E-mail: [email protected]. IV. EPA’s Evaluation and Action on the Rule amended District rules carry forward the • Mail or deliver: Gerardo Rios (Air– Revisions revisions submitted on December 29, 3), U.S. Environmental Protection A. How is EPA evaluating the rules? 2006 but reflect more recent changes by Agency Region IX, 75 Hawthorne Street, B. Do the rules meet the evaluation criteria? the District as well. In light of the San Francisco, CA 94105. comments on our February 2008 Instructions: All comments will be 1. Regulatory Context proposed rule, and the more recent included in the public docket without 2. Minor Source NSR Permitting Requirements submittals of District Rules 2020 and change and may be made available 3. ‘‘Extreme’’ Ozone Area NSR 2201, we have decided not to take any online at http://www.regulations.gov, Requirements further action on our February 2008 including any personal information 4. EPA’s NSR Reform Rules proposed rule, but rather to propose provided, unless the comment includes 5. Other Changes to District Rules 2020 and Confidential Business Information (CBI) 2201 action anew. Published in today’s or other information whose disclosure is 6. Enforceability Considerations Federal Register is a withdrawal of our restricted by statute. Information that 7. Federally Enforceable Restriction on February 20, 2008 proposed rule. Potential To Emit you consider CBI or otherwise protected 8. CAA Section 110(l) II. Correction of EPA’s May 2004 Final should be clearly identified as such and 9. Conclusion and Proposed Action on Approval should not be submitted through Submitted Rules http://www.regulations.gov or e-mail. V. Deletion of Obsolete Conditions on SIP A. CAA Legal Authority http://www.regulations.gov is an Approvals Section 110(k)(6) of the Clean Air Act, ‘‘anonymous access’’ system, and EPA VI. Proposed Action and Opportunity for as amended in 1990, provides: will not know your identity or contact Public Comment ‘‘ information unless you provide it in the VII. Statutory and Executive Order Reviews Whenever the Administrator determines that the Administrator’s body of your comment. If you send e- I. Regulatory Context action approving, disapproving, or mail directly to EPA, your e-mail On February 20, 2008 (73 FR 9260), address will be automatically captured promulgating any plan or plan revision under sections 110(k)(2) and 110(k)(6) of (or part thereof), area designation, and included as part of the public the Clean Air Act (CAA or ‘‘Act’’), we comment. If EPA cannot read your redesignation, classification or proposed to correct our May 2004 final reclassification was in error, the comment due to technical difficulties approval of revisions to the San Joaquin and cannot contact you for clarification, Administrator may in the same manner Valley Unified Air Pollution Control as the approval, disapproval, or EPA may not be able to consider your District (‘‘SJVUAPCD’’ or ‘‘District’’) comment. promulgation revise such action as portion of the California State appropriate without requiring any Docket: The index to the docket for Implementation Plan (‘‘SIP’’) and to further submission from the State. Such this action is available electronically at approve revisions to two District rules determination and the basis thereof http://www.regulations.gov and in hard submitted to EPA by the California Air shall be provided to the State and the copy at EPA Region IX, 75 Hawthorne Resources Board (CARB) on December public.’’ Street, San Francisco, California. While 29, 2006.1 The specific provisions all documents in the docket are listed in We interpret this provision to the index, some information may be 1 The San Joaquin Valley includes all of San authorize the Agency to make publicly available only at the hard copy Joaquin, Stanislaus, Merced, Madera, Fresno, Kings corrections to a promulgated regulation location (e.g., copyrighted material), and and Tulare counties, and the western half of Kern when it is shown to our satisfaction (or County, in the State of California. The San Joaquin some may not be publicly available in Valley is designated as a nonattainment area for the we discover) that (1) we clearly erred by either location (e.g., CBI). To inspect the 1997 8-hour ozone national ambient air quality failing to consider or by inappropriately hard copy materials, please schedule an standard (NAAQS) and the 1997 fine particulate considering information made available appointment during normal business matter (PM2.5) NAAQS and is designated as attainment or unclassifiable for the other NAAQS. to EPA at the time of the promulgation, hours with the contact listed in the FOR See 40 CFR 81.303. The area is further classified as or the information made available at the FURTHER INFORMATION CONTACT section ‘‘serious’’ for the 8-hour ozone NAAQS, but the State time of promulgation is subsequently below. of California has submitted a request to reclassify the area to ‘‘extreme.’’ See 74 FR 43654 (August 27, demonstrated to have been clearly FOR FURTHER INFORMATION CONTACT: 2009) for EPA’s proposed approval of the State’s inadequate, and (2) other information Laura Yannayon, Permits Office (AIR– reclassification request. The San Joaquin Valley was persuasively supports a change in the 3), U.S. Environmental Protection further classified as an ‘‘extreme’’ area for the now- regulation. See 71 FR 75690, at 75693 revoked 1-hour ozone NAAQS when EPA Agency, Region IX, (415) 972–3534, designated the area with respect to the 8-hour ozone (December 18, 2006); 57 FR 56762, at [email protected]. NAAQS. 56763 (November 30, 1992).

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B. Background on District NSR Rules specifically noted that ‘‘California California notified EPA of the 2020 and 2201 and Related EPA Actions Health & Safety Code 42310(e) legislature’s action by letter dated EPA originally approved District NSR continues to preclude the District, as November 3, 2003 thereby avoiding the Rules 2020 (‘‘Exemptions’’) and 2201 well as all other districts in California, triggering of a sanctions clock. (‘‘New and Modified Stationary Source from permitting agricultural sources California enclosed a copy of SB 700 8 Review Rule’’) into the California SIP on under either title I or title V of the with the November 3, 2003 letter. July 19, 2001 (66 FR 37587).2 EPA’s July CAA.’’ See 68 FR 7330, at 7335. On May 17, 2004, EPA took final 19, 2001 action was, however, a limited To address this issue, EPA published action approving the District’s approval and limited disapproval a proposal finding that California’s permitting rules, Rules 2020 and 2201, reflecting our conclusion that District statutory exemption of agricultural as proposed in February 2003. See 69 Rules 2020 and 2201 could not be fully sources in CH&SC section 42310(e) from FR 27837 (May 17, 2004). These rules, approved as meeting all applicable major source NSR permitting rules as approved by EPA, did not on their requirements because, among other violated the requirements of CAA face exempt any agricultural sources reasons, District Rule 2020 exempted all section 110(a)(2)(E). See 68 FR 7327 from permitting or limit the agricultural sources from District (February 13, 2003). This action, titled applicability of offset requirements. permitting requirements. 66 FR at ‘‘Finding of Substantial Inadequacy of EPA’s final approval stated that the 37590. At that time, District Rule 2020, Implementation Plan; Call for California District had removed its exemption for citing California Health & Safety Code State Implementation Plan Revision’’ agricultural sources and that the state (CH&SC) section 42310(e), included a (hereinafter ‘‘SIP Call’’), determined that had also ‘‘removed a similar blanket permitting exclusion for ‘‘any equipment California lacked adequate legal exemption, thereby providing the used in agricultural operations in the authority to carry out its NSR permitting District with authority to require air growing of crops or the raising of fowl requirements because CH&SC section permits for agricultural sources, or animals,’’ except for certain orchard 42310(e) exempted major agricultural including Federally required NSR and citrus grove heaters in the southern sources. EPA finalized the SIP Call on permits.’’ See 69 FR 27837, at 27838. portion of the District.3 Our limited June 25, 2003, and thereby required EPA’s final approval cited SB 700 in a disapproval stated that the District California to submit the necessary footnote, but did not note the limited could not exempt major stationary assurances of authority by November 23, scope of authority for permitting and sources or major modifications at 2003 to support an affirmative finding offset requirements under SB 700, existing major sources from NSR by EPA under CAA section 110(a)(2)(E). which allowed permitting of only requirements and be found to meet If the State failed to submit the certain minor agricultural sources. applicable CAA requirements.4 necessary assurances, then EPA C. Correction of Erroneous Final To correct this deficiency, the District indicated that the sanctions clock under Approval adopted a revision to Rule 2020 which CAA section 179 would be triggered.6 In this instance, we believe that our eliminated the agricultural permitting See 68 FR 37746 (June 25, 2003). May 2004 final full approval of District exemption in its entirety, and CARB Later that summer, the California Rules 2020 and 2201 was erroneous. For submitted the revised Rule 2020 to EPA legislature enacted Senate Bill (SB) 700, all SIP revisions, States must provide on December 23, 2002 as a revision to which the Governor of California signed evidence that the State has the the California SIP. In response, on on September 22, 2003. SB 700 removed necessary legal authority under State February 13, 2003, EPA proposed the wholesale exemption from law to adopt and implement the plan. several actions regarding the exemption permitting for agricultural sources See CAA section 110(a)(2)(E); 40 CFR of agricultural sources from major provided under CH&SC section 42310(e) part 51, appendix V, section 2.1(c). source NSR permitting requirements. and subjected major agricultural sources Thus, to support the approval CARB First, EPA proposed approval of revised to permitting requirements. SB 700, was required in December 2002 to District Rule 2020. See 68 FR 7330 however, retained exemptions for new provide evidence that the District had (February 13, 2003).5 In that notice, EPA source permitting for certain minor agricultural sources, and limited the the necessary legal authority under State law to implement Rules 2020 and 2201, 2 Rules 2020 and 2201 were adopted by the ability to require minor agricultural District to meet NSR requirements under the Clean sources to obtain Federal offsets.7 which purported to require permits and Air Act, as amended in 1990, for areas that have not offsets for all agricultural sources. CARB attained the National Ambient Air Quality 6 could not have done so because CH&SC Standards (NAAQS). District Rules 2020 and 2201 On May 22, 2002, EPA issued a Notice of replaced existing NSR rules from the individual Deficiency for California’s Title V program based on section 42310(e), applicable at that time, county air pollution control districts that were the exemption of agricultural sources from Title V continued to preclude such authority combined into the San Joaquin Valley Unified Air permitting. See 67 FR 35990 (May 22, 2002). EPA’s under State law with respect to all Pollution Control District (‘‘District’’) in 1991. decision was upheld. See California Farm Bureau Fed’n v. EPA, No. 02–73371 (9th Cir. July 15, 2003) agricultural sources. 3 For more information on the status of the state Nonetheless, we proposed to fully law exclusion from permitting for agricultural (memorandum opinion). sources in the California SIP, please see the related 7 As explained in Section II.C below, sources with approve Rules 2020 and 2201 on proposed rule published in today’s Federal emissions below 50 percent of the major source February 13, 2003, with the expectation Register. threshold are exempt from permitting unless the that the California legislature would act 4 District NSR permitting rules do not adopt the District makes certain findings, while sources at or to remove CH&SC section 42310(e)’s distinction between minor sources and major above 50 percent of the major source threshold are sources as set forth under the CAA. District Rules subject to permitting unless the District makes exemption for agricultural sources 2020 and 2201 generally apply to both Federal certain findings. See CH&SC section 42301.16(b) minor and major stationary sources. Our limited and (c). In addition, offsets may not be required the provisions of sections 42301.16(c) or approval and limited disapproval specified that the unless they meet the criteria for real, permanent, 42301.18(c). Thus, an agricultural source with rule deficiency was exempting major agricultural quantifiable, and enforceable emission reductions. actual emissions less than 50 percent of the major sources and major modifications. See 65 FR 58252, See CH&SC section 42301.18(c). source threshold but potential emissions above the at 58254 (September 28, 2000). It is worth noting that EPA and California major source threshold is subject to new source 5 EPA also published an Interim Final interpret CH&SC section 42301.16(a) to require all permitting and offset requirements. Determination that SJVUAPCD had corrected the sources that emit or have the potential to emit at 8 See Letter from Bill Lockyer, Attorney General, July 2001 limited approval deficiencies and EPA or above the major source threshold to be subject California Office of the Attorney General, to stayed or deferred the imposition of CAA sanctions to new source permitting and offset requirements, Marianne Horinko, Acting Administrator, EPA, on the District. See 68 FR 7321. as required by the Clean Air Act, without regard to dated November 3, 2003.

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thereby aligning Rule 2020 with District criteria for real, permanent, quantifiable, modifications until certain criteria set authority under State law. 68 FR 7330 and enforceable emissions reductions forth in state law are met. To codify this (Feb. 13, 2003). While the legislature and thus did not invoke the authority proposed error correction, we are did act shortly thereafter to remove the otherwise provided in SB 700 (and proposing the following language to be exemption for major agricultural sources codified in CH&SC section 42301.18(c)) added as a new section, 52.245, of 40 and major modifications at existing to impose an offset requirement on new CFR part 52, subpart F (‘‘California’’): major agricultural sources, the or modified minor agricultural sources. legislature also retained the exemption Given that California submitted a copy 52.245 New Source Review Rules from permitting for certain minor of SB 700 in November 2003, we had (a) Approval of the New Source Review agricultural sources, leaving the words information indicating that the District rules for the San Joaquin Valley Unified Air of Rule 2020 broader than the District’s did not have the authority to implement Pollution Control District Rules 2020 and authority under State law. The Rules 2020 and 2201 to the extent that 2201 as approved May 17, 2004, is limited, as it relates to agricultural sources, to apply legislature also exempted minor the language of the rule appeared to the permit requirement only (1) to agricultural sources from obtaining allow (i.e., to require permits and offsets agricultural sources with potential emissions offsets pending a determination that from all new or modified agricultural at or above a major source applicability emissions reductions from such sources sources, including those exempt under threshold and (2) to agricultural sources with meet certain criteria, leaving Rule 2201, SB 700) prior to the time we took final actual emissions at or above 50 percent of a on its face, also at odds with State law. action. We should have limited our major source applicability threshold. The As noted above, on May 17, 2004, approval of Rules 2020 and 2201 to offset requirement, as it relates to agricultural EPA took final action to approve District conform with SB 700, and promulgated sources, does not apply to new minor Rules 2020 and 2201, as proposed in language in 40 CFR part 52 codifying agricultural sources and minor modifications to agricultural sources. February 2003. See 69 FR 27837 (May that limitation on our approval. 17, 2004). We now understand that our We note that recent enforcement In section IV of this document, we are final approval action on Rules 2020 and actions have been brought pursuant to proposing a limited approval/limited 2201 should have ensured that the the CAA’s citizen suit provisions against disapproval on subsequent submittals of authority in those rules was consistent minor agricultural sources in the District Rules 2020 and 2201 that carry with the authority granted by SB 700. At District that have emissions less than 50 forward the agricultural-source-related that time, since the District had made no percent of the major source threshold provisions for which we proposed findings to broaden (above 50 percent of for failure to apply for and receive a action in February 2008, but that reflect the major source threshold) or narrow new or modified source permit. The subsequent additional changes made by the permitting exemption (below 50 District, however, does not have the the District to the rules. If we finalize percent of the major source threshold), authority under State law to issue such this action, as proposed, we intend to as allowed under SB 700 and now permits. The fact that such cases are codify the above language to clarify the codified in CH&SC sections 42301.16(b) being brought persuasively supports the status of affected sources that were and (c), the permitting exemption need to correct our error in approving constructed or were modified during the provided by State law applied to minor Rules 2020 and 2201 in 2004. period extending from the effective date agricultural sources with actual Therefore, pursuant to CAA section of our February 2004 final rule (i.e., emissions less than 50 percent of the 110(k)(6), we are proposing to correct June 16, 2004) through the effective date major source threshold. Thus, we our error by limiting our approval of of our action on revised District Rules should have limited our approval of Rules 2020 and 2201 to apply only to 2020 and 2201 as described in section Rule 2020 to exclude applicability to the extent the District has authority IV of this document. agricultural sources exempt from new under state law to require permits and source permitting under SB 700 (i.e., offsets. Specifically, with respect to III. The State’s Submittals of Revised minor sources with actual emissions agricultural sources, we are approving District Rules less than 50 percent of the major source Rule 2020 only to the extent it applies A. What rules did the State submit? threshold). Our approval of Rule 2201 to agricultural sources subject to should have been limited to provisions permitting under SB 700. Also and Table 1 lists the rules on which we requiring offsets for major agricultural again with respect to agricultural are proposing action in this document sources, because at the time, the District sources, we are approving Rule 2201 with the dates that they were revised by had not found emissions reductions only to the extent it requires offsets for the District and submitted to EPA by from agricultural sources to meet the new major sources and major CARB.

TABLE 1—SUBMITTED RULES

Local agency Rule No. Rule title Amended Submitted

SJVUAPCD ...... 2020 Exemptions ...... 12/20/07 03/07/08 SJVUAPCD ...... 2201 New and Modified Stationary Source Review Rule ...... 12/18/08 03/17/09 SJVUAPCD ...... 2530 Federally Enforceable Potential to Emit ...... 12/18/08 03/17/09

On April 17, 2008, we found that the B. Are there other versions of these On December 20, 2007, the District submittal of District Rule 2020 met the rules? adopted further amendments to Rule completeness criteria in 40 CFR part 51 2020, and CARB submitted the further appendix V, which must be met before As discussed above, we approved a amended rule to us on March 7, 2008. formal EPA review. On April 20, 2009, version of Rule 2020 into the SIP on The revision to District Rule 2020 that we found the submittal of District Rules May 17, 2004 (69 FR 27837). On CARB submitted on December 29, 2006 2201 and 2530 to be complete. December 29, 2006, CARB submitted an was carried forward with the version amended version of District Rule 2020.

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that was submitted on March 7, 2008 exempting certain agricultural sources sources with emissions that are less and for which we propose action today. from permitting requirements. than one-half of any major source We also approved a version of Rule Specifically, the changes in District Rule threshold. The net effect of this section 2201 into the SIP on May 17, 2004 (69 2020 would: is that all agricultural sources with FR 27837). Since our May 2004 • Revise the existing exemption for actual emissions or a potential to emit approval of Rule 2201 into the SIP, the steam generators, steam superheaters, at or above a major source applicability District has amended the rule on four water boilers, water heaters, steam threshold are required to obtain a occasions. One of those amendments cleaners, and closed indirect heat District permit pursuant to CH&SC added paragraph 4.6.9 to the rule. On transfer systems that have a maximum section 42301.16(a). Agricultural December 29, 2006, CARB submitted input heat rating of five million Btu per sources with actual emissions at or only paragraph 4.6.9 from District Rule hour or less and that are fired above 50 percent of a major source 2201 to EPA. On December 18, 2008, the exclusively on natural gas or liquefied applicability threshold are required to District adopted the latest amendments petroleum gas (LPG) (see paragraph obtain a District permit, unless the to Rule 2201. On March 17, 2009, CARB 6.1.1 of the submitted rule). The existing District makes the findings specified by submitted this latest version of District exemption is limited to the types of subsection (b). No permits are required Rule 2201 to us. This latest version of equipment described above but also for agricultural sources with actual District Rule 2020 that CARB submitted establishes the following specifications emissions of less than 50 percent of any on March 17, 2009 carries forward with for both natural gas and LPG combusted major source applicability thresholds, it all of the changes, including new by the equipment: ‘‘provided the fuel unless the District makes the findings paragraph 4.6.9, that the District has contains no more than five percent by specified in subsection (c), subject to the made in the rule since our May 2004 weight hydrocarbons * * * and no limitation in CH&SC section 42301(a). approval. more than 0.75 grains of total sulfur per The purpose of District Rule 2201 Prior to our 2004 approval of Rules 100 standard cubic feet of gas * * *.’’ (‘‘New and Modified Stationary Source 2020 and 2201, the SJVUAPCD portion The revised exemption would establish Review Rule’’) is to provide for the of the California SIP included a broad separate specifications for natural gas review of new and modified stationary exemption from permitting for all and for LPG. The hydrocarbon content sources of air pollution and to provide agricultural sources, citing CH&SC limit would remain five percent for mechanisms including emission trade- section 42310(e). See section 4.0 of natural gas but would drop to two offs by which Authorities to Construct District Rule 2020, as amended on percent for LPG. The sulfur content such sources may be granted, without September 17, 1998, submitted on limit would increase from 0.75 grains, to interfering with the attainment or October 27, 1998, and approved on July 1.0 grain for natural gas, and to 15 maintenance of ambient air quality 19, 2001 at 66 FR 37587. grains (per 100 standard cubic feet of standards. District Rule 2201 is also Lastly, we approved a version of Rule gas). The revised exemption would intended to provide for no net increase 2530 into the SIP on April 26, 1996 (61 require use of the latest versions of the in emissions above specified thresholds FR 18500). Since EPA’s 1996 approval relevant ASTM test methods. from new and modified stationary • Clarify and tighten the existing of Rule 2530 into the SIP, the District sources of all nonattainment pollutants exemption for certain types of transfer has amended Rule 2530 twice, once on and their precursors. equipment, such as loading and April 25, 2002 and then again on Key features of District Rule 2201 unloading racks, and equipment used December 18, 2008. On March 17, 2009, include: exclusively for the transfer of refined CARB submitted this latest version of • Best Available Control Technology lubricating oil (see paragraph 6.7 of the District Rule 2530 to us, and it includes (BACT) 9: Mandates emission controls to submitted rule). Specifically, with all amendments to the rule by the minimize emission increases above de respect to crude oil, the existing District to date. minimis values. exemption establishes a limiting • Emission offsets: Requires C. What are the purposes for revisions specification in terms of specific gravity, emissions above specified offset to these rules? and the revised exemption would add a threshold levels to be mitigated with Section 110(a) of the CAA requires second limiting specification in terms of either concurrent reductions or past states to submit regulations that control True Vapor Pressure (TVP) and would reductions which have been banked as volatile organic compounds, nitrogen establish certain test methods for emission reduction credits (ERCs). oxides, particulate matter, and other air determining the TVP of crude oil; and • Public notification: A 30- or 45-day pollutants which harm human health • Conform District permit notice period prior to issuance of an and the environment. Permitting rules requirements to State law by explicitly Authority to Construct (ATC) to accept were developed as part of the local air exempting agricultural sources to the comments on projects that result in district’s programs to control these extent such sources are exempt emissions above specified levels. pollutants. pursuant to CH&SC section 42301.16 • The purpose of District Rule 2020 (see paragraph 6.20 of the submitted Required elements for Authority to (‘‘Exemptions’’) is to specify emission rule). Section 42301.16(a) requires local Construct, Permit to Operate and units that are not required to obtain an air permitting authorities to require administrative requirements for Authority to Construct or Permit to permits for agricultural sources subject processing NSR applications. Operate. Rule 2020 also specifies the to the requirements of title I or title V As submitted on March 17, 2009, recordkeeping requirements to verify of the Federal Clean Air Act. Section District Rule 2201 incorporates three such exemptions and outlines the 42301.16(b) similarly requires permits major changes relative to the version of compliance schedule for emission units for all agricultural sources unless Rule 2201 that is approved into the SIP. that lose the exemption. specified findings are made at a public First, amended District Rule 2201 would Relative to the version of Rule 2020 hearing or except as provided in section replace the term, ‘‘Major Modification,’’ that is approved into the SIP, the 42301.16(c). Section 42301.16(c) 9 While the District uses the term BACT as the changes would revise and clarify certain requires the District to make specified level of control required, a review of the definition exemptions and conform the rule to findings at a public hearing prior to has shown that it is equivalent to the requirements existing state law by explicitly requiring permits for agricultural for Federal LAER.

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with two terms, ‘‘Federal major added a reference to equipment the rules in the existing SIP to ensure modification’’ and ‘‘SB 288 major registered under District Rule 2250 in the amended rules continue to meet the modification.’’ (See paragraphs 3.17 and the emission offset exemption portion of applicable requirements, taking into 3.34 of the amended rule.) The former Rule 2201 to provide consistency with account that, in some instances, such as term incorporates EPA’s NSR reform similar exemptions for portable the ‘‘major source’’ threshold principles, and the latter term retains equipment and to avoid confusion; and requirement, the applicable the pre-NSR reform approach to • Provide for a lower offset ratio requirements have changed since we determining whether a modification is a (from 1.5 to 1.2) in the event EPA last acted on these rules. major modification. Second, amended approves a demonstration that all The relevant statutory provisions for District Rule 2201 would incorporate existing major sources of VOC and NOX our review of the submitted rules the lower ‘‘major source’’ and ‘‘Federal in the San Joaquin Valley are equipped include CAA section 110(a), section major modification’’ emissions with BACT as defined in CAA section 110(l), and section 182(e) and (f). thresholds, and higher offset ratios, for 169(3) (see paragraph 4.8.2 of the Section 110(a) requires that SIP rules be the ozone precursors, VOC and NOX, amended rule). This change amends the enforceable, while section 110(l) ‘‘ ’’ consistent with an extreme ozone SIP to add the lower offset ratio precludes EPA approval of SIP revisions classification. (See paragraphs 3.17, provision contained in CAA section that would interfere with any applicable 3.23, and 3.34 of the amended rule). 182(e)(1). The lower offset ratio referred requirement concerning attainment and Lastly, changes to District Rule 2201 to in paragraph 4.8.2 has no current reasonable further progress or any other would conform the rule to existing state effect, because the required applicable requirement of the Act. law by exempting new or modified demonstration has not been submitted Section 182(e) (together with section agricultural sources from offset to EPA. Moreover, EPA would be 182(f) for NO ), requires NSR SIPs in requirements, unless the offsets are X reviewing any such demonstration, most ‘‘extreme’’ nonattainment areas to define required by Federal CAA requirements. likely as a SIP revision, and that review ‘‘major sources’’ in terms of 10 tons per (See paragraph 4.6.9 of the amended would include a review for compliance year of VOC or NOX, to lower the rule.) with the relevant statutory provision in Other changes in amended Rule 2201 threshold for ‘‘major modifications’’ to CAA section 182(e)(1). zero, and to increase the offset ratio to would: Unlike District Rules 2020 and 2201, • 1.5 to 1. In addition, we have reviewed Tighten one of the conditions that District Rule 2530 (‘‘Federally qualify a replacement of ‘‘any article, the submitted rules for compliance with Enforceable Potential to Emit’’) is not an EPA implementing regulations for NSR, machine, equipment, or other NSR rule, but is a rule that relies on contrivance’’ as a ‘‘Routine including 40 CFR 51.160 through 40 thresholds based on certain percentages CFR 51.165. Replacement;’’ the existing rule requires of the major source thresholds that such a replacement, among other established for NSR purposes as a basis B. Do the rules meet the evaluation conditions, not result in an increase in to exempt sources from the criteria? permitting emissions from the requirements of Rule 2520 (‘‘Federally 1. Regulatory Context ‘‘stationary source,’’ whereas, the Mandated Operating Permits’’). Relative modified definition of the term ‘‘routine to the corresponding rule in the existing Other than rule clarifications and replacement’’ requires no such increase SIP, the amended rule would lower the other minor revisions, the changes to from the ‘‘replacement unit(s) (see thresholds below which sources of VOC the District’s rules that are the subject of paragraph 3.33.1 of the amended rule); or NO are exempt from the • Expressly extend the existing X this action fall into four broad requirements of Rule 2520 (see emission offset exemption for portable categories: Changes affecting minor paragraph 6.1 of the amended rule), equipment to equipment registered in source NSR permitting requirements; would lower the thresholds below accordance with the provisions of changes relating to the area’s extreme which sources are exempt from certain District Rule 2250 (Permit-Exempt classification for the 1-hour ozone Equipment Registration) (see paragraph recordkeeping and reporting standard; changes relating to NSR 4.6.3 of the amended rule). The existing requirements under Rule 2530 (see Reform; and changes affecting the exemption covers portable equipment paragraph 5.4.1.2 of the amended rule); mechanism used by sources to avoid registered under District Rule 2280 and would lower certain alternative title V requirements. (Portable Equipment Registration) or operational limits (see, e.g., paragraph First, however, to provide the proper under the Statewide Portable Equipment 6.2.4 of the amended rule). context for evaluating the submitted Registration Program. Existing District IV. EPA’s Evaluation and Action on the changes in the District’s rules, it is Rule 2020 provides a permitting Rule Revisions important to consider the designations exemption for portable emissions units and plan status for the valley with covered by a valid registration under the A. How is EPA evaluating the rules? respect to the relevant national ambient above registration programs ‘‘or other The rules that are the subject of this air quality standards. Area designations equipment registration program proposed action amend rules that EPA for California are set forth in 40 CFR approved by the APCO.’’ District Rule has previously approved as meeting the 81.305 and shown in table 2, below. As 2250 is such a program, and thus, statutory and regulatory requirements shown in table 2, the San Joaquin Valley portable equipment registered under for SIPs regarding minor NSR, major Air Basin is designated ‘‘nonattainment’’ District Rule 2250 are exempt, not just nonattainment NSR, and enforceability for the 1997 8-hour ozone standard. from the emission offset requirement, of permit conditions. Therefore, we With respect to particulate matter, the but also from the requirement for a have focused our review on the changes valley is designated ‘‘attainment’’ for permit. However, the District expressly in the rules relative to the versions of PM10 and ‘‘nonattainment’’ for PM2.5.

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TABLE 2—SAN JOAQUIN VALLEY AREA DESIGNATIONS

Pollutant Designation Classification

(Revoked) Ozone—1-hour standard ...... Nonattainment ...... Extreme (at the time of designation for the 1997 8-hour ozone standard). Ozone—1997 8-hour standard ...... Nonattainment ...... Serious.a Respirable Particulate Matter (PM10) ...... Attainment ...... Not Applicable. Fine Particulate Matter (PM2.5) ...... Nonattainment ...... Not Applicable. Carbon Monoxide ...... Attainment (4 urban areas); Unclassifiable/Attainment Not Applicable. (rest of valley). Nitrogen Dioxide ...... Unclassifiable/Attainment ...... Not Applicable. Sulfur Dioxide ...... Unclassifiable/Attainment ...... Not Applicable. a The State of California has requested reclassification of the San Joaquin Valley to ‘‘extreme’’ for the 1997 8-hour ozone standard. See 74 FR 43654 (August 27, 2009).

As to ozone, the valley is classified as Designations for the 2006 PM2.5 or modification is located or in a a ‘‘serious’’ ozone nonattainment area for NAAQS). neighboring state. Section 51.160(e) the 1997 8-hour ozone standard, but the With respect to carbon monoxide, the provides that the procedures must State of California has requested valley, outside of four urban areas, is identify types and sizes of stationary reclassification of the area to ‘‘extreme.’’ designated as ‘‘unclassifiable/ sources, which will be subject to review. See 74 FR 43654 (August 27, 2009). The attainment.’’ Bakersfield, Fresno, We view this provision as allowing a designation of an area as Modesto, and Stockton, the four urban State to exempt certain types and sizes ‘‘nonattainment’’ triggers certain SIP areas where violations of the carbon of stationary sources so long as the planning requirements, and on monoxide standard had been monitored program continues to serve the purposes November 16, 2007, the State of during the 1970s and 1980s, were outlined in 40 CFR 51.160(a). Thus, the California responded to those redesignated from ‘‘nonattainment’’ to revised exemption for certain natural requirements by submitting the San ‘‘attainment’’ in 1998. Lastly, the valley gas or LPG-fired boilers, and the Joaquin Valley 2008 Ozone Plan to EPA is designated as unclassifiable or exemption from permitting for non- as a revision to the California SIP. EPA attainment for the nitrogen dioxide and major agricultural sources whose actual has not yet acted on the plan. sulfur dioxide standards. emissions (excluding fugitive dust) are Significantly, because, as a general less than 50 percent of the major source 2. Minor Source NSR Permitting thresholds are approvable so long as the matter, the SIP requirements that Requirements minor source permitting program (i.e., applied by virtue of an area’s including the exemption) continues to classification for the now-revoked 1- a. General Considerations provide the necessary information to hour ozone standard continue to apply The amended rules would affect allow the District to determine whether to an 8-hour ozone nonattainment area, minor source NSR (‘‘minor NSR’’) by new or modified stationary sources revising an existing permitting we note that the San Joaquin Valley was would result in a violation of applicable ‘‘ ’’ exemption for certain natural-gas- or designated as an extreme portions of the control strategy or would LPG-fired combustion and heat transfer nonattainment area for the 1-hour ozone result in interference with attainment or systems (see paragraph 6.1 in submitted standard at the time of designation for maintenance of a national standard. In District Rule 2020), by exempting minor the 8-hour ozone standard. Recently, other words, exemptions are approvable agricultural sources with emissions less EPA approved the San Joaquin Valley if it can be shown that it is not necessary 2004 Ozone Plan, which had been than 50 percent of the major source to review exempt sources in order to developed to address the SIP threshold (see paragraph 6.20 in meet the purposes of 40 CFR 51.160(a). requirements for ‘‘extreme’’ areas for the submitted District Rule 2020) from Under 40 CFR 51.160, the District has 1-hour ozone standard. permitting, and by exempting all new or discretion in conducting its minor modified minor agricultural sources As to PM , in 2008, EPA approved a source permitting program to exempt 10 from the offset requirement (see redesignation request for the area from certain small sources and, under Federal paragraph 4.6.9 of submitted District ‘‘nonattainment’’ to ‘‘attainment’’ for the law, minor sources are not required to Rule 2201). PM standard and also approved the obtain offsets. Congress directed the 10 The requirements in 40 CFR 51.160 San Joaquin Valley 2007 PM States to exercise the primary 10 (‘‘Legally enforceable procedures’’), Maintenance Plan as a revision to the responsibility under the CAA to tailor subsections (a) and (e) provide the basis air quality control measures, including California SIP. See 73 FR 66759 for evaluating exemptions from NSR (November 12, 2008). minor source permitting programs, to permitting. The basic purpose of NSR the State’s needs. See Train v. NRDC, As to PM2.5, in 2005, EPA designated permitting is set forth in 40 CFR 421 U.S. 60, 79 (1975) (States make the the valley ‘‘nonattainment’’ for the 1997 51.160(a). Section 51.160(a) requires primary decisions over how to achieve PM2.5 standards. In response, on June NSR SIPs to set forth legally enforceable CAA requirements); Union Electric Co. 30, 2008, the State of California procedures that enable the State or local v. EPA, 427 U.S. 246 (1976); Greenbaum submitted the San Joaquin Valley 2008 agency to determine whether the v. EPA, 370 F.3d 527 (6th Cir. 2006). PM2.5 Plan as a revision to the California construction or modification of a SIP. EPA has not yet taken action on the stationary source would result in a b. Analysis plan. More recently, EPA designated the violation of applicable portions of the With respect to certain smaller valley as nonattainment for the more control strategy; or would result in combustion and heat transfer systems stringent 24-hour PM2.5 standard interference with attainment or (steam generators, water boilers, etc.), promulgated by EPA in 2006. See 74 FR maintenance of a national standard in amended Rule 2020 revises the existing 58688 (November 13, 2009)(Air Quality the State in which the proposed source permitting exemption in paragraph 6.1.1

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of the rule by providing separate fuel fowl or animals located on contiguous with overall actual emissions of PM10 specifications for natural gas and LPG property under common ownership or and PM2.5 greater than 50 tons per year. for those types of equipment eligible for control that is a confined animal facility Without application of some types of the exemption. The hydrocarbon (e.g., barn, corral, coop); is an internal control measures, we would have no specification would remain unchanged combustion engine used in the basis to categorically conclude that such for natural gas but would be tightened production of crops or the raising of sources would under no reasonably for LPG from five percent to two percent fowl or animals (e.g., irrigation pumps, foreseeable circumstances cause or (by weight). With respect to sulfur but excluding nonroad vehicles such as contribute to an exceedance of the PM10 content, the fuel specification would be tractors); or is a title V source or is a or PM2.5 standard. relaxed from 0.75 grains (of total sulfur source that is otherwise subject to However, because the District has per 100 standard cubic feet of gas) to 1.0 regulation by a district or the Federal adopted other rules that serve to control grain (for natural gas) and 15 grains (for Clean Air Act. See CH&SC section the fugitive dust emissions from LPG). Theoretically, the effect of this 39011.5. As such, agricultural sources agricultural sources, including those change would be that certain include both combustion sources (such that would not require a permit due to combustion and heat transfer systems, as, internal combustion engines and the exemption in amended District Rule that otherwise would be covered by the boilers) and non-combustion sources 2020, paragraph 6.20, we believe the permit requirement, would avoid NSR, [e.g., confined animal facilities and on- exemption can be approved consistent and would not be subject to the and off-field vehicular activity (e.g., with 40 CFR 51.160(a) and (e). applicable controls, such as BACT and tilling and harvesting)]. Among the non- Specifically, District Rule 4550 offsets, thereby resulting in emissions combustion agricultural sources, some (‘‘Conservation Management Practices’’) increases that may or may not be by their nature generate fugitive and the District’s Regulation VIII accounted for in regional plans intended emissions such as tilling, harvesting, (‘‘Fugitive PM10 Prohibitions’’, to attain or maintain the national and vehicle travel over unpaved farm particularly, Rules 8011 and 8081) act as standards. roads. non-permitting means to reduce fugitive In response to a query from EPA Agricultural sources, as described dust emissions at agricultural sources concerning potential emissions impacts above, emit volatile organic compounds that fall under the exemption and in the relaxation of the sulfur content (VOC), oxides of nitrogen (NOX), reduce the potential for localized specifications, the District explained particulate matter (PM10 and PM2.5), and exceedances of the PM10 and PM2.5 how, notwithstanding the permitting carbon monoxide. As precursors for standards. As explained further below, exemption, certain prohibitory rules, ozone, PM10 and PM2.5, emissions of as a general matter, District Rule 4550 such as Rule 4308 (Boilers, Steam NOX and VOC from agricultural sources covers on-field agricultural operations Generators, and Process Heaters 0.075 to are not a local concern but are logically and is implemented through an 2 MMBtu/hr) and Rule 4307 (Boilers, evaluated from the standpoint of application and District approval Steam Generators, and Process Heaters 2 regional air quality planning efforts. process, whereas District Rules 8011 to 5 MMBtu/hr) would still apply. See Direct PM10 and PM2.5 are both of local and 8081 cover off-field agricultural the District’s November 13, 2009 and regional concern and thus our operations and are implemented as memorandum, which we have placed in evaluation must consider both the prohibitory rules. the docket for this rulemaking. potential for local exceedances of the District Rule 4550 (‘‘Conservation Moreover, the District explained how, standard due to the exemption, and for Management Practices’’) applies to even if the BACT requirement were inconsistency with regional control agricultural operation sites located triggered by a source that otherwise strategies for these pollutants. Carbon within the San Joaquin Valley Air Basin would be exempt due to the relaxed monoxide is typically a pollutant of and is intended to limit fugitive dust sulfur content specification, BACT for localized concern, and emissions of emissions from such sites. EPA emissions of sulfur oxides has carbon monoxide from exempt approved Rule 4550 and associated List historically been the use of LPG or agricultural sources would not be of Conservation Management Practices natural gas, which is already a significant given the rural location of (CMP List) into the California SIP in precondition for application of the agricultural sites, which are well away 2006. See 71 FR 7683 (February 14, exemption in the first place.10 We find from the urban centers and high traffic 2006). Under the rule, an owner/ the District’s explanation sufficient to densities historically associated with operator must implement the applicable find that the relaxed sulfur content high ambient concentrations of carbon CMPs selected pursuant to section 6.2 specification in amended Rule 2020, monoxide in the valley, and the long (one CMP from the CMP list for each of paragraph 6.1, would have no record of attainment of the carbon the applicable CMP categories for each significant impact on emissions in the monoxide standard even within the agricultural parcel of an agricultural valley. urban centers of the valley. A pollutant- operation site). An owner/operator must In evaluating the limited permitting specific evaluation of the exemption for prepare and submit a CMP Application exemption for agricultural sources for particulate matter and ozone is provided for each agricultural operation site to consistency with 40 CFR 51.160(a), EPA in the following paragraphs. the APCO for approval. A CMP is taking into account the specific Particulate Matter. With respect to Application approved by the APCO pollutants emitted from agricultural PM10 and PM2.5, paragraph 6.20 of constitutes a CMP Plan, and owner/ operations, relevant non-permitting amended Rule 2020 would exempt operators must implement the CMPs as requirements, and regional air quality agricultural operations with emissions contained in the CMP Plan. plans. First, California law defines up to 50 tons per year (assuming that Exemptions in District Rule 4550 ‘‘agricultural source’’ as a source of air 100 tons per year is the current include agricultural operation sites pollution or group of sources used in applicable major source threshold based where the total acreage of all the production of crops or the raising of on the valley’s current area designations agricultural parcels is less than 100 for PM10 and PM2.5). This threshold acres and exempts Animal Feeding 10 If, in the future, use of natural gas or LPG no value, however, excludes fugitive dust, Operations (AFOs) involving less than a longer represents BACT for sulfur emissions, then and thus, the permitting exemption certain number of animals: Less than this exemption may need to be re-evaluated. would extend to agricultural sources 500 mature dairy cows, less than 190

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cattle, less than 55,000 turkeys, less Rule 4550 and Rules 8011 and 8081 per year based on an applicable major than 125,000 chickens (other than provide EPA with a reasonable basis to source threshold of 10 tons per year. As laying hens), or less than 82,000 laying conclude that agricultural operations such, the scope of the exemption hens. The District’s staff report on Rule that escape permitting under paragraph therefore is limited to small-scale 4550 (dated August 19, 2004) concludes 6.20 of amended District Rule 2020 agricultural operations and is acceptable that Rule 4550 (with its 100-acre would not cause or contribute to an so long as the ozone plans for the valley exemption level) will apply to exceedance of the PM10 or PM2.5 do not count on permitting of such approximately 91 percent of all irrigated standard. sources. As noted above, the regional farmland in the SJV. The District also With respect to the regional planning plans do not rely on emission estimated emissions from 100-acre context, we have reviewed the various reductions from permitting of farms to determine the emission impact approved and submitted San Joaquin agricultural sources less than 50% of the of an exemption. District staff analyzed Valley attainment or maintenance plans major source threshold nor do the plans different commodities and determined cited above, and note that none of these rely on offsets for new or modified 13 that PM10 emissions would be quite low plans rely upon NSR for agricultural minor agricultural sources. for smaller farms, less than 1 ton per sources less than 50 percent of the major 3. ‘‘Extreme’’ Ozone Area NSR year. See 71 FR 7683, at 7685 (February source threshold. Further, for Requirements 14, 2006). The District also calculated attainment planning purposes, growth the emissions impact of the size-based in emissions from agricultural sources The most recent version of the exemptions for animal feeding has been established by CARB’s area District’s NSR rules that EPA has operations. Rule 4550 is expected to source inventory growth methodologies, approved into the SIP was adopted by apply to 73% of dairy cows, 94% of and no mitigation of that growth from the District on December 19, 2002. Since feedlot cattle, and nearly all poultry an offsets requirement has been that time, with respect to major sources operations in the valley. The District considered when determining the and major modifications, there have also determined that any sites qualifying impact of the growth on the District’s been two significant regulatory changes for the size-based cut-offs would have ability to achieve attainment with the affecting the NSR rules in San Joaquin emissions no greater than 1 ton per year. standards.11 In contrast, emissions Valley: (1) EPA’s approval of the State See 71 FR 7683, at 7685 (February 14, reductions from the prohibitory rules of California’s request to reclassify the 2006). Such small farms would not be affecting agricultural sources, discussed San Joaquin Valley to ‘‘extreme’’ for the expected to cause or contribute to above, are taken into account in the plan 1-hour ozone standard, and (2) EPA’s localized exceedances of the PM10 or inventory projections. Because the plans promulgation of NSR Reform Rules. PM2.5 standard. do not rely on emission reductions from EPA approved the State of California’s The District’s Regulation VIII permitting of agricultural sources less request to reclassify the San Joaquin (‘‘Fugitive PM10 Prohibitions’’) is than 50% of the major source threshold Valley to ‘‘extreme’’ for the 1-hour ozone intended to reduce ambient and not rely on offsets for new or standard in 2004. See 69 FR 20550 concentrations of PM10 by requiring modified minor agricultural sources, (April 16, 2004). In doing so, EPA actions to prevent, reduce or mitigate approval of the amended Rules 2020 established a deadline of May 16, 2005 anthropogenic fugitive dust emissions and 2201 would be consistent with for submittal of revised District NSR from specified outdoor fugitive dust regional planning efforts to attain and rules that reflect the requirements for sources. Rule 8011 establishes generally maintain the NAAQS. ‘‘extreme’’ ozone nonattainment areas. applicable definitions, exemptions, Ozone. With respect to ozone For such areas, the relevant NSR requirements, administrative precursors (VOC AND NOX), paragraph requirements include a major source requirements, recordkeeping 6.20 of amended District Rule 2020 threshold of 10 tons per year of VOC or requirements, and test methods under would exempt agricultural operations NOX [see CAA section 182(e) and 182(f) Regulation VIII. Rule 8081 with ‘‘actual’’ emissions (i.e., including and 51.165(a)(1)(iv)], the offset ratio is (‘‘Agricultural Sources’’) establishes fugitive emissions) 12 of less than 5 tons 1.5 to 1 [see CAA section 182(e)(1) and specific requirements for off-field 40 CFR 51.165(a)(9)], and any change at agricultural sources. EPA approved 11 Also see the District’s Clean Air Act section a major stationary source which results Regulation VIII, including Rules 8011 110(l) analysis, entitled ‘‘San Joaquin Valley Unified in any increase in emissions from any and 8081, into the California SIP in Air Pollution Control District Rules 2020 and 2201, discrete operation, unit, or other as amended September 21, 2006, District’s Clean 2003 (68 FR 8830, February 26, 2003) Air Act 110(l) Analysis,’’ dated November 20, 2007. pollutant emitting activity at the source and approved Regulation VIII 12 The District’s view on the whether CH&SC amendments into the California SIP in section 42301.16 (and cited in District Rule 2020, 13 Like fugitive dust and District Rules 4550, 2006 (71 FR 8461, February 17, 2006). section 6.20) covers fugitive VOC emissions is 8011, and 8081, emissions of NOX from certain District Rule 8081 applies to off-field found in the District’s Final Staff Report (page types of equipment found at agricultural sources, B–13, response to comment #19) on proposed such as boilers and internal combustion engines, agricultural sources, which includes any amendments to Rule 2201 and Rule 2530 (dated are covered by District prohibitory rules regardless agricultural source that meets the December 18, 2008): ‘‘The District appreciates the of whether a given agricultural source is subject to definition of: Outdoor handling, storage opportunity to reiterate that, for the purposes of permitting. Two such rules include District Rules and transport of bulk material; paved implementing CH&SC sections 40724.6(c) and 4308 and 4702. SIP-approved District Rule 4308 ‘‘ ’’ road; unpaved road; or unpaved 42301.16(c), all emissions, except for fugitive dust, ( Boilers, Steam Generators, and Process Heaters ) must be included in calculations to determine limit NOX emissions from boilers between 75,000 vehicle/equipment traffic area. Under district permitting requirements based on one-half Btu/hour and 2 million Btu/hour. See 72 FR 29886 Rule 8081, an owner/operator must of the major source thresholds. The statutory (May 30, 2007). SIP-approved District Rule 4702 sufficiently implement at least one of language of these sections is consistent, which read (‘‘Internal Combustion Engines—Phase 2’’) limits separately or in the interrelated nature in which NOX, VOC, and carbon monoxide from internal the control measures indicated in the they were intended to be read, and [sic] District’s combustion engines with rated brake horsepower rule to limit visible dust emissions implementation adheres to this statutory language.’’ greater than 50 horsepower. See 73 FR 1819 (VDE) to 20% opacity or to stabilize the Thus, fugitive VOC emissions are included in the (January 10, 2008). Such prohibitory rules further affected surface consistent with the determination of whether actual emissions from a reduce the chance that agricultural sources that minor agricultural operation are greater than 50% would be exempt from permitting under District requirements in Rule 8011. Together, of the applicable major source threshold which, for Rule 2020, paragraph 4.6.9, might interfere with implementation of the fugitive dust VOC, is 10 tons per year, or, in other words, greater attainment or maintenance of the national control measures required under District than 5 tons per year. standards.

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is considered a major modification [see Rules, see, 67 FR 80186 (December 31, required in ‘‘extreme’’ ozone areas), CAA section 182(e)(2) and 40 CFR 2002), and http://www.epa.gov/nsr. while the latter retains the pre-Reform 51.165(a)(1)(x)(E)]. These NSR SIP After the 2002 NSR Reform Rules approach to determining major requirements will also apply once we were finalized and effective (March 3, modification status. Section 3.17.1 approve the State of California’s request 2003), industry, state and environmental incorporates the new method for to reclassify San Joaquin Valley to petitioners challenged numerous determining baseline actual emissions ‘‘extreme’’ for the 8-hour ozone standard. aspects of the 2002 NSR Reform Rules, and the actual-to-projected-actual As submitted on March 17, 2009, the along with portions of EPA’s 1980 NSR methodology for determining whether a Rules (45 FR 52676, August 7, 1980). On VOC and NOX provisions in District major modification has occurred. June 24, 2005, the United States Court Rule 2201 have been amended to Section 3.17.2 incorporates provisions of Appeals for the District of Columbia include the 10 ton per year threshold allowing major stationary sources to (DC Circuit Court) issued a decision on (see section 3.23 of amended Rule comply with PALs. Amended District 2201), the 1.5 to 1 offset ratio (see the challenges to the 2002 NSR Reform Rules. New York v. United States, 413 Rule 2201 avoids any issue concerning section 4.8.1 of amended Rule 2201), potential SIP relaxations due to these and the ‘‘any increase’’ threshold for F.3d 3 (DC Cir. 2005). In summary, the DC Circuit Court vacated portions of the changes, because, consistent with State major modifications (see 3.17.1.4 of law (SB 288), the District retained the amended Rule 2201). As such, District rules pertaining to clean units and PCPs, remanded a portion of the rules pre-reform requirements. The net effect Rule 2201 has adequately been amended of these changes are that the District to reflect ‘‘extreme’’ ozone area regarding recordkeeping and the term will now perform two separate major requirements under the CAA and 40 ‘‘reasonable possibility’’ found in 40 CFR modification determinations, one to CFR 51.165. 52.21(r)(6) and 40 CFR 51.166(r)(6), and either upheld or did not comment on determine if the project will result in a 4. EPA’s NSR Reform Rules the other provisions included as part of SB 288 Major Modification and the On December 31, 2002 (67 FR 80186), the 2002 NSR Reform Rules. On June 13, other to determine if it will result in a EPA published final rule changes to 40 2007 (72 FR 32526), EPA took final Federal Major Modification. Under the CFR parts 51 and 52, regarding the action to revise the 2002 NSR Reform revised rule, a modification of an CAA’s PSD and Nonattainment NSR Rules to remove from Federal law all existing stationary source would be programs relating to major sources and provisions pertaining to clean units and required at a minimum to meet the NSR the PCP exemption that were vacated by major modifications. On November 7, SIP requirements that had applied prior the DC Circuit Court. 2003 (68 FR 63021), EPA published a to adoption by the District of the 2002 With regard to the remanded portions NSR Reforms into Rule 2201, and may notice of final action on the of the 2002 NSR Reform Rules related to reconsideration of the December 31, have to meet additional NSR recordkeeping, on December 21, 2007, requirements if the modification is 2002 final rule changes. The December EPA took final action to establish that a determined to be a Federal Major 31, 2002, and the November 7, 2003, ‘‘reasonable possibility’’ applies where Modification. final actions are collectively referred to source emissions equal or exceed 50 as the ‘‘2002 NSR Reform Rules.’’ The percent of the CAA NSR significant 5. Other Changes to District Rules 2020 purpose of this action is to propose to levels for any pollutant (72 FR 72607). and 2201 approve the SIP submittal from the State The ‘‘reasonable possibility’’ provision of California that includes rule changes identifies for sources and reviewing As described in section III.C of this made as a result of EPA’s 2002 NSR authorities the circumstances under document, the District has made a Reform Rules. which a major stationary source number of changes to their NSR Rules The 2002 NSR Reform Rules made undergoing a modification that does not (i.e., Rules 2020 and 2201) not directly changes to five areas of the NSR trigger major NSR must keep records. related to fuel specifications, programs. In summary, the 2002 Rules: The 2002 NSR Reform Rules require agricultural sources, ‘‘extreme’’ area (1) Provide a new method for that states adopt and submit revisions to requirements, or NSR Reform. These determining baseline actual emissions; their SIP permitting programs changes include clarification and (2) adopt an actual-to-projected-actual implementing the minimum program tightening of an existing exemption for methodology for determining whether a elements of the 2002 NSR Reform Rules certain types of transfer equipment and major modification has occurred; no later than January 2, 2006. State equipment used exclusively for the (3) allow major stationary sources to agencies may meet the requirements of transfer of refined lubricating oil (see comply with Plantwide Applicability 40 CFR part 51 and the 2002 NSR paragraph 6.7 of amended Rule 2020); Limitations (PALs) to avoid having a Reform Rules with different but tightening of one of the conditions that significant emissions increase that equivalent regulations. triggers the requirements of the major As submitted on March 17, 2009, qualify a replacement of equipment as NSR program; (4) provided a new District Rule 2201 has been amended to ‘‘routine replacement’’ (see paragraph applicability provision for emissions provide for the minimum program 3.33.1 of amended Rule 2201); units that are designated clean units; elements of the 2002 NSR Reform Rules clarification of the scope of an existing and (5) excluded pollution control that remain in the wake of subsequent emission offset exemption for portable projects (PCPs) from the definition of litigation and EPA rulemaking. The equipment (see paragraph 4.6.3 of ‘‘physical change or change in the amended rule provides for the amended Rule 2201); and provision for method of operation.’’ On November 7, minimum program elements by a lower offset ratio if and when EPA 2003 (68 FR 63021), EPA published a replacing a single definition for ‘‘Major makes the necessary findings under notice of final action on its Modification’’ with two definitions, one CAA section 182(e)(1) (see paragraph reconsideration of the 2002 NSR Reform for ‘‘Federal Major Modification’’ and 4.8.2 of amended Rule 2210). We find Rules, which added a definition for the other for ‘‘SB 288 Major these changes to either be neutral or ‘‘replacement unit’’ and clarified an Modification.’’ The former term captures strengthening relative to the existing SIP issue regarding PALs. For additional the NSR Reform program elements (and and consistent with all applicable information on the 2002 NSR Reform the ‘‘any increase’’ emissions threshold requirements.

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6. Enforceability Considerations limited approval and limited those for exemptions from disapproval of submitted Rule 2020. recordkeeping and reporting (20% of For the reasons given above, we find Paragraph 4.6.9 of submitted Rule applicable major source threshold) and the amendments to District Rules 2020 2201 contains a similarly-ambiguous from reporting (25% of applicable major and 2201 to be acceptable under reference to State law in listing emission source threshold) have also been applicable NSR regulations; however, offset exemptions: ‘‘Agricultural sources, reduced accordingly. SIP rules must also be enforceable [see to the extent provided by California Certain alternative operational limits CAA section 110(a)], and we find two Health and Safety Code, section in section 6.2 of the rule, which were specific deficiencies related to 42301.18(c), except that nothing in this intended to allow sources using these enforceability of Rules 2020 and 2201 section shall circumvent the types of limits to go up to 80% of the that prevent our full approval. These requirements of section 42301(a).’’ major source threshold (in actual deficiencies arise from the ambiguity CH&SC section 42301.18(c) states: ‘‘A emissions), were changed accordingly introduced by the references in both district may not require an agricultural but certain other limits in section 6.2 paragraph 6.20 (of Rule 2020) and source to obtain emissions offsets for were left unchanged or were changed by paragraph 4.6.9 (of Rule 2201) to State criteria pollutants for that source if a lesser proportion. The District law under circumstances where the emissions reductions from that source explained how the values that were not State law has not been submitted to EPA would not meet the criteria for real, revised downwards in proportion to the for approval into the SIP. Specifically, permanent, quantifiable, and drop in the major source threshold met paragraph 6.20 (of Rule 2020) provides enforceable emission reductions.’’ Our the underlying purpose of the provision a permitting exemption for: understanding is that the District has no allowing alternative operational limits, ‘‘Agricultural sources, but only to the plans to require emissions offsets for i.e., allowing certain types of sources to extent provided by California Health new or modified agricultural sources go up to 80% of the major source and Safety Code, Section 42301.16.’’ In unless such new or modified source is threshold (in actual emissions). For turn, CH&SC section 42301.16 requires a ‘‘Major Source’’ or a ‘‘Federal Major instance, the alternative operational districts to extend permitting Modification’’ as defined in another limit of 7,000,000 gallons per year of requirements to all agricultural sources section of Rule 2201. Once again, there gasoline dispensed at gasoline that are ‘‘major’’ under the CAA and to is no need for ambiguity in the dispensing facilities with phase I and II all ‘‘minor’’ agricultural sources with applicability of the emissions offset vapor recovery systems, as set forth in actual emissions one-half of the exemption, and therefore, EPA is paragraph 6.2.1 of Rule 2530, was left applicable major source emissions proposing a limited approval and unchanged because it still is well below thresholds (or greater) for any air limited disapproval of submitted Rule the 80% (of 10 tons per year) threshold contaminant, but excluding fugitive 2201. for underground storage tanks (16.9 dust. However, subsection (b) of CH&SC million gallons per year) and for above section 42301.16 provides a means 7. Federally Enforceable Restriction on ground storage tanks (12.2 million through which a district can extend the Potential To Emit gallons per year). See District exemption from ‘‘one-half of any District Rule 2530 establishes limits to memorandum on Rule 2530 (dated applicable emissions threshold’’ to the restrict the PTE of a stationary source so December 18, 2009), which we have ‘‘major source’’ threshold if certain that the source may be exempt from the placed in the docket. findings are made in a public hearing. District’s rule implementing Title V Therefore, we find the changes to operating permit requirements. The District Rule 2530 to be acceptable, and Because CH&SC section 42301.16 is we propose to approve amended District not included in the California SIP, nor emission limits in section 6.1 of District Rule 2530 are intended to represent Rule 2530, as submitted on March 17, has California submitted the section to 2009, as a revision to the California SIP. EPA for approval, the SIP would be 50% of the applicable major source 14 ambiguous as to the extent of the threshold. With the change in the 8. CAA Section 110(l) agricultural source permitting valley’s ozone classification to The only remaining issue is whether exemption if EPA were to approve ‘‘extreme’’ for the 1-hour ozone standard, this SIP revision would interfere with submitted District Rule 2020 into the and the corresponding lowering of the requirements concerning attainment and SIP. Effective enforcement of the applicable major source threshold from reasonable further progress (or any other permitting requirements would rely on 25 tons per year to 10 tons per year, it applicable CAA requirement) as set judicial notice of the statutory provision follows that the District has amended forth in CAA section 110(l). CAA cited in the rule, and such judicial Rule 2530 to change the corresponding section 110(l) provides: ‘‘Each revision notice may or may not be forthcoming. emission limit in section 6.1 to 5 tons to an implementation plan submitted by There is no need to rely on judicial per year of VOC or NOX, to maintain the a State under this chapter shall be notice when the District can eliminate emission limit at 50% of the applicable adopted by such State after reasonable the ambiguity by clearly stating the major source threshold. Other emissions notice and public hearing. The exemption for agricultural sources in thresholds in District Rule 2530, such as administrator shall not approve a District Rule 2020 or by submitting revision of a plan if the revision would 14 The approach in District Rule 2530 of CH&SC section 42301.16 to EPA for establishing emission limits and alternative interfere with any applicable approval into the SIP. Moreover, even if operational limits that are intended to represent requirement concerning attainment and we could assume that judicial notice of percentages of the applicable major source reasonable further progress (as defined the statutory provision would be taken, threshold (50% for emission limits and 80% for in section 7501 of this title) or any other alternative operational limits), as a mechanism to CH&SC section 42301.16 by its terms allow sources to avoid title V permitting applicable requirement of this chapter.’’ allows for a relaxation of the one-half of requirements, is consistent with EPA guidance on 42 U.S.C. 7410(l). major source permitting threshold for this subject as set forth in a memorandum dated For the purposes of CAA section agricultural sources, and such January 25, 1995 from John S. Seitz, Director, Office 110(l), we take into account the overall of Air Quality Planning and Standards, titled, relaxations should be reviewed by EPA ‘‘Options for Limiting the Potential to Emit (PTE) of effect of the revisions included in this under section 110 for approval as a SIP a Stationary Source Under Section 112 and Title V action. Given the wide application of revision. Therefore, we are proposing a of the Clean Air Act (Act).’’ the lower major source thresholds to all

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types of new or modified stationary particular, they contain certain SIP. These NSR-related conditions are sources of VOC and NOX and the deficiencies related to enforceability identified in table 3, below, by limited extent of the exemptions from that prevent our full approval. The applicable county, EPA action, and CFR permitting and offsets for certain types deficiency in Rule 2020 can be citation. of agricultural sources, we find that the remedied by the District by revision of On September 23, 1999, in an action overall effect of the revisions would Rule 2020 by replacing the statutory proposing approval of previous versions strengthen the SIP, notwithstanding reference to CH&SC section 42301.16 in of District Rules 2020 and 2201 (later deficiencies identified above in paragraph 6.20 with a clear description superceded by a proposed rule enforceability. Moreover, we do not of the sources covered by the published on September 28, 2000), we anticipate localized exceedances of the exemption. The deficiency in Rule 2201 proposed to remove these conditions. PM10 or PM2.5 standards, due to the can be remedied by either submittal of See 64 FR 51493, at 51494 (September permitting exemption for certain the statutory provisions cited in 23, 1999). Specifically, we proposed to agricultural sources, given the paragraph 4.6.9 or by replacement of the delete the conditions set forth in 40 CFR references with a clear description of application of non-permitting 52.232(a)(5)(i)(A), (a)(6)(i)(A), the applicability of the offset requirements in the SIP. Lastly, we note (a)(10)(i)(A), and (a)(11)(i)(A). that the revisions are consistent with the requirement to agricultural sources. For assumptions of the various air quality amended Rule 2530, we are proposing a In our September 1999 proposed rule, plans developed for the valley. full approval because we find that it has we noted that the conditions required Accordingly, we conclude that the been appropriately modified to reflect the prior county-based APCDs (now revisions to Rules 2020, 2201, and 2530, the decrease in the major source combined to form the San Joaquin if approved, would not interfere with threshold for VOC and NOX consistent Valley Unified Air Pollution Control any applicable requirements for with the area’s ‘‘extreme’’ classification District) 15 to submit regulations attainment and reasonable further for the 1-hour ozone standard. consistent with EPA regulations that progress or any other applicable were current at the time the conditions V. Deletion of Obsolete Conditions on requirement of the CAA and are were established in 1981, 1982, and SIP Approvals approvable under section 110(l). 1985. We also noted that the conditions In the 1980s, EPA placed conditions, are moot today because the District has 9. Conclusion and Proposed Action on including conditions related to NSR, on submitted revised NSR rules (i.e., Rules Submitted Rules approvals of certain California 2020 and 2201) that comply with EPA’s For the reasons given above, under nonattainment plans. As to certain San current regulations and the Clean Air CAA section 110(k)(2) and 301(a), we Joaquin Valley plans, EPA approved the Act, as amended in 1990. However, we are proposing a limited approval and plans on the condition that the State of did not include the removal of these limited disapproval of amended Rules California submit revised NSR rules for obsolete NSR-related conditions in the 2020 and 2201 because, although they the individual county-based Air subsequent final rule on May 17, 2004 would strengthen the SIP and meet all Pollution Control Districts (APCDs), (69 FR 27837) fully approving the but one of the applicable requirements then having jurisdiction in San Joaquin District’s NSR rules, i.e., District Rules for SIPs in general and NSR SIPs in Valley, as revisions to the California 2020 and 2201.

TABLE 3—OBSOLETE CONDITIONS PROPOSED FOR DELETION

County Conditional approval Federal Register citation Regulatory citation

Kern County a ...... 46 FR 42450 (August 21, 1981) ...... 40 CFR 52.232(a)(5)(i)(A). San Joaquin County ...... 47 FR 19694 (May 7, 1982), amended at 50 FR 40 CFR 52.232(a)(6)(i)(A). 7591 (February 25, 1985). Kings, Madera, Merced, Stanislaus, and Tulare 47 FR 19694 (May 7, 1982) ...... 40 CFR 52.232(a)(10)(i)(A). Counties. Fresno County ...... 47 FR 28617 (July 1, 1982) ...... 40 CFR 52.232(a)(11)(i)(A). a In today’s document, we are proposing to remove the Kern County condition for carbon monoxide and ozone only.

In today’s document, we are nonattainment area to attainment (69 FR we propose to amend 40 CFR addressing the same provisions in 40 21731, April 22, 2004). However, as to 52.232(a)(5)(i) to remove the references CFR 52.232 as our 1999 proposed rule, particulate matter, we find the condition to carbon monoxide and ozone only. We but we are not proposing exactly the to be unfulfilled because the Kern will retain the condition as to same action as before. Today, we County APCD retains jurisdiction over a particulate matter until we approve the recognize that the condition in 40 CFR small portion of the San Joaquin Valley Kern County APCD’s nonattainment 52.232(a)(5)(i)(A) is obsolete as to planning area, the portion of the San NSR rules for the East Kern County carbon monoxide and ozone in light of Joaquin Valley planning area over PM10 nonattainment area or until we the approval of District NSR rules in which Kern County APCD retains approve a redesignation request for the 2004 (69 FR 27837, May 17, 2004), the jurisdiction remains nonattainment for East Kern PM10 area to ‘‘attainment.’’ change in the boundary for the 1-hour PM10 (see 73 FR 66759, November 12, We are also proposing to remove the ozone nonattainment boundary for San 2008), and because we have yet to conditions set forth in 40 CFR Joaquin Valley (66 FR 56476, November approve a revision to Kern County 52.232(a)(6)(i)(A), (a)(10)(i)(A), and 8, 2001), and the redesignation of the APCD NSR rules that meet the condition (a)(11)(i)(A) as obsolete in light of the East Kern County 1-hour ozone in 40 CFR 52.232(a)(5)(i)(A). Therefore, approval of District NSR rules in 2004

15 Kern County APCD, one of the original county- entirely consolidated into the current unified wide, and is limited to the eastern portion of the based APCDs covering San Joaquin Valley, was not District, but its jurisdiction is no longer county- county.

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(69 FR 27837, May 17, 2004).16 Unlike meet most of the applicable small not-for-profit enterprises, and Kern County, the counties subject to the requirements and strengthen the SIP, small governmental jurisdictions. conditions in 40 CFR 52.232(a)(6), (10), they contain unacceptably ambiguous This proposed rule will not have a and (11) (i.e., San Joaquin, Kings, references to statutory provisions. significant impact on a substantial Madera, Merced, Stanislaus, Tulare, and With respect to amended District Rule number of small entities because SIP Fresno) all lie entirely within District 2530, as submitted on March 17, 2009, approvals under section 110 and jurisdiction. If we finalize this aspect of we are proposing full approval because subchapter I, part D of the Clean Air Act this action as proposed, we will be we find that it has been appropriately do not create any new requirements but removing and reserving 40 CFR modified to reflect the decrease in the simply approve requirements that the 52.232(a)(6), (a)(10), and (a)(11) because major source threshold for VOC and State is already imposing. Therefore, the conditions proposed for removal are NOX consistent with an ‘‘extreme’’ because the Federal SIP approval does the last conditions on approval that classification. not create any new requirements, I remain. Lastly, EPA is proposing to rescind certify that this action will not have a conditions placed on 1980s era significant economic impact on a VI. Proposed Action and Opportunity substantial number of small entities. for Public Comment approvals by EPA on various nonattainment plans submitted by Moreover, due to the nature of the For the reasons set forth above, we are California for the San Joaquin Valley Federal-State relationship under the proposing to correct a previous approval that have become obsolete by EPA Clean Air Act, preparation of flexibility of San Joaquin Valley District NSR approval of subsequent revisions to the analysis would constitute Federal rules, Rule 2020 (‘‘Exemptions’’) and District’s NSR rules. Therefore, we inquiry into the economic Rule 2210 (‘‘New and Modified propose to amend 40 CFR 52.232(a)(5)(i) reasonableness of State action. The Stationary Source Review Rule’’), to to remove the references to carbon Clean Air Act forbids EPA to base its approve amended District Rule 2530 monoxide and ozone and to remove and actions concerning SIPs on such (‘‘Federally Enforceable Potential to reserve 40 CFR 52.232(a)(6), (a)(10), and grounds. Union Electric Co. v. U.S. EPA, ’’ Emit ), and to take a limited approval (a)(11). 427 U.S. 246, 255–66 (1976); 42 U.S.C. and limited approval action for If EPA were to finalize the limited 7410(a)(2). amended District NSR Rules 2020 and approval and limited disapproval D. Unfunded Mandates Reform Act 2201. action, as proposed, then a sanctions More specifically, we are proposing to Under sections 202 of the Unfunded clock, and EPA’s obligation to correct our May 2004 final approval of Mandates Reform Act of 1995 promulgate a Federal implementation revisions to the San Joaquin Valley (‘‘Unfunded Mandates Act’’), signed into plan, would be triggered because the Unified Air Pollution Control District law on March 22, 1995, EPA must revisions to the District rules for which portion of the California State prepare a budgetary impact statement to a limited approval and limited Implementation Plan under section accompany any proposed or final rule disapproval is proposed are required 110(k)(6) of the Clean Air Act. We do so that includes a Federal mandate that under anti-backsliding principles because, by virtue of information may result in estimated costs to State, established for the transition from the submitted by California to us in local, or tribal governments in the 1-hour to the 8-hour ozone standard. November 2003, we should have limited aggregate; or to the private sector, of We will accept comments from the our approval consistent with the legal $100 million or more. Under section public on this proposal for the next 30 authority provided in State law to air 205, EPA must select the most cost- days. districts to permit, and require offsets effective and least burdensome for, new or modified agricultural VII. Statutory and Executive Order alternative that achieves the objectives sources. To correct our error, we are Reviews of the rule and is consistent with proposing language to be added as a statutory requirements. Section 203 A. Executive Order 12866, Regulatory new section, 52.245, of 40 CFR part 52. requires EPA to establish a plan for Planning and Review Under CAA sections 110(k)(2) and informing and advising any small 301(a), we are proposing a limited The Office of Management and Budget governments that may be significantly approval and limited disapproval of (OMB) has exempted this regulatory or uniquely impacted by the rule. amended District Rules 2020 and 2201, action from Executive Order 12866, EPA has determined that the as submitted on March 7, 2008 and entitled ‘‘Regulatory Planning and proposed action does not include a March 17, 2009, respectively. The Review.’’ Federal mandate that may result in amended District Rules 2020 and 2201 estimated costs of $100 million or more B. Paperwork Reduction Act would establish an exemption from to either State, local, or tribal permitting, and from offsets, for certain This proposed action does not impose governments in the aggregate, or to the minor agricultural operations, would an information collection burden under private sector. This Federal action establish applicability thresholds (for the provisions of the Paperwork proposes to approve pre-existing major sources and major modifications) Reduction Act, 44 U.S.C. 3501 et seq. requirements under State or local law, and offset thresholds consistent with a Burden is defined at 5 CFR 1320.3(b). and imposes no new requirements. classification of ‘‘extreme’’ for the ozone C. Regulatory Flexibility Act Accordingly, no additional costs to standard, and would implement NSR State, local, or tribal governments, or to Reform. We are proposing a limited The Regulatory Flexibility Act (RFA) the private sector, result from this approval and limited disapproval, generally requires an agency to conduct action. because, although the amended rules a regulatory flexibility analysis of any rule subject to notice and comment E. Executive Order 13132, Federalism 16 The condition established in 40 CFR rulemaking requirements unless the Federalism (64 FR 43255, August 10, 52.232(a)(11) also relates to Ventura County, but agency certifies that the rule will not 1999) revokes and replaces Executive removal of the condition is proper as to Ventura County in light of EPA’s subsequent approval of the have a significant economic impact on Orders 12612 (Federalism) and 12875 Ventura County nonattainment NSR rules at 68 FR a substantial number of small entities. (Enhancing the Intergovernmental 9561 (February 28, 2003). Small entities include small businesses, Partnership). Executive Order 13132

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requires EPA to develop an accountable Thus, Executive Order 13175 does not Unified Air Pollution Control District process to ensure ‘‘meaningful and apply to this rule. Rules 2020 and 2201 as approved May timely input by State and local officials 17, 2004, is limited, as it relates to G. Executive Order 13045, Protection of in the development of regulatory agricultural sources, to apply the permit Children From Environmental Health policies that have Federalism requirement only: Risks and Safety Risks implications.’’ ‘‘Policies that have (1) To agricultural sources with Federalism implications’’ is defined in EPA interprets Executive Order 13045 potential emissions at or above a major the Executive Order to include (62 FR 19885, April 23, 1997) as source applicability threshold; and regulations that have ‘‘substantial direct applying only to those regulatory (2) To agricultural sources with actual effects on the States, on the relationship actions that concern health or safety emissions at or above 50 percent of a between the national government and risks, such that the analysis required major source applicability threshold. the States, or on the distribution of under section 5–501 of the Executive (b) The offset requirement, as it relates power and responsibilities among the Order has the potential to influence the to agricultural sources, does not apply various levels of government.’’ Under regulation. This rule is not subject to to new minor agricultural sources and Executive Order 13132, EPA may not Executive Order 13045, because it minor modifications to agricultural issue a regulation that has Federalism proposes to approve a State rule sources. implications, that imposes substantial implementing a Federal standard. Dated: January 21, 2010. direct compliance costs, and that is not H. Executive Order 13211, Actions That Jared Blumenfeld, required by statute, unless the Federal Significantly Affect Energy Supply, Regional Administrator, Region IX. government provides the funds Distribution, or Use [FR Doc. 2010–1838 Filed 1–28–10; 8:45 am] necessary to pay the direct compliance BILLING CODE 6560–50–P costs incurred by State and local This rule is not subject to Executive governments, or EPA consults with Order 13211, ‘‘Actions Concerning State and local officials early in the Regulations That Significantly Affect ENVIRONMENTAL PROTECTION process of developing the proposed Energy Supply, Distribution, or Use’’ (66 AGENCY regulation. EPA also may not issue a FR 28355, May 22, 2001) because it is regulation that has Federalism not a significant regulatory action under 40 CFR Part 52 Executive Order 12866. implications and that preempts State [EPA–R08–OAR–2009–0198; FRL–9102–8] law unless the Agency consults with I. National Technology Transfer and State and local officials early in the Advancement Act Approval and Promulgation of Air process of developing the proposed Quality Implementation Plans; Section 12 of the National Technology regulation. Montana; Revisions to the Transfer and Advancement Act Administrative Rules of Montana This proposed rule will not have (NTTAA) of 1995 requires Federal substantial direct effects on the States, agencies to evaluate existing technical AGENCY: Environmental Protection on the relationship between the national standards when developing a new Agency (EPA). government and the States, or on the regulation. To comply with NTTAA, ACTION: Proposed rule. distribution of power and EPA must consider and use ‘‘voluntary responsibilities among the various consensus standards’’ (VCS) if available SUMMARY: EPA is proposing to approve levels of government, as specified in and applicable when developing State Implementation Plan (SIP) Executive Order 13132, because it programs and policies unless doing so revisions submitted by the State of merely proposes to approve a State rule would be inconsistent with applicable Montana on January 16, 2009 and May implementing a Federal standard, and law or otherwise impractical. 4, 2009. The revisions are to the does not alter the relationship or the The EPA believes that VCS are Administrative Rules of Montana. distribution of power and inapplicable to this action. Today’s Revisions include minor editorial and responsibilities established in the Clean proposed action does not require the grammatical changes, updates to the Air Act. Thus, the requirements of public to perform activities conducive citations and references to Federal and section 6 of the Executive Order do not to the use of VCS. State laws and regulations, and a apply to this rule. clarification of agricultural activities List of Subjects in 40 CFR Part 52 F. Executive Order 13175, Coordination exempt from control of emissions of With Indian Tribal Governments Environmental protection, Air airborne particulate matter. This action pollution control, Intergovernmental is being taken under section 110 of the Executive Order 13175, entitled relations, Ozone, Particulate matter, Clean Air Act. ‘‘Consultation and Coordination with Reporting and recordkeeping DATES: Written comments must be Indian Tribal Governments’’ (65 FR requirements. received on or before March 1, 2010. 67249, November 9, 2000), requires EPA Accordingly, 40 CFR part 52 is ADDRESSES: Submit your comments, to develop an accountable process to proposed to be amended as follows: identified by Docket ID No. EPA–R08– ensure ‘‘meaningful and timely input by OAR–2009–0198, by one of the tribal officials in the development of PART 52—[AMENDED] following methods: regulatory policies that have tribal • http://www.regulations.gov. Follow implications.’’ This proposed rule does 1. The authority citation for part 52 continues to read as follows: the online instructions for submitting not have tribal implications, as specified comments. in Executive Order 13175. It will not Authority: 42 U.S.C. 7401 et seq. • E-mail: [email protected]. have substantial direct effects on tribal 2. Section 52.245 is added to read as • Fax: (303) 312–6064 (please alert governments, on the relationship follows: the individual listed in the FOR FURTHER between the Federal government and INFORMATION CONTACT if you are faxing Indian tribes, or on the distribution of § 52.245 New source review rules. comments). power and responsibilities between the (a) Approval of the New Source • Mail: Director, Air Program, Federal government and Indian tribes. Review rules for the San Joaquin Valley Environmental Protection Agency

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(EPA), Region 8, Mailcode 8P–AR, 1595 ENVIRONMENTAL PROTECTION specifically in connection with Wynkoop Street, Denver, Colorado AGENCY agricultural sources. EPA received 80202–1129. substantive comments on the February 40 CFR Part 52 • Hand Delivery: Director, Air 2008 proposed rule, and, since Program, Environmental Protection [EPA–R09–OAR–2007–0122; FRL–9107–7] publication of the February 2008 proposed rule, the District has adopted Agency (EPA), Region 8, Mailcode 8P– revisions to Rules 2020 and 2201, and AR, 1595 Wynkoop Street, Denver, Withdrawal of Proposed Rule Revising the California State Implementation CARB has submitted the amended rules Colorado 80202–1129. Such deliveries Plan, San Joaquin Valley Unified Air in their entirety to EPA as revisions to are only accepted Monday through Pollution Control District the California SIP. In light of the Friday, 8 a.m. to 4:30 p.m., excluding comments on our February 2008 Federal holidays. Special arrangements AGENCY: Environmental Protection proposed rule, and the more recent should be made for deliveries of boxed Agency (EPA). submittals of District Rules 2020 and information. ACTION: Withdrawal of proposed rule. 2201, we have decided to withdraw the rule proposed on February 20, 2008, and Please see the direct final rule which is SUMMARY: On February 20, 2008 (73 FR located in the Rules Section of this in this Federal Register, EPA is 9260), EPA published a rule proposing publishing a new proposed rule. The Federal Register for detailed instruction to correct EPA’s May 2004 final on how to submit comments. rule being proposed in this Federal approval of revisions to the San Joaquin Register replaces the following rule Valley Unified Air Pollution Control FOR FURTHER INFORMATION CONTACT: published on February 20, 2008: Kathy Dolan, Air Program, U.S. District portion of the California State Title: Revisions to the California State Implementation Plan (SIP) and to Environmental Protection Agency Implementation Plan, San Joaquin approve revisions to certain District (EPA), Region 8, Mailcode 8P–AR, 1595 Valley Unified Air Pollution Control rules. EPA’s proposed correction, and Wynkoop Street, Denver, Colorado District (Proposed rule, 73 FR 9260, proposed approval of District rules EPA–R09–OAR–2007–0122). 80202–1129, 303–312–6142, submitted in December 2006, would [email protected]. conform the SIP to a State law generally List of Subjects in 40 CFR Part 52 SUPPLEMENTARY INFORMATION: In the known as Senate Bill 700 by explicitly Environmental protection, Air ‘‘Rules and Regulations’’ section of this exempting certain minor agricultural pollution control, Intergovernmental Federal Register, EPA is approving the sources from new source review relations, Ozone, Particulate matter, permitting requirements and by limiting State’s SIP revisions as a direct final Reporting and recordkeeping the applicability of offset requirements rule without prior proposal because the requirements. for all minor agricultural sources Agency views these noncontroversial Dated: January 21, 2010. consistent with criteria identified in SIP revisions and anticipates no adverse state law. EPA is withdrawing this Jared Blumenfeld, comments. A detailed rationale for the previously published proposed rule, Regional Administrator, Region IX. approval is set forth in the preamble to and in this Federal Register, EPA is [FR Doc. 2010–1840 Filed 1–28–10; 8:45 am] the direct final rule. If EPA receives no publishing a proposed rule that replaces BILLING CODE 6560–50–P adverse comments, EPA will not take the February 20, 2008 proposed rule. further action on this proposed rule. If DATES: The proposed rule published on EPA receives adverse comments, EPA February 20, 2008 (73 FR 9260) is ENVIRONMENTAL PROTECTION will withdraw the direct final rule and withdrawn as of January 29, 2010. AGENCY it will not take effect. EPA will address FOR FURTHER INFORMATION CONTACT: 40 CFR Part 761 all public comments in a subsequent Laura Yannayon, Permits Office (AIR– final rule based on this proposed rule. 3), U.S. Environmental Protection [EPA–HQ–RCRA–2008–0123; FRL–9108–1] EPA will not institute a second Agency, Region IX, (415) 972–3534, RIN 2050–AG42 comment period on this action. Any [email protected]. parties interested in commenting must Polychlorinated Biphenyls: SUPPLEMENTARY INFORMATION: do so at this time. Please note that if Manufacturing (Import) Exemption for Throughout this document, ‘‘we,’’ ‘‘us’’ EPA receives adverse comment on an Veolia ES Technical Solutions, LLC and ‘‘our’’ refer to EPA. amendment, paragraph, or section of On February 20, 2008 (73 FR 9260), AGENCY: this rule and if that provision may be Environmental Protection EPA proposed to correct our May 2004 Agency (EPA). severed from the remainder of the rule, final approval of revisions to the San ACTION: Withdrawal of proposed rule. EPA may adopt as final those provisions Joaquin Valley Unified Air Pollution of the rule that are not the subject of an Control District (‘‘District’’) portion of SUMMARY: On November 14, 2006, adverse comment. See the information the California State Implementation Veolia ES Technical Solutions, LLC, provided in the Direct Final action of Plan (‘‘SIP’’). EPA also proposed to (Veolia) submitted a rulemaking petition the same title which is located in the approve revisions to two District rules to the U.S. Environmental Protection Rules and Regulations Section of this submitted to EPA by the California Air Agency (EPA) requesting to import up to Federal Register. Resources Board (CARB) on December 20,000 tons of polychlorinated biphenyl Authority: 42 U.S.C. 7401 et seq. 29, 2006. The subject rules included (PCB) waste from Mexico for disposal at District Rule 2020 and District Rule Veolia’s TSCA-approved facility in Port Dated: January 5, 2010. 2201 (paragraph 4.6.9 only). The Arthur, Texas. Based on the information Carol Rushin, proposed correction and proposed available at that time, EPA proposed to Acting Regional Administrator, Region 8. approval that were the subject of our grant Veolia’s request in the proposed [FR Doc. 2010–1746 Filed 1–28–10; 8:45 am] February 20, 2008 proposed rule relate rule, Polychlorinated Biphenyls: BILLING CODE 6560–50–P to review and permitting of new or Manufacturing (Import) Exemption for modified stationary sources (‘‘NSR’’) Veolia ES Technical Solutions, LLC.

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Since that time, Veolia submitted a transcript of the hearing to the ADDRESSES: You may submit comments, request to withdraw its petition from the rulemaking docket. EPA also conducted identified by EB Docket No. 04–296 by rulemaking process. Due to this request, post-hearing proceedings herein referred any of the following methods: EPA is withdrawing this proposed rule. to as the ‘‘question and answer’’ process. • Federal eRulemaking Portal: http:// DATES: The proposed rule is withdrawn The ‘‘question and answer’’ process was www.regulations.gov. Follow the as of January 29, 2010. designed to allow the public to question instructions for submitting comments. • FOR FURTHER INFORMATION CONTACT: the factual nature of material presented Federal Communications William Noggle, Office of Resource at the hearing. The process also granted Commission’s Web site: http:// Conservation and Recovery, the public two more opportunities to www.fcc.gov/cgb/ecfs/. Follow the Environmental Protection Agency, 1200 submit comments and/or questions to instructions for submitting comments. • Pennsylvania Ave., NW., Washington, all hearing participants, including EPA. Mail: Filings can be sent by hand or DC 20460–0001; telephone number: All the documents for the ‘‘question and messenger delivery, by commercial (703) 347–8769; e-mail address: answer’’ process are in the docket. These overnight courier, or by first-class or [email protected]. Mail inquiries post-hearing proceedings were overnight U.S. Postal Service mail may be directed to the Office of completed on October 18, 2009. (although the Commission continues to Resource Conservation and Recovery Subsequently, on November 17, 2009, experience delays in receiving U.S. (ORCR), (5304W), 1200 Pennsylvania Veolia submitted a request to withdraw Postal Service mail). All filings must be Avenue, NW., Washington, DC 20460. its petition from the rulemaking process addressed to the Commission’s (docket entry EPA–HQ–RCRA–2008– Secretary, Office of the Secretary, SUPPLEMENTARY INFORMATION: With 0123–86). Due to this request, EPA is Federal Communications Commission. certain exceptions, section 6(e)(3) of the • Toxic Substances Control Act (TSCA) withdrawing this proposed rule. People with Disabilities: Contact the bans the manufacture, processing, and Withdrawing the proposed rule is the Commission to request reasonable distribution in commerce of Agency’s final action on this accommodations (accessible format polychlorinated biphenyls (PCBs). rulemaking. EPA will not issue a final documents, sign language interpreters, Under TSCA section 3(7), ‘‘manufacture’’ rule on the proposal and will not CART, etc.) by e-mail: [email protected] is defined to include import into the respond further to comments that were or phone: 202–418–0530 or TTY: 202– Customs Territory of the United States. filed for this rulemaking. 418–0432. For detailed instructions for However, TSCA section 6(e)(3)(B) gives Lists of Subjects in 40 CFR Part 761 submitting comments and additional EPA the authority to grant petitions to Environmental protection, Hazardous perform these activities for a period of information on the rulemaking process, substances, Labeling, Polychlorinated SUPPLEMENTARY INFORMATION up to 12 months, provided EPA can see the biphenyls, Reporting and recordkeeping section of this document. make certain findings by rule. To issue requirements. such a rule, EPA must issue a proposed FOR FURTHER INFORMATION CONTACT: Lisa rule and provide the public an Dated: January 22, 2010. Fowlkes, Deputy Bureau Chief, Public opportunity for an informal public Mathy Stanislaus, Safety and Homeland Security Bureau, hearing, if requested. Assistant Administrator, Office of Solid Waste at (202) 418–7452, or by e-mail at On November 14, 2006, Veolia and Emergency Response. [email protected]. For additional submitted a rulemaking petition to EPA [FR Doc. 2010–1943 Filed 1–28–10; 8:45 am] information concerning the Paperwork requesting to import up to 20,000 tons BILLING CODE 6560–50–P Reduction Act information collection of PCB waste from various locations in requirements contained in this Mexico for disposal at Veolia’s TSCA- document, contact Judy Boley Hermann approved facility in Port Arthur, Texas. FEDERAL COMMUNICATIONS at (202) 418–0214 or send an e-mail to Based on the information available at COMMISSION [email protected]. that time, EPA proposed to grant SUPPLEMENTARY INFORMATION: This is a Veolia’s request in the proposed rule, 47 CFR Part 11 summary of the Federal Communication Polychlorinated Biphenyls: [EB Docket No. 04–296; FCC 10–11] Commission’s Second Further Notice of Manufacturing (Import) Exemption for Proposed Rulemaking (Second FNPRM) Veolia ES Technical Solutions, LLC, Review of the Emergency Alert System in EB Docket No. 04–296, FCC 10–11, which was published in the Federal adopted on January 12, 2010, and Register on March 6, 2008 (73 FR AGENCY: Federal Communications released on January 14, 2010. This 12053). In addition to receiving written Commission. document is available to the public at public comment, EPA held a public ACTION: Notice of proposed rulemaking. http://hraunfoss.fcc.gov/edocs_public/ hearing on June 19, 2008, in Port attachmatch/FCC-10-11A1.doc. SUMMARY: Arthur, Texas, to receive additional In this document, the Initial Paperwork Reduction Act of written and oral comments and Commission adopted a document 1995 Analysis presentations regarding the proposed seeking comment on its proposal to rule. amend the Commission’s rules This document contains proposed The details of the procedure for governing the Emergency Alert System information collection requirements. It participating in the hearing pursuant to (EAS) rules to provide for national EAS will be submitted to the Office of 40 CFR 750.18–750.21 are documented testing and collection of data from such Management and Budget (OMB) for in the Federal Register notice for the tests. The purpose of this testing and review under section 3507(d) of the hearing (73 FR 28786, May 19, 2008). In data collection is to determine whether Paperwork Reduction Act of 1995 addition to all of the pre-registered the EAS will function as required (PRA), Public Law 104–13, 109 Stat. 163 speakers, EPA permitted any hearing should the President issue a national (1995). The Commission, as part of its attendee to state his or her comments alert. continuing effort to reduce paperwork and/or to make a presentation, if DATES: Comments are due on or before burdens, invites the general public and desired. EPA posted all the hearing March 1, 2010 and reply comments are OMB to comment on the information presentations and the verbatim due on or before March 30, 2010. collection requirements contained in

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this document, as required by the PRA. regarding the cause or causes for such concerns had been raised regarding the Public and agency comments on the failure. The Commission anticipates frequency and scope of EAS testing. The PRA proposed information collection asking EAS Participants to provide it Bureau recommended that the three requirements are due March 30, 2010. with the date/time of receipt of the EAN Federal partners responsible for EAS— Comments should address: (a) Whether message by all stations; and the date/ the Commission, the Federal Emergency the proposed collection of information time of receipt of the EAT message by Management Agency (FEMA) and the is necessary for the proper performance all stations. The gathering of all of the National Weather Service (NWS), of the functions of the Commission, foregoing information is covered by an review the testing regime to see where including whether the information shall existing OMB authorized information improvement could be made. have practical utility; (b) the accuracy of collection. (OMB Control Number 3060– 4. Since the 30-Day Review was the Commission’s burden estimates; (c) 0207, expiration date 8/31/11). conducted, the Commission, FEMA, and ways to enhance the quality, utility, and However, EAS participants are presently NWS, along with the Executive Office of clarity of the information collected; (d) only required to log the foregoing the President (EOP), have initiated ways to minimize the burden of the information. The Commission’s new discussions regarding testing of the EAS collection of information on the rule requires EAS Participants to send at the national level. The Commission respondents, including the use of this information to its Public Safety and and its Federal partners agree that it is automated collection techniques or Homeland Security Bureau. The vital that the EAS work as designed and other forms of information technology. Commission seeks authorization for this we share concerns that existing testing In addition, pursuant to the Small change. In addition, the Commission may be insufficient to ensure its Business Paperwork Relief Act of 2002, also anticipates asking EAS Participants effective operation. In light of this, as Public Law 107–198, see 44 U.S.C. to provide it with a description of their described below, the Commission, 3506(c)(4), the Commission seeks station identification and level of FEMA, NWS and EOP have begun specific comment on how it might designation (PEP, LP–1, etc.); who they planning for a national EAS test, with ‘‘further reduce the information were monitoring at the time of the test, subsequent tests to occur thereafter. To collection burden for small business and the make and model number of the facilitate this test program, in this concerns with fewer than 25 EAS equipment that they utilized. OMB Second Further Notice of Proposed employees.’’ has not yet authorized the collection of Rulemaking, the Commission proposes OMB Control Number: 3060–0207. this information. to amend its EAS rules to specifically provide for national EAS testing and Title: Emergency Alert System Synopsis of the Second FNPRM Information Collection. data collection. The Commission seeks Form Number: Not applicable. 1. In this Second Further Notice of comment on all issues discussed herein, Type of Review: Revision of a Proposed Rulemaking, the Commission including whether its proposed rule currently approved collection. proposes to amend its Part 11 rules would effectively ensure accurate EAS Respondents: Business or other for- governing the Emergency Alert System testing at the national level. (EAS) to provide for national testing of profit entities; State, Local or Tribal I. Background Governments; Non-profit entities. the EAS and collection of data from Number of Respondents: 3,569,028. such tests. 5. The EAS is a national public Estimated Time per Response: .034— 2. The EAS is a national alert and warning system that provides the 20 hours. warning system that exists primarily to President with the ability to rapidly and Frequency of Response: enable the President of the United States comprehensively communicate with the Recordkeeping requirements; reporting to issue warnings to the American American public during a national requirements; third party disclosure public during emergencies. To date, crisis. The EAS is the successor to two requirement. however, neither the EAS nor its prior national warning systems: Obligation to Respond: Mandatory. predecessor national alerting systems CONELRAD (Control of Electromagnetic Total Annual Burden: 82,008 hours. have been used to deliver a national Radiation), established in 1951, and the Total Annual Cost: $3,086,044. Presidential alert. Moreover, while the Emergency Broadcast System (EBS), Privacy Impact Assessment: No Commission’s Part 11 rules provide for established in 1963. impact(s). periodic testing of EAS at the state and 6. The Commission, in conjunction Nature and Extent of Confidentiality: local level, no systematic national test of with FEMA and NWS, implements EAS There is no need for confidentiality the EAS has ever been conducted to at the federal level. The respective roles required for this information collection. determine whether the system would in these agencies play are defined by a Needs and Uses: In the Second fact function as required should the 1981 Memorandum of Understanding FNPRM in EB Docket No. 04–296, FCC President issue a national alert, and, in between FEMA, NWS, and the 09–10, the Commission proposed a new their current form, the Commission’s Commission; a 1984 Executive Order; a rule obligating entities required to EAS rules do not mandate any such test. 1995 Presidential Statement of EAS participate in EAS (EAS Participants) to 3. In the Second Report and Order in Requirements; and a 2006 Public Alert gather and submit information on the this docket, the Commission noted that and Warning System Executive Order. operation of their EAS equipment it is vital that the EAS operate as As a general matter, the Commission, during a national test of the EAS. designed. In the Further Notice of FEMA, and NWS all work closely with Specifically, the Commission proposed Proposed Rulemaking adopted radio and television broadcasters, cable requiring that EAS Participants record concurrently with the Second Report providers, and other participants in EAS and submit to the Commission the and Order the Commission sought (EAS Participants) as well as with state, following test-related diagnostic comment on various issues relating to local, and tribal governments, to ensure information: (1) Whether they received maintaining the quality of the EAS, the integrity and utility of EAS. the alert message during the designated including additional testing. Finally, in 7. The Commission’s EAS regulations test; (2) whether they retransmitted the the Chairman’s recent 30-Day Review on are set forth in Part 11 of the rules, alert; and (3) if they were not able to FCC Preparedness for Major Public which imposes requirements governing receive and/or transmit the alert, their Emergencies, the Public Safety and mandatory participation in the national ‘best effort’ diagnostic analysis Homeland Security Bureau noted that EAS by all EAS Participants. Part 11

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rules also govern EAS participation at Participants (radio and television weather-related alerts originated by the the state and local level, although broadcasters, cable TV service NWS. currently state and local EAS providers, etc.). At present, the United II. Discussion participation is voluntary. State States is divided into approximately 550 Emergency Coordination Committees EAS local areas, each of which contains A. Present EAS Vulnerabilities (SECCs) and Local Emergency at least two Local Primary stations, 13. Because of its daisy chain Coordination Committees (LECCs) designated ‘‘Local Primary One’’ (LP1), structure, the EAS is potentially undertake the development of ‘‘Local Primary Two’’ (LP2), and so on. vulnerable to ‘‘single point of failure’’ operational plans and procedures for The LP stations must monitor at least problems, i.e., where failure of a implementing state and local EAS two EAS sources for Presidential participating station results in system- activations. These organizations prepare messages (including State Primary wide failure for all points below that coordinated emergency communications stations and in some cases a regional station on the daisy chain. The plans utilizing the EAS (which may be PEP station), and also can serve as the Commission was made aware of one combined with other emergency point of contact for state and local such failure during an inadvertent information distribution plans and authorities and NWS to activate the EAS issuance of a national alert during a methodologies). State and local EAS for localized events such as severe testing operation conducted by FEMA. plans must comply with Part 11 weather alerts. All other EAS In June 2007, FEMA was testing a new requirements and are submitted to the Participants are designated Participating satellite warning system in Illinois and Commission for review. National (PN) stations and must monitor FEMA contractors inadvertently 8. Functionally considered, the at least two EAS sources, including an triggered a national-level EAS alert. This present-day EAS is a hierarchical alert LP1 and an LP2 station as specified in event caused some confusion to message distribution system. Initiating the state’s EAS plan. an EAS message, whether at the 10. The White House, through FEMA, broadcasters and other communications national, state, or local level, requires initiates a presidential-level EAS alert in the Ohio valley and beyond before the message initiator (e.g., FEMA, which by transmission of a coded message the test/alert was terminated by a initiates EAS alerts at the national level sequence, which includes an Emergency combination of EAS Participant on behalf of the President) to deliver Action Notification (EAN) event code. intervention and equipment failure. It specially-encoded messages to a Immediately upon receipt of an EAN was subsequently discovered that some broadcast station-based transmission message, EAS Participants must begin EAS Participant equipment simply did network that, in turn, delivers the monitoring two EAS sources, not pass on the alert. The Commission messages to individual broadcasters, discontinue normal programming, has also received numerous anecdotal cable operators, and other EAS follow the transmission procedures in reports from EAS Participants and state Participants who maintain special the appropriate section of the EAS and local emergency managers of encoding and decoding equipment that Operating Handbook, and undertake problems with state and local level alert can receive the message for various other requirements, until receipt delivery architectures, as well as reports retransmission to other EAS Participants of an Emergency Action Termination indicating problems with PEP station and to end users (broadcast listeners (EAT) message. Essentially, receipt of an readiness as tested by FEMA. and cable and other service subscribers). EAN is designed to ‘‘seize’’ broadcast 14. As noted above, the EAS is Sections 11.32 and 11.33 of the transmission equipment for the administered and tested by multiple Commission’s rules set forth minimum transmission of a presidential message. agencies at multiple levels of its requirements for these EAS encoders The equipment is not freed for operations, and this too may lead to and decoders, respectively, the resumption of regular broadcasting until vulnerabilities in functioning or gaps in functions of which can be combined the EAT is received. nationwide coverage. For example, EAS into a single unit that is commonly 11. State and local emergency PEP station operation and maintenance referred to as an Encoder/Decoder. operations managers also can request is the responsibility of FEMA, which 9. The national EAS delivery/ activation of the EAS by utilizing state- tests the PEP stations but typically does transmission system is commonly designated EAS entry points, such as not test other stations. The NWS tests its referred to as a ‘‘daisy chain.’’ At its the State Primary stations or State Relay own National Weather Radio (NWR) initial level, it consists of various stations. State Relay sources relay state- facilities independently or as integrated FEMA-designated radio broadcast common emergency messages to local with state and local level emergency stations—known as Primary Entry Point areas. Local Primary sources are alert delivery architectures, but again, (PEP) stations—which are tasked with responsible for coordinating the carriage its focus is solely on the proper receiving and transmitting ‘‘Presidential of common emergency messages from operation of NWS/NWR facilities as Level’’ messages initiated by FEMA. As sources such as the NWS or local those facilities interact with state and the entry point for national level EAS emergency management offices as local EAS architectures. State EOC messages, these PEP stations are specified in EAS local area plans. State facilities are maintained and tested by designated ‘‘National Primary’’ (NP). At transmission systems vary from state to their respective state officials. Thus, the next level (i.e., below the PEP state, but can include ‘‘daisy chain’’ none of these entities have been stations), designated ‘‘State Primary’’ links between broadcast and other responsible for ‘‘top-to-bottom’’ national stations monitor specifically-designated terrestrial communications facilities as testing of EAS. PEP stations and re-transmit the well as satellite-based facilities. 15. Finally the Commission notes that Presidential-level alert, as well as state- 12. As noted above, although the EAS the Government Accountability Office level EAS messages originating from the (and its EBS and CONELRAD has recently testified before Congress on Governor or a State Emergency predecessor warning systems) were ‘‘long-standing weaknesses’’ that limit Operations Center (EOC). At the level designed primarily to carry a national the reliability of the national-level EAS below the State Primary stations, Local warning issued by the President, no relay system. GAO specifically cited Primary stations monitor the State such warning has ever been issued. In lack of redundancy, gaps in coverage, a Primary and PEP stations and are fact, the great majority of EAS alerts lack of testing and training, and monitored, in turn, by all other EAS issued to date have been localized limitations on how alerts are

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disseminated to the public. This too C. Next Generation EAS Concerns Next Generation EAS—at least in its heightens our concern regarding 20. The 2006 Presidential Executive initial stages of deployment—as well as potential EAS vulnerabilities. Order requires provision of ‘‘as many to ensure the continued effectiveness of the current EAS. B. Limitations of the Commission’s EAS communications pathways as Testing Rules practicable’’ to reach the American D. Multi-Agency Planning for a National 16. Currently, the Commission’s Part people during crises. In this regard, the EAS Test ‘‘ 11 rules provide for mandatory weekly development of additional next generation’’ alert distribution systems is 23. As noted above, concerns and monthly tests at the state and local regarding the frequency and scope EAS level. The rules also provide for already under way. FEMA is presently working to upgrade the existing EAS testing raised in our recent 30-day ‘‘[p]eriodic [n]ational [t]ests’’ and review of emergency preparedness have ‘‘special tests.’’ at the state or local level. through its Integrated Public Alert and Warnings System (IPAWS), envisioned led the Commission and its Federal See 47 CFR 11.61(a)(3) and (4). Section partners to begin planning a program for 11.61(a) further states that in addition to as a network of alert systems utilizing common or complementary delivery annual EAS testing at the national level. the EAS testing at regular intervals Specifically, the Commission, FEMA, prescribed by the rules ‘‘additional tests architectures. FEMA envisions IPAWS as supporting both the current EAS NWS, and EOP have formed a working may be performed anytime.’’ However, group that is planning an initial national Part 11 does not contain comparable architecture and so-called ‘‘Next Generation’’ EAS. test of the Presidential-level EAS. As rules for testing of EAS at the national planned, this test will involve level. 21. The Commission is also involved in the transition to Next Generation nationwide transmission of the EAN 17. While the current rules give the and associated messages and codes Commission broad authority over EAS EAS, which will utilize state-of-the-art technologies and Common Alerting within the EAS. The purpose of the test testing, the rules generally focus on is to assess for the first time the testing of components of the system Protocol (CAP) to increase the amount and quality of alert and other emergency readiness and effectiveness of the EAS rather than the system as a whole. from top-to-bottom, i.e., from Sections 11.61(a)(1) and (a)(2) specify in information delivered to the public. CAP is a standard alert message format origination of an alert by the President detail the requirements for mandatory and transmission through the entire weekly and monthly EAS tests that are that specifies data fields to facilitate EAS daisy chain, to reception by the conducted at the state and local level. data sharing across different distribution American public. Following the conduct However, these tests are designed to systems. In its May 2007 EAS Second and evaluation of the initial national ascertain whether the EAS equipment Report and Order, the Commission test, it is contemplated that the belonging to individual EAS adopted a requirement that all EAS Commission and its Federal partners Participants is functioning properly; Participants be able to accept CAP- will continue to test EAS nationally. they do not test whether the national formatted EAS messages no later than EAS infrastructure as a whole works 180 days after FEMA publicly adopts a E. Proposed Rule well or at all. Similarly, while the rules CAP standard. This requirement applies 24. Given the potential vulnerabilities authorize ‘‘additional tests’’ and ‘‘special to EAS Participants regardless of of EAS in the absence of national tests,’’ these typically are carried out at whether they are utilizing existing EAS testing, the above-described multi- the state or local level, and are usually or Next Generation EAS. The Second agency initiative to begin a national test designed to test for readiness during Report and Order also required EAS program, and the lack of specific specific warning situations, for example, Participants to adopt Next Generation provisions in our Part 11 rules relating child abduction cases covered by so- EAS delivery systems no later than 180 to national tests, the Commission called Amber Alerts. days after FEMA publicly releases 18. The current Part 11 rules also standards for those systems. proposes to amend its Part 11 rules to require EAS participants to record data 22. While significant efforts are being expressly require all EAS Participants to from EAS tests, but the data collected is made to transition to Next Generation participate in national testing and to limited in scope. Specifically, the rules EAS, testing of the existing EAS remains provide test results to the Commission. require EAS Participants to log the important because it is likely that the Specifically, it proposes to amend dates/times that EAN and EAT messages existing EAS will continue to function section 11.61(a)(3) of our rules to read are received, and to determine and log as a critical alerting system for the as follows: the cause of any failures in the reception foreseeable future. Moreover, while we National Tests. All EAS Participants shall of the required monthly and weekly expect that FEMA’s adoption of CAP as participate in national tests as scheduled by tests. However, this data is not sufficient part of IPAWS will spur the the Commission in consultation with the to provide an assessment of whether the development of Next Generation EAS, Federal Emergency Management Agency there is at yet no established timetable (FEMA). Such tests will consist of the EAS is capable of functioning delivery by FEMA to PEP/NP stations of a nationally. for the development of next generation coded EAS message, including EAS header 19. Section 11.61(a)(3) of the rules is systems that will completely replace the codes, Attention Signal, Test Script, and entitled ‘‘Periodic National Tests,’’ existing EAS architecture, either at the EOM code. The coded message shall utilize indicating that national EAS testing was federal or the state and local levels. EAS test codes as designated by the at least contemplated when the rules Thus, we expect that FEMA will rely on Commission’s rules or such other EAS codes were adopted. This rule, however, the existing EAS daisy chain structure as the agencies conducting the test deem merely states that NP/PEP stations shall for at least the initial stages of IPAWS appropriate. A national test shall replace the participate in such tests ‘‘as development and implementation. The required monthly test for all EAS Participants appropriate,’’ but does not elaborate various states and localities also appear in the month in which it occurs. Notice shall be provided to EAS Participants by the upon who would conduct such tests, to be at different stages in their ability Commission at least two months prior to the how they would be conducted, or how to adopt and utilize CAP-based EAS conduct of any such national test. Test often. In any case, as noted above, no architecture. As a result, our ability to results as required by the Commission shall national test has ever been conducted, systematically test the existing EAS be logged by all EAS Participants and shall under this provision or otherwise. architecture is important to support be provided to the Commission’s Public

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Safety and Homeland Security Bureau within 29. In connection with national basis, it seeks comment on whether this thirty (30) days following the test. testing, the Commission proposes should in fact be written into the rule. 25. The Commission seeks comment requiring that EAS Participants record 32. Finally, it has been brought to the on the specific language of its proposed and submit to it the following test- Commission’s attention that different rule and its sufficiency to ensure an related diagnostic information for each ENDEC manufacturers may have adequate framework for the conduct of alert received from each message source programmed their devices to receive national tests implemented by this monitored at the time of the national and transmit EANs in different ways, agency in collaboration with FEMA and test: (1) Whether they received the alert which may affect the ability of some our other Federal partners. It also seeks message during the designated test; (2) ENDECs to properly relay an EAN. In its comment on whether the specific rule whether they retransmitted the alert; 2008 Closed Circuit Test Report, the that we propose is, on balance, the best and (3) if they were not able to receive Primary Entry Point Administrative way to implement national testing of the and/or transmit the alert, their ‘best Council noted that many ENDECs EAS, or whether different provisions effort’ diagnostic analysis regarding the process EAN messages by ignoring a should be adopted. cause or causes for such failure. The FIPS, i.e., location codes for national 26. The Commission also proposes Commission also anticipates asking EAS level messages on the assumption that a implementing the national test on a Participants to provide it with a national message is intended for the yearly basis. It seeks specific comment description of their station entire nation. Accordingly, they on this proposal. The Commission identification and level of designation transmit the message whether or not an EAN contains a FIPS code. At least one believes that regular testing of the EAS (PEP, LP–1, etc.); the date/time of ENDEC manufacturer, however, has is necessary to ensure that it can receipt of the EAN message by all devices which require a FIPS code function properly during emergencies. stations; the date/time of PEP station match. Thus in order to properly The Commission also believe that acknowledgement of receipt of the EAN forward an EAN, the devices must testing the EAS nationally at least once message to FOC; the date/time of receive a message that contains an a year may be necessary to produce initiation of actual broadcast of the appropriate FIPS code as authorized by reliable results regarding the on-going Presidential message; the date/time of Commission rules. As a result, there is operational readiness of the EAS. On the receipt of the EAT message by all some concern that such devices may not other hand, the Commission does not stations; who they were monitoring at the time of the test; and the make and properly transmit an EAN message propose to require national testing more nationwide. The Commission seeks frequently than once a year, because it model number of the EAS equipment that they utilized. comment on this situation. Could the is concerned that more frequent testing difference in how these ENDECs are 30. The Commission proposes to could cause unnecessary disruption of programmed result in breaks in the require that this information be regular broadcasting and other service ‘‘EAS chain’’? Could this impact the provided to it no more than thirty (30) transmission to the public. The relay of an EAN test message during a days following the test date. It also Commission also wishes to minimize national EAS test? If so, how? The anticipates making this information attendant costs. It seeks comment on Commission also seeks comment on publicly available. The Commission this analysis. what actions it should take to address foresees two related benefits from this 27. The Commission does not propose this problem prior to a national test. to specify a set time each year for the data collection and its public release. Should the Commission, for example, national EAS test to occur. The First, it will provide the Commission adopt a requirement that all ENDECs Commission believes that avoiding a set and our Federal partners with necessary relay an EAN message irrespective of date will yield more realistic data about diagnostic information to assist our any FIPS code? What would be the cost EAS reliability and performance, and analysis of the readiness of the EAS. of implementing such a requirement will discourage complacency. On the Second, it will provide state and local prior to a national test? Alternatively, other hand, the Commission believes it authorities with useful diagnostic are there non-regulatory actions the is essential to provide sufficient notice information related to their evaluation Commission should take? Should the of such tests to EAS Participants so that of the system’s regional and local Commission designate a national-level they can prepare for the test and alert performance. The Commission seeks FIPS code and, if so, what would the the public that a national-level EAS test comment on this proposal. Are there impact on the ENDEC manufacturers be? is pending. The Commission believes any concerns with making this data that two months notice provides enough publicly available? Should the III. Conclusion preparation time for EAS Participants. Commission instead limit availability 33. The EAS is intended to provide a The Commission seeks comment on the to, for example, only its Federal partners reliable mechanism for the President to sufficiency of a two-month notice and/or authorized personnel of state, communicate with the country during period. tribal and local government emergency emergencies. Yet the EAS has never 28. The Commission envisions that management agencies? been tested nationally in a systematic national EAS testing will involve many 31. The Commission also notes that it way, i.e., by use of a test methodology of the same test elements that are plans to coordinate with FEMA on a that can identify system flaws and already included in required monthly regular basis in the implementation of failures comprehensively and on a EAS testing at the state and local levels the national test. FEMA is the agency nationwide basis. The Commission (e.g., EAS header codes, Attention responsible for transmission of a believes that development of such a test Signal, Test Script and EOM code). presidential-level alert to the PEP methodology is critically important to Accordingly, the Commission proposes stations, and for the implementation ensuring that the EAS works as that the annual national test would and maintenance of PEP stations. intended, now and in the future. The replace the required monthly test for the Moreover, FEMA is integrating EAS into Commission solicits comment on all month in which it occurs. The IPAWS. Although the Commission issues, analysis, and proposals set out in Commission sees no benefit to requiring believes it is unnecessary to specifically this Notice, including our proposed EAS Participants to give up further state in its proposed rule that it will rule. The Commission intends to move broadcast time for a redundant test. coordinate with FEMA on a regular quickly to adopt any and all necessary

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rule changes to ensure that it and other message, ‘‘get form.’’ A sample form and comments on the Second Further Notice federal, state, local, and non- directions will be sent in response. provided in Section IV of the item. The governmental EAS stakeholders have 38. Paper Filers: Parties who choose Commission will send a copy of the the necessary diagnostic tools to to file by paper must file an original and Second Further Notice, including this evaluate EAS performance and four copies of each filing. If more than IRFA, to the Chief Counsel for Advocacy readiness nationwide. one docket or rulemaking number of the Small Business Administration appears in the caption of this (SBA). In addition, the Second Further IV. Procedural Matters proceeding, filers must submit two Notice and IRFA (or summaries thereof) A. Ex Parte Presentations additional copies for each additional will be published in the Federal docket or rulemaking number. Register. 34. This matter shall be treated as a 39. Filings can be sent by hand or Need for, and Objectives of, the ‘‘permit-but-disclose’’ proceeding in messenger delivery, by commercial Proposed Rules accordance with the Commission’s ex overnight courier, or by first-class or parte rules. Persons making oral ex overnight U.S. Postal Service mail 45. Today’s Second Further Notice parte presentations are reminded that (although we continue to experience seeks to ensure that the Commission’s memoranda summarizing the delays in receiving U.S. Postal Service emergency alert services (‘‘EAS’’) rules presentations must contain summaries mail). All filings must be addressed to better protect the life and property of all of the substance of the presentations the Commission’s Secretary, Office of Americans. To further serve this goal, and not merely a listing of the subjects the Secretary, Federal Communications the Further Notice invites additional discussed. More than a one- or two- Commission. comment on a proposed rule to sentence description of the views and 40. Effective December 28, 2009, all implement national testing of the arguments presented is generally hand-delivered or messenger-delivered Emergency Alert System (EAS) through required. Other requirements pertaining paper filings for the Commission’s use of a coded EAS message which will to oral and written presentations are set Secretary must be delivered to FCC replace a required monthly test, and forth in section 1.1206(b) of the Headquarters at 445 12th St., SW., Room requiring logging and provision to the Commission’s rules. TW–A325, Washington, DC 20554. The Commission of test-related diagnostic information within 30 days of the test. B. Comment Filing Procedures filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held Legal Basis 35. Pursuant to sections 1.415 and together with rubber bands or fasteners. 1.419 of the Commission’s rules, 47 CFR Any envelopes must be disposed of 46. Authority for the actions proposed 1.415, 1.419, interested parties may file before entering the building. Please in this Second Further Notice may be comments and reply comments on or Note: The Commission’s former filing found in sections 1, 4(i), 4(o), 303(r), before the dates indicated on the first location at 236 Massachusetts Avenue, 403, 624(g) and 706 of the page of this document. All filings NE., is permanently closed. Communications Act of 1934, as related to this Second Further Notice of 41. Commercial overnight mail (other amended (Act), 47 U.S.C. 151, 154(i), Proposed Rulemaking should refer to EB than U.S. Postal Service Express Mail 154(j), 154(o), 303(r), 544(g) and 606. Docket No. 04–296. Comments may be and Priority Mail) must be sent to 9300 Description and Estimate of the Number filed using: (1) The Commission’s East Hampton Drive, Capitol Heights, of Small Entities to Which Rules Will Electronic Comment Filing System MD 20743. Apply (ECFS), (2) the Federal Government’s 42. U.S. Postal Service first-class, 47. The RFA directs agencies to eRulemaking Portal, or (3) by filing Express, and Priority mail should be provide a description of, and, where paper copies. See Electronic Filing of addressed to 445 12th Street, SW., feasible, an estimate of, the number of Documents in Rulemaking Proceedings, Washington, DC 20554. small entities that may be affected by 63 FR 24121 (1998). C. Accessible Formats the rules adopted herein. The RFA 36. Electronic Filers: Comments may 43. To request materials in accessible generally defines the term ‘‘small entity’’ be filed electronically using the Internet formats for people with disabilities as having the same meaning as the terms by accessing the ECFS: http:// (Braille, large print, electronic files, ‘‘small business,’’ ‘‘small organization,’’ www.fcc.gov/cgb/ecfs/ or the Federal audio format), send an e-mail to and ‘‘small governmental jurisdiction.’’ eRulemaking Portal: http:// [email protected] or call the Consumer & In addition, the term ‘‘small business’’ www.regulations.gov. Filers should Governmental Affairs Bureau at 202– has the same meaning as the term ‘‘small follow the instructions provided on the 418–0530 (voice), 202–418–0432 (TTY). business concern’’ under the Small Web site for submitting comments. Business Act. A ‘‘small business 37. For ECFS filers, if multiple docket V. Initial Regulatory Flexibility concern’’ is one which: (1) Is or rulemaking numbers appear in the Analysis independently owned and operated; (2) caption of this proceeding, filers must 44. As required by the Regulatory is not dominant in its field of operation; transmit one electronic copy of the Flexibility Act of 1980, as amended and (3) satisfies any additional criteria comments for each docket or (RFA), the Commission has prepared established by the Small Business rulemaking number referenced in the this present Initial Regulatory Administration (‘‘SBA’’). caption. In completing the transmittal Flexibility Analysis (IRFA) of the 48. A small organization is generally screen, filers should include their full possible significant economic impact on ‘‘any not-for-profit enterprise which is name, U.S. Postal Service mailing a substantial number of small entities by independently owned and operated and address, and the applicable docket or the policies and rules proposed in this is not dominant in its field.’’ rulemaking number. Parties may also Second Further Notice of Proposed Nationwide, as of 2002, there were submit an electronic comment by Rulemaking (Second Further Notice). approximately 1.6 million small Internet e-mail. To get filing Written public comments are requested organizations. The term ‘‘small instructions, filers should send an e- on this IRFA. Comments must be governmental jurisdiction’’ is defined as mail to [email protected], and include the identified as responses to the IRFA and ‘‘governments of cities, towns, following words in the body of the must be filed by the deadlines for townships, villages, school districts, or

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special districts, with a population of Analyzer Database on March 31, 2005, Cable and Other Program Distribution less than fifty thousand.’’ As of 1997, about 10,840 (95 percent) of 11,410 category is now included in the category there were approximately 87,453 commercial radio stations have revenue of Wired Telecommunications Carriers, governmental jurisdictions in the of $6 million or less. We note, however, the majority of which, as discussed United States. This number includes that many radio stations are affiliated above, can be considered small. 39,044 county governments, with much larger corporations having According to Census Bureau data for municipalities, and townships, of which much higher revenue. Our estimate, 2002, there were a total of 1,191 firms 37,546 (approximately 96.2 percent) therefore, likely overstates the number in this previous category that operated have populations of fewer than 50,000, of small entities that might be affected for the entire year. Of this total, 1,087 and of which 1,498 have populations of by our action. firms had annual receipts of under $10 50,000 or more. Thus, we estimate the 51. Wired Telecommunications million, and 43 firms had receipts of number of small governmental Carriers. The 2007 North American $10 million or more but less than $25 jurisdictions overall to be 84,098 or Industry Classification System million. Thus, we believe that a fewer. Nationwide, there are a total of (‘‘NAICS’’) defines ‘‘Wired substantial number of entities included approximately 22.4 million small Telecommunications Carriers’’ as in the former Cable and Other Program businesses, according to SBA data. follows: ‘‘This industry comprises Distribution category may have been 49. Television Broadcasting. The SBA establishments primarily engaged in categorized as small entities under the has developed a small business size operating and/or providing access to now superseded SBA small business standard for television broadcasting, transmission facilities and infrastructure size standard for Cable and Other which consists of all such firms having that they own and/or lease for the Program Distribution. With respect to $14 million or less in annual receipts. transmission of voice, data, text, sound, OVS, the Commission has approved Business concerns included in this and video using wired approximately 120 OVS certifications industry are those ‘‘primarily engaged in telecommunications networks. with some OVS operators now broadcasting images together with Transmission facilities may be based on providing service. Broadband service sound.’’ According to Commission staff a single technology or a combination of providers (BSPs) are currently the only review of BIA Publications, Inc. Master technologies. Establishments in this significant holders of OVS certifications Access Television Analyzer Database, as industry use the wired or local OVS franchises, even though of May 16, 2003, about 814 of the 1,220 telecommunications network facilities OVS is one of four statutorily- commercial television stations in the that they operate to provide a variety of recognized options for local exchange United States had revenues of $12 services, such as wired telephony carriers (LECs) to offer video million or less. We note, however, that, services, including VoIP services; wired programming services. As of June 2006, in assessing whether a business concern (cable) audio and video programming BSPs served approximately 1.4 million qualifies as small under the above distribution; and wired broadband subscribers, representing 1.46 percent of definition, business (control) affiliations Internet services. By exception, all MVPD households. Among BSPs, must be included. Our estimate, establishments providing satellite however, those operating under the OVS therefore, likely overstates the number television distribution services using framework are in the minority. The of small entities that might be affected facilities and infrastructure that they Commission does not have financial by our action, because the revenue operate are included in this industry.’’ information regarding the entities figure on which it is based does not The SBA has developed a small authorized to provide OVS, some of include or aggregate revenues from business size standard for wireline firms which may not yet be operational. We affiliated companies. There are also within the broad economic census thus believe that at least some of the 2,127 low power television stations category, ‘‘Wired Telecommunications OVS operators may qualify as small (‘‘LPTV’’). Given the nature of this Carriers.’’ Under this category, the SBA entities. service, we will presume that all LPTV deems a wireline business to be small if 53. Cable System Operators (Rate licensees qualify as small entities under it has 1,500 or fewer employees. Census Regulation Standard). The Commission the SBA size standard. Bureau data for 2002 show that there has developed its own small business 50. Radio Stations. The revised rules were 2,432 firms in this category that size standard for cable system operators, and policies potentially will apply to all operated for the entire year. Of this for purposes of rate regulation. Under AM and commercial FM radio total, 2,395 firms had employment of the Commission’s rules, a ‘‘small cable broadcasting licensees and potential 999 or fewer employees, and 37 firms company’’ is one serving 400,000 or licensees. The SBA defines a radio had employment of 1,000 employees or fewer subscribers nationwide. We have broadcasting station that has $7 million more. Thus, under this category and estimated that there were 1,065 cable or less in annual receipts as a small associated small business size standard, operators who qualified as small cable business. A radio broadcasting station is the majority of firms can be considered system operators at the end of 2005. an establishment primarily engaged in small. Since then, some of those companies broadcasting aural programs by radio to 52. Wired Telecommunications may have grown to serve over 400,000 the public. Included in this industry are Carriers—Cable and Other Program subscribers, and others may have been commercial, religious, educational, and Distribution. This category includes, involved in transactions that caused other radio stations. Radio broadcasting among others, cable operators, direct them to be combined with other cable stations which primarily are engaged in broadcast satellite (‘‘DBS’’) services, operators. Consequently, the radio broadcasting and which produce home satellite dish (‘‘HSD’’) services, Commission estimates that there are radio program materials are similarly satellite master antenna television now fewer than 1,065 small entity cable included. However, radio stations that (‘‘SMATV’’) systems, and open video system operators that may be affected by are separate establishments and are systems (‘‘OVS’’). The data we have the rules and policies proposed herein. primarily engaged in producing radio available as a basis for estimating the 54. Cable System Operators (Telecom program material are classified under number of such entities were gathered Act Standard). The Communications another NAICS number. According to under a superseded SBA small business Act of 1934, as amended, (‘‘Act’’) also Commission staff review of BIA size standard formerly titled Cable and contains a size standard for small cable Publications, Inc. Master Access Radio Other Program Distribution. The former system operators, which is ‘‘a cable

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operator that, directly or through an Therefore, we estimate that there are at services. Of these 1,303 carriers, an affiliate, serves in the aggregate fewer least 440 (392 pre-auction plus 48 estimated 1,020 have 1,500 or fewer than 1 percent of all subscribers in the auction licensees) small BRS providers employees and 283 have more than United States and is not affiliated with as defined by the SBA and the 1,500 employees. Consequently, the any entity or entities whose gross Commission’s auction rules which may Commission estimates that most annual revenues in the aggregate exceed be affected by the rules adopted herein. providers of incumbent local exchange $250,000,000.’’ The Commission has In addition, limited preliminary census service are small businesses that may be determined that there are 67,700,000 data for 2002 indicate that the total affected by our proposed rules. subscribers in the United States. number of cable and other program 59. Competitive (LECs), Competitive Therefore, an operator serving fewer distribution companies increased Access Providers (CAPs), ‘‘Shared- than 677,000 subscribers shall be approximately 46 percent from 1997 to Tenant Service Providers,’’ and ‘‘Other deemed a small operator, if its annual 2002. Local Service Providers.’’ Neither the revenues, when combined with the total 57. Educational Broadband Service. Commission nor the SBA has developed annual revenues of all its affiliates, do The proposed rules would also apply to a small business size standard not exceed $250 million in the Educational Broadband Service (‘‘EBS,’’ specifically for these service providers. aggregate. Based on available data, the formerly known as Instructional The appropriate size standard under Commission estimates that the number Television Fixed Service or ‘‘ITFS’’) SBA rules is for the category Wired of cable operators serving 677,000 facilities operated as part of a wireless Telecommunications Carriers. Under subscribers or fewer, totals 1,065. The cable system. The SBA definition of that size standard, such a business is Commission neither requests nor small entities for pay television services, small if it has 1,500 or fewer employees. collects information on whether cable Cable and Other Subscription According to Commission data, 769 system operators are affiliated with Programming also appears to apply to carriers have reported that they are entities whose gross annual revenues EBS. There are presently 2,032 EBS engaged in the provision of either exceed $250 million, and therefore are licensees. All but 100 of these licenses competitive access provider services or unable, at this time, to estimate more are held by educational institutions. competitive local exchange carrier accurately the number of cable system Educational institutions are included in services. Of these 769 carriers, an operators that would qualify as small the definition of a small business. estimated 676 have 1,500 or fewer cable operators under the size standard However, we do not collect annual employees and 93 have more than 1,500 contained in the Act. revenue data for EBS licensees, and are employees. In addition, 12 carriers have 55. Broadband Radio Service (FCC not able to ascertain how many of the reported that they are ‘‘Shared-Tenant Auction Standard). The established 100 non-educational licensees would be Service Providers,’’ and all 12 are rules apply to Broadband Radio Service categorized as small under the SBA estimated to have 1,500 or fewer (‘‘BRS,’’ formerly known as Multipoint definition. Thus, we tentatively employees. In addition, 39 carriers have Distribution Systems, or ‘‘MDS’’) conclude that at least 1,932 are small reported that they are ‘‘Other Local operated as part of a wireless cable businesses and may be affected by the Service Providers.’’ Of the 39, an system. The Commission has defined proposed rules. estimated 38 have 1,500 or fewer ‘‘small entity’’ for purposes of the 58. Incumbent Local Exchange employees and one has more than 1,500 auction of BRS frequencies as an entity Carriers (‘‘LECs’’). We have included employees. Consequently, the that, together with its affiliates, has small incumbent LECs in this present Commission estimates that most average gross annual revenues that are IRFA analysis. As noted above, a ‘‘small providers of competitive local exchange not more than $40 million for the business’’ under the RFA is one that, service, competitive access providers, preceding three calendar years. This inter alia, meets the pertinent small ‘‘Shared-Tenant Service Providers,’’ and definition of small entity in the context business size standard (e.g., a telephone ‘‘Other Local Service Providers’’ are of MDS auctions has been approved by communications business having 1,500 small entities that may be affected by the SBA. The Commission completed its or fewer employees), and ‘‘is not our proposed rules. MDS auction in March 1996 for dominant in its field of operation.’’ The 60. Satellite Telecommunications. authorizations in 493 basic trading SBA’s Office of Advocacy contends that, The Commission has not developed a areas. Of 67 winning bidders, 61 for RFA purposes, small incumbent small business size standard specifically qualified as small entities. At this time, LECs are not dominant in their field of for providers of satellite service. The we estimate that of the 61 small operation because any such dominance appropriate size standards under SBA business MDS auction winners, 48 is not ‘‘national’’ in scope. We have rules are for the two broad categories of remain small business licensees. therefore included small incumbent Satellite Telecommunications and Other 56. Wireless Telecommunications local exchange carriers in this RFA Telecommunications. Under both Carrier (except satellite). BRS also analysis, although we emphasize that categories, such a business is small if it includes licensees of stations authorized this RFA action has no effect on has $12.5 million or less in average prior to the auction. As noted above, the Commission analyses and annual receipts. For the first category of SBA has developed a definition of small determinations in other, non-RFA Satellite Telecommunications, Census entities for pay television services, contexts. Neither the Commission nor Bureau data for 1997 show that there Cable and Other Subscription the SBA has developed a small business were a total of 324 firms that operated Programming, which includes all such size standard specifically for incumbent for the entire year. Of this total, 273 companies generating $15 million or local exchange services. The appropriate firms had annual receipts of under $10 less in annual receipts. This definition size standard under SBA rules is for the million, and an additional twenty-four includes BRS and thus applies to BRS category Wired Telecommunications firms had receipts of $10 million to licensees that did not participate in the Carriers. Under that size standard, such $24,999,999. Thus, the majority of MDS auction. Information available to a business is small if it has 1,500 or Satellite Telecommunications firms can us indicates that there are fewer employees. According to be considered small. approximately 392 incumbent BRS Commission data, 1,303 carriers have 61. Other Telecommunications. This licensees that do not generate revenue reported that they are engaged in the category includes ‘‘establishments in excess of $11 million annually. provision of incumbent local exchange primarily engaged in * * * providing

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satellite terminal stations and associated entities. As noted in paragraph 2 above, List of Subjects in 47 CFR Part 11 facilities operationally connected with the Second Further Notice seeks one or more terrestrial communications comment on how the Commission may Radio, Television. systems and capable of transmitting better protect the lives and property of Federal Communications Commission. telecommunications to or receiving Americans. In commenting on this goal, Alethea Lewis, telecommunications from satellite commenters are invited to propose steps Federal Register Liaison. systems.’’ Of this total, 424 firms had that the Commission may take to further annual receipts of $5 million to minimize any significant economic Proposed Rule $9,999,999 and an additional 6 firms impact on small entities. When For the reasons set forth in the had annual receipts of $10 million to considering proposals made by other preamle, FCC proposes to amend 47 $24,999,990. Thus, under this second parties, commenters are invited to CFR part 11 as follows: size standard, the majority of firms can propose significant alternatives that be considered small. serve the goals of these proposals. We PART 11—EMERGENCY ALERT expect that the record will develop to Description of Projected Reporting, SYSTEM (EAS) demonstrate any significant alternatives. Recordkeeping, and Other Compliance 65. The Commission will send a copy Requirements 1. The authority citation for part 11 of this Second Further Notice of continues to read as follows: 62. There are potential reporting or Proposed Rulemaking, including this recordkeeping requirements proposed in IRFA, in a report to be sent to Congress Authority: 47 U.S.C. 151, 154(i) and (o), 303(r), 544(g) and 606. this Second Further Notice. For and the Government Accountability example, the Commission is considering Office pursuant to the Congressional 2. Revise § 11.61(a)(3) to read as whether to adopt reporting obligations Review Act (‘‘CRA’’), see 5 U.S.C. follows: for EAS participants. The proposals set 801(a)(1)(A). forth in this Second Further Notice are § 11.61 Tests of EAS procedures. VI. Ordering Clauses intended to advance our public safety (a) * * * mission and enhance the performance of 66. Accordingly, it is ordered that (3) National Tests. All EAS the EAS while reducing regulatory pursuant to sections 1, 2, 4(i), 4(o), 301, Participants shall participate in national burdens wherever possible. 303(r), 303(v), 307, 309, 335, 403, 624(g),706 and 715 of the tests as scheduled by the Commission in Steps Taken to Minimize the Significant Communications Act of 1934, as consultation with the Federal Economic Impact on Small Entities, and amended, 47 U.S.C. 151, 152, 154(i) and Emergency Management Agency Significant Alternatives Considered (o), 301, 303(r), 303(v), 307, 309, 335, (FEMA). Such tests will consist of the 63. The RFA requires an agency to 403, 544(g), 606, and 615, this Second delivery by FEMA to PEP/NP stations of describe any significant alternatives that Further Notice of Proposed Rulemaking a coded EAS message, including EAS it has considered in developing its is adopted. header codes, Attention Signal, Test approach, which may include the 67. It is further ordered that the Script, and EOM code. The coded following four alternatives (among Commission’s Consumer and message shall utilize EAS test codes as others): ‘‘(1) The establishment of Governmental Affairs Bureau, Reference designated by the Commission’s rules or differing compliance or reporting Information Center, shall send a copy of such other EAS codes as the agencies requirements or timetables that take into this Second Further Notice of Proposed conducting the test deem appropriate. A account the resources available to small Rulemaking, including the Initial national test shall replace the required entities; (2) the clarification, Regulatory Flexibility Analysis, to the monthly test for all EAS Participants in consolidation, or simplification of Chief Counsel for Advocacy of the Small the month in which it occurs. Notice compliance and reporting requirements Business Administration. shall be provided to EAS Participants by under the rule for such small entities; 68. It is further ordered that pursuant the Commission at least two months (3) the use of performance rather than to applicable procedures set forth in prior to the conduct of any such design standards; and (4) an exemption §§ 1.415 and 1.419 of the Commission’s national test. Test results as required by from coverage of the rule, or any part rules, 47 CFR 1.415, 1.419, interested the Commission shall be logged by all thereof, for such small entities.’’ parties may file comments on this EAS Participants and shall be provided 64. The proposed rules are designed Second Further Notice of Proposed to the Commission’s Public Safety and to minimally impact all EAS Rulemaking on or before 30 days after Homeland Security Bureau within thirty participants, including small entities, publication in the Federal Register, and (30) days following the test. while at the same time protecting the interested parties may file reply * * * * * lives and property of all Americans, comments on or before 60 days after [FR Doc. 2010–1941 Filed 1–28–10; 8:45 am] which confers a direct benefit on small publication in the Federal Register. BILLING CODE 6712–01–P

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Notices Federal Register Vol. 75, No. 19

Friday, January 29, 2010

This section of the FEDERAL REGISTER and goals is under development and and certain parts thereof from the contains documents other than rules or will be published in the Federal People’s Republic of China. The final proposed rules that are applicable to the Register. Any applications received by judgment in this case was not in public. Notices of hearings and investigations, the program will be returned to the harmony with the Department’s committee meetings, agency decisions and applicant. February 2006 final scope ruling. rulings, delegations of authority, filing of petitions and applications and agency Classification Executive Order 12866: DATES: Effective Date: November 1, statements of organization and functions are It has been determined that this notice 2008. examples of documents appearing in this is not significant for purposes of FOR FURTHER INFORMATION CONTACT: section. Executive Order 12866. Laurel LaCivita, AD/CVD Operations, Administrative Procedure Act/ Office 8, Import Administration, Regulatory Flexibility Act: Prior notice International Trade Administration, DEPARTMENT OF COMMERCE and an opportunity for public comment U.S. Department of Commerce, 14th are not required by the Administrative Street and Constitution Avenue, NW., National Oceanic and Atmospheric Procedure Act or any other law for rules Administration Washington DC 20230; telephone (202) concerning public property, grants, 482–4243. benefits, and contracts (5 U.S.C. Availability of Grant Funds and SUPPLEMENTARY INFORMATION: In 553(a)(2)). Because notice and Proposed Implementation Guidelines; December 2004, the Department placed opportunity for comments are not Withdrawal of Solicitation for the an antidumping duty order on certain required pursuant to U.S.C. 553 or any Marine Aquaculture Initiative varieties of hand trucks manufactured in other law, the analytical requirements of the People’s Republic of China. See AGENCY: National Oceanic and the Regulatory Flexibility Act (5 U.S.C. Antidumping Duty Order on Hand Atmospheric Administration, 601 et seq.) are inapplicable. Therefore, Trucks and Certain Parts Thereof from Commerce. a regulatory flexibility analysis is not the People’s Republic of China, 69 FR ACTION: Notice of withdrawal. required and none has been prepared. 70122 (December 2, 2004) (‘‘Order’’). In Dated: January 25, 2010. December 2005, Central Purchasing, SUMMARY: The National Oceanic and ‘‘ ’’ Atmospheric Administration publishes Mark E. Brown, LLC ( Central Purchasing ), requested this notice to announce the withdrawal Chief Financial Officer/Chief Administrative the Department to determine whether of the solicitation of applications for the Officer, Office of Oceanic and Atmospheric two of the welding carts that it NOAA Marine Aquaculture Initiative Research, National Oceanic and Atmospheric imported, models 93851 and 43615, Administration. 2010, which was published in the were within the scope of the order. See NOAA ‘‘Availability of Grant Funds for [FR Doc. 2010–1954 Filed 1–28–10; 8:45 am] Central Purchasing’s Scope Ruling Fiscal Year 2010’’ on January 19, 2010. BILLING CODE 3510–KA–P Request (December 19, 2005). The A new funding opportunity with revised Petitioners, Gleason Industrial Products, requirements and goals is under Inc. and Precision Products, Inc. DEPARTMENT OF COMMERCE ‘‘ ’’ development and will be published in ( Gleason ), responded that both models the Federal Register. of Central Purchasing’s carts should be International Trade Administration included within the scope of the Order. FOR FURTHER INFORMATION CONTACT: Dr. [A–570–891] See Gleason’s Response to Central Gene Kim, National Sea Grant College Purchasing’s Scope Request (January 4, Program, National Oceanic and Hand Trucks and Certain Parts Thereof 2006). Atmospheric Administration, 1315 East- From The People’s Republic of China: In an unpublished ruling, the West Highway, SSMC3, R/SG, Silver Notice of Decision of the Court of Department found that both models of Spring, Maryland 20910, (301) 734– International Trade Not in Harmony Central Purchasing’s carts were outside 1281. the scope of the antidumping duty SUPPLEMENTARY INFORMATION: On AGENCY: Import Administration, order. See Memorandum from Hilary E. January 19, 2010, the National Oceanic International Trade Administration, Sadler, Case Analyst, though Wendy J. and Atmospheric Administration Department of Commerce. Frankel, Office Director, to Stephen J. published its annual notice entitled SUMMARY: On October 22, 2008, the Claeys, Acting Deputy Assistant ‘‘Availability of Grant Funds for Fiscal United States Court of International Secretary for AD/CVD Operations: Year 2010’’ (75 FR 3092). Included in Trade (‘‘CIT’’ or ‘‘Court’’) sustained the ‘‘Final Scope Ruling for Central that notice, beginning on page 3110, was final remand determination made by the Purchasing, LLC’s Two Models of a solicitation of applications for the Department of Commerce (‘‘the Welding Carts,’’ dated February 15, 2006 NOAA Marine Aquaculture Initiative Department’’) pursuant to the Court’s (‘‘Final Scope Ruling ’’). 2010 (Catalog of Federal Domestic remand of the scope ruling of the On March 17, 2006, Gleason filed its Assistance Number: 11.417, Sea Grant antidumping duty order on hand trucks summons with the Court alleging that Support). from the People’s Republic of China the Final Scope Ruling was not NOAA publishes this notice to (‘‘PRC’’). See Gleason Industrial supported by substantial evidence or announce that it is withdrawing the Products, Inc. v. United States, Ct. No. otherwise in accordance with law. The solicitation of applications for the 06–00089, Slip Op. 08–115 (Ct. Int’l Department requested a voluntary program, due to incorrect guidance Trade October 22, 2008) (‘‘Gleason III’’). remand in November 2006 to reconsider being published. A new funding This case arises out of the Department’s its original determination, which the opportunity with revised requirements antidumping duty order on hand trucks trial court granted. See Gleason Indus.

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Prods., Inc. v. United States, Ct. No. 06– DEPARTMENT OF COMMERCE development environment with the 00089, Slip Op. 07–40 (Ct. Int’l Trade tools, which we will demonstrate at the March 16, 2007) (‘‘Gleason I’’). National Oceanic and Atmospheric workshop. Administration On first remand, the Department Special Accommodations reevaluated its position and determined RIN 0648–XT74 These workshops will be physically that both models of welding carts were accessible to people with disabilities. subject to the Order. The trial court Fisheries of the Exclusive Economic Zone Off Alaska; Recordkeeping and Requests for sign language affirmed the first remand results for Reporting Requirements; Public interpretation or other auxiliary aids model number 93851 in April 2008, but Workshops should be directed to Susan Hall, 907– remanded the matter to Commerce to 586–7462, at least five working days reexamine its findings for model 43615. AGENCY: National Marine Fisheries prior to the meeting date. See Gleason Indus. Prods., Inc. v. Service (NMFS), National Oceanic and Dated: January 26, 2010. United States, 556 F. Supp. 2d 1344, Atmospheric Administration (NOAA), 1347–49 (Ct. Int’l Trade 2008) (‘‘Gleason Commerce. Emily H. Menashes, Acting Director, Office of Sustainable II’’). Commerce subsequently issued a ACTION: Notice of a technical workshop. Fisheries, National Marine Fisheries Service. second set of remand results in July 2008 in which it concluded that model SUMMARY: NMFS, the Alaska Region, the [FR Doc. 2010–1875 Filed 1–26–10; 4:15 pm] 43615 lies outside of the scope of the Alaska Department of Fish and Game, BILLING CODE 3510–22–S and the International Pacific Halibut antidumping duty order on hand trucks Commission will present a technical from the PRC. The trial court sustained workshop to instruct customers how to DEPARTMENT OF COMMERCE Commerce’s second remand results on use the eLandings Extensible Markup October 22, 2008. See Gleason III. The Language interface. International Trade Administration United States Court of Appeals for the DATES: The workshop will be held on Federal Circuit subsequently affirmed Initiation of Antidumping and February 5, 2010, 9 a.m. to 5 p.m., Countervailing Duty Administrative the CIT’s judgment in November 2009. Pacific Standard Time. See Gleason Indus. Prods. Inc. v. United Reviews, Request for Revocation in ADDRESSES: The workshop will be held States, Ct. No. 2009–1150 (Fed. Cir. Part, and Deferral of Initiation of at the Silver Cloud Inn Lake Union, November 4, 2009). Administrative Review 1150 Fairview Avenue North, Seattle, Timken Notice WA. AGENCY: Import Administration, International Trade Administration, FOR FURTHER INFORMATION CONTACT: In its decision in Timken Co., v. Department of Commerce. Susan Hall, 907–586–7462. United States, 893 F. 2d 337, 341 (Fed. SUMMARY: The Department of Commerce SUPPLEMENTARY INFORMATION: Cir. 1990) (‘‘Timken’’), the United States This is a (‘‘the Department’’) has received requests technical workshop intended for Court of Appeals for the Federal Circuit to conduct administrative reviews of seafood industry software development held that, pursuant to section 516A(e) of various antidumping and countervailing and information technology staff, third- the Tariff Act of 1930, as amended (‘‘the duty orders and findings with December party system developers, seafood Act’’), the Department must publish a anniversary dates. In accordance with operations managers, and information our regulations, we are initiating those notice of a court decision that is not ‘‘in technology consultants. The Extensible harmony’’ with a Department administrative reviews. The Department Markup Language (XML) interface is also received requests to revoke one determination. The Court’s decision in designed to facilitate an exchange of Gleason III on October 22, 2008, antidumping duty order in part and to landings and production data between defer the initiation of an administrative constitutes a final decision of that court eLandings and the organizations’ review for the same antidumping duty that is not in harmony with the operational systems to facilitate one- order. Department’s scope ruling. This notice time data entry. EFFECTIVE DATE: is effective as of November 1, 2008 and There will be a morning and an January 29, 2010. is published in fulfillment of the afternoon session. The morning session FOR FURTHER INFORMATION CONTACT: publication requirements of Timken. will include an overview of the Sheila E. Forbes, Office of AD/CVD Accordingly, the Department will issue eLandings and the XML interface, as Operations, Customs Unit, Import revised instructions to U.S. Customs well as some hands-on experience Administration, International Trade and Border Protection if the Court’s importing XML documents. The Administration, U.S. Department of decision is not appealed or if it is afternoon session will consist of hands- Commerce, 14th Street and Constitution affirmed on appeal. on programming, tutorials Avenue, NW, Washington, DC 20230, demonstrating tools, and useful telephone: (202) 482–4697. This notice is issued and published in techniques for interface development. SUPPLEMENTARY INFORMATION: accordance with section 516A(c)(1) of The agenda and workshop materials Background the Act. are under development but may be Dated: January 22, 2010. reviewed at: https://elandings.alaska. The Department has received timely Ronald K. Lorentzen, gov/confluence/display/tr/Agenda. requests, in accordance with 19 CFR Due to the inclusion of hands-on 351.213(b), for administrative reviews of Deputy Assistant Secretary for Import Administration. tutorials in both sessions, attendees various antidumping and countervailing should bring a laptop with wireless duty orders and findings with December [FR Doc. 2010–1866 Filed 1–28–10; 8:45 am] Internet capability. Programmers anniversary dates. The Department also BILLING CODE 3510–DS–P attending the afternoon session can received a timely request to revoke in review the Resources page at https:// part the antidumping duty order on elandings.alaska.gov/confluence/ Honey from Argentina with respect to display/tr/Resources and prepare their one exporter. In addition, the

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Department received a request to defer Separate Rates and export subject merchandise to the for one year the initiation of the United States. December 1, 2008 through November In proceedings involving non–market Entities that currently do not have a ‘‘ ’’ 30, 2009 administrative review of the economy ( NME ) countries, the separate rate from a completed segment Department begins with a rebuttable 1 antidumping duty order on Honey from of the proceeding should timely file a presumption that all companies within Argentina with respect to another Separate Rate Application to the country are subject to government exporter in accordance with 19 CFR demonstrate eligibility for a separate control and, thus, should be assigned a 351.213(c). The Department received no rate in this proceeding. In addition, single antidumping duty deposit rate. It companies that received a separate rate objections to this request from any party is the Department’s policy to assign all cited in 19 CFR 351.213(c)(1)(ii). in a completed segment of the exporters of merchandise subject to an proceeding that have subsequently Notice of No Sales administrative review in an NME made changes, including, but not country this single rate unless an limited to, changes to corporate Under 19 CFR 351.213(d)(3), the exporter can demonstrate that it is structure, acquisitions of new Department may rescind a review where sufficiently independent so as to be companies or facilities, or changes to there are no exports, sales, or entries of entitled to a separate rate. their official company name,2 should subject merchandise during the To establish whether a firm is timely file a Separate Rate Application respective period of review (‘‘POR’’) sufficiently independent from to demonstrate eligibility for a separate listed below. If a producer or exporter government control of its export rate in this proceeding. The Separate named in this notice of initiation had no activities to be entitled to a separate Rate Application will be available on exports, sales, or entries during the rate, the Department analyzes each the Department’s website at http:// POR, it should notify the Department entity exporting the subject www.trade.gov/ia on the date of within 30 days of publication of this merchandise under a test arising from publication of this Federal Register notice in the Federal Register. The the Final Determination of Sales at Less notice. In responding to the Separate Department will consider rescinding the Than Fair Value: Sparklers from the Rate Status Application, refer to the review only if the producer or exporter, People’s Republic of China, 56 FR 20588 instructions contained in the as appropriate, submits a properly filed (May 6, 1991), as amplified by Final application. Separate Rate Status and timely statement certifying that it Determination of Sales at Less Than Applications are due to the Department had no exports, sales, or entries of Fair Value: Silicon Carbide from the no later than 60 calendar days of subject merchandise during the POR. People’s Republic of China, 59 FR 22585 publication of this Federal Register All submissions must be made in (May 2,1994). In accordance with the notice. The deadline and requirement accordance with 19 CFR 351.303 and separate–rates criteria, the Department for submitting a Separate Rate Status are subject to verification in accordance assigns separate rates to companies in Application applies equally to NME– with section 782(i) of the Tariff Act of NME cases only if respondents can owned firms, wholly foreign–owned 1930, as amended (‘‘the Act’’). Six copies demonstrate the absence of both de jure firms, and foreign sellers that purchase of the submission should be submitted and de facto government control over and export subject merchandise to the to the Assistant Secretary for Import export activities. United States. For exporters and producers who Administration, International Trade All firms listed below that wish to qualify for separate–rate status in the submit a separate–rate status Administration, Room 1870, U.S. application or certification and Department of Commerce, 14th Street administrative reviews involving NME countries must complete, as subsequently are selected as mandatory and Constitution Avenue, NW, respondents, these exporters and Washington, DC 20230. Further, in appropriate, either a separate–rate application or certification, as described producers will no longer be eligible for accordance with 19 CFR 351.303(f)(1)(i), separate–rate status unless they respond a copy of each request must be served below. For these administrative reviews, in order to demonstrate separate–rate to all parts of the questionnaire as on every party on the Department’s mandatory respondents. service list. eligibility, the Department requires entities for whom a review was INITIATION OF REVIEWS: Respondent Selection requested, that were assigned a separate In accordance with 19 CFR rate in the most recent segment of this In the event the Department limits the 351.221(c)(1)(i), we are initiating proceeding in which they participated, administrative reviews of the following number of respondents for individual to certify that they continue to meet the examination for administrative reviews, antidumping and countervailing duty criteria for obtaining a separate rate. The orders and findings. We intend to issue the Department intends to select Separate Rate Certification form will be respondents based on U.S. Customs and the final results of these reviews not available on the Department’s website at later than December 31, 2010. Also in Border Protection (‘‘CBP’’) data for U.S. http://www.trade.gov/ia on the date of imports during the POR. We intend to accordance with 19 CFR 351.213(c), we publication of this Federal Register are deferring for one year the initiation release the CBP data under notice. In responding to the Administrative Protective Order certification, please follow the 1 Such entities include entities that have not (‘‘APO’’) to all parties having an APO ‘‘Instructions for Filing the Certification’’ participated in the proceeding, entities that were within five days of publication of this in the Separate Rate Certification. preliminarily granted a separate rate in any initiation notice and to make our Separate Rate Certifications are due to currently incomplete segment of the proceedings decision regarding respondent selection (e.g., an ongoing administrative review, new the Department no later than 30 shipper review, etc.) and entities that lost their within 20 days of publication of this calendar days after publication of this separate rate in the most recently complete segment Federal Register notice. The Federal Register notice. The deadline of the proceeding in which they participated. Department invites comments regarding and requirement for submitting a 2 Only changes to the official company name, the CBP data and respondent selection rather than trade names, need to be addressed via Certification applies equally to NME– a Separate Rate Application. Information regarding within 10 calendar days of publication owned firms, wholly foreign–owned new trade names may be submitted via a Separate of this Federal Register notice. firms, and foreign sellers who purchase Rate Application.

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of the December 1, 2008 through on Honey from Argentina with respect November 30, 2009, administrative to one exporter. review of the antidumping duty order

Antidumping Duty Proceedings Period to be Reviewed

ARGENTINA: Honey. A–357–812 ...... 12/01/08 - 11/30/09 AGLH S.A.. Algodonera Avellaneda S.A.. Alimentos Naturales–Natural Foods. Alma Pura. Bomare S.A. (Bodegas Miguel Armengol). Compania Apicola Argentina S.A.. Compania Inversora Platense S.A.. El Mana S.A.. HoneyMax S.A.. Interrupcion S.A.. Mielar S.A.. Miel Ceta SRL. Nexco S.A.. Patagonik S.A.. Productos Afer S.A.. Seabird Argentina S.A.. TransHoney S.A.. INDIA: Carbazole Violet Pigment 23. A–533–838 ...... 12/1/08 - 11/30/09 Meghmani Pigments. INDIA: Certain Hot–Rolled Carbon Steel Flat Products. A–533–820 ...... 12/1/08 - 11/30/09 Essar Steel Limited. Ispat Industries Limited. JSW Steel Limited. Tata Steel Limited. JAPAN: Welded Large Diameter Line Pipe. A–588–857 ...... 12/1/08 - 11/30/090 JFE Steel Corporation. Nippon Steel Corporation. Sumitomo Corporation. Sumitomo Metal Industries, Ltd. (aka Sumitomo Metals Pipe & Tube Company). THE PEOPLE’S REPUBLIC OF CHINA: Certain Cased Pencils3. A–570–827 ...... 12/1/08 - 11/30/09 China First Pencil Co., Ltd., and its affiliated companies Shanghai First Writing Instruments Co., Ltd., Fang Zheng Co., Ltd., Shanghai Great Wall Pencil Co., Ltd., and China First Pencil Huadian Co., Ltd.. Orient International Holding Shanghai Foreign Trade Co., Ltd.. Shanghai Three Star Stationery Industry Co., Ltd.. Beijing Fila Dixon Stationery Company, Ltd. a/k/a Beijing Dixon Ticonderoga Stationery Company, Ltd. a/k/a Beijing Dixon Stationery Company, Ltd. and Dixon Ticonderoga Company. Shandong Rongxin Import & Export Co., Ltd.. THE PEOPLE’S REPUBLIC OF CHINA: Hand Trucks and Parts Thereof4. A–570–891 ...... 12/1/08 - 11/30/09 Qingdao Huazhan Hardware and Machinery Co., Ltd.. New–Tec Integration (Xiamen) Co., Ltd.. Sunshine International Corp.. Yangjiang Shunhe Industrial Co.. Zhejiang Yinmao Import and Export Co.. Century Distribution Systems, Inc.. THE PEOPLE’S REPUBLIC OF CHINA: Honey5. A–570–863 ...... 12/1/08 - 11/30/09 Ahcof Industrial Development Corp., Ltd.. Alfred L. Wolff (Beijing) Co., Ltd.. Anhui Honghui Foodstuff (Group) Co., Ltd.. Anhui Honghui Import & Export Trade Co., Ltd.. Anhui Cereals Oils and Foodstuffs I/E (Group) Corporation. Anhui Native Produce Imp & Exp Corp.. APM Global Logistics (Shanghai) Co.. Baiste Trading Co., Ltd.. Cheng Du Wai Yuan Bee Products Co., Ltd.. Chengdu Stone Dynasty Art Stone. Dongtai Peak Honey Industry Co., Ltd.. Eurasia Bee’s Products Co., Ltd.. Fresh Honey Co., Ltd. (formerly Mgl. Yun Shen). Golden Tadco Int’l. Hangzhou Golden Harvest Health Industry Co., Ltd.. Haoliluck Co., Ltd..

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Antidumping Duty Proceedings Period to be Reviewed

Hengjide Healthy Products Co. Ltd.. Hubei Yusun Co., Ltd.. Inner Mongolia Altin Bee–Keeping. Inner Mongolia Youth Trade Development Co., Ltd.. Jiangsu Cereals, Oils Foodstuffs Import Export (Group) Corp.. Jiangsu Light Industry Products Imp & Exp (Group) Corp.. Jiangsu Kanghong Natural Healthfoods Co., Ltd.. Jiangsu Light Industry Products Imp & Exp (Group) Corp.. Jilin Province Juhui Import. Maersk Logistics (China) Company Ltd.. Nefelon Limited Company. Ningbo Shengye Electric Appliance. Ningbo Shunkang Health Food Co., Ltd.. Ningxia Yuehai Trading Co., Ltd.. Product Source Marketing Ltd.. Qingdao Aolan Trade Co., Ltd.. QHD Sanhai Honey Co., Ltd.. Qinhuangdao Municipal Dafeng Industrial Co., Ltd.. Renaissance India Mannite. Shaanxi Youthsun Co., Ltd.. Shanghai Bloom International Trading Co., Ltd.. Shanghai Foreign Trade Co., Ltd.. Shanghai Hui Ai Mal Tose Co., Ltd.. Shanghai Taiside Trading Co., Ltd.. Shine Bal Co., Ltd.. Sichuan–Dujiangyan Dubao Bee Industrial Co., Ltd.. Silverstream International Co., Ltd.. Suzhou Shanding Honey Product Co., Ltd.. Tianjin Eulia Honey Co., Ltd.. Wuhan Bee Healthy Co., Ltd.. Wuhan Shino–Food Trade Co., Ltd.. Wuhu Fenglian Co., Ltd.. Wuhu Qinshi Tangye. Wuhu Qinshgi Tangye. Xinjiang Jinhui Food Co., Ltd.. Zhejiang Willing Foreign Trading Co.. THE PEOPLE’S REPUBLIC OF CHINA: Malleable Cast Iron Pipe Fittings. A–570–881 ...... 12/1/08 - 11/30/09 Mueller Comercial de Mexico, S. de R.L. de C.V.. COUNTERVAILING DUTY PROCEEDINGS. ARGENTINA: Honey. C–357–813 ...... 1/1/09 - 12/31/09 INDIA: Carbazole Violet Pigment 23. C–533–839 ...... 1/1/08 - 12/31/08 Meghmani Pigments. SUSPENSION AGREEMENTS. None. DEFERRAL OF INITIATION OF ADMINISTRAIVE REVIEW. ARGENTINA: Honey. A–357–812 ...... 12/1/08 - 11/30/09 Asociacion de Cooperativas Argentinas. 3 If one of the above named companies does not qualify for a separate rate, all other exporters of Certain Cased Pencils from the People’s Re- public of China (‘‘PRC’’) who have not qualified for a separate rate are deemed to be covered by this review as part of the single PRC entity of which the named exporters are a part. 4 If one of the above named companies does not qualify for a separate rate, all other exporters of Hand Trucks and Parts Thereof from the PRC who have not qualified for a separate rate are deemed to be covered by this review as part of the single PRC entity of which the named ex- porters are a part. 5 If one of the above named companies does not qualify for a separate rate, all other exporters of Honey from the PRC who have not qualified for a separate rate are deemed to be covered by this review as part of the single PRC entity of which the named exporters are a part. 6 If the above named company does not qualify for a separate rate, all other exporters of Malleable Cast Iron Pipe Fittings from the PRC who have not qualified for a separate rate are deemed to be covered by this review as part of the single PRC entity of which the named exporters are a part.

During any administrative review review), the Secretary, if requested by a review if the subject merchandise is covering all or part of a period falling domestic interested party within 30 sold in the United States through an between the first and second or third days of the date of publication of the importer that is affiliated with such and fourth anniversary of the notice of initiation of the review, will exporter or producer. The request must publication of an antidumping duty determine, consistent with FAG Italia include the name(s) of the exporter or order under 19 CFR 351.211 or a v.United States, 291 F.3d 806 (Fed. Cir. producer for which the inquiry is determination under 19 CFR 2002), as appropriate, whether requested. 351.218(f)(4) to continue an order or antidumping duties have been absorbed For the first administrative review of suspended investigation (after sunset by an exporter or producer subject to the any order, there will be no assessment

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of antidumping or countervailing duties DATES: This authorization is effective marine mammals by harassment. on entries of subject merchandise from January 27, 2010, through April 30, Section 101(a)(5)(D) of the MMPA entered, or withdrawn from warehouse, 2010. establishes a 45–day time limit for for consumption during the relevant ADDRESSES: A copy of the IHA and the NMFS’ review of an application provisional–measures ‘‘gap’’ period, of application are available by writing to P. followed by a 30–day public notice and the order, if such a gap period is Michael Payne, Chief, Permits, comment period on any proposed applicable to the POR. Conservation and Education Division, authorizations for the incidental Interested parties must submit Office of Protected Resources, National harassment of small numbers of marine applications for disclosure under Marine Fisheries Service, 1315 East- mammals. Within 45 days of the close administrative protective orders in West Highway, Silver Spring, MD of the public comment period, NMFS accordance with 19 CFR 351.305. On 20910–3225. A copy of the application must either issue or deny the January 22, 2008, the Department may be obtained by writing to this authorization. published Antidumping and address, by telephoning the contact Except with respect to certain Countervailing Duty Proceedings: listed here (FOR FURTHER activities not pertinent here, the MMPA Documents Submission Procedures; INFORMATION CONTACT) or online defines ‘‘harassment’’ as: APO Procedures, 73 FR 3634 (January at: http://www.nmfs.noaa.gov/pr/ any act of pursuit, torment, or annoyance 22, 2008). Those procedures apply to permits/incidental.htm#applications which (i) has the potential to injure a marine administrative reviews included in this Documents cited in this notice may be mammal or marine mammal stock in the wild notice of initiation. Parties wishing to viewed, by appointment, during regular [Level A harassment]; or (ii) has the potential participate in any of these business hours, at the aforementioned to disturb a marine mammal or marine mammal stock in the wild by causing administrative reviews should ensure address. disruption of behavioral patterns, including, that they meet the requirements of these FOR FURTHER INFORMATION CONTACT: but not limited to, migration, breathing, procedures (e.g., the filing of separate Jeannine Cody (301) 713–2289, ext. 113 nursing, breeding, feeding, or sheltering letters of appearance as discussed in 19 or Monica DeAngelis, NMFS Southwest [Level B harassment]. CFR 351.101(d)). Region, (562) 980–3232. These initiations and this notice are Summary of Request SUPPLEMENTARY INFORMATION: in accordance with section 751(a) of the NMFS received an application from Tariff Act of l930, as amended (19 USC Background the SGRLPS for the taking by 1675(a)), and 19 CFR 351.221(c)(1)(i). Section 101(a)(5)(D) of the MMPA (16 harassment, of marine mammals Dated: January 22, 2010. U.S.C. 1371 (a)(5)(D)) directs the incidental to conducting helicopter John M. Andersen, Secretary of Commerce to authorize, operations, lighthouse restoration, and Acting Deputy Assistant Secretary for upon request, the incidental, but not light maintenance activities on the St. Antidumping and Countervailing Duty intentional, taking by harassment of George Reef Lighthouse Station (Station) Operations. small numbers of marine mammals of a in Del Norte County in California. [FR Doc. 2010–1898 Filed 1–28–10; 8:45 am] species or population stock, for periods SGRLPS aims to restore and preserve BILLING CODE 3510–DS–S of not more than one year, by United the Station which is listed in the States citizens who engage in a specified National Park Service’s National activity (other than commercial fishing) Register of Historic Places. The group DEPARTMENT OF COMMERCE within a specific geographic region if must also perform annual maintenance certain findings are made and, a notice on the Station’s optical light system to National Oceanic and Atmospheric of a proposed authorization is provided renew a U.S. Coast Guard (USCG) Administration to the public for review. Private Aid to Navigation (PATON) Authorization for incidental taking of permit. The Station is located on RIN 0648–XT13 small numbers of marine mammals shall Northwest Seal Rock (NWSR) (41° 50′ 24″ N, 124° 22′ 06″ W) approximately Takes of Marine Mammals Incidental to be granted if NMFS finds that the taking nine kilometers (km) (6.0 miles (mi)) Specified Activities; St. George Reef will have a negligible impact on the offshore of Crescent City, California in Light Station Restoration and species or stock(s), and will not have an the northeast Pacific Ocean. Maintenance on Northwest Seal Rock, unmitigable adverse impact on the in the Northeast Pacific Ocean availability of the species or stock(s) for Acoustic and visual stimuli generated subsistence uses. The authorization by helicopter landings/takeoffs, noise AGENCY: National Marine Fisheries must set forth the permissible methods generated during restoration activities Service (NMFS), National Oceanic and of taking, other means of effecting the (e.g., painting, plastering, welding, and Atmospheric Administration (NOAA), least practicable adverse impact on the glazing) and maintenance activities (e.g., Commerce. species or stock and its habitat, and bulb replacement and automation of the ACTION: Notice; issuance of incidental monitoring and reporting of such light system), and human presence, may harassment authorization. takings. NMFS has defined ‘‘negligible have the potential to cause the impact’’ in 50 CFR 216.103 as ‘‘an pinnipeds hauled out on NWSR to flush SUMMARY: In accordance with the impact resulting from the specified into the surrounding water or to cause regulations implementing the Marine activity that cannot be reasonably a short-term behavioral disturbance. Mammal Protection Act (MMPA) as expected to, and is not reasonably likely These types of disturbances are the amended, notification is hereby given to, adversely affect the species or stock principal means of marine mammal that NMFS has issued an Incidental through effects on annual rates of taking associated with these activities Harassment Authorization (IHA) to the recruitment or survival.’’ and the SGRLPS has requested an St. George Reef Lighthouse Preservation Section 101(a)(5)(D) of the MMPA authorization to take 204 California sea Society (SGRLPS), to incidentally established an expedited process by lions (Zalophus californianus); 36 harass, by Level B harassment only, four which citizens of the United States can Pacific Harbor seals (Phoca vitulina); species of marine mammals during the apply for an authorization to 172 Steller sea lions (Eumetopias specified activity. incidentally take small numbers of jubatus); and six northern fur seals

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(Callorhinus ursinus) by Level B Lighthouse Restoration and Light Pacific Harbor seal, the eastern U.S. harassment. Maintenance stock of Steller sea lion, and the eastern Pacific stock of northern fur seal. Description of the Specified Activity Restoration activities will involve light construction (e.g., sanding, California sea lions and Pacific harbor SGRLPS will conduct the activities hammering, or use of hand drills) to: seals are not listed as threatened or (helicopter operations, lighthouse remove peeling paint and plaster; endangered under the ESA, nor are they restoration and light maintenance restore interior plaster and paint; categorized as depleted under the activities) on NWSR between January refurbish and replace structural and MMPA. Northern fur seals are not listed 27, 2010 and April 30, 2010, at a decorative elements; replace glass; as threatened or endangered under the maximum frequency of one work upgrade the present electrical system; ESA. However, they are categorized as session per month. The duration of each replace the PATON beacon light; and depleted under the MMPA. work session will be no more than three automate the light system. Noise Last, the Steller sea lion, eastern U.S. days (e.g., Friday, Saturday, and generated from these activities have the stock is listed as threatened under the Sunday). potential to disturb pinnipeds hauled ESA and is categorized as depleted out on NWSR. under the MMPA. General information NMFS provided a detailed overview of these species can be found in the of the activity in the notice of the Emergency Repair Event notice of the proposed IHA (74 FR proposed IHA (74 FR 49852, September If the PATON beacon light fails 49852, September 29, 2009). The nearest 29, 2009) and in Chapter 3 of NMFS’ during the period January 27, 2010, Steller sea lion breeding area relative to Environmental Assessment (EA). No through April 30, 2010, the SGRLPS the project site is at Southwest Seal changes have been made to the would transport a small work crew to Rock (41 49 00 N, 124 21 00 W) about proposed activities. the Station by helicopter to repair the 4 km (2.49 miles (mi)) south of NWSR. Helicopter Operations PATON beacon light. For each Although the rookery is just south of the emergency repair event, the SGRLPS Station, animals may continue to The SGRLPS will transport personnel would conduct a maximum of four increase their use of NWSR over time; and equipment from the California flights (two arrivals and two departures) possibly as a pupping area, at some mainland to NWSR by a small to transport equipment and supplies. As point in the future (R. Brown, pers. helicopter. The helicopter will depart in the case of helicopter operations and comm., 2006). from Crescent City Airport and will lighthouse restoration and maintenance There are several endangered transit to NWSR where it will land on conducted during the three-day work cetaceans that have the potential to top of the engine room (caisson). sessions, flights conducted for transit in the vicinity of NWSR Acoustic tests on the helicopter’s noise emergency repairs would have the including the blue (Balaenoptera output measured a sound pressure level potential to disturb pinnipeds hauled musculus), fin (Balaenoptera physalus), of 81.9 decibels (dB) re: 20 Pa (peak) (A- out on NWSR. humpback (Megaptera novaeangliae), weighted) approximately 150 m from sei (Balaenoptera borealis), north the ground. However, the helicopter has Comments and Responses Pacific right (Eubalena japonica), sperm two-bladed main and tail rotors which NMFS published a notice of receipt of (Physeter macrocephalus), and southern are fitted with noise-attenuating blade the SGRLPS application and proposed resident killer (Orcinus orca) whales. tip caps that would decrease flyover IHA in the Federal Register on These species are typically found farther noise. September 29, 2009 (74 FR 49852). offshore of NWSR and are not The SGRLPS estimates that each work During the 30–day comment period, considered further in this IHA. California (southern) sea otters session would require no more than 36 NMFS received a letter from the Marine (Enhydra lutris nereis) usually range in helicopter landings. During landing, the Mammal Commission (Commission) coastal waters within two km of shore. work crew members will disembark which recommended that NMFS issue However, sea otters are not present on from the helicopter and retrieve their the requested authorization, provided NWSR (Crescent Coastal Research equipment located in a basket attached that the required monitoring and (CCR), 2001). This species is managed to the underside of the aircraft. The mitigation measures are carried out (e.g., by the U.S. Fish and Wildlife Service helicopter would then return to the restrictions on the timing and frequency and is not considered further in this mainland to pick up additional of activities, restrictions on helicopter IHA. personnel and equipment. approaches, timing measures for helicopter landings, and measures to As a means of funding support for the Potential Effects of the Activities on minimize acoustic and visual Marine Mammals restoration activities, the SGRLPS will disturbances) as described in NMFS’ conduct public tours of the Station September 29, 2009 (74 FR 49852), Level B harassment of pinnipeds has during the last day of the restoration notice of the proposed IHA and the the potential to occur during helicopter and maintenance activities. SGRLPS application. All measures proposed in approaches and departures from NWSR will transport visitors to the Station on the initial Federal Register notice are due to acoustic disturbances caused by Sunday. Although some of these flights included in the authorization and the helicopters rotors and engine. It is would be conducted solely for the NMFS has determined that they will likely that the initial helicopter transportation of tourists, the SGRLPS effect the least practicable impact on the approach to the Station would cause a will conduct those flights later in the species or stocks and their habitats. subset, or all of the marine mammals day when no pinnipeds are expected to hauled out on NWSR to depart the rock be on NWSR due to the animals Marine Mammals Affected by the and flush into the water. The pinnipeds’ dispersal from the haulout area caused Activity movement into the water is expected to by previous helicopter landings earlier The marine mammal species most be gradual due to the required in the day. No additional allowance is likely to be harassed incidental to controlled helicopter approaches (see included for marine mammals that helicopter operations, lighthouse Mitigation), the small size of the might be affected by additional flights restoration, and lighthouse maintenance helicopter, its relatively quiet rotors, for the transportation of tourists. on NWSR are the California sea lion, the and behavioral habituation on the part

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of the animals as helicopter trips populations or habitat. These activities applicable, to tourists, on appropriate continue throughout the day. are not likely to adversely affect EFH. conduct when in the vicinity of hauled- According to the CCR Report (2001), NMFS also considered the effects of out marine mammals. The SGRLPS while up to 40 percent of the California issuing an IHA on target and non-target members, the restoration crew, and if and Steller sea lions present on the rock species, including invertebrates, fish, applicable, tourists, will avoid making have been observed to enter the water sea turtles, seabirds, sea otters, and unnecessary noise while on Northwest on the first of a series of helicopter marine mammals and their habitats. Seal Rock and must not view pinnipeds landings, as few as zero percent have NMFS does not expect the action to around the base of the Station; flushed on subsequent landings on the affect an animal’s susceptibility to (5) Ensure that the door to the same date. predation, alter dietary preferences or Station’s lower platform shall remain During the sessions of helicopter foraging behavior, or change closed and barricaded at all times; activity, some animals may be distribution or abundance of predators (6) At least once during the period temporarily displaced from the island or prey. between November 1 and April 30 and either raft in the water or relocate Mitigation and Monitoring annually, a qualified, NMFS-approved to other haul-outs. Sea lions have shown biologist shall be present during all In order to issue an incidental take habituation to helicopter flight within a three workdays at the Station. This authorization (ITA) under Section day at the project site and most animals requirement may be modified 101(a)(5)(D) of the MMPA, NMFS must are expected to return soon after depending on the results of the monthly set forth the permissible methods of helicopter activities cease for that day. monitoring reports. The biologist shall taking pursuant to such activity, and By clustering helicopter arrivals and document use of the island by the other means of effecting the least departures within a short time period, marine mammals (i.e., dates, time, tidal practicable adverse impact on such the pinnipeds are expected to show less height, species, numbers present, response to subsequent landings species or stock and its habitat, paying frequency of use, weather conditions, (NMFS, 2010). particular attention to rookeries, mating and any disturbances), and note any NMFS provided a detailed overview grounds, and areas of similar of: (1) the sound levels produced by the significance, and on the availability of responses to potential disturbances; helicopter; (2) behavioral reactions of such species or stock for taking for (7) In the case of an emergency repair pinnipeds to helicopter operations and certain subsistence uses. To reduce the event (i.e., failure of the PATON beacon light construction noise; (3) hearing potential for disturbance from visual light) between January 27, 2010 and impairment and other non-auditory and acoustic stimuli associated with the April 30, 2010, the SGRLPS must physical effects; (4) behavioral reactions activities, the SGRLPS and/or its consult with the Assistant Regional to visual stimuli; (5) and specific designees will undertake the following Administrator (ARA) for Protected observations gathered during previous marine mammal mitigation and Resources, Southwest Region, NMFS, to monitoring of the marine mammals monitoring measures: best determine the timing of an present on NWSR in the notice of the (1) Conduct restoration and emergency repair trip to the Station. The proposed IHA (74 FR 49852, September maintenance activities at the St. George Southwest Region NMFS fishery 29, 2009) and in Chapter 3 of NMFS’ Reef Light Station at a maximum of one biologist will make a decision regarding Environmental Assessment (EA). session per month between January 27, when the SGRLPS can schedule 2010, and April 30, 2010. Each helicopter trips to the Station during the Possible Effects of Activities on Marine restoration session would be no more emergency repair time window and will Mammal Habitat than three days in duration. ensure that such operations will have The SGRLPS does not anticipate any Maintenance of the light beacon will the least practicable adverse impact to loss or modification to the habitat used occur only in conjunction with the marine mammals. The ARA for by California sea lions, Steller sea lions, monthly restoration activities; Protected Resources, Southwest Region, Pacific harbor seals, and northern fur (2) Ensure that helicopter approach NMFS will ensure that the SGRLPS’ seals that haul-out on NWSR. The patterns to the St. George Reef Light request for incidental take during an SGRLPS will conduct helicopter Station will be such that the timing emergency repair event will not exceed operations and restoration and techniques are least disturbing to the number of incidental take maintenance activities at elevations marine mammals. To the extent authorized in this IHA; high enough to not disturb the geology possible, the helicopter should (8) The SGRLPS will employ a skilled, and the water surrounding NWSR. approach Northwest Seal Rock when the aerial photographer to document marine NMFS has designated EFH for tide is too high for the marine mammals mammals hauled out on Northwest Seal groundfish species (or species to haul-out on Northwest Seal Rock; Rock for comparing marine mammal assemblages) along more than 130,000 (3) Avoid rapid and direct approaches presence on Northwest Seal Rock pre- square miles of marine waters off the by the helicopter to the Station by and post-restoration. The photographer West Coast. EFH consists of both the approaching Northwest Seal Rock at a will complete a photographic survey of water column and the underlying relatively high altitude (e.g., 800 - 1,000 Northwest Seal Rock using the same surface (e.g. seafloor) of a particular ft, or 244 - 305 m). Before the final helicopter that will transport SGRLPS area. Although NWSR is located approach, the helicopter shall circle personnel to the island during adjacent to the EFH (water column), the lower, and approach from area where restoration trips. For a pre-restoration restoration and maintenance activities the density of pinnipeds is the lowest. survey, photographs of all marine will occur from 11 m (37 ft) to 44.5m If for any safety reasons (e.g., wind mammals hauled-out on the island shall (146 ft) above the designated EFH for conditions or visibility) such helicopter be taken at an altitude greater than 300 groundfish species. Hence, the effects of approach and timing techniques cannot m (984 ft) during the first arrival flight restoration and maintenance activities be achieved, the SGRLPS must abort the to Northwest Seal Rock. For the post- as well as the elevation and route of the restoration and maintenance session for restoration survey, photographs of all helicopter operations would not occur that day; marine mammals hauled-out on the in the surrounding water column and (4) Provide instructions to SGRLPS island shall be taken at an altitude would not significantly impact fish members, the restoration crew, and if greater than 300 m (984 ft) during the

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last departure flight from Northwest NMFS, and to the Chief, Permits, any act of pursuit, torment, or annoyance Seal Rock; Conservation, and Education Division, which (i) has the potential to injure a marine (9) The SGRLPS and/or its designees Office of Protected Resources, NMFS, no mammal or marine mammal stock in the wild will forward the photographs to a later than 30 days after the conclusion [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine biologist capable of discerning marine of each monthly work session. This mammal stock in the wild by causing mammal species. Data shall be provided report must contain the following disruption of behavioral patterns, including, to NMFS in the form of a report with a information: (1) a summary of the dates, but not limited to, migration, breathing, data table, any other significant times, and weather during all helicopter nursing, breeding, feeding, or sheltering observations related to marine operations, and restoration and [Level B harassment]. mammals, and a report of restoration maintenance activities; (2) species, Only take by Level B harassment is activities (see Reporting). The SGRLPS number, location, and behavior of any anticipated and authorized as a result of will make available the original marine mammals, observed throughout the helicopter operations, restoration, photographs to NMFS or to other marine all monitoring activities; (3) an estimate and maintenance activities. Acoustic mammal experts for inspection and of the number (by species) of marine and visual stimuli generated by further analysis. mammals that are known to have been helicopter landings/takeoffs; noise NMFS has carefully evaluated the exposed to visual and acoustic stimuli generated during restoration activities applicant’s proposed mitigation associated with the helicopter and maintenance activities have the measures and considered a range of operations, restoration and maintenance potential to cause the pinnipeds hauled other measures in the context of activities; and (4) a description of the out on NWSR to flush into the ensuring that NMFS prescribes the implementation and effectiveness of the surrounding water or to cause a short- means of effecting the least practicable monitoring and mitigation measures of term behavioral disturbance. There is no adverse impact on the affected marine the IHA and full documentation of evidence that the planned activities mammal species and stocks and their methods, results, and interpretation could result in serious injury or habitat. Our evaluation of potential pertaining to all monitoring. mortality. The required mitigation and measures included consideration of the The SGRLPS is required to submit a monitoring measures will minimize any following factors in relation to one final monitoring report to NMFS no potential risk to injury or mortality. another: (1) the manner in which, and later than 90 days after the project is NMFS estimates that a maximum of the degree to which, the successful completed to the ARA for Protected 204 California sea lions, 172 Steller sea implementation of the measure is Resources, Southwest Region, NMFS, lions, 36 Pacific harbor seals, and 6 expected to minimize adverse impacts and to the Chief, Permits, Conservation, northern fur seals could be potentially to marine mammals; (2) the proven or and Education Division, Office of affected by Level B harassment over the likely efficacy of the specific measure to Protected Resources, NMFS. The report course of the IHA. Estimates of the minimize adverse impacts as planned; must contain the following information: numbers of marine mammals that might and (3) the practicability of the measure (1) a summary of the dates, times, and be affected are based on consideration of for applicant implementation. weather during all helicopter 100 percent of the pinnipeds present on Based on our evaluation of the operations, restoration, and NWSR that could be disturbed by applicant’s proposed measures, as well maintenance activities; (2) species, approximately 42 hrs of helicopter as other measures considered by NMFS number, location, and behavior of any operations each month, during the or recommended by the public, NMFS marine mammals, observed throughout course of the activity. These estimates has determined that the required all monitoring activities; (3) an estimate are also based on pinniped survey mitigation measures provide the means of the number (by species) of marine counts conducted by CCR on NWSR in of effecting the least practicable adverse mammals that are known to have been the spring of 1997, 1998, 1999, and 2000 impacts on marine mammals species or exposed to visual and acoustic stimuli (CCR, 2001), calculated for the stocks and their habitat, paying associated with the helicopter population variance (Steller sea lions) or particular attention to rookeries, mating operations, restoration, and for the average monthly abundance grounds, and areas of similar maintenance activities; (4) a description (California sea lions, Pacific harbor significance. of the implementation and effectiveness seals, and northern fur seals) between of the monitoring and mitigation November 1 and April 30 annually. Reporting measures of the IHA and full These incidental harassment take In order to issue an ITA for an documentation of methods, results, and numbers represent 0.14 percent of the activity, Section 101(a)(5)(D) of the interpretation pertaining to all U.S. stock of California sea lion, 0.42 MMPA states that NMFS must set forth monitoring. percent of the eastern U.S. stock of ‘‘requirements pertaining to the In the event of any observed Steller Steller sea lion, 0.11 percent of the monitoring and reporting of such sea lion injury, mortality, or the California stock of Pacific harbor seals, taking’’. The MMPA implementing presence of newborn pup (which is and 0.06 percent of the San Miguel regulations at 50 CFR 216.104 (a)(13) highly unlikely), SGRLPS and/or its Island stock of northern fur seal. indicate that requests for IHAs must designees must immediately cease NMFS expects that the individual include the suggested means of operations and notify the ARA for animals hauled out and harassed upon accomplishing the necessary monitoring Protected Resources, Southwest Region, exposure to the first helicopter flight of and reporting that will result in NMFS at (562) 980–4020; and the Chief, the day will be the same animals hauled increased knowledge of the species and Permits, Conservation and Education out on NWSR over the course of each of the level of taking or impacts on Division, Office of Protected Resources, three-day work period, due to high site populations of marine mammals that are NMFS, at (301) 713–2289. fidelity, which is defined herein as an expected to be present in the action individual animal’s continued use of the area. Estimated Take by Incidental same haul out area over a specific The SGRLPS is required to submit an Harassment period of time. interim report on all activities and Except with respect to certain Take estimates for the California sea monitoring results to the ARA for activities not pertinent here, the MMPA lions, Pacific harbor seals, and northern Protected Resources, Southwest Region, defines ‘‘harassment’’ as: fur seals are based on the average

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monthly abundance (CCR, 2001) of the California sea lions, 172 Steller sea NMFS finds that the SGRLPS’ planned total number of animals expected to be lions, 36 Pacific harbor seals, and 6 helicopter operations, restoration, and hauled out on NWSR. The average northern fur seals could be potentially maintenance activities will result in the monthly abundance for each species is affected by Level B harassment over the incidental take of small numbers of then multiplied by six to account for the course of the IHA. These incidental marine mammals, by Level B monthly sessions of restoration and harassment take numbers represent 0.14 harassment only, and that the total maintenance activities conducted percent of the U.S. stock of California taking from helicopter operations, between November 1st and April 30th to sea lion, 0.42 percent of the eastern U.S. restoration, and maintenance activities arrive at the total take number for each stock of Steller sea lion, 0.11 percent of exercise will have a negligible impact species. Each animal has the potential to the California stock of Pacific harbor on the affected species or stocks. be exposed and potentially harassed seals, and 0.06 percent of the San Impact on Availability of Affected multiple times on the same day (i.e., 12 Miguel Island stock of northern fur seal. Species or Stock for Taking for harassment events on the first day, two For each species, these numbers are Subsistence Uses harassment events on the second day, small relative to the population size. and 22 harassment events on the final No injuries or mortalities are There are no relevant subsistence uses day). However, NMFS’ take numbers anticipated to occur as a result of the of marine mammals implicated by this represent the total number of individual SGRLPS’ planned helicopter operations, action. marine mammals expected to be restoration, and maintenance activities, Endangered Species Act (ESA) harassed by the helicopter operations, and none are authorized. Takes will be and restoration and maintenance limited to Level B behavioral The Steller sea lion, eastern Distinct activities, not the total number of harassment over a three-day period at Population Segment (DPS) is listed as exposure/harassment events. maximum frequency of one session a threatened under the ESA and occurs in Estimates of the number of Steller sea month. the planned action area. NMFS lions that might be present on NWSR NMFS does not expect the activity to Headquarters’ Office of Protected during the three-day work period do not impact rates of recruitment or survival Resources, Permits, Conservation, and exist. Therefore, to account for of the pinnipeds since no mortality Education Division conducted a formal variability of Steller sea lion presence (which would remove individuals from section 7 consultation under the ESA throughout the six months of the the population) or injury is anticipated with the Southwest Region, NMFS. On restoration and maintenance activities, to occur. Only short-term Level B January 27, 2010, the Southwest Region NMFS estimated the population harassment is anticipated to occur over issued a Biological Opinion (BiOp) and variance for Steller sea lions hauled out a very short period of time (maximum concluded that the issuance of an IHA during the six month period by using a of three days), occurring at very limited is likely to adversely affect, but not two-tailed test statistical test (at a 95 times of the day. Additionally, the likely to jeopardize the continued percent confidence level) to infer the activity will occur at a time of year existence of Steller sea lions. NMFS has upper range of Steller sea lions present when breeding does not occur. designated critical habitat for the on NWSR (i.e., 172 individuals). NMFS NMFS has determined, provided that eastern Distinct Population Segment of expects the haul out areas on NWSR to the aforementioned mitigation and Steller sea lions in California at An˜ o be inundated by waves during the monitoring measures are implemented, Nuevo Island, Southeast Farallon Island, winter months thereby reducing the that the impact of conducting helicopter Sugarloaf Island and Cape Mendocino, available haul out space and as a result, operations, restoration, and California pursuant to section 4 of the the number of Steller sea lions hauled maintenance activities on St. George ESA (see 50 CFR 226.202(b)). Northwest out. Accordingly, these take estimates Reef Light Station located on NWSR Seal Rock is neither within nor nearby are likely a gross overestimate of the may result, at worst, in a temporary these designated areas. Finally, the number of animals expected to be modification in behavior and/or low- BiOp included an incidental take hauled out at Northwest Seal Rock, level physiological effects (Level B statement (ITS) for Steller sea lions. The during the six monthly sessions of harassment) of small numbers of certain ITS contains reasonable and prudent restoration and maintenance activities species of marine mammals. measures implemented by terms and conducted between November 1st and While behavioral modifications, conditions to minimize the effects of April 30th. including temporarily vacating the area this take. during the lighthouse restoration and Negligible Impact and Small Numbers maintenance period, may be made by National Environmental Policy Act Analysis and Determination these species to avoid the resultant (NEPA) NMFS has defined ‘‘negligible impact’’ helicopter landing/takeoff and visual To meet NMFS’ NEPA requirements in 50 CFR 216.103 as ‘‘...an impact disturbance from human presence, the for the issuance of an IHA to the resulting from the specified activity that availability of alternate areas within SGRLPS, NMFS has prepared an cannot be reasonably expected to, and is these areas and haulout sites, and the Environmental Assessment (EA) that is not reasonably likely to, adversely affect short and sporadic duration of the specific to conducting aircraft the species or stock through effects on restoration and maintenance activities, operations and restoration and annual rates of recruitment or survival.’’ have led NMFS to determine that this maintenance work on the St. George In making a negligible impact action will have a negligible impact on Reef Light Station. NMFS has prepared determination, NMFS considers: (1) the Steller sea lions, California sea lions, an Environmental Assessment (EA) number of anticipated mortalities; (2) Pacific harbor seals, and northern fur titled Issuance of an Incidental the number and nature of anticipated seals. Harassment Authorization to Take injuries; (3) the number, nature, and Based on the analysis contained Marine Mammals by Harassment intensity, and duration of Level B herein of the likely effects of the Incidental to Conducting Aircraft harassment; and (4) the context in specified activity on marine mammals Operations, Lighthouse Restoration and which the takes occur. and their habitat, and taking into Maintenance Activities on St. George As mentioned previously, NMFS consideration the implementation of the Reef Lighthouse Station in Del Norte estimates that a maximum of 204 mitigation and monitoring measures, County, California, that evaluates the

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impacts on the human environment of antidumping duties on all appropriate Quality Steel Plate Products From Italy: NMFS’ authorization of incidental Level entries. Interested parties are invited to Extension of Time Limit for Preliminary B harassment resulting from the comment on these preliminary results of Results of Antidumping Duty specified activity in the specified review. We intend to issue the final Administrative Review, 74 FR 53215 geographic region. The NMFS has made results of review no later than 120 days (October 16, 2009). a Finding of No Significant Impact from the publication date of this notice. The Department is conducting this (FONSI) and, therefore, it is not DATES: Effective Date: January 29, 2010. administrative review in accordance necessary to prepare an environmental FOR FURTHER INFORMATION CONTACT: with section 751 of the Tariff Act of impact statement for the issuance of an Dmitry Vladimirov or Minoo Hatten, 1930, as amended (the Act). IHA to SGRLPS for this activity. A copy AD/CVD Operations, Office 5, Import Scope of the Order of the EA and the NMFS FONSI for this Administration, International Trade The products covered by the activity is available upon request (see Administration, U.S. Department of antidumping duty order are certain hot- ADDRESSES). A copy of the EA and the Commerce, 14th Street and Constitution rolled carbon-quality steel: (1) Universal NMFS FONSI for this activity is Avenue, NW., Washington, DC 20230, mill plates (i.e., flat-rolled products available upon request (see ADDRESSES). telephone: (202) 482–0665 or (202) 482– rolled on four faces or in a closed box 1690, respectively. Authorization pass, of a width exceeding 150 mm but SUPPLEMENTARY INFORMATION: As a result of these determinations, not exceeding 1250 mm, and of a NMFS has issued an IHA to the SGRLPS Background nominal or actual thickness of not less than 4 mm, which are cut-to-length (not to conduct helicopter operations and On February 10, 2000, the Department in coils) and without patterns in relief), restoration and maintenance work on published in the Federal Register an of iron or non-alloy-quality steel; and the St. George Reef Light Station on antidumping duty order on certain cut- (2) flat-rolled products, hot-rolled, of a Northwest Seal Rock in the northeast to-length carbon-quality steel plate nominal or actual thickness of 4.75 mm Pacific Ocean during January 27, 2010 products (steel plate) from Italy. See or more and of a width which exceeds through April 30, 2010, provided the Notice of Amendment of Final 150 mm and measures at least twice the previously mentioned mitigation, Determinations of Sales at Less Than thickness, and which are cut-to-length monitoring, and reporting requirements Fair Value and Antidumping Duty (not in coils). Steel products included in are incorporated. Orders: Certain Cut-to-Length Carbon- the scope of the order are of rectangular, Quality Steel Plate Products From Dated: January 25, 2010. square, circular, or other shape and of France, India, Indonesia, Italy, Japan Helen M. Golde, rectangular or non-rectangular cross- and the Republic of Korea, 65 FR 6585 Deputy Director, Office of Protected section where such non-rectangular (February 10, 2000) (Order). On Resources, National Marine Fisheries Service. cross-section is achieved subsequent to February 4, 2009, the Department [FR Doc. 2010–1906 Filed 1–28–10; 8:45 am] the rolling process (i.e., products which published in the Federal Register a BILLING CODE 3510–22–S have been ‘‘worked after rolling’’)—for notice of ‘‘Opportunity To Request example, products which have been Administrative Review’’ of the order. beveled or rounded at the edges. Steel See Antidumping or Countervailing DEPARTMENT OF COMMERCE products that meet the noted physical Duty Order, Finding, or Suspended characteristics that are painted, International Trade Administration Investigation; Opportunity To Request varnished, or coated with plastic or Administrative Review, 74 FR 6013 [A–475–826] other non-metallic substances are (February 4, 2009). included within the scope. Also, In accordance with 19 CFR Certain Cut-to-Length Carbon-Quality specifically included in the scope of the 351.213(b)(2), on March 2, 2009, Palini Steel Plate Products From Italy: order are high strength, low alloy requested that the Department conduct Preliminary Results of Antidumping (HSLA) steels. HSLA steels are an administrative review of its sales and Duty Administrative Review recognized as steels with micro-alloying entries of subject merchandise into the 1 levels of elements such as chromium, AGENCY: Import Administration, United States during the POR. On copper, niobium, titanium, vanadium, International Trade Administration, March 24, 2009, the Department and molybdenum. Steel products Department of Commerce. published a notice of initiation of an included in the scope, regardless of SUMMARY: In response to a request by an administrative review of the Harmonized Tariff Schedule of the interested party, the Department of antidumping duty order on steel plate United States (HTSUS) definitions, are Commerce (the Department) is from Italy with respect to Palini. See products in which: (1) Iron conducting an administrative review of Initiation of Antidumping and predominates, by weight, over each of the antidumping duty order on certain Countervailing Duty Administrative the other contained elements, (2) the cut-to-length carbon-quality steel plate Reviews and Requests for Revocation in carbon content is two percent or less, by products from Italy. This review covers Part, 74 FR 12310 (March 24, 2009). On weight, and (3) none of the elements one producer/exporter of the subject October 8, 2009, we extended the due listed below is equal to or exceeds the merchandise, Evraz Palini Bertoli S.p.A. date for the preliminary results of quantity, by weight, respectively (Palini). The period of review (POR) is review by 86 days to January 25, 2010. indicated: 1.80 percent of manganese, or February 1, 2008 through January 31, See Certain Cut-to-Length Carbon- 1.50 percent of silicon, or 1.00 percent 2009. of copper, or 0.50 percent of aluminum, 1 The notice of ‘‘Opportunity To Request The Department has preliminarily Administrative Review’’ stated that all requests for or 1.25 percent of chromium, or 0.30 determined that Palini made U.S. sales a review must be submitted no later than the last percent of cobalt, or 0.40 percent of at prices less than normal value. If these day of February 2009, or the next business day if lead, or 1.25 percent of nickel, or 0.30 preliminary results are adopted in our the deadline falls on a weekend, federal holiday, or percent of tungsten, or 0.10 percent of any other day when the Department is closed. final results of administrative review, Because February 28, 2009 fell on the weekend, molybdenum, or 0.10 percent of we will instruct U.S. Customs and Palini submitted its request for an administrative niobium, or 0.41 percent of titanium, or Border Protection (CBP) to assess review on Monday, March 2, 2009. 0.15 percent of vanadium, or 0.15

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percent zirconium. All products that based on the physical characteristics this notice (Palini Analysis meet the written physical description, reported by the respondent in the Memorandum), for additional and in which the chemistry quantities following order of importance: Whether information. do not equal or exceed any one of the painted, quality, specification/grade, Fair-Value Comparison levels listed above, are within the scope heat treatment, thickness, width, of the order unless otherwise patterns in relief, and descaling. To determine whether Palini’s sales of specifically excluded. The following the subject merchandise from Italy to Date of Sale products are specifically excluded from the United States were at prices below the order: (1) Products clad, plated, or Although the Department normally normal value, we compared the export coated with metal, whether or not uses the date of invoice, as recorded in price to the normal value as described painted, varnished or coated with the producer’s or exporter’s records kept in the ‘‘Export Price’’ and ‘‘Normal plastic or other non-metallic substances; in the ordinary course of business, as Value’’ sections of this notice. Therefore, (2) SAE grades (formerly AISI grades) of the date of sale, the Department’s pursuant to section 777A(d)(2) of the series 2300 and above; (3) products regulations provide that the Department Act, we compared the export price of made to ASTM A710 and A736 or their may use a date other than the date of individual U.S. transactions to the proprietary equivalents; (4) abrasion- invoice if the Secretary is satisfied that monthly weighted-average normal value resistant steels (i.e., USS AR 400, USS a different date better reflects the date of the foreign like product where there AR 500); (5) products made to ASTM on which the exporter or producer were sales made in the ordinary course A202, A225, A514 grade S, A517 grade establishes the material terms of sale of trade. S, or their proprietary equivalents; (6) (e.g., price and quantity). See 19 CFR In its questionnaire response, Palini ball bearing steels; (7) tool steels; and (8) 351.401(i); see also Allied Tube and stated that the home-market sales, silicon manganese steel or silicon Conduit Corp. v. United States, 132 F. home-market price adjustments, and electric steel. Supp. 2d 1087, 1090–92 (CIT 2001). In cost information were reported on the Imports of steel plate are currently this case, the information on the record basis of actual weight whereas the U.S. classified in the HTSUS under indicates that the material terms of sale sales and U.S. price adjustments were subheadings 7208.40.3030, were finalized at the time of the reported on the basis of theoretical 7208.40.3060, 7208.51.0030, confirmation of the purchase order. weight. It is our practice to make all 7208.51.0045, 7208.51.0060, Palini asserted that the invoice date price comparisons using the same 7208.52.0000, 7208.53.0000, better reflects the date of sale because weight basis. See Notice of Final 7208.90.0000, 7210.70.3000, the material terms of sale were subject Determination of Sales at Less Than 7210.90.9000, 7211.13.0000, to change and, in fact, did change when Fair Value: Hot-Rolled Flat-Rolled 7211.14.0030, 7211.14.0045, Palini’s affiliated trading company and Carbon-Quality Steel Products From 7211.90.0000, 7212.40.1000, its unaffiliated U.S. customer agreed to Japan, 64 FR 24329 (May 6, 1999). In 7212.40.5000, 7212.50.0000, a price adjustment. Accordingly, Palini Nippon Steel Corp. v. United States, 25 7225.40.3050, 7225.40.7000, reported the invoice date as the date of CIT 1405, 1406 (CIT 2001), and Persico 7225.50.6000, 7225.99.0090, sale in its U.S. sales list. Pizzamiglio, S.A. v. United States, 18 7226.91.5000, 7226.91.7000, We examined the information on the CIT 299, 302 (CIT 1994), the courts 7226.91.8000, and 7226.99.0000. The record and found that the material terms upheld the necessity of the conversion HTSUS subheadings are provided for of U.S. sales did not change between the to the consistent weight basis in order convenience and customs purposes. The date of the purchase-order confirmation to enable proper price comparisons. written description of the merchandise and the date of commercial invoices and Further, the objective of comparing covered by the order is dispositive. that the price adjustment to which export price and normal value on a Palini refers is a post-sale adjustment consistent weight basis does not dictate Product Comparisons because it occurred after the invoices the preference of converting certain In accordance with section 771(16) of were issued and the product was information reported on the basis of the Act, we considered all products shipped. See Palini’s June 3, 2009, actual weight to theoretical weight in described by the ‘‘Scope of the Order’’ questionnaire response at Exhibit A–8 lieu of converting certain information section above produced and sold by and its August 14, 2009, supplemental reported on the basis of theoretical Palini in the comparison market during questionnaire at page 4 and Exhibit 5. weight to the actual weight. See Light- the POR to be foreign like product for As the information on the record Walled Rectangular Pipe and Tube the purposes of determining appropriate indicates that the material terms of sale From Mexico: Notice of Final product comparisons to U.S. sales of (e.g., price and quantity) were not Determination of Sales at Less Than subject merchandise. Specifically, in subject to change after the date of the Fair Value, 69 FR 53677, 53681 making our comparisons, we used the purchase-order confirmation we (September 2, 2004), and accompanying following methodology. If an identical preliminarily determine that this date Issues and Decision Memorandum at comparison-market model was reported, better reflects the date on which the Comment 16. Accordingly, we we made comparisons to weighted- producer/exporter established and converted the U.S. sales and price average comparison-market prices that formalized the material terms of sale. adjustments that were reported on the were based on all sales which passed Therefore, for purposes of the basis of theoretical weight to an actual- the cost-of-production (COP) test of the preliminary results of review, we have weight basis. See the Palini Analysis identical product during the relevant or used the date of the purchase-order Memorandum for additional contemporary month. We calculated the confirmation as the date of sale for information. weighted-average comparison-market Palini’s U.S. sales. See memorandum prices on a level of trade-specific basis. from Dmitry Vladimirov to the File, Export Price If there were no contemporaneous sales ‘‘Administrative Review of Certain Cut- The Department based the price of of an identical model, we identified the to-Length Carbon-Quality Steel Plate Palini’s U.S. sales of subject most similar comparison-market model. Products from Italy: Preliminary Results merchandise on export price as defined To determine the most similar model, Analysis Memorandum for Evraz Palini in section 772(a) of the Act because the we matched the foreign like product Bertoli S.p.A.,’’ dated concurrently with merchandise was sold, before

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importation, by a third country-based B. Home-Market Viability have reasonable grounds to believe or seller affiliated with the producer to suspect that Palini’s sales of the foreign unaffiliated purchasers in the United In accordance with section like product under consideration for the States. We calculated export price based 773(a)(1)(c) of the Act, in order to determination of normal value may have on the packed, delivered price to determine whether there was a been made at prices below COP as unaffiliated purchasers in, or for sufficient volume of sales of steel plate provided by section 773(b)(2)(A)(ii) of exportation to, the United States. We in the comparison market to serve as a the Act and, pursuant to section made deductions to the starting price for viable basis for calculating normal 773(b)(1) of the Act, we have conducted billing adjustments and, in accordance value, we compared the volume of the a COP investigation of Palini’s sales in with section 772(c)(2)(A) of the Act, respondent’s home-market sales of the the comparison market. movement expenses. foreign like product to its volume of the U.S. sales of the subject merchandise. 1. Calculation of Cost of Production Normal Value Palini’s quantity of sales in the home In accordance with section 773(b)(3) A. Universe of Sales market was greater than five percent of of the Act, we calculated the COP based its sales to the U.S. market. Based on on the sum of the costs of materials, In its questionnaire responses, Palini this comparison of the aggregate fabrication, and labor employed in reported that, in the normal course of quantities sold in the comparison producing the foreign like product plus business, it identifies certain sales as market (i.e., Italy) and to the United the amounts for the selling, general, and having a final destination outside Italy. States and absent any information that administrative (SG&A) expenses, Palini reported such sales as home- a particular market situation in the financial expenses, and all costs and market sales. Palini asserted in its exporting country did not permit a expenses incidental to packing the questionnaire responses that the sales in proper comparison, we preliminarily merchandise. In our COP analysis, we question were made to Italian determine that the quantity of the used the comparison-market sales and customers, delivered within Italy, and foreign like product sold by the COP information provided by Palini in Palini does not know the final respondent in the exporting country was its supplemental questionnaire destination for these sales except that sufficient to permit a proper comparison responses. We recalculated Palini’s they are to be exported. Where a with the sales of the subject financial expenses by including the net respondent has no knowledge as to the merchandise to the United States, value of foreign-exchange losses, destination of merchandise, except that pursuant to section 773(a)(1) of the Act. consistent with our practice, as this it is for export, the Department classifies Thus, we determine that Palini’s home better reflects the results of Palini’s such sales as export sales and excludes market was viable during the POR. Id. foreign-exchange management. See, e.g., them from the home-market sales Therefore, in accordance with section Silicomanganese From Brazil: Final database. See Stainless Steel Sheet and 773(a)(1)(B)(i) of the Act, we based Results of Antidumping Duty Strip in Coils from Taiwan: Preliminary normal value for the respondent on the Administrative Review, 69 FR 13813 Results and Preliminary Rescission in prices at which the foreign like product (March 24, 2004) and accompanying Part of Antidumping Duty was first sold for consumption in the Issues and Decision Memorandum at Administrative Review, 73 FR 45393, exporting country in the usual Comment 14. See the Palini Analysis 45396 (August 5, 2008) (Coils from commercial quantities and in the Memorandum for additional Taiwan), unchanged in Stainless Steel ordinary course of trade and, to the information. Sheet and Strip in Coils From Taiwan: extent practicable, at the same level of Final Results and Rescission in Part of trade as the U.S. sales. 2. Test of Comparison-Market Sales Antidumping Duty Administrative Prices Review, 73 FR 74704 (December 9, C. Cost-of-Production Analysis After calculating the COP and in 2008). Further, in Coils from Taiwan we accordance with section 773(b)(1) of the stated that, in Tung Mung Dev. Co., Ltd. In the less-than-fair-value investigation the Department Act, we tested whether comparison- v. United States, 25 CIT 752, 783 (CIT market sales of the foreign like product 2001), the court, quoting INA Walzlager determined that Palini sold the foreign like product at prices below the cost of were made at prices below the COP Schaeffler KG v. United States, 957 F. within an extended period of time in Supp. 251 (CIT 1997), found that sales producing the merchandise and, as a result, excluded such sales from the substantial quantities and whether such should be reported as home-market prices permitted the recovery of all costs sales if the producer ‘‘knew or should calculation of normal value. See Preliminary Determinations of Sales at within a reasonable period of time. See have known that the merchandise it section 773(b)(2) of the Act. We sold was for home consumption based Less Than Fair Value: Certain Cut-To- Length Carbon-Quality Steel Plate compared model-specific COPs to the upon the particular facts and reported comparison-market prices less, circumstances surrounding the sales.’’ Products From Italy, 64 FR 41213 (July 29, 1999), unchanged in Notice of Final where applicable, any billing Based on Palini’s knowledge at the adjustments, movement charges, time of sale that the sales in question Determination of Sales at Less Than Fair Value: Certain Cut-To-Length commissions, indirect selling expenses, were destined for export, and packing expenses. notwithstanding its lack of knowledge Carbon-Quality Steel Plate Products of the specific export destination, we from Italy, 64 FR 73234 (December 29, 3. Results of the COP Test 1999).2 Therefore, in this review, we have preliminarily determined that the Pursuant to section 773(b)(2)(C) of the sales in question were not for 2 We made a facts-available determination with Act, when less than 20 percent of consumption in the home market. an adverse inference in the most recently concluded Palini’s sales of a given product were at Therefore, we have excluded these sales administrative review (i.e., the 2004–2005 review). prices less than the COP, we did not from Palini’s home-market sales See Certain Cut-To-Length Carbon-Quality Steel disregard any below-cost sales of that database for these preliminary results of Plate Products From Italy: Preliminary Results and Partial Rescission of Antidumping Duty product because the below-cost sales review. See the Palini Analysis Administrative Review, 71 FR 11178 (March 6, Memorandum for additional 2006), unchanged in Certain Cut-to-Length Carbon- Results and Partial Rescission of Antidumping Duty information. Quality Steel Plate Products From Italy: Final Administrative Review, 71 FR 39299 (July 12, 2006).

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were not made in substantial quantities based on sales in the comparison market single level of trade. We found that the within an extended period of time. at the same level of trade as the export export-price level of trade was similar to When 20 percent or more of Palini’s price. Pursuant to 19 CFR 351.412(c)(1), the home-market level of trade in terms sales of a given product during the POR the normal-value level of trade is based of selling activities. Specifically, we were at prices less than the COP, we on the starting price of the sales in the found that technical assistance and the disregarded the below-cost sales comparison market or, when normal arrangement for freight delivery were because they were made in substantial value is based on constructed value, the the only two selling functions Palini quantities within an extended period of starting price of the sales from which we provided for both levels of trade. time pursuant to sections 773(b)(2)(B) derive SG&A expenses and profit. For Accordingly, we considered the export- and (C) of the Act and because, based on export price sales, the U.S. level of trade price level of trade to be similar to the comparisons of prices to weighted- is based on the starting price of the sales home-market level of trade and not at a average COPs for the POR, we in the U.S. market, which is usually less advanced stage of distribution than determined that these sales were at from the exporter to the importer. the home-market level of trade. prices which would not permit recovery To determine whether comparison- Therefore, we matched export-price of all costs within a reasonable period market sales are at a different level of sales to sales at the same level of trade of time in accordance with section trade than export-price sales, we in the home market. See section 773(b)(2)(D) of the Act. examine stages in the marketing process 773(a)(7)(A) of the Act. In this case, we found that, for certain and selling functions along the chain of products, more than 20 percent of distribution between the producer and Currency Conversion Palini’s home-market sales were at the unaffiliated customer. See 19 CFR Pursuant to 19 CFR 351.415, we prices less than the COP and, in 351.412(c)(2). If the comparison-market converted amounts expressed in foreign addition, such sales did not provide for sales are at a different level of trade and currencies into U.S. dollar amounts the recovery of costs within a reasonable the difference affects price based on the exchange rates in effect on period of time. Therefore, we excluded comparability, as manifested in a the dates of the relevant U.S. sales, as these sales and used the remaining sales pattern of consistent price differences certified by the Federal Reserve Bank. as the basis for determining normal between the sales on which normal Preliminary Results of Review value in accordance with section value is based and the comparison- 773(b)(1) of the Act. market sales at the level of trade of the As a result of this review, we export transaction, we make a level-of- preliminarily determine that a D. Calculation of Normal Value Based weighted-average dumping margin of on Comparison-Market Prices trade adjustment under section 773(a)(7)(A) of the Act. 17.75 percent exists for Palini for the We based normal value for Palini on In this review, we obtained period February 1, 2008, through packed, ex-works or delivered prices to information from Palini regarding the January 31, 2009. unaffiliated customers in the home marketing stages involved in making its Disclosure and Public Comment market. We made an adjustment to the reported home-market and U.S. sales, starting price, where appropriate, for including a description of the selling We will disclose the calculations used billing adjustments in accordance with activities Palini (or, where applicable, in our analysis to parties in this review 19 CFR 351.401(c). We made its affiliate(s)) performed for each within five days of the date of deductions, where appropriate, for channel of distribution. publication of this notice. Any movement expenses, limited to inland During the POR, Palini reported that interested party may request a hearing freight, under section 773(a)(6)(B)(ii) of it sold steel plate in the home market to within 30 days of the publication of this the Act. end-users and service centers. We found notice in the Federal Register. If a We made circumstance-of-sale that the selling activities associated with hearing is requested, the Department adjustments by deducting home-market these channels of distribution did not will notify interested parties of the direct selling expenses from, and adding differ significantly.3 Specifically, we hearing schedule. Interested parties are invited to U.S. direct selling expenses to, normal found that the provision of technical comment on the preliminary results of value under section 773(a)(6)(C)(iii) of assistance and arrangement for freight this review. The Department will the Act. We also made adjustments, delivery were the only selling activities consider case briefs filed by interested when applicable, for home-market differentiating home-market channels of parties within 30 days after the date of indirect selling expenses incurred for distribution. Accordingly, we found that publication of this notice in the Federal U.S. sales to offset home-market the home-market channels of Register. Interested parties may file commissions. See 19 CFR 351.410(e). distribution constituted a single level of rebuttal briefs, limited to issues raised We made adjustments for differences trade. in cost attributable to differences in Palini reported that its export-price in the case briefs. The Department will physical characteristics of the sales were made using one channel of consider rebuttal briefs filed not later merchandise pursuant to section distribution, sales by an affiliated than five days after the time limit for 773(a)(6)(C)(ii) of the Act. We also trading company not based in the filing case briefs. Parties who submit deducted home-market packing costs United States to U.S. trading arguments are requested to submit with and added U.S. packing costs in companies/distributors. Accordingly, each argument a statement of the issue, accordance with sections 773(a)(6)(A) we found that the single export-price a brief summary of the argument, and a and (B) of the Act. channel of distribution constituted a table of authorities cited. Further, we When possible, we calculated normal request that parties submitting written value at the same level of trade as the 3 Although Palini designated the provision of comments provide the Department with export price. See below. cash discounts and commission for one home- a diskette containing an electronic copy market channel of distribution and no provision of of the public version of such comments. Level of Trade such services for the others, we did not consider We intend to issue the final results of them in our level-of-trade analysis because we In accordance with section adjust the starting price in the comparison market this administrative review, including 773(a)(1)(B) of the Act, to the extent for these direct selling expenses pursuant to section the results of our analysis of issues practicable, we determine normal value 773(a)(6)(C)(iii) of the Act. raised in the written comments, within

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120 days of publication of these established in the Order. These deposit (CZMA), 16 U.S.C. 1451 et seq., and preliminary results in the Federal requirements, when imposed, shall implementing regulations found at 15 Register. remain in effect until further notice. CFR Part 930, Subpart H. The appeal is taken from an objection by Puerto Rico Assessment Rates Notification to Importers Planning Board (PRPB) to Villa Marina’s The Department shall determine, and This notice also serves as a consistency certification for a U.S. Army CBP shall assess, antidumping duties on preliminary reminder to importers of Corps of Engineers permit for a marina all appropriate entries. In accordance their responsibility under 19 CFR expansion in Fajardo, Puerto Rico. with 19 CFR 351.212(b)(1), we have 351.402(f) to file a certificate regarding Notice of this appeal was published in calculated an importer-specific the reimbursement of antidumping the Federal Register on August 24, assessment rate for these preliminary duties prior to liquidation of the 2009. See 74 FR 42,650. results of review. We divided the total relevant entries during this review Under the CZMA, the Secretary must dumping margins for the reviewed sales period. Failure to comply with this close the decision record in an appeal by the total entered value of those requirement could result in the 160 days after the notice of appeal is reviewed sales for the importer. We will Department’s presumption that published in the Federal Register. 16 instruct CBP to assess the importer- reimbursement of antidumping duties U.S.C. 1465. The CZMA, however, specific rate uniformly, as appropriate, occurred and the subsequent assessment authorizes the Secretary to stay closing on all entries of subject merchandise of doubled antidumping duties. of the decision record for up to 60 days made by the relevant importer during These preliminary results of when the Secretary determines it the POR. See 19 CFR 351.212(b). The administrative review are issued and necessary to receive, on an expedited Department intends to issue instructions published in accordance with sections basis, any supplemental information to CBP 15 days after the publication of 751(a)(1) and 777(i)(1) of the Act. specifically requested by the Secretary the final results of review. Dated: January 25, 2010. to complete consistency review. 16 The Department clarified its U.S.C. 1465(b)(3). ‘‘automatic assessment’’ regulation on Ronald K. Lorentzen, The decision record currently is May 6, 2003. See Antidumping and Deputy Assistant Secretary for Import scheduled to close on February 1, 2010. Countervailing Duty Proceedings: Administration. After reviewing the decision record Assessment of Antidumping Duties, 68 [FR Doc. 2010–1908 Filed 1–28–10; 8:45 am] developed to date, the Secretary has FR 23954 (May 6, 2003) (Assessment of BILLING CODE 3510–DS–P requested supplemental and clarifying Antidumping Duties). This clarification information. In order to allow receipt of will apply to entries of subject this information, the Secretary hereby merchandise during the POR produced DEPARTMENT OF COMMERCE stays closure of the decision record until by Palini for which Palini did not know National Oceanic and Atmospheric April 2, 2010. its merchandise was destined for the Additional information on this appeal Administration United States. In such instances, we will is available on the following Web site: instruct CBP to liquidate unreviewed Federal Consistency Appeal by Villa http://www.ogc.doc.gov/czma.htm; and entries of merchandise produced by Marina Yacht Harbour, Inc. during business hours, at the NOAA, Palini at the all-others rate if there is no Office of General Counsel for Ocean rate for the intermediate company(ies) AGENCY: National Oceanic and Services. involved in the transaction. For a full Atmospheric Administration (NOAA), Dated: January 25, 2010. discussion of this clarification, see Department of Commerce (Commerce). Joel La Bissonniere, Assessment of Antidumping Duties. ACTION: Notice of stay—closure of Assistant General Counsel for Ocean Services, Cash-Deposit Requirements administrative appeal decision record. NOAA. The following deposit requirements SUMMARY: This announcement provides [FR Doc. 2010–1802 Filed 1–28–10; 8:45 am] will be effective upon publication of the notice that the Secretary of Commerce BILLING CODE P notice of final results of administrative has stayed, for a period of 60 days, review for all shipments of steel plate closure of the decision record in an from Italy entered, or withdrawn from administrative appeal filed by Villa COMMITTEE FOR PURCHASE FROM warehouse, for consumption on or after Marina Yacht Harbour, Inc. (Villa PEOPLE WHO ARE BLIND OR the date of publication, as provided by Marina). SEVERELY DISABLED section 751(a)(2)(C) of the Act: (1) The DATES: The decision record for the Villa Procurement List; Proposed Additions cash-deposit rate for Palini will be the Marina Federal Consistency Appeal will rate established in the final results of now close on April 2, 2010. AGENCY: Committee for Purchase From this review; (2) for previously reviewed People Who Are Blind or Severely ADDRESSES: NOAA, Office of General or investigated companies not listed Counsel for Ocean Services, 1305 East- Disabled. above, the cash-deposit rate will West Highway, Room 6111, Silver ACTION: Proposed Additions to the continue to be the company-specific rate Spring, MD 20910. Procurement List. published for the most recent period; (3) if the exporter is not a firm covered in FOR FURTHER INFORMATION CONTACT: SUMMARY: The Committee is proposing this review, a prior review, or the less- Gladys P. Miles, Attorney-Advisor, to add to the Procurement List products than-fair-value investigation but the NOAA, Office of the General Counsel, and services to be furnished by manufacturer is, the cash-deposit rate 301–713–7384 or at nonprofit agencies employing persons will be the rate established for the most [email protected]. who are blind or have other severe recent period for the manufacturer of SUPPLEMENTARY INFORMATION: On July disabilities. the merchandise; (4) if neither the 24, 2009, Villa Marina filed a notice of COMMENTS MUST BE RECEIVED ON OR exporter nor the manufacturer has its an appeal with the Secretary of BEFORE: 3/1/2010. own rate, the cash-deposit rate will be Commerce (Secretary), pursuant to the ADDRESSES: Committee for Purchase 7.85 percent, the all-others rate Coastal Zone Management Act of 1972 From People Who Are Blind or Severely

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Disabled, Jefferson Plaza 2, Suite 10800, Commissary Agency, Fort Lee, VA. Winchester, VA. Coverage: C–List items for the requirements 1421 Jefferson Davis Highway, Barry S. Lineback, Arlington, Virginia 22202–3259. of the Military Resale, Defense Commissary Agency. Director, Business Operations. FOR FURTHER INFORMATION OR TO SUBMIT [FR Doc. 2010–1815 Filed 1–28–10; 8:45 am] COMMENTS CONTACT: Barry S. Lineback, Services BILLING CODE 6353–01–P Telephone: (703) 603–7740, Fax: (703) Service Type/Locations: Develop Rapid 603–0655, or e-mail Prototypes [email protected]. Alphapointe Association for the Blind, COMMITTEE FOR PURCHASE FROM 7501 Prospect, Kansas City, MO. SUPPLEMENTARY INFORMATION: This PEOPLE WHO ARE BLIND OR Northeastern Association of the Blind at notice is published pursuant to 41 Albany, 301 Washington Avenue, SEVERELY DISABLED U.S.C. 47(a)(2) and 41 CFR 51–2.3. Its Albany, NY. purpose is to provide interested persons Association for the Blind and Visually Procurement List; Addition an opportunity to submit comments on Impaired & Goodwill Ind. of Greater AGENCY: Committee for Purchase From the proposed actions. Rochester, Rochester, NY, 422 South People Who Are Blind or Severely Clinton Avenue, Rochester, NY. Disabled. Additions Blind Industries and Services of Maryland, If the Committee approves the 3345 Washington Blvd., Baltimore, MD. ACTION: Addition to the Procurement proposed additions, the entities of the Industries of the Blind, Inc., 920 West Lee List. Federal Government identified in this Street, Greensboro, NC. SUMMARY: This action adds to the notice for each product or service will Winston-Salem Industries for the Blind, Procurement List a service to be be required to provide the products and 7730 North Point Drive, Winston-Salem, NC. furnished by a nonprofit agency services listed below from nonprofit LC Industries, 4500 Emperor Blvd., employing persons who are blind or agencies employing persons who are Durham, NC. have other severe disabilities. blind or have other severe disabilities. Lions Services, Inc., 4600 North Tryon DATES: Effective Date: 3/1/2010. Regulatory Flexibility Act Certification Street, Charlotte, NC. San Antonio Lighthouse for the Blind, ADDRESSES: Committee for Purchase I certify that the following action will 2305 Roosevelt Avenue, San Antonio, From People Who Are Blind or Severely not have a significant impact on a TX. Disabled, Jefferson Plaza 2, Suite 10800, substantial number of small entities. The Lighthouse for the Blind, Inc. (Seattle 1421 Jefferson Davis Highway, The major factors considered for this Lighthouse), 2501 South Plum Street, Arlington, Virginia, 22202–3259. Seattle, WA. certification were: FOR FURTHER INFORMATION CONTACT: 1. If approved, the action will not Arkansas Lighthouse for the Blind, 6918 Murray Street, Little Rock, AR. Barry S. Lineback, Telephone: (703) result in any additional reporting, 603–7740, Fax: (703) 603–0655, or e- recordkeeping or other compliance NPAs: National Industries for the Blind, Alexandria, VA (Prime Contractor). mail [email protected]. requirements for small entities other Alphapointe Association for the Blind, SUPPLEMENTARY INFORMATION: than the small organizations that will Kansas City, MO. provide the products and services to the Northeastern Association of the Blind at Addition Government. Albany, Inc., Albany, NY. On 11/16/2009 (74 FR 58949–58950), 2. If approved, the action will result Association for the Blind and Visually the Committee for Purchase From in authorizing small entities to provide Impaired & Goodwill Ind. Of Greater People Who Are Blind or Severely Rochester, Rochester, NY. the products and services to the Disabled published a notice of proposed Government. Blind Industries & Services of Maryland, Baltimore, MD. addition to the Procurement List. 3. There are no known regulatory After consideration of the material alternatives which would accomplish Industries of the Blind, Inc., Greensboro, NC. presented to it concerning capability of the objectives of the Javits-Wagner- qualified nonprofit agency to furnish a O’Day Act (41 U.S.C. 46–48c) in Winston-Salem Industries for the Blind, Winston-Salem, NC. service and impact of that addition on connection with the products and L.C. Industries For The Blind, Inc., the current or most recent contractors, services proposed for addition to the Durham, NC. the Committee has determined that the Procurement List. Lions Services, Inc., Charlotte, NC. service listed below is suitable for Comments on this certification are San Antonio Lighthouse for the Blind, San procurement by the Federal Government invited. Commenters should identify the Antonio, TX. under 41 U.S.C. 46–48c and 41 CFR 51– statement(s) underlying the certification The Lighthouse for the Blind, Inc. (Seattle 2.4. on which they are providing additional Lighthouse), Seattle, WA. information. The Arkansas Lighthouse for the Blind, Regulatory Flexibility Act Certification Little Rock, AR. End of Certification Contracting Activity: Department of I certify that the following action will not have a significant impact on a The following products and services Homeland Security, U.S. Coast Guard, substantial number of small entities. are proposed for addition to CG–9, Washington, DC. Service Type/Locations: Shredding & The major factors considered for this Procurement List for production by the Destruction of Document & Recycling, certification were: nonprofit agencies listed: U.S. Army Corps of Engineers, Middle 1. The action will not result in any Products East District: 201 Prince Frederick Dr., additional reporting, recordkeeping or Winchester, VA. other compliance requirements for small M.R. Laundry Products Records Holding Area (RHA): 205 Brooke entities other than the small NSN: MR 1103—Heavy Duty Laundry Bag. Rd., Winchester, VA. NSN: MR 1104—Pop Up Mesh Hamper. Transatlantic Division: 255 Fort Collier organizations that will furnish the NSN: MR 1105—Utility Pop Up Basket. Rd., Winchester, VA. service to the Government. NPA: Industries for the Blind, Inc., West NPA: Athelas Institute, Inc., Columbia, MD. 2. The action will result in Allis, WI. Contracting Activity: Dept of the Army, XU authorizing small entities to furnish the Contracting Activity: Military Resale-Defense W31R USAEN TRANSATL PGN CTR, service to the Government.

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3. There are no known regulatory Avenue, NW., Suite 8312, Washington, DEPARTMENT OF DEFENSE alternatives which would accomplish DC 20525 (Please go to 10th floor the objectives of the Javits-Wagner- reception area for escort). Office of the Secretary O’Day Act (41 U.S.C. 46–48c) in STATUS: Open. connection with the service proposed MATTERS TO BE CONSIDERED: [Transmittal No. 09–79] for addition to the Procurement List. 10–10:45 a.m. End of Certification 36(b)(1) Arms Sales Notification I. Chair’s Opening Comments Accordingly, the following service is II. Consideration of Previous Meeting’s AGENCY: Defense Security Cooperation added to the Procurement List: Minutes Agency, DoD. Service III. CEO Report ACTION: Notice. Service Type/Location: Custodial Service, IV. Committee Reports: Oversight, MC Smith Post Federal Bldg & Governance, and Audit Committee; Courthouse, 202 Harlow Street, Bangor, Program, Budget, and Evaluation SUMMARY: The Department of Defense is ME. Committee; and External Relations publishing the unclassified text of a NPA: Northern New England Employment Committee section 36(b)(1) arms sales notification Services, Portland, ME. to fulfill the requirements of section 155 Contracting Activity: GSA/Public Buildings 10:45–11:30 a.m. of Public Law 104–164 dated 21 July Service Region 1, Boston, MA. V. Public Comments 1996. Barry S. Lineback, ACCOMMODATIONS: Anyone who needs FOR FURTHER INFORMATION CONTACT: Director, Business Operations. an interpreter or other accommodation Ms. B. English, DSCA/DBO/CFM, (703) 601– [FR Doc. 2010–1816 Filed 1–28–10; 8:45 am] should notify the Corporation’s contact 3740. BILLING CODE 6353–01–P person by 5 p.m., February 1, 2010. CONTACT PERSON FOR MORE INFORMATION: Dated: January 26, 2010. Emily Samose, Office of the CEO, Mitchell S. Bryman, CORPORATION FOR NATIONAL AND Corporation for National and Alternate OSD Federal Register Liaison COMMUNITY SERVICE Community Service, 10th Floor, Room Officer, Department of Defense. 9613C, 1201 New York Avenue NW., Sunshine Act Notice Washington, DC 20525. Phone (202) SUPPLEMENTARY INFORMATION: The 606–7564. Fax (202) 606–3460. TDD: following is a copy of a letter to the The Board of Directors of the (202) 606–3472. E-mail: Speaker of the House of Representatives, Corporation for National and [email protected]. Community Service gives notice of the Transmittal 09–79 with attached following meeting: Dated: January 26, 2010. transmittal, and policy justification. BILLING CODE 5001–06–P DATE AND TIME: Wednesday, February 3, Frank R. Trinity, 2010, 10 a.m.–11:30 a.m. General Counsel. PLACE: Corporation for National and [FR Doc. 2010–2013 Filed 1–27–10; 4:15 pm] Community Service, 1201 New York BILLING CODE 6050–$$–P

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[FR Doc. 2010–1829 Filed 1–28–10; 8:45 am] FOR FURTHER INFORMATION CONTACT: Mr. systems subject to the Privacy Act of BILLING CODE 5001–06–C Brian Pritchard, Contracts and Grants 1974, (5 U.S.C. 552a), as amended. Liaison, Department of Defense DATES: This action will be effective Education Activity (DoDEA), e-mail: without further notice on March 1, DEPARTMENT OF DEFENSE [email protected]. 2010, unless comments are received that Office of the Secretary Dated: January 26, 2010. would result in a contrary Mitchell S. Bryman, determination. FY 2010 Grant Competition Alternate OSD Federal Register Liaison ADDRESSES: You may submit comments, Announcement; Promoting Student Officer, Department of Defense. identified by docket number and title, Achievement at Schools Impacted by [FR Doc. 2010–1830 Filed 1–28–10; 8:45 am] by any of the following methods: Military Force Structure Changes BILLING CODE 5001–06–P • Federal Rulemaking Portal: http:// www.regulations.gov. Follow the AGENCY: Department of Defense instructions for submitting comments. Education Activity, DoD. DEPARTMENT OF DEFENSE • Mail: Federal Docket Management ACTION: Grant competition Office of the Secretary System Office, 1160 Defense Pentagon, announcement; amendment. Washington, DC 20301–1160. Instructions: All submissions received SUMMARY: The Department of Defense [Docket ID: DOD–2010–OS–0007] must include the agency name and Education Activity (DoDEA) is Privacy Act of 1974; System of docket number for this Federal Register amending the Promoting Student Records document. The general policy for Achievement at Schools Impacted by comments and other submissions from Military Force Structure Changes grant AGENCY: Office of the Secretary, DoD. members of the public is to make these competition announcement, which ACTION: Notice to add a system of submissions available for public published in the Federal Register on records. viewing on the Internet at http:// November 24, 2009 (74 FR 61335– www.regulations.gov as they are 61337). Marion County Schools has SUMMARY: The Office of the Secretary of received without change, including any been added as a local educational Defense is proposing to add a system of personal identifiers or contact agency associated with Fort Benning. records notice to its inventory of record information.

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FOR FURTHER INFORMATION CONTACT: Ms. volunteers, ombudsman and Employer of Defense/Joint Staff Freedom of Cindy Allard at (703) 588–6830. Support of the Guard and Reserve Staff. Information Act Requester Service SUPPLEMENTARY INFORMATION: The Office Center at Office of Freedom of ROUTINE USES OF RECORDS MAINTAINED IN THE Information 1155 Defense Pentagon, of the Secretary of Defense notices for SYSTEM, INCLUDING CATEGORIES OF USERS AND systems of records subject to the Privacy THE PURPOSES OF SUCH USES: Washington, DC 20301–1155. Act of 1974 (5 U.S.C. 552a), as amended, Requests should include the In addition to those disclosures individual’s full name and field have been published in the Federal generally permitted under 5 U.S.C. Register and are available from the committee, the name and number of this 552a(b) of the Privacy Act of 1974, these system of records notice and be signed. address above. records may specifically be disclosed The proposed system report, as outside the DoD as a routine use CONTESTING RECORD PROCEDURES: required by 5 U.S.C. 552a(r) of the pursuant to 5 U.S.C. 552a(b)(3) as The Office of the Secretary of Defense Privacy Act of 1974, as amended, was follows: rules for accessing records, for submitted on January 22, 2010, to the The DoD ‘‘Blanket Routine Uses’’ contesting contents and appealing House Committee on Government published at the beginning of the Office initial agency determinations are Reform, the Senate Committee on of the Secretary of Defense’s published in Office of the Secretary of Governmental Affairs, and the Office of compilation of systems of records Defense Administrative Instruction 81; Management and Budget (OMB) notices apply to this system. 32 CFR part 311; or may be obtained pursuant to paragraph 4c of Appendix I from the system manager. to OMB Circular No. A–130, ‘‘Federal POLICIES AND PRACTICES FOR STORING, Agency Responsibilities for Maintaining RETRIEVING, ACCESSING, RETAINING, AND RECORD SOURCE CATEGORIES: DISPOSING OF RECORDS IN THE SYSTEM: Records About Individuals,’’ dated From the individual. February 8, 1996 (February 20, 1996; 61 STORAGE: EXEMPTIONS CLAIMED FOR THE SYSTEM: FR 6427). Electronic storage media. Dated: January 26, 2010. None. RETRIEVABILITY: Mitchell S. Bryman, [FR Doc. 2010–1831 Filed 1–28–10; 8:45 am] Name, role and field committee. Alternate OSD Federal Register Liaison BILLING CODE 5001–06–P Officer, Department of Defense. SAFEGUARDS: DPR 37 Servers are housed in a secure facility. DEPARTMENT OF DEFENSE Access to information is role-based and SYSTEM NAME: requires Common Access Card (CAC) Office of the Secretary DoD Employer Support of Guard and and limited to those headquarters staff [Docket ID: DOD–2010–OS–0006] Reserve Volunteer Rosters. requiring access to service the record in performance of their official duties. Privacy Act of 1974; System of SYSTEM LOCATION: State and local committee members Records Defense Information Systems Agency, must have an RSA token issued by the Computing Directorate, 5450 Carlisle Employer Support of the Guard and AGENCY: Defense Threat Reduction Pike, Mechanicsburg, PA 17050–2411. Reserve with limited access. CAC or Agency, DoD. RSA token secure access is required for ACTION: Notice to amend a system of CATEGORIES OF INDIVIDUALS COVERED BY THE records. SYSTEM: PII information display. Civilian volunteers and ombudsmen RETENTION AND DISPOSAL: SUMMARY: Defense Threat Reduction serving on field committees supporting Disposition pending. Until the Agency proposes to amend a system of the Employer Support of the Guard and National Archives and Records records notices in its existing inventory Reserve program. Administration has approved the of record systems subject to the Privacy retention and disposal of these records, Act of 1974 (5 U.S.C. 552a), as amended. CATEGORIES OF RECORDS IN THE SYSTEM: treat them as permanent. DATES: This proposed action will be Full name; mailing address for home effective without further notice on SYSTEM MANAGER AND ADDRESS: and work; telephone numbers for home, March 1, 2010, unless comments are work, and mobile devices; e-mail Deputy Director Resources—IT, 1555 received which result in a contrary addresses for home and work; role and Wilson Boulevard, Suite 319, Wilson determination. field committee. Boulevard, Arlington, VA 22209–2405. ADDRESSES: You may submit comments, AUTHORITY FOR MAINTENANCE OF THE SYSTEM: NOTIFICATION PROCEDURE: identified by docket number and title, 38 U.S.C. 43, Uniformed Service Individuals seeking to determine by any of the following methods: Employment and Reemployment Rights whether information about themselves • Federal Rulemaking Portal: http:// Act; and DoD Directive 1250.01, is contained in this system should www.regulations.gov. Follow the National Committee for Employer address written inquiries to Deputy instructions for submitting comments. Support of the Guard and Reserve Director Resources—IT, 1555 Wilson • Mail: Federal Docket Management (NCESGR). Boulevard, Suite 319, Wilson System Office, 1160 Defense Pentagon, Boulevard, Arlington, VA 22209–2405. Washington, DC 20301–1160. PURPOSE(S): Individuals should provide their full Instructions: All submissions received To collect, validate status, and name and field committee. must include the agency name and maintain an official roster of individuals docket number for this Federal Register who are civilian volunteers and RECORD ACCESS PROCEDURE: document. The general policy for ombudsmen with the DoD Employer Individuals seeking access to comments and other submissions from Support of the Guard and Reserve information about themselves contained members of the public is to make these national, state and local committees and in this system should address written submissions available for public facilitate communication between inquiries to the Office of the Secretary viewing on the Internet at http://

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www.regulations.gov as they are or the occupation of Hiroshima and To the National Aeronautics and received without change, including any Nagasaki are already included in the Space Administration, Department of personal identifiers or contact Defense Threat Reduction Agency Justice, Department of Energy, information. Privacy Act system of records notice Department of Health and Human FOR FURTHER INFORMATION CONTACT: Ms. HDTRA 010, Nuclear Test Participants, Services, Department of Veterans Brenda Carter at (703) 767–1771. are not part of this effort. However, Affairs, Central Intelligence Agency, and inquiries referred from the Helpline Office of Management and Budget for SUPPLEMENTARY INFORMATION: The determined to fall within this category purposes of performing official activities Defense Threat Reduction Agency will be included in the system. or requirements related to the notices for systems of records subject to Department of Defense’s managing of the Privacy Act of 1974 (5 U.S.C. 552a), CATEGORIES OF RECORDS IN THE SYSTEM: the human radiation research program. as amended, have been published in the Individual’s name, Social Security The ‘Blanket Routine Uses’ published Federal Register and are available from Number (SSN) or service number, last the contact under FOR FURTHER at the beginning of DTRA’s compilation known or current address, occupational of systems notices apply to this system. INFORMATION CONTACT. information, dates and extent of The specific changes to the record involvement in an experiment, exposure POLICIES AND PRACTICES FOR STORING, systems being amended are set forth data, medical data, medical history of RETRIEVING, ACCESSING, RETAINING, AND below followed by the notice, as subject and relatives, case or study DISPOSING OF RECORDS IN THE SYSTEM: amended, published in its entirety. The control number and other STORAGE: proposed amendments are not within documentation of exposure to ionizing the purview of subsection (r) of the radiation or other agents. Paper records in files and on Privacy Act of 1974 (5 U.S.C. 552a), as The system contains information electronic storage media. amended, which requires the abstracted from historical records. RETRIEVABILITY: submission of a new or altered system Records include human radiation report. experimentation conducted from 1944 Records are retrieved by case number, name, study control number, Social Dated: January 26, 2010. to the present. However, experiments conducted after May 20, 1974 may be Security Number (SSN), or service Mitchell S. Bryman, number. Alternate OSD Federal Register Liaison covered by other Privacy Act systems of Officer, Department of Defense. records notices. SAFEGUARDS: Common and routine medical HDTRA 020 practices, such as established diagnostic Access to or disclosure of information and treatment methods involving is limited to authorized personnel. SYSTEM NAME: incidental exposures to ionizing Paper records and computer systems are Human Radiation Research Review radiation are not included within this located in areas accessible only by (August 9, 2005; 70 FR 46155). system. Examples of such methods are authorized personnel. Buildings are CHANGES: panorex radiographs for dental protected by security guards and intrusion alarm systems. Access to * * * * * evaluations and thyroid scans for the evaluation and treatment of hypo/ computer programs are controlled SYSTEM LOCATION: hyperthyroidism. through software applications that Delete entry and replace with require validation prior to use. AUTHORITY FOR MAINTENANCE OF THE SYSTEM: ‘‘ Defense Threat Reduction Information RETENTION AND DISPOSAL: Analysis Center, 1680 Texas St., SE., 45 CFR part 46, Protection of Human Kirtland AFB NM 87117–5669.’’ Subject; 10 U.S.C. 133, Under Secretary Files will be retained permanently. of Defense for Acquisitions, Technology They will be maintained in the custody * * * * * and Logistics; E.O. 12891, Committee on of the Defense Threat Reduction Agency HDTRA 020 Human Radiation Experiments; and E.O. until all claims have been settled and 9397 (SSN), amended. then transferred to the National SYSTEM NAME: Archives and Records Administration. Human Radiation Research Review. PURPOSE(S): For use by agency officials and SYSTEM MANAGER(S) AND ADDRESS: SYSTEM LOCATION: employees, or authorized contractors, Nuclear Test Personnel Review Defense Threat Reduction Information and other DoD components in the Program Manager, Defense Threat Analysis Center, 1680 Texas St., SE., preparation of the histories of human Reduction Agency, 8725 John J. Kirtland AFB NM 87117–5669. radiation experimentation; to conduct Kingman Road, Fort Belvoir, VA 22060– scientific studies or medical follow-up CATEGORIES OF INDIVIDUALS COVERED BY THE 6201. SYSTEM: programs; to respond to Congressional and Executive branch inquiries; and to NOTIFICATION PROCEDURE Individuals who were or may have : provide data or documentation relevant been the subject of tests involving Individuals seeking to determine to the exposure of individuals. ionizing radiation or other human- whether information about themselves subject experimentation; individuals ROUTINE USES OF RECORDS MAINTAINED IN THE is contained in this system of records who have inquired or provided SYSTEM, INCLUDING CATEGORIES OF USERS AND should address written inquiries to the information to the Department of Energy THE PURPOSES OF SUCH USES: Nuclear Test Personnel Review, Defense Helpline or the Department of Defense In addition to those disclosures Threat Reduction Agency, 8725 John J. Human Radiation Experimentation generally permitted under 5 U.S.C. Kingman Road, Fort Belvoir, VA 22060– Command Center concerning such 552a(b) of the Privacy Act of 1974, these 6201. testing. records contained therein may Individual should provide full name, Military and DoD civilian personnel specifically be disclosed outside the Social Security Number, or service who participated in atmospheric DoD as a routine use pursuant to 5 number, and if known, a case or study nuclear testing between 1945 and 1962 U.S.C. 552a(b)(3) as follows: control number.

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RECORD ACCESS PROCEDURES: Regulatory Field Office announces the the address listed below no later than 5 Individuals seeking access to records availability of a Regulatory Program p.m. about themselves contained in this Final EIS for the North Topsail Beach ADDRESSES: Copies of comments and system of records should address Shoreline Protection Project. The questions regarding the FEIS may be written inquiries to the Nuclear Test applicant, The Town of North Topsail addressed to: U.S. Army Corps of Personnel Review, Defense Threat Beach, is requesting Department of the Engineers, Wilmington District, Reduction Agency, 8725 John J. Army authorization, pursuant to Section Regulatory Division, ATTN: File Kingman Road, Fort Belvoir, VA 22060– 404 of the Clean Water Act and Section Number 2005–0344, 69 Darlington 6201. 10 of the Rivers and Harbor Act, to Avenue, Wilmington, NC 28403. Individuals should provide full name, protect residential homes and town Social Security Number, or service infrastructures by nourishing FOR FURTHER INFORMATION CONTACT: number, and if known, a case or study approximately 11.1 miles of beachfront Questions about the proposed action control number. via repositioning the New River Inlet and the FEIS can be directed to Mr. channel, implementing an inlet Mickey Sugg, Wilmington Regulatory CONTESTING RECORD PROCEDURES: management plan to control the Field Office, telephone: (910) 251–4811, The DTRA rules for accessing records positioning of the new inlet channel, facsimile (910) 251–4025, or e-mail at and for contesting contents and and utilizing an offshore borrow area. [email protected]. appealing initial agency determinations The new channel will be centrally SUPPLEMENTARY INFORMATION: The Town are published in DTRA Instruction located and the proposal will be to of North Topsail Beach, located along 5400.11B; 32 CFR part 318; or may be maintain that position, which the north-northeast 11.1 miles of obtained from the Nuclear Test essentially will be located Topsail Island in North Carolina, is Personnel Review, Defense Threat perpendicular to the adjacent shorelines proposing to nourish the oceanfront Reduction Agency, 8725 John J. of North Topsail Beach and Onslow shoreline and reposition New River Kingman Road, Fort Belvoir, VA 22060– Beach. The proposed sources of the Inlet channel as a means to address a 6201. material for the beach nourishment will severe erosion problem in order to RECORD SOURCE CATEGORIES: come from the repositioning of the inlet preserve the Town’s tax base, protect its Information will be collected directly and an identified offshore borrow area. infrastructure, and maintain its tourist from individuals, as well as extracted The projected amount of material oriented economy. The entire stretch of from historical records to include needed to initially nourish the the Town’s shoreline has experienced a personnel files and lists, training files, oceanfront shoreline is approximately considerable amount of erosion over the medical records, legal case files, 3.11 million cubic yards. The placement last 20 years due primarily to the impact radiation and other hazard exposure of beach fill along the Town’s shoreline of numerous tropical storms and records, occupational and industrial would result in the initial widening of hurricanes during the mid to late 1990’s accident records, employee insurance the beach by 50 to 100 feet. The and due to impacts of the uncontrolled claims, organizational and institutional widened beach would be maintained movement of the main ebb channel in administrative files, and related sources. through a program of periodic beach New River Inlet. The Town has stated The specific types of records used are nourishment events with the material that the shoreline erosion and residual determined by the nature of an extracted from the maintenance of the effects of the storms have left North individual’s exposure to radiation. newly relocated channel. All work will Topsail Beach in an extremely be accomplished using a hydraulic vulnerable position with regard to its EXEMPTIONS CLAIMED FOR THE SYSTEM: cutterhead dredge. The proposed project ocean front development and None. construction will be conducted in a five infrastructure. They have estimated that [FR Doc. 2010–1832 Filed 1–28–10; 8:45 am] phase approach to correspond with the over $250 million in property tax value BILLING CODE 5001–06–P Town’s anticipated annual generation of as well as roads, water and sewer lines, funds. and other utilities are at risk. The stated The ocean shoreline of the Town of overall goals and objectives of the DEPARTMENT OF DEFENSE North Topsail Beach encompasses project are the following: (1) Long-term approximately 11.1 miles along the stabilization of the oceanfront shoreline Department of the Army; Corps of northern end of Topsail Island. Of the located immediately south of New River Engineers 11.1 miles, approximately 7.25-miles of Inlet, (2) Provide short-term protection the shoreline in the project area, with to the 31 imminently threatened Availability of the Final Environmental the exception of two small areas, is residential structures over the next zero Impact Statement (FEIS) for the located within the Coastal Barrier to five years, (3) Provide long-term Relocation of New River Inlet Ebb Tide Resource System (CBRS), which protection to Town infrastructure and Channel Between North Topsail Beach prohibits the expenditure of Federal approximately 1,200 homes, (4) Reduce and Onslow Beach, and the Placement funds that would encourage or mitigate for property damage of the Dredged Material Along the development. associated with shoreline erosion along Ocean Shoreline of North Topsail The channel through New River Inlet 11.1 miles of oceanfront shoreline of Beach in Onslow County, NC has been maintained by the COE for North Topsail Beach, (5) Improve AGENCY: Department of the Army, U.S. commercial and recreational boating recreational opportunities along the Army Corps of Engineers, DoD. interest for over 55 years. The COE is Town’s oceanfront shoreline, (6) Ensure authorized to maintain the channel in ACTION: Notice of availability. material utilized for shore protection is the inlet to a depth of 6 feet mean low beach compatible, (7) Maintain the SUMMARY: In accordance with the water (mlw) over a width of 90 feet, Town’s tax base by protecting existing requirements of the National following the channel thalweg. development and infrastructure on the Environmental Policy Act (NEPA), the DATES: The Public commenting period oceanfront shoreline of North Topsail U.S. Army Corps of Engineers (COE) on the FEIS will end on March 1, 2010. Beach, and (8) Balance the needs of the Wilmington District, Wilmington Written comments must be received at human environment by minimizing and

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avoiding negative effects to natural corridor. Initial construction of the new for sand compatibility, winter resources. channel and subsequent maintenance construction period to occur during The project is divided into three events will result in a channel width of lower biological activities and to avoid sections; North, Central, and South. The 500 feet at ¥18 foot NAVD depth. The nesting turtle season, use of hydraulic North Section starts from the inlet new channel will start within the inlet cutterhead dredge and selected pipeline shoulder and runs approximately 21,000 gorge and will extend approximately corridors (which will be GPS) to avoid linear feet along the ocean shoreline. 3,500 linear feet southeast breaching impacts to hardbottom features, The Central Section is located both through the ocean bar. The amount of monitoring protocol during the north and south of NC Hwy 210/55 material to be extracted during the placement of dredge material onto the Bridge and is approximately 16,500 realignment of the channel is beach to comply with sand linear feet, while the South Section, approximately 635,800 cubic yards. The compatibility requirements, which is outside of the CBRS composite mean grain size of the implementation of a bird and sea turtle designation, includes approximately dredged material is approximately monitoring plan, funding of a research 20,320 linear feet of shoreline. The 0.32mm, compared to the native beach initiative for infaunal communities Town is proposing to undertake the material at 0.23mm. During additional conducted by Carteret County nourishment along the 11.1 miles of investigations, it was discovered that an Community College, implementation of oceanfront in a five phase approach estimated 91,400 cubic yards of the total an aerial habitat mapping effort for New within a dredging window between extracted material is not beach River Inlet to survey any short- and November 16 and March 31 of any year. compatible, consisting of clay and shell. long-term effects, and the execution of The first phase will include the This incompatible material will be a hardbottom monitoring plan which relocation of the inlet channel with the relocated during the dredging operation consists of a geophysical survey using dredged material being used to nourish to an existing dredge disposal island sidescan sonar, underwater approximately 9,000 linear feet of located at the intersection of the New investigations that includes habitat shoreline in the North Section. River and the Atlantic Intracoastal characterization and documentation, Construction timeline for Phase One Waterway, approximately 3.0 miles and sediment monitoring. will be within the 2010–2011 dredging north of the project site. Several alternatives have been window. Phase Two would take place To supplement the initial beach identified and evaluated through the during the 2012–2013 dredging window nourishment construction, material will scoping process, and further detailed using the offshore borrow source, and be dredged from an offshore borrow description of all alternatives is will nourish approximately 10,120 area. The borrow area is located directly disclosed in Section 3.0 of the Draft EIS. linear feet in the North Section. The off of the Central Section, and just The applicant’s preferred alternative is third phase will include an inlet southwest of the NC Highway 210 to relocate the main ocean bar channel channel maintenance event and the use bridge. Due to the presence of nearby to a southerly alignment, implement an of the offshore borrow material to place hardbottom areas, the site is irregularly inlet management plan, nourish material along approximately 11,500 shaped, with its closest point to the approximately 11.1 miles of ocean linear feet within the southern part of shoreline at approximately 0.4 miles shoreline, and to construct the work in the Central Section. This phase is and its furthest offshore point at 1.6 a five phase approach. proposed during the 2014–2015 miles. The site is approximately 482 The COE has initiated consultation dredging window. For Phase Four, acres in size and is divided into 16 cuts with the U.S. Fish and Wildlife Service offshore material will be used to nourish to separate coarse and fine materials. under the Endangered Species Act and 6,880 linear feet of shoreline in the The division of the borrow site into the Fish and Wildlife Coordination Act, north part of the Central Section and coarser and finer materials resulted in and with the National Marine Fisheries part of the southern tip of the North the use of the Point of Intercept Concept Service under the Magnuson-Stevens Section. This construction will take or ‘‘perched beached’’ for the placement Act and Endangered Species Act. place in the 2016–2017 dredging of material in areas where nearshore Additionally, the EIS assesses the window. The final phase of hard bottom communities were present. potential water quality impacts nourishment will encompass the entire For nourishment in areas within close pursuant to Section 401 of the Clean South Section, using the offshore proximity to nearshore hard bottoms, Water Act, and is coordinated with the borrow site and material from an inlet the beach profiles were designed to use North Carolina Division of Coastal channel maintenance event, and will be coarser material in order to reduce the Management (DCM) to insure the conducted in the 2018–2019 dredging fill toe of equilibrium. projects consistency with the Coastal window. The FEIS examines potential impacts Zone Management Act. The COE has Within the Town’s preferred to Essential Fish Habitat (EFH), coordinated closely with DCM in the alternative, the relocation of the inlet Threatened and Endangered Species, development of the EIS to ensure the channel is a main component in the and includes a comprehensive process complies with State protection of the North Section of the mitigation and monitoring plan and the Environmental Policy Act (SEPA) project area. The inlet management plan implementation of specific design requirements, as well as the NEPA includes the repositioning the main measures to minimize potential impacts requirements. The Final EIS has been ocean bar channel to a more southerly and to evaluate unforeseen effects of the designed to consolidate both NEPA and alignment along an approximate 150 projects. Several components in the SEPA processes to eliminate degree azimuth and maintaining that plan include incorporating the Point of duplications. position and alignment approximately Intercept design to reduce the Copies of the Final EIS will also be every four years. Maintenance events equilibrium beach profile for areas available on our regulatory homepage at will be initiated only when established where hardbottom habitats are in close http://www.saw.usace.army.mil/ thresholds have been triggered. These proximity of the shoreline, WETLANDS/. Locate North Topsail maintenance thresholds include the incorporation of a monitoring plan to Beach Shoreline Protection Project shoaling of 85% of the new channel verify the Point of Intercept design to under heading ‘‘News from the and/or when the thalweg migrates ensure its effectiveness, compliance to Regulatory Program’’, and click on outside of the constructed 500-foot wide North Carolina Sediment Criteria Rule ftp.coastalplanning.net. Type the

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username: ntb and password: ftp4me to SUPPLEMENTARY INFORMATION: Discharges (9) Nacogdoches City Hall, 202 East pull up the document. of fill material into waters of the United Pilar Street, Nacogdoches, TX 75961. States are regulated under Section 404 Brenda S. Bowen, (10) Rusk City Hall, 205 South Main of the Clean Water Act, with the St., Rusk, TX 75785. Army Federal Register Liaison Officer. permitting responsibility administered [FR Doc. 2010–1819 Filed 1–28–10; 8:45 am] by the USACE. The proposed project (11) Tyler City Hall, 212 North Bonner BILLING CODE 3720–58–P must also address environmental Avenue, Tyler, TX 75702. impacts relative to the Clean Air Act, After the public comment period Clean Water Act, Endangered Species ends, the USACE will consider all DEPARTMENT OF DEFENSE Act and the Fish and Wildlife comments received, revise the DEIS as Department of the Army; Corps of Coordination Act (FWCA). In appropriate, and issue a Final Engineers accordance with the NEPA, the DEIS Environmental Impact Statement. evaluates practicable alternatives for the Stephen L Brooks, Availability of a Draft Environmental USACE’s decision making process. As Impact Statement To Consider required by NEPA, the USACE also Chief, Regulatory Branch. Issuance of a Department of the Army analyzes the ‘‘no action’’ alternative as a [FR Doc. 2010–1820 Filed 1–28–10; 8:45 am] Permit Pursuant to Section 404 of the baseline for gauging potential impacts. BILLING CODE 3720–58–P Clean Water Act for the Angelina & As part of the public involvement Neches River Authority’s Proposal to process, notice is hereby given by the Construct Lake Columbia, a Proposed USACE Fort Worth District of an DEPARTMENT OF DEFENSE 10,133-Surface-Acre Water Supply informal public information meeting Reservoir in Cherokee and Smith (open house format) to be held at the Department of the Army Counties, TX Norman Activity Center, 526 East Commerce Street, Jacksonville, TX, from Availability for Non-Exclusive, AGENCY: Department of the Army, U.S. 5 to 7:30 p.m. on March 1, 2010. This Exclusive, or Partially Exclusive Army Corps of Engineers, DoD. meeting will afford interested parties Licensing of U.S. Provisional Patent Application Concerning Blast Wave ACTION: Notice of availability. the opportunity to engage in a dialog with the USACE regarding the EIS Sensor SUMMARY: In accordance with the process and the analyses performed to AGENCY: Department of the Army, DoD. requirements of the National date. The USACE Fort Worth District Environmental Policy Act (NEPA), the will also be holding a formal public ACTION: Notice. U.S. Army Corps of Engineers (USACE) hearing to be held at the Norman Activity Center, 526 East Commerce Fort Worth District has prepared a Draft SUMMARY: Announcement is made of the Environmental Impact Statement (DEIS). Street, Jacksonville, TX, from 5 to 7:30 availability for licensing of the p.m. on March 2, 2010. The public This DEIS evaluates potential impacts to invention set forth in U.S. Provisional hearing will allow participants the the natural, physical and human Patent Application Serial No. 61/ opportunity to comment on the DEIS environment as a result of the Angelina 292,095 entitled ‘‘Blast Wave Sensor,’’ prepared for the proposed Lake & Neches River Authority’s proposal to filed January 4, 2010. The United States Columbia. Written comments should be construct Lake Columbia. The USACE Government, as represented by the sent to Mr. Brent Jasper (see ADDRESSES). regulates this proposed project pursuant Secretary of the Army, has rights to this The comments are due no later than 60 to Section 404 of the Clean Water Act. invention. The proposed activity would involve days from the date of publication of this the discharge of dredged and fill notice. Copies of the DEIS may be ADDRESSES: Commander, U.S. Army material into waters of the United States obtained by contacting USACE Fort Medical Research and Materiel associated with the proposed Worth District Regulatory Branch at Command, ATTN: Command Judge construction of Lake Columbia. (817) 886–1731 or printed from the Fort Advocate, MCMR–JA, 504 Scott Street, Worth District USACE internet home Fort Detrick, Frederick, MD 21702– DATES: Submit comments by March 30, page at http://www.swf.usace.army.mil. 5012. 2010. An informal public information Copies of the DEIS are also available meeting (open house format) regarding for inspection at the locations identified FOR FURTHER INFORMATION CONTACT: For this DEIS will be held on March 1, 2010, below: patent issues, Ms. Elizabeth Arwine, and a formal public hearing regarding (1) Jacksonville Public Library, 502 Patent Attorney, (301) 619–7808. For this DEIS will be held on March 2, 2010 South Jackson St., Jacksonville, TX licensing issues, Dr. Paul Mele, Office of (see SUPPLEMENTARY INFORMATION). 76766. Research and Technology Assessment, ADDRESSES: Send written comments and (2) Kurth Memorial Library, 706 (301) 619–6664, both at telefax (301) suggestions concerning this proposal to South Raguet St., Lufkin, TX 75904. 619–5034. (3) Nacogdoches Public Library, 1112 Mr. Brent Jasper, Regulatory Project SUPPLEMENTARY INFORMATION: The Manager, Regulatory Branch, CESWF– North Street, Nacogdoches, TX 75961. (4) Rusk County Library, 106 East invention relates to blast wave sensors PER–R, U.S. Army Corps of Engineers, and their use to detect blast induced Fort Worth District, P.O. Box 17300, Main St., Henderson, TX 75652. (5) Tyler Public Library, 201 South pressure changes, and, in particular, a Fort Worth, TX 76102–0300 or via blast wave over pressure threshold. The e-mail: [email protected]. College Avenue, Tyler, TX 75702. (6) Henderson City Hall, 400 West invention may be used to measure blast Requests to be placed on the mailing list Main Street, Henderson, TX 75652. wave exposure. should also be sent to this address. (7) Jacksonville City Hall, 301 East Brenda S. Bowen, FOR FURTHER INFORMATION CONTACT: Mr. Commerce Street, Jacksonville, TX Brent Jasper, Regulatory Project 75766. Army Federal Register Liaison Officer. Manager at (817) 886–1733 or via (8) Lufkin City Hall, 300 East [FR Doc. 2010–1818 Filed 1–28–10; 8:45 am] e-mail: [email protected]. Shepherd Avenue, Lufkin, TX 75901. BILLING CODE 3710–08–P

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DEFENSE NUCLEAR FACILITIES 17th Street, NW., Room 10222, New consolidate, if there is insufficient space SAFETY BOARD Executive Office Building, Washington, on the Federal Consolidation Loan DC 20503, be faxed to (202) 395–5806 or Application and Promissory Note); (2) Draft Revised Strategic Plan for FY send e-mail to Request to Add Loans (serves as the 2010–2015 [email protected]. means by which a borrower may add other loans to an existing Federal AGENCY: Defense Nuclear Facilities SUPPLEMENTARY INFORMATION: Section Safety Board. 3506 of the Paperwork Reduction Act of Consolidation Loan within a specified time period); and (3) Loan Verification ACTION: Notice. 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Certificate (serves as the means by SUMMARY: In accordance with OMB Budget (OMB) provide interested which a consolidating lender obtains Circular No. A–11, the Defense Nuclear Federal agencies and the public an early the information needed to pay off the Facilities Safety Board is soliciting opportunity to comment on information holders of the loans that the borrower comments from all interested and collection requests. OMB may amend or wants to consolidate). potentially affected parties on its draft waive the requirement for public Requests for copies of the information revised strategic plan. The Board will consultation to the extent that public collection submission for OMB review consider all comments received as a participation in the approval process may be accessed from http:// result of this outreach effort. The draft would defeat the purpose of the edicsweb.ed.gov, by selecting the plan is available for review on the information collection, violate State or ‘‘Browse Pending Collections’’ link and Board’s Web site—http:// Federal law, or substantially interfere by clicking on link number 4175. When www.dnfsb.gov. Comments may be sent with any agency’s ability to perform its you access the information collection, to the General Manager at statutory obligations. The Acting click on ‘‘Download Attachments ‘‘to [email protected] or the address Direction, Information Collection view. Written requests for information below. The Board will accept comments Clearance Division, Regulatory should be addressed to U.S. Department through March 5, 2010. Information Management Services, of Education, 400 Maryland Avenue, DATES: Comments will be accepted Office of Management, publishes that SW., LBJ, Washington, DC 20202–4537. during the period February 1, 2010 notice containing proposed information Requests may also be electronically through March 5, 2010. collection requests prior to submission mailed to the Internet address [email protected] or faxed to 202– ADDRESSES: Send comments concerning of these requests to OMB. Each 401–0920. Please specify the complete this notice to: Defense Nuclear Facilities proposed information collection, title of the information collection when Safety Board, 625 Indiana Avenue, NW., grouped by office, contains the making your request. Suite 700, Washington, DC 20004–2001. following: (1) Type of review requested, Comments regarding burden and/or FOR FURTHER INFORMATION CONTACT: Mr. e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection activity requirements Brian Grosner, General Manager, 202– should be electronically mailed to 694–7060. the collection; (4) Description of the need for, and proposed use of, the [email protected]. Individuals who SUPPLEMENTARY INFORMATION: This draft use a telecommunications device for the strategic plan will replace the Board’s information; (5) Respondents and frequency of collection; and (6) deaf (TDD) may call the Federal FY 2003–2009 Strategic Plan, dated Information Relay Service (FIRS) at 1– November 17, 2003. Reporting and/or Recordkeeping burden. OMB invites public comment. 800–877–8339. Dated: January 25, 2010. [FR Doc. 2010–1484 Filed 1–28–10; 8:45 am] Dated: January 21, 2010. John E. Mansfield, BILLING CODE 4000–01–P Kate Mullan, Vice Chairman. Acting Director, Information Collection [FR Doc. 2010–1803 Filed 1–28–10; 8:45 am] Clearance Division, Regulatory Information DEPARTMENT OF EDUCATION BILLING CODE 3670–01–P Management Services, Office of Management. Federal Student Aid National Assessment Governing Board; Meeting DEPARTMENT OF EDUCATION Type of Review: Extension. Title: Federal Family Education Loan AGENCY: Department of Education, Submission for OMB Review; (FFEL) Program: Federal Consolidation National Assessment Governing Board. Comment Request Loan Application and Promissory Note ACTION: Cancellation of public hearing. and Related Documents. AGENCY: Department of Education. Frequency: On Occasion. SUMMARY: The National Assessment SUMMARY: The Acting Director, Affected Public: Individuals or Governing Board published a document Information Collection Clearance households. in the Federal Register of January 15, Division, Regulatory Information Reporting and Recordkeeping Hour 2010, FR DOCID: fr15ja10–47, Volume Management Services, Office of Burden: 75, Number 10 [pages 2529–2530] Management invites comments on the Responses: 84,705. announcing a public hearing on January submission for OMB review as required Burden Hours: 117,527. 28, 2010 to obtain comment on the draft by the Paperwork Reduction Act of Abstract: The Federal Consolidation Technological Literacy Assessment 1995. Loan Application and Promissory Note Framework for the National Assessment DATES: Interested persons are invited to serves as the means by which a of Educational Progress. The public submit comments on or before March 1, borrower applies for a Federal hearing is hereby cancelled. 2010. Consolidation Loan and promises to Written testimony may be sent by ADDRESSES: Written comments should repay the loan. Related documents mail, fax or e-mail for receipt at the be addressed to the Office of included as part of this collection are (1) following address, no later than January Information and Regulatory Affairs, Additional Loan Listing Sheet (provides 28, 2010. Attention: Education Desk Officer, additional space for a borrower to list National Assessment Governing Board, Office of Management and Budget, 725 loans that he or she wishes to 800 North Capitol Street, NW.—Suite

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825, Washington, DC 20002. comments, data, and information with Washington, DC 20585–0103. Attention: Tessa Regis. FAX: (202) respect to the Daikin Petition, and Telephone: (202) 586–7432 or (202) 357–6945. E-mail: [email protected]. announces the grant of an interim 586–5827, respectively. E-mail: FOR FURTHER INFORMATION CONTACT: waiver to Daikin from the existing DOE [email protected] or Munira Mwalimu at (202) 357–6906. test procedure for the subject [email protected]. Electronic Access to This Document: commercial water-source, multi-split air SUPPLEMENTARY INFORMATION: You may view this document, as well as conditioners and heat pumps. all other documents of this Department DATES: DOE will accept comments, data, I. Background and Authority published in the Federal Register, in and information with respect to the Title III of the Energy Policy and text or Adobe Portable Document Daikin Petition until, but no later than Conservation Act (EPCA) sets forth a Format (PDF) on the Internet at the March 1, 2010. variety of provisions concerning energy following site: http://www.ed.gov/news/ ADDRESSES: You may submit comments, efficiency, including Part A of Title III, fedregister/index.html. identified by case number ‘‘CAC–026,’’ which establishes the ‘‘Energy To use PDF you must have Adobe by any of the following methods: Conservation Program for Consumer Acrobat Reader, which is available free • Federal eRulemaking Portal: http:// Products Other Than Automobiles.’’ (42 at this site. If you have questions about www.regulations.gov. Follow the U.S.C. 6291–6309) Similar to the using PDF, call the U.S. Government instructions for submitting comments. program in Part A, Part A–1 of Title III Printing Office (GPO), toll free at 1–888– • E-mail: provides for an energy efficiency 293–6498; or in the Washington, DC, [email protected]. program titled, ‘‘Certain Industrial area at (202) 512–1530. Include either the case number [CAC– Equipment,’’ which includes Note: The official version of this document 026], and/or ‘‘Daikin Petition’’ in the commercial air conditioning equipment, is the document published in the Federal subject line of the message. package boilers, water heaters, and other Register. Free Internet access to the official • Mail: Ms. Brenda Edwards, U.S. types of commercial equipment. (42 edition of the Federal Register and the Code Department of Energy, Building U.S.C. 6311–6317) of Federal Regulations is available on GPO Technologies Program, Mailstop EE–2J/ Today’s notice involves commercial Access at: http://www.gpoaccess.gov/nara/ 1000 Independence Avenue, SW., index.html. equipment under Part A–1. Part A–1 Washington, DC 20585–0121. specifically includes definitions (42 Dated: January 25, 2010. Telephone: (202) 586–2945. Please U.S.C. 6311), test procedures (42 U.S.C. Munira Mwalimu, submit one signed original paper copy. 6314), labeling provisions (42 U.S.C. • Hand Delivery/Courier: Ms. Brenda Operations Officer, U. S. Department of 6315), energy conservation standards Education, National Assessment Governing Edwards, U.S. Department of Energy, (42 U.S.C. 6313), and the authority to Board. Building Technologies Program, 950 require information and reports from [FR Doc. 2010–1798 Filed 1–28–10; 8:45 am] L’Enfant Plaza, SW., Suite 600, manufacturers (42 U.S.C. 6316). With Washington, DC 20024. Please submit BILLING CODE 4000–01–P respect to test procedures, Part A–1 one signed original paper copy. authorizes the Secretary of Energy (the Docket: For access to the docket to Secretary) to prescribe test procedures review the background documents DEPARTMENT OF ENERGY that are reasonably designed to produce relevant to this matter, you may visit the results which measure energy [Case No. CAC–026] U.S. Department of Energy, 950 L’Enfant efficiency, energy use, and estimated Plaza, SW., (Resource Room of the annual operating costs, and that are not Energy Conservation Program for Building Technologies Program), unduly burdensome to conduct. (42 Certain Industrial Equipment: Washington, DC 20024; (202) 586–2945, U.S.C. 6314(a)(2)) Publication of the Petition for Waiver between 9 a.m. and 4 p.m., Monday For commercial package air- From Daikin AC (Americas), Inc. and through Friday, except Federal holidays. conditioning and heating equipment, Granting of the Interim Waiver From Available documents include the EPCA provides that ‘‘the test procedures the Department of Energy Commercial following items: (1) This notice; (2) shall be those generally accepted Package Water-Source Air Conditioner public comments received; (3) the industry testing procedures or rating and Heat Pump Test Procedure petition for waiver and application for procedures developed or recognized by AGENCY: Office of Energy Efficiency and interim waiver; and (4) prior DOE the Air-Conditioning and Refrigeration Renewable Energy, Department of rulemakings regarding similar central Institute [ARI] or by the American Energy. air conditioning and heat pump Society of Heating, Refrigerating and equipment. Please call Ms. Brenda ACTION: Notice of petition for waiver, Air-Conditioning Engineers [ASHRAE], Edwards at the above telephone number granting of application for interim as referenced in ASHRAE/IES Standard for additional information regarding waiver, and request for comments. 90.1 and in effect on June 30, 1992.’’ (42 visiting the Resource Room. U.S.C. 6314(a)(4)(A)) Under 42 U.S.C. SUMMARY: This notice announces receipt FOR FURTHER INFORMATION CONTACT: Dr. 6314(a)(4)(B), the statute further directs of and publishes a petition for waiver Michael G. Raymond, U.S. Department the Secretary to amend the test from Daikin AC (Americas), Inc. of Energy, Building Technologies procedure for a covered commercial (Daikin). The petition for waiver Program, Mail Stop EE–2J, Forrestal product if the industry test procedure is (hereafter ‘‘petition’’) requests a waiver Building, 1000 Independence Avenue, amended, unless the Secretary from the U.S. Department of Energy SW., Washington, DC 20585–0121. determines, by rule and based on clear (DOE) test procedure applicable to Telephone: (202) 586–9611. E-mail: and convincing evidence, that such a commercial package water-source [email protected]. modified test procedure does not meet central air conditioners and heat pumps. Ms. Francine Pinto or Mr. Michael the statutory criteria set forth in 42 The petition is specific to the Daikin Kido, U.S. Department of Energy, Office U.S.C. 6314(a)(2) and (3). variable capacity VRV–WIII of the General Counsel, Mail Stop GC– On December 8, 2006, DOE published (commercial) multi-split heat pumps. 72, Forrestal Building, 1000 a final rule adopting test procedures for Through this document, DOE solicits Independence Avenue, SW., commercial package air-conditioning

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and heating equipment, effective the applicant will experience economic commercial multi-split products January 8, 2007. 71 FR 71340. DOE hardship if the application for interim manufactured by Mitsubishi, Samsung, adopted the International Organization waiver is denied, if it appears likely that Fujitsu and Sanyo. As indicated above, for Standardization (ISO) Standard the petition for waiver will be granted, DOE has already granted waivers for 13256–1–1998, ‘‘Water-source heat and/or the Assistant Secretary these products. The VRV–WIII system pumps—Testing and rating for determines that it would be desirable for can be connected to the complete range performance—Part 1: Water-to-air and public policy reasons to grant of Daikin ceiling mounted, concealed, brine-to-air heat pumps,’’ for small immediate relief pending a ducted, corner, cassette, wall-mounted commercial package water-source heat determination on the petition for and floor-mounted and other indoor fan pumps with capacities < 135,000 British waiver. 10 CFR 431.401(e)(3). An coil units. Each of these units has nine thermal units per hour (Btu/h). Id. at interim waiver remains in effect for a different indoor static pressure ratings 71371. Pursuant to this rulemaking, period of 180 days or until DOE issues as standard, with additional pressure DOE’s regulations under Title 10 of the its determination on the petition for ratings available. There are over one Code of Federal Regulations (10 CFR) waiver, whichever occurs first, and it million combinations possible with the 431.95(b)(2) incorporate by reference may be extended by DOE for an Daikin VRV–WIII system. Accordingly, ARI Standard 340/360–2004, and Table additional 180 days, if necessary. 10 Daikin requested that DOE grant a 1 to 10 CFR 431.96 directs CFR 431.401(e)(4). waiver from the applicable test manufacturers of commercial package procedures for its VRV–WIII product II. Petition for Waiver water-source air conditioning and designs, until a suitable test method can heating equipment to use the On November 9, 2009, Daikin filed a be prescribed. appropriate procedure when measuring petition for waiver from the test III. Application for Interim Waiver energy efficiency of those products. The procedures at 10 CFR 431.96 applicable cooling capacities of Daikin’s to commercial package water-source On November 9, 2009, in addition to commercial VRV–WIII multi-split heat central air conditioners and heat pumps, its petition for waiver, Daikin submitted pump products at issue in the waiver as well as an application for interim to DOE an application for interim petition filed by Daikin range from waiver. The capacities of the Daikin waiver. DOE determined that Daikin’s 72,000 Btu/hr to 252,000 Btu/hr. The VRV–WIII multi-split heat pumps range application for interim waiver does not Daikin products with capacities greater from 72,000 Btu/hr to 252,000 Btu/hr, provide sufficient market, equipment than 135,000 Btu/hr are not covered by making the applicable test procedure for price, shipments, and other this waiver because there is no DOE test Daikin’s commercial VRV–WIII multi- manufacturer impact information to procedure for water-source heat pumps split heat pumps with capacities less permit DOE to evaluate the economic with capacities greater than 135,000 than 135,000 Btu/hr ISO Standard hardship Daikin might experience Btu/hr. 13256–1 (1998), which manufacturers absent a favorable determination on its DOE’s regulations for covered are directed to use pursuant to Table 1 application for interim waiver. DOE products permit a person to seek a of 10 CFR 431.96. understands, however, that absent an waiver from the test procedure Daikin seeks a waiver from the interim waiver, Daikin’s products would requirements for covered commercial applicable test procedures under 10 CFR not be tested and rated for energy equipment if at least one of the 431.96 on the grounds that its VRV–WIII consumption on an equal basis with following conditions is met: (1) The multi-split heat pumps contain design equivalent products where DOE petitioner’s basic model contains one or characteristics that prevent testing previously granted waivers, placing more design characteristics which according to the current DOE test Daikin at a competitive disadvantage. prevent testing according to the procedures. Specifically, Daikin asserts Furthermore, DOE has determined that prescribed test procedures; or (2) the that the two primary factors that prevent it appears likely that Daikin’s Petition prescribed test procedures may evaluate testing of its multi-split variable speed for Waiver will be granted and that is the basic model in a manner so products are the same factors stated in desirable for public policy reasons to unrepresentative of its true energy the waivers that DOE granted to grant Daikin immediate relief pending a consumption as to provide materially Mitsubishi Electric & Electronics USA, determination on the petition for inaccurate comparative data. 10 CFR Inc. (Mitsubishi) and other waiver. DOE believes that it is likely 431.401(a)(1). Petitioners must include manufacturers for similar lines of Daikin’s petition for waiver for the new in their petition any alternate test commercial multi-split air-conditioning VRV–WIII multi-split models will be procedures known to the petitioner to systems: granted because, as noted above, DOE evaluate the basic model in a manner • Testing laboratories cannot test has previously granted a number of representative of its energy products with so many indoor units; waivers for similar product designs.1 consumption. 10 CFR 431.401(b)(1)(iii). and The two principal reasons supporting The Assistant Secretary for Energy • There are too many possible the grant of the previous waivers also Efficiency and Renewable Energy combinations of indoor and outdoor apply to Daikin’s VRV–WIII products: (Assistant Secretary) may grant a waiver units to test. 69 FR 52660 (August 27, (1) Test laboratories cannot test subject to conditions, including 2004) (Mitsubishi waiver); 72 FR 17528 products with so many indoor units; adherence to alternate test procedures. (April 9, 2007) (Mitsubishi waiver); 72 and (2) it is impractical to test so many 10 CFR 431.401(f)(4). Waivers remain in FR 71387 (Dec. 17, 2007) (Samsung combinations of indoor units with each effect pursuant to the provisions of 10 waiver); 72 FR 71383 (Dec. 17, 2007) outdoor unit. In addition, DOE believes CFR 431.401(g). (Fujitsu waiver); 73 FR 39680 (July 10, that similar products should be tested The waiver process also permits 2008) (Daikin waiver); 74 FR 15955 parties submitting a petition for waiver (April 8, 2009) (Daikin waiver); 74 FR 1 DOE notes that it has also previously granted to file an application for interim waiver 16193 (April 9, 2009) (Sanyo waiver); 74 interim waivers to Fujitsu (70 FR 5980 (Feb. 4, of the applicable test procedure FR 16373 (April 10, 2009) (Daikin 2005)), Samsung (70 FR 9629 (Feb. 28, 2005)), Mitsubishi (72 FR 17533 (April 9, 2007)), and requirements. 10 CFR 431.401(a)(2). The waiver) Daikin (72 FR 35986 (July 2, 2007)), for comparable Assistant Secretary will grant an interim The VRV–WIII systems have commercial multi-split air conditioners and heat waiver request if it is determined that operational characteristics similar to the pumps.

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and rated for energy consumption on a Æ FXZQ Series recessed cassette waiver to Daikin, DOE is including an comparable basis. For these same indoor units with nominally rated alternate test procedure similar to those reasons, DOE also determined that it is capacities of 7,000, 9,000, 12,000, granted to Mitsubishi for its R22 and desirable for public policy reasons to 18,000 and 24,000 Btu/hr. R410A products. DOE plans to consider grant immediate relief pending a Æ FXFQ Series recessed cassette the same alternate test procedure in the determination on the petition for indoor units with nominally rated context of the subsequent Decision and waiver. capacities of 12,000, 18,000, 24,000, Order pertaining to Daikin’s petition for Therefore, it is ordered that: 30,000 and 36,000 Btu/hr. waiver. Use of this alternate test The application for interim waiver Æ FXHQ Series ceiling suspended procedure will allow Daikin to test and filed by Daikin is hereby granted for indoor units with nominally rated make energy efficiency representations Daikin’s VRV–WIII water-source multi- capacities of 12,000, 24,000 and 36,000 for its VRV–WIII products. DOE has split heat pumps, subject to the Btu/hr. applied a similar alternate test specifications and conditions below. This interim waiver is conditioned procedure to other waivers for similar 1. Daikin shall not be required to test upon the presumed validity of residential and commercial central air or rate its VRV–WIII commercial water- statements, representations, and conditioners and heat pumps source multi-split products on the basis documents provided by the petitioner. manufactured by Mitsubishi (72 FR of the existing test procedure under 10 DOE may revoke or modify this interim 17528, April 9, 2007); Samsung (72 FR CFR 431.96, which incorporates by waiver at any time upon a 71387, Dec. 17, 2007); Fujitsu (72 FR reference ISO Standard 13256–1 (1998). determination that the factual basis 71383, Dec. 17, 2007); Daikin (73 FR 2. Daikin shall be required to test and underlying the petition for waiver is 39680, July 10, 2008); Daikin (74 FR rate its VRV–WIII commercial water- incorrect, or upon a determination that 15955, April 8, 2009); Sanyo (74 FR source multi-split products according to the results from the alternate test 16193, April 9, 2009); and Daikin (74 FR the alternate test procedure as set forth procedure are unrepresentative of the 16373, April 10, 2009). in section IV(3), ‘‘Alternate test basic models’ true energy consumption The alternate test procedure procedure.’’ characteristics. developed in conjunction with the The interim waiver applies to the IV. Alternate Test Procedure Mitsubishi waiver permits Daikin to following basic model groups: designate a ‘‘tested combination’’ for VRV–WIII Series Outdoor Units: Responding to two recent petitions for • each model of outdoor units. The indoor Models RWEYQ72PTJU, waiver from Mitsubishi, DOE specified units designated as part of the tested RWEYQ84PTJU an alternate test procedure to provide a combination must meet specific • Compatible Indoor Units For Above basis from which Mitsubishi could test requirements. For example, the tested Listed Outdoor Units: and make valid energy efficiency Æ combination must have from two to five FXAQ Series wall mounted indoor representations for its R410A CITY units with nominally rated capacities of indoor units so that it can be tested in MULTI products, as well as for its R22 available test facilities. The tested 7,000, 9,000, 12,000, 18,000 and 24,000 multi-split products. Alternate test Btu/hr. combination must be tested according to Æ procedures related to the Mitsubishi the applicable DOE test procedure, as FXLQ Series floor mounted indoor petitions were published in the Federal units with nominally rated capacities of modified by the provisions of the Register on April 9, 2007. See 72 FR alternate test procedure as set forth 12,000, 18,000 and 24,000 Btu/hr. 17528 and 72 FR 17533. For reasons Æ FXNQ Series concealed floor below. The alternate test procedure also similar to those published in these prior mounted indoor units with nominally allows manufacturers of such products notices, DOE believes that an alternate rated capacities of 12,000, 18,000 and to make valid and consistent test procedure is appropriate in this 24,000 Btu/hr. representations of energy efficiency for Æ FXDQ Series low static ducted instance. their air-conditioning and heat pump indoor units with nominally rated DOE understands that existing testing products. capacities of 7,000, 9,000, 12,000, facilities have a limited ability to test DOE plans to consider inclusion of 18,000 and 24,000 Btu/hr. multiple indoor units simultaneously, the following waiver language in the Æ FXSQ Series medium static ducted and the large number of possible Decision and Order for Daikin’s VRV– indoor units with nominally rated combinations of indoor and outdoor WIII commercial multi-split water- capacities of 7,000, 9,000, 12,000, units for some variable refrigerant flow source heat pump models: 18,000, 24,000, 30,000, 36,000 and zoned systems makes it impractical for (1) The ‘‘Petition for Waiver’’ filed by 48,000 Btu/hr. manufacturers to test. We further note Daikin Electronics, Inc. is hereby Æ FXMQ–M Series high static ducted that subsequent to the waiver that DOE granted as set forth in the paragraphs indoor units with nominally rated granted for Mitsubishi’s R22 multi-split below. capacities of 30,000, 36,000, 48,000, products, ARI formed a committee to (2) Daikin shall not be required to test 72,000 and 96,000 Btu/hr. discuss the issue and to work on or rate its VRV–WIII variable capacity Æ FXMQ–P Series high static ducted developing an appropriate testing multi-split heat pump products listed indoor units with nominally rated protocol for variable refrigerant flow above in section III, on the basis of the capacities of 7,000, 9,000, 12,0000, systems. The committee has developed existing test procedures, but shall be 18,000, 24,000, 30,000, 36,000 and a test procedure which has been required to test and rate such products 48,000 Btu/hr. adopted by AHRI–AHRI Standard according to the alternate test procedure Æ FXMQ–MF Series Outdoor Air 1230—2009: ‘‘Performance Rating of as set forth in paragraph (3). Processing indoor units with nominally Variable Refrigerant Flow (VRF) Multi- (3) Alternate test procedure. rated capacities of 48,000, 72,000 and Split Air-Conditioning and Heat Pump (A) Daikin shall be required to test the 96,000 Btu/hr. Equipment.’’ This test procedure has not products listed in section III above Æ FXTQ–P Series Vertical Air yet been adopted by ASHRAE 90.1, so according to the test procedures for Handler indoor units with nominally it cannot yet be considered for adoption central air conditioners and heat pumps rated capacities of 12,000, 18,000, by DOE. prescribed by DOE at 10 CFR 431.96, 24,000, 30,000, 36,000, 42,000, 48,000 Therefore, as discussed below, as a except that Daikin shall test a ‘‘tested and 54,000 Btu/hr. condition for granting this interim combination’’ selected in accordance

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with the provisions of subparagraph (B) outdoor unit and which is consistent deleted. DOE will make its own of this paragraph. For every other with either of the two following determination about the confidential system combination using the same methods: status of the information and treat it outdoor unit as the tested combination, (i) Representation of non-tested according to its determination. Daikin shall make representations combinations according to an Issued in Washington, DC, on January 22, concerning the VRV–WIII products Alternative Rating Method (ARM) 2010. covered in this waiver according to the approved by DOE; or Cathy Zoi, provisions of subparagraph (C) below. (ii) Representation of non-tested combinations at the same energy Assistant Secretary, Energy Efficiency and (B) Tested combination. The term Renewable Energy. ‘‘tested combination’’ means a sample efficiency level as the tested Daikin AC (Americas), Inc., 1645 basic model comprised of units that are combination with the same outdoor Wallace Drive, Suite 110, Carrollton, production units, or are representative unit. TX 75006 USA. TEL: 866–4DAIKIN, of production units, of the basic model V. Summary and Request for Comments FAX: 972–245–1038, being tested. For the purposes of this http://www.daikinac.com waiver, the tested combination shall Through today’s notice, DOE have the following features: announces receipt of the Daikin petition November 9, 2009. (1) The basic model of a variable for waiver from the test procedures Ms. Catherine Zoi, Assistant Secretary refrigerant flow system used as a tested applicable to Daikin’s VRV–WIII for Energy Efficiency and Renewable combination shall consist of one commercial multi-split heat pump Energy, U.S. Department of Energy, outdoor unit, with one or more products. For the reasons articulated 1000 Independence Ave., SW., compressors, that is matched with above, DOE also grants Daikin an Washington, DC 20585–0121. between 2 and 5 indoor units; for multi- interim waiver from those procedures. As part of this notice, DOE is publishing Re: Petition for Waiver of Test split systems, each of these indoor units Procedure shall be designed for individual Daikin’s petition for waiver in its operation. entirety. The petition contains no Dear Assistant Secretary Zoi: (2) The indoor units shall— confidential information. Furthermore, Daikin AC (Americas) Inc. (DACA) (i) Represent the highest sales model today’s notice includes an alternate test respectfully petitions the Department of family or another indoor model family procedure that Daikin is required to Energy (DOE) pursuant to 10 CFR if the highest sales model family does follow as a condition of its interim 431.401(a)(1) (2009) for a waiver of the not provide sufficient capacity (see ii); waiver and that DOE is considering test procedures applicable to (ii) Together, have a nominal cooling including in its subsequent Decision commercial air conditioners and heat capacity that is between 95% and 105% and Order. In this alternate test pumps, as established in 10 CFR 431.96 of the nominal cooling capacity of the procedure, DOE is defining a ‘‘tested (2009) and ARI Standard 340/360– outdoor unit; combination’’ that Daikin could use in 2004 2 and ISO Standard 13256–1 (iii) Not, individually, have a nominal lieu of testing all retail combinations of (1998) 3, for the Daikin VRV–WIII cooling capacity that is greater than its VRV–WIII multi-split heat pump system. The specific models for which 50% of the nominal cooling capacity of products. DACA requests this waiver in the Daikin the outdoor unit; DOE is interested in receiving VRV–WIII product class are listed below (iv) Operate at fan speeds that are comments on the issues addressed in in this Petition. DACA seeks a waiver consistent with the manufacturer’s this notice. Pursuant to 10 CFR from the existing central air conditioner specifications; and 431.401(d), any person submitting and central air conditioning heat pump (v) Be subject to the same minimum written comments must also send a test procedure for the listed Daikin external static pressure requirement copy of such comments to the VRV–WIII systems because the basic while being configurable to produce the petitioner. The contact information for models contain design criteria that same static pressure at the exit of each the petitioner is: Mr. Akinori Atarashi, prevent testing of the basic models outlet plenum when manifolded as per President, Daikin AC (Americas), Inc., according to the prescribed test section 2.4.1 of 10 CFR Part 430, subpart 1645 Wallace Drive, Suite 110, procedures. We are simultaneously B, appendix M. Carrollton, Texas 75006. All requesting an interim waiver for the (C) Representations. In making submissions received must include the same systems pursuant to 10 CFR representations about the energy agency name and case number for this 431.401(a)(2) (2009). efficiency of its VRV–WIII variable proceeding. Submit electronic capacity water-source multi-split heat comments in WordPerfect, Microsoft Background pump products, for compliance, Word, Portable Document Format (PDF), DACA is a leading manufacturer of marketing, or other purposes, Daikin or text (American Standard Code for variable speed and Variable Refrigerant must fairly disclose the results of testing Information Interchange (ASCII)) file Volume (VRV) zoning systems that under the DOE test procedure, doing so format and avoid the use of special DACA offers for sale in the North in a manner consistent with the characters or any form of encryption. American market. These products provisions outlined below: Wherever possible, include the combine advanced technologies such as (1) For VRV–WIII combinations tested electronic signature of the author. DOE high efficiency variable speed in accordance with this alternate test does not accept telefacsimiles (faxes). compressors and fan motors with procedure, Daikin may make According to 10 CFR 1004.11, any electronic expansion valves and other representations based on these test person submitting information that he devices to insure peak operating results. or she believes to be confidential and (2) For VRV–WIII combinations that exempt by law from public disclosure 2 The AHRI has updated this standard from are not tested, Daikin may make should submit two copies: One copy of version ARI 340/360–2004 to version AHRI 340– representations based on the testing the document including all the 360–2007. However, DOE has not yet updated the reference to the standard in 10 CFR part 431. results for the tested combination at the information believed to be confidential, 3 Detailed citations to the test procedures for same energy efficiency level as the and one copy of the document with the which DACA is requesting a waiver are included on tested combination with the same information believed to be confidential page 3 of this petition.

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performance of the overall system and • The VRV–WIII can be applied into Design Characteristics Constituting the to optimize energy efficiency. DACA has a Geothermal or Ground Source Grounds for DACA’s Petition designed the VRV–WIII systems to application for additional energy DACA’s VRV–WIII product offering operate in commercial applications, and savings and use of the renewable energy consists of multiple indoor units being this product class employs zoning to in the earth. connected to a water-cooled outdoor provide users with peak utility of the Particular Basic Models for Which a unit. The indoor units for these system and with significant energy Waiver Is Requested products are available in a very large savings compared to competing number of potential configurations, technologies. DACA requests a waiver from the test including but not limited to the procedures for the following VRV–WIII following: 4–Way Cassette, Wall General Characteristics of DACA’s basic model groups: Water Source VRV–WIII Products • Mounted, Ceiling Suspended, and Floor VRV–WIII Series Outdoor Units: Standing. DACA is currently developing Æ Models RWEYQ72PTJU, DACA’s VRV–WIII system has the additional indoor unit models for future following characteristics and RWEYQ84PTJU, RWEYQ144PTJU, market introduction. Each of these units applications: RWEYQ168PTJU, RWEYQ216PTJU, and • has nine different indoor static pressure DACA’s water source VRV–WIII is RWEYQ252PTJU with capacities ratings as standard, with additional an air conditioning system that includes ranging from 72,000 to 252,000 Btu/hr. • pressure ratings available. numerous individually controllable Compatible Indoor Units For Above There are over one million discrete indoor units utilizing water as Listed Outdoor Units: Æ combinations possible with the current a heat source. In this unique system, FXAQ Series wall mounted indoor DACA VRV–WIII product offering. It is water is piped from a cooling tower or units with nominally rated capacities of completely impractical for testing boiler to the VRV–WIII (which is the 7,000, 9,000, 12,000, 18,000 and 24,000 laboratories to test a product such as the equivalent of the outdoor unit of an air Btu/hr. Æ VRV–WIII with multiple indoor units cooled conditioning system). After heat FXLQ Series floor mounted indoor because of the astronomical number of exchange, refrigerant is piped from the units with nominally rated capacities of potential system configurations. VRV–WIII to each indoor unit. 12,000, 18,000 and 24,000 Btu/hr. DACA’s VRV–WIII products share • Æ The VRV–WIII system consists of FXNQ Series concealed floor many of the design characteristics and multi-split, multi-zone units utilizing mounted indoor units with nominally features of DACA’s VRV, VRV–S and one or multiple outdoor units that serve rated capacities of 12,000, 18,000 and VRV–WIII product lines, and of up to twenty indoor units. 24,000 Btu/hr. Mitsubishi Electric and Electronics • Æ The VRV–WIII system employs FXDQ Series low static ducted USA, Inc.’s (MEUS) CITY MULTI variable speed technology that matches indoor units with nominally rated product class, for all of which DOE has system capacity to the current load capacities of 7,000, 9,000, 12,000, previously granted waivers.4 The thereby utilizing the minimum amount 18,000 and 24,000 Btu/hr. Æ principal design characteristic of energy required for optimal system FXSQ Series medium static ducted difference between DACA’s VRV and operation. indoor units with nominally rated • VRV–S products, and its VRV–WIII Due to its multi-zone applications, capacities of 7,000, 9,000, 12,000, products, is the method of heat each VRV–WIII indoor unit can be 18,000, 24,000, 30,000, 36,000 and rejection. Similarly, the method of heat independently controlled with a local 48,000 Btu/hr. Æ rejection is the most significant design controller allowing the occupant to alter FXMQ–M Series high static ducted characteristic that distinguishes the their environmental condition to meet indoor units with nominally rated basic operation of the VRV–WIII their needs. Individually controlled capacities of 30,000, 36,000, 48,000, product class and the MEUS CITY system functions include temperature, 72,000 and 96,000 Btu/hr. MULTI product class that has received fan speed and mode of operation. Æ FXMQ–P Series high static ducted • a waiver from DOE. Like the VRV–W– The VRV–WIII system can indoor units with nominally rated II products for which DOE granted a efficiently operate the compressor at capacities of 7,000, 9,000, 12,000, waiver, the VRV–WIII products use loads as small as 10% of the rated 18,000, 24,000, 30,000, 36,000 and water instead of air to reject heat. In capacity of the system, resulting in 48,000 Btu/hr contrast, the VRV and VRV–S products, significant energy savings. Æ FXMQ–MF Series Outdoor Air • as well as MEUS’ CITY MULTI products Some VRV–WIII products offer a Processing indoor units with nominally use air to reject heat. The same testing ‘‘heat recovery’’ mode that allows heat rated capacities of 48,000, 72,000 and constraints and limitations apply to all that is absorbed from one indoor zone 96,000 Btu/hr. Æ of these products. (operating in the cooling mode) to be FXTQ–P Series Vertical Air The DOE relied on similar rationales discharged into another indoor zone Handler indoor units with nominally to grant MEUS’ petition for waiver and that is calling for heat. This function rated capacities of 12,000, 18,000, DACA’s VRV–WII waiver. DOE stated reduces the load on the outdoor unit 24,000, 30,000, 36,000, 42,000, 48,000 the following in the notice granting and improves overall system and 54,000 Btu/hr DACA a waiver for VRV–WII: performance and utility. Æ FXZQ Series recessed cassette DOE believes that the VRV–WII • The VRV–WIII system employs indoor units with nominally rated Daikin equipment and equipment for variable speed indoor and outdoor high capacities of 7,000, 9,000, 12,000, which waivers have previously been efficiency fan motors to precisely 18,000 and 24,000 Btu/hr. granted [MEUS, Fujitsu General Ltd. control operating pressures and airflow Æ FXFQ Series recessed cassette and Samsung] are alike with respect to rates. indoor units with nominally rated • The VRV–WIII system uses capacities of 12,000, 18,000, 24,000, 4 DOE granted DACA a waiver for its VRV and electronically controlled expansion 30,000 and 36,000 Btu/hr. VRV–S product lines on July 10, 2008. 73 FR valves to precisely control refrigerant Æ FXHQ Series ceiling suspended 39,680. DOE granted MEUS a waiver for its CITY MULTI VRFZ class of products. 69 FR 52,660 flow, superheat, sub-cooling, pump indoor units with nominally rated (August 27, 2004). DOE also granted DACA a waiver down functions and even oil flow capacities of 12,000, 24,000 and 36,000 for its VRV–WII product lines on January 7, 2008. throughout the system. Btu/hr. 73 FR 1,213.

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the factors that make them eligible for 340/360–2004 and ISO Standard 13256– for Waiver, the design characteristics of test procedure waivers. 1 (1998) do not provide a test method the VRV–WIII product class clearly 74 FR 16,375. Based on these to measure part load performance of a prevent testing of the basic model conclusions, the DOE proceeded to system operating in simultaneous according to the prescribed test grant DACA’s VRV–WII waiver request. cooling and heating modes (i.e., procedures. The likelihood of DOE Id. performing both heating and cooling approving DACA’s Petition for Waiver is The DACA VRV–WIII system operates functions at the same time). buttressed by the DOE’s history of in the same configurations as the VRV– Yet another problem that prevents approving previous waiver requests WII system. The reasons and rationale testing of the VRV–WIII product class from DACA and from several other that DOE has already articulated to under these two standards, and another manufacturers for other products that support previous DACA, MEUS, Sanyo, major reason why DACA requires the are similar to the VRV–WIII product and Fujitsu waivers for multi-split, requested waiver, is the wide variety of class, based on the same rationale put multi-zoned air conditioners (including indoor unit static pressure ratings forth by DACA in this Petition for the DACA VRV W–II system) also apply available with these and other multi- Waiver. See preceding discussion of to the DACA VRV–WIII products. split products. Testing facilities cannot waivers granted by DOE to MEUS, Therefore, DOE should conclude that effectively control multiple indoor static Fujitsu General, and Sanyo Fisher the design characteristics of DACA’s pressures as would be required to test (USA) Corp. VRV–WIII product class prevent testing many of the indoor unit combinations Additionally, DACA is likely to suffer of the basic VRV–WIII model according available. To accomplish such testing, a economic hardship and competitive to the prescribed test procedures. testing lab would be required to use a disadvantage if DOE does not grant its large number of test rooms interim waiver request. DACA is now Specific Testing Requirements Sought preparing to introduce its VRV–WIII To Be Waived simultaneously, and each test room would have to be networked into the product class in a matter of months. If The test procedures from which data recording instrumentation. Also, we must wait for completion of the DACA is requesting a waiver are ARI extensive piping configurations would normal waiver consideration and Standard 340/360–2004 and ISO need to be routed throughout the issuance process, DACA will be forced Standard 13256–1 (1998). These various test rooms. This process would to delay the opportunity to begin standards, which are applicable to large be extraordinarily expensive, and the recouping through product sales its commercial and industrial unitary air logistical challenges presented by the research, development and production conditioning and heat pump equipment testing might be insurmountable. costs associated with the VRV–WIII with a capacity of ≥65,000 Btu/hr to product class. In addition to these <240,000 Btu/hr, are referenced in Table Manufacturers of Other Basic Models economic hardship costs, DACA will 2 to 10 CFR 431.96, and are made Incorporating Similar Design lose market share to MEUS, especially if applicable to DACA’s large commercial Characteristics DOE grants MEUS’ pending interim water source VRV–WIII products in 10 DACA is aware of the following waiver application for its CITY MULTI CFR 431.96(a). manufacturers that produce basic WR2 and WY product classes, which models incorporating similar design will compete directly with DACA’s Detailed Discussion of Need for VRV–WIII product class. Requested Waiver characteristics to the VRV–WIII in the United States market: DOE approval of DACA’s interim Although the capacity of DACA’s • Sanyo Fisher (USA) Corp. waiver application is also supported by VRV–WIII product class is within the • Mitsubishi Electric & Electronics sound public policy reasons. As DOE scope of ARI 340/360–2004 and ISO USA, Inc. stated in its August 14, 2006 approval Standard 13256–1 (1998), the design • Fujitsu General America, Inc. of DACA’s interim waiver for the VRV characteristics of the VRV–WIII product and VRV–S product classes: Alternative Test Procedures class prevent testing of the basic model [I]n those instances where the likely according to the prescribed test DACA proposes that DOE apply the success of the Petition for Waiver has been procedures. The testing procedures same alternate test procedure to the demonstrated, based upon DOE having outlined in these standards do not covered VRV–WIII products as DOE granted a waiver for a similar product design, provide for: applied to DACA’s VRV–WII products it is in the public interest to have similar • The testing of multi-split products in the waiver that DOE granted for those products tested and rated for energy when all connected indoor units products on April 10, 2009. 74 FR consumption on a comparable basis. physically cannot be located in a single 16,373. The alternate test method The VRV–WIII product class will room. appears on pages 16,375–76 of the VRV– provide superior comfort to the end • The operation of indoor units at WII waiver. user, will allow for independent zoning several different static pressure ratings of facilities from a single outdoor unit, Application for Interim Waiver during a single test. and will incorporate state of the art • The precise number of part load DACA also hereby applies pursuant to technology such as variable speed tests that ARI Standard 340/360–2004 10 CFR 431.401(a)(2) for an interim compressors utilizing neodymium requires for fully or infinitely variable waiver of the applicable test procedure magnets to increase efficiency and speed products. requirements for the VRV–WIII product electronic control of compressor speed, DACA especially requires the class models listed above. The basis for fan speed and even metering device requested waiver because ARI Standard DACA’s Application for Interim Waiver opening positions. The VRV–WIII 340/360–2004 and ISO Standard 13256– follows. product class includes technologies that 1 (1998) provide no direction or DACA is likely to succeed in its will increase system efficiency and guidance about how to test systems with Petition for Waiver because there is no reduce national energy consumption, millions of combinations of indoor units reasonable argument that ARI Standard and that will also offer a new level of configurable to a single outdoor unit. 340/360 can be properly applied to comfort and control to end users. A further reason that DACA needs the DACA’s VRV–WIII product class. As DACA requests that DOE grant our requested waiver is that ARI Standard explained above in the DACA’s Petition Application for Interim Waiver so we

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can bring the new highly energy regulations under the National by January 1, 2013, to have the facility efficient technology represented by the Environmental Policy Act (NEPA) and or facilities operational and ready to VRV–WIII product class to the market as evaluates the potential health and accept custody of such elemental soon as possible, thereby allowing the environmental effects of storing a mercury delivered there. U.S. consumer to benefit from our high projected total of up to 10,000 metric DOE thus needs to develop a technology and high efficiency product, tons (11,000 tons) of elemental mercury. capability for the safe and secure long- and from competition for other Seven alternative sites across the U.S. term management and storage of manufacturers who may have already are evaluated. DOE invites the public to elemental mercury generated within the comment through the several avenues received waivers. U.S. as required by the Act. To this end, listed under ADDRESSES and DOE proposes to select one or more Confidential Information SUPPLEMENTARY INFORMATION. The U.S. existing (including modifications if DACA makes no request to DOE for Environmental Protection Agency (EPA) needed) or new facilities for this confidential treatment of any and the Mesa County (Colorado) Board purpose. Facilities to be constructed as information contained in this Petition of Commissioners are cooperating for Waiver and Application for Interim agencies on this Draft EIS. well as existing or modified facilities must comply with applicable Waiver. DATES: The public is invited to submit requirements of Section 5(d) of the Act, oral and/or written comments on this Conclusion Management Standards for a Facility, Draft EIS during the public comment including the requirements of the Solid Daikin AC (Americas), Inc. period, which extends through March Waste Disposal Act, as amended by the Corporation respectfully requests DOE 30, 2010. DOE will consider all Resource Conservation and Recovery to grant its Petition for Waiver of the comments received or postmarked by Act (RCRA). DOE is using the NEPA applicable test procedure to DACA for that date in preparing the Final EIS, process to identify and evaluate the VRV–WIII product design, and to expected in fall 2010, and will consider candidate sites for the facility or grant its Application for Interim Waiver. late comments to the extent practicable. facilities. EPA and the Mesa County DOE’s failure to issue an interim waiver DOE will hold public hearings on the (Colorado) Board of Commissioners are from test standards would cause dates and at the times and locations cooperating agencies on the EIS, which significant economic hardship to DACA listed under SUPPLEMENTARY has been prepared pursuant to Council by preventing DACA from marketing INFORMATION below. these products even though DOE has on Environmental Quality NEPA ADDRESSES: Written comments on the previously granted a waiver to other implementing regulations at 40 CFR Draft Mercury Storage EIS may be products currently being offered in the Parts 1500–1508 and DOE NEPA submitted by U.S. mail to the following market with similar design Implementing Procedures at 10 CFR Part address. Mr. David Levenstein, EIS characteristics. 1021. Document Manager, U.S. Department of We would be pleased to respond to DOE issued a Notice of Intent to any questions you may have regarding Energy, Draft Mercury Storage EIS Comments, P.O. Box 2612, prepare the EIS on July 2, 2009 (74 FR this Petition for Waiver and Application 31723). Comments received during the for Interim Waiver. Please contact Lee Germantown, Maryland 20874. Comments may be submitted subsequent scoping period were Smith, Director of Product Marketing at electronically via the Mercury Storage considered in preparing the Draft EIS. 972–245–1510 or by e-mail at EIS Web site at http:// Based on a structured process described [email protected]. www.mercurystorageeis.com, where the in the Draft EIS, DOE identified seven Sincerely, Draft EIS can be found, or by faxing toll- government and commercial sites as the Akinori Atarashi, free to (877) 274–5462. The Draft EIS is range of reasonable alternatives to be President. also available on DOE’s NEPA Web site evaluated in the EIS: DOE Grand [FR Doc. 2010–1759 Filed 1–28–10; 8:45 am] at http://www.gc.energy.gov/nepa. Junction Disposal Site, Grand Junction, BILLING CODE 6450–01–P FOR FURTHER INFORMATION CONTACT: For Colorado; DOE Hanford Site, Richland, further information about this Draft EIS, Washington; Hawthorne Army Depot, please contact Mr. Levenstein at the Hawthorne, Nevada; DOE Idaho DEPARTMENT OF ENERGY mailing address or EIS Web site listed National Laboratory, Idaho Falls, Idaho; above. DOE Kansas City Plant, Kansas City, Notice of Availability of the Draft Long- For information regarding the DOE Missouri; DOE Savannah River Site, Term Management and Storage of NEPA process, please contact: Ms. Carol Aiken, South Carolina; and Waste Elemental Mercury Environmental M. Borgstrom, Director, Office of NEPA Control Specialists, LLC, Andrews, Impact Statement and Notice of Public Policy and Compliance (GC–54), U. S. Texas. As required under NEPA, the Hearings Department of Energy, 1000 Draft EIS also analyzes a No Action Alternative to serve as a basis for AGENCY: Department of Energy. Independence Avenue, SW., Washington, DC 20585, Telephone: comparison. ACTION: Notice of availability. (202) 586–4600, or leave a message at DOE’s evaluation includes the SUMMARY: The Department of Energy (800) 472–2756. facilities themselves and their locations, (DOE) announces the availability of the SUPPLEMENTARY INFORMATION: The their construction, facility operations, Draft Long-Term Management and Mercury Export Ban Act (the Act) and transportation to the storage Storage of Elemental Mercury prohibits the export of elemental facility(ies). Consideration of potential Environmental Impact Statement (DOE/ mercury from the U.S., effective January location includes climate, proximity of EIS–0423D, ‘‘Draft Mercury Storage EIS’’ 1, 2013 (subject to certain essential use human populations, and environmental or ‘‘Draft EIS’’) for public review and exemptions). Section 5 of the Act, Long- resource areas for each alternative, along comment during a public comment Term Storage, directs DOE to designate with the potential human health and period that extends through March 30, a facility or facilities for the long-term socioeconomic impacts. DOE has 2010. This Draft EIS has been prepared management and storage of elemental identified the Waste Control Specialists, in accordance with the implementing mercury generated within the U.S. and, LLC facility as its preferred alternative.

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Public Hearings 5:30 p.m.–8:30 p.m. Oregon DOE invites the public to present oral James Roberts Civic Center, Portland State University, 855 E. Broadway, and/or written comments during public Government Information, hearings on the Draft Mercury Storage Andrews, TX 79714, Branford Price Millar Library, EIS. Participants may register at the March 9, door to provide oral comments, and 5:30 p.m.–8:30 p.m. 1875 SW Park Avenue, Portland, OR 97201, speakers will be recognized in order as Public Reading Rooms registered. Speakers may be asked to (503) 725–5874. Copies of the Draft EIS and supporting limit their oral comments to five South Carolina minutes. Speakers may be given an technical reports are available for public opportunity to take the floor a second review at the locations listed below: University of South Carolina–Aiken, time after all those who wish to speak Colorado Gregg-Graniteville Library, have been given an opportunity to do Mesa County Library, 471 University Parkway, so. 530 Grand Avenue, Aiken, SC 29801, During the first hour, the public may Grand Junction, CO 81502–5019, (803) 641–3320. review information materials and speak (970) 243–4442. informally with technical staff and DOE South Carolina State Library, representatives. This will be followed U.S. Department of Energy, 1500 Senate Street, Office of Legacy Management, by the formal hearing, which will be Columbia, SC 29211, 2597 B 3⁄4 Road, opened with a brief DOE presentation (803) 734–8026. about the Draft EIS and a review of the Grand Junction, CO 81503, hearing procedure. A court reporter will (970) 248–6089. Texas record all oral comments, which later District of Columbia Andrews County Library, will be publicly available. The dates, U.S. Department of Energy, 109 NW 1st Street, times and locations of all hearings are Freedom of Information Act Public as follows: Andrews, TX 79714, Reading Room, Two Rivers Convention Center, (432) 523–9819. 1000 Independence Avenue, SW., 159 Main Street, Room 1G–033, Washington Grand Junction, CO 81501, Washington, DC 20585, February 23, U.S. Department of Energy, (202) 586–5955. 5:30 p.m.–8:30 p.m. Public Reading Room, El Capitan, Georgia Consolidated Information Center, 540 F Street, Augusta State University, 2770 University Drive, Hawthorne, NV 89415, Reese Library, Room 101L, February 23, 2500 Walton Way, Richland, WA 99352, 5:30 p.m.–8:30 p.m. Augusta, GA 30904, (509) 372–7443. Shilo Inn/O’Callahan’s Convention (706) 737–1745. University of Washington, Center, Savannah State University, 780 Lindsay Blvd, Asa H. Gordon Library, Suzzallo-Allen Library, Idaho Falls, ID 83402, 2200 Tompkins Road, Government Publications Division, February 25, Savannah, GA 31404, Seattle, WA 98195, 5:30 p.m.–8:30 p.m. (912) 356–2183. (206) 543–1937. Courtyard by Marriott, 500 East 105th Street, Idaho Gonzaga University, Kansas City, MO 64131, U.S. Department of Energy, Foley Center Library, March 2, Public Reading Room, 101–L East 502 Boone, 5:30 p.m.–8:30 p.m. 1776 Science Center Drive, Spokane, WA 99258, Doubletree Hotel Portland—Lloyd Idaho Falls, ID 83402, (509) 313–5931. Center, (208) 526–0833. Next Steps 1000 NE Multnomah Street, Missouri Portland, OR 97232, March 2, Following the end of the public 5:30 p.m.–8:30 p.m. Mid-Continent Public Library, comment period on the Draft EIS Red Lion Hotel Richland Hanford Blue Ridge Branch, described above, DOE will consider the House, 9253 Blue Ridge Boulevard, environmental impact analysis 802 George Washington Way, Kansas City, MO 64138, presented in the Final EIS, along with Richland, WA 99352, (816) 761–3382. other information in making its March 3, Nevada decision(s) related to the management 5:30 p.m.–8:30 p.m. and storage of elemental mercury Mineral County Library, generated within the U.S. North Augusta Municipal Center, First & ‘‘A’’ Street, 100 Georgia Avenue, Hawthorne, NV 89415, Issued in Washington, DC on January 25, North Augusta, SC 29841, (775) 945–2778. 2010. March 4, William M. Levitan, 5:30 p.m.–8:30 p.m. New Mexico Director, Office of Environmental Eunice Community Center Eunice Public Library, Compliance, Office of Environmental 1115 Avenue I 1039 10th Street, Management. Eunice, NM 88231 Eunice, NM 88231, [FR Doc. 2010–1826 Filed 1–28–10; 8:45 am] March 8 (575) 394–2336. BILLING CODE 6450–01–P

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DEPARTMENT OF ENERGY Availability for the Final Impact Statement for Completion of the Decommissioning and/or Long-Term West Valley Demonstration Project and Notice of Availability of the Final Stewardship EIS. NYSERDA will Closure or Long-Term Management of Environmental Impact Statement for publish its decisions regarding actions Facilities at the Western New York Decommissioning and/or Long-Term at the WNYNSC in a Findings Statement Nuclear Service Center, also referred to Stewardship at the West Valley in the New York State Environmental as the 1996 Cleanup and Closure Draft Demonstration Project and Western Notice Bulletin no sooner than 10 days EIS (DOE/EIS–0226D). New York Nuclear Service Center after the Final EIS is issued. DOE and NYSERDA issued the Revised Draft Decommissioning and/or AGENCY: Department of Energy. ADDRESSES: See SUPPLEMENTARY INFORMATION section for addresses at Long-Term Stewardship EIS on ACTION: Notice of availability. which copies of the Final EIS are December 5, 2008, revising the 1996 SUMMARY: The U.S. Department of available for viewing, as well as Draft EIS. This revised draft considered Energy (DOE) announces the availability addresses for use in requesting copies of the decommissioning criteria for WVDP of the Final Environmental Impact the document. issued by NRC since the publication of the 1996 Cleanup and Closure Draft EIS Statement for Decommissioning and/or FOR FURTHER INFORMATION CONTACT: For and public comments on that EIS. The Long-Term Stewardship at the West information regarding WVDP or the public comment period on the Revised Valley Demonstration Project and Final EIS, contact Catherine Bohan, EIS Draft Decommissioning and/or Long- Western New York Nuclear Service Document Manager, West Valley Term Stewardship EIS, originally Center (DOE/EIS–0226) (referred to as Demonstration Project, U.S. Department scheduled to end June 8, 2009, was the Final Decommissioning and/or of Energy, Ashford Office Complex, extended through September 8, 2009, in Long-Term Stewardship EIS or ‘‘Final 9030 Route 219, West Valley, NY 14171. response to requests from the public. EIS’’). The following Web sites may also be Four public hearings on the Revised The Final EIS was prepared in accessed for additional information on Draft EIS were held in locations in New accordance with the Council on the Final EIS or the West Valley Site: Environmental Quality’s National York State and on the Seneca Nation of http://www.westvalleyeis.com or http:// Indians Reservation during this time. Environmental Policy Act (NEPA) www.wv.doe.gov. Requests for DOE and NYSERDA have considered Implementing Regulations (40 CFR Parts information may also be submitted via comments received and have 1500–1508) and the DOE NEPA e-mail at http://www.westvalleyeis.com incorporated both the comments and the Implementing Procedures (10 CFR Part or by faxing toll-free to 866–306–9094. agencies’ responses in the EIS. 1021). DOE and the New York State For general information on DOE’s Key changes between the Draft and Energy Research and Development NEPA process contact: Carol Borgstrom, Final EIS include: Incorporation of Authority (NYSERDA) are joint lead Director, Office of NEPA Policy and updated environmental and site-specific agencies for preparing the EIS, while the Compliance (GC–54), U.S. Department information, changes made in response U.S. Nuclear Regulatory Commission of Energy, 1000 Independence Avenue, to the NYSERDA View on the Revised (NRC), the U.S. Environmental SW., Washington, DC 20585; e-mail Draft EIS, and revision of the Protection Agency (EPA), and the New [email protected]; telephone 202– description of alternatives, particularly York State Department of 586–4600; or leave a message at 800– that of the Phased Decisionmaking Environmental Conservation (NYSDEC) 472–2756. The Final EIS is also Alternative (described in the Draft EIS are cooperating agencies. NYSDEC and accessible through the DOE’s NEPA as encompassing 30 years) to specify the New York State Department of Web site at http://www.gc.energy.gov/ that a Phase 2 decision would be made Health (NYSDOH) are involved agencies NEPA. no later than 10 years after issuance of under the New York State For general questions and information the initial DOE Record of Decision and Environmental Quality Review Act about NYSERDA’s role in the EIS, NYSERDA Findings Statement, if the (SEQR). contact Paul Bembia, Program Director, Phased Decisionmaking Alternative is The Proposed Action is the West Valley Site Management Program, selected. completion of the West Valley New York State Energy Research and The Final Decommissioning and/or Demonstration Project (WVDP) and the Development Authority, Ashford Office Long-Term Stewardship EIS has been decommissioning and/or long-term Complex, 9030 Route 219, West Valley, prepared in accordance with NEPA (40 management or stewardship of Western NY 14171; telephone 716–942–9960, CFR Parts 1500–1508 and 10 CFR Part New York Nuclear Service Center extension 4900; fax 716–942–9961; or e- 1021) and the SEQR to examine the (WNYNSC). The Proposed Action mail [email protected]. potential environmental impacts of the includes the decontamination and SUPPLEMENTARY INFORMATION: WNYNSC range of reasonable alternatives to decommissioning of the waste storage is a 1,351-hectare (3,338-acre) site decommission and/or maintain long- tanks and facilities used in the located 48 kilometers (30 miles) south of term stewardship at WNYNSC. The solidification of high-level radioactive Buffalo, New York, and owned by alternatives analyzed in the EIS include waste, and any material and hardware NYSERDA. In 1982, DOE assumed the Sitewide Removal Alternative, the used in connection with the WVDP. The control but not ownership of the 68- Sitewide Close-In-Place Alternative, the EIS analyzes three action alternatives for hectare (167-acre) Project Premises Phased Decisionmaking Alternative decommissioning and/or long-term portion of the site in order to conduct (Preferred Alternative), and the No stewardship of the WNYNSC, and a No the WVDP, as required under the 1980 Action Alternative. The analysis and Action Alternative as required by NEPA West Valley Demonstration Project Act. information contained in the EIS are and SEQR. In 1990, DOE and NYSERDA entered intended to assist DOE and NYSERDA DATES: DOE will announce its decision into an agreement to prepare a joint EIS with consideration of potential regarding future actions at WNYNSC in to address both the completion of environmental impacts prior to making a Record of Decision to be published in WVDP and closure or long-term decommissioning or long-term the Federal Register no sooner than 30 management of WNYNSC. A Draft EIS management decisions. days after the Environmental Protection was issued for public comment in The Final Decommissioning and/or Agency (EPA) publishes a Notice of January 1996: the Draft Environmental Long-Term Stewardship EIS will

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support DOE and NYSERDA decisions Phased Decisionmaking (the Preferred the EIS, DOE would determine whether regarding the Proposed Action: Alternative): Under this alternative, new information would warrant Completion of WVDP and decommissioning would be completed preparation of a Supplemental EIS. decommissioning and/or long-term in two phases. This alternative involves NYSERDA also would assess the results management or stewardship of substantial removal actions in the first of site-specific studies and other WNYNSC. This includes the disposition phase. In addition, during the first information during Phase 1. NYSERDA of the high-level radioactive waste phase, this alternative provides for site expects to prepare and issue for public storage tanks, the former spent nuclear characterization and scientific studies to comment an EIS, or a supplement to the fuel reprocessing plant, the North facilitate decisionmaking for the existing EIS, to evaluate Phase 2 Plateau Groundwater Plume, the Cesium remaining facilities or areas. decisions for the SDA and the balance Prong, the NRC–Licensed Disposal Area Phase 1 would include removal of the of WNYNSC for which NYSERDA has (NDA), and the State-Licensed Disposal Main Plant Process Building and the responsibility. Area (SDA). The three action source area of the North Plateau Phase 2 decisions would be made alternatives evaluated for the Proposed Groundwater Plume. In addition, the within 10 years of the initial DOE Action are as follows: lagoons and all facilities in Waste Record of Decision and NYSERDA Sitewide Removal: Under this Management Area (WMA) 2 (except the Findings Statement, if the Phased alternative, all site facilities identified permeable treatment wall) would be Decisionmaking Alternative is selected. in the Final EIS would be removed; removed. The Vitrification Facility, the NYSERDA and DOE would strive to contaminated soil, sediment, and Remote Handled Waste Facility, and a make a comprehensive Phase 2 decision groundwater would be removed to meet number of facilities in WMAs 5, 6, 9, for the entire site that is protective of criteria that would allow unrestricted and 10 would also be removed. public health and safety and the release of WNYNSC; and all radioactive, Foundations, slabs or pads from these environment. For WVDP, Phase 2 hazardous, and mixed waste would be facilities, as well as those from actions would complete characterized, packaged as necessary, previously demolished facilities, would decommissioning or long-term and eventually shipped off site for also be removed. During Phase 1, management decisionmaking according disposal. This alternative is expected to several facilities would continue under to the approach determined most generate waste for which there is active management. These facilities appropriate during the additional Phase currently no offsite disposal location include the Waste Tank Farm and its 1 evaluations for each remaining (e.g., potential non-defense transuranic support facilities, the Construction and facility. For the SDA, alternatives that waste, commercial Class B and C low- Demolition Debris Landfill, the non- would be considered for Phase 2 actions level radioactive waste, and Greater- source area of the North Plateau would include at least: complete Than-Class C waste). This orphan waste Groundwater Plume, the NDA, and the exhumation, close-in-place, and would be stored on site until an SDA. Activities undertaken in Phase 1 continued active management appropriate offsite facility is available. would make use of proven technologies consistent with SDA permit and license Completion of these activities would and available waste disposal sites to requirements. allow unrestricted use of the site (i.e., reduce the potential short-term health No Action Alternative: Under this the site could be made available for any and safety risks from residual alternative, no decommissioning actions public or private use). The Sitewide radioactivity and hazardous would be taken. The No Action Removal Alternative includes temporary contaminants at the site. Phase 1 Alternative would involve the onsite storage of canisters of high-level activities are expected to take 8 to 10 continued management and oversight of radioactive waste previously vitrified years to complete. During this 8 to 10 all facilities located on WNYNSC under WVDP and currently in storage at year period, DOE and NYSERDA would property as of the starting point for this WVDP until the waste can be shipped conduct a number of activities to EIS. The No Action Alternative does not offsite. facilitate determination of the best meet the purpose and need for agency Sitewide Close-In-Place: Under this technical approach to complete action, but analysis of the No Action alternative, most facilities would be decommissioning of the remaining Alternative is required under NEPA and closed in place. Major facilities and facilities. These activities would include SEQR. sources of contamination such as the further characterization of site Preferred Alternative: DOE and Waste Tank Farm, NDA, and SDA contamination and additional scientific NYSERDA have identified the Phased would be managed at their current studies. These additional studies would Decisionmaking Alternative as the locations. Residual radioactivity in be conducted to possibly reduce Preferred Alternative. DOE will facilities with larger inventories of long- technical uncertainties related to the announce its decision regarding future lived radionuclides would be isolated decision on final decommissioning and actions at WNYNSC in a Record of by specially designed closure structures long-term management of the balance of Decision to be published in the Federal and engineered barriers. These WNYNSC. In particular, these studies Register no sooner than 30 days after structures would be designed to meet may address uncertainties associated publication of the EPA Notice of regulatory requirements both to retain with the long-term performance models, Availability for the Final EIS. NYSERDA hazardous and radioactive constituents the viability and cost of exhuming will publish its decisions regarding and to ensure they would be resistant to buried waste and tanks, the availability actions at the WNYNSC in a Findings long-term degradation. This approach of waste disposal sites, and technologies Statement in the New York State would allow large areas of the site to be for in-place containment. Environmental Notice Bulletin no released for unrestricted use. The NRC While Phase 1 activities are being sooner than 10 days after the Final EIS license for remaining portions of conducted, DOE and NYSERDA would is issued. WNYNSC could be terminated under assess the results of site-specific studies Paper copies of the Final EIS are restricted conditions, or could be as they become available, along with available at the Concord Public Library, converted to a long-term license. Long- other emerging information such as 18 Chapel Street, Springville, NY 14141, term stewardship would be provided for applicable technology development. In (716) 592–7742; the WVDP Public facilities that are closed in place and consultation with NYSERDA and Reading Room, U.S. Department of any buffer areas around them. cooperating and involved agencies on Energy, Ashford Office Complex, 9030

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Route 219, West Valley, NY 14171, (716) focus on waste disposition and DEPARTMENT OF ENERGY 942–4555; and the U.S. Department of recycling issues at the Portsmouth site. Energy, FOIA Reading Room, 1G–033, Purpose of the Future Land Use Federal Energy Regulatory Forrestal Bldg., 1000 Independence Subcommittee: The purpose of the Commission Ave., SW., Washington, DC 20585, (202) subcommittee is to focus on reuse 586–5955. Written requests for copies of incentives, reindustrialization, and [Docket No. RM10–12–000; 130 FERC the document should be directed to: technology development at the ¶ 61,039] Catherine Bohan, EIS Document Portsmouth site. Manager, West Valley Demonstration Electricity Market Transparency Project, U.S. Department of Energy, Tentative Agenda Provisions of Section 220 of the Federal Power Act Ashford Office Complex, 9030 Route 4:30 p.m.—D&D Subcommittee Session 219, West Valley, NY 14171. This Final • January 21, 2010. EIS is also available electronically at Review of January Summary AGENCY: Federal Energy Regulatory http://www.westvalleyeis.com and the • Waste Disposition Option Updates Commission. DOE’s NEPA Web site at http:// Æ Shipping, Transporting, and ACTION: Notice of inquiry. www.gc.energy.gov/NEPA. Contamination Levels Signed in Washington, DC, this 20th day of • Public Comment Period SUMMARY: The Federal Energy January 2010. • Review of Action Items Regulatory Commission (Commission) Frank Marcinowski, seeks comments on whether the 6:30 p.m.—Future Land Use Acting Chief Technical Officer for Commission’s Electric Quarterly Report Subcommittee Session Environmental Management. (EQR) filing requirements should be • [FR Doc. 2010–1725 Filed 1–28–10; 8:45 am] Review of January Summary applied to market participants that are BILLING CODE 6450–01–P • Discussion of Priorities excluded from the Commission’s • Public Comment Period jurisdiction under section 205 of the Federal Power Act (FPA). This Notice of • Review of Action Items DEPARTMENT OF ENERGY Inquiry will assist the Commission in Adjourn determining what changes, if any, Environmental Management Site- Public Participation: The EM SSAB, should be made to its regulations under Specific Advisory Board, Portsmouth Portsmouth, welcomes the attendance of the electric market transparency the public at its meetings and will make AGENCY: Department of Energy. provisions of section 220 of the FPA, as every effort to accommodate persons adopted in the Energy Policy Act of ACTION: Notice of open meeting. with physical disabilities or special 2005 (EPAct 2005). needs. If you require special SUMMARY: This notice announces a DATES: Comments are due March 30, meeting of the Environmental accommodations due to a disability, 2010. Management Site-Specific Advisory please contact Joel Bradburne at least five days in advance of the meetings at ADDRESSES: You may submit comments, Board (EM SSAB), Portsmouth (known identified by docket number by any of locally as the Portsmouth Site-Specific the phone number listed above. Written statements may be filed with the Board the following methods: Advisory Board [PORTS SSAB]), • Agency Web Site: http://ferc.gov. Decontamination and Decommissioning either before or after the meeting. Individuals who wish to make oral Documents created electronically using (D&D) and Future Land Use word processing software should be Subcommittees. The Federal Advisory statements pertaining to agenda items should contact Joel Bradburne at the filed in native applications or print-to- Committee Act (Pub. L. 92–463, 86 Stat. PDF format and not in a scanned format. 770) requires that public notice of this address or telephone number listed • above. The Deputy Designated Federal Mail/Hand Delivery: Commenters meeting be announced in the Federal unable to file comments electronically Register. Officer is empowered to conduct the meeting in a fashion that will facilitate must mail or hand deliver an original DATES: Tuesday, February 9, 2010—4:30 the orderly conduct of business. and 14 copies of their comments to: p.m. Individuals wishing to make public Federal Energy Regulatory Commission, Secretary of the Commission, 888 First ADDRESSES: Ohio State University, comments will be provided a maximum Street, NE., Washington, DC 20426. Endeavor Center, 1862 Shyville Road, of five minutes to present their Instructions: For detailed instructions Piketon, Ohio 45661. comments. This notice is being published less than 15 days prior to the on submitting comments and additional FOR FURTHER INFORMATION CONTACT: Joel information on the rulemaking process, Bradburne, Deputy Designated Federal meeting date due to programmatic issues that had to be resolved prior to see the Comment Procedures Section of Officer, Department of Energy this document. Portsmouth/Paducah Project Office, Post the meeting date. FOR FURTHER INFORMATION CONTACT: Office Box 700, Piketon, Ohio 45661, Minutes: Minutes will be available by Raymond Montini, Office of (740) 897–3822, writing or calling Joel Bradburne at the Enforcement, Federal Energy [email protected]. address and phone number listed above. Minutes will also be available at the Regulatory Commission, 888 First SUPPLEMENTARY INFORMATION: following Web site: http://www.ports- Street, NE., Washington, DC 20426, Purpose of the Board: The purpose of ssab.org/publicmeetings.html. (202) 502–8714. the Board is to make recommendations [email protected]. to DOE–EM and site management in the Issued at Washington, DC, on January 22, Christina Switzer (Legal Information), areas of environmental restoration, 2010. Office of the General Counsel, Federal waste management, and related Rachel Samuel, Energy Regulatory Commission, 888 activities. Deputy Committee Management Officer. First Street, NE., Washington, DC Purpose of the D&D Subcommittee: [FR Doc. 2010–1684 Filed 1–28–10; 8:45 am] 20426, (202) 502–6379. The purpose of the subcommittee is to BILLING CODE 6450–01–P [email protected].

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Before Commissioners: Jon addition, the Commission is considering for wholesale natural gas and electric Wellinghoff, Chairman; Marc Spitzer, other refinements to the existing EQR markets. As a result, the Commission Philip D. Moeller, and John R. Norris. filing requirements that may used its new transparency authority to significantly enhance the effectiveness adopt additional filing and posting Notice of Inquiry of the information gathered. requirements for the sale or Issued January 21, 2010 I. Background transportation of physical natural gas in 1. In this Notice of Inquiry, the interstate commerce. Specifically, Order Federal Energy Regulatory Commission A. Commission Authority No. 704 requires buyers and sellers of (Commission) seeks comments on 3. EPAct 2005’s transparency more than a de minimis volume of whether the Commission’s Electric provisions 6 enhance the Commission’s natural gas to report aggregate volumes Quarterly Report (EQR) 1 filing authority to collect ‘‘information about of relevant transactions in an annual requirements should be applied to the availability and prices’’ of natural filing.11 market participants that are excluded gas and electricity sold at wholesale in 5. In exercising its new market from the Commission’s jurisdiction interstate commerce ‘‘to facilitate price transparency authority, the Commission under section 205 of the Federal Power transparency.’’ 7 EPAct 2005 requires explained that it required information Act (FPA).2 Section 201(f) of the FPA that the Commission consider the from a market participant regardless of excludes certain entities (i.e., Federal degree of price transparency provided whether it is subject to the entities, municipalities, and certain by existing price publishers and trade Commission’s traditional jurisdiction cooperatives with Rural Electrification processing services, and rely on such because ‘‘[p]rice formation in natural gas Act financing and that sell less than publishers and services to the maximum markets makes no distinction between 8 4,000,000 MWh of electricity per year) extent possible. However, if the transactions that are jurisdictional.’’ The from the Commission’s jurisdiction.3 Commission determines that existing Commission further explained that the However, section 201(b)(2) states that, price publications do not adequately ‘‘final rule will facilitate transparency of notwithstanding section 201(f), several provide price discovery or market the price formation process in natural transparency, the Commission may sections of the FPA, including section gas markets by collecting information to 4 establish an electronic information 220, shall apply to the entities understand in broad terms the size of system.9 EPAct 2005 also permits the described in those sections and such the natural gas market and the use of Commission to require ‘‘any market entities shall be subject to the fixed prices and of index prices.’’ In participant,’’ except for entities with a Commission’s jurisdiction for the turn, this information purposes of carrying out those particular de minimis market presence, to provide provisions. Section 220 of the FPA information with ‘‘due regard for the further[s] the Commission’s efforts to monitor directs the Commission ‘‘to facilitate public interest, the integrity of those price formation in the wholesale natural gas price transparency in markets for the markets, fair competition, and the markets, which supports the Commission’s 10 sale and transmission of electric energy protection of consumers.’’ market-oriented policies for the wholesale in interstate commerce * * *’’ and 4. In 2006, Commission staff natural gas industries. [Such] policies require that interested persons have broad states that the Commission may obtain conducted an extensive outreach effort to formulate options for implementing confidence that reported market prices ‘‘information about the availability and EPAct 2005’s transparency provisions accurately reflect the interplay of legitimate prices of wholesale electric energy and market forces. Without confidence in the transmission service’’ from ‘‘any market basic processes of price formation, market ’’ (1) The Commission is directed to facilitate price participant. Thus, section 220 of the transparency in markets for the sale and participants cannot have faith in the value of FPA, when read in conjunction with transmission of electric energy in interstate their transactions, the public cannot believe commerce, having due regard for the public section 201(b)(2), provides the that the prices they see are fair, and it is more Commission with jurisdiction to require interest, the integrity of those markets, fair competition, and the protection of consumers. difficult for the Commission to ensure that information regarding the availability (2) The Commission may prescribe such rules as and prices of wholesale electric energy the Commission determines necessary and 11 Transparency Provisions of Section 23 of the and transmission service from market appropriate to carry out the purposes of this Natural Gas Act, Order No. 704, FERC Stats. & Regs. section. The rules shall provide for the participants, including those that are ¶ 31,260, at P 32 (2007), order on reh’g, Order No. dissemination, on a timely basis, of information 704–A, 73 FR 55726 (Sept. 26, 2008), FERC Stats. typically beyond the Commission’s about the availability and prices of wholesale & Regs. ¶ 31,275 (2008), order dismissing reh’g and jurisdiction for other purposes. electric energy and transmission service to the clarification, Order No. 704–B, 125 FERC ¶ 61,302 Commission, State commissions, buyers and sellers 2. This Notice of Inquiry will assist (2008) (‘‘Without confidence in the basic processes of wholesale electric energy, users of transmission the Commission in determining what of price formation, market participants cannot have services, and the public. faith in the value of their transactions, the public changes, if any, should be made to its 6 See EPAct 2005 § 316 (codified as 15 U.S.C. regulations under the electric market cannot believe that the prices they see are fair, and 717t–2) (amending the Natural Gas Act (NGA) to it is more difficult for the Commission to ensure add the Natural Gas Market Transparency Rules in transparency provisions of section 220 that jurisdictional prices are ‘just and section 23); EPAct 2005 § 1281 (codified as 16 of the FPA, as adopted in the Energy reasonable.’ ’’); see also, Pipeline Posting U.S.C. 824t) (amending the FPA to add the 5 Requirements under Section 23 of the Natural Gas Policy Act of 2005 (EPAct 2005). In Electricity Market Transparency Rules in section Act, Order No. 720, 73 FR 73494 (Dec. 2, 2008), 220). FERC Stats. & Regs. ¶ 31,283, at P 3 (2008), order 1 At present, all public utilities, including power 7 Id. on reh’g, Order No. 720–A, 130 FERC ¶ 61,040 marketers, must file EQRs summarizing contractual 8 Id. (2010). In addition, if a market participant buys or terms and conditions in their agreements for all 9 EPAct 2005 § 1281(a)(4). sells less than a de minimis volume, but operates jurisdictional power sales. In addition to other 10 EPAct 2005 § 1281(d). In addition, EPAct 2005 under blanket sales certificate authority pursuant to requirements, EQR filers must provide detailed § 1281(b)(1–2) directs the Commission to exempt section 284.402 or section 284.284 of the transactional information, including product type, from disclosure information that is ‘‘detrimental to Commission’s regulations, then it must make a price, quantity, duration and receipt and delivery the operation of an effective market or [that would] filing with the Commission for identification and points. jeopardize system security,’’ and ‘‘to ensure that reporting purposes. However, it is not required to 2 16 U.S.C. 824d (2006). consumers and competitive markets are protected report aggregate volumes of relevant transactions. A 3 16 U.S.C. 824(f) (2006). from the adverse effects of potential collusion or market participant that buys or sells less than a de 4 16 U.S.C. 824t (2006). other anticompetitive behaviors that can be minimis volume and does not operate under blanket 5 EPAct 2005, Public Law 109–58, 119 Stat. 594. facilitated by untimely public disclosure of sales certificate authority is not required to make an EPAct 2005 § 1281(a)(1)–(2) states: proprietary trading information.’’ annual filing with the Commission.

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jurisdictional prices are ‘‘just and clarifying various aspects of the pro will enhance the Commission’s ability reasonable.’’ 12 forma [Open Access Transmission to effectively examine and monitor: (1) 6. In Order No. 720, the Commission Tariff].’’ 18 Moreover, in Order No. 719, Price formation; (2) the number of sales; required major non-interstate pipelines the Commission made reforms ‘‘to and (3) the market concentration to post scheduled flow information and improve the operation [and occurring in electric markets where information for each receipt and competitiveness] of organized wholesale market participants that are excluded delivery point with a design capacity electric power markets’’ in connection from the Commission’s section 205 13 greater than 15,000 MMBtu per day. with ‘‘fulfilling its statutory mandate to jurisdiction play a large role.21 Because Order No. 720 also requires interstate ensure supplies of electric energy at numerous market participants that are pipelines to post information regarding just, reasonable and not unduly excluded from the Commission’s section 14 no-notice service. Similar to the discriminatory or preferential rates.’’ 19 205 jurisdiction do not file EQRs, a Commission’s reasoning in Order No. Nonetheless, these final rules did not jurisdictional seller’s market presence 704, the Commission explained that specifically address the facilitation of (i.e., its role in price formation) is Order No. 720’s price transparency in electric markets. difficult to determine.22 Obtaining more posting requirements . . . are grounded in the Commission’s authority under section 23 As a result, the Commission now seeks complete price and volume information of the NGA (as added by EPAct 2005), which comments on whether the EQR filing for sales of electricity will increase the directs the Commission, in relevant part, to requirements should be applied to Commission’s ability to monitor power obtain and disseminate ‘information about market participants that are excluded sales for indications of market power the availability and prices of natural gas at from the Commission’s jurisdiction and manipulation. wholesale and in interstate commerce.’ This under section 205 of the FPA. 10. In addition, the EQR assists the provision enhances the Commission’s Commission’s analysis of whether to authority to ensure confidence in the nation’s B. Current Collection and Uses of EQR grant a seller market-based rate natural gas markets. The Commission’s Data market-oriented policies for the wholesale authority (ex ante analysis) and natural gas industry require that interested 8. At present, market participants that provides an after the fact look at market- persons have broad confidence that reported fall within the Commission’s based rate authorization (ex post market prices accurately reflect the interplay jurisdiction under section 205(c) of the analysis).23 Collecting information from of legitimate market forces. Without FPA must file EQRs summarizing market participants that are excluded confidence in the efficiency of price contractual terms and conditions in from the Commission’s section 205 formation, the true value of transactions is 15 their agreements for all jurisdictional jurisdiction would strengthen the very difficult to determine. services, including market-based rate Commission’s regulatory scheme and 7. In the Natural Gas Transparency power sales, cost-based rate power sales enhance its oversight of the market- Notice of Proposed Rulemaking (NOPR), and transmission service sales that are based rate program. the Commission declined to extend part of power sales. EQR filers also must 11. For instance, the Commission’s ex such requirements to wholesale electric provide detailed transactional ante analysis of whether to grant a seller markets because, at the time, the information, including product type, market-based rate authority 24 may Commission was considering other price, quantity, duration and receipt and reforms to its regulation of electric delivery points for all power sales. 21 The Energy Information Administration’s markets.16 In particular, the Electric Power Industry Overview 2007 estimated 9. As explained in Order No. 2001, that 29 percent of electric utility sales are made by Commission referred to its open access one goal of the EQR is to ensure that publicly-owned electric utilities (municipals, transmission service reforms and the customers and the Commission have the public utility districts or public power districts, more general review of competition in information ‘‘to identify situations that State authorities, irrigation districts, and joint wholesale electric markets.17 These municipal action agencies), consumer-owned rural indicate the possible exercise of market electric cooperatives, and Federal electric utilities. efforts eventually led to two final rules. power that warrant specific Energy Information Administration, Electric Power In Order No. 890, the Commission investigation.’’ 20 Requiring EQR Industry Overview 2007 (March 2009), http:// exercised its remedial authority ‘‘to limit information from market participants www.eia.doe.gov/cneaf/electricity/page/prim2/ further opportunities for undue that are excluded from the toc2.html. discrimination, by minimizing areas of 22 For example, obtaining the sales information Commission’s section 205 jurisdiction from market participants that are excluded from the discretion, addressing ambiguities and Commission’s jurisdiction under section 205 of the 18 Preventing Undue Discrimination and FPA in the West and Southeast would enhance 12 Order No. 704, FERC Stats. & Regs. ¶ 31,260 at Preference in Transmission Service, Order No. 890, Commission staff’s ability to assess market P 7. FERC Stats. & Regs. ¶ 31,241, at P 40, order on conditions and identify the sales volumes reh’g, Order No. 890–A, FERC Stats. & Regs. ¶ transacted at major trading hubs in these regions. 13 Order No. 720, FERC Stats. & Regs. ¶ 31,283 at 31,261 (2007), order on reh’g and clarification, 23 Ex post analysis includes ongoing oversight P 1. Issued contemporaneously with this order is Order No. 890–B, 73 FR 39092 (Jul. 8, 2008), 123 (EQR post analysis) and a timely reconsideration of Order No. 720–A, which broadly affirms Order No. FERC ¶ 61,299 (2008), order on reh’g, Order No. market-based rate authorization (triennial review). 720, but grants certain requests for rehearing and 890–C, 126 FERC ¶ 61,228 (2009), order on Ongoing EQR post analysis is conducted by clarification, including a finding that major non- clarification, Order No. 890–D, 129 FERC ¶ 61,126 Commission staff after each quarterly filing. A interstate pipelines must post scheduled flow data (2009). triennial review is an updated market power for virtual or pooling points, subject to certain 19 Wholesale Competition in Regions with analysis filed every three years by large conditions. Organized Electric Markets, Order No. 719, 73 FR jurisdictional sellers that have been granted market- 14 Id. 64100 (Oct. 28, 2008), FERC Stats. & Regs. ¶ 31,281, based rate authorization. The filing includes, among 15 Id. P 3. at P 1 (2008), order on reh’g, Order No. 719–A, 74 other things, representations of how the seller 16 See Transparency Provisions of Section 23 of FR 37776 (Jul. 29, 2009), FERC Stats. & Regs. ¶ satisfies the Commission’s concerns with regard to the Natural Gas Act; Transparency Provisions of the 31,292 (2009), order denying reh’g and providing horizontal and vertical market power. Energy Policy Act, Notice of Proposed Rulemaking, clarification, Order No. 719–B, 129 FERC ¶ 61,252 24 The Commission’s market-based rate program FERC Stats. & Regs. 32,614, at P 9–11 (2007) (2009). does not rely on an ex ante finding alone, but (Natural Gas Transparency NOPR) (‘‘The 20 Revised Public Utility Filing Requirements, instead depends on a consistent review of Commission does not propose action with respect Order No. 2001, FERC Stats. & Regs. ¶ 31,127, at transaction data to ensure that such rates are just to electric markets at this time. The Commission P 1,4, reh’g denied, Order No. 2001–A, 100 FERC and reasonable. In approving the Commission’s has recently addressed and is currently addressing ¶ 61,074, reh’g denied, Order No. 2001–B, 100 market-based rate program, the Ninth Circuit electric market transparency in other FERC ¶ 61,342, order directing filing, Order No. upheld the Commission’s program because it relies proceedings.’’). 2001–C, 101 FERC ¶ 61,314 (2002), order directing on a ‘‘system [that] consists of a finding that the 17 Id. filing, Order No. 2001–D, 102 FERC ¶ 61,334 (2003). Continued

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include, among other things, a detailed based on actual sales data,27 a seller II. Discussion review of price data. One tool used by with market-based rate authority has 14. Applying the EQR filing the Commission is the delivered price obtained an excessive market share 25 requirements to all market participants test (DPT), a well-established test that since the original authorization to that are excluded from the has been used routinely to analyze transact at market-based rates or since Commission’s section 205 jurisdiction, market power for market-based rate its last review of such rates. Ex post except for those with a de minimis authorizations and merger analyses. analyses that fail to include sales by all market presence, would aid the Commission staff and outside parties market participants, except for those Commission’s oversight and preparing a DPT analysis rely on proxy with a de minimis market presence, are surveillance of wholesale electric prices and published price indices to under-inclusive and may provide markets and increase price transparency determine the price at which market unreliable results. In addition, because for market participants. The participants that do not file EQRs may market information from market Commission requests comments on be able to deliver power. A better participants that are excluded from the what EQR information should be approach would be to obtain more Commission’s section 205 jurisdiction is obtained from these market participants complete price and volume information for the Commission to ensure that for sales of electricity to more accurately not available, the Commission is not electricity markets are transparent. reflect market prices, improve the able to compare prices for power sold by Specifically, the Commission requests quality of the DPT results and assist the section 205 jurisdictional sellers with comments on the following questions: Commission in determinations those prices of certain sellers in the (1) Should the Commission extend regarding the ability of sellers to same market. The Commission’s post- EQR filing requirements to market exercise market power. Further, market approval reporting requirements are a participants that are excluded from the participants also will benefit as a result crucial aspect of the Commission’s of having more transparency in the market-based rate program.28 Thus, Commission’s section 205 jurisdiction? (2) Should the Commission establish market because enhanced transparency requiring market participants that are a threshold pursuant to which market will provide more information for excluded from the Commission’s section market participants to make decisions 205 jurisdiction to file market participants (that are excluded from the regarding the value of transactions. In information would improve the quality Commission’s jurisdiction under section 205 of the FPA) with a de minimis addition, with regard to mergers and of the information available to the market presence would not be subject to acquisitions, because the DPT is a Commission and enhance staff’s ability the EQR filing requirements? If so, what primary tool used to evaluate the effect to evaluate jurisdictional markets. on competition, obtaining power sales should that threshold be and on what information from market participants C. Refinements to Existing EQR basis should it be established (i.e., by that are excluded from the Commission Requirements total annual sales, total annual sales for section 205 jurisdiction will provide a resale, power exchanges delivered)? 13. In combination with the broader better basis for consideration of whether (3) Would extending the EQR effort to improve the Commission’s to approve merger/acquisition proposals reporting requirements to market under section 203 of the FPA.26 access to information about the participants that are excluded from the 12. Ex post analysis using market availability and prices of wholesale Commission’s section 205 jurisdiction information from market participants sales of electricity outlined above, the impact liquidity (e.g., the number of that are excluded from the Commission is also considering other power sales) or the amount of power Commission’s section 205 jurisdiction refinements to the existing EQR filing made available in the markets? If so would provide the Commission with requirements that may significantly how, and, to the extent possible, critical information to consider whether, enhance the effectiveness of the quantify it. information. The specific refinements (4) What specific information should applicant lacks market power (or has taken include: (1) Reporting the trade date the Commission require to be filed? sufficient steps to mitigate market power), coupled (i.e., the date on which a transaction Include specific data elements from the with strict reporting requirements to ensure that the Commission’s EQR Data Dictionary, rate is ‘just and reasonable’ and that markets are not price is set) and the type of rate (i.e., subject to manipulation.’’ State of California, ex rel. fixed price, a formula, or an index); (2) version 1.1 (issued October 28, 2008) Bill Lockyer v. FERC, 383 F.3d 1006, 1013 (9th Cir. reporting resales of financial and explain why the information with 2004), cert. denied (S. Ct. Nos. 06–888 and 06–1100, transmission rights in secondary respect to these specific data elements June 18, 2007)). should be required. 25 The DPT defines the relevant market by markets; (3) standardizing the unit for identifying potential suppliers based on market reporting energy and capacity (5) Are there certain EQR filing prices, input costs and transmission availability, transactions (i.e., dollars per MWh and requirements that should not extend to and then calculates each supplier’s economic dollars per MW/month); and (4) market participants that are excluded capacity and available economic capacity for each from the Commission’s section 205 season/load condition. Market-Based Rates For omitting the time zone from the contract Wholesale Sales Of Electric Energy, Capacity And section of the EQR. jurisdiction? If so, specify the data Ancillary Services By Public Utilities, Order No. elements from the Commission’s EQR 697, FERC Stats. & Regs. ¶ 31,252, at P 106 (2007), Data Dictionary, version 1.1 (issued clarified, 121 FERC ¶ 61,260 (2007), order on reh’g, 27 The use of actual sales information is Order No. 697–A, 73 FR 25832 (May 7, 2008), FERC consistent with the analysis used by the Department October 28, 2008) and explain why the Stats. & Regs. ¶ 31,268, order on reh’g, Order No. of Justice’s Antitrust Division and the Federal Trade information with respect to these 697–B, FERC Stats. & Regs. ¶ 31,285 (2008), order Commission. specific data elements should not be on reh’g, Order No. 697–C, FERC Stats. & Regs. ¶ 28 As noted above, the Ninth Circuit upheld the required. 31,291 (2009). The Commission requires the DPT if Commission’s market-based rate regulatory scheme a seller fails one of the indicative screens. The and found that it was valid due to the Commission’s (6) What would the burden be on indicative screens analyze the number of megawatts ‘‘dual requirement of an ex ante finding of the market participants that are excluded of capacity an applicant owns or controls, rather absence of market power and sufficient post- from the Commission’s section 205 than analyzing actual price data. However, ‘‘sellers approval reporting requirements.’’ State of jurisdiction that must adapt their that do not pass the indicative screens are allowed California, ex rel. Bill Lockyer, Attorney General of to provide additional analysis for Commission the State of California, 125 FERC ¶ 61,016 (2008) existing systems to be able to provide consideration,’’ including price data. Id. P 62. (denying the California Parties’ request for the information to comply with the 26 16 U.S.C. 824b (2006). rehearing). Commission’s EQR filing requirements?

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Please estimate the amount of time and related matters or alternative proposals By the Commission. Commissioner Norris resources that would be necessary for that commenters may wish to discuss. voting present. market participants that are excluded Comments are due March 30, 2010. Nathaniel J. Davis, Sr., from the Commission’s section 205 Comments must refer to Docket No. Deputy Secretary. jurisdiction to comply with the RM10–12–000, and must include the [FR Doc. 2010–1545 Filed 1–28–10; 8:45 am] Commission’s EQR filing requirements commenter’s name, the organization BILLING CODE 6717–01–P and provide explanation and support for they represent, if applicable, and their any estimate. address in their comments. 15. In addition, as described above in 17. The Commission encourages ENVIRONMENTAL PROTECTION section I.C., the Commission is comments to be filed electronically via AGENCY evaluating whether refinements are the eFiling link on the Commission’s needed to improve the effectiveness and Web site at http://www.ferc.gov. The [EPA–HQ–OECA–2009–0494; FRL–9108–2] analytical potential of the existing EQR Commission accepts most standard filing requirements. Accordingly, the word processing formats. Documents Agency Information Collection Commission requests comments on the created electronically using word Activities; Submission to OMB for following additional questions: processing software should be filed in Review and Approval; Comment (7) Should the EQR filing native applications or print-to-PDF Request; Tips and Complaints requirements include the date on which format and not in a scanned format. Regarding Environmental Violations; parties to a reported transaction agreed Commenters filing electronically do not EPA ICR No. 2219.03, OMB Control No. upon a price (trade date) and type of need to make a paper filing. 2020–0032 rate by which the price was set (i.e., 18. Commenters that are not able to AGENCY: Environmental Protection fixed price, a formula, or an index)? If file comments electronically must send Agency (EPA). so, how should the trade date be defined an original and 14 copies of their and are there any issues in determining comments to: Federal Energy Regulatory ACTION: Notice. the trade date for sales under master Commission, Secretary of the SUMMARY: In compliance with the agreement or evergreen contracts? Commission, 888 First Street, NE., Paperwork Reduction Act (PRA) (44 (8) Should the Commission collect Washington, DC 20426. U.S.C. 3501 et seq.), this document information about the resale of financial 19. All comments will be placed in announces that an Information transmission rights in secondary the Commission’s public files and may Collection Request (ICR) has been markets? Would collecting this be viewed, printed, or downloaded forwarded to the Office of Management information enhance market remotely as described in the Document and Budget (OMB) for review and transparency? If so, what current EQR Availability section below. Commenters approval. This is a request to renew an filing requirements should be imposed on this proposal are not required to existing approved collection. The ICR, on resales of financial transmission serve copies of their comments on other which is abstracted below, describes the rights in secondary markets? Include commenters. nature of the information collection and data elements from the Commission’s IV. Document Availability its estimated burden and cost. EQR Data Dictionary, version 1.1 (issued October 28, 2008) and explain how the 20. In addition to publishing the full DATES: Additional comments may be information with respect to these text of this document in the Federal submitted on or before March 1, 2010. specific data elements would improve Register, the Commission provides all ADDRESSES: Submit your comments, market transparency. In addition, interested persons an opportunity to referencing Docket ID No. EPA–HQ– identify all other filing requirements view and/or print the contents of this OECA–2009–0494, to (1) EPA online that may be applicable to resales of document via the Internet through using http://www.regulations.gov (our financial transmission rights in FERC’s Home Page (http://www.ferc.gov) preferred method), by e-mail to secondary markets that are not current and in FERC’s Public Reference Room [email protected], or by mail to: The EQR filing requirements and explain during normal business hours (8:30 a.m. Enforcement and Compliance Docket whether and, if so, how collection of the to 5 p.m. Eastern time) at 888 First and Information Center, Environmental information would improve market Street, NE., Room 2A, Washington, DC Protection Agency, Mailcode 28221T, transparency. 20426. 1301 Constitution Ave., NW., (9) Should the Commission require 21. From FERC’s Home Page on the Washington, DC 20460, and (2) OMB by market participants to use a Internet, this information is available on mail to: Office of Information and standardized unit for reporting energy eLibrary. The full text of this document Regulatory Affairs, Office of and capacity transactions (i.e., $/MWh is available on eLibrary in PDF and Management and Budget (OMB), or $/MWmonth for energy and $/MW or Microsoft Word format for viewing, Attention: Desk Officer for EPA, 725 $/KW for capacity)? Would requiring printing, and/or downloading. To access 17th Street, NW., Washington, DC market participants to use a this document in eLibrary, type the 20503. docket number excluding the last three standardized unit enhance market FOR FURTHER INFORMATION CONTACT: digits of this document in the docket transparency? Michael Le Desma; Legal Counsel (10) Should the Commission number field. 22. User assistance is available for Division; Office of Criminal eliminate the requirement to report the Enforcement, Forensics, and Training; time zone in the contract section of the eLibrary and the FERC’s Web site during normal business hours from FERC Environmental Protection Agency, EQR? Would doing so be detrimental to Building 25, Box 25227, Denver Federal the market as a whole? Online Support at 202–502–6652 (toll free at 1–866–208–3676) or e-mail at Center, Denver, CO 80025; telephone III. Comment Procedures [email protected], or the number: (303) 462–9453; fax number: 16. The Commission invites interested Public Reference Room at (202) 502– (303) 462–9075; e-mail address: persons to submit comments on the 8371, TTY (202)502–8659. E-mail the [email protected]. matters and issues proposed in this Public Reference Room at SUPPLEMENTARY INFORMATION: EPA has notice to be adopted, including any [email protected]. submitted the following ICR to OMB for

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review and approval according to the appropriate means, such as on the Dated: January 21, 2010. procedures prescribed in 5 CFR 1320.12. related collection instrument or form, if John Moses, On October 13, 2009 (74 FR 52486), EPA applicable. The display of OMB control Director, Collection Strategies Division. sought comments on this ICR pursuant numbers in certain EPA regulations is [FR Doc. 2010–1855 Filed 1–28–10; 8:45 am] to 5 CFR 1320.8(d). EPA received no consolidated in 40 CFR part 9. BILLING CODE 6560–50–P comments during the comment period. Abstract: EPA tips and complaints Any additional comments on this ICR web form is intended to provide an easy should be submitted to EPA and OMB and convenient means by which ENVIRONMENTAL PROTECTION within 30 days of this notice. members of the public can supply AGENCY EPA has established a public docket information to EPA regarding suspected for this ICR under Docket ID No. EPA– violations of environmental law. The [ER–FRL–8987–8] HQ–OECA–2009–0494, which is decision to provide a tip or complaint Environmental Impact Statements and available for online viewing at http:// is entirely voluntary and use of the web Regulations; Availability of EPA www.regulations.gov, or in person form when supplying a tip or com- Comments viewing at the Enforcement and plaint is also entirely voluntary. Tippers Compliance Docket and Information need not supply contact information or Availability of EPA comments Center in the EPA Docket Center other personal identifiers. Those who do prepared pursuant to the Environmental (EPA/DC), EPA West, Room 3334, 1302 supply such information, however, Review Process (ERP), under section Constitution Ave., NW., Washington, should know that this information may 309 of the Clean Air Act and Section DC. The EPA/DC Public Reading Room be shared by EPA with appropriate 102(2)(c) of the National Environmental is open from 8 a.m. to 4:30 p.m., administrative, law enforcement, and Policy Act as amended. Requests for Monday through Friday, excluding legal judicial entities engaged in investigating copies of EPA comments can be directed holidays. The telephone number for the or adjudicating the tip or complaint. to the Office of Federal Activities at Reading Room is 202–566–1744, and the Burden Statement: The annual public 202–564–7146 or http://www.epa.gov/ telephone number for the Enforcement reporting and recordkeeping burden for compliance/nepa/. and Compliance Docket and Information this collection of information is An explanation of the ratings assigned Center is 202–566–1927. estimated to average one-half hour per to draft environmental impact Use EPA’s electronic docket and response. Burden means the total time, statements (EISs) was published in FR comment system at http:// effort, or financial resources expended dated July 17, 2009 (74 FR 34754). www.regulations.gov, to submit or view by persons to generate, maintain, retain, Notice public comments, access the index or disclose or provide information to or listing of the contents of the docket, and for a Federal agency. This includes the In accordance with Section 309(a) of to access those documents in the docket time needed to review instructions; the Clean Air Act, EPA is required to that are available electronically. Once in develop, acquire, install, and utilize make its comments on EISs issued by the system, select ‘‘docket search,’’ then technology and systems for the purposes other Federal agencies public. key in the docket ID number identified of collecting, validating, and verifying Historically, EPA has met this mandate above. Please note that EPA’s policy is information, processing and by publishing weekly notices of that public comments, whether maintaining information, and disclosing availability of EPA comments, which submitted electronically or in paper, and providing information; adjust the includes a brief summary of EPA’s will be made available for public existing ways to comply with any comment letters, in the Federal viewing at http://www.regulations.gov previously applicable instructions and Register. Since February 2008, EPA has as EPA receives them and without requirements which have subsequently been including its comment letters on change, unless the comment contains changed; train personnel to be able to EISs on its Web site at: http:// copyrighted material, confidential respond to a collection of information; www.epa.gov/compliance/nepa/ business information (CBI), or other search data sources; complete and eisdata.html. information whose public disclosure is review the collection of information; Including the entire EIS comment restricted by statute. For further and transmit or otherwise disclose the letters on the Web site satisfies the information about the electronic docket, information. Section 309(a) requirement to make go to http://www.regulations.gov. Respondents/Affected Entities: EPA’s comments on EISs available to Title: Tips and Complaints Regarding Anyone wishing to file a tip or the public. Accordingly, after March 31, Environmental Violations. complaint. 2010, EPA will discontinue the ICR Numbers: EPA ICR No. 2219.03, Estimated Annual Number of publication of this notice of availability OMB Control No. 2009–0032. Respondents: 7,560. of EPA comments in the Federal ICR Status: This ICR is scheduled to Estimated Total Annual Hour Burden: Register. expire on 2/28/2010. Under OMB 3,780. Draft EISs regulations, the Agency may continue to Estimated Total Annual Cost: conduct or sponsor the collection of $75,146. EIS No. 20080460, ERP No. D–FHW– information while this submission is Changes in the Estimates: There is an J40186–CO, I–70 East Project, pending at OMB. An Agency may not increase of 1980 hours in the total Transportation Improvement from I– conduct or sponsor, and a person is not estimated respondent burden compared 70 East from 1–25 to Tower Road, required to respond to, a collection of with that identified in the ICR currently Funding, City and County Denver, information, unless it displays a approved by OMB. This increase reflects CO. currently valid OMB control number. the fact that tips and complaints are Summary: EPA expressed The OMB control numbers for EPA’s being filed at a higher rate than environmental concern about air quality regulations in title 40 of the CFR, after originally anticipated, a strong impacts. EPA recommended additional appearing in the Federal Register when indication of the success of this mitigation for PM10 impacts, dispersion approved, are listed in 40 CFR part 9, program. There has been no change in modeling and possible additional are displayed either by publication in the information being reported or the mitigation for MSAT impacts. Rating the Federal Register or by other estimated burden per respondent. EC2.

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EIS No. 20090058, ERP No. D–AFS– negatively impact natural and cultural Summary: EPA’s previous concerns J65534–MT, Miller West Fisher resources. Rating LO. have been resolved; therefore, EPA has Project, Proposes Land Management EIS No. 20090388, ERP No. D–AFS– no objection to the proposed action. Activities, including Timber Harvest, L65524–0R, Fremont-Winema EIS No. 20090339, ERP No. F–AFS– Access Management, Road Storage National Forests Invasive Plant J65539–00, Ashley National Forest and Decommissioning, Prescribed Treatment, Propose to Treat up to Motorized Travel Plan, To Improve Burning and Precommercial 8,700 Acres of Invasive Plant Management of Public Summer Thinning, Miller Creek, West Fisher Infestation Per Year, Klamath and Motorized Use by Designating Roads Creek and the Silver Butte Fisher Lake Counties, OR. and Motorized Trails and Limiting River, Libby Ranger District, Kootenai Dispersed Camping to Areas, National Forest, Lincoln County, MT. Summary: EPA expressed Duchesne, Daggett, Uintah Counties, environmental concern about Summary: EPA expressed Utah and Sweetwater County, monitoring and adaptive Management Wyoming. environmental concern about channel issues. Rating EC2. stability in Miller Creek as a result of Summary: The preparing agencies water yield increases from proposed EIS No. 20090407, ERP No. D–NOA– responded adequately to EPA’s timber harvests, and noted the need to L91034–00, Rationalization of the comments on the DEIS. There are no assure project consistency with TMDL Pacific Coast Groundfish Limited continuing significant issues. preparation in the watershed of the Entry Trawl Fishery, Amendment 20, EIS No. 20090366, ERP No. F–FHW– water quality impaired Fisher River. Implementation, WA, OR and CA. J40177–CO, US–36 Corridor, Multi- Rating EC2. Summary: EPA does not object to the Modal Transportation Improvements EIS No. 20090196, ERP No. D–SFW– proposed action. Rating LO. between I–25 in Adams County and Foothills Parkway/Table Mesa Drive J99043–MT, Montana Department of EIS No. 20090418, ERP No. D–COE– in Boulder, Adams, Denver, Natural and Resources and E39078–NC, The Town of Nags Head Broomfield, Boulder and Jefferson Conservation Plan (HCP), Forested Beach Nourishment Project, Propose Counties, CO. State Trust Lands, Designed to to Utilize a Self-Contained Hooper Minimize and Mitigate any such Take Dredge and Other Feasible Dredging Summary: EPA continues to express of Endangered or Threatened Species, Equipment during a Proposed environmental concern about water Application for an Incidental Take Construction Window from April quality impacts. EPA recommended Permit, MT. through September, Dare County, NC. long-term monitoring and maintenance of storm water best management Summary: EPA expressed Summary: EPA expressed practices. EPA requested clarification of environmental concern about impacts to environmental concerns about the use of air quality discussion related to water quality, aquatic habitat, aquatic hopper dredges and their potential particulate matter emissions be ecological functions, and recommended effect on marine and threatened and included in the record of decision. additional protections and endangered resources. EPA has EIS No. 20090416, ERP No. F–UMC– commitments to provide more requested that the Final SEIS include comprehensive protection. Rating EC2. E11070–NC, U.S. Marine Corps Grow the finalized mitigation plan, the the Force at MCB Camp Lejeune, EIS No. 20090257, ERP No. D–BLM– finalized sea turtle protocol, the map of MCAS New River, and MCAS Cherry J65545–SD, Dewey Conveyor Project, the final borrow areas, and some Point, To Provide the Infrastructure to To Transport Limestone from a Future representative boring logs from the Support the Permanent Increases at Quarry Location to a Rail Load-Out selected final borrow areas. Rating EC2. these three Installations, US Army Facility near Dewey, Application for EIS No. 20090410, ERP No. DS–IBR– Corps Section 404 and 10 Permits, Transportation and Utility Systems K36146–CA, Mormon Island Auxiliary City of Jacksonville, NC. and Facilities on Federal Lands, Dam Modification Project, Addressing Summary: EPA recommended that a Custer County, SD. Hydrologic, Seismic, Static, and Flood comprehensive alternative Summary: EPA expressed Management Issues, Sacramento and transportation program be developed environmental concern about air quality El Dorado Counties, CA. to assist the area in meeting air impacts, especially regarding connected Summary: EPA expressed quality standards in the future. action sources including the limestone environmental concerns about EIS No. 20090433, ERP No. F–AFS– quarry and subsequent mining activities construction air quality impacts, K65366–CA, Lassen National Forest, that would likely have significant exposure to Naturally Occurring Motorized Travel Management Plan, particulate emissions. EPA also Asbestos, and impacts to vernal pools, Implementation, Butte, Lassen, requested additional information on wetlands, and riparian habitat. EPA Modoc, Plumas, Shasta, Siskiyou, water resources in the project and recommended continued coordination Tehama Counties, CA. quarry areas. Rating EC2. with Air Quality Management Districts, Summary: EPA continues to express EIS No. 20090371, ERP No. D–NPS– inclusion of the Section 404 Permit for environmental concerns about impacts E65086–KY, Cumberland Gap the Folsom Dam Safety/Flood Damage to water quality and sensitive resources. National Historical Park, General Reduction Project, and a description of EIS No. 20090444, ERP No. F–USA– Management Plan, Implementation, the 404 permit amendments for the G11051–NM, White Sands Missile Middlesboro, KY. MIAD Modification Project. Rating EC2. Range (WSMR), Development and Implementation of Range-Wide Summary: While EPA has no Final EISs objection to the proposed action, EPA Mission and Major Capabilities, NM. did recommend additional monitoring EIS No. 20090078, ERP No. F–NIH– Summary: No formal comment letter activities to ensure that the increase in J81013–MT, Rocky Mountain was sent to the preparing agency. EIS hardened access areas and likely Laboratories (RML) Master Plan, No. 20090441, ERP No. FS–FHW– subsequent increase in recreational and Implementation, Hamilton, Ravalli E40768–TN, Shelby Avenue/ educational usage of the park do not County, MT. Demonbreun Street (Gateway Boulevard

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Corridor, from I–65 North [I–24 West] to Summers Counties, WV, Comment SUMMARY: The Environmental Protection I–40 West in Downtown Nashville, To Period Ends: 03/29/2010, Contact: Agency (EPA) receives from time to time Address Transportation needs in the Deborah Darden 304–465–6509. Freedom of Information Act (FOIA) Study Area. Davidson County, TN. EIS No. 20100019, Final EIS, DOE, NY, requests for documentation received or Summary: EPA continues to have West Valley Demonstration Project issued by EPA or data contained in EPA environmental concerns about MSAT and Western New York Nuclear database systems pertaining to the impacts. Service Center Decommissioning and/ export and import of Resource or Long-Term Stewardship, (DOE/ Conservation and Recovery Act (RCRA) Dated: January 26, 2010. EIS–0226–D Revised) City of Buffalo, hazardous waste from/to the United Ken Mittelholtz, Eric and Cattaraugus Counties, NY, States, the export of cathode ray tubes Deputy Director, NEPA Compliance Division, Wait Period Ends: 03/01/2010, (CRTs) from the United States, and the Office of Federal Activities. Contact: Catherine Bohan 716–942– export and import of RCRA universal [FR Doc. 2010–1860 Filed 1–28–10; 8:45 am] 4159. waste from/to the United States. These EIS No. 20100020, Final EIS, FTA, TX, BILLING CODE 6560–50–P documents and data may identify or University Corridor Fixed Guideway reference multiple parties, and describe Project, To Implement Transit transactions involving the movement of ENVIRONMENTAL PROTECTION Improvements from Hillcroft Transit specified materials in which the parties AGENCY Center to the Vicinity of the University of Houston (UH)—Central propose to participate or have [ER–FRL–8987–7] Campus or the Eastwood Transit participated. The purpose of this notice Center, City of Houston, Harris is to inform ‘‘affected businesses’’ about Environmental Impacts Statements; the documents or data sought by these Notice of Availability County, TX, Wait Period Ends: 03/01/ 2010, Contact: Laura Wallace 817– types of FOIA requests in order to Responsible Agency: Office of Federal 978–0561. provide the businesses with the Activities, General Information (202) EIS No. 20100021, Final EIS, BR, CA, opportunity to assert claims that any of 564–1399 or http://www.epa.gov/ Folsom Lake State Recreation Area & the information sought that pertains to compliance/nepa/. Folsom Powerhouse State Historic them is entitled to treatment as Park, General Plan/Resource confidential business information (CBI), Weekly Receipt of Environmental Management Plan, Implementation, and to send comments to EPA Impact Statements Filed 01/18/2010 Placer County, CA, Wait Period Ends: supporting their claims for such Through 01/22/2010 Pursuant to 40 CFR 03/01/2010, Contact: Walter treatment. Certain businesses, however, 1506.9. Clevenger 916–989–7173. do not meet the definition of ‘‘affected Notice EIS No. 20100022, Draft EIS, DOE, 00, business,’’ and are not covered by In accordance with Section 309(a) of Long-Term Management and Storage today’s notice. They consist of any the Clean Air Act, EPA is required to of Elemental Mercury Storage Project, business that actually submitted to EPA make its comments on EISs issued by Designate a Facility or Facilities for any document at issue pursuant to other Federal agencies public. Mercy Storage, Seven Alternative applicable RCRA regulatory Historically, EPA has met this mandate Sites, CO, ID, MO, NV, SC and WA, requirements and did not assert a CBI by publishing weekly notices of Comment Period Ends: 03/29/2010, claim as to information that pertains to availability of EPA comments, which Contact: David Levenstein 301–903– that business in connection with the includes a brief summary of EPA’s 6500. document at the time of its submission; EIS No. 20100023, Final EIS, USFS, 00, comment letters, in the Federal they have waived their right to do so at Klamath National Forest Motorized Register. Since February 2008, EPA has a later time. Nevertheless, other Route Designation, Motorized Travel been including its comment letters on businesses identified or referenced in Management, (Formerly Motorized EISs on its Web site at: http:// the documents that were submitted to Route Designation), Implementation, www.epa.gov/compliance/nepa/ EPA by the submitting business may Siskiyou County, CA and Jackson eisdata.html. Including the entire EIS have a right to assert a CBI claim County, OR, Wait Period Ends: 03/01/ comment letters on the website satisfies concerning information that pertains to 2010, Contact: Jan Ford 530–841– the Section 309(a) requirement to make them and may do so in response to this 4483. EPA’s comments on EISs available to notice. Dated: January 26, 2010. the public. Accordingly, after March 31, DATES: Comments must be received on Ken Mittelholtz, 2010, EPA will discontinue the or before March 1, 2010. The period for publication of this notice of availability Deputy Director, NEPA Compliance Division, submission of comments may be Office of Federal Activities. of EPA comments in the Federal extended if, before the comments are Register. [FR Doc. 2010–1859 Filed 1–28–10; 8:45 am] due, you make a request for an EIS No. 20100017, Draft EIS, NOAA, 00, BILLING CODE 6560–50–P extension of the comment period and it Amendment 21 to the Pacific Coast is approved by the EPA legal office. Groundfish Fishery Management Except in extraordinary circumstances, Plan, (FMP), Allocation of Harvest ENVIRONMENTAL PROTECTION AGENCY the EPA legal office will not approve Opportunity between Sectors, such an extension without the consent Implementation, WA, OR and CA, [EPA–HQ–OECA–2010–0024; FRL–9107–8] of any person whose request for release Comment Period Ends: 03/15/2010, of the information under the FOIA is Contact: Barry A. Thom 206–516– Inquiry To Learn Whether Businesses pending. 6150. Assert Business Confidentiality Claims ADDRESSES: EIS No. 20100018, Draft EIS, NPS, WV, AGENCY: Environmental Protection Submit your comments, New River Gorge National River Agency (EPA). identified by Docket ID No. EPA–HQ– Project, General Management Plan, OECA–2010–0024, by one of the ACTION: Notice; request for comment. Implementation, Fayette, Raleigh and following methods:

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• http://www.regulations.gov: Follow copyrighted material, will be publicly II. Issues Covered by This Notice the online instructions for submitting available only in hard copy. Publicly Specifically, EPA receives FOIA comments. available docket materials are available • requests from time to time for E-mail: [email protected]. either electronically in http:// documentation or data related to • Address: Eva Kreisler, International www.regulations.gov or in hard copy at hazardous waste exports and imports Compliance Assurance Division, Office the HQ EPA Docket Center, EPA/DC, that may identify or reference multiple of Federal Activities, Office of EPA West, Room 3334, 1301 parties, and that describe transactions Enforcement and Compliance Constitution Ave., NW., Washington, involving the movement of specified Assurance, Environmental Protection DC. The Public Reading Room is open materials in which the parties propose Agency, Mailcode: 2254A, 1200 to participate or have participated. This Pennsylvania Ave., NW., Washington, from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal notice informs ‘‘affected businesses,’’ DC 20460. 1 Instructions: Direct your comments to holidays. The telephone number for the which could include, among others, ‘‘ ’’ 2 ‘‘ ’’ 3 Docket ID No. EPA–HQ–OECA–2010– Public Reading Room is (202) 566–1744, transporters and consignees, of 0024. EPA’s policy is that all comments and the telephone number for the the requests for information in EPA received will be included in the public docket for this notice is (202) 566–1752. database systems and/or contained in docket without change and may be one or more of the following documents: FOR FURTHER INFORMATION CONTACT: Eva (1) Documents related to the export of made available online at http:// Kreisler, International Compliance www.regulations.gov, including any Resource Conservation and Recovery Assurance Division, Office of Federal personal information provided, unless Act (RCRA) hazardous waste under 40 Activities, Office of Enforcement and the comment includes information CFR part 262, subparts E and H, claimed to be Confidential Business Compliance Assurance, Environmental including but not limited to the Information (CBI) or other information Protection Agency, Mailcode: 2254A, ‘‘notification of intent to export,’’ 4 5 6 whose disclosure is restricted by statute. 1200 Pennsylvania Ave., NW., ‘‘manifests,’’ ‘‘annual reports,’’ ‘‘EPA 7 Do not submit information that you Washington, DC 20460; telephone acknowledgements of consent,’’ ’’ any consider to be CBI or otherwise number: (202) 564–8186; e-mail address: subsequent communication protected through http:// [email protected]. withdrawing a prior consent or objection,’’ 8 ‘‘responses that neither www.regulations.gov or e-mail. SUPPLEMENTARY INFORMATION: Today’s Instructions about how to submit consent nor object,’’ ‘‘exception reports,’’ notice relates to any documents or data 9 10 comments claimed as CBI are given later ‘‘transit notifications,’’ and in the following areas: (1) Export of ‘‘renotifications;’’ 11 (2) documents in this notice. Resource Conservation and Recovery The http://www.regulations.gov Web related to the import of hazardous waste Act (RCRA) hazardous waste under 40 site is an ‘‘anonymous access’’ system, under 40 CFR part 262, subparts F and which means EPA will not know your CFR part 262, subparts E and H; (2) H, including but not limited to identity or contact information unless import of RCRA hazardous waste under notifications of intent to import you provide it in the body of your 40 CFR part 262, subparts F and H; (3) hazardous waste into the U.S. from comment. If you send an e-mail transit of RCRA hazardous waste under foreign countries; (3) documents related comment directly to EPA without going 40 CFR part 262, subpart H, through the to the transit of hazardous waste under through http://www.regulations.gov, United States and foreign countries; (4) 40 CFR part 262, subpart H, including your e-mail address will be export of cathode ray tubes under 40 notifications from U.S. exporters of automatically captured and included as CFR part 261, subpart E; (5) export and intent to transit through foreign part of the comment that is placed in the import of RCRA universal waste under countries, or notifications from foreign public docket and made available on the 40 CFR part 273, subparts B, C, D, and countries of intent to transit through the Internet. If you submit an electronic F; and (6) submissions from transporters U.S.; (4) documents related to the export comment, EPA recommends that you under 40 CFR part 263, or from of cathode ray tubes (CRTs) under 40 include your name and other contact treatment, storage or disposal facilities CFR part 261, subpart E, including but information in the body of your under 40 CFR parts 264 and 265, related not limited to notifications of intent to comment. Please include your name and to exports or imports of hazardous export CRTs; and (5) documents related other contact information with any disk waste, including receiving facility to the export and import of RCRA or CD–ROM you submit by mail. If EPA notices under 40 CFR 264.12(a)(1) and ‘‘universal waste’’ 12 under 40 CFR part cannot read your comment due to 265.12(a)(1). 273, subparts B, C, D, and F. technical difficulties and cannot contact 1 The term ‘‘affected business’’ is defined at you for clarification, EPA may not be I. General Information 40 CFR 2.201(d), and is set forth in this able to consider your comment. notice, below. EPA has previously published notices 2 The term ‘‘transporter’’ is defined at 40 Electronic files should avoid the use of similar to this one in the Federal special characters, any form of CFR 260.10. Register, at 74 FR 20293, May 1, 2009, 3 The term ‘‘consignee’’ is defined, for encryption, and be free of any defects or and 72 FR 21006, April 27, 2007 that different purposes, at 40 CFR 262.51 and viruses. For additional information address issues similar to those raised by 262.81(c). about EPA’s public docket, visit the EPA 4 today’s notice. The Agency did not The term ‘‘notification of intent to export’’ Docket Center homepage at http:// is described at 40 CFR 262.53. www.epa.gov/epahome/dockets.htm. receive any comments on the previous 5 The term ‘‘manifest’’ is defined at 40 CFR Docket: All documents in the docket notices. Since the publication of the 260.10. are listed in the http:// 2009 notice, the Agency has continued 6 The term ‘‘annual reports’’ is described at to receive FOIA requests for documents 40 CFR 262.56. www.regulations.gov index. 7 Although listed in the index, some and data contained in the EPA Waste The term ‘‘EPA acknowledgement of International Tracking System consent’’ is defined at 40 CFR 262.51. information is not publicly available, 8 The requirement to forward to the e.g., CBI or other information whose (‘‘WITSnet’’) database and other EPA exporter ‘‘any subsequent communication disclosure is restricted by statute. databases related to hazardous waste withdrawing a prior consent or objection’’ is Certain other material, such as exports and imports. found at 42 U.S.C. 6938(e).

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9 The term ‘‘exception reports’’ is described 14 With the exception, noted above, of the made claims of business confidentiality at 40 CFR 262.55. submission of information relating to the for any of the information at issue, 10 The term ‘‘transit notifications’’ is export and import of RCRA universal waste. stating that EPA is determining under described at 40 CFR 262.53(e). In accordance with 40 CFR 2.204(c) 40 CFR part 2, subpart B, whether the 11 The term ‘‘renotifications’’ is described at and (e), this notice inquires whether any information is entitled to confidential 40 CFR 262.53(c). affected business asserts a claim that treatment, and affording each business 12 The term ‘‘universal waste’’ is defined at any of the requested information an opportunity to comment as to the 40 CFR 273.9. constitutes CBI, and affords such reasons why it believes that the Certain businesses, however, do not business an opportunity to comment to information deserves confidential meet the definition of ‘‘affected EPA on the issue. This notice also treatment. informs affected businesses that, if a business,’’ and are not covered by 3. The Use of Publication in the Federal claim is made, EPA would determine today’s notice. They consist of any Register under 40 CFR part 2, subpart B, whether business that actually submitted Section 2.204(e)(1) of Title 40 of the information responsive to a FOIA any of the requested information is entitled to confidential treatment. Code of Federal Regulations requires request, under the authority of 40 CFR that this type of notice be furnished by parts 260 through 266 and 268, and did 1. Affected Businesses certified mail (return receipt requested), not assert a claim of business EPA’s FOIA regulations at 40 CFR by personal delivery, or by other means confidentiality covering any of that 2.204(c)(1) require an EPA office that is which allows verification of the fact and information at the time of submission. responsible for responding to a FOIA date of receipt. EPA, however, has As set forth in the RCRA regulations at request for the release of business determined that in the present ‘‘ 40 CFR 260.2(b), if no such [business information (‘‘EPA office’’) ‘‘to determine circumstances the use of a Federal confidentiality] claim accompanies the which businesses, if any, are affected Register notice is the only practical and information when it is received by EPA, businesses * * *.’’ ‘‘Affected business’’ efficient way to contact affected it may be made available to the public is defined at 40 CFR 2.201(d) as, ‘‘*** businesses and to furnish the notice of without further notice to the person with reference to an item of business opportunity to submit comments. The ’’ submitting it. Thus, for purposes of this information, a business which has Agency’s decision to follow this course notice and as a general matter under 40 asserted (and not waived or withdrawn) was made in recognition of the CFR 260.2(b), a business that submitted a business confidentiality claim administrative difficulty and to EPA the documents at issue, pursuant covering the information, or a business impracticality of directly contacting to applicable regulatory requirements, which could be expected to make such potentially thousands of individual and that failed to assert a claim as to a claim if it were aware that disclosure businesses. information that pertains to it at the of the information to the public was 4. Submission of Your Response in the time of submission, cannot later make a proposed.’’ confidentiality claim.13 Nevertheless, English Language other businesses identified or referenced 2. The Purposes of This Notice All responses to this notice must be in the same documents that were This notice encompasses two distinct in the English language. submitted to EPA by the submitting steps in the process of communication 5. The Effect of Failure To Respond to business may have a right to assert a CBI with affected businesses prior to EPA’s This Notice claim concerning information that making a final determination pertains to them and may do so in concerning the confidentiality of the In accordance with 40 CFR 2.204(e)(1) response to this notice. information at issue: The preliminary and 2.205(d)(1), EPA will construe your 13 However, businesses having submitted inquiry and the notice of opportunity to failure to furnish timely comments in information to EPA relating to the export and comment. response to this notice as a waiver of import of RCRA universal waste are not your business’ claim(s) of a. Inquiry To Learn Whether Affected confidentiality for any information in subject to 40 CFR 260.2(b) since they Businesses (Other Than Those submitted information in accordance with 40 the types of documents identified in this Businesses That Previously Asserted a CFR part 273, and not parts 260 through 266 notice. CBI Claim) Assert Claims Covering Any and 268, as set forth in 40 CFR 260.2(b). They 6. What To Include in Your Comments are therefore affected businesses that could of the Requested Information make a claim of CBI at the time of submission Section 2.204(c)(2)(i) provides, in If you believe that any of the or in response to this notice. relevant part: information contained in the types of If the examination conducted under documents which are described in this In addition, EPA may develop its own paragraph (c)(1) of this section discloses notice and which are currently, or may documents and organize into its the existence of any business which, become, subject to FOIA requests, is database systems information that was although it has not asserted a claim, entitled to confidential treatment, please originally contained in documents from might be expected to assert a claim if it specify which portions of the submitting businesses relating to knew EPA proposed to disclose the information you consider confidential. exports and imports of hazardous waste. information, the EPA office shall contact Information not specifically identified If a submitting business fails to assert a a responsible official of each such as subject to a confidentiality claim may CBI claim for the documents it submits business to learn whether the business be disclosed to the requestor without to EPA at the time of submission, not asserts a claim covering the information. further notice to you. only does it waive its right to claim CBI For each item or class of information for those documents, but it also waives b. Notice of Opportunity To Submit that you identify as being subject to its right to claim CBI for information in Comments your claim, please answer the following EPA’s documents or databases that is Sections 2.204(d)(1)(i) and 2.204(e)(1) questions, giving as much detail as based on or derived from the documents of Title 40 of the Code of Federal possible: that were originally submitted by that Regulations require that written notice 1. For what period of time do you business.14 be provided to businesses that have request that the information be

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maintained as confidential, e.g., until a means of, the procedures set forth in, 40 ACTION: Notice of Availability. certain date, until the occurrence of a CFR part 2, subpart B. If you fail to specified event, or permanently? If the claim the information as confidential, it SUMMARY: The U.S. Environmental occurrence of a specific event will may be made available to the requestor Protection Agency (EPA) is announcing eliminate the need for confidentiality, without further notice to you. the availability of a final document please specify that event. titled, ‘‘Integrated Science Assessment 2. Information submitted to EPA III. What Should I Consider as I for Carbon Monoxide’’ (EPA/600/R–09/ becomes stale over time. Why should Prepare My Comments for EPA? 019F). This document was prepared by the information you claim as 1. Submitting CBI. Do not submit this the National Center for Environmental confidential be protected for the time information to EPA through http:// Assessment (NCEA) within EPA’s Office period specified in your answer to www.regulations.gov or e-mail. Please of Research and Development as part of question no. 1? submit this information by mail to the the review of the national ambient air 3. What measures have you taken to address identified in the ADDRESSES quality standards (NAAQS) for carbon protect the information claimed as section of today’s notice for inclusion in monoxide. confidential? Have you disclosed the the non-public CBI docket. Clearly mark information to anyone other than a the part or all of the information that DATES: The document will be available governmental body or someone who is you claim to be CBI. For CBI on January 29, 2010. bound by an agreement not to disclose information in a disk or CD–ROM that ADDRESSES: The ‘‘Integrated Science the information further? If so, why you mail to EPA, mark the outside of the Assessment for Carbon Monoxide’’ will should the information still be disk or CD–ROM as CBI and then be available primarily via the Internet considered confidential? identify electronically within the disk or on the National Center for 4. Is the information contained in any CD–ROM the specific information that Environmental Assessment’s home page publicly available material such as the is claimed as CBI. Information so under the Recent Additions and Internet, publicly available databases, marked will not be disclosed except in Publications menus at http:// promotional publications, annual accordance with the procedures set www.epa.gov/ncea. A limited number of reports, or articles? Is there any means forth in 40 CFR part 2, subpart B. In CD–ROM or paper copies will be by which a member of the public could addition to the submission of one available. Contact Ms. Debbie Wales by obtain access to the information? Is the complete version of the comment that phone (919–541–4731), fax (919–541– information of a kind that you would includes information claimed as CBI, a 5078), or e-mail customarily not release to the public? copy of the comment that does not ([email protected]) to request 5. Has any governmental body made contain the information claimed as CBI either of these, and please provide your a determination as to the confidentiality must be submitted for inclusion in the name, your mailing address, and the of the information? If so, please attach public docket. document title, ‘‘Integrated Science a copy of the determination. 2. Tips for Preparing Your Comments. Assessment for Carbon Monoxide’’ 6. For each category of information When submitting comments, remember (EPA/600/R–09/019F) to facilitate claimed as confidential, explain with to: processing of your request. specificity why release of the • Identify the notice by docket FOR FURTHER INFORMATION CONTACT: For information is likely to cause substantial number and other identifying technical information, contact Dr. harm to your competitive position. information (subject heading, Federal Thomas C. Long, NCEA; telephone: Explain the specific nature of those Register date and page number). 919–541–1880; facsimile: 919–541– harmful effects, why they should be • Explain your views as clearly as 2985; or e-mail: [email protected]. viewed as substantial, and the causal possible, avoiding the use of profanity relationship between disclosure and or personal threats. SUPPLEMENTARY INFORMATION: • such harmful effects. How could your Describe any assumptions and I. Information About the Document competitors make use of this provide any technical information and/ information to your detriment? or data that you used. Section 108(a) of the Clean Air Act 7. Do you assert that the information • Provide specific examples to directs the EPA Administrator to is submitted on a voluntary or a illustrate your concerns, and suggest identify certain pollutants that ‘‘cause or mandatory basis? Please explain the alternatives. contribute to air pollution which may reason for your assertion. If the business • Make sure to submit your reasonably be anticipated to endanger asserts that the information is comments by the comment period public health or welfare’’ and to issue air voluntarily submitted information, deadline identified. quality criteria for them. These air please explain whether and why Dated: January 13, 2010. quality criteria are to ‘‘accurately reflect disclosure of the information would Susan E. Bromm, the latest scientific knowledge useful in tend to lessen the availability to EPA of Director, Office of Federal Activities. indicating the kind and extent of all identifiable effects on public health or similar information in the future. [FR Doc. 2010–1857 Filed 1–28–10; 8:45 am] 8. Any other issue you deem relevant. welfare which may be expected from the Please note that you bear the burden BILLING CODE 6560–50–P presence of such pollutant in the of substantiating your confidentiality ambient air * * *.’’ Under section 109 claim. Conclusory allegations will be ENVIRONMENTAL PROTECTION of the Act, EPA is to establish national given little or no weight in the AGENCY ambient air quality standards (NAAQS) determination. If you wish to claim any for each pollutant for which EPA has of the information in your response as [FRL–9106–1; Docket ID No. EPA–HQ–ORD– issued criteria. Section 109(d) of the Act confidential, you must mark the 2007–0925] requires periodic review and, if ‘‘ ’’ response CONFIDENTIAL or with a Integrated Science Assessment for appropriate, revision of existing air similar designation, and must bracket Carbon Monoxide quality criteria to reflect advances in all text so claimed. Information so scientific knowledge on the effects of designated will be disclosed by EPA AGENCY: Environmental Protection the pollutant on public health or only to the extent allowed by, and by Agency (EPA) . welfare. EPA is also to revise the

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NAAQS, if appropriate, based on the 24, 2009 (http://yosemite.epa.gov/sab/ public teleconference should contact Dr. revised air quality criteria. sabproduct.nsf/4620a620d0120f Angela Nugent, Designated Federal Carbon monoxide (CO) is one of six 93852572410080d786/ Officer (DFO), EPA Science Advisory ‘‘criteria’’ pollutants for which EPA has 6E648129288BF930852575D Board (1400F), 1200 Pennsylvania Ave., established NAAQS. Periodically, EPA F0070A528/$File/EPA-CASAC-09-011- NW., Washington, DC 20460; via reviews the scientific basis for these unsigned.pdf). telephone/voice mail: (202) 343–9981; standards by preparing an Integrated The Second External Review Draft fax: (202) 233–0643; or e-mail at Science Assessment (ISA) (formerly ISA for CO (EPA/600/R–09/019B; [email protected]. General called an Air Quality Criteria http://cfpub.epa.gov/ncea/cfm/ information concerning the EPA Science Document). The ISA and supplementary recordisplay.cfm?deid=213229), which Advisory Board can be found on the annexes, in conjunction with additional took into consideration comments by SAB Web site at http://www.epa.gov/ technical and policy assessments, CASAC and the public on the First sab. provide the scientific basis for EPA External Review Draft, was released for SUPPLEMENTARY INFORMATION: The SAB decisions on the adequacy of the current public comment and CASAC review on was established by 42 U.S.C. 4365 to NAAQS and the appropriateness of September 23, 2009 (74 FR 48536). This provide independent scientific and possible alternative standards. The document was reviewed by the CASAC technical advice to the Administrator on Clean Air Scientific Advisory review panel and discussed at a public the technical basis for Agency positions Committee (CASAC), an independent meeting held November 16–17, 2009 (74 and regulations. The SAB is a Federal science advisory committee whose FR 54042). The CASAC held a follow- advisory committee chartered under the review and advisory functions are up public teleconference on December Federal Advisory Committee Act mandated by Section 109(d)(2) of the 22, 2009 to review and approve the (FACA), as amended, 5 U.S.C., App 2. Clean Air Act, is charged (among other CASAC CO Review Panel’s draft letter The SAB will comply with the things) with independent scientific providing comments to EPA on the provisions of FACA and all appropriate review of EPA’s air quality criteria. Second External Review Draft ISA for SAB Staff Office procedural policies. On September 13, 2007 (72 FR 52369), CO. The final letter report can be Pursuant to the Federal Advisory EPA formally initiated its current obtained from the CASAC Web site Committee Act, Public Law 92–463, review of the air quality criteria for CO, (http://yosemite.epa.gov/sab/ notice is hereby given that the chartered requesting the submission of recent sabpeople.nsf/WebCommittees/CASAC). SAB will hold two public scientific information on specified EPA has considered comments by teleconferences to discuss the topics. A workshop was held on January CASAC and by the public in preparing President’s requested Fiscal Year 2011 28–29, 2008 (73 FR 2490) to discuss this final ISA. policy-relevant science to inform EPA’s Budget to support EPA research needs. planning for the CO NAAQS review. In Dated: January 13, 2010. Background: The chartered SAB March 2008, a draft of EPA’s ‘‘Plan for Rebecca Clark, conducts a review of the EPA research Review of the National Ambient Air Acting Director, National Center for budget annually and provides written Quality Standards for Carbon Environmental Assessment. comments to the EPA Administrator and Monoxide’’ (EPA–452/D–08–001) was [FR Doc. 2010–1359 Filed 1–28–10; 8:45 am] to Congress, if requested, on the made available for public comment and BILLING CODE 6560–50–P adequacy of EPA’s requested research was discussed by the CASAC via a budget. At the teleconferences, the publicly accessible teleconference chartered SAB will receive briefings on consultation on April 8, 2008 (73 FR ENVIRONMENTAL PROTECTION the requested research budget for Fiscal 12998). EPA finalized the plan and AGENCY Year 2011 and develop major comments made it available in August 2008 (EPA/ [FRL–9108–2] on the budget, in light of EPA’s research 452/R–08/005; http://www.epa.gov/ttn/ needs. Previous SAB budget advisories naaqs/standards/co/s_co_cr_pd.html). Science Advisory Board Staff Office; are on the SAB Web site at http:// In November 2008, EPA held an Notification of Two Public www.epa.gov/sab. authors’ teleconference to discuss, with Teleconferences of the Chartered Availability of Meeting Materials: The invited scientific experts, preliminary Science Advisory Board agendas and other materials in support draft materials prepared during the of the teleconferences will be placed on AGENCY: Environmental Protection ongoing development of the CO ISA and the SAB Web site at http:// Agency (EPA). its supplementary annexes. www.epa.gov/sab in advance. The First External Review Draft ISA ACTION: Notice. Procedures for Providing Public Input: Interested members of the public may for CO (EPA/600/R–09/019; http:// SUMMARY: The EPA Science Advisory cfpub.epa.gov/ncea/cfm/ Board (SAB) Staff Office announces two submit relevant written or oral recordisplay.cfm?deid=203935) was public teleconferences of the Chartered information for the SAB to consider on released for public comment and Science Advisory Board to discuss the topics included in this advisory CASAC review on March 12, 2009 (74 EPA’s requested research budget for activity. Oral Statements: In general, FR 10734). This document was Fiscal Year 2011. individuals or groups requesting an oral reviewed by the CASAC review panel presentation at a public teleconference DATES: and discussed at a public meeting held The teleconference dates are will be limited to three minutes per May 12–13, 2009 (74 FR 15265). The February 19, 2010 from 1 p.m. to 4 p.m. speaker, with no more than a total of CASAC held a follow-up public (Eastern Time) and February 24, 2010 one-half hour for all speakers. Interested teleconference on June 17, 2009 (74 FR from 12:30 p.m. to 3:30 p.m. (Eastern parties should contact Dr. Nugent, DFO, 25530) to review and approve the Time). in writing (preferably via e-mail) at the CASAC CO Review Panel’s draft letter ADDRESSES: The teleconferences will be contact information noted above for the providing comments to EPA on the First conducted by telephone only. February 19, 2010 teleconference by External Review Draft ISA for CO. FOR FURTHER INFORMATION CONTACT: Any February 16, 2010 to be placed on a list Following the teleconference, CASAC member of the public wishing to obtain of public speakers for the sent a final letter report to EPA on June general information concerning this teleconference. Interested parties should

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contact Dr. Nugent, for the February 24, ENVIRONMENTAL PROTECTION Special arrangements should be made 2010 teleconference by February 23, AGENCY for deliveries of boxed information. The Docket Facility telephone number is 2010 to be placed on the list of public [EPA–HQ–OPP–2010–0029; FRL–8809–2] speakers for the February 24, 2010 (703) 305–5805. teleconference. Written Statements: Beauveria Bassiana Strain GHA; FOR FURTHER INFORMATION CONTACT: Written statements for the February 19, Notice of Receipt of a Request for an Jeannine Kausch, Biopesticides and 2010 teleconference should be received Amendment to Delete a Use in a Pollution Prevention Division (7511P), in the SAB Staff Office by February 16, Pesticide Registration Office of Pesticide Programs, 2010 and written statements for the Environmental Protection Agency, 1200 AGENCY: Environmental Protection February 24, 2010 teleconference should Pennsylvania Ave., NW., Washington, Agency (EPA). be received in the SAB Staff Office by DC 20460–0001; telephone number: February 23, 2010 so that the ACTION: Notice. (703) 347–8920; e-mail address: [email protected]. information may be made available to SUMMARY: In accordance with section the chartered SAB members for their 6(f)(1) of the Federal Insecticide, SUPPLEMENTARY INFORMATION: consideration and placed on the SAB Fungicide, and Rodenticide Act I. General Information Web site for public information. Written (FIFRA), as amended, EPA is issuing a statements should be supplied to the notice of receipt of a request for an A. Does this Action Apply to Me? DFO in the following formats: one hard amendment by a registrant to delete a This action is directed to the public copy with original signature, and one use in a pesticide registration. Section in general. Although this action may be electronic copy via e-mail (acceptable 6(f)(1) of FIFRA provides that a of particular interest to persons who file format: Adobe Acrobat PDF, registrant of a pesticide product may at produce or use pesticides, the Agency WordPerfect, MS Word, MS PowerPoint, any time request that any of its pesticide has not attempted to describe all the or Rich Text files in IBM–PC/Windows registrations be amended to delete one specific entities that may be affected by 98/2000/XP format). Submitters are or more uses. FIFRA further provides this action. If you have any questions asked to provide versions of each that, before acting on the request, EPA regarding the information in this notice, document submitted with and without must publish a notice of receipt of any consult the person listed under FOR signatures, because the SAB Staff Office request in the Federal Register. FURTHER INFORMATION CONTACT. does not publish documents with DATES: The deletion is effective,July 28, B. How Can I Get Copies of this signatures on its Web sites. 2010 unless the Agency receives a written withdrawal request on or before Document and Other Related Accessibility: For information on July 28, 2010. The Agency will consider Information? access or services for individuals with a withdrawal request postmarked no EPA has established a docket for this disabilities, please contact Dr. Angela later than July 28, 2010. action under docket ID number EPA– Nugent at (202) 343–9981, or Users of this product who desire HQ–OPP–2010–0029. Publicly available [email protected]. To request continued use on the crop being deleted docket materials are available either in accommodation of a disability, please should contact the applicable registrant the electronic docket at http:// contact Dr. Nugent, preferably at least on or before July 28, 2010. www.regulations.gov, or, if only 10 days prior to the meeting, to give ADDRESSES: Submit your withdrawal available in hard copy, at the Office of EPA as much time as possible to process request, identified by docket Pesticide Programs (OPP) Regulatory your request. identification (ID) number EPA–HQ– Public Docket in Rm. S–4400, One Dated: January 25, 2010. OPP–2010–0029, by one of the Potomac Yard (South Bldg.), 2777 S. Anthony Maciorowski, following methods: Crystal Dr., Arlington, VA. The hours of • Mail: Office of Pesticide Programs operation of this Docket Facility are Deputy Director, EPA Science Advisory Board (OPP) Regulatory Public Docket (7502P), from 8:30 a.m. to 4 p.m., Monday Staff Office. Environmental Protection Agency, 1200 through Friday, excluding legal [FR Doc. 2010–1942 Filed 1–28–10; 8:45 am] Pennsylvania Ave., NW., Washington, holidays. The Docket Facility telephone BILLING CODE 6560–50–P DC 20460–0001. number is (703) 305–5805. • Delivery: OPP Regulatory Public Docket (7502P), Environmental II. What Action is the Agency Taking? Protection Agency, Rm. S–4400, One This notice announces receipt by the Potomac Yard (South Bldg.), 2777 S. Agency of an application from a Crystal Dr., Arlington, VA. Deliveries registrant to delete a use in a pesticide are only accepted during the Docket registration. This registration is listed in Facility’s normal hours of operation Table 1 of this unit by registration (8:30 a.m. to 4 p.m., Monday through number, product name, active Friday, excluding legal holidays). ingredient, and specific use deleted:

TABLE 1.—REQUEST FOR AN AMENDMENT TO DELETE A USE IN A PESTICIDE REGISTRATION

EPA Registration No. Product Name Active Ingredient Delete from Label

82074–1 Mycotrol® ES Beauveria bassiana Strain GHA Tomato

Users of this product who desire before July 28, 2010 to discuss also permit interested members of the continued use on the crop being deleted withdrawal of the application for public to intercede with the registrant should contact the applicable registrant amendment. This 180–day period will

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prior to the Agency’s approval of the FEDERAL COMMUNICATIONS 445 12th Street, SW, Washington, DC deletion. COMMISSION 20554. To submit your comments by e– Table 2 of this unit includes the name mail send then to: [email protected] and to Notice of Public Information Collection and address of record for the registrant [email protected]. Being Reviewed by the Federal FOR FURTHER INFORMATION CONTACT: For of the product listed in Table 1 of this Communications Commission for unit. additional information about the Extension Under Delegated Authority, information collection(s) send an e–mail Comments Requested TABLE 2.—REGISTRANT REQUESTING to [email protected] or contact Cathy Williams on (202) 418–2918. AN AMENDMENT TO DELETE A USE 01/26/2010. SUPPLEMENTARY INFORMATION: OMB IN A PESTICIDE REGISTRATION SUMMARY: The Federal Communications Commission, as part of its continuing Control Number: 3060–1101. Title: Children’s Television Requests EPA Company Num- Company Name and effort to reduce paperwork burden ber Address invites the general public and other for Preemption Flexibility. Federal agencies to take this Form Number: Not applicable. 82074 Laverlam Inter- opportunity to comment on the Type of Review: Extension of a national Corpora- following information collection(s), as currently approved collection. tion, 117 South required by the Paperwork Reduction Respondents: Businesses or other for– Parkmont, Butte, Act of 1995, 44 U.S.C. 3501–3520. An profit. Number of Respondents and MT 59701 agency may not conduct or sponsor a Responses: 15 respondents; 15 collection of information unless it responses. III. What is the Agency’s Authority for displays a currently valid control Taking this Action? Estimated Time per Response: 10 number. No person shall be subject to hours. any penalty for failing to comply with Frequency of Response: Annual Section 6(f)(1) of FIFRA provides that a collection of information subject to the a registrant of a pesticide product may reporting requirement. Paperwork Reduction Act (PRA) that Obligation to Respond: Required to at any time request that any of its does not display a valid control number. pesticide registrations be amended to obtain or retain benefits. The statutory Comments are requested concerning (a) authority for this information collection delete one or more uses. FIFRA further whether the proposed collection of provides that, before acting on the is contained in Sections 154(i) and 303 information is necessary for the proper of the Communications Act of 1934, as request, EPA must publish a notice of performance of the functions of the amended. receipt of any such request in the Commission, including whether the Total Annual Burden: 150 hours. Federal Register. Thereafter, the information shall have practical utility; Total Annual Cost: None. Administrator may approve such a (b) the accuracy of the Commission’s Privacy Act Impact Assessment: No request. burden estimate; (c) ways to enhance impact(s). the quality, utility, and clarity of the Nature and Extent of Confidentiality: IV. Procedures for Withdrawal of information collected; (d) ways to There is no need for confidentiality with Request minimize the burden of the collection of this collection of information. Registrants who choose to withdraw a information on the respondents, Needs and Uses: On September 26, including the use of automated request for use deletion must submit the 2006, the Commission adopted a Second collection techniques or other forms of Order on Reconsideration and Second withdrawal in writing to Jeannine information technology and (e) ways to Report and Order in MM Docket 00– Kausch using the methods in further reduce the information burden 167, FCC 06–143, In the Matter of ADDRESSES. The Agency will consider for small business concerns with fewer Children’s Television Obligations of written withdrawal requests postmarked than 25 employees. Digital Television Broadcasters. The no later than July 28, 2010. The FCC may not conduct or sponsor Second Order addressed several matters V. Provisions for Disposition of Existing a collection of information unless it relating to the obligation of television displays a currently valid control Stocks licensees to provide educational number. No person shall be subject to programming for children and the The Agency has authorized the any penalty for failing to comply with obligation of television licensees and registrant to sell or distribute the a collection of information subject to the cable operators to protect children from product under the previously approved Paperwork Reduction Act (PRA) that excessive and inappropriate commercial labeling for a period of 18 months after does not display a valid control number. messages. Among other things, the approval of the revision, unless other DATES: Persons wishing to comment on Second Order adopts a children’s restrictions have been imposed, as in this information collection should programming preemption policy. This special review actions. submit comments by March 30, 2010. If policy requires all networks requesting you anticipate that you will be preemption flexibility to file a request List of Subjects submitting comments, but find it with the Media Bureau by August 1 of difficult to do so within the period of each year. The request identifies the Environmental protection, Pesticides time allowed by this notice, you should number of preemptions the network and pests. advise the contact listed below as soon expects, when the program will be Dated: January 21, 2010. as possible. rescheduled, whether the rescheduled Keith Matthews, ADDRESSES: Direct all PRA comments to time is the program’s second home, and Acting Director, Biopesticides and Pollution Nicholas A. Fraser, Office of the network’s plan to notify viewers of Prevention Division, Office of Pesticide Management and Budget (OMB), via fax the schedule change. Preemption Programs. at (202) 395–5167, or via the Internet at flexibility requests are not mandatory _ _ [FR Doc. 2010–1940 Filed 1–28–10; 8:45 am] Nicholas A. [email protected] and filings. They are requests that may be to Cathy Williams, Federal filed by networks seeking preemption BILLING CODE 6560–50–S Communications Commission (FCC), flexibility.

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Federal Communications Commission. The Committee is organized under, Governors of the Federal Reserve Alethea Lewis, and operates in accordance with, the System (Board) its approval authority Information Specialist, Office of the provisions of the Federal Advisory under the Paperwork Reduction Act Secretary, Office of Managing Director. Committee Act, 5 U.S.C., App. 2 (1988). (PRA), as per 5 CFR 1320.16, to approve [FR Doc. 2010–1809 Filed 1–28–10; 8:45 am] A notice of each meeting will be of and assign OMB control numbers to BILLING CODE 6712–01–S published in the Federal Register at collection of information requests and least fifteen (15) days in advance of the requirements conducted or sponsored meeting. Records will be maintained of by the Board under conditions set forth FEDERAL COMMUNICATIONS each meeting and made available for in 5 CFR 1320 Appendix A.1. Board- COMMISSION public inspection. Members of the approved collections of information are public may send written comments to: incorporated into the official OMB [DA 10–121] Scott Marshall, Designated Federal inventory of currently approved Officer of the Committee. collections of information. Copies of the Consumer Advisory Committee [email protected]. Paperwork Reduction Act Submission, AGENCY: Federal Communications The meeting site is fully accessible to supporting statements and approved Commission. people using wheelchairs or other collection of information instruments mobility aids. Sign language are placed into OMB’s public docket ACTION: Notice. interpreters, open captioning, assistive files. The Federal Reserve may not SUMMARY: The Commission announces listening devices, and Braille copies of conduct or sponsor, and the respondent the next meeting date and agenda of its the agenda and handouts will be is not required to respond to, an Consumer Advisory Committee provided on site. information collection that has been (‘‘Committee’’). The purpose of the Simultaneous with the Webcast, the extended, revised, or implemented on or Committee is to make recommendations meeting will be available through after October 1, 1995, unless it displays to the Commission regarding consumer Accessible Event, a service that works a currently valid OMB control number. issues within the jurisdiction of the with your Web browser to make Request for comment on information Commission and to facilitate the presentations accessible to people with collection proposals: participation of all consumers in disabilities. You can listen to the audio The following information proceedings before the Commission. and use a screen reader to read collections, which are being handled displayed documents. You can also under this delegated authority, have DATES: The meeting of the Committee watch the video with open captioning. received initial Board approval and are will take place on February 12, 2010, 3 Accessible Event is available at http:// hereby published for comment. At the p.m. to 4 p.m., at the Commission’s accessibleevent.com. The Web page end of the comment period, the Headquarters Building, Room TW– prompts for an Event Code which is proposed information collections, along C305. 005202376. To learn about the features with an analysis of comments and ADDRESSES: Federal Communications of Accessible Event, consult its User’s recommendations received, will be Commission, 445 12th Street, NW., Guide at http://accessibleevent.com/ submitted to the Board for final Washington, DC 20554. doc/user_guide/. Other reasonable approval under OMB delegated FOR FURTHER INFORMATION CONTACT: accommodations for people with authority. Comments are invited on the Scott Marshall, Consumer and disabilities are available upon request. following: Governmental Affairs Bureau, (202) The request should include a detailed a. Whether the proposed collection of 418–2809 (voice), (202) 418–0179 description of the accommodation information is necessary for the proper (TTY), or e-mail [email protected]. needed and contact information. Please performance of the Federal Reserve’s SUPPLEMENTARY INFORMATION: This is a provide as much advance notice as functions; including whether the summary of the Commission’s Public possible; last minute requests will be information has practical utility; Notice DA 10–121, released on January accepted, but may be impossible to fill. b. The accuracy of the Federal 22, 2010, announcing the agenda, date Send an e-mail to [email protected] or call Reserve’s estimate of the burden of the and time of the Committee’s next the Consumer and Governmental Affairs proposed information collection, meeting. At its February 12, 2010 Bureau at 202–418–0530 (voice), 202– including the validity of the meeting, the Committee will consider a 418–0432 (TTY). methodology and assumptions used; recommendation regarding truth-in- Federal Communications Commission. c. Ways to enhance the quality, utility, and clarity of the information to billing to be filed in CG Docket 09–158, Joel Gurin, CC Docket 98–170 and WC Docket 04– be collected; and Chief, Consumer and Governmental Affairs d. Ways to minimize the burden of 36 (In the Matter of Consumer Bureau. Information and Disclosure, Truth-in- information collection on respondents, [FR Doc. 2010–1934 Filed 1–28–10; 8:45 am] including through the use of automated billing and Billing Format, IP-enabled BILLING CODE 6712–01–P Services, Notice of Inquiry). The collection techniques or other forms of Committee may also consider other information technology. DATES: Comments must be submitted on matters within the jurisdiction of the FEDERAL RESERVE SYSTEM Commission. It is anticipated that a or before March 30, 2010. majority of Committee members will Proposed Agency Information ADDRESSES: You may submit comments, participate via teleconference. A limited Collection Activities; Comment identified by FR 3033, FR 2436 FR 4031, amount of time on the agenda will be Request or FR H–1, by any of the following available for oral comments from the methods: public attending at the meeting site. AGENCY: Board of Governors of the • Agency Web Site: http:// Meetings are open to the public and are Federal Reserve System. www.federalreserve.gov. Follow the broadcast live with open captioning SUMMARY: Background. On June 15, instructions for submitting comments at over the Internet from the FCC Live Web 1984, the Office of Management and http://www.federalreserve.gov/ page at http://www.fcc.gov/live/. Budget (OMB) delegated to the Board of generalinfo/foia/ProposedRegs.cfm.

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• Federal eRulemaking Portal: http:// Estimated annual reporting hours: estimates that it would receive www.regulations.gov. Follow the 6,000 hours. responses from 18,000 finance instructions for submitting comments. Estimated average hours per response: companies (60 percent response rate). • E-mail: 0.33 hours. Proposal to approve under OMB [email protected]. Number of respondents: 18,000. delegated authority the extension for Include docket number in the subject General description of report: This three years, with revision, of the line of the message. information collection is authorized by following report: • Fax: 202–452–3819 or 202–452– law (12 U.S.C. 225a, 263, and 353–359) Report title: Semiannual Report of 3102. and is voluntary. Individual responses Derivatives Activity. • Mail: Jennifer J. Johnson, Secretary, are exempt from disclosure pursuant to Agency form number: FR 2436. Board of Governors of the Federal section (b)(4) of the Freedom of OMB control number: 7100–0286. Reserve System, 20th Street and Information Act (5 U.S.C. 552). Frequency: Semiannually. Constitution Avenue, NW., Washington, Abstract: The FR 3033 information Reporters: U.S. dealers of over-the- DC 20551. collection includes the Census of counter derivatives. All public comments are available from Finance Companies (FR 3033p) and the Annual reporting hours: 2,100 hours. the Board’s Web site at Quinquennial Finance Company Survey Estimated average hours per response: www.federalreserve.gov/generalinfo/ (FR 3033s). The survey will be reviewed 210 hours. foia/ProposedRegs.cfm as submitted, in a separate proposal in 2010. Number of respondents: 5. unless modified for technical reasons. Since June 1955, the Federal Reserve General description of report: This Accordingly, your comments will not be System has surveyed the assets and information collection is voluntary (12 edited to remove any identifying or liabilities of finance companies at five- U.S.C. 225a, 248(a), 348(a), 263, and contact information. Public comments year intervals. The census would ask a 353–359) and is given confidential may also be viewed electronically or in set of questions designed to identify the treatment (5 U.S.C. 552(b)(4)). Abstract: This voluntary report paper form in Room MP–500 of the universe of finance companies eligible collects derivatives market statistics Board’s Martin Building (20th and C for potential inclusion in the survey and from the five largest U.S. dealers of Streets, NW.) between 9 a.m. and 5 p.m. to enable the stratification of the sample over-the-counter (OTC) derivatives. Data on weekdays. for more statistically efficient Additionally, commenters should estimation. The census would gather are collected on the notional amounts send a copy of their comments to the limited information including total and gross market values of the volumes OMB Desk Officer by mail to the Office assets, areas of specialization, and outstanding of broad categories of of Information and Regulatory Affairs, information on the corporate structure foreign exchange, interest rate, and U.S. Office of Management and Budget, of the companies. equity- and commodity-linked OTC New Executive Office Building, Room For purposes of this information derivatives contracts across a range of 10235, 725 17th Street, NW., collection, finance companies were underlying currencies, interest rates, Washington, DC 20503 or by fax to 202– defined as domestic companies and equity markets. This collection of 395–6974. (excluding commercial banks, information complements the ongoing cooperative banks, investment banks, triennial Survey of Foreign Exchange FOR FURTHER INFORMATION CONTACT: A savings banks, savings and loan and Derivatives Market Activity (FR copy of the PRA OMB submission, institutions and industrial loan 3036; OMB No. 7100–0285). The FR including the proposed reporting form corporations or their subsidiaries) 2436 collects similar data on the and instructions, supporting statement, whose largest portion of assets is made outstanding volume of derivatives, but and other documentation will be placed up of consumer or business loans or not on derivatives turnover. The Federal into OMB’s public docket files, once leases. Reserve conducts both surveys in approved. These documents will also be Current actions: The Federal Reserve coordination with other central banks made available on the Federal Reserve proposes to revise the census to improve and forwards the aggregated data Board’s public Web site at: http:// the response rate and help staff identify furnished by U.S. reporters to the Bank www.federalreserve.gov/boarddocs/ respondents for the upcoming survey, for International Settlements (BIS), reportforms/review.cfm or may be once approved. The Federal Reserve which publishes global market statistics requested from the agency clearance proposes the following revisions to the that are aggregations of national data. officer, whose name appears below. census: (1) Change the title of the census Current Actions: The Federal Reserve Michelle Shore, Federal Reserve from Finance Company Questionnaire proposes to revise the FR 2436 by Board Clearance Officer (202–452– to Census of Finance Companies. Board collecting additional data on credit 3829), Division of Research and staff believes using the term ‘census’ in default swaps (CDSs). The large size of Statistics, Board of Governors of the the title would stress that every the credit derivatives market and the Federal Reserve System, Washington, response is important. (2) Modify and important role that credit derivatives DC 20551. Telecommunications Device combine the Purpose of Report and the play for financial institutions in for the Deaf (TDD) users may contact Scope of the Report sections. The managing their credit risk have (202–263–4869), Board of Governors of modifications would make the survey increased the need for more detailed the Federal Reserve System, easier to understand. (3) Change several comprehensive data on CDS activity. As Washington, DC 20551. Proposal to approve under OMB questions to allow the Federal Reserve a result, the central banks of the Group delegated authority the implementation to gather information needed to of Ten Countries (G–10) would like to of the following report: determine whether a company is a collect additional data on CDSs from Report title: Census of Finance finance company rather than asking their important derivatives dealers and Companies. whether it meets the definition. The report the aggregate data to the BIS (so Agency form number: FR 3033p. Federal Reserve believes these changes that more detailed global statistics can OMB control number: 7100–0277. would improve the accuracy of be assembled). The proposed revisions Frequency: One-time. identifying finance companies. and (4) would be implemented in two phases in Reporters: Domestic finance Increase the respondent panel size from order to balance the need for additional companies and mortgage companies. 3,000 to 30,000. The Federal Reserve information quickly against the burden

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associated with implementing changes Reserve on the same forms that bank 1. Western Liberty Bancorp; to become relatively rapidly. Phase 1 would be holding companies and nonbank a bank holding company by acquiring effective with the June 30, 2010, report entities use to submit similar 100 percent of the voting shares of date and Phase 2 would be effective information to the Securities and Service1st Bank of Nevada, both of Las with the June 30, 2011, report date. Exchange Commission. The information Vegas, Nevada. Proposal to approve under OMB is primarily used for public disclosure Board of Governors of the Federal Reserve delegated authority the extension for and is available to the public upon System, January 26, 2010. three years, without revision, of the request. Robert deV. Frierson, following reports: Board of Governors of the Federal Reserve Deputy Secretary of the Board. 1. Report title: Notice of Branch System, January 25, 2010. [FR Doc. 2010–1833 Filed 1–28–10; 8:45 am] Closure. Jennifer J. Johnson, Agency form number: FR 4031. BILLING CODE 6210–01–S OMB control number: 7100–0264. Secretary of the Board. Frequency: On occasion. [FR Doc. 2010–1774 Filed 1–28–10; 8:45 am] Reporters: State member banks. BILLING CODE 6210–01–P FEDERAL MARITIME COMMISSION Estimated annual reporting hours: Notice of Agreement Filed 291 hours. Estimated average hours per response: FEDERAL RESERVE SYSTEM The Commission hereby gives notice Reporting requirements, 2 hours; Formations of, Acquisitions by, and of the filing of the following agreement Disclosure requirements, customer Mergers of Bank Holding Companies under the Shipping Act of 1984. mailing, 0.75 hours and posted notice, Interested parties may submit comments 0.25 hours; and Recordkeeping The companies listed in this notice on the agreement to the Secretary, requirements, 8 hours. have applied to the Board for approval, Federal Maritime Commission, Number of respondents: Reporting pursuant to the Bank Holding Company Washington, DC 20573, within ten days requirements, 70; Disclosure Act of 1956 (12 U.S.C. 1841 et seq.) of the date this notice appears in the requirements, customer mailing, 70 and (BHC Act), Regulation Y (12 CFR Part Federal Register. A copy of the posted notice, 70; and Recordkeeping 225), and all other applicable statutes agreement is available through the requirements, 10. and regulations to become a bank Commission’s Web site (http:// General description of report: This holding company and/or to acquire the www.fmc.gov) or by contacting the information collection is mandatory (12 assets or the ownership of, control of, or Office of Agreements at (202) 523–5793 U.S.C. 1831r–l(a)(1)) and may be given the power to vote shares of a bank or or [email protected]. confidential treatment upon request (5 bank holding company and all of the Agreement No.: 011284–067. U.S.C.552(b)(4)). banks and nonbanking companies Title: Ocean Carrier Equipment Abstract: The mandatory reporting, owned by the bank holding company, Management Association Agreement. Parties: APL Co. Pte. Ltd.; American recordkeeping, and disclosure including the companies listed below. requirements regarding the closing of President Lines, Ltd.; A.P. Moller- The applications listed below, as well any branch of an insured depository Maersk A/S; CMA CGM, S.A.; Atlantic as other related filings required by the institution are imposed by section 228 Container Line; China Shipping Board, are available for immediate of the Federal Deposit Insurance Container Lines Co., Ltd; China inspection at the Federal Reserve Bank Corporation Improvement Act of 1991. Shipping Container Lines (Hong Kong) indicated. The applications also will be There is no reporting form associated Co., Ltd.; Companhia Libra de available for inspection at the offices of with the reporting portion of this Navegacao; Compania Libra de the Board of Governors. Interested information collection; state member Navegacion Uruguay S.A.; Compania persons may express their views in banks notify the Federal Reserve by Sudamericana de Vapores, S.A.; COSCO writing on the standards enumerated in letter prior to closing a branch. The Container Lines Company Limited; the BHC Act (12 U.S.C. 1842(c)). If the Federal Reserve uses the information to Crowley Maritime Corporation; proposal also involves the acquisition of fulfill its statutory obligation to Evergreen Line Joint Service Agreement; a nonbanking company, the review also supervise state member banks. Hamburg-Su¨ d; Hapag-Lloyd AG; Hapag- includes whether the acquisition of the 2. Report title: Reports Related to Lloyd USA LLC; Hanjin Shipping Co., nonbanking company complies with the Securities Issued by State Member Ltd.; Hyundai Merchant Marine Co. standards in section 4 of the BHC Act Banks as Required by Regulation H. Ltd.; Kawasaki Kisen Kaisha, Ltd.; (12 U.S.C. 1843). Unless otherwise Agency form number: FR H–1. Mediterranean Shipping Company, S.A.; OMB control number: 7100–0091. noted, nonbanking activities will be Mitsui O.S.K. Lines Ltd.; Nippon Yusen Frequency: Quarterly and on conducted throughout the United States. Kaisha Line; Norasia Container Lines occasion. Additional information on all bank Limited; Orient Overseas Container Line Reporters: State member banks. holding companies may be obtained Limited; Yang Ming Marine Transport Estimated annual reporting hours: from the National Information Center Corp.; and Zim Integrated Shipping 1,230 hours. website at www.ffiec.gov/nic/. Services, Ltd. Estimated average hours per response: Unless otherwise noted, comments Filing Party: Jeffrey F. Lawrence, Esq.; 5.17 hours. regarding each of these applications Sher & Blackwell LLP; 1850 M Street, Number of respondents: 14. must be received at the Reserve Bank NW.; Suite 900; Washington, DC 20036. General description of report: This indicated or the offices of the Board of Synopsis: The amendment adds the information collection is mandatory (15 Governors not later than February 25, authority for parties to discuss, share U.S.C. 781(i) and 78w (a)(1)) and is not 2010. information and reach agreement on given confidential treatment. A. Federal Reserve Bank of San processes relating to the return, Abstract: The Federal Reserve’s Francisco (Kenneth Binning, Vice maintenance, and repair of equipment, Regulation H requires certain state President, Applications and including processes necessary for member banks to submit information Enforcement) 101 Market Street, San compliance with state and federal safety relating to their securities to the Federal Francisco, California 94105–1579: regulations.

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By Order of the Federal Maritime DEPARTMENT OF HEALTH AND evaluate a petition to designate a class Commission. HUMAN SERVICES of employees for the Lawrence Dated: January 26, 2010. Livermore National Laboratory, Karen V. Gregory, Decision To Evaluate a Petition To Livermore, California, to be included in Designate a Class of Employees for Secretary. the Special Exposure Cohort under the Linde Ceramics, Tonawanda, NY, To Energy Employees Occupational Illness [FR Doc. 2010–1841 Filed 1–28–10; 8:45 am] Be Included in the Special Exposure Compensation Program Act of 2000. The BILLING CODE 6730–01–P Cohort initial proposed definition for the class being evaluated, subject to revision as AGENCY: National Institute for warranted by the evaluation, is as Occupational Safety and Health follows: GENERAL SERVICES (NIOSH), Department of Health and Facility: Lawrence Livermore National ADMINISTRATION Human Services (HHS). Laboratory. ACTION: Notice. Location: Livermore, California. 2010 Travel and Relocation Excellence Job Titles and/or Job Duties: All SUMMARY: Award HHS gives notice as required employees of the Department of Energy, by 42 CFR 83.12(e) of a decision to its predecessor agencies, and their AGENCY: Office of Governmentwide evaluate a petition to designate a class contractors and subcontractors. Policy, General Services Administration of employees for Linde Ceramics, Period of Employment: January 1, (GSA). Tonawanda, New York, to be included 1950 through December 31, 1973. in the Special Exposure Cohort under FOR FURTHER INFORMATION CONTACT: ACTION: Notice. the Energy Employees Occupational Stuart L. Hinnefeld, Interim Director, Illness Compensation Program Act of Office of Compensation Analysis and SUMMARY: The General Services 2000. The initial proposed definition for Support, National Institute for Administration (GSA) is seeking the class being evaluated, subject to Occupational Safety and Health revision as warranted by the evaluation, candidates for the biennial 2010 Travel (NIOSH), 4676 Columbia Parkway, MS is as follows: and Relocation Excellence Award, C–46, Cincinnati, OH 45226, Telephone Facility: Linde Ceramics. which honors excellence in federal 513–533–6800 (this is not a toll-free Location: Tonawanda, New York. travel and relocation policy. number). Information requests can also Job Titles and/or Job Duties: All be submitted by e-mail to FOR FURTHER INFORMATION CONTACT: Go employees who worked in any area. to GSA’s 2010 Travel and Relocation Period of Employment: November 1, [email protected]. Excellence Award at http:// 1947 through December 31, 1953. John Howard, www.gsa.gov/travelrelocationaward or FOR FURTHER INFORMATION CONTACT: Director, National Institute for Occupational contact Jane Groat, Travel Management Stuart L. Hinnefeld, Interim Director, Safety and Health. Policy, Office of Travel, Transportation, Office of Compensation Analysis and [FR Doc. 2010–1938 Filed 1–28–10; 8:45 am] and Asset Management (MT), General Support, National Institute for BILLING CODE 4163–19–P Services Administration, Washington, Occupational Safety and Health DC 20405, (202) 501–4318, (NIOSH), 4676 Columbia Parkway, MS [email protected]. C–46, Cincinnati, OH 45226, Telephone DEPARTMENT OF HEALTH AND 513–533–6800 (this is not a toll-free HUMAN SERVICES SUPPLEMENTARY INFORMATION: The number). Information requests can also Federal Travel Regulation is contained be submitted by e-mail to President’s Advisory Council for Faith- in Title 41 Code of the Federal [email protected]. Based and Neighborhood Partnerships Regulations (41 CFR Chapters 300 In accordance with section 10(a)(2) of through 304), and implements statutory John Howard, Director, National Institute for Occupational the Federal Advisory Committee Act requirements and Executive branch (Pub. L. 92–463), the President’s policies for travel and relocation by Safety and Health. [FR Doc. 2010–1939 Filed 1–28–10; 8:45 am] Advisory Council for Faith-based and Federal civilian employees and others Neighborhood Partnerships announces BILLING CODE 4163–19–P authorized to travel and relocate at the following meeting: Government expense. Name: President’s Advisory Council GSA announces an award to recognize DEPARTMENT OF HEALTH AND for Faith-based and Neighborhood and honor excellence in Federal travel HUMAN SERVICES Partnerships Council Meeting. and relocation. This award, available to Times and Dates: Tuesday, February all Federal employees, will honor Decision To Evaluate a Petition To 2nd from 4–6 p.m. EST and Thursday, Designate a Class of Employees for February 4th from 4–6 p.m. EST. individuals and/or teams. Winners of Place: Meetings will be held via the award will be publicly announced the Lawrence Livermore National Laboratory, Livermore, CA, To Be conference call. Please contact Mara and presented at the National Travel Vanderslice for call-in information and Forum (June 29–July 1, 2010, Orlando, Included in the Special Exposure Cohort further details at FL, http://www2.nbta.org/ntf). Entries [email protected]. must be received no later than March AGENCY: National Institute for Status: Open to the public, limited 31, 2010. Occupational Safety and Health only by the space available. Conference (NIOSH), Department of Health and call line will be available. Patrick O’Grady, Human Services (HHS). Purpose: The Council brings together Acting Director, Travel Management Policy. ACTION: Notice. leaders and experts in fields related to [FR Doc. 2010–1862 Filed 1–28–10; 8:45 am] the work of faith-based and BILLING CODE 6820–14–P SUMMARY: HHS gives notice as required neighborhood organizations in order to: by 42 CFR 83.12(e) of a decision to Identify best practices and successful

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modes of delivering social services; technology. Written comments should information that helped in the planning evaluate the need for improvements in be received within 60 days of this of National and State colorectal cancer the implementation and coordination of notice. screening efforts. However, in light of public policies relating to faith- based recent trends in colorectal cancer Proposed Project and other neighborhood organizations; screening (e.g., increases in the and make recommendations for changes Estimating the Capacity for national percentage of public and private in policies, programs, and practices. and State-Level Colorectal Cancer insurers that reimburse for screening Contact Person for Additional Screening through a Survey of colonoscopy, increased use of Information: Mara Vanderslice at Endoscopic Capacity (SECAP II)— colonoscopy and decreased use of [email protected]. Reinstatement with Changes—Division flexible sigmoidoscopy, availability of of Cancer Prevention and Control, SUPPLEMENTARY INFORMATION: Please other colorectal cancer screening National Center for Chronic Disease contact Mara Vanderslice for more procedures), there is a need to update Prevention and Health Promotion information about how to join the estimates of endoscopic capacity to (NCCDPHP), Centers for Disease Control guide continued screening initiatives. conference call. and Prevention (CDC). Agenda: Topics to be discussed CDC plans to request OMB approval include final deliberations on draft Background and Brief Description for three years to conduct a national Taskforce recommendations for Council Colorectal cancer (CRC) is the second survey of endoscopic capacity again in report. leading cause of cancer-related deaths in 2010–2011, and additional State-level Dated: January 15, 2010. the United States (U.S.). Removal of pre- surveys over a three-year period. The Jamison Citron, cancerous polyps before they transform proposed national survey will employ Special Assistant. into cancer can prevent colorectal the same methodology used in the previous national survey, and the [FR Doc. 2010–1592 Filed 1–28–10; 8:45 am] cancer from developing. Additionally, early asymptomatic cancers found same—but updated—sampling frame. BILLING CODE 4154–07–P through screening respond better to The proposed State-level information treatment than more advanced cancers collection will include a census survey DEPARTMENT OF HEALTH AND that are detected once they become of selected States, based on HUMAN SERVICES symptomatic. As a result, CRC is ideally methodology employed with the suited for prevention and early previously fielded State-based survey. Centers for Disease Control and detection through regular screening. The target population for the national Prevention Flexible sigmoidoscopy and survey will be all facilities in the U.S. colonoscopy, two lower gastrointestinal [60 Day–10–0539] that use lower gastrointestinal flexible (GI) endoscopic procedures currently endoscopic equipment for the detection Proposed Data Collections Submitted recommended as colorectal cancer of colorectal cancer in adults. for Public Comment and screening tests, provide direct Information will be collected from a Recommendations visualization of the colon, and allow random sample of 1,440 facilities, qualified medical professionals to stratified by U.S. Census region and In compliance with the requirement identify and remove polyps as well as urban/rural location. Similarly, of Section 3506(c)(2)(A) of the to detect early cancers. Both of these information will be collected from a Paperwork Reduction Act of 1995 for tests require specialized training. census of qualifying facilities in up to opportunity for public comment on Flexible sigmoidoscopy provides a view 18 selected States. An average of 200 proposed data collection projects, the of only the lower half of the colon, but facilities will be invited to participate in Centers for Disease Control and is still used widely. Colonoscopy, which each State capacity survey. A total of Prevention (CDC) will publish periodic provides a view of the entire colon, is approximately 1,680 completed State summaries of proposed projects. To both a primary screening test and the surveys will be collected over the three request more information on the recommended follow-up procedure for years of the project. The same survey proposed projects or to obtain a copy of any other positive colorectal cancer instrument will be used for both the data collection plans and screening test. information collections. Minor, non- instruments, call 404–639–5960 or send Information regarding the capacity of substantive changes to the self- comments to Maryam I. Daneshvar, CDC the U.S. health care system to provide administered, paper-and-pencil survey Acting Reports Clearance Officer, 1600 lower GI endoscopic procedures is instrument will be made to improve Clifton Road, MS D–74, Atlanta, GA critical to planning widespread CRC usability. 30333 or send an e-mail to screening programs. In 2002, CDC [email protected]. conducted the National Survey of The specific aims of the information Comments are invited on: (a) Whether Endoscopic Capacity (SECAP) (OMB collection are to provide: (1) Current the proposed collection of information No. 0920–0539, exp. 3/31/2003) to estimates of the number of colorectal is necessary for the proper performance obtain an estimate of the number of cancer screening and follow-up of the functions of the agency, including colorectal cancer screening and follow- procedures being performed; (2) current whether the information shall have up tests currently being performed, as estimates of the maximum number of practical utility; (b) the accuracy of the well as the maximum number of procedures that could be performed in agency’s estimate of the burden of the screening and follow-up tests that could the event of widespread screening; and proposed collection of information; (c) be performed in the event of widespread (3) information regarding the types of ways to enhance the quality, utility, and screening. In 2003–2005, CDC facilities and providers that perform the clarity of the information to be conducted similar surveys in 15 procedures. collected; and (d) ways to minimize the selected States to provide estimates at Facilities will be recruited and burden of the collection of information State and sub-State levels (State Survey screened through a telephone interview. on respondents, including through the of Endoscopic Capacity, OMB No. Participation is voluntary and there are use of automated collection techniques 0920–0590, exp. 6/30/2006). These no costs to respondents other than their or other forms of information capacity estimates provided critical time.

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ESTIMATED ANNUALIZED BURDEN HOURS

Average bur- Number of re- Number of re- den per re- Total burden Type of respondent Form name spondents sponses per sponse (in hours) respondent (in hours)

Medical Facilities that National Survey Recruitment Interview ...... 700 1 5/60 58 Perform CRC Screen- ing. National SECAP Survey ...... 480 1 35/60 280 State Survey Recruitment Interview ...... 800 1 5/60 67 State SECAP Survey ...... 560 1 35/60 327

Total ...... 732

Dated: January 22, 2010. Office of Management and Budget functional status of the recipients, and Maryam I. Daneshvar, (OMB) for each collection of is a key source for AoA performance Acting Reports Clearance Officer, Centers for information they conduct or sponsor. measurement. This collection includes Disease Control and Prevention. ‘‘Collection of information’’ is defined in minor revisions of the format from the [FR Doc. 2010–1907 Filed 1–28–10; 8:45 am] 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) 2006 approved version. The proposed BILLING CODE 4163–18–P and includes agency request or revised version will be in effect for the requirements that members of the public FY 2011 reporting year and thereafter, submit reports, keep records, or provide while the current reporting, OMB DEPARTMENT OF HEALTH AND information to a third party. Section Approval Number 0985–0008, will be HUMAN SERVICES 3506(c)(2)(A) of the PRA (44 U.S.C. extended to the end of the FY 2010 3506(c)(2)(A)) requires Federal agencies reporting cycle. The proposed FY 2011 Administration on Aging to provide a 60-day notice in the version may be found on the AoA Web Federal Register concerning each site link entitled Draft State Reporting Agency Information Collection proposed collection of information, Tool for Review available at http:// Activities; Proposed Collection; including each proposed extension of an www.aoa.gov/AoARoot/ Comment Request; State Program existing collection of information, Program_Results/ Report before submitting the collection to OMB OAA_Performance.aspx#national. AGENCY: Administration on Aging, HHS. for approval. To comply with this AoA estimates the burden of this ACTION: Notice. requirement, AoA is publishing notice collection of information as follows: of the proposed collection of 2,600 hours. SUMMARY: The Administration on Aging information set forth in this document. Dated: January 25, 2010. (AoA) is announcing an opportunity for With respect to the following collection public comment on the proposed of information, AoA invites comments Kathy Greenlee, collection of certain information by the on: (1) Whether the proposed collection Assistant Secretary for Aging. agency. Under the Paperwork Reduction of information is necessary for the [FR Doc. 2010–1909 Filed 1–28–10; 8:45 am] Act of 1995 (the PRA), Federal agencies proper performance of AoA’s functions, BILLING CODE 4154–01–P are required to publish notice in the including whether the information will Federal Register concerning each have practical utility; (2) the accuracy of proposed collection of information, AoA’s estimate of the burden of the DEPARTMENT OF HEALTH AND including each proposed extension of an proposed collection of information, HUMAN SERVICES existing collection of information, and including the validity of the methodology and assumptions used; (3) Centers for Disease Control and to allow 60 days for public comment in Prevention response to the notice. This notice ways to enhance the quality, utility, and clarity of the information to be solicits comments on the information [30Day–10–0234] collection requirements relating to Title collected; and (4) ways to minimize the III and VII State Program Report. burden of the collection of information Agency Forms Undergoing Paperwork DATES: Submit written or electronic on respondents, including through the Reduction Act Review comments on the collection of use of automated collection techniques information by March 30, 2010. when appropriate, and other forms of The Centers for Disease Control and information technology. Prevention (CDC) publishes a list of ADDRESSES: Submit electronic The Older Americans Act (OAA) information collection requests under comments on the collection of requires annual program performance review by the Office of Management and information to: reports from States. In compliance with Budget (OMB) in compliance with the [email protected]. Submit this OAA provision, AoA developed a Paperwork Reduction Act (44 U.S.C. written comments on the collection of State Program Report (SPR) in 1996 as Chapter 35). To request a copy of these information to Administration on Aging, part of its National Aging Program requests, call the CDC Reports Clearance Office of Evaluation, Washington, DC Information System (NAPIS). The SPR Officer at (404) 639–5960 or send an e- 20201. collects information about how State mail to [email protected]. Send written FOR FURTHER INFORMATION CONTACT: Agencies on Aging expend their OAA comments to CDC Desk Officer, Office of Valerie Cook at 202–357–3583. funds as well as funding from other Management and Budget, Washington, SUPPLEMENTARY INFORMATION: Under the sources for OAA authorized supportive DC 20503 or by fax to (202) 395–5806. PRA (44 U.S.C. 3501–3520), Federal services. The SPR also collects Written comments should be received agencies must obtain approval from the information on the demographic and within 30 days of this notice.

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Proposed Project patients to non-Federal office-based National Center for Chronic Disease National Ambulatory Medical Care physicians (excluding those in the Prevention and Health Promotion Survey (NAMCS) (OMB No. 0920–0234) specialties of anesthesiology, radiology, (NCCDPHP) to evaluate cervical cancer — Revision — National Center for and pathology) who are engaged in screening methods and the use of Health Statistics (NCHS), Centers for direct patient care. Human Papillomavirus DNA tests. Disease Control and Prevention (CDC). In 2006, physicians and mid-level A supplemental mail survey on the providers (i.e., nurse practitioners, adoption and use of EMR in physician Background and Brief Description physician assistants, and nurse offices was added to NAMCS in 2008, Section 306 of the Public Health midwives) practicing in community and will continue. These data were Service (PHS) Act (42 U.S.C. 242k), as health centers (CHCs) were added to the requested by the Office of the National amended, authorizes that the Secretary NAMCS sample, and these data will Coordinator for Health Information of Health and Human Services (DHHS), continue to be collected. To Technology (ONC), Department of acting through NCHS, shall collect complement NAMCS data, NCHS Health and Human Services, to measure statistics on ‘‘utilization of health care’’ initiated the National Hospital progress toward goals for EMR adoption. in the United States. NAMCS was Ambulatory Medical Care Survey The mail survey will collect information conducted annually from 1973 to 1981, (NHAMCS, OMB No. 0920–0278) in on characteristics of physician practices again in 1985, and resumed as an 1992 to provide data concerning patient and the capabilities of EMRs used in annual survey in 1989. The purpose of visits to hospital outpatient and those practices. Starting in 2010, the NAMCS is to meet the needs and emergency departments. NAMCS and EMR mail survey will have a five-fold demands for statistical information NHAMCS are the principal sources of increase from the 2009 sample to collect about the provision of ambulatory data on ambulatory care provided in the state-level data. medical care services in the United United States. States. NCHS is seeking OMB approval NAMCS provides a range of baseline Users of NAMCS data include, but are to extend this survey for three years. data on the characteristics of the users not limited to, Congressional offices, The major reason for this revision and providers of ambulatory medical Federal agencies, state and local request is to add the collection of state care. Data collected include the patients’ governments, schools of public health, level data on physician use of electronic demographic characteristics, reason(s) colleges and universities, private medical records (EMRs), described in for visit, provider diagnoses, diagnostic industry, nonprofit foundations, more detail below. services, medications, and visit professional associations, clinicians, Ambulatory services are rendered in a disposition. In addition, information on researchers, administrators, and health wide variety of settings, including cervical cancer screening practices in planners. physician offices and hospital physician offices will continue to be There is no cost to respondents other outpatient and emergency departments. collected through the Cervical Cancer than their time to participate. The total The NAMCS target universe consists of Screening Supplement (CCSS), which estimated annualized burden hours are all office visits made by ambulatory was added in 2006. It will allow CDC’s 7,372.

ESTIMATED ANNUALIZED BURDEN TABLE

Number of re- Type of respondent Form name Number of re- sponses per Hours per re- spondents respondent sponse

Core NAMCS Office-based physicians/CHC providers .. Physician Induction Interview (NAMCS–1) .... 3,657 1 28/60 Community Health Center Directors...... Community Health Center Induction Inter- 104 1 20/60 view (NAMCS–201). Office-based physicians/CHC providers/ Patient Record form (NAMCS–30) ...... 738 30 9/60 staff. Office/CHC staff...... Pulling, re-filing Patient Record form 650 30 1/60 (NAMCS–30). Office-based physicians/CHC providers/ Cervical Cancer Screening Supplement 464 1 15/60 staff. (NAMCS–CCS). Office-based physicians ...... EMR/EHR Mail Survey ...... 5,604 1 20/60

Dated: January 25, 2010. DEPARTMENT OF HEALTH AND Paperwork Reduction Act of 1995, the Maryam I. Daneshvar, HUMAN SERVICES Centers for Medicare & Medicaid Acting Reports Clearance Officer, Centers for Services (CMS), Department of Health Disease Control and Prevention. Centers for Medicare & Medicaid and Human Services, is publishing the Services [FR Doc. 2010–1937 Filed 1–28–10; 8:45 am] following summary of proposed collections for public comment. BILLING CODE 4163–18–P [Document Identifier: CMS–10184] Interested persons are invited to send Agency Information Collection comments regarding this burden Activities: Submission for OMB estimate or any other aspect of this Review; Comment Request collection of information, including any of the following subjects: (1) The AGENCY: Centers for Medicare & necessity and utility of the proposed Medicaid Services, HHS. information collection for the proper In compliance with the requirement performance of the Agency’s function; of section 3506(c)(2)(A) of the (2) the accuracy of the estimated

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burden; (3) ways to enhance the quality, Dated: January 22, 2010. effective distribution of ESRD resources. utility, and clarity of the information to Michelle Shortt, The data is used by the ESRD Networks be collected; and (4) the use of Director, Regulations Development Group, to verify facility deaths and to monitor automated collection techniques or Office of Strategic Operations and Regulatory facility performance. Form Number: other forms of information technology to Affairs. CMS–2746 (OMB#: 0938–0448); minimize the information collection [FR Doc. 2010–1918 Filed 1–28–10; 8:45 am] Frequency: On occasion; Affected burden. BILLING CODE 4120–01–P Public: Business or other for-profit, Not- 1. Type of Information Collection for-profit institutions; Number of Respondents: 5,173; Total Annual Request: Extension of a currently DEPARTMENT OF HEALTH AND approved collection; Title of HUMAN SERVICES Responses: 82,768; Total Annual Hours: Information Collection: Eligibility Error 41,384. (For policy questions regarding Rate Measurement in Medicaid and the Centers for Medicare & Medicaid this collection contact Connie Cole at Children’s Health Insurance Program; Services 410–786–0257. For all other issues call Use: The collection of information is 410–786–1326.) [Document Identifier: CMS–2746] necessary for CMS to produce national To obtain copies of the supporting error rates for Medicaid and CHIP as Agency Information Collection statement and any related forms for the required by Public Law 107–300, the Activities: Proposed Collection; proposed paperwork collections IPIA of 2002. The collection of Comment Request referenced above, access CMS’ Web Site information is also necessary to at: http://www.cms.hhs.gov/ implement provisions from the AGENCY: Centers for Medicare & PaperworkReductionActof1995, or Children’s Health Insurance Program Medicaid Services. Reauthorization Act of 2009 (CHIPRA) In compliance with the requirement E-mail your request, including your (Pub. L. 111–3) with regard to the of section 3506(c)(2)(A) of the address, phone number, OMB number, Medicaid Eligibility Quality Control Paperwork Reduction Act of 1995, the and CMS document identifier, to (MEQC) and Payment Error Rate Centers for Medicare & Medicaid [email protected], or call the Measurement (PERM) programs. The Services (CMS) is publishing the Reports Clearance Office on (410) 786– information collected from the States following summary of proposed 1326. selected for review will be used by CMS collections for public comment. In commenting on the proposed to ensure States use a statistically sound Interested persons are invited to send information collections please reference sampling methodology, to ensure the comments regarding this burden the document identifier or OMB control States complete reviews on all cases estimate or any other aspect of this number. To be assured consideration, collection of information, including any sampled, and will be used by the comments and recommendations must of the following subjects: (1) The Federal contractor to calculate State and be submitted in one of the following necessity and utility of the proposed national Medicaid and CHIP eligibility ways by March 30, 2010: error rates. Form Number: CMS–10184 information collection for the proper (OMB#: 0938–1012); Frequency: performance of the agency’s functions; 1. Electronically. You may submit Reporting—Occasionally; Affected (2) the accuracy of the estimated your comments electronically to http:// Public: State, Local, Tribal burden; (3) ways to enhance the quality, www.regulations.gov. Follow the Governments; Number of Respondents: utility, and clarity of the information to instructions for ‘‘Comment or 34; Total Annual Responses: 53; Total be collected; and (4) the use of Submission’’ or ‘‘More Search Options’’ Annual Hours: 942,764. (For policy automated collection techniques or to find the information collection questions regarding this collection other forms of information technology to document(s) accepting comments. contact Jessica Woodard at 410–786– minimize the information collection 2. By regular mail. You may mail burden. 9249. For all other issues call 410–786– written comments to the following 1326.) 1. Type of Information Collection Request: Extension of a currently address: CMS, Office of Strategic To obtain copies of the supporting approved collection; Title of Operations and Regulatory Affairs, statement and any related forms for the Information Collection: End Stage Renal Division of Regulations Development, proposed paperwork collections Disease Death Notification Public Law Attention: Document Identifier/OMB referenced above, access CMS Web Site 95–292; 42 CFR 405.2133, 45 CFR 5–5b; Control Number, Room C4–26–05, 7500 address at http://www.cms.hhs.gov/ 20 CFR Parts 401 and 422E Use: The Security Boulevard, Baltimore, PaperworkReductionActof1995, or E- ESRD Death Notification (CMS–2746) is Maryland 21244–1850. mail your request, including your completed by all Medicare-approved address, phone number, OMB number, Dated: January 22, 2010. ESRD facilities upon the death of an Michelle Shortt, and CMS document identifier, to ESRD patient. Its primary purpose is to [email protected], or call the collect fact of death and cause of death Director, Regulations Development Group, Office of Strategic Operations and Regulatory Reports Clearance Office on (410) 786– of ESRD patients. Certain other Affairs. 1326. identifying information (e.g., name, To be assured consideration, Medicare claim number, and date of [FR Doc. 2010–1916 Filed 1–28–10; 8:45 am] comments and recommendations for the birth) is required for matching purposes. BILLING CODE 4120–01–P proposed information collections must Federal regulations require that the be received by the OMB desk officer at ESRD Networks examine the mortality the address below, no later than 5 p.m. rates of every Medicare-approved on March 1, 2010. OMB, Office of facility within its area of responsibility. Information and Regulatory Affairs, The Death Form provides the necessary Attention: CMS Desk Officer. Fax data to assist the ESRD Networks in Number: (202) 395–6974. E-mail: making decisions that result in [email protected]. improved patient care and in cost-

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DEPARTMENT OF HEALTH AND administrative data reported from on- designees of clinical investigators who HUMAN SERVICES going cancer trials. On January 6, 2010, conduct NCI-supported clinical the same commenter sent a subsequent research. Deployment and extension of National Institutes of Health comment concerning corruption in the CTRP Database, which will allow clinical trials conducted by large the NCI to consolidate reporting, Submission for OMB Review; pharmaceutical companies. The NCI aggregate information and reduce Comment Request Clinical Trials sent an e-mail response on January 8, redundant submissions, is an Reporting Program (CTRP) Database 2010, thanking the commenter for her infrastructure development project that (NCI) additional comments and noting that will be enabled by public funds Summary: Under the provisions of they would be taken into consideration. expended pursuant to the American Section 3507(a)(1)(D) of the Paperwork The purpose of this notice is to allow Recovery and Reinvestment Act of 2009, Reduction Act of 1995, the National an additional 30 days for public Public Law 111–5 (‘‘Recovery Act’’). Cancer Institute (NCI), the National comment. The National Institutes of This information collection adheres to Institutes of Health (NIH), has submitted Health may not conduct or sponsor, and The Public Health Service Act, Section to the Office of Management and Budget the respondent is not required to 407(a)(4) (codified at 42 U.S.C. 285a– (OMB) a request to review and approve respond to, an information collection 2(a)(2)(D)), which authorizes and the information collection listed below. that has been extended, revised, or requires the NCI to collect, analyze and This proposed information collection implemented on or after October 1, disseminate all data useful in the was previously published in the Federal 1995, unless it displays a currently valid prevention, diagnosis, and treatment of Register on November 9, 2009, (Vol. 74, OMB control number. cancer, including the establishment of No. 215, p. 57684) and allowed 60-days Proposed Collection: Title: Clinical an international cancer research data for public comment. Two public Trials Reporting Program (CTRP) bank to collect, catalog, store, and comments were received. The first Database. Type of Information disseminate insofar as feasible the comment, received November 11, 2009, Collection Request: REVISION of results of cancer research undertaken in questioned the purpose and safety of currently approved collection [OMB No. any country for the use of any person clinical trials conducted outside of the 0925–0600, expiration date 01/31/2010]. involved in cancer research in any United States. An e-mail response was Need and Use of Information Collection: country. Frequency of Response: Once sent on January 6, 2010, acknowledging The NCI is developing an electronic per initial trial registration; four the commenter’s concern. The response resource, the NCI Clinical Trials amendments per trial annually; and four noted that the NCI’s Clinical Trials Reporting Program (CTRP) Database, to accrual updates per trial annually. Reporting Program is an information serve as a single, definitive source of Affected Public: Individuals, Business collection activity intended to assist the information about all NCI-supported and other for-profits, and Not-for-Profit NCI in management of the NCI’s clinical clinical research, thereby enabling the institutions. Type of Respondents: trials portfolio, which is global in NCI to execute its mission to reduce the Clinical research administrators on nature. The response further stated that burden of cancer and to ensure an behalf of clinical investigators. The while CTRP is not directly related to the optimal return on the nation’s annual reporting burden is estimated at conduct of a clinical trial, the NCI hopes investment in cancer clinical research. 38,500 hours (see Table below). There to use the information to facilitate Information will be submitted by are no Capital Costs, Operating Costs, routine review of safety, efficacy, and clinical research administrators as and/or Maintenance Costs to report.

A.12–1—ESTIMATES OF ANNUAL BURDEN HOURS

Average time Type of respond- Survey instru- Number of Frequency per response Annual burden ents ment respondents of response (minutes/hours) hours

Clinical Trials ..... Initial Registra- 5,500 1 120/60 11,000 tion. Amendment ...... 5,500 4 60/60 22,000 Accrual Updates 5,500 4 15/60 5,500

Total ...... 16,500 ...... 38,500

Request for Comments: Written clarity of the information to be Management and Budget, at comments and/or suggestions from the collected; and (4) Minimize the burden [email protected] or by public and affected agencies should of the collection of information on those fax to 202–395–6974. To request more address one or more of the following who are to respond, including the use information on the proposed project or points: (1) Evaluate whether the of appropriate automated, electronic, to obtain a copy of the data collection proposed collection of information is mechanical, or other technological plans and instruments, contact John necessary for the proper performance of collection techniques or other forms of Speakman, Associate Director for the function of the agency, including information technology. Clinical Trials Products and Programs, whether the information will have Direct Comments to OMB: Written Center for Biomedical Informatics and practical utility; (2) Evaluate the comments and/or suggestions regarding Information Technology, National accuracy of the agency’s estimate of the the item(s) contained in this notice, Cancer Institute, NIH, DHHS, 2115 E. burden of the proposed collection of especially regarding the estimated Jefferson Street, Suite 6000, Rockville, information, including the validity of public burden and associated response MD 20892 or call non-toll-free number the methodology and assumptions used; time, should be directed to the 301–451–8786 or e-mail your request, (3) Enhance the quality, utility, and Attention: NIH Desk Officer, Office of

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including your address to: Dated: January 25, 2010. DEPARTMENT OF HEALTH AND [email protected]. Jennifer Spaeth, HUMAN SERVICES Comments Due Date: Comments Director, Office of Federal Advisory National Institutes of Health regarding this information collection are Committee Policy. best assured of having their full effect if [FR Doc. 2010–1910 Filed 1–28–10; 8:45 am] Eunice Kennedy Shriver National received within 30 days of the date of BILLING CODE 4140–01–P Institute of Child Health and Human this publication. Development; Notice of Closed Dated: January 15, 2010. Meeting DEPARTMENT OF HEALTH AND Kristine Miller, HUMAN SERVICES Pursuant to section 10(d) of the NCI Project Clearance Liaison, National Federal Advisory Committee Act, as Institutes of Health. National Institutes of Health amended (5 U.S.C. App.), notice is [FR Doc. 2010–1988 Filed 1–28–10; 8:45 am] hereby given of the following meeting. BILLING CODE 4140–01–P Eunice Kennedy Shriver National The meeting will be closed to the Institute of Child Health and Human public in accordance with the Development; Notice of Closed provisions set forth in sections DEPARTMENT OF HEALTH AND Meeting 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., HUMAN SERVICES as amended. The grant applications and Pursuant to section 10(d) of the National Institutes of Health the discussions could disclose Federal Advisory Committee Act, as confidential trade secrets or commercial Eunice Kennedy Shriver National amended (5 U.S.C. App.), notice is property such as patentable material, Institute of Child Health and Human hereby given of the following meeting. and personal information concerning Development; Notice of Closed The meeting will be closed to the individuals associated with the grant Meeting public in accordance with the applications, the disclosure of which provisions set forth in sections would constitute a clearly unwarranted Pursuant to section 10(d) of the 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., invasion of personal privacy. Federal Advisory Committee Act, as as amended. The grant applications and Name of Committee: National Institute of amended (5 U.S.C. App.), notice is the discussions could disclose Child Health and Human Development Initial hereby given of the following meeting. confidential trade secrets or commercial Review Group, Biobehavioral and Behavioral The meeting will be closed to the property such as patentable material, Sciences Subcommittee. Date: February 24–25, 2010. public in accordance with the and personal information concerning individuals associated with the grant Time: 9 a.m. to 5 p.m. provisions set forth in sections Agenda: To review and evaluate grant 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., applications, the disclosure of which would constitute a clearly unwarranted applications. as amended. The grant applications and Place: Washington Plaza Hotel, 10 Thomas the discussions could disclose invasion of personal privacy. Circle, NW., Washington, DC 20005. confidential trade secrets or commercial Name of Committee: National Institute of Contact Person: Marita R. Hopmann, PhD, property such as patentable material, Child Health and Human Development Scientific Review Officer, Division of and personal information concerning Special Emphasis Panel, Prenatal Events- Scientific Review, Eunice Kennedy Shriver individuals associated with the grant Postnatal Consequences. National Institute of Child Health and Date: February 25, 2010. Human Development, NIH, 6100 Executive applications, the disclosure of which Boulevard, Room 5B01, Bethesda, MD 20892, Time: 2:30 p.m. to 4:30 p.m. would constitute a clearly unwarranted (301) 435–6911, [email protected]. Agenda: To review and evaluate grant invasion of personal privacy. (Catalogue of Federal Domestic Assistance applications. Name of Committee: National Institute of Program Nos. 93.864, Population Research; Place: National Institutes of Health, 6100 Child Health and Human Development 93.865, Research for Mothers and Children; Special Emphasis Panel; The Ontogeny of Executive Boulevard, Room 5B01, Rockville, 93.929, Center for Medical Rehabilitation Infant Detection of Inauthentic Emotion/ MD 20852, (Telephone Conference Call). Research; 93.209, Contraception and Emotional Memories in Children: Combining Contact Person: Peter Zelazowski, PhD, Infertility Loan Repayment Program, National Behavior and ERP. Scientific Review Officer, Division of Institutes of Health, HHS) Date: February 25, 2010. Scientific Review, Eunice Kennedy Shriver Dated: January 25, 2010. Time: 3:30 p.m. to 5 p.m. National Institute of Child Health and Jennifer Spaeth, Agenda: To review and evaluate grant Human Development, NIH, 6100 Executive applications. Boulevard, Rm. 5B01, Bethesda, MD 20892– Director, Office of Federal Advisory Committee Policy. Place: National Institutes of Health, 6100 7510, 301–435–6902, Executive Boulevard, Room 5B01, Rockville, [email protected]. [FR Doc. 2010–1917 Filed 1–28–10; 8:45 am] MD 20852, (Telephone Conference Call). (Catalogue of Federal Domestic Assistance BILLING CODE 4140–01–P Contact Person: Carla T. Walls, PhD, Program Nos. 93.864, Population Research; Scientific Review Officer, Division of 93.865, Research for Mothers and Children; Scientific Review, Eunice Kennedy Shriver DEPARTMENT OF HEALTH AND 93.929, Center for Medical Rehabilitation National Institute of Child Health and HUMAN SERVICES Human Development, NIH, 6100 Executive Research; 93.209, Contraception and Blvd., Room 5B01, Bethesda, MD 20892, Infertility Loan Repayment Program, National National Institutes of Health (301) 435–6898, [email protected]. Institutes of Health, HHS) (Catalogue of Federal Domestic Assistance Dated: January 25, 2010. Center for Scientific Review; Notice of Program Nos. 93.864, Population Research; Jennifer Spaeth, Closed Meetings 93.865, Research for Mothers and Children; Director, Office of Federal Advisory 93.929, Center for Medical Rehabilitation Pursuant to section 10(d) of the Committee Policy. Research; 93.209, Contraception and Federal Advisory Committee Act, as Infertility Loan Repayment Program, National [FR Doc. 2010–1915 Filed 1–28–10; 8:45 am] amended (5 U.S.C. App.), notice is Institutes of Health, HHS) BILLING CODE 4140–01–P hereby given of the following meetings.

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The meetings will be closed to the Contact Person: Najma Begum, PhD, Dated: January 22, 2010. public in accordance with the Scientific Review Officer, Center for Jennifer Spaeth, provisions set forth in sections Scientific Review, National Institutes of Director, Office of Federal Advisory 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Health, 6701 Rockledge Drive, Room 2186, Committee Policy. as amended. The grant applications and MSC 7818, Bethesda, MD 20892. 301–435– [FR Doc. 2010–1933 Filed 1–28–10; 8:45 am] 1243. [email protected]. the discussions could disclose BILLING CODE 4140–01–P confidential trade secrets or commercial (Catalogue of Federal Domestic Assistance property such as patentable material, Program Nos. 93.306, Comparative Medicine; and personal information concerning 93.333, Clinical Research, 93.306, 93.333, DEPARTMENT OF HEALTH AND individuals associated with the grant 93.337, 93.393–93.396, 93.837–93.844, HUMAN SERVICES applications, the disclosure of which 93.846–93.878, 93.892, 93.893, National would constitute a clearly unwarranted Institutes of Health, HHS) National Institutes of Health invasion of personal privacy. Dated: January 22, 2010. National Institute on Aging; Notice of Name of Committee: Center for Scientific Jennifer Spaeth, Closed Meetings Review Special Emphasis Panel, Member Director, Office of Federal Advisory Conflict: Endocrinology and Metabolic Committee Policy. Pursuant to section 10(d) of the Diseases. [FR Doc. 2010–1935 Filed 1–28–10; 8:45 am] Date: February 17–18, 2010. Federal Advisory Committee Act, as Time: 11 a.m. to 2 p.m. BILLING CODE 4140–01–P amended (5 U.S.C. App.), notice is Agenda: To review and evaluate grant hereby given of the following meetings. applications. The meetings will be closed to the Place: National Institutes of Health, 6701 DEPARTMENT OF HEALTH AND public in accordance with the Rockledge Drive, Bethesda, MD 20892. HUMAN SERVICES provisions set forth in sections (Virtual Meeting.) 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Contact Person: Krish Krishnan, PhD, National Institutes of Health Scientific Review Officer, Center for as amended. The grant applications and Scientific Review, National Institutes of National Heart, Lung, and Blood the discussions could disclose Health, 6701 Rockledge Drive, Room 6164, Institute; Notice of Closed Meeting confidential trade secrets or commercial MSC 7892, Bethesda, MD 20892. (301) 435– property such as patentable material, 1041. [email protected]. Pursuant to section 10(d) of the and personal information concerning Name of Committee: Center for Scientific Federal Advisory Committee Act, as individuals associated with the grant Review Special Emphasis Panel, Diversity amended (5 U.S.C. App.), notice is applications, the disclosure of which Fellowship Programs: Division of Clinical hereby given of the following meeting. would constitute a clearly unwarranted and Translational Sciences. invasion of personal privacy. Date: February 23, 2010. The meeting will be closed to the Time: 8 a.m. to 5 p.m. public in accordance with the Name of Committee: National Institute on Agenda: To review and evaluate grant provisions set forth in sections Aging Special Emphasis Panel; Development applications. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., and Maintenance of a Multigenotypic Aged Place: Hyatt Regency Bethesda, One Mouse Colony. as amended. The grant applications and Date: February 24, 2010. Bethesda Metro Center, 7400 Wisconsin the discussions could disclose Avenue, Bethesda, MD 20814. Time: 12 p.m. to 2 p.m. Contact Person: Abdelouahab Aitouche, confidential trade secrets or commercial Agenda: To review and evaluate contract PhD, Scientific Review Officer, Center for property such as patentable material, proposals. Scientific Review, National Institutes of and personal information concerning Place: National Institute on Aging, Health, 6701 Rockledge Drive, Room 4222, individuals associated with the grant Gateway Building, 7201 Wisconsin Ave, MSC 7814, Bethesda, MD 20892. 301–435– applications, the disclosure of which Suite 2C212, Bethesda, MD 20892, 2365. [email protected]. would constitute a clearly unwarranted (Telephone Conference Call) Name of Committee: Center for Scientific invasion of personal privacy. Contact Person: Bita Nakhai, PhD, Review Special Emphasis Panel, Member Scientific Review Officer, Scientific Review Name of Committee: Heart, Lung, and Conflict: Neurodegenerative Disorders. Branch, National Institute on Aging, Gateway Date: February 25, 2010. Blood Initial Review Group, Clinical Trials Bldg., 2C212, 7201 Wisconsin Avenue, Time: 1 p.m. to 3:30 p.m. Review Committee. Bethesda, MD 20814, 301–402–7701, Agenda: To review and evaluate grant Date: February 22, 2010. [email protected]. applications. Time: 8 a.m. to 5 p.m. Name of Committee: National Institute on Place: National Institutes of Health, 6701 Agenda: To review and evaluate grant Aging Special Emphasis Panel; Summer Rockledge Drive, Bethesda, MD 20892. applications. Research Training In Aging For Medical (Telephone Conference Call.) Place: Hyatt Regency Bethesda, One Students—NIA T35. Contact Person: Alexander Yakovlev, PhD, Bethesda Metro Center, 7400 Wisconsin Date: March 5, 2010. Scientific Review Officer, Center for Avenue, Bethesda, MD 20814. Time: 12:30 p.m. to 5 p.m. Scientific Review, National Institutes of Contact Person: Keary A Cope, PhD, Agenda: To review and evaluate grant Health, 6701 Rockledge Drive, Room 5206, Scientific Review Officer, Review Branch/ applications. MSC 7846, Bethesda, MD 20892. 301–435– DERA, National Heart, Lung, and Blood Place: National Institute on Aging, 1254. [email protected]. Institute, 6701 Rockledge Drive, Room 7190, Gateway Building, 7201 Wisconsin Avenue, Suite 2C218, Bethesda, MD 20892, Name of Committee: Center for Scientific Bethesda, MD 20892–7924, 301–435–2222, (Telephone Conference Call) Review Special Emphasis Panel, Member [email protected]. Conflict Applications: HBPP. Contact Person: Alfonso R. Latoni, PhD, Date: February 25, 2010. (Catalogue of Federal Domestic Assistance Deputy Chief, Scientific Review Branch, Time: 2 p.m. to 5 p.m. Program Nos. 93.233, National Center for National Institute on Aging, 7201 Wisconsin Agenda: To review and evaluate grant Sleep Disorders Research; 93.837, Heart and Avenue, Suite 2C218, Bethesda, MD 20892, applications. Vascular Diseases Research; 93.838, Lung 301–402–7702, [email protected]. Place: National Institutes of Health, 6701 Diseases Research; 93.839, Blood Diseases (Catalogue of Federal Domestic Assistance Rockledge Drive, Bethesda, MD 20892. and Resources Research, National Institutes Program Nos. 93.866, Aging Research, (Telephone Conference Call.) of Health, HHS) National Institutes of Health, HHS)

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Dated: January 25, 2010. (Catalogue of Federal Domestic Assistance DEA, NIDDK, National Institutes of Health, Jennifer Spaeth, Program Nos. 93.306, Comparative Medicine; Room 750, 6707 Democracy Boulevard, Director, Office of Federal Advisory 93.333, Clinical Research, 93.306, 93.333, Bethesda, MD 20892–5452, (301) 594–8886, Committee Policy. 93.337, 93.393–93.396, 93.837–93.844, [email protected]. 93.846–93.878, 93.892, 93.893, National [FR Doc. 2010–1931 Filed 1–28–10; 8:45 am] Name of Committee: National Institute of Institutes of Health, HHS) Diabetes and Digestive and Kidney Diseases BILLING CODE 4140–01–P Dated: January 25, 2010. Special Emphasis Panel; Collaborative Jennifer Spaeth, Interdisciplinary Team Science. Date: March 16, 2010. DEPARTMENT OF HEALTH AND Director, Office of Federal Advisory Time: 1 p.m. to 2 p.m. Committee Policy. HUMAN SERVICES Agenda: To review and evaluate grant [FR Doc. 2010–1929 Filed 1–28–10; 8:45 am] applications. National Institutes of Health BILLING CODE 4140–01–P Place: National Institutes of Health, Two Democracy Plaza, 6707 Democracy Center for Scientific Review; Notice of Boulevard, Bethesda, MD 20892 (Telephone Closed Meetings DEPARTMENT OF HEALTH AND Conference Call). Pursuant to section 10(d) of the HUMAN SERVICES Contact Person: Michael W. Edwards, PhD, Scientific Review Officer, Review Branch, Federal Advisory Committee Act, as National Institutes of Health DEA, NIDDK, National Institutes of Health, amended (5 U.S.C. App.), notice is Room 750, 6707 Democracy Boulevard, hereby given of the following meetings. National Institute of Diabetes and Bethesda, MD 20892–5452, (301) 594–8886, The meetings will be closed to the Digestive and Kidney Diseases; [email protected]. public in accordance with the (Catalogue of Federal Domestic Assistance provisions set forth in sections Notice of Closed Meetings Program Nos. 93.847, Diabetes, 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Pursuant to section 10(d) of the Endocrinology and Metabolic Research; as amended. The grant applications and Federal Advisory Committee Act, as 93.848, Digestive Diseases and Nutrition the discussions could disclose amended (5 U.S.C. App.), notice is Research; 93.849, Kidney Diseases, Urology confidential trade secrets or commercial hereby given of the following meetings. and Hematology Research, National Institutes property such as patentable material, The meetings will be closed to the of Health, HHS) and personal information concerning public in accordance with the Dated: January 25, 2010. individuals associated with the grant provisions set forth in sections Jennifer Spaeth, applications, the disclosure of which 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Director, Office of Federal Advisory would constitute a clearly unwarranted as amended. The grant applications and Committee Policy. invasion of personal privacy. the discussions could disclose [FR Doc. 2010–1928 Filed 1–28–10; 8:45 am] confidential trade secrets or commercial Name of Committee: Center for Scientific BILLING CODE 4140–01–P Review Special Emphasis Panel, Member property such as patentable material, Conflict: Cancer Therapy. and personal information concerning Date: February 5, 2010. individuals associated with the grant DEPARTMENT OF HEALTH AND Time: 11 a.m. to 1 p.m. applications, the disclosure of which HUMAN SERVICES Agenda: To review and evaluate grant would constitute a clearly unwarranted applications. invasion of personal privacy. Centers for Disease Control and Place: National Institutes of Health, 6701 Prevention Rockledge Drive, Bethesda, MD 20892, Name of Committee: National Institute of (Telephone Conference Call). Diabetes and Digestive and Kidney Diseases Special Emphasis Panel. Predictors of Advisory Committee to the Director Contact Person: Sharon K. Gubanich, PhD, (ACD), Centers for Disease Control Scientific Review Officer, Center for Genitourinary Disorders Studies. Scientific Review, National Institutes of Date: February 23, 2010. (CDC) and Prevention—Ethics Health, 6701 Rockledge Drive, Room 6214, Time: 3 p.m. to 3:45 p.m. Subcommittee (ES) MSC 7804, Bethesda, MD 20892, (301) 435– Agenda: To review and evaluate grant 1767, [email protected]. applications. In accordance with section 10(a)(2) of This notice is being published less than 15 Place: National Institutes of Health, Two the Federal Advisory Committee Act days prior to the meeting due to the timing Democracy Plaza, 6707 Democracy (Pub. L. 92–463), the Centers for Disease Boulevard, Bethesda, MD 20892 (Telephone limitations imposed by the review and Control and Prevention (CDC) funding cycle. Conference Call). Contact Person: Lakshmanan Sankaran, announces the following meeting of the Name of Committee: Center for Scientific aforementioned subcommittee: Review Special Emphasis Panel, PhD, Scientific Review Officer, Review Applications in Mechanisms of Emotion, Branch, DEA, NIDDK, National Institutes of Times and Dates: Stress and Health. Health, Room 755, 6707 Democracy 3 p.m.–4 p.m., February 18, 2010. Date: February 8, 2010. Boulevard, Bethesda, MD 20892–5452, (301) 8:30 a.m.–12:30 p.m., February 19, 2010. Time: 1 p.m. to 3 p.m. 594–7799, [email protected]. Place: CDC, Thomas R. Harkin Global Agenda: To review and evaluate grant Name of Committee: National Institute of Communication Center, Auditorium B–3, applications. Diabetes and Digestive and Kidney Diseases 1600 Clifton Road NE., Atlanta, Georgia Place: The Fairmont Washington, DC, 2401 Special Emphasis Panel; Small Grant 30333. This meeting is also available by M Street, NW., Washington, DC 20037. Program. teleconference. Please dial (877) 928–1204 Contact Person: Jane A. Doussard- Date: March 12, 2010. and enter code 4305992. Roosevelt, PhD, Scientific Review Officer, Time: 2 p.m. to 3 p.m. Status: Open to the public, limited only by Center for Scientific Review, National Agenda: To review and evaluate grant the space available. The meeting room Institutes of Health, 6701 Rockledge Drive, applications. accommodates approximately 60 people. To Room 3184, MSC 7848, Bethesda, MD 20892, Place: National Institutes of Health, Two accommodate public participation in the (301) 435–4445, [email protected]. Democracy Plaza, 6707 Democracy meeting, a conference telephone line will This notice is being published less than 15 Boulevard, Bethesda, MD 20892 (Telephone also be available. The public is welcome to days prior to the meeting due to the timing Conference Call). participate during the public comment limitations imposed by the review and Contact Person: Michael W. Edwards, PhD, periods. The public comment periods are funding cycle. Scientific Review Officer, Review Branch, tentatively scheduled for 4 p.m.–4:15 p.m. on

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February 18, 2010 and 12 p.m.–12:15 Place: National Institutes of Health, 6701 Date: March 1–2, 2010. p.m. on February 19, 2010. Rockledge Drive, Bethesda, MD 20892 Time: 9:30 a.m. to 2 p.m. Purpose: The ES provides counsel to the (Virtual Meeting). Agenda: To review and evaluate grant ACD, CDC, regarding a broad range of public Contact Person: Carol Hamelink, PhD, applications. health ethics questions and issues arising Scientific Review Officer, Center for Place: Doubletree Hotel Bethesda, 8120 from programs, scientists, and practitioners. Scientific Review, National Institutes of Wisconsin Avenue, Bethesda, MD 20814. Matter to be Discussed: Agenda items will Health, 6701 Rockledge Drive, Room 4192, Contact Person: Betty Hayden, PhD, include the following topics: status of MSC 7850, Bethesda, MD 20892, (301) 213– Scientific Review Officer, Center for ongoing ES activities; review of the CDC 9887, [email protected]. Scientific Review, National Institutes of Director’s organizational improvement Name of Committee: Center for Scientific Health, 6701 Rockledge Drive, Room 4206, activities; review of the Director’s priorities; Review Special Emphasis Panel; ZRG1 MSC 7812, Bethesda, MD 20892, 301–435– and discussion of the future direction for the DKUS–F 02 M Member Conflict. 1223, [email protected]. ES. The agenda is subject to change as Date: February 25, 2010. Name of Committee: Center for Scientific priorities dictate. Time: 11 a.m. to 1 p.m. Review Special Emphasis Panel; PAR 08– Contact Person for More Information: Drue Agenda: To review and evaluate grant 138: Zebrafish Screens. Barrett, Ph.D., Designated Federal Officer, applications. Date: March 1, 2010. ACD, CDC–ES, 1600 Clifton Road, NE., M/S Place: National Institutes of Health, 6701 Time: 1 p.m. to 5 p.m. D–50, Atlanta, Georgia 30333. Telephone: Rockledge Drive, Bethesda, MD 20892 Agenda: To review and evaluate grant (404) 639–4690. E-mail: [email protected]. (Telephone Conference Call). applications. The deadline for notification of attendance is Contact Person: Rass M. Shayiq, PhD, Place: Latham Hotel, 3000 M Street, NW., Scientific Review Officer, Center for February 12, 2010. Washington, DC 20007. Scientific Review, National Institute of The Director, Management Analysis and Contact Person: John Burch, PhD, Health, 6701 Rockledge Drive, Room 2182, Services Office, has been delegated the Scientific Review Officer, National Institute MSC 7818, Bethesda, MD 20892, (301) 435– of Health, Center for Scientific Review, 6701 authority to sign Federal Register notices 2359, [email protected]. pertaining to announcements of meetings and Rockledge Drive, Room 3213, MSC 7808, other committee management activities, for Name of Committee: Center for Scientific Bethesda, MD 20892, 301–435–1019, both the Centers for Disease Control and Review Special Emphasis Panel; [email protected]. Computational Modeling and Sciences for Prevention and the Agency for Toxic Name of Committee: Center for Scientific Biomedical and Clinical Applications. Substances and Disease Registry. Review Special Emphasis Panel; Member Date: March 1, 2010. Dated: January 25, 2010. Time: 8 a.m. to 5 p.m. Conflict: Electrical Signaling and Cardiac Function. Elaine L. Baker, Agenda: To review and evaluate grant applications. Date: March 2, 2010. Director, Management Analysis and Services Place: Hyatt Regency Bethesda, One Time: 2 p.m. to 6 p.m. Office, Centers for Disease Control and Bethesda Metro Center, 7400 Wisconsin Agenda: To review and evaluate grant Prevention. Avenue, Bethesda, MD 20814. applications. [FR Doc. 2010–1811 Filed 1–28–10; 8:45 am] Contact Person: Guo Feng Xu, PhD, Place: National Institutes of Health, 6701 BILLING CODE 4163–18–P Scientific Review Officer, Center for Rockledge Drive, Bethesda, MD 20892 Scientific Review, National Institutes of (Telephone Conference Call). Health, 6701 Rockledge Drive, Room 5122, Contact Person: Maqsood A. Wani, DVM, DEPARTMENT OF HEALTH AND MSC 7854, Bethesda, MD 20892, 301–237– PhD, Scientific Review Officer, Center for Scientific Review, National Institutes of HUMAN SERVICES 9870, [email protected]. Name of Committee: Center for Scientific Health, 6701 Rockledge Drive, Room 2114, MSC 7814, Bethesda, MD 20892, 301–435– National Institutes of Health Review Special Emphasis Panel; PAR 08– 139: Tools for Zebrafish Research. 2270. [email protected]. Center for Scientific Review; Notice of Date: March 1, 2010. Name of Committee: Center for Scientific Closed Meetings Time: 8 a.m. to 12 p.m. Review Special Emphasis Panel Molecular Agenda: To review and evaluate grant Biology. applications. Date: March 2, 2010. Pursuant to section 10(d) of the Place: Latham Hotel, 3000 M Street, NW., Time: 12 p.m. to 2 p.m. Federal Advisory Committee Act, as Washington, DC 20007. Agenda: To review and evaluate grant amended (5 U.S.C. App.), notice is Contact Person: Cathy Wedeen, PhD, applications. hereby given of the following meetings. Scientific Review Officer, Center for Place: National Institutes of Health, 6701 The meetings will be closed to the Scientific Review, National Institutes of Rockledge Drive, Bethesda, MD 20892 Health, 6701 Rockledge Drive, Room 3213, (Telephone Conference Call). public in accordance with the MSC 7808, Bethesda, MD 20892, 301–435– Contact Person: Diane L. Stassi, PhD, provisions set forth in sections 1191, [email protected]. Scientific Review Officer, Center for 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Name of Committee: Center for Scientific Scientific Review, National Institutes of as amended. The grant applications and Review Special Emphasis Panel; Member Health, 6701 Rockledge Drive, Room 2200, the discussions could disclose Conflict: B cell Regulation and Tolerance to MSC 7890, Bethesda, MD 20892, 301–435– confidential trade secrets or commercial Cancer Antigens. 2514, [email protected]. property such as patentable material, Date: March 1, 2010. Name of Committee: Center for Scientific and personal information concerning Time: 8:30 a.m. to 9:30 a.m. Review Special Emphasis Panel; individuals associated with the grant Agenda: To review and evaluate grant Fellowships: Physiology and Pathobiology of applications, the disclosure of which applications. Cardiovascular and Respiratory Systems Place: Doubletree Hotel Bethesda, 8120 would constitute a clearly unwarranted (F10A). Wisconsin Avenue, Bethesda, MD 20814. Date: March 3–4, 2010. invasion of personal privacy. Contact Person: Bahiru Gametchu, DVM, Time: 8 a.m. to 6 p.m. Name of Committee: Center for Scientific PhD, Scientific Review Officer, Center for Agenda: To review and evaluate grant Review Special Emphasis Panel; Member Scientific Review, National Institutes of applications. Conflict: Neurodevelopment and Cellular Health, 6701 Rockledge Drive, Room 4204, Place: Hyatt Regency Bethesda, One Metabolism. MSC 7812, Bethesda, MD 20892, 301–435– Bethesda Metro Center, 7400 Wisconsin Date: February 22–23, 2010. 1225, [email protected]. Avenue, Bethesda, MD 20814. Time: 7 a.m. to 10 p.m. Name of Committee: Center for Scientific Contact Person: Abdelouahab Aitouche, Agenda: To review and evaluate grant Review Special Emphasis Panel; Fellowship: PhD, Scientific Review Officer, Center for applications. F07 Immunology Fellowship AREA. Scientific Review, National Institutes of

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Health, 6701 Rockledge Drive, Room 4222, Place: Melrose Hotel, 2430 Pennsylvania 93.846–93.878, 93.892, 93.893, National MSC 7812, Bethesda, MD 20892, 301–435– Avenue, NW., Washington, DC 20037. Institutes of Health, HHS) 2365, [email protected]. Contact Person: Gabriel B. Fosu, PhD, Dated: January 25, 2010. Name of Committee: Center for Scientific Scientific Review Officer, Center for Review Special Emphasis Panel; Special Scientific Review, National Institutes of Jennifer Spaeth, Topic: Diet and Physical Activity Health, 6701 Rockledge Drive, Room 3108 Director, Office of Federal Advisory Methodologies. MSC 7808, Bethesda, MD 20892, (301) 435– Committee Policy. 3562, [email protected]. Date: March 3–4, 2010. [FR Doc. 2010–1920 Filed 1–28–10; 8:45 am] Time: 8 a.m. to 5 p.m. Name of Committee: Center for Scientific Agenda: To review and evaluate grant Review Special Emphasis Panel; Small BILLING CODE 4140–01–P applications. Business: Non-HIV Diagnostics, Food Safety, Place: National Institutes of Health, 6701 Sterilization/Disinfection and Rockledge Drive, Bethesda, MD 20892 Bioremediation. DEPARTMENT OF HEALTH AND (Virtual Meeting). Date: March 4–5, 2010. HUMAN SERVICES Contact Person: Fungai Chanetsa, MPH, Time: 8:30 a.m. to 2 p.m. PhD, Scientific Review Officer, Center for Agenda: To review and evaluate grant National Institutes of Health Scientific Review, National Institutes of applications. Health, 6701 Rockledge Drive, Room 3135, Place: Embassy Suites Hotel, 1250 22nd Eunice Kennedy Shriver National MSC 7770, Bethesda, MD 20892, 301–408– Street, NW., Washington, DC 20037. Institute of Child Health and Human 9436, [email protected]. Contact Person: John C. Pugh, PhD, Development; Notice of Closed Name of Committee: Center for Scientific Scientific Review Officer, Center for Meeting Review Special Emphasis Panel; Member Scientific Review, National Institutes of Conflict: Risk Prevention. Health, 6701 Rockledge Drive, Room 3114, Date: March 3, 2010. MSC 7808, Bethesda, MD 20892, (301) 435– Pursuant to section 10(d) of the Time: 11 a.m. to 1 p.m. 2398, [email protected]. Federal Advisory Committee Act, as Agenda: To review and evaluate grant Name of Committee: Center for Scientific amended (5 U.S.C. App.), notice is applications. Review Special Emphasis Panel; Small hereby given of the following meeting. Place: National Institutes of Health, 6701 Business: Healthcare Delivery and Rockledge Drive, Bethesda, MD 20892, The meeting will be closed to the Methodologies. public in accordance with the (Telephone Conference Call). Date: March 4–5, 2010. Contact Person: Lee S. Mann, PhD, Time: 8:30 a.m. to 5 p.m. provisions set forth in sections Scientific Review Officer, Center for Agenda: To review and evaluate grant 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Scientific Review, National Institutes of applications. as amended. The grant applications and Health, 6701 Rockledge Drive, Room 3186, Place: Hotel Palomar, 2121 P Street, NW., the discussions could disclose MSC 7848, Bethesda, MD 20892, 301–435– Washington, DC 20037. confidential trade secrets or commercial 0677, [email protected]. Contact Person: Delia Olufokunbi Sam, property such as patentable material, Name of Committee: Center for Scientific PhD, Scientific Review Officer, Center for and personal information concerning Review Special Emphasis Panel; Member Scientific Review, National Institutes of Conflict: Anterior Eye Disease. individuals associated with the grant Health, 6701 Rockledge Drive, Room 3158, applications, the disclosure of which Date: March 3, 2010. MSC 7770, Bethesda, MD 20892, 301–435– Time: 1 p.m. to 5 p.m. 0684, [email protected]. would constitute a clearly unwarranted Agenda: To review and evaluate grant invasion of personal privacy. applications. Name of Committee: Center for Scientific Place: National Institutes of Health, 6701 Review Special Emphasis Panel; PAR–08– Name of Committee: National Institute of Rockledge Drive, Bethesda, MD 20892 175: Millennium Promise Awards: Non- Child Health and Human Development (Telephone Conference Call). communicable Disease. Special Emphasis Panel, Epigenetic Processes Contact Person: George Ann McKie, DVM, Date: March 5, 2010. in Development. PhD, Scientific Review Officer, Center for Time: 8 a.m. to 5 p.m. Date: February 25–26, 2010. Scientific Review, National Institutes of Agenda: To review and evaluate grant Time: 8:30 a.m. to 5 p.m. applications. Health, 6701 Rockledge Drive, Room 5192, Agenda: To review and evaluate grant Place: Admiral Fell Inn, 888 S. Broadway, MSC 7846, Bethesda, MD 20892, 301–996– applications. 0993, [email protected]. Baltimore, MD 21231. Contact Person: Cathy Wedeen, PhD, Place: Washington Plaza Hotel, 10 Thomas Name of Committee: Center for Scientific Scientific Review Officer, Center for Circle, NW., Washington, DC 20005. Review Special Emphasis Panel; Scientific Review, National Institutes of Contact Person: Neelakanta Ravindranath, Cardiovascular Sciences Small Business Health, 6701 Rockledge Drive, Room 3213, PhD, Scientific Review Officer, Division of Activities. Scientific Review, Eunice Kennedy Shriver Date: March 4–5, 2010. MSC 7808, Bethesda, MD 20892,301–435– National Institute of Child Health and Time: 8 a.m. to 6 p.m. 1191, [email protected]. Agenda: To review and evaluate grant Name of Committee: Center for Scientific Human Development, 6100 Executive Blvd., applications. Review Special Emphasis Panel; Fellowship: Room 5B01G, Bethesda, MD 20892–7510, Place: Hilton San Francisco Financial Cognition, Language, and Perception. 301–435–6889. District, 750 Kearny Street, San Francisco, Date: March 5, 2010. (Catalogue of Federal Domestic Assistance CA 94108. Time: 8 a.m. to 6 p.m. Program Nos. 93.864, Population Research; Contact Person: Lawrence E. Boerboom, Agenda: To review and evaluate grant 93.865, Research for Mothers and Children; PhD, Scientific Review Officer, Center for applications. 93.929, Center for Medical Rehabilitation Place: St. Gregory Hotel, 2033 M Street, Scientific Review, National Institutes of Research; 93.209, Contraception and Health, 6701 Rockledge Drive, Room 4130, NW., Washington, DC 20036. Infertility Loan Repayment Program, National MSC 7814, Bethesda, MD 20892, (301) 435– Contact Person: Weijia Ni, PhD, Scientific Institutes of Health, HHS) 8367, [email protected]. Review Officer, Center for Scientific Review, Name of Committee: Center for Scientific National Institutes of Health, 6701 Rockledge Dated: January 25, 2010. Review Special Emphasis Panel; Risk and Drive, Room 3184, MSC 7848, Bethesda, MD Jennifer Spaeth, 20892, (301) 435–1507, [email protected]. Intervention for Addictions. Director, Office of Federal Advisory Date: March 4–5, 2010. (Catalogue of Federal Domestic Assistance Committee Policy. Time: 8 a.m. to 5 p.m. Program Nos. 93.306, Comparative Medicine; Agenda: To review and evaluate grant 93.333, Clinical Research, 93.306, 93.333, [FR Doc. 2010–1921 Filed 1–28–10; 8:45 am] applications. 93.337, 93.393–93.396, 93.837–93.844, BILLING CODE 4140–01–P

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DEPARTMENT OF HEALTH AND amended (5 U.S.C. App.), notice is Name of Committee: National Institute of HUMAN SERVICES hereby given of the following meeting. Dental and Craniofacial Research Special Emphasis Panel; Review R13. The meeting will be closed to the National Institutes of Health Date: February 26, 2010. public in accordance with the Time: 4 p.m. to 5 p.m. Eunice Kennedy Shriver National provisions set forth in sections Agenda: To review and evaluate grant 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., applications. Institute of Child Health and Human Place: National Institutes of Health, 6701 Development; Notice of Closed as amended. The grant applications and the discussions could disclose Rockledge Drive, Bethesda, MD 20892, Meeting (Virtual Meeting) confidential trade secrets or commercial Contact Person: Mary Kelly, Scientific Pursuant to section 10(d) of the property such as patentable material, Review Officer, Scientific Review Branch, Federal Advisory Committee Act, as and personal information concerning National Inst of Dental & Craniofacial amended (5 U.S.C. App.), notice is individuals associated with the grant Research, NIH 6701 Democracy Blvd, room hereby given of the following meeting. applications, the disclosure of which 672, MSC 4878, Bethesda, md 20892–4878, The meeting will be closed to the would constitute a clearly unwarranted 301–594–4809, [email protected]. public in accordance with the invasion of personal privacy. (Catalogue of Federal Domestic Assistance Program Nos. 93.121, Oral Diseases and provisions set forth in sections Name of Committee: NIDCR Special Grants Disorders Research, National Institutes of 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Review Committee. NIDCR Special Review Health, HHS) as amended. The grant applications and Committee: Review of F, K, and R03. the discussions could disclose Date: March 2–3, 2010. Dated: January 25, 2010. confidential trade secrets or commercial Time: 8 a.m. to 5 p.m. Jennifer Spaeth, property such as patentable material, Agenda: To review and evaluate grant Director, Office of Federal Advisory and personal information concerning applications. Committee Policy. Place: Four Points By Sheraton, 1201 K [FR Doc. 2010–1927 Filed 1–28–10; 8:45 am] individuals associated with the grant Street, NW., Washington, DC 20005. applications, the disclosure of which Contact Person: Raj K. Krishnaraju, PhD, BILLING CODE 4140–01–P would constitute a clearly unwarranted MS, Scientific Review Officer, Scientific invasion of personal privacy. Review Branch, National Inst. of Dental & Name of Committee: National Institute of Craniofacial Research, National Institutes of DEPARTMENT OF HOMELAND Child Health and Human Development Initial Health, 45 Center Dr., Rm 4AN 32J, Bethesda, SECURITY Review Group, Developmental Biology MD 20892, 301–594–4864, [Docket No. DHS–2009–0156] Subcommittee. [email protected]. (Catalogue of Federal Domestic Assistance Date: February 25–26, 2010. National Protection and Programs Time: 8 a.m. to 4 p.m. Program Nos. 93.121, Oral Diseases and Agenda: To review and evaluate grant Disorders Research, National Institutes of Directorate; Assessment applications. Health, HHS) Questionnaire—Voluntary Chemical Assessment Tool (VCAT) Place: Doubletree Hotel Washington, 1515 Dated: January 25, 2010. Rhode Island Ave., NW., Washington, DC AGENCY: 20005. Jennifer Spaeth, National Protection and Contact Person: Norman Chang, PhD, Director, Office of Federal Advisory Programs Directorate, Department of Scientific Review Officer, Division Of Committee Policy. Homeland Security. Scientific Review, Eunice Kennedy Shriver [FR Doc. 2010–1926 Filed 1–28–10; 8:45 am] ACTION: 30-Day Notice and request for National Institute of Child Health and BILLING CODE 4140–01–P comments; New Information Collection Human Development, NIH, 6100 Executive Request, 1670–NEW. Blvd., Room 5B01, Bethesda, MD 20892, (301) 496–1485, [email protected]. DEPARTMENT OF HEALTH AND SUMMARY: The Department of Homeland (Catalogue of Federal Domestic Assistance HUMAN SERVICES Security, National Protection and Program Nos. 93.864, Population Research; Programs Directorate has submitted the 93.865, Research for Mothers and Children; National Institutes of Health following information collection request 93.929, Center for Medical Rehabilitation (ICR) to the Office of Management and Research; 93.209, Contraception and National Institute of Dental & Budget (OMB) for review and clearance Infertility Loan Repayment Program, National Craniofacial Research; Notice of in accordance with the Paperwork Institutes of Health, HHS) Closed Meeting Reduction Act of 1995 (Pub. L. 104–13, Dated: January 25, 2010. 44 U.S.C. Chapter 35). The National Jennifer Spaeth, Pursuant to section 10(d) of the Protection and Programs Directorate is Director, Office of Federal Advisory Federal Advisory Committee Act, as soliciting comments concerning new Committee Policy. amended (5 U.S.C. App.), notice is collection request, Assessment [FR Doc. 2010–1923 Filed 1–28–10; 8:45 am] hereby given of the following meeting. Questionnaire—Voluntary Chemical BILLING CODE 4140–01–P The meeting will be closed to the Assessment Tool (VCAT). DHS public in accordance with the previously published this information provisions set forth in sections collection request (ICR) in the Federal DEPARTMENT OF HEALTH AND 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Register on September 14, 2009, at 74 HUMAN SERVICES as amended. The grant applications and FR 47010, for a 60-day public comment the discussions could disclose period. No comments were received by National Institutes of Health confidential trade secrets or commercial DHS. The purpose of this notice is to National Institute of Dental & property such as patentable material, allow an additional 30 days for public Craniofacial Research; Notice of and personal information concerning comments. Closed Meeting individuals associated with the grant DATES: Comments are encouraged and applications, the disclosure of which will be accepted until March 1, 2010. Pursuant to section 10(d) of the would constitute a clearly unwarranted This process is conducted in accordance Federal Advisory Committee Act, as invasion of personal privacy. with 5 CFR 1320.10.

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ADDRESSES: Interested persons are allowing the Chemical Sector to more DEPARTMENT OF HOMELAND invited to submit written comments on thoroughly understand, prioritize and SECURITY the proposed information collection to analyze its assets or systems. VCAT the Office of Information and Regulatory facilitates cost benefit analysis, allowing Federal Emergency Management Affairs, Office of Management and owners/operators to select the best Agency Budget. Comments should be addressed combination of physical security [Docket ID: FEMA–2007–0008] to OMB Desk Officer, Department of countermeasures and mitigation Homeland Security and sent via strategies to reduce overall risk. National Advisory Council electronic mail to Collection of this information is [email protected] or faxed AGENCY: Federal Emergency directed and supported by Homeland Management Agency, DHS. to (202) 395–5806. Security Presidential Directive (HSPD) The Office of Management and Budget ACTION: Committee Management; 7, ‘‘Critical Infrastructure Identification, is particularly interested in comments Request for applicants for appointment Prioritization, and Protection,’’ which: to the National Advisory Council. 1. Evaluate whether the proposed December 17, 2003. collection of information is necessary After Chemical SSA and private SUMMARY: The Federal Emergency for the proper performance of the sector partners access the VCAT system Management Agency (FEMA) is functions of the agency, including (see supporting statement for VCAT requesting individuals who are whether the information will have User Accounts), the user will be interested in serving on the National practical utility; prompted with the VCAT Assessment Advisory Council (NAC) to apply for appointment. As provided for in the 2. Evaluate the accuracy of the questionnaire and will answer various Department of Homeland Security agency’s estimate of the burden of the questions to input the data. This Appropriations Act of 2007, the proposed collection of information, information will be used to supplement including the validity of the Secretary of Homeland Security existing critical infrastructure and key established the NAC to ensure effective methodology and assumptions used; resources (CIKR) protection activities 3. Enhance the quality, utility, and and ongoing coordination of Federal conducted by DHS NPPD. More clarity of the information to be preparedness, protection, response, specifically, the information will be collected; and recovery, and mitigation for natural 4. Minimize the burden of the used to address facility assessments, disasters, acts of terrorism, and other collection of information on those who response planning, and risk mitigation man-made disasters. are to respond, including through the execution and related CIKR protection DATES: Applications for membership use of appropriate automated, and incident management activities. should reach FEMA at the address electronic, mechanical, or other Analysis below beginning February 5, 2010 and technological collection techniques or before 5 p.m. EST, on Friday, March 5, other forms of information technology, Agency: Department of Homeland 2010. e.g., permitting electronic submissions Security, National Protection and ADDRESSES: If you wish to apply for of responses. Programs Directorate. membership, your application should be FOR FURTHER INFORMATION CONTACT: If Title: Assessment Questionnaire— submitted by: • additional information is required Voluntary Chemical Assessment Tool E-mail: FEMA–[email protected]. • contact: The Department of Homeland (VCAT). Fax: (202) 646–3930. Security (DHS), Amanda Norman, • Mail: Federal Emergency Program Analyst, DHS/NPPD/IP/IICD, OMB Number: 1670–NEW. Management Agency, Office of the [email protected]. Affected Public: Business or other for National Advisory Council, 500 C SUPPLEMENTARY INFORMATION: The DHS profit, Federal Government. Street, SW., Room 832, Washington, DC Sector Specific Agency (SSA) for the Number of Respondents: 50. 20472–3100. FOR FURTHER INFORMATION CONTACT: The Chemical Sector partnered with the Estimated Time Per Respondent: 8 Alternate Designated Federal Officer, Methodology Technical Implementation hours. (MTI) office, within the Infrastructure Breese Eddy, Office of the National Information Collection Division (IICD), Total Burden Hours: 400 annual Advisory Council, telephone 202–646– in the Office of Infrastructure Protection burden hours. 3746; e-mail FEMA–[email protected]. (IP), National Protection and Program Total Burden Cost (capital/startup): FEMA Ethics Office, Ebbonie Taylor, Directorate (NPPD), which supports the $0.00. telephone 202–646–3664; e-mail [email protected] and Paul automation of sector-approved risk and Total Burden Cost (operating/ vulnerability assessment methodologies Conrad, telephone 202–646–4025; e- maintaining): $0.00. that are compliant with the criteria mail [email protected]. outlined in the National Infrastructure Signed: January 21, 2010. SUPPLEMENTARY INFORMATION: The Protection Plan (NIPP), to develop a Thomas Chase Garwood, III, National Advisory Council (NAC) is an Web-based, automated assessment tool Chief Information Officer, National Protection advisory committee established in for voluntary use by chemical facilities. and Programs Directorate, Department of accordance with the provisions of the This application, titled Voluntary Homeland Security. Federal Advisory Committee Act Chemical Assessment Tool (VCAT), [FR Doc. 2010–1780 Filed 1–28–10; 8:45 am] (FACA), 5 U.S.C. App. (Pub. L. 92–463). allows owners/operators to identify BILLING CODE P Section 508 of the Homeland Security their current vulnerability and risk Act of 2002 (Pub. L. 107–296), as levels through an all-hazards approach. amended by section 611 of the Post- The application enables owners/ Katrina Emergency Management Reform operators to evaluate the theoretical Act of 2006, as set forth in the vulnerability and risk associated with Department of Homeland Security the effects of the selected threats, thus Appropriations Act of 2007 (Pub. L.

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109–295), directed the Secretary of Defense Officers of the Federal in lines. Members serve without Homeland Security to establish the NAC Government positions will be filled by compensation from the Federal to ensure effective and ongoing a current employee of those respective Government; however, consistent with coordination of Federal preparedness, Departments. All other discipline areas the charter, they do receive travel protection, response, recovery, and including: Emergency Management, reimbursement and per diem under mitigation for natural disasters, acts of Public Health, Emergency Medical applicable Federal travel regulations. In terrorism, and other man-made Provider, Standard Settings, Special support of the policy of the Department disasters. Needs, State Non-Elected Official, Tribal of Homeland Security on gender and The NAC consists of 35 members, all Non-Elected Official, and the three ethnic diversity, qualified women and of whom are experts and leaders in their positions selected by the FEMA minorities are encouraged to apply for respective fields. Approximately one- Administrator will be filled by membership. third of the membership was appointed representatives of their respective fields. Dated: January 14, 2010. for a 3-year term expiring on June 15, Qualified individuals interested in 2010. Accordingly, the following serving on the NAC are invited to apply W. Craig Fugate, discipline areas will be open for for appointment. Current FEMA Administrator, Federal Emergency applications and nominations: employees, Disaster Assistance Management Agency. Emergency Management (one Employees, FEMA Contractors, and [FR Doc. 2010–1800 Filed 1–28–10; 8:45 am] representative appointment), Public potential FEMA Contractors will not be BILLING CODE 9111–48–P Health (one Special Government considered for NAC Membership. Employee (SGE) appointment), The NAC assists FEMA in carrying Emergency Medical Provider (one SGE out its missions by providing advice and DEPARTMENT OF HOUSING AND appointment), Standard Settings (one recommendations in the development URBAN DEVELOPMENT representative appointment), Special and revision of the national Needs (one representative appointment), preparedness goal, the national [Docket No. FR–5380–N–01] State Non-Elected Official (one preparedness guidelines, the National Notice of Proposed Information representative appointment), Tribal Incident Management System, the Collection: Comment Request; FHA- Non-Elected Official (one representative National Response Framework, and Insured Mortgage Loan Servicing appointment), Officer of the Federal other related plans and strategies. The Property Physical Inspection/ Government—U.S. Department of members of the NAC are appointed by Preservation Health and Human Services (one Ex the Administrator of FEMA and are Officio appointment), Officer of the composed of Federal, State, local, AGENCY: Office of the Assistant Federal Government—U.S. Department Tribal, and private-sector leaders and Secretary for Housing, HUD. of Defense (one Ex Officio appointment), subject matter experts in law ACTION: Notice. and three appointments (either enforcement, fire, emergency medical representative or SGE appointments), services, hospital, public works, SUMMARY: The proposed information which will be selected at the discretion emergency management, State and local collection requirement described below of the FEMA Administrator. governments, public health, emergency will be submitted to the Office of There are specific membership types response, standard setting and Management and Budget (OMB) for associated with the indicated accrediting organizations, review, as required by the Paperwork disciplines open for new appointments. representatives of individuals with Reduction Act. The Department is Some members are appointed as Special disabilities and other special needs, soliciting public comments on the Government Employees (SGE) as infrastructure protection, cyber security, subject proposal. defined in section 202(a) of title 18, communications, and homeland DATES: Comments Due Date: March 30, United States Code. Specifically, the security communities. 2010. following two discipline areas will be Qualified individuals interested in ADDRESSES: filled by SGE appointments: Public serving on the NAC are invited to apply Interested persons are Health and Emergency Medical for appointment by submitting a resume invited to submit comments regarding Provider. If a candidate is selected for or Curriculum Vitae (CV) to the NAC’s this proposal. Comments should refer to appointment as a SGE, the appointee is alternate Designated Federal Officer. the proposal by name and/or OMB required to complete a Confidential Letters of recommendation may also be Control Number and should be sent to: Financial Disclosure Report (Office of provided, but are not required. Please Lillian Deitzer, Departmental Reports Government Ethics (OGE) Form 450). ensure the submission includes the Management Officer, QDAM, OGE Form 450 or the information following information: The applicant’s Department of Housing and Urban contained therein may not be released to name, phone number, e-mail address, Development, 451 7th Street, SW., the public except under an order issued home and business mailing addresses, Washington, DC 20410; e-mail _ _ by a Federal court or as otherwise current position title and organization, Lillian L. [email protected] or provided under the Privacy Act (5 and the discipline area of interest (i.e., telephone (202) 402–8048 or the number U.S.C. 552a). Applicants can obtain this Emergency Management). Current NAC for the Federal Information Relay form by going to the Web site of the members whose terms are ending Service (1–800–877–8339). Office of Government Ethics (http:// should notify the Alternate Designated FOR FURTHER INFORMATION CONTACT: Eric www.oge.gov), or by contacting the Federal Officer of their interest in Ramsey, Director, Business National Advisory Council Program reappointment in lieu of submitting a Relationships and Special Initiatives Office, or by contacting the FEMA new application, and should provide an Division, Office of Asset Management, Ethics Office. This information is updated resume and/or CV and letters of Department of Housing and Urban provided in the FOR FURTHER recommendation for consideration. The Development, 451 7th Street, SW., INFORMATION CONTACT section of this NAC meets in a plenary session Washington, DC 20410, telephone (202) notice. Additionally, the U.S. approximately once per quarter. The 708–3944 (this is not a toll free number) Department of Health and Human NAC also holds at least one for copies of the proposed forms and Services and U.S. Department of teleconference meeting with public call- other available information.

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SUPPLEMENTARY INFORMATION: The Authority: The Paperwork Reduction Act DEPARTMENT OF THE INTERIOR Department is submitting the proposed of 1995, 44 U.S.C., Chapter 35, as amended. information collection to OMB for Dated: January 26, 2010. Bureau of Indian Affairs review, as required by the Paperwork Ronald Y. Spraker, Reduction Act of 1995 (44 U.S.C. Renewal of Agency Information Chapter 35, as amended). Associate General Deputy Assistant Secretary Collection for Tribal Energy Resource This Notice is soliciting comments for Housing. Agreements [FR Doc. 2010–1837 Filed 1–28–10; 8:45 am] from members of the public and affected AGENCY: Bureau of Indian Affairs, agencies concerning the proposed BILLING CODE 4210–67–P Interior. collection of information to: (1) Evaluate ACTION: Notice of request for comments. whether the proposed collection is necessary for the proper performance of DEPARTMENT OF HOUSING AND SUMMARY: The Office of Indian Energy the functions of the agency, including URBAN DEVELOPMENT and Economic Development (IEED), in whether the information will have the Office of the Assistant Secretary— practical utility; (2) Evaluate the [Docket No. FR–5375–N–04] Indian Affairs, is proposing to submit accuracy of the agency’s estimate of the the information collection titled ‘‘Tribal burden of the proposed collection of Federal Property Suitable as Facilities Energy Resource Agreements (TERAs)’’ information; (3) Enhance the quality, To Assist the Homeless to the Office of Management and Budget utility, and clarity of the information to (OMB) for renewal pursuant to the be collected; and (4) Minimize the AGENCY: Office of the Assistant Paperwork Reduction Act. The burden of the collection of information Secretary for Community Planning and information collection is currently on those who are to respond; including Development, HUD. authorized by OMB Control Number the use of appropriate automated 1076–0167, which expires March 31, collection techniques or other forms of ACTION: Notice. 2010. The information collection information technology, e.g., permitting requires Indian tribes interested in electronic submission of responses. SUMMARY: This Notice identifies entering into a TERA or who already This Notice also lists the following unutilized, underutilized, excess, and have a TERA to provide certain information: surplus Federal property reviewed by information, including information as Title of Proposal: MF Uniform HUD for suitability for possible use to part of the application for, and Physical Inspection Reporting assist the homeless. implementation, reassumption, and Requirements. rescission of the TERA. DATES: Effective Date: January 29, 2010. OMB Control Number, if applicable: DATES: Interested persons are invited to 2502–0369. FOR FURTHER INFORMATION CONTACT: submit comments on or before March Description of the need for the Kathy Ezzell, Department of Housing 30, 2010. information and proposed use: and Urban Development, 451 Seventh ADDRESSES: You may submit comments All multifamily properties with Street, SW., Room 7262, Washington, on the information collection to Darryl Section 8 project based assistance or DC 20410; telephone (202) 708–1234; Francois, Department of the Interior, housing with HUD insured or HUD Held Office of Indian Energy and Economic mortgages or Housing that is receiving TTY number for the hearing- and Development, Room 20—South Interior insurance from HUD must be inspected speech-impaired (202) 708–2565 (these Building, 1951 Constitution Avenue, regularly. Entities responsible for telephone numbers are not toll-free), or NW., Washington, DC 20245, fax (202) conducting physical inspections of the call the toll-free Title V information line 208–4564; e-mail: properties are HUD, the lender or the at 800–927–7588. [email protected]. owner. Owners/Agents which have been SUPPLEMENTARY INFORMATION: In FOR FURTHER INFORMATION CONTACT: cited with Exigent Health and Safety accordance with the December 12, 1988 You may request further information or (EH&S) deficiencies must certify that court order in National Coalition for the obtain copies of the information (EH&S) deficiencies noted during the Homeless v. Veterans Administration, inspections have been repaired. This collection request submission from No. 88–2503–OG (D.D.C.), HUD Darryl Francois, Department of the information is intended to ensure that publishes a Notice, on a weekly basis, HUD Program Participants maintain Interior, Office of Indian Energy and identifying unutilized, underutilized, HUD properties in a condition that is Economic Development. Telephone excess and surplus Federal buildings decent, safe, sanitary and in good repair. (202) 219–0740. Agency form numbers, if applicable: and real property that HUD has SUPPLEMENTARY INFORMATION: None. reviewed for suitability for use to assist Estimation of the total numbers of the homeless. Today’s Notice is for the I. Abstract hours needed to prepare the information purpose of announcing that no The Energy Policy Act of 2005 (Pub. collection including number of additional properties have been L. 109–58) authorizes the Secretary to respondents, frequency of response, and determined suitable or unsuitable this approve individual TERAs. The intent hours of response: The number of week. of these agreements is to promote tribal burden hours annually is 32,953. The Dated: January 21, 2009. oversight and management of energy number of respondents annually is and mineral resource development on Mark R. Johnston, 10,576, the number of responses tribal lands and further the goal of annually is 10,554, the frequency of Deputy Assistant Secretary for Special Needs. Indian self-determination. A TERA response is on occasion, and the burden [FR Doc. 2010–1483 Filed 1–28–10; 8:45 am] offers a tribe an entirely new alternative hour per response is about 6.3. BILLING CODE 4210–67–P for developing energy-related business Status of the proposed information agreements and awarding leases and collection: This is a request for granting rights-of-way for energy extension of a currently approved facilities without having to obtain collection. further approval from the Secretary.

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This information collection e-mail address or other personally DATES: You must submit comments on conducted under TERA regulations at identifiable information, be advised that or before March 30, 2010. 25 CFR 224 will allow IEED to your entire comment—including your ADDRESSES: Send your comments determine the capacity of tribes to personally identifiable information— regarding this ICR to Phadrea Ponds, manage the development of energy may be made public at any time. While Information Collections Clearance resources on tribal lands. Information you may request that we withhold your Officer, U.S. Geological Survey, 2150–C collected: personally identifiable information, we Center Avenue, Fort Collins, CO 80525 • Enables IEED to engage in a cannot guarantee that we will be able to (mail); (970) 226–9230 (fax); or consultation process with tribes that is do so. [email protected] (e-mail). Please designed to foster optimal pre-planning III. Data reference Information Collection 1028– of development proposals and speed up NEW—YRBDAS. the review and approval process for OMB Control Number: 1076–0167. FOR FURTHER INFORMATION CONTACT: TERA agreements; Title: Tribal Energy Resource • Jessica M. Montag by mail at U.S. Provides wide public notice and Agreements. Geological Survey, 2150–C Center opportunity for review of TERA Brief Description of Collection: Avenue, Fort Collins, CO 80526, or by agreements by the public, industry, and Submission of this information is telephone at (970) 226–9137. government agencies; required for Indian tribes to apply for, SUPPLEMENTARY INFORMATION: • Ensures that the public has an implement, reassume, or rescind a avenue for review of the performance of TERA that has been entered into in I. Abstract tribes in implementing a TERA; accordance with the Energy Policy Act The USGS is currently conducting a • Creates a process for preventing of 2005 and 25 CFR 224. This collection ‘‘proof-of-concept’’ project to develop a damage to sensitive resources as well as also requires the tribe to notify the series of linked physical, biological and ensuring that the public has fully public of certain actions. Response is socioeconomic models to address global communicated with the tribe in the required to obtain a benefit. climate change in the Yakima River petition process; Type of Review: Extension without • Ensures that a tribe is fully aware of Basin (YRB). In support of this effort, change of a currently approved the USGS acknowledges that there is a any attempt by DOI to resume collection. management authority over energy need to better understand the Yakama Respondents: Indian tribes. Nation’s cultural connection and resources on tribal lands; and Number of Respondents: 14 (4 interactions with the resources of the • Ensures that the tribal government applicant tribes and 10 tribes with a YRB. We are working with tribal fully endorses any relinquishment of a TERA) liaisons to develop a roster of potential TERA. Total Number of Responses: Ranges Yakama Nation members to participate from once annually (for applications II. Request for Comments in a series of in-depth interviews. The and other requirements) to a few times anticipated outcome of the interviews IEED requests that you send your a year (for notifications to public and will be critical information that is comments on this collection to the the Secretary that any leases, businesses missing for YRB water resource location listed in the ADDRESSES section. agreements, or rights-of-way have been management decisions. Your comments should address: (a) The entered into pursuant to the TERA) necessity of the information collection Estimated Time per Response: Ranges II. Data for the proper performance of the from 32 hours to 1,080 hours. agencies, including whether the OMB Control Number: 1028–NEW. Estimated Total Annual Burden: Title: Yakima River Basin Global information will have practical utility; 10,752 hours. (b) the accuracy of our estimate of the Climate Change Decision Support burden (hours and cost) of the collection Dated: January 25, 2010. System. of information, including the validity of Alvin Foster, Respondent’s Obligation: Voluntary. Chief Information Officer—Indian Affairs. Frequency of Collection: One-time. the methodology and assumptions used; Estimated Annual Number of [FR Doc. 2010–1786 Filed 1–28–10; 8:45 am] (c) ways we could enhance the quality, Respondents: An estimated 32 Yakama utility and clarity of the information to BILLING CODE 4310–4J–P Nation tribal members (proposing 2 be collected; and (d) ways we could individuals from the 14 tribes/bands minimize the burden of the collection of DEPARTMENT OF THE INTERIOR and 4 Tribal Council members) will be the information on the respondents, asked to participate in this collection. such as through the use of automated U.S. Geological Survey Affected Public: Yakama Nation tribal collection techniques or other forms of members. information technology. Agency Information Collection: Estimated Completion Time: 2 hours Please note that an agency may not Comment Request per interview. sponsor or conduct, and an individual Annual Burden Hours: 64 hours. need not respond to, a collection of AGENCY: United States Geological Estimated Annual Reporting and information unless it has a valid OMB Survey (USGS), Interior. Recordkeeping ‘‘Hour’’ Burden: We Control Number. Approval for this ACTION: Notice of a new collection. estimate the interviews to last no more collection expires March 31, 2010. than 2 hours per respondent. Response to the information collection SUMMARY: To comply with the Estimated Annual Reporting and is required to obtain a benefit. Paperwork Reduction Act of 1995 Recordkeeping ‘‘Non-Hour Cost’’: We It is our policy to make all comments (PRA), we are notifying the public that have not identified any ‘‘non-hour cost’’ available to the public for review at the we will submit to OMB a new burdens associated with this collection location listed in the ADDRESSES section information collection request (ICR) for of information. during the hours of 9 a.m.–5 p.m., review and approval. This notice Eastern Time, Monday through Friday provides the public an opportunity to III. Request for Comments except for legal holidays. Before comment on the paperwork burden of To comply with the public including your address, phone number, this collection. consultation process, we publish this

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Federal Register notice announcing that DATES: Submit comments on or before Estimated annual reporting burden: we will submit this ICR to OMB for March 30, 2010. 3,800 hours. approval. The notice provided the ADDRESSES: Submit comments directly Estimated annual nonhour cost required 60-day public comment period. to Ms. Jo A. Pendry, Chief, Commercial burden: None. We invite comments concerning this Services Program, National Park Comments are invited on: (1) The ICR on: (a) Whether the proposed Service, 1201 Eye Street, NW., 11th practical utility of the information being collection of information is necessary Floor, Washington, DC 20005 or via fax gathered; (2) the accuracy of the burden for the agency to perform its duties, at 202/371–2090. All responses to the hour estimate; (3) ways to enhance the including whether the information is Notice will be summarized and quality, utility, and clarity of the useful; (b) the accuracy of the agency’s included in the request for the OMB information to be collected; and (4) estimate of the burden on the proposed approval. All comments will become a ways to minimize the burden to collection of information; (c) ways to matter of public record. respondents, including use of automated information collection enhance the quality, usefulness, and FOR FURTHER INFORMATION CONTACT: Ms. techniques or other forms of information clarity of the information to be Jo A. Pendry, Chief, Commercial technology. Before including your collected; and (d) ways to minimize the Services Program, National Park address, phone number, e-mail address, burden on the respondents, including Service, 1201 Eye Street, NW., 11th or other personal identifying the use of automated collection Floor, Washington, DC 20005, via e-mail information in your comment, you techniques or other forms of information at [email protected] or via phone at should be aware that your entire technology. 202–513–7156. You are entitled to a comment—including your personal Comments that you submit in copy of the entire ICR package free-of- identifying information—may be made response to this notice are a matter of charge. public record. Before including your publicly available at any time. While SUPPLEMENTARY INFORMATION: you can ask us in your comment to address, phone number, e-mail address OMB Control Number: 1024–0029. or other personal identifying withhold your personal identifying Title: Concessioner Annual Financial information from public review, we information in your comment, you Reports. should be aware that your entire cannot guarantee that we will be able to Form(s): 10–356, 10–356A. do so. comment including your personal Type of Request: Extension of a identifying information, may be made currently approved collection of Dated: January 26, 2010. publically available at any time. While information. Cartina Miller, you can ask us in your comment to Abstract: The regulations at 36 CFR NPS Information Collection Clearance withhold your personal identifying Part 51 primarily implement Title IV of Officer. information from public review, we the National Parks Omnibus [FR Doc. 2010–1903 Filed 1–28–10; 8:45 am] cannot guarantee that we will be able to Management Act of 1998 (Pub. L. 105– BILLING CODE 4312–53–P do so. 391 or the Act), which requires that the Dated: January 20, 2010. Secretary of the Interior exercise DEPARTMENT OF THE INTERIOR Susan D. Haseltine, authority in a manner consistent with a reasonable opportunity for a Associate Director for Biology, U.S. Geological Bureau of Indian Affairs Survey. concessioner to realize a profit on his [FR Doc. 2010–1821 Filed 1–28–10; 8:45 am] operation as a whole commensurate Renewal of Agency Information with the capital invested and the BILLING CODE 4311–AM–P Collection for Loan Guaranty, obligations assumed. It also requires Insurance, and Interest Subsidy that franchise fees be determined with Program DEPARTMENT OF THE INTERIOR consideration to the opportunity for net profit in relation to both gross receipts AGENCY: Bureau of Indian Affairs, National Park Service and capital invested. The financial Interior. information being collected is necessary ACTION: Notice of request for comments. 60-Day Notice of Intention To Request to provide insight into, and knowledge Clearance of Collection of Information; of the concessioner’s operation so that SUMMARY: The Department of the Opportunity for Public Comment this authority can be exercised and Interior (DOI), Office of Indian Energy franchise fees determined in a timely and Economic Development (IEED) is AGENCY: National Park Service, Interior. manner and without an undue burden seeking comments on renewal of Office ACTION: Notice and request for on the concessioner. This program will of Management and Budget (OMB) comments. measure performance in meeting goals approval, pursuant to the Paperwork as required by the 1995 Government Reduction Act, for the collection of SUMMARY: Under the provisions of the Performance and Results Act. information for the Loan Guaranty, Paperwork Reduction Act of 1995 and 5 Affected public: Businesses and Insurance, and Interest Subsidy CFR Part 1320, Reporting and Record nonprofit organizations. Program. The information collection is Keeping Requirements, the National Obligation to respond: Required to currently authorized by OMB Control Park Service (NPS) invites public obtain or retain a benefit. Number 1076–0020, which expires comments on an extension of a Frequency of response: Annually. April 30, 2010. The information currently approved collection of Estimated total annual responses: collection allows IEED to ensure compliance with Program requirements information (OMB #1024–0029). An 150 responses for Form 10–356. agency may not conduct or sponsor, and and includes the use of several forms. 350 responses for form 10–356A. a person is not required to respond to, DATES: Interested persons are invited to a collection of information unless it Estimated average completion time submit comments on or before March displays a currently valid Office of per response: 30, 2010. Management and Budget (OMB) control Form 10–356—16 hours per response. ADDRESSES: You may submit comments number. Form 10–356A—4 hours per response. on the information collection to and

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obtain copies of the revised forms from be collected; and (d) ways we could Dated: January 25, 2010. Molly Kubiak, Office of Indian Energy minimize the burden of the collection of Alvin Foster, and Economic Development, U.S. the information on the respondents, Chief Information Officer—Indian Affairs. Department of the Interior, 1951 such as through the use of automated [FR Doc. 2010–1789 Filed 1–28–10; 8:45 am] Constitution Ave., NW., Mail Stop 20– collection techniques or other forms of BILLING CODE 4310–4J–P SIB, Washington, DC 20245; facsimile: information technology. (202) 208–4564; or e-mail: Please note that an agency may not [email protected]. sponsor or conduct, and an individual DEPARTMENT OF THE INTERIOR FOR FURTHER INFORMATION CONTACT: need not respond to, a collection of Fish and Wildlife Service Molly Kubiak, (202) 208–0121. information unless it has a valid OMB SUPPLEMENTARY INFORMATION: Control Number. This information [FWS–R4–ES–2010–N014; 40120–1112– collection expires April 30, 2010. 0000–F2] I. Abstract It is our policy to make all comments Endangered and Threatened Wildlife IEED is seeking renewal of the available to the public for review at the and Plants; Permit, St. Lucie County, approval for the information collection location listed in the ADDRESSES section FL conducted under 25 CFR 103, during the hours of 9 a.m.–5 p.m., implementing the Loan Guaranty, Eastern Time, Monday through Friday AGENCY: Fish and Wildlife Service, Insurance, and Interest Subsidy except for legal holidays. Before Interior. Program, established by 25 U.S.C 1481 including your address, phone number, ACTION: Notice of receipt of application et seq. Approval for this collection e-mail address or other personally for incidental take permit; availability of expires April 30, 2010. The information identifiable information, be advised that proposed low-effect habitat collection allows IEED determine the your entire comment—including your conservation plan and associated eligibility and credit-worthiness of personally identifiable information— documents; request for comment/ respondents and loans and otherwise may be made public at any time. While information. ensure compliance with Program you may request that we withhold your requirements. This information personally identifiable information, we SUMMARY: We, the Fish and Wildlife collection includes the use of several cannot guarantee that we will be able to Service (Service), announce the forms to be revised, including: 5–4753 do so. availability of incidental take permit Loan Guaranty Agreement, 5–4754 Loan (ITP) and Habitat Conservation Plan Insurance Agreement, 5–4754a Notice of III. Data (HCP). V.P. Properties (under the name of International Airport Business Park) Insured Loan, 5–4755 Request to BIA for OMB Control Number: 1076–0020. Loan Guaranty, Loan Insurance, and/or (applicant) requests an ITP under Interest Subsidy, 5–4749 Interest Title: Loan Guaranty, Insurance, and section 10(a)(1)(B) of the Endangered Subsidy Report, 5–4759 Assignment of Interest Subsidy, 25 CFR 103. Species Act of 1973, as amended (Act). Loan Documents and Related Rights, 5– Brief Description of Collection: The applicant anticipates taking about 4760a Notice of Default, and 5–4760b Submission of this information allows 1.0 acre of Florida scrub-jay Claim for Loss. The revision will change IEED to implement the Loan Guaranty, (Aphelocoma coerulescens) (scrub-jay) these forms to: 5–4753 Loan Guaranty Insurance, and Interest Subsidy breeding, feeding, and sheltering habitat Agreement, 5–4754 Loan Insurance Program, 25 U.S.C. 1481 et seq., the incidental to lot preparation for the Agreement, 5–4754a Notice of Insured purpose of which is to encourage construction of a gas station, Loan, 5–4755 Request for Indian Affairs private lending to individual Indians convenience store, several light Loan Guaranty, Loan Insurance, and/or and Indian organizations by providing industrial warehouse condominiums, Interest Subsidy, 5–4749 Interest lenders with loan guarantees or loan and supporting infrastructure in St. Subsidy Report, 5–4759 Assignment of insurance to reduce their potential risk. Lucie County, Florida (Project). The Loan Documents and Related Rights, 5– The information collection allows IEED destruction of 1.0 acre of foraging and 4760a Notice of Default, and 5–4760b determine the eligibility and credit- sheltering habitat is expected to result Claim for Loss. No third party worthiness of respondents and loans in the take of one family of scrub-jays. notification or public disclosure burden and otherwise ensure compliance with The applicant’s Habitat Conservation is associated with this collection. There Program requirements. This information Plan (HCP) describes the mitigation and is no change to the approved burden collection includes the use of several minimization measures proposed to hours for this information collection, forms. Response is required to obtain a address the effects of the Project to the but IEED is revising several of the forms. benefit. scrub-jay. DATES: Written comments on the ITP II. Request for Comments Type of Review: Revision of a currently approved collection. application and HCP should be sent to The Department requests that you the South Florida Ecological Services Respondents: Commercial banks and send your comments on this collection Office (see ADDRESSES) and should be Individual Indians and Indian to the location listed in the ADDRESSES received on or before March 1, 2010. organizations. section. Your comments should address: ADDRESSES: You may request documents (a) The necessity of the information Number of Respondents: 350. by U.S. mail, e-mail, or phone (see collection for the proper performance of Total Number of Responses: 1,527. below). These documents are also the agencies, including whether the Frequency of Response: As needed. available for public inspection by information will have practical utility; Estimated Time per Response: 2 appointment during normal business (b) the accuracy of our estimate of the hours. hours at the office below. Send your burden (hours and cost) of the collection comments or requests by any one of the of information, including the validity of Estimated Total Annual Burden: following methods. the methodology and assumptions used; 3,054 hours. E-mail: [email protected]. Use (c) ways we could enhance the quality, Total Annual Cost to Respondents: ‘‘Attn: Permit number TE214678–0’’ as utility and clarity of the information to $60,280. your message subject line.

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Fax: Trish Adams, (772) 562–4288, Project construction would take place our review of public comments that we Attn: Permit number TE214678–0. at latitude 27.4833, longitude ¥80.3577, receive in response to this notice. U.S. mail: Trish Adams, HCP St. Lucie County, Florida, at St. Lucie Next Steps: The Service will evaluate Coordinator, South Florida Ecological Boulevard, Lots 1 through 18 and north the HCP and comments submitted Services Field Office, Attn: Permit half of Hawthorn Road adjacent on thereon to determine whether the number TE214678–0, U.S. Fish and south side of Lot 18, Block 37, and Lot applications meet the requirements of Wildlife Service, 1339 20th Street, Vero 1 and south half of Hawthorn Road section 10(a) of the Act (16 U.S.C. 1531 Beach, FL 32960–3559. adjacent on north side of Lot 1, Block et. seq.). If it is determined that those In-person drop-off: You may drop off 15A, San Lucie Plaza Unit One, Florida. requirements are met, the ITP will be information during regular business Parts of these lots are within scrub-jay- issued for the incidental take of the hours at the above office address. occupied habitat. Florida scrub-jay. The Service will also The parcels encompass about 2.92 evaluate whether issuance of the section FOR FURTHER INFORMATION CONTACT: Ms. acres (1.18 ha), and the footprint of the 10(a)(1)(B) ITP comply with section 7 of Trish Adams, HCP Coordinator, South commercial buildings, paved areas, the Act by conducting an intra-Service Florida Ecological Services Office, Vero infrastructure, and landscaping section 7 consultation. The results of Beach, Florida (see ADDRESSES), precludes retention of viable scrub-jay this consultation, in combination with telephone: 772–562–3909, extension habitat on this lot. In order to minimize the above findings, will be used in the 232. take on site, the applicant proposes to final analysis to determine whether or SUPPLEMENTARY INFORMATION: If you mitigate for the loss of 1.0 acres (0.4 ha) not to issue the ITP. wish to submit comments or of occupied scrub-jay habitat by Authority: This notice is provided information, you may do so by any one contributing $82,904.00 to a Service- pursuant to Section 10 of the Endangered of several methods. Please reference approved scrub-jay conservation fund, Species Act and NEPA regulations (40 CFR permit number TE214678–0, in such or purchase the equivalent amount of 1506.6). comments. You may mail comments to credit in an appropriate Service- Dated: January 15, 2010. the Service’s South Florida Ecological approved scrub-jay conservation bank Paul Souza, within 180 days of permit issuance or Services Office (see ADDRESSES). You Field Supervisor, South Florida Ecological may also comment via the Internet to before the commencement of clearing Services Office. [email protected]. Please also and construction activities, whichever is sooner. [FR Doc. 2010–1808 Filed 1–28–10; 8:45 am] include your name and return address BILLING CODE 4310–55–P in your Internet message. If you do not Our Preliminary Determination: The receive a confirmation from us that we Service has made a preliminary determination that the applicant’s have received your Internet message, DEPARTMENT OF THE INTERIOR Project, including the proposed contact us directly at the telephone mitigation and minimization measures, number listed under FOR FURTHER Fish and Wildlife Service will individually and cumulatively have INFORMATION CONTACT. Finally, you may a minor or negligible effect on the [FWS–R3–ES–2009–N263; 30120–1113– hand deliver comments to the Service species covered in the HCP. Therefore, 0000–F6] office listed under ADDRESSES. the ITP is a ‘‘low-effect’’ project and Before including your address, phone Endangered and Threatened Wildlife qualifies as a categorical exclusion and Plants; Indiana Bat; 30-Day number, e-mail address, or other under the National Environmental personal identifying information in your Scoping Period for a National Policy Act (NEPA) (40 CFR 1506.6), as Environmental Policy Act Decision on comments, you should be aware that provided by the Department of the your entire comment—including your a Proposed Habitat Conservation Plan Interior Manual (516 DM 2 Appendix 1 and Incidental Take Permit personal identifying information—may and 516 DM 6 Appendix 1), and as be made publicly available at any time. defined in our Habitat Conservation AGENCY: Fish and Wildlife Service, While you can ask us in your comment Planning Handbook (November 1996). Interior. to withhold your personal identifying We base our determination that the plan ACTION: Notice of intent to conduct a 30- information from public review, we qualifies as a low-effect plan on the day scoping period for a National cannot guarantee that we will be able to following three criteria: (1) Environmental Policy Act decision on a do so. Implementation of the plan would result proposed habitat conservation plan and Applicant’s Proposed Project: We in minor or negligible effects on incidental take permit; request for received an application from the federally listed, proposed, and comments. applicant for an incidental take permit, candidate species and their habitats; (2) along with a proposed habitat Implementation of the plan would result SUMMARY: We, the U.S. Fish and conservation plan. The applicant in minor or negligible effects on other Wildlife Service (Service), intend to requests a 5-year permit under section environmental values or resources; and prepare a National Environmental 10(a)(1)(B) of the Act. If we approve the (3) Impacts of the plan, considered Policy Act (NEPA) document for a permit, the applicant anticipates taking together with the impacts of other past, decision on a proposed habitat approximately 1 acre (0.4 hectares (ha)) present, and reasonably foreseeable conservation plan (HCP) and incidental of Florida scrub-jay breeding, feeding similarly situated projects, would not take permit (ITP) for the Indiana bat and sheltering habitat incidental to land result, over time, in cumulative effects (Myotis sodalis) at a wind power project preparation for construction of a gas to environmental values or resources in Champaign County, Ohio. We station, convenience store, several light that would be considered significant. As provide this notice to advise other industrial warehouse condominiums, more fully explained in our agencies, tribes, and the public of our and supporting infrastructure in St. environmental action statement and intentions, and to obtain suggestions Lucie County, Florida. In 1987, we associated Low Effect Screening Form, and information on the scope of the listed this species as threatened (June 3, the applicant’s proposed plan qualifies NEPA review and issues to consider in 1987; 52 FR 20715). The listing became as a ‘‘low-effect’’ plan. This preliminary the planning process. We are also using effective July 6, 1987. determination may be revised based on this opportunity to seek comments on

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the appropriate level of NEPA review, use in preparing the NEPA document, 100 m, for an approximate total height and whether an Environmental will be available for public inspection of 150 m at the rotor apex. Installation Assessment (EA) or an Environmental by appointment, during normal business of each individual turbine will Impact Statement (EIS) would be the hours, at the U.S. Fish and Wildlife temporarily impact an area of appropriate level. Service, Ohio Field Office (see FOR approximately 2.9 acres, while the final DATES: To ensure consideration, please FURTHER INFORMATION CONTACT). You footprint of each turbine will be send your written comments by March may obtain copies of this notice by mail approximately 0.2 acres. Access roads to 1, 2010. from the Ohio Field Office, or on the the turbines will have a temporary ADDRESSES: You may submit comments Internet at: http://www.fws.gov/ width of up to 55 feet during by one of the following methods: midwest/Endangered/permits/hcp/ construction, and a permanent width of U.S. mail or hand-delivery: Ms. r3hcps.html. 16–20 feet. Despite the relatively small Megan Seymour, U.S. Fish and Wildlife Background acreage of land to be affected by the Service, Ohio Field Office, 4625 Morse project, impacts to wildlife— Rd., Suite 104, Columbus, OH 43230; The Indiana bat was added to the list particularly birds and bats—are E-mail: [email protected]; or of Endangered and Threatened Wildlife anticipated. and Plants on March 11, 1967 (32 FR Fax: (614) 416–8994 (Attention: The project is located in a rural Megan Seymour). 4001). It is currently listed as an endangered species under the setting, with the landscape primarily FOR FURTHER INFORMATION CONTACT: Ms. composed of agricultural properties. Megan Seymour at (614) 416–8993, Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.; ESA). Woodlots are scattered throughout the extension 16. Individuals who are project area. Several small towns hearing-impaired or speech-impaired The population decline of this species is attributed to habitat loss and (Mutual and Cable) occur within the may call the Federal Relay Service at project area, and individual homes and (800) 877–8337 for TTY assistance. degradation of both winter hibernation habitat and summer roosting habitat, low-density residential areas are also SUPPLEMENTARY INFORMATION: human disturbance during hibernation, scattered throughout. Public Comments and possibly pesticides. An additional EverPower Wind Holdings, Inc., in We request data, comments, new and emerging threat to Indiana bats is conjunction with the Service, has information, or suggestions from the White-Nose Syndrome (Geomyces determined that take of Indiana bats is public, other concerned governmental destructans), a recently discovered likely to occur from development of the agencies, the scientific community, fungus that invades the skin of bats, proposed wind power project. To Tribes, industry, or any other interested causing ulcers that may alter authorize take, EverPower Wind party on this notice. We will consider hibernation arousal patterns, and which Holdings, Inc. plans to develop an HCP all comments we receive in complying can cause emaciation. The range of the and request issuance of an ITP from the with the requirements of NEPA and in Indiana bat includes much of the Service. Relevant information provided the development of an HCP and ITP. We eastern United States, and Ohio is in response to this notice will aid in particularly seek comments concerning: located within the core maternity range developing the HCP and NEPA (1) Biological information concerning of the bat. Winter habitat for the Indiana document, and potentially the ITP, the Indiana bat; bat includes caves and mines that should take be authorized. support high humidity and cool but (2) Relevant data concerning wind At this point, the Service has not stable temperatures. In the summer, power and bat interactions; developed any alternatives for the NEPA Indiana bats roost under the loose bark (3) Additional information concerning document. Any preferred alternative of dead or dying trees. During summer, the range, distribution, population size, developed by the Service will contain males roost alone or in small groups, and population trends of the Indiana various measures to avoid and minimize bat; while females and their offspring roost in larger groups of 100 or more. Indiana impacts to Indiana bats, including the (4) Current or planned activities in the impact of lethal take. Various methods subject area and their possible impacts bats forage for insects in and along the edges of forested areas and wooded that may be considered include, but are on the Indiana bat; not limited to: Protection of roost trees (5) The presence of facilities within stream corridors. Maternity colonies of Indiana bats have recently been detected and surrounding habitat, set-back the project area which are eligible to be distances from known roost trees, listed on the National Register of in Champaign County, Ohio, though no Indiana bat hibernacula have been mapping and avoidance of foraging Historic Places or whether other areas, protection and enhancement of historical, archeological, or traditional documented in this county. EverPower Wind Holdings, Inc. is Indiana bat habitat outside the project cultural properties may be present; area, removal of small woodlots near (6) The appropriate level of NEPA planning the development of a wind turbines to preclude expansion of review, specifically whether power project in Champaign County, Indiana bat usage near turbines, various development of an Environmental Ohio. The project would be spread curtailment regimes for turbines during Assessment (EA) or an Environmental across 80,370 acres within portions of prime activity or migration periods, and Impact Statement (EIS) would be Union, Wayne, Urbana, Salem, Rush, post-construction monitoring for appropriate; and and Goshen Townships. Development of (7) Identification of any other the wind power project would include fatalities. environmental issues that we should installation of up to 100 wind turbines Authority consider with regard to the proposed and associated collection lines, access development and permit action. roads, utility lines, substations, We furnish this notice under NEPA You may submit your comments and operation and maintenance facility regulations (40 CFR 1501.7 and materials considering this notice by one buildings, and temporary staging areas 1508.22). The intent of the notice is to of the methods listed in the ADDRESSES and concrete batch plants. The wind enable us to obtain suggestions and section. turbine hub height would be additional information from other Comments and materials we receive, approximately 100 meters (m), and the agencies and the public on the scope of as well as supporting documentation we rotor diameter would be approximately issues to be considered.

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Dated: December 21, 2009. Wildlife Refuges; the Fort Yuma the Approved RMP. These Lynn M. Lewis, Quechan Tribe; the Marine Corps Air modifications provided further Assistant Regional Director, Ecological Station, Yuma; Natural Resource clarification of some of the decisions. Services, Region 3, Fort Snelling, MN. Conservation Service; the Yuma County Minor clarifications and changes [FR Doc. 2010–1810 Filed 1–28–10; 8:45 am] Department of Public Works; the city of between the Proposed Plan/Final EIS BILLING CODE 4310–55–P Yuma; the U.S. Army Yuma Proving and the ROD/Approved Plan include Ground; the U.S. Department of the recalculation of Geographic Agriculture, the Natural Resources Information System acreage to ensure DEPARTMENT OF THE INTERIOR Conservation Service; the U.S. consistency between lands available for Department of Homeland Security, grazing and those unavailable for Bureau of Land Management Customs and Border Patrol; the Cocopah grazing in the YFO, and minor text [LLAZC02000L16100000.DR0000.241A] Indian Tribe; the town of Quartzsite; the changes to clarify certain decisions. The Wellton-Mohawk Irrigation District; and BLM has determined that the Approved Notice of Availability of Record of the Yavapai-Apache Nation. The BLM RMP provides an optimal balance Decision for the Yuma Field Office also initiated consultation with tribes between authorized resource use and Resource Management Plan/ that have oral traditions or cultural the protection and long-term Environmental Impact Statement concerns relating to the planning area or sustainability of sensitive resources that are documented as having occupied within the planning area. AGENCY: Bureau of Land Management, or used portions of the planning area Neither the Arizona Governor’s Office Interior. during prehistoric or historic times. nor the California Governor’s Office ACTION: Notice of availability. The Approved RMP includes identified any inconsistencies between strategies for protecting and preserving the Proposed RMP/Final EIS and state SUMMARY: The Bureau of Land the biological, cultural, recreational, or local plans, policies, and programs Management (BLM) announces the geological, educational, scientific, and following the 60-day Governors’ availability of the Record of Decision scenic values that balance multiple uses Consistency Reviews (initiated March 6, (ROD)/Approved Resource Management of the BLM-administered lands 2008), in accordance with planning Plan (RMP) for the Yuma Field Office throughout the YFO planning area. The regulations at 43 CFR part 1610.3–2(e). (YFO) located in Arizona and California. planning area encompasses more than The Approved RMP does not contain The Arizona State Director signed the 1.2 million acres of BLM-administered implementation decisions. Future ROD on July 28, 2009, which constitutes lands. activity-level plans will address the the final decision of the BLM and makes The ROD and Approved RMP include implementation of the approved RMP. the approved RMP effective one new Area of Critical Environmental These implementation plans will immediately. Concern (ACEC): Dripping Springs provide the required additional site- ADDRESSES: Copies of the ROD/ Natural and Cultural ACEC (11,733 specific planning and National Approved RMP are available upon acres). One existing ACEC is expanded Environmental Policy Act (NEPA) request from the Bureau of Land under the new plan: Gila River Cultural analyses. At that time, such decisions Management, Yuma Field Office, 2555 ACEC (from 3,668 to 28,504 acres). The will become appealable. The appeal Gila Ridge Road, Yuma, Arizona 85365, Gila River Cultural ACEC is renamed process will be outlined in the future or via the Internet at http:// the Sears Point Cultural ACEC. The individual implementation (activity or www.blm.gov/az/st/en/prog/planning/ following types of resource use project-level) plans. yuma_plan.html. limitations generally apply to these ACECs: Authority: H–1790–1 National FOR FURTHER INFORMATION CONTACT: (1) Allowable uses are limited to those Environmental Policy Act Handbook, January 30, 2008. James T. Shoaff, Field Manager, Bureau which are compatible with the natural of Land Management, Yuma Field or cultural resources for which the area James G. Kenna, Office, 2555 Gila Ridge Road, Yuma, is designated; (2) Recreation facilities Arizona State Director. Arizona 85365. are limited to projects that protect ACEC [FR Doc. 2010–1726 Filed 1–28–10; 8:45 am] SUPPLEMENTARY INFORMATION : One of values; and (3) Travel is permitted only BILLING CODE 4310–32–P BLM’s objectives during the planning on designated open and signed routes. process was to understand the views of Detailed information is provided in the various public interest groups by Special Designations Management DEPARTMENT OF THE INTERIOR providing opportunities for meaningful section of the Approved RMP. participation. Through communication The Preferred Alternative in the Draft National Park Service media such as meetings, newsletters, Resource Management Plan/Draft EIS and news releases, the public was (published December 15, 2006) was Winter Use Plan, Environmental Impact provided opportunities to identify revised to include comments received Statement, Yellowstone National Park issues that needed to be addressed. The during the 90-day public comment AGENCY: National Park Service, public also provided comments during period. The resulting alternative became Department of the Interior. the 90-day public comment period on the Proposed Plan in the Proposed ACTION: Notice of Intent to prepare an the Draft Environmental Impact Resource Management Plan/Final EIS Environmental Impact Statement for a Statement (EIS), which were addressed (PRMP/FEIS), published on April 11, Winter Use Plan, Yellowstone National in the Final EIS. The Approved RMP/ 2008. Seven protests were received Park. Final EIS was developed with the during the Final EIS 30-day protest following cooperating agencies: the period. The Proposed Plan was clarified SUMMARY: Pursuant to the National Bureau of Reclamation; the Arizona based on these protests. The Proposed Environmental Policy Act of 1969, 42 Game and Fish Department; the Arizona Plan is now called the ‘‘Approved RMP’’ U.S.C. 4332(2)(C), the National Park Department of Transportation; the and is attached to the ROD. As a result Service (NPS) is preparing an Federal Highway Administration; the of protests, only minor editorial Environmental Impact Statement (EIS) Imperial, Cibola, and Kofa National modifications were made in preparing for a Winter Use Plan for Yellowstone

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National Park, located in Idaho, of the EIS; the purpose, need, and parkplanning.nps.gov/YELL (click on Montana and Wyoming. objectives; the issues that the EIS should the link to the Winter Use Plan), and at The purpose of the EIS is to establish address; and the alternatives that should Yellowstone National Park a management framework that allows be considered in the EIS. Comments headquarters, Mammoth Hot Springs, the public to experience Yellowstone’s submitted during this scoping period WY. unique winter resources and values. will allow the NPS to address public FOR FURTHER INFORMATION CONTACT: John This plan will determine whether concerns as the EIS is prepared. Sacklin, P.O. Box 168, Yellowstone motorized winter use of the park Background: The NPS is preparing National Park, WY 82190, (307) 344– (including wheeled motor vehicles, this EIS to develop a long-term plan to 2019, [email protected]. snowmobiles, and snowcoaches) is allow the public to experience SUPPLEMENTARY INFORMATION: If you appropriate, and if so, the types, extent, Yellowstone’s unique winter resources wish to comment on the scoping and location of this use. and values. Currently, the vast majority brochure or on any other issues A Winter Use Plan is needed at this of access to the park in winter is associated with the plan, you may time because: (1) Yellowstone offers automobile access in the northern submit your comments by any one of unique winter experiences that are portion of the park and snowmobile and several methods. We encourage you to distinct from other times of the year; (2) snowcoach access through the park’s comment via the Internet at http:// the National Park Service provides North, South, and East entrances. parkplanning.nps.gov/YELL (click on opportunities for people to experience Snowmobile and snowcoach access in the link to the Winter Use Plan). You the park in the winter, but access to the park are currently authorized by an may also comment by mail to: most of the park in the winter is limited interim regulation, which allows their Yellowstone National Park, Winter Use by distance and the harsh winter use for the winters of 2009–2010 and Scoping, P.O. Box 168, Yellowstone NP, environment, which present challenges 2010–2011. The regulation mandates WY 82190. Finally, you may hand to safety and park operations; and (3) that the authorization of snowmobile deliver your comments to: Management the legal authority for oversnow vehicle and snowcoach use ends following the Assistant’s Office, Headquarters use (snowmobiles and snowcoaches) at winter of 2010–2011, so their use will Building, Mammoth Hot Springs, Yellowstone expires after the winter of cease unless a new regulation is Yellowstone National Park, WY. 2010–2011. A decision is needed about promulgated. Among other issues, the Comments will not be accepted by fax, whether this use should continue, and EIS will consider whether continued e-mail, or in any other way than those if so, how to structure use to protect use of snowmobiles and snowcoaches is resources and values and to provide for specified above. appropriate. If a determination is made Before including your address, phone visitor use and enjoyment. that continued use of snowmobiles and/ Alternatives considered in the EIS number, e-mail address, or other or snowcoaches is appropriate, this EIS process will focus on responding to the personal identifying information in your is intended to satisfy the National purpose and need, and will also address comment, you should be aware that Environmental Policy Act requirements the objectives of the EIS. The EIS will your entire comment—including your for any new regulation. consider a variety of alternatives for personal identifying information—may Because the interim regulation’s managing winter use in the park, be made publicly available at any time. authorization of oversnow vehicle use is including the use of snowmobiles, While you can ask us in your comment only in effect through the winter of snowcoaches, and wheeled vehicles, as to withhold your personal identifying 2010–2011, the NPS intends to complete well as requirement for professional information from public review, we this EIS and issue a new regulation, if guides to lead oversnow vehicles into cannot guarantee that we will be able to necessary, based upon the outcome of and out of the park. The EIS will do so. the EIS process, prior to the start of the evaluate the environmental effects of 2011–2012 winter season. Dated: January 8, 2010. winter use on air quality and visibility, More information regarding Michael D. Snyder, wildlife, natural soundscapes, employee Yellowstone in the winter, including Director, Intermountain Region, National and visitor health and safety, visitor educational materials and a detailed Park Service. experience, and socioeconomics. history of winter use in Yellowstone, is [FR Doc. 2010–1914 Filed 1–28–10; 8:45 am] The NPS will be inviting several other available at http://www.nps.gov/yell/ BILLING CODE P government agencies to participate in planvisit/winteruse/index.htm. the development of the EIS as DATES: The National Park Service will cooperating agencies, including the DEPARTMENT OF THE INTERIOR states of Wyoming, Montana, and Idaho; accept comments from the public for 60 days from the date that this Notice is the counties of Park and Teton, WY; Bureau of Land Management Gallatin and Park, MT; and Fremont, ID; published in the Federal Register. The the Environmental Protection Agency; National Park Service intends to hold [LLAK920000–L14100000–BJ0000] the U.S. Fish and Wildlife Service; and public scoping meetings in Idaho Falls, ID, and Billings, MT, the week of Notice of Filing of Plats of Survey; the U.S. Forest Service. Alaska A scoping brochure has been prepared February 15, 2010; and in Cheyenne, that details the issues identified to date, WY, and Washington, DC, the week of AGENCY: Bureau of Land Management, and includes the purpose, need and March 15, 2010. Details regarding the Interior. objectives of the EIS. Copies of the exact times and locations of these ACTION: Notice of Filing of Plats of brochure may be obtained online at meetings will be announced on the Survey. http://parkplanning.nps.gov/YELL (click park’s Web site, at http:// on the link to the Winter Use Plan) or parkplanning.nps.gov/YELL (click on SUMMARY: Notice of Filing of Plats of from Yellowstone National Park, P.O. the link to the Winter Use Plan), and Survey; Alaska. Box 168, Yellowstone National Park, through local media. DATES: The plat(s) of survey described WY 82190, 307–344–2019. ADDRESSES: Information specific to the below is scheduled to be officially filed The NPS is interested in obtaining EIS process will be available for public in the Alaska State Office, Bureau of comments from the public on the scope review and comment online at http:// Land Management, Anchorage, Alaska,

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thirty (30) days from the date of DATES: Friday, February 12, 2010. The meeting will be open to the publication in the Federal Register. ADDRESSES: House of Sweden, 2900, public. Any member of the public may ADDRESSES: Bureau of Land 2900 K Street, NW., Washington, DC. file with the Commission a written Management, Alaska State Office, 222 FOR FURTHER INFORMATION CONTACT: statement concerning the matters to be W. 7th Ave., Stop 13, Anchorage, AK Kevin Brandt, Superintendent, discussed. Persons wishing further 99513–7599. Chesapeake and Ohio Canal National information concerning this meeting, or FOR FURTHER INFORMATION CONTACT: Historical Park, 1850 Dual Highway, who wish to submit written statements, Michael H. Schoder, Chief Cadastral Suite 100, Hagerstown, Maryland 21740, may contact Kevin Brandt, Surveyor for Alaska, Division of telephone: (301) 714–2201. Superintendent, Chesapeake and Ohio Canal National Historical Park. Before Cadastral Survey, telephone: 907–271– SUPPLEMENTARY INFORMATION: The including your address, phone number, 5481; fax: 907–271–4549; e-mail: Commission was established by Public e-mail address, or other personal [email protected]. Law 91–664 to meet and consult with identifying information in your the Secretary of the Interior on general SUPPLEMENTARY INFORMATION: This comment, you should be aware that policies and specific matters related to survey was executed at the request of your entire comment—including your the administration and development of the Bureau of Indian Affairs, Alaska personal identifying information—may the Chesapeake and Ohio Canal Region. be made publicly available at any time. The lands surveyed are: National Historical Park. While you can ask us in your comment Normally, notice of advisory to withhold your personal identifying Seward Meridian, Alaska committee meetings are published at information from public review, we least 15 calendar days prior to the T. 12 N., R. 2 W. cannot guarantee that we will be able to meeting date. Due to an unanticipated The plat(s) and field notes represent the do so. Minutes of the meeting will be administrative delay in preparing this dependent resurvey of a portion of the West available for public inspection six boundary, a portion of the subdivisional lines notice, it could not be published at least weeks after the meeting at Chesapeake and the survey of the subdivision of Section 15 days prior to the meeting date. The and Ohio Canal National Historical Park 30, Township 12 North, Range 2 West, National Park Service regrets this error, Headquarters, 1850 Dual Highway, Suite Seward Meridian, in the state of Alaska. but is compelled to hold the meeting as 100, Hagerstown, Maryland 21740. We will place copies of the survey scheduled because of the significant plat and field notes we describe in open sacrifice re-scheduling would require of Dated: January 15, 2010. files. They will be available to the the Commission members who have Brian T. Carlstrom, public as a matter of information. adjusted their schedules to Deputy Superintendent, Chesapeake and Copies may be obtained from this office accommodate the proposed meeting Ohio, Canal National Historical Park. for a minimum recovery fee. dates and the high level of anticipation [FR Doc. 2010–1911 Filed 1–28–10; 8:45 am] If BLM receives a protest against the by all parties who will be affected by the BILLING CODE P survey, as shown on the plat, prior to outcome of the Commission’s actions. the date of official filing, the filing will Since there has been advance notice to be stayed pending consideration of the the Commission members and local DEPARTMENT OF THE INTERIOR protest. We will not officially file the public interest groups about this plat until the day after we have accepted meeting, the National Park Service National Park Service or dismissed all protests and they have believes that the public interest will not Notice of Meeting for Acadia National become final, including decisions on be adversely affected by the less-than- Park Advisory Commission appeals. 15-days advance notice in the Federal Authority: 43 U.S.C. chap. 3 sec. 53. Register. AGENCY: National Park Service, The members of the Commission are Department of Interior. Dated: January 25, 2010. as follows: Michael H. Schoder, ACTION: Notice of February 19, 2010, Mrs. Sheila Rabb Weidenfeld, Meeting for Acadia National Park Chief Cadastral Surveyor. Chairperson. Advisory Commission. [FR Doc. 2010–1807 Filed 1–28–10; 8:45 am] Mr. Charles J. Weir. BILLING CODE 4310–JA–P Mr. Barry A. Passett. SUMMARY: This notice sets the date of Mr. James G. McCleaf, II. February 19, 2010, meeting of the Mr. John A. Ziegler. Acadia National Park Advisory DEPARTMENT OF THE INTERIOR Mrs. Mary E. Woodward. Commission. Mrs. Donna Printz. DATES: The public meeting of the National Park Service Mrs. Ferial S. Bishop. Advisory Commission will be held on Ms. Nancy C. Long. Chesapeake and Ohio Canal National Friday, February 19, 2010, at 1 p.m. Mrs. Jo Reynolds. Historical Park Advisory Commission; (EASTERN). Dr. James H. Gilford. Notice of Public Meeting Brother James Kirkpatrick. ADDRESSES: Location: The meeting will AGENCY: Department of the Interior, Dr. George E. Lewis, Jr. be held at Park Headquarters, Bar National Park Service. Mr. Charles D. McElrath. Harbor, Maine 04609. ACTION: Notice of meeting. Ms. Patricia Schooley. Mr. Jack Reeder. Agenda SUMMARY: Notice is hereby given that a Ms. Merrily Pierce. The February 19, 2010, Commission meeting of the Chesapeake and Ohio Topics that will be presented during meeting will consist of the following: Canal National Historical Park Advisory the meeting include: 1. Committee reports: Commission will be held at 9 a.m., on 1. Update on park operations. —Land Conservation Friday, February 12, 2010, at the House 2. Update on major construction —Park Use of Sweden, 2900 K Street, NW., development projects. —Science and Education Washington, DC 20007. 3. Update on partnership projects. —Historic

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2. Old Business ADDRESSES: All Commission offices, and should be received not later than 3. Superintendent’s Report including the Commission’s hearing 5:15 p.m. on March 1, 2010. All written 4. Chairman’s Report rooms, are located in the United States submissions must conform with the 5. Public Comments International Trade Commission provisions of section 201.8 of the Building, 500 E Street, SW., FOR FURTHER INFORMATION CONTACT: Commission’s Rules of Practice and Washington, DC. All written Further information concerning this Procedure (19 CFR 201.8). Section 201.8 submissions should be addressed to the meeting may be obtained from the requires that a signed original (or a copy Secretary, United States International so designated) and fourteen (14) copies Superintendent, Acadia National Park, Trade Commission, 500 E Street, SW., P.O. Box 177, Bar Harbor, Maine 04609, of each document be filed. In the event Washington, DC 20436. The public that confidential treatment of a telephone (207) 288–3338. record for this investigation may be document is requested, at least four (4) SUPPLEMENTARY INFORMATION: The viewed on the Commission’s electronic additional copies must be filed in which meeting is open to the public. Interested docket (EDIS) at http://www.usitc.gov/ persons may make oral/written secretary/edis.htm. the confidential information must be deleted (see the following paragraph for presentations to the Commission or file FOR FURTHER INFORMATION CONTACT: further information regarding written statements. Such requests Information specific to this investigation confidential business information). The should be made to the Superintendent may be obtained from Philip Stone, at least seven days prior to the meeting. Project Leader, Office of Industries Commission’s rules authorize filing Before including your address, phone (202–205–3424 or submissions with the Secretary by number, e-mail address, or other [email protected]). For information facsimile or electronic means only to the personal identifying information in your on the legal aspects of this investigation, extent permitted by section 201.8 of the comment, you should be aware that contact William Gearhart of the rules (see Handbook for Electronic your entire comment—including your Commission’s Office of the General Filing Procedures, http://www.usitc.gov/ personal identifying information—may Counsel (202–205–3091 or secretary/fed_reg_notices/rules/ be made publicly available at any time. [email protected]). The media documents/ While you can ask us in your comment should contact Margaret O’Laughlin, handbook_on_electronic_filing.pdf). to withhold your personal identifying Office of External Relations (202–205– Persons with questions regarding information from public review, we 1819 or [email protected]). electronic filing should contact the cannot guarantee that we will be able to Hearing-impaired individuals may Secretary (202–205–2000). do so. obtain information on this matter by Any submissions that contain Dated: January 7, 2010. contacting the Commission’s TDD terminal at 202–205–1810. General confidential business information must Sheridan Steele, also conform with the requirements of Superintendent, Acadia National Park. information concerning the Commission may also be obtained by accessing its section 201.6 of the Commission’s Rules [FR Doc. 2010–1922 Filed 1–28–10; 8:45 am] Internet server (http://www.usitc.gov). of Practice and Procedure (19 CFR BILLING CODE 4310–2N–P Persons with mobility impairments who 201.6). Section 201.6 of the rules will need special assistance in gaining requires that the cover of the document access to the Commission should and the individual pages be clearly INTERNATIONAL TRADE contact the Office of the Secretary at marked as to whether they are the COMMISSION 202–205–2000. ‘‘confidential’’ or ‘‘non-confidential’’ Background: As requested by the version, and that the confidential [Investigation No. 332–513] USTR pursuant to section 332(g) of the business information be clearly Tariff Act of 1930, the Commission will identified by means of brackets. All Advice Concerning Possible provide advice as to the probable Modifications to the U.S. Generalized written submissions, except for economic effect on U.S. industries confidential business information, will System of Preferences, 2010 Special producing like or directly competitive Review, Certain Sleeping Bags be made available in the Office of the articles, on U.S. imports, and on U.S. Secretary to the Commission for AGENCY: United States International consumers of the removal of sleeping inspection by interested parties. The bags provided for in HTS subheading Trade Commission. Commission may include some or all of 9404.30.80 (sleeping bags, not the confidential business information ACTION: Institution of investigation. containing 20 percent or more by weight of feathers and/or down) from eligibility submitted in the course of the SUMMARY: Following receipt of a request for duty-free treatment under the investigation in the report it sends to the on January 19, 2010 from the United Generalized System of Preferences USTR. As requested by the USTR, the States Trade Representative (USTR) (GSP) program with respect to all Commission will publish a public under section 332(g) of the Tariff Act of beneficiary countries. As requested by version of the report, which will 1930 (19 U.S.C. 1332 (g)), the U.S. the USTR, the Commission will provide exclude portions of the report that the International Trade Commission its advice by April 12, 2010. The USTR USTR has classified as well as any (Commission) instituted investigation indicated that those sections of the business confidential information. No. 332–513, Advice Concerning Commission’s report and related By order of the Commission. Possible Modifications to the U.S. working papers that contain the Issued: January 25, 2010. Generalized System of Preferences, 2010 Commission’s advice will be classified Special Review, Certain Sleeping Bags. as ‘‘confidential.’’ Marilyn R. Abbott, DATES: March 1, 2010: Deadline for Written Submissions: Interested Secretary to the Commission. filing written submissions. parties are invited to file written [FR Doc. 2010–1812 Filed 1–28–10; 8:45 am] April 12, 2010: Transmittal of report submissions concerning this BILLING CODE 7020–02–P to the United States Trade investigation. All such submissions Representative. should be addressed to the Secretary

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DEPARTMENT OF JUSTICE use of appropriate automated, for the application as well to coordinate electronic, mechanical, or other with and develop a memorandum of Office on Violence Against Women technological collection techniques or understanding with requisite project [OMB Number 1122–0020] other forms of information technology, partners. e.g., permitting electronic submission of (6) An estimate of the total public Agency Information Collection responses. burden (in hours) associated with the collection: The estimated public burden Activities: Proposed Collection; Overview of This Information Comments Requested associated with this collection is 54,000 Collection hours. ACTION: 30-Day Notice of Information (1) Type of Information Collection: If Additional Information Is Required Collection Under Review: Office on Proposed collection. Contact: Lynn Bryant, Department Violence Against Women Solicitation (2) Title of the Form/Collection: OVW Clearance Officer, United States Template. Solicitation Template. Department of Justice, Justice (3) Agency form number, if any, and Management Division, Policy and The Department of Justice, Office on the applicable component of the Planning Staff, Suite 1600, 601 D Street, Violence Against Women (OVW) will be Department of Justice sponsoring the NW., Washington, DC 20530. submitting the following information collection: Form Number: 1122–XXXX. Dated: January 26, 2010. collection request to the Office of U.S. Department of Justice, OVW. Lynn Bryant, Management and Budget (OMB) for (4) Affected public who will be asked review and approval in accordance with or required to respond, as well as a brief Department Clearance Officer, PRA, United States Department of Justice. the Paperwork Reduction Act of 1995. abstract: Primary: The affected public The proposed information collection is includes applicants to OVW grant [FR Doc. 2010–1871 Filed 1–28–10; 8:45 am] published to obtain comments from the programs authorized under the Violence BILLING CODE 4410–FX–P public and affected agencies. This Against Women Act of 1994 and reauthorized and amended by the proposed information collection was DEPARTMENT OF JUSTICE previously published in the Federal Violence Against Women Act of 2000 Register Volume 74, Number 228, page and the Violence Against Women Act of Office of Community Oriented Policing 62595, on November 30, 2009, allowing 2005. These include States, territory, Services for a 60-day comment period. Tribe or unit of local government; State, The purpose of this notice is to allow territorial, tribal or unit of local [OMB Number 1103–0106] for an additional 30 days for public governmental entity; institutions of Agency Information Collection comment until March 1, 2010. This higher education including colleges and Activities: Extension of a Previously process is conducted in accordance with universities; tribal organizations; Approved Collection; Comments 5 CFR 1320.10. Federal, State, tribal, territorial or local Requested Written comments and/or suggestions courts or court-based programs; State sexual assault coalition, State domestic regarding the items contained in this ACTION: 30-Day Notice of Information violence coalition; territorial domestic notice, especially the estimated public Collection Under Review: COPS Hiring violence or sexual assault coalition; burden and associated response time, Recovery Program (CHRP) Progress tribal coalition; tribal organization; should be directed to The Office of Report. Management and Budget, Office of community-based organizations and Information and Regulatory Affairs, non-profit, nongovernmental The Department of Justice (DOJ) Attention Department of Justice Desk organizations. The purpose of the Office of Community Oriented Policing Officer, Washington, DC 20503. solicitation template is to provide a Services (COPS) will be submitting the Additionally, comments may be framework to develop program-specific following information collection request submitted to OMB via facsimile to (202) announcements soliciting applications to the Office of Management and Budget 395–5806. for funding. A program solicitation (OMB) for review and approval in Written comments and suggestions outlines the specifics of the funding accordance with the Paperwork from the public and affected agencies program; describes the requirements for Reduction Act of 1995. The proposed concerning the proposed collection of eligibility; instructs an applicant on the information collection is published to information are encouraged. Your necessary components of an application obtain comments from the public and comments should address one or more under a specific program (e.g. project affected agencies. This proposed of the following four points: activities and timeline, proposed information collection was previously (1) Evaluate whether the proposed budget); and provides registration dates, published in the Federal Register, collection of information is necessary due dates, and instructions on how to Volume 74, Number 227, pages 62348, for the proper performance of the apply within the designated application on November 27, 2009, allowing for a functions of the agency, including system. 60-day comment period. whether the information will have (5) An estimate of the total number of The purpose of this notice is to allow practical utility; respondents and the amount of time for an additional 30 days for public (2) Evaluate the accuracy of the estimated for an average respondent to comment February 1, 2010. This process agency’s estimate of the burden of the respond/reply: It is estimated that is conducted in accordance with 5 CFR proposed collection of information, information will be collect annually 1320.10. including the validity of the from the approximately 1800 If you have comments especially on methodology and assumptions used; respondents (applicants to the OVW the estimated public burden or (3) Enhance the quality, utility, and grant programs). The public reporting associated response time, suggestions, clarity of the information to be burden for this collection of information or need a copy of the proposed collected; and is estimated at up to 30 hours per information collection instrument with (4) Minimize the burden of the application. The 30-hour estimate is instructions or additional information, collection of information on those who based on the amount of time to prepare please contact Rebekah Whiteaker, are to respond, including through the a narrative, budget and other materials Department of Justice Office of

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Community Oriented Policing Services, Suite 1600, 601 D Street, NW., PM emissions at all three Jeffrey Units 1100 Vermont Avenue, NW., Washington, DC 20530. through the installation, upgrade, and/ Washington, DC 20530. Dated: January 26, 2010. or operation of pollution control Written comments and suggestions Lynn Bryant, technologies. In addition, the proposed from the public and affected agencies complaint would require Westar to concerning the extension of a previously Department Clearance Officer, PRA, U.S. Department of Justice. spend $6 million on environmental approved collection of information are mitigation projects, namely retrofitting encouraged. Your comments should [FR Doc. 2010–1872 Filed 1–28–10; 8:45 am] BILLING CODE 4410–AT–P diesel engines to reduce emissions from address one or more of the following vehicles owned by or operated for four points: public entities in Kansas with emission —Evaluate whether the extension of a DEPARTMENT OF JUSTICE control equipment, installing new wind previously approved collection of turbines that provide electricity for the information is necessary for the Notice of Lodging of Consent Decree benefit of schools or non-profits, proper performance of the functions Under the Clean Air Act installing advanced truck stop of the agency, including whether the electrification, installing plug-in hybrid information will have practical utility; Pursuant to 28 CFR 50.7, notice is —Evaluate the accuracy of the agency’s hereby given that on January 25, 2010, infrastructure, and converting vehicles estimate of the burden of the a proposed Consent Decree in United in Westar’s fleet by retrofitting diesel proposed collection of information, States of America, et al. v. Westar vehicles and purchasing hybrid including the validity of the Energy, Inc., Civil Action No. 2:09–CV– vehicles. Finally, the proposed Consent methodology and assumptions used; 2059–JAR–DJW, was lodged with the Decree would require Westar to pay a $3 —Enhance the quality, utility, and United States District Court for the million civil penalty. The State of clarity of the information to be District of Kansas. Kansas has joined the settlement as co- collected; and The Consent Decree would resolve plaintiff. claims asserted by the United States —Minimize the burden of the collection The Department of Justice will receive against Westar Energy (‘‘Westar’’) of information on those who are to comments relating to the Consent respond, including through the use of pursuant to Sections 113(b) and 167 of Decree for a period of thirty (30) days appropriate automated, electronic, the Clean Air Act (the ‘‘Act’’), 42 U.S.C. from the date of this publication. mechanical, or other technological 7413(b) and 7477, seeking injunctive collection techniques or other forms relief and the assessment of civil Comments should be addressed to the of information technology, e.g., penalties for Westar’s violations of: Assistant Attorney General, permitting electronic submission of (a) The Prevention of Significant Environment and Natural Resources responses. Deterioration (‘‘PSD’’) provisions in Part Division, and either e-mailed to C of Subchapter I of the Act, 42 U.S.C. [email protected] or Overview of This Information 7470–92; mailed to P.O. Box 7611, U.S. Collection (b) The New Source Performance Department of Justice, Washington, DC (1) Type of Information Collection: Standards (‘‘NSPS’’) provisions of the 20044–7611, and should refer to United Extension of a previously approved Act, 42 U.S.C. 7411; States of America, et al. v. Westar collection; comments requested. (c) Title V of the Act, 42 U.S.C. 7661 Energy, Inc., D.J. Ref. 90–5–2–1–08242. (2) Title of the Form/Collection: CHRP et seq.; and The Consent Decree may be examined Progress Report. (d) The federally-enforceable State (3) Agency form number, if any, and Implementation Plan (‘‘SIP’’) developed at the Office of the United States the applicable component of the by the State of Kansas. Attorney for the District of Kansas, 500 Department sponsoring the collection: Westar operates three coal-fired State Avenue, Suite 360, Kansas City, None. U.S. Department of Justice Office power plants in Kansas. One of those KS 66101, and at U.S. EPA Region 7, of Community Oriented Policing plants, the Jeffrey Energy Center 901 N. 5th Street, Kansas City, KS Services. (‘‘Jeffrey Plant’’), has three electric 66101. During the public comment (4) Affected public who will be asked generating units and is located near St. period, the Consent Decree may also be or required to respond, as well as a brief Marys in Pottawatomie County, Kansas. examined on the following Department abstract: Primary: Law enforcement and Only the Jeffrey Plant is the subject of of Justice Web site, http:// partner public safety agencies that are this settlement. The complaint filed by www.usdoj.gov/enrd/ recipients of COPS Hiring Recovery the United States alleges that Westar ConsentDecrees.html. A copy of the Program grants. modified and thereafter operated all Consent Decree may also be obtained by (5) An estimate of the total number of three units at the Jeffrey Plant without mail from the Consent Decree Library, respondents and the amount of time complying with the PSD requirements P.O. Box 7611, U.S. Department of estimated for an average respondent to of the Act (including the requirements Justice, Washington, DC 20044–7611 or respond/reply: It is estimated that to first obtain a PSD permit authorizing by faxing or e-mailing a request to Tonia the modifications and to install and approximately 1046 report respondents Fleetwood ([email protected]), operate the best available control can complete the report in an average of fax no. (202) 514–0097, phone 10 minutes per calendar quarter. technology to control emissions of confirmation number (202) 514–1547. In (6) An estimate of the total public sulfur dioxide (‘‘SO ’’), nitrogen oxides 2 requesting a copy from the Consent burden (in hours) associated with the (‘‘NOX’’), and/or particulate matter collection: 697.333 total burden hours. (‘‘PM’’)). The complaint also alleges that Decree Library, please enclose a check If additional information is required Westar violated Title V of the Act by in the amount of $16.00 (25 cents per contact: Lynn Bryant, Department failing to include the PSD requirements page reproduction cost) payable to the Clearance Officer, United States triggered by its modifications in its Title U.S. Treasury or, if by e-mail or fax, Department of Justice, Justice V operating permit for the Jeffrey Plant. forward a check in that amount to the Management Division, Policy and The proposed Consent Decree would Consent Decree Library at the stated Planning Staff, Patrick Henry Building, require Westar to reduce SO2, NOX and address.

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Maureen Katz, (2) Evaluate the accuracy of the Dated: January 26, 2010. Assistant Chief, Environmental Enforcement agency’s estimate of the burden of the Lynn Bryant, Section, Environment and Natural Resources proposed collection of information, Department Clearance Officer, PRA, United Division. including the validity of the States Department of Justice. [FR Doc. 2010–1773 Filed 1–28–10; 8:45 am] methodology and assumptions used; [FR Doc. 2010–1870 Filed 1–28–10; 8:45 am] BILLING CODE 4410–15–P (3) Enhance the quality, utility, and BILLING CODE 4410–02–P clarity of the information to be collected; and DEPARTMENT OF JUSTICE DEPARTMENT OF LABOR (4) Minimize the burden of the Federal Bureau of Investigation collection of information on those who Mine Safety and Health Administration are to respond, including through the [OMB Number 1110–0006] use of appropriate automated, Proposed Information Collection electronic, mechanical, or other Request Submitted for Public Agency Information Collection technological collection techniques of Comment and Recommendations Activities: Proposed Collection, other forms of information technology, Comments Requested Applications for a permit to fire more e.g., permitting electronic submission of than 20 boreholes and for the use of responses. ACTION: 30-day Notice of Information non-permissible blasting units or for the Collection Under Review: Revision of a Overview of This Information posting of notices of misfired holes currently approved collection: Law Collection (pertaining to underground coal mines) Enforcement Officers Killed or and the use of nonpermissible Assaulted. (1) Type of information collection: explosives and shot-firing units in shaft Revision of a currently approved and slope construction (pertains to coal The Department of Justice, Federal collection. mining industry). Bureau of Investigation, Criminal Justice (2) The title of the form/collection: ACTION: Notice. Information Services Division will be Law Enforcement Officers Killed or SUMMARY: The Department of Labor, as submitted the following information Assaulted collection request to the Office of part of its continuing effort to reduce Management and Budget (OMB) for (3) The agency form number, if any, paperwork and respondent burden review and clearance in accordance and the applicable component of the conducts a preclearance consultation with established review procedures of department sponsoring the collection: program to provide the general public the Paperwork Reduction Act of 1995. Form Number: 1–705; and Federal agencies with an The proposed information collection is Sponsor: Criminal Justice Information opportunity to comment on proposed published to obtain comments from the Services Division, Federal Bureau of and/or continuing collections of public and affected agencies. This Investigation, Department of Justice. information in accordance with the proposed information collection was Paperwork Reduction Act of 1995 (4) Affected public who will be asked previously published in the Federal (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This or required to respond, as well as a brief Register Volume 74, Number 227, pages program helps to ensure that requested abstract: Primary: City, county, state, 62349, on November 27, 2009, allowing data can be provided in the desired federal and tribal law enforcement for a 60 day comment period. format, reporting burden (time and agencies. The purpose of this notice is to allow financial resources) is minimized, for an additional 30 days for public Brief Abstract: This collection is collection instruments are clearly comment until March 1, 2010. This needed to collect information on law understood, and the impact of collection process is conducted in accordance with enforcement officers killed or assaulted requirements on respondents can be 5 CFR 1320.10. in the line of duty throughout the properly assessed. Currently, the Mine Written comments and/or suggestions United States. Safety and Health Administration regarding the items contained in this (5) An estimate of the total number of (MSHA) is soliciting comments notice, especially the estimated public respondents and the amount of time concerning the proposed extension of burden and associated response time, estimated for an average respondent to the information collection related to the should be directed to Mr. Gregory E. respond: There are approximately applications for a permit to fire more than 20 boreholes and for the use of Scarbro, Unit Chief, Federal Bureau of 17,799 law enforcement agency non-permissible blasting units or for the Investigation, Criminal Justice respondents that submit monthly for a posting of notices of misfired holes and Information Services (CJIS) Division, total of 213,588 responses with an the use of nonpermissible explosives Module E–3, 1000 Custer Hollow Road, estimated response time of 7 minutes and shot-firing units in shaft and slope Clarksburg, West Virginia 26306; per response. facsimile (304) 625–3566. construction pertaining to the coal Written comments and suggestions (6) An estimate of the total public mining industry. from the public and affected agencies burden (in hours) associated with this DATES: Submit comments on or before concerning the proposed collection of collection: There are approximately March 30, 2010. information are encouraged. Comments 24,919 hours, annual burden, associated ADDRESSES: Send comments to U.S. should address one or more of the with this information collection. Department of Labor, Mine Safety and following four points: If additional information is required Health Administration, John Rowlett, (1) Evaluate whether the proposed contact: Ms. Lynn Bryant, Department Management Services Division, 1100 collection of information is necessary Clearance Officer, Policy and Planning Wilson Boulevard, Room 2134, for the proper performance of the Staff, Justice Management Division, Arlington, VA 22209–3939. Commenters functions of the agency, including United States Department of Justice, are encouraged to send their comments whether the information will have Patrick Henry Building, Suite 1600, 601 via e-mail to [email protected]. Mr. practical utility; D Street, NW., Washington, DC 20530. Rowlett can be reached at (202) 693–

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9827 (voice), or (202) 693–9801 MSHA home page (http:// Dated at Arlington, Virginia, this 22nd day (facsimile). www.msha.gov/) and selecting ‘‘Rules & of January, 2010. John Rowlett, FOR FURTHER INFORMATION CONTACT: The Regs’’, and then selecting ‘‘FedReg. employee listed in the ADDRESSES Docs’’. On the next screen, select Director, Management Services Division. section of this notice. ‘‘Paperwork Reduction Act Supporting [FR Doc. 2010–1806 Filed 1–28–10; 8:45 am] Statement’’ to view documents BILLING CODE 4510–43–P SUPPLEMENTARY INFORMATION: supporting the Federal Register Notice. I. Background III. Current Actions Under Section 313 of the Federal MILLENNIUM CHALLENGE Mine Safety and Health Act of 1977 Title 30, CFR 75.1321, 75.1327 and CORPORATION (Mine Act), 30 U.S.C. 873, a mine 77.1909–1 provide MSHA District [MCC FR 10–04] operator is required to use permissible Managers with the authority to address explosives in underground coal mines. unusual but recurring blasting practices Notice of Entering Into a Compact With The Mine Act also provides that under needed for breaking rock types more the Republic of Moldova safeguards prescribed by the Secretary resilient than coal and for misfires in AGENCY: of Labor, a mine operator may permit blasting coal. MSHA uses the Millennium Challenge the firing of more than 20 shots and the information requested to issue permits Corporation. use of nonpermissible explosives in to mine operators or shaft and slope ACTION: Notice. sinking shafts and slopes from the contractors for the use of SUMMARY: In accordance with Section surface in rock. Title 30, CFR 75.1321 nonpermissible explosives and/or shot- outlines the procedures by which a 610(b)(2) of the Millennium Challenge firing units under 30 CFR part 77, Act of 2003 (Pub. L. 108–199, Division permit may be issued for the firing of subpart T—Slope and Shaft Sinking. more than 20 boreholes and/or the use D), the Millennium Challenge Similar permits are issued by MSHA to Corporation (MCC) is publishing a of nonpermissible shot-firing units in underground coal mine operators for underground coal mines. In those summary and the complete text of the shooting more than 20 bore holes and/ Millennium Challenge Compact instances in which there is a misfire of or for the use of nonpermissible shot- explosives, 30 CFR 75.1327 requires that between the United States of America, firing units when requested under 30 acting through the Millennium a qualified person post each accessible CFR part 75, subpart N—Explosives and entrance to the affected area with a Challenge Corporation, and the Blasting. The approved permits allow Republic of Moldova. Representatives of warning to prohibit entry. Title 30 CFR the use of specific equipment and 77.1909–1 outlines the procedures by the United States Government and the explosives in limited applications and Republic of Moldova executed the which a coal mine operator may apply under exceptional circumstances where for a permit to use nonpermissible Compact documents on January 22, standard coal blasting techniques or 2010. explosives and/or shot-firing units in equipment is inadequate to the task. Dated: January 26, 2010. the blasting of rock while sinking shafts These permits inform mine management or slopes for underground coal mines. and the miners of the steps to be Henry Pitney, II. Desired Focus of Comments employed to protect the safety of any Acting General Counsel, Millennium person exposed to such blasting while Challenge Corporation. MSHA is particularly interested in using nonpermissible items. Also, the comments that: Summary of Millennium Challenge • Evaluate whether the proposed posting of danger/warning signs at Compact With the Republic of Moldova collection of information is necessary entrances to locations where a misfired The five-year Millennium Challenge for the proper performance of the blast hole or round remains indisposed Compact with the Republic of Moldova functions of the agency, including is a safety precaution predating the Coal (‘‘Compact’’) will provide up to $262 whether the information will have Mine Safety and Health Act. million to reduce poverty and accelerate practical utility; Type of Review: Extension. economic growth. The Compact is • Evaluate the accuracy of the Agency: Mine Safety and Health intended to improve agricultural agency’s estimate of the burden of the Administration. productivity and to expand access to proposed collection of information, markets and services through including the validity of the Title: Application for a Permit to Fire investments in critical infrastructure in methodology and assumptions used; More than 20 Boreholes for the use of the irrigation and road sectors, and • Enhance the quality, utility, and Nonpermissible Blasting Units, through capacity-building in the high clarity of the information to be Explosives, and Shot-firing Units. value agriculture sector (‘‘Program’’). collected; and OMB Number: 1219–0025. • Minimize the burden of the Transition to High Value Agriculture Affected Public: Business or other for- Project ($101.77 Million) collection of information on those who profit. are to respond, including through the The Transition to High Value use of appropriate automated, Respondents: 68. Agriculture Project (‘‘THVA Project’’) electronic, mechanical, or other Responses: 101. seeks to (i) increase rural incomes by technological collection techniques or Total Burden Hours: 79. stimulating growth in high value other forms of information technology, agriculture (‘‘HVA’’) and (ii) act as a e.g., permitting electronic submissions Total Burden Cost: $427. catalyst for future investment in HVA of responses. Comments submitted in response to production by establishing a successful A copy of the proposed information this notice will be summarized and/or model that contributes to a conducive collection request can be obtained by included in the request for Office of institutional and policy environment for contacting the employee listed in the Management and Budget approval of the irrigated agriculture. Agriculture has ADDRESSES section of this notice, or information collection request; they will been the backbone of the Moldovan viewed on the Internet by accessing the also become a matter of public record. economy, though, following the collapse

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of the Soviet Union, Moldova lost its national economy resulting from the of enterprise farms within the command position as a key exporter of fresh deteriorated road conditions; and (iii) areas where MCC will rehabilitate the produce, and its extensive irrigation reduce the number of road accidents irrigation systems, as well as producers systems and post-harvest cold chain fell through improved traffic conditions. and intermediaries investing in and into disrepair. Today, the country’s Specifically, the project will support the working in the HVA sector. The agricultural sector suffers from poor rehabilitation of the M2 road, which is economic analyses indicate an water service, production of low-value part of an arterial highway connecting economic rate of return of crops, low water-tariff revenue, and Chisinau, the Moldovan capital, to the approximately 12.7 percent. underinvestment in maintenance of the Ukrainian border and beyond to Kyiv, The Road Rehabilitation Project is irrigation system, all of which the Ukrainian capital. This route serves expected to benefit approximately contribute to high rates of rural poverty. as a significant link between Moldova 78,000 households (or approximately However, with its fertile soils, relatively and Ukraine for private, passenger, and 302,000 beneficiaries) over the next 20 long growing season, and proximity to commercial traffic, and has been years, with an economic rate of return both European Union and former Soviet prioritized by the government of of approximately 19 percent. markets, Moldova has many of the Moldova in its National Development Beneficiaries include users and owners necessary conditions to regain Strategy and Land Transport of motorized vehicles utilizing the road competitiveness in HVA. The THVA Infrastructure Strategy with the long- including local agricultural and other Project supports the government of term goal to provide an efficient producers and buyers, providers and Moldova’s national strategy to increase transport system that facilitates users of passenger transport services, land under irrigation and to upgrade the opportunities for trade in domestic and and noncommercial owners of private cold chain to facilitate the transition to international markets and the mobility motorized transport. HVA. The set of four reinforcing and of its citizens. The existing M2 segment integrated activities include: is a paved two-lane road that is Millennium Challenge Compact • Centralized Irrigation System extremely deteriorated. Compact Between the United States of America Rehabilitation: Rehabilitation of up to funding will support the rehabilitation Acting Through the Millennium 11 large irrigation systems servicing an of 93 kilometers, beginning at the city of Challenge Corporation and the area of approximately 15,500 hectares Sarateni at the southern end, passing Republic of Moldova located along the Prut and Nistru rivers near the city of Soroca, and ending at Table of Contents that will provide reliable water needed the junction with the R7 road west to Article 1. Goal and Objectives for HVA crops, as well as improve food Drochia at the northern end; Section 1.1 Compact Goal security through enhanced grain construction (or reconstruction) or Section 1.2 Program Objective production. associated structures such as bridges Section 1.3 Project Objectives • Irrigation Sector Reform: Provision and culverts; and improvement in road Article 2. Funding and Resources of technical assistance and capacity- safety along the rehabilitated corridor. Section 2.1 Program Funding building to: (i) Support the In addition, the Compact will fund a Section 2.2 Compact Implementation establishment of water user associations feasibility study, environmental and Funding able to manage and operate the Section 2.3 MCC Funding social impact assessment, detailed Section 2.4 Disbursement rehabilitated irrigation systems and the design work, and a resettlement action Section 2.5 Interest legal transfer of responsibilities for plan for the road segment continuing on Section 2.6 Government Resources; operations and maintenance of repaired to the Ukrainian border at the town of Budget irrigation systems to water user Otaci. These studies can be used by the Section 2.7 Limitations of the Use of MCC associations; (ii) improve water resource government of Moldova to seek funding Funding management by the government, from other donors, or to plan Section 2.8 Taxes including the establishment of a modem investments with its own resources. Article 3. Implementation water-rights system; and (iii) ensure the Section 3.1 Program Implementation Administration Agreement legal and institutional framework Section 3.2 Government Responsibilities needed for irrigation sector The Compact also includes program Section 3.3 Policy Performance sustainability and further private and management and oversight costs Section 3.4 Government Assurances donor investment. estimated at $23.85 million over a five- Section 3.5 Implementation Letters • Access to Agricultural Finance: year time frame, including the costs of Section 3.6 Procurement Establishment of financing facilities that administration, management, auditing, Section 3.7 Records; Accounting; Covered will support HVA-related investment by fiscal and procurement agent services Providers; Access farmers and rural entrepreneurs. and environmental and social oversight. Section 3.8 Audits; Reviews • Growing HVA Sales: Provision of In addition, the cost of monitoring and Article 4. Communications Section 4.1 Communications technical assistance to farmers and rural evaluation of the Compact is budgeted Section 4.2 Representatives entrepreneurs to better access HVA at approximately $3.54 million. Section 4.3 Signatures markets and support the shift to HVA at Intended Beneficiaries and Expected Article 5. Termination; Suspension; Refunds the production and post-harvest level, Results Section 5.1 Termination; Suspension in an activity undertaken jointly with, Section 5.2 Refunds; Violation and administered by, the United States The THVA Project is expected to Section 5.3 Survival Agency for International Development. benefit approximately 32,000 Article 6. Compact Annexes; Amendments; households (or approximately 124,000 Governing Law Road Rehabilitation Project ($132.84 individuals), with an average total Section 6.1 Annexes Million) benefit over 20 years equal to 170 Section 6.2 Amendments Section 6.3 Inconsistencies The Road Rehabilitation Project seeks percent of the beneficiaries’ current Section 6.4 Governing Law to (i) increase the income of the local annual income. Beneficiaries include Section 6.5 Additional Instruments population through reduced cost of owners or shareholders of farming Section 6.6 References to MCC Web Site transport and reduced costs of goods enterprises; farmers or owners of land; Section 6.7 References to Laws, and services; (ii) reduce losses to the and laborers employed in the operation Regulations, Policies and Guidelines

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Section 6.8 MCC Status Section 1.2 Program Objective expenses, such as office equipment, Section 6.9 Counterparts; Electronic computers and other information Delivery The objective of the Program is to increase incomes through increased technology or capital equipment; and Section 6.10 Counterparts; Electronic other Compact implementation Delivery agricultural productivity and expanded Article 7. Entry Into Force access to markets and services through activities approved by MCC. Section 7.1 Domestic Requirements improved roads (as further described in The allocation of Compact Section 7.2 Conditions Precedent to Entry Annex I, the ‘‘Program Objective’’). Implementation Funding is generally into Force described in Annex II to this Compact. Section 7.3 Date of Entry into Force Section 1.3 Project Objectives (b) In accordance with Section 7.5 of Section 7.4 Compact Term The objectives of the Projects (as this Compact, this Section 2.2 and other Section 7.5 Provisional Application further described in Annex I) (each a provisions of this Compact necessary to Annex I: Program Description ‘‘Project Objective’’ and collectively, the make use of Compact Implementation Annex II: Multi-Year Financial Plan Funding for the purposes set forth Summary ‘‘Project Objectives’’) are as follows: (a) The objectives of the Transition to herein, will be effective, for purposes of Annex III: Description of the Monitoring and Compact Implementation Funding only, Evaluation Plan High Value Agriculture Project (as Annex IV: Conditions to Disbursement of defined in Annex I) are to: (i) Increase as of the date this Compact is signed by Compact Implementation Funding rural incomes by stimulating growth in MCC and the Government. Annex V: Definitions irrigated high value agriculture; and (ii) (c) Each Disbursement of Compact Annex VI: Specific Tax Exemption catalyze future investments in high Implementation Funding is subject to Mechanisms value agriculture by establishing a satisfaction of the conditions to such Schedule A—Value Added Tax (VAT) successful and sustainable model of disbursement as set forth in Annex IV. Schedule B—Customs Duties (d) If, after the first anniversary of this irrigation system and water resource Schedule C—Corporate Income Tax Compact entering into force, MCC management and a conducive Schedule D—Individual Income Tax determines that the full amount of institutional and policy environment for Schedule E—Taxation of Petroleum Compact Implementation Funding Products irrigated agriculture. Schedule F—Temporary Admission of (b) The objectives of the Road under Section 2.2(a) of this Compact Equipment, Vehicles, and Household Rehabilitation Project (as defined in exceeds the amount which reasonably Goods Annex I) are to: (i) Increase incomes of can be utilized for the purposes and Schedule G—Excise Duty the local population by reducing the uses set forth in Section 2.2(a) of this Schedule H—Customs Procedure Tax cost of transport, goods and services; (ii) Compact, MCC, by written notice to the Schedule I—Other Taxes reduce losses to the national economy Government, may withdraw the excess amount, thereby reducing the amount of Millennium Challenge Compact resulting from deteriorated road conditions; and (iii) reduce the number the Compact Implementation Funding Preamble of road accidents through improved as set forth in Section 2.2(a) (such excess, the ‘‘Excess CIF Amount’’). In This Millennium Challenge Compact traffic conditions. such event, the amount of Compact (this ‘‘Compact’’) is between the United Article 2. Funding and Resources Implementation Funding granted to the States of America, acting through the Government under Section 2.2(a) will be Millennium Challenge Corporation, a Section 2.1 Program Funding reduced by the Excess CIF Amount, and United States government corporation Upon entry into force of this Compact, MCC will have no further obligations (‘‘MCC’’), and the Republic of Moldova MCC will grant to the Government, with respect to such Excess CIF (‘‘Moldova’’), acting through its under the terms of this Compact, an Amount. government (the ‘‘Government’’). amount not to exceed Two Hundred and (e) MCC, at its option by written MCC and the Government are Fifty-Four Million United States Dollars notice to the Government, may elect to individually referred to in this Compact (US$254,000,000) to support the grant to the Government an amount as a ‘‘Party’’ and together, as the Program (‘‘Program Funding’’). The equal to all or a portion of such Excess ‘‘Parties.’’ Capitalized terms used in this allocation of Program Funding is CIF Amount as an increase in the Compact will have the meanings generally described in Annex II to this Program Funding, and such additional specified in Annex V hereto. Compact. Recalling that the Government Program Funding will be subject to the consulted with the private sector and Section 2.2 Compact Implementation terms and conditions of this Compact civil society of Moldova to determine Funding and any relevant supplemental the priorities for the use of Millennium agreement applicable to Program (a) Upon signature of this Compact, Funding. Challenge Account assistance and MCC hereby grants to the Government, developed and submitted to MCC a under the terms of this Compact, in Section 2.3 MCC Funding proposal for such assistance to achieve addition to the Program Funding Program Funding and Compact lasting economic growth and poverty described in Section 2.1, an amount not Implementation Funding are reduction; and to exceed Eight Million United States collectively referred to in this Compact Recognizing that MCC wishes to help Dollars (US$8,000,000) (‘‘Compact as ‘‘MCC Funding.’’ Moldova implement a program to Implementation Funding’’) under achieve the goal and objectives Section 609(g) of the Millennium Section 2.4 Disbursement described herein (the ‘‘Program’’). Challenge Act of 2003, as amended (the In accordance with this Compact and The Parties agree as follows: ‘‘MCA Act’’), for use by the Government the Program Implementation Article 1. Goal and Objectives as agreed by the Parties, which may Agreement, MCC will disburse MCC include use for the following purposes: Funding for expenditures incurred in Section 1.1 Compact Goal (i) Financial management and furtherance of the Program (each The goal of this Compact is to reduce procurement activities; and instance, a ‘‘Disbursement’’). Subject to poverty through economic growth in (ii) Start-up activities, including staff the satisfaction of all applicable Moldova (the ‘‘Compact Goal’’). salaries and administrative support conditions, the proceeds of such

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Disbursements will be made available to www.mcc.gov (the ‘‘MCC Web site’’), credit), profit and income taxes, the Government, at MCC’s sole election, including, but not limited to, the property and ad valorem taxes, import by (a) deposit to one or more bank following purposes: and export duties and taxes (including accounts established by the Government (a) For assistance to, or training of, the for goods imported and re-exported for through MCA-Moldova and acceptable military, police, militia, national guard personal use), withholding taxes, to MCC (each, a ‘‘Permitted Account’’) or or other quasi-military organization or payroll taxes, social security and (b) direct payment to the relevant unit; mandatory medical insurance provider of goods, works or services for (b) For any activity that is likely to contributions, road taxes and various the implementation of the Program. cause a substantial loss of United States applicable local taxes (such as, but not MCC Funding may be expended only to jobs or a substantial displacement of limited to, taxes on real estate property, fund Program expenditures as provided United States production; taxes on territorial improvement, and in this Compact and the Program (c) To undertake, fund or otherwise taxes on placement of advertisements in Implementation Agreement. support any activity that is likely to public places). cause a significant environmental, (b) Without limiting the generality of Section 2.5 Interest health, or safety hazard, as further the definition of Taxes as set forth in Except as otherwise agreed by MCC, described in MCC’s environmental and Section 2.8(a), the Parties hereby agree the Government will transfer to MCC social guidelines posted from time to that the following taxes, duties, levies, any interest or other earnings that time on the MCC Web site or otherwise contributions, and similar charges are accrue on MCC Funding (whether by made available to the Government by specifically included in the definition of directing such payments to a bank MCC (the ‘‘MCC Environmental ‘‘Taxes’’ requiring exemptions in account outside Moldova that MCC may Guidelines’’); or accordance with this Compact: (i) from time to time indicate or as (d) To pay for the performance of Customs duties and associated fees; (ii) otherwise directed by MCC). abortions as a method of family value added taxes (‘‘VAT’’); (iii) planning or to motivate or coerce any registration and stamp taxes; (iv) taxes Section 2.6 Government Resources; person to practice abortions, to pay for on the corporate incomes of Budget the performance of involuntary professional, accounting or consulting (a) The Government will provide all sterilizations as a method of family firms derived from Compact-related funds and other resources, and will take planning or to coerce or provide any work; (v) taxes on the corporate income all actions, that are necessary to carry financial incentive to any person to of companies or other legal persons out the Government’s responsibilities undergo sterilizations or to pay for any derived from Compact-related work; (vi) and obligations under this Compact. biomedical research which relates, in taxes on the personal income of (b) The Government will provide whole or in part, to methods of, or the individuals working under the Compact; suitable and adequate office space for performance of, abortions or involuntary (vii) taxes on temporary admissions of MCA-Moldova and the MCC resident sterilization as a means of family Compact-related goods and personal country mission. planning. household goods; (viii) excise duties; (c) The Government will use its best Section 2.8 Taxes (ix) customs procedure taxes; (x) road efforts to ensure that all MCC Funding taxes; and (xi) real estate taxes and other it receives or is projected to receive in (a) Unless the Parties otherwise local taxes. With respect to VAT and each of its fiscal years is fully accounted specifically agree in writing, and subject excise taxes on petroleum products, for in its annual budget on a multi-year to the provisions of Sections 2.8(b) and these will be addressed by way of a basis. 2.8(c), the Government will ensure that reimbursement, as set forth in Schedule (d) The Government will not reduce each of the following is free from the E of Annex VI. the normal and expected resources that payment or imposition of any existing (c) Unless otherwise agreed by MCC it would otherwise receive or budget or future taxes, duties, levies, in writing, set forth in Annex VI are from sources other than MCC for the contributions, or other similar charges procedures that the Government will activities contemplated under this (‘‘Taxes’’) of or in Moldova (including implement to effectuate the exemption Compact and the Program. any such Taxes imposed by a national, from Taxes required by Section 2.8(a) (e) Unless the Government discloses regional, local, or other governmental or and Section 2.8(b) above with respect to otherwise to MCC in writing, MCC taxing authority of or in Moldova) (i) each of the Taxes addressed therein. To Funding will be in addition to the The Program; (ii) MCC Funding; (iii) the extent that there are Taxes not resources that the Government would interest or earnings on MCC Funding; addressed in Annex VI, whether otherwise receive or budget for the (iv) any Project or activity implemented currently in force or established in the activities contemplated under this under or in connection with the future, that MCC determines, in its sole Compact and the Program. Program; (v) MCA-Moldova; (vi) goods discretion, are not being exempted by and other property, works, services, the Government in accordance with this Section 2.7 Limitations on the Use of technology, and other assets and Section 2.8, the Government hereby MCC Funding activities, whether acquired, used or agrees that it will implement The Government will ensure that performed at any level or stage, under appropriate procedures (approved in MCC Funding (or any refunds or or in connection with the Program or writing by MCC) to ensure that such reimbursements of MCC Funding paid any Project; (vii) persons and entities additional Taxes are exempted in by the Government in accordance with that provide such goods and other accordance with this Section 2.8. For this Compact that MCC permits to be property, works, services, technology, the avoidance of doubt, the used in connection with the Program) and assets, or perform such activities; identification (or lack of identification) will not be used for any purpose that and (viii) income, profits, and payments of Taxes in Annex VI, or the description would violate United States law or with respect thereto. The Parties (or lack of description) of procedures to policy, as specified in this Compact or acknowledge and agree that ‘‘Taxes’’ implement the required exemption from as further notified to the Government in include, among other things, value such Taxes in Annex VI, will in no way writing or by posting from time to time added and other transfer taxes limit the scope of the tax exemption on the MCC Web site at http:// (including exemption therefrom with required by Section 2.8.

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(d) Unless otherwise agreed in writing other actions as may be necessary or established through passage of a decree by the Parties, the exemption from appropriate in the determination of (the ‘‘Establishment Decree’’), as the Taxes set forth in Section 2.8(a) and MCC in order to implement this Section accountable entity to implement the 2.8(b) will not apply to income Taxes 2.8. Program and to exercise and perform the on, and contributions to, social (h) If a Tax has been levied and paid Government’s rights and responsibilities insurance contributions and mandatory contrary to the requirements of this with respect to the oversight, insurance charges for medical Section 2.8, or any supplemental management, and implementation of the assistance, with respect to legal persons agreement entered into pursuant to this Program, including, without limitation, or natural persons who are nationals of Section 2.8, the Government will refund managing the implementation of Moldova, provided that such Taxes and promptly to MCC (or to another party as Projects and their Activities, allocating contributions are not discriminatory and designated by MCC) the amount of such resources, and managing procurements. are generally applicable to all nationals Tax in United States Dollars or the Such entity will be referred to herein as in Moldova. currency of Moldova within thirty (30) ‘‘MCA-Moldova,’’ and will have the (e) In complying with the tax days (or such other period as may be authority to bind the Government with exemption obligations set forth herein, agreed in writing by the Parties) after regard to all Program Activities. The the Government will exempt MCA- the Government is notified in writing Establishment Decree will be in form Moldova, the Fiscal Agent, the (whether by MCC or MCA-Moldova) and substance satisfactory to MCC. For Procurement Agent, and/or any other that such Tax has been paid. the avoidance of doubt, the designation provider of goods, services, or works in (i) No MCC Funding, proceeds of MCA-Moldova as set forth in this connection with the Program from any thereof, or Program Assets may be Section 3.2(b) will not relieve the obligation imposed by the laws of applied by the Government in Government of any of its obligations or Moldova to withhold any Taxes from satisfaction of its obligations under this responsibilities as set forth hereunder, any payments made to any natural Section 2.8. under any related agreement (including, persons or legal persons working under (j) The mechanism for application of upon execution thereof, the PIA), or the Program to the extent that such legal the tax exemption described in this under the Program Guidelines, for persons or natural persons are not Section 2.8 and Annex VI will be which the Government remains fully nationals of Moldova. provided in a Government decision to responsible. MCC hereby acknowledges (f) For the purposes of Section 2.8(d), be enacted after ratification of this and consents to the designation in this Section 2.8(e) and Annex VI, the term Compact. Section 3.2(b). ‘‘national’’ means natural persons who (k) Notwithstanding the provisions of (c) The Government will ensure that are citizens of Moldova or natural this Section 2.8 and Annex VI, with no law or regulation in Moldova now or persons who hold a Moldovan respect to all funding associated with hereinafter in effect makes or will make permanent residence certificate and the Activities which USAID intends to unlawful or otherwise prevent or hinder legal persons formed under the laws of administer, the treatment of Taxes, other the performance of any of the fees and any other fiscal obligations to Moldova (excluding (i) MCA-Moldova, Government’s obligations under this the Government will be in compliance and (ii) any foreign legal person, Compact, the PIA, or any other related with the terms and conditions as including any Moldovan-registered agreement or any transaction stipulated and agreed to in the subsidiary, branch, representative office contemplated hereby or thereby. ‘‘ or other permanent establishment of a Agreement between the Government of (d) The Government will ensure that foreign legal person, with respect to the United States of America and the any assets or services funded in whole income earned for providing services, Government of Moldova Regarding or in part (directly or indirectly) by goods or works in connection with this Cooperation to Facilitate the Provision MCC Funding are used solely in of Assistance,’’ which entered into force Compact); provided that in determining furtherance of this Compact and the on March 21, 1994, as may be amended if a legal person has been formed under Program unless otherwise agreed by from time to time. the laws of Moldova, the taxable status MCC in writing. of such legal person will be based on its Article 3. Implementation (e) The Government will take all status at the time it is awarded or signs necessary or appropriate steps to a Compact-related agreement or Section 3.1 Program Implementation achieve the Program Objective and the contract, and such initial determination Agreement Project Objectives during the Compact will not change regardless of: (1) The Prior to entry into force of this Term. type of agreement or contract used to Compact, the Government and MCC will (f) The Government will fully comply employ or engage such company or enter into an agreement relating to, with the Program Guidelines, as other legal person; (2) any laws of among other matters, implementation applicable, in its implementation of the Moldova that purport to change such arrangements, fiscal accountability and Program. status based on period of contract disbursement, and use of MCC Funding performance or period of time residing (the ‘‘Program Implementation Section 3.3 Policy Performance and/or working in Moldova; and/or (3) Agreement’’ or ‘‘PIA’’). The Government In addition to undertaking the specific any requirement under the laws of will implement the Program in policy, legal, and regulatory reform Moldova that a company or other legal accordance with the Compact and the commitments identified in Annex I (if person must establish a branch office in PIA. any), the Government will seek to Moldova, or otherwise register or maintain and to improve its level of organize itself under the laws of Section 3.2 Government performance under the policy criteria Moldova, in order to provide goods, Responsibilities identified in Section 607 of the MCA services, or works in Moldova. (a) The Government has principal Act, and the selection criteria and (g) The Government will from time to responsibility for overseeing and methodology used by MCC. time sign and deliver, or cause to be managing the implementation of the signed and delivered, such other Program. Section 3.4 Government Assurances instructions, instruments or documents, (b) The Government hereby designates The Government assures MCC that, as and to take or cause to be taken such MCA-Moldova, an entity to be of the date this Compact is signed by the

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Government, the information provided evidence relating to the Program Accountability Office, any auditor to MCC by or on behalf of the adequate to show, to MCC’s satisfaction, responsible for an audit contemplated Government in the course of reaching the use of all MCC Funding (‘‘Compact herein or otherwise conducted in agreement with MCC on this Compact is Records’’). In addition, the Government furtherance of this Compact, and any true, correct and complete in all will furnish or cause to be furnished to agents or representatives engaged by material respects. MCC, upon its request, all such MCC or the Government to conduct any Compact Records. assessment, review, or evaluation of the Section 3.5 Implementation Letters (b) Accounting. The Government will Program, the opportunity to audit, From time to time, MCC may provide maintain, and will use its best efforts to review, evaluate, or inspect facilities guidance to the Government in writing ensure that all Covered Providers and activities funded in whole or in part on any matters relating to this Compact, maintain, Compact Records in by MCC Funding. MCC Funding, or implementation of the accordance with generally accepted Program (each, an ‘‘Implementation accounting principles prevailing in the Section 3.8 Audits; Reviews Letter’’). The Government will apply United States, or at the Government’s (a) Government Audits. Except as the such guidance in implementing the option and with MCC’s prior written Parties may otherwise agree in writing, Program. Without limiting the foregoing, approval, other accounting principles, the Government will, on at least a semi- either Party may, through its Principal such as those (i) prescribed by the annual basis, conduct, or cause to be Representative or any Additional International Accounting Standards conducted, financial audits of all Representative, as the case may be, Board, or (ii) then prevailing in disbursements of MCC Funding initiate discussions that may result in a Moldova. Compact Records must be covering the period from signing of this jointly agreed-upon Implementation maintained for at least five (5) years Compact until the earlier of the Letter to confirm and record their after the end of the Compact Term or for following December 31 or June 30 and mutual understanding on aspects such longer period, if any, required to covering each six-month period related to the implementation of this resolve any litigation, claims or audit thereafter ending December 31 and June Compact, the PIA, or other related findings or any statutory requirements. 30, through the end of the Compact agreements. (c) Providers and Covered Providers. Term. In addition, upon MCC’s request, Unless the Parties agree otherwise in the Government will ensure that such Section 3.6 Procurement writing, a ‘‘Provider’’ is (i) any entity of audits are conducted by an independent The Government will ensure that the the Government that receives or uses auditor approved by MCC and named procurement of all goods, works, and MCC Funding or any other Program on the list of local auditors approved by services by the Government, or any Asset in carrying out activities in the Inspector General of MCC (the applicable provider providing goods, furtherance of this Compact, or (ii) any ‘‘Inspector General’’) or a United States– works, and services, to implement the third party that receives at least Fifty based certified public accounting firm Program will be consistent with the Thousand United Stated Dollars selected in accordance with the program procurement guidelines posted (US$50,000) in the aggregate of MCC ‘‘Guidelines for Financial Audits from time to time on the MCC Web site Funding (other than as salary or Contracted by MCA’’ (the ‘‘Audit (the ‘‘MCC Program Procurement compensation as an employee of an Guidelines’’) issued and revised from Guidelines’’). The MCC Program entity of the Government) during the time to time by the Inspector General, Procurement Guidelines include, among Compact Term. A ‘‘Covered Provider’’ is which are posted on the MCC Web site. others, the following requirements: (1) a non-United States Provider that Audits will be performed in accordance (a) Open, fair, and competitive receives (other than pursuant to a direct with the Audit Guidelines and be procedures must be used in a contract or agreement with MCC) Three subject to quality assurance oversight by transparent manner to solicit, award and Hundred Thousand United States the Inspector General. Each audit must administer contracts and to procure Dollars (US$300,000) or more of MCC be completed and the audit report goods, works, and services; Funding in any Government fiscal year delivered to MCC no later than ninety (b) Solicitations for goods, works, and or any other non-United States person (90) days after the first period to be services must be based upon a clear and or entity that receives, directly or audited and no later than ninety (90) accurate description of the goods, indirectly, Three Hundred Thousand days after each June 30 and December works, and services to be acquired; United States Dollars (US$300,000) or 31 thereafter, or such other period as the (c) Contracts must be awarded only to more of MCC Funding from any Parties may otherwise agree in writing. qualified contractors that have the Provider in such fiscal year, or (2) any (b) Audits of United States Entities. capability and willingness to perform United States Provider that receives The Government will ensure that the contracts in accordance with their (other than pursuant to a direct contract agreements between the Government or terms on a cost effective and timely or agreement with MCC) Five Hundred any Provider, on the one hand, and a basis; and Thousand United States Dollars United States nonprofit organization, on (d) No more than a commercially (US$500,000) or more of MCC Funding the other hand, that are financed with reasonable price, as determined, for in any Government fiscal year or any MCC Funding state that the United example, by a comparison of price other United States person or entity that States nonprofit organization is subject quotations and market prices, will be receives, directly or indirectly, Five to the applicable audit requirements paid to procure goods, works, and Hundred Thousand United States contained in OMB Circular A–133 services. Dollars (US$500,000) or more of MCC issued by the United States Government Funding from any Provider in such Office of Management and Budget Section 3.7 Records; Accounting; fiscal year. (‘‘OMB’’). The Government will ensure Covered Providers; Access (d) Access. Upon MCC’s request, the that agreements between the (a) Government Books and Records. Government, at all reasonable times, Government or any Provider, on the one The Government will maintain, and will will permit, or cause to be permitted, hand, and a United States for-profit use its best efforts to ensure that all authorized representatives of MCC, an Covered Provider, on the other hand, Covered Providers maintain, accounting authorized Inspector General, the that are financed with MCC Funding books, records, documents, and other United States Government state that the United States for-profit

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organization is subject to audit by the acting as, Vice President, Compact (iv) The Government or any other applicable United States Government Implementation (each of the foregoing, a person or entity receiving MCC Funding agency, unless the Government and ‘‘Principal Representative’’). Each Party, or using assets acquired in whole or in MCC agree otherwise in writing. by written notice to the other Party, may part with MCC Funding is engaged in (c) Corrective Actions. The designate one or more additional activities that are contrary to the Government will (i) use its best efforts representatives (each, an ‘‘Additional national security interests of the United to ensure that Covered Providers take, Representative’’) for all purposes other States; where necessary, appropriate and timely than signing amendments to this (v) An act has been committed or an corrective actions in response to audits, Compact. The Government hereby omission or an event has occurred that (ii) consider whether the results of a irrevocably designates the Executive would render Moldova ineligible to Covered Provider’s audit necessitates Director of MCA-Moldova as an receive United States economic adjustment of the Government’s records, Additional Representative. A Party may assistance under Part I of the Foreign and (iii) require each such Covered change its Principal Representative to a Assistance Act of 1961, as amended (22 Provider to permit independent auditors new representative that holds a position U.S.C. 2151 et seq.), by reason of the to have access to its records and of equal or higher rank upon written application of any provision of the financial statements as necessary. notice to the other Party. Foreign Assistance Act of 1961 or any (d) Audit by MCC. MCC will have the other provision of law; right to arrange for audits of the Section 4.3 Signatures (vi) Moldova is classified as a Tier 3 Government’s use of MCC Funding. With respect to all documents other country in the United States Department (e) Cost of Audits, Reviews or than this Compact or an amendment to of State’s annual Trafficking in Persons Evaluations. MCC Funding may be used this Compact, a signature delivered by Report; to fund the costs of any audits, reviews, facsimile or electronic mail will be (vii) The Government has engaged in or evaluations required under this binding on the Party delivering such a pattern of actions inconsistent with Compact. signature to the same extent as an the criteria used to determine the original signature would be. eligibility of Moldova for assistance Article 4. Communications under the MCA Act; or Section 4.1 Communications Article 5. Termination; Suspension; (viii) The Government or another Refunds person or entity receiving MCC Funding Any document or communication Section 5.1 Termination; Suspension or using assets acquired in whole or in required or submitted by either Party to part with MCC Funding is found to have the other under this Compact must be in (a) Either Party may terminate this been convicted of a narcotics offense or writing and, except as otherwise agreed Compact without cause in whole by to have been engaged in drug trafficking. with MCC, in English. For this purpose, giving the other Party thirty (30) days (c) All Disbursements will cease upon the address of each Party is set forth written notice. MCC may also terminate expiration, suspension, or termination below. this Compact without cause in part by of this Compact; provided, however, To MCC giving the Government thirty (30) days MCC may permit MCC Funding to be written notice. used, in compliance with this Compact Millennium Challenge Corporation, (b) MCC may, immediately, upon and the PIA, to pay for (i) expenditures Attention: Vice President, Compact written notice to the Government, for goods, works, or services that are Implementation, (in each case, with a suspend or terminate this Compact or properly incurred under or in copy to the Vice President and General MCC Funding, in whole or in part, and furtherance of the Program before Counsel), 875 Fifteenth Street, NW., any obligation related thereto, if MCC expiration, suspension, or termination Washington, DC 20005, United States of determines that any circumstance of this Compact, and (ii) reasonable America, Facsimile: (202) 521–3700, identified by MCC as a basis for expenditures (including administrative Telephone: (202) 521–3600, E-mail: suspension or termination (whether in expenses) properly incurred in [email protected] (Vice writing to the Government or by posting connection with the winding up of the President, Compact Implementation), on the MCC Web site) has occurred, Program within one hundred twenty [email protected] (Vice which circumstances include, but are (120) days after the expiration, President and General Counsel) not limited, to the following: suspension, or termination of this To the Government (i) The Government fails to comply Compact, so long as, with respect to (i) State Chancellery, Attention: Minister with its obligations under this Compact, and (ii) herein, the request for such of State, 1, Piata Marii Adunari the PIA, or any other agreement or expenditures is submitted within ninety Nationale, Chisinau MD–2033, Republic arrangement entered into by the (90) days after such expiration, of Moldova, Facsimile: (373) 22 242 696, Government in connection with this suspension, or termination. Telephone: (373) 22 250 104, E-mail: Compact or the Program; (d) Subject to Section 5.1(c), upon the [email protected]. (ii) An event or series of events has expiration, suspension, or termination occurred that MCC determines makes it of this Compact, (i) any amounts of MCC With a Copy to MCA-Moldova probable that the Program Objective or Funding not disbursed by MCC in Upon establishment of MCA- any of the Project Objectives will not be accordance with the Compact and the Moldova, MCA-Moldova will notify the achieved during the Compact Term or PIA will be automatically released from Parties of its contact details. that the Government will not be able to any obligation in connection with this perform its obligations under this Compact, and (ii) any amounts of MCC Section 4.2 Representatives Compact; Funding disbursed to the Permitted For all purposes of this Compact, the (iii) A use of MCC Funding or Account by MCC but not expended Government will be represented by the continued implementation of this before the expiration, suspension or individual holding the position of, or Compact or the Program violates termination of this Compact, plus acting as, the State Minister of Moldova, applicable law or United States accrued interest thereon will be and MCC will be represented by the Government policy, whether now or returned to MCC within thirty (30) days individual holding the position of, or hereafter in effect; after the Government receives MCC’s

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request for such return; provided, references to ‘‘Annex’’ mean an annex to (a) Any Annex to this Compact and however, that if this Compact is this Compact unless otherwise expressly any of Articles 1 through 7, such suspended or terminated in part, MCC stated. Articles 1 through 7 will prevail; or may request a refund for only the (b) This Compact and any other amount of MCC Funding allocated to Section 6.2 Amendments agreement between the Parties regarding the suspended or terminated portion. (a) The Parties may amend this the Program, this Compact will prevail. For the avoidance of doubt, interest will Compact only by a written agreement Section 6.4 Governing Law accrue from the date of the violation and signed by the Principal Representatives. will be calculated at the 10-year U.S. This Compact is an international Treasury Note rate prevailing as of the (b) Without formally amending this agreement and as such will be governed close of business in Washington, DC as Compact, the Government hereby by the principles of international law. acknowledges and agrees that the of the date of MCC’s request for Section 6.5 Additional Instruments payment. Parties may, through the Principal (e) MCC may reinstate any suspended Representative, in the case of Moldova, Any reference to activities, or terminated MCC Funding under this or Principal Representative, or any obligations, or rights undertaken or Compact if MCC determines that the Additional Representative, in the case of existing under or in furtherance of this Government or other relevant person or MCC, as the case may be, in writing, Compact or similar language will entity has committed to correct each agree to modify any Annex to this include activities, obligations, and condition for which MCC Funding was Compact to (i) suspend, terminate, or rights undertaken by or existing under suspended or terminated. modify any project described in Annex or in furtherance of any agreement, I (each, a ‘‘Project’’ and collectively, the document, or instrument related to this Section 5.2 Refunds; Violation ‘‘Projects’’) or to create a new project, (ii) Compact and the Program. change the allocations of funds among (a) If any MCC Funding, any interest Section 6.6 References to MCC Web the Projects, the Project Activities, or or earnings thereon, or any asset Site acquired in whole or in part with MCC any Activity under Program Funding is used for any purpose in administration or monitoring and Any reference in this Compact, the violation of the terms of this Compact or evaluation, or between a Project PIA, or any other agreement entered into the PIA, including, but not limited to, identified as of the signature of this in connection with this Compact, to a any violation of the Program Guidelines, Compact and a new project, (iii) modify document or information available on, then MCC may require the Government the terms of Section B.3 of Annex I, or or notified by posting on the MCC Web to repay to MCC in United States Dollars (iv) add, delete, or waive any condition site will be deemed a reference to such the value of the misused MCC Funding, precedent described in Annex IV, document or information as updated or interest, earnings, or assets, plus interest provided that any such modification substituted on the MCC Web site from within thirty (30) days after the (1) is consistent in all material respects time to time. Government’s receipt of MCC’s request with the Program Objective, (2) does not Section 6.7 References to Laws, for repayment. For the avoidance of cause the amount of Program Funding to Regulations, Policies, and Guidelines doubt, interest will accrue from the date exceed the aggregate amount specified in Section 2.1 of this Compact (as may Each reference in this Compact, the of the violation and will be calculated PIA, or any other agreement entered into at the 10-year U.S. Treasury Note rate be modified by operation of Section 2.2(e) of this Compact), (3) does not in connection with this Compact, to a prevailing as of the close of business in law, regulation, policy, guideline, or Washington, DC as of the date of MCC’s cause the amount of Compact Implementation Funding to exceed the similar document (including, but not request for payment. The Government limited to, the Program Guidelines) will will not use MCC Funding, proceeds aggregate amount specified in Section 2.2(a) of this Compact, (4) does not be construed as a reference to such law, thereof or Program Assets to make such regulation, policy, guideline, or similar payment. cause the Government’s responsibilities or contribution of resources to be less document as it may, from time to time, (b) Notwithstanding any other be amended, revised, replaced, or provision in this Compact or any other than specified in this Compact, (5) does not extend the Compact Term, and (6) extended and will include any law, agreement to the contrary, MCC’s right regulation, policy, guideline, or similar under this Section 5.2 for a refund will in the case of a modification to change allocations of funds among Projects or document issued under or otherwise continue during the Compact Term and applicable or related to such law, for a period of (i) five (5) years the creation of a new Project, does not materially adversely affect any Activity regulation, policy, guideline, or similar thereafter, or (ii) one (1) year after MCC document. receives actual knowledge of such under Program administration or violation, whichever is later. monitoring and evaluation. Section 6.8 MCC Status (c) Any modification of any Annex to Section 5.3 Survival MCC is a United States government this Compact signed in accordance with corporation acting on behalf of the The Government’s responsibilities Section 6.2(b), or any modification of United States government in the under Sections 2.4, 2.5, 2.6, 2.7, 2.8, 3.7, any other provision of this Compact implementation of this Compact. MCC 3.8, 5.1(c), 5.1(d), 5.2, 5.3, 6.2, and 6.4 pursuant to Section 6.2(a), will be and the United States government have of this Compact will survive the binding on the Government without the no liability under this Compact, the expiration, suspension or termination of need for further action by the Program Implementation Agreement, or this Compact. Government, any further Parliamentary any related agreement, are immune from Article 6. Compact Annexes; action, or satisfaction of any additional any action or proceeding arising under Amendments; Governing Law domestic requirements of Moldova. or relating to any of the foregoing Section 6.3 Inconsistencies documents, and the Government hereby Section 6.1 Annexes waives and releases all claims related to Each annex to this Compact In the event of any conflict or any such liability. In matters arising constitutes an integral part hereof, and inconsistency between: under or relating to this Compact, the

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Program Implementation Agreement, or the satisfaction of Section 7.1, which hall meetings, as well as numerous any related agreement, neither MCC nor MCC may post on the MCC Web site or meetings with smaller groups of the United States government will be otherwise make publicly available; and stakeholders. Following these subject to the jurisdiction of the courts (c) MCC must determine that, after consultations, the Government of Moldova or of any other jurisdiction signature of this Compact, the submitted a Compact proposal in or of any other body. Government has not engaged in any February 2008. In addition to the action or omission that is inconsistent national consultations, project-specific Section 6.9 Counterparts; Electronic with the eligibility criteria for MCC consultations were conducted as part of Delivery Funding. the environmental and social impact (a) Counterparts. Signatures to this Section 7.3 Date of Entry into Force assessment, both by the Government Compact, the Program Implementation and by MCC-contracted entities. These Agreement, and any amendments to This Compact will enter into force on public fora involved consultations with such agreements that are done as the date of the last letter in an exchange key stakeholders including: local instruments to be signed by both Parties of letters between the Principal government officials, regional and will be signed on the same page. Any Representatives confirming that each national staff from government agencies, other documents arising out of this Party has completed its domestic civil society representatives, Compact, may be signed in one or more requirements for entry into force of this environmental and social non- counterparts. Such counterparts when Compact and that the conditions governmental organizations, and delivered and taken together will precedent to entry into force of Section interested local people to evaluate the constitute a single document. 7.2 have been met. proposed projects, to raise concerns, (b) Electronic Delivery. A signature to Section 7.4 Compact Term and to make recommendations on the this Compact, the Program design requirements to enhance benefits Implementation Agreement, and any This Compact will remain in force for and reduce negative impacts from amendments to such agreements, will be five (5) years after its entry into force, project implementation. These an original signature. With respect to unless terminated earlier under Section recommendations are to be incorporated ‘‘ ’’ any other documents arising out of this 5.1 (the Compact Term ). into the detailed design to better address Compact, a signature delivered by Section 7.5 Provisional Application community needs. In addition, the facsimile or electronic mail in Upon signature of this Compact and Government and MCC worked with a accordance with Section 4.1 of this until this Compact has entered into consultative group of public and private Compact will be deemed an original force in accordance with Section 7.3, sector representatives in the agricultural signature and will be binding on the the Parties will provisionally apply the sector. Party delivering such signature, and the terms of this Compact and the PIA; Agriculture has been the backbone of Parties hereby waive any objection to provided that, no Program Funding will the Moldovan economy, with Moldova such signature or to the validity of the be made available or disbursed before formerly serving as an important underlying document, certificate, this Compact enters into force. exporter of high value agriculture to the notice, instrument, or agreement on the In Witness Whereof, the undersigned, rest of the Soviet Union. Following the basis of the signature’s legal effect, duly authorized by their respective collapse of the Soviet Union, Moldova validity or enforceability solely because governments, have signed this Compact. lost its position as a key exporter of it is in facsimile or electronic form. Done at Washington, DC, this 22nd fresh produce, and its extensive Article 7. Entry Into Force day of January, 2010, in the English irrigation systems and post-harvest cold language only. chain fell into disrepair. Section 7.1 Domestic Requirements For Millennium Challenge Reforms necessary to attract private Before this Compact enters into force, Corporation, on behalf of the United and donor investment in agriculture the Government will proceed in a timely States of America, Name: Daniel W. have been slow. As a result, Moldovan manner to obtain ratification of this Yohannes, Title: Chief Executive agriculture suffers from low Compact by the Moldovan Parliament. Officer. productivity, contributing to high rates The Parties understand that, upon its For the Republic of Moldova, Name: of rural poverty. However, with its entry into force this Compact will Iurie Leanca˘, Title: Deputy Prime fertile soils, relatively long growing prevail over the domestic laws of Minister, Minister of Foreign Affairs and season, and proximity to both European Moldova. European Integration. Union and former Soviet markets, Annex I—Program Description Moldova has many of the necessary Section 7.2 Conditions Precedent to conditions to regain competitiveness in Entry Into Force This Annex I describes the Program high value agriculture. The key Before this Compact enters into force: that MCC Funding will support in constraints facing Moldovan producers (a) The PIA must have been signed by Moldova during the Compact Term. are: lack of reliable water, lack of the parties thereto; A. Program Overview financing, lack of access to markets and (b) The Government must have technologies and lack of know-how. The delivered to MCC: 1. Background and Consultative Process Transition to High Value Agriculture (i) A legal opinion from the Minister With a population of approximately Project will address these constraints. of Justice of Moldova (or such other 3.8 million inhabitants, Moldova was The quality of the road network in legal representative of the Government originally declared eligible for MCC Moldova is seriously deteriorated and acceptable to MCC), in form and Compact assistance in 2006. The has been cited repeatedly as a binding substance satisfactory to MCC; and Government mobilized a team of constraint to economic growth which (ii) Complete, certified copies of all consultants to conduct an empirical impacts the entire country, as the decrees, legislation, regulations, or other analysis of the key constraints to country’s economy is highly dependent governmental documents relating to the growth. This constraints analysis served on road transport. The Road Government’s domestic requirements as the basis for two rounds of national Rehabilitation Project will address this for this Compact to enter into force and consultations through regional town- constraint.

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2. Program Objective through monitoring and coordination command area of up to approximately The Program Objective is to increase during implementation, that final 15,500 hectares (the ‘‘Centralized incomes through increased agricultural Project Activity designs, construction Irrigation System Rehabilitation productivity and expanded access to tender documents and implementation Activity’’); (ii) provide technical markets and services through improved plans are consistent with and assistance and capacity building to (1) roads. The Program consists of the incorporate the outcomes of the social support legal transfer of management Transition to High Value Agriculture and gender analysis and social and and operations of MCC-rehabilitated Project and the Road Rehabilitation gender integration plan. systems from the Government to Water ‘‘ ’’ Project as further described in this B. Description of the Projects User Associations ( WUAs ), (2) Annex I. improve water resource management, Set forth below is a description of including establishment of a modern 3. Environmental and Social Safeguards each of the Projects that the Government water rights system, and (3) ensure the will implement, or cause to be The Transition to High Value legal and institutional framework implemented, using MCC Funding to Agriculture Project and the Road needed for private and/or donor advance the applicable Project Rehabilitation Project will be investment in the irrigation sector (the Objective. In addition, specific activities ‘‘Irrigation Sector Reform Activity’’); (iii) implemented in compliance with the that will be undertaken within each MCC Environmental Guidelines and provide term financing and technical Project (each, an ‘‘Activity’’), including assistance to support high value MCC’s environmental and social sub-activities, are described. guidelines posted from time to time on agriculture-related investments by the MCC Web site or otherwise made 1. Transition to High Value Agriculture farmers and rural entrepreneurs (the available to the Government by MCC Project ‘‘Access to Agricultural Finance ’’ (‘‘MCC Gender Policy’’) and any (a) Summary of Project and Activities. Activity ); and (iv) provide market resettlement will be carried out in The objectives of the Transition to development support and technical accordance with best international High Value Agriculture Project are to: (i) assistance and training to help resettlement standards based on the Increase rural incomes by stimulating producers and agribusinesses better World Bank’s Operational Policy on growth in irrigated high value access high value agriculture markets Involuntary Resettlement in effect as of agriculture; and (ii) catalyze future and support the shift to high value July 2007 (‘‘OP 4.12’’) and in accordance investments in high value agriculture by agriculture at the production and post- with procedures approved by MCC. The establishing a successful and harvest level, and promote sustainable Government will also ensure that the sustainable model of irrigation system agricultural practices (the ‘‘Growing Projects comply with all national and water resource management and a High Value Agriculture Sales Activity’’), environmental laws and regulations, conducive institutional and policy the latter to be undertaken jointly with, licenses and permits, except to the environment for irrigated agriculture. and administered by, the United States extent such compliance would be The Transition to High Value Agency for International Development inconsistent with this Compact. The Agriculture Project consists of four (‘‘USAID’’). Government will: (a) Cooperate with reinforcing and integrated activities The Transition to High Value any ongoing environmental review, or if that, when implemented together, Agriculture Project consists of the necessary undertake and complete any address the key constraints facing following Activities: additional environmental reviews, Moldovan producers: lack of reliable (i) Centralized Irrigation System required by MCC or under the laws of water, lack of financing, lack of access Rehabilitation Activity. Most of the Government-owned Moldova; (b) implement to MCC’s to markets and technologies, and lack of irrigation infrastructure in Moldova satisfaction environmental and social know-how (the ‘‘Transition to High requires rehabilitation to bring the mitigation measures identified in such Value Agriculture Project’’). The systems back into working condition. environmental review; and (c) commit Transition to High Value Agriculture MCC Funding will be used to to fund environmental mitigation, Project will increase the ability and rehabilitate up to 11 systems to provide (including costs of resettlement) in willingness of farmers to make the reliable water to farm operations in their excess of MCC Funding not specifically transition to higher value fruit and command areas. The 11 systems eligible provided for in the budget for any vegetable production. By addressing for rehabilitation have completed Project. infrastructure and institutional/market feasibility studies and are listed below, To maximize the positive social constraints, the Transition to High along with their respective system impacts of the Projects, address cross- Value Agriculture Project will break the numbers as listed in the Government cutting social and gender issues such as vicious cycle of poor water service, low proposal to MCC, as follows: human trafficking, child and forced water tariff revenue, underinvestment in labor, and HIV/AIDS, and ensure irrigation system maintenance, and low 1. Chircani-Zirnesti (6–6). compliance with the MCC Gender 2. Blindesti (3–2). investment by farmers in high value 3. Grozesti (3–6). Policy, MCA–Moldova will: (i) Develop agriculture (resulting in low agricultural 4. Leova Sud (5–4). a comprehensive social and gender incomes). The Transition to High Value 5. Cahul (6–9). integration plan which, at a minimum, Agriculture Project provides the first 6. Jora de Jos (11–6). identifies approaches for regular, opportunity to pilot a set of institutional 7. Lopatna (11–7). meaningful and inclusive consultations and management reforms, together with 8. Cosnita (12–3). with women and other vulnerable/ much needed infrastructure 9. Criuleni (14–2). underrepresented groups, consolidates rehabilitation that will set the stage for 10. Puhaceni (14–11). the findings and recommendations of future investment and enable Moldova 11. Roscani (14–13). Project-specific social and gender to benefit from its natural comparative Specifically, in the above systems that analyses and sets forth strategies for advantage in agriculture. are rehabilitated, MCC Funding will incorporating findings of the social and The Transition to High Value support: gender analyses into final Project Agriculture Project will: (i) Rehabilitate (1) Construction activities: These costs designs as appropriate; and (ii) ensure, up to 11 irrigation systems covering a may include, without limitation, simple

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repair and/or replacement of pumps, that water resources are effectively planning and management of water valves, piping and ancillary systems, managed over the long term (the ‘‘River resources through a system of basin and water intakes, related electrical and Basin Management Sub-Activity’’). sub-basin councils and management control systems, and pump station (1) Irrigation Management Transfer plans. buildings; rehabilitation of reservoirs; Sub-Activity. (iii) Access to Agricultural Finance and, installation of new system The main objectives of the Irrigation Activity. components where needed. Management Transfer Sub-Activity are: The objective of the Access to (2) Non-construction activities: These (A) Establishment of fully-functional Agricultural Finance Activity is to costs may include, without limitation, WUAs with the capacity to effectively provide term financing needed to studies, construction supervision, WUA manage and maintain the rehabilitated support increased investment in the equipment reserve, environmental and systems; and (B) legal transfer of high value agriculture supply chain to social mitigation (including temporary management responsibilities from the facilitate transition to high value or permanent resettlement Government to those WUAs through agriculture, with particular focus on compensation associated with management transfer agreements serving farmers and enterprises construction) and other project (‘‘MTAs’’). operating in the irrigation systems management costs and technical MCC Funding will support technical targeted for rehabilitation. Improved assistance to be incurred in connection assistance and training to: (A) Assist sorting and packing of produce, and the with the Centralized Irrigation System WUA formation in a manner consistent ability to extend the production and Rehabilitation Activity. with the WUA Law and with best marketing season, can assist Moldovan (ii) Irrigation Sector Reform Activity. practices of financially and producers to become more competitive The Irrigation Sector Reform Activity operationally sustainable water service in domestic and export markets and to is designed to: (1) Establish the enabling entities; (B) build capacity within sell their production at a higher price. environment and institutional capacity WUAs to exercise responsibility for However, with virtually no domestic required to ensure effective management operations and maintenance of the sources of long-term funding and little (operations, maintenance and financing) rehabilitated systems; (C) support ability to access international debt of the rehabilitated irrigation systems creation of a legal environment that markets, Moldovan financial (thereby better ensuring their enables WUAs to exercise this institutions largely lack the ability to sustainability); and (2) improve responsibility (WUA Law, Water Law lend for investments in the high value Moldova’s capacity to manage its with long-term water rights, and binding agriculture supply chain for periods limited water resources in light of MTAs in full compliance with longer than three years. increasing demand for water and the Moldovan law); and (D) assist and The Access to Agricultural Finance expected effects of climate change. support the Government, as the legal Activity will be initiated on a pilot MCC and the Government agree that owner of the irrigation infrastructure, to basis, which will be evaluated through institutional and policy reforms negotiate and sign system specific an independent impact evaluation. The surrounding the centralized irrigation MTAs that legally transfer irrigation impact evaluation will likely involve sector are necessary to maximize management responsibilities to WUAs some denial of credit under the Activity sustainability and project impact. The for all rehabilitated systems. to otherwise eligible approved Irrigation Sector Reform Activity will (2) River Basin Management Sub- borrowers, possibly through transfer management responsibility for Activity. randomization. The final decision irrigation systems rehabilitated using Water resource management is vital to whether to scale up or terminate the MCC Funding from the Government to the sustainability of both irrigated program will be in accordance to the users by establishing and building agriculture and Moldova’s long-term PIA and will ensure that the activity, if capacity within WUAs. As a necessary non-agricultural development. Growing scaled up, is likely to have an economic condition for success in transfer of demand for water, and concerns about rate of return of 12 percent as management and operations and climate change and the increasing determined by MCC’s model for the maintenance responsibilities to WUAs, frequency of drought and floods require Access to Agricultural Finance Activity a new WUA law acceptable to MCC improved water resource planning and in consultation with MCA-Moldova, or (‘‘WUA Law’’) is required in Moldova to secure water rights. The purpose of this a rate acceptable to MCC, given the level provide a solid legal foundation both for sub-Activity is to help the Government of ‘‘additionality’’ of investment the transfer process and for the WUAs improve management of water resources evidenced by the pilot, as well as other themselves to manage the systems. The and assess future water availability in known parameters and costs of the Government will also ensure passage of order to promote sustainable growth in activity at the time of this review. a new water law acceptable to MCC the agricultural sector. In particular, the The Access to Agricultural Finance (‘‘Water Law’’) that will provide more sub-Activity will: (A) Support the Activity consists of two sub-Activities: secure long-term water rights and the implementation of a Water Law and (1) Term financing to support increased framework to issue water management development of secondary regulations investments in the high value authorizations and improved and institutionalizing a modern system of agriculture value chain (the ‘‘High Value upgraded systems for water resource secure, long-term water rights and river Agriculture Post-Harvest Credit management at the basin level. basin management; (B) provide Facility’’); and (2) demand-driven The Irrigation Sector Reform Activity institutional support and equipment investment development services consists of two sub-Activities: (1) The (geographical information systems, support (the ‘‘Investment Development creation and implementation of databases, and decision support tools) to Services’’). improved institutional arrangements for the Government to improve its ability to (1) High Value Agriculture Post- the operations and maintenance of monitor water quality and quantity and Harvest Credit Facility Sub-Activity. rehabilitated irrigation infrastructure issue water certificates under a Water The objective of the High Value (the ‘‘Irrigation Management Transfer Law and river basin management Agriculture Post-Harvest Credit Facility Sub-Activity’’); and (2) a comprehensive system; and (C) build institutional will provide term loans (three to seven approach to water management to build capacity in the Government to engage years) through participating financial the Government’s capacity to ensure stakeholders in the participatory institutions (‘‘PFIs’’) to fund post-harvest

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supply chain investments. It will be sales of higher-value fruit and production, post-harvest, and marketing managed by the Credit Line Directorate vegetables. Market assessments made practices. Training will include (the ‘‘CLD’’), which is a program during the project development process assistance to farmers to promote management unit within the Ministry of (and supported by the analysis of other sustainable agricultural practices, Finance established by the World Bank donors) concluded that Moldova might specifically pest management, and soil to oversee donor funded credit lines. have a comparative advantage in high and water conservation. Moldovan Loans will be provided on a ‘‘back-to- value agriculture production. However, agriculture service providers, back’’ basis (loans to PFIs will be made to realize this comparative advantage supplemented with international sector against, and will mirror terms of, PFI and compete on international markets, specialists as required, will implement loans to end-borrowers). PFIs will take Moldovan high value agriculture a no-fee training program targeting all repayment risk, with the obligation producers and the Government will beneficiaries both inside and outside the to repay loans regardless of the need to: (1) Aggressively seek export rehabilitated systems. performance of the end-borrowers. PFIs market opportunities; (2) upgrade (3) Demand-Driven Technical will make their own underwriting production and the post harvest supply Assistance to Upgrade the High Value decisions, subject to eligibility chain; (3) improve the enabling Agriculture Value Chain Sub-Activity. requirements stipulated by MCA- environment and create conditions This sub-activity is designed to support Moldova and MCC in the high value conducive to high value agriculture increased investment and improved agriculture post- harvest policy and (including reducing restrictions on new performance in the high value procedures manual. The primary benefit seed varieties and on imports of agriculture value chain, with particular of the High Value Agriculture Post- fertilizers and agriculture equipments); focus on the post-harvest infrastructure Harvest Credit Facility is not to and (4) improve Moldova’s compliance and equipment required to transition subsidize lending by financial with sanitary and phytosanitary farmers to increased production of high institutions or investment by end standards and ability to meet value agriculture and enable producers, borrowers, but instead to provide international standards. wholesalers and exporters to remain longer-term funding which is otherwise To simplify implementation and competitive and deliver fresh produce not available in the Moldovan financial increase efficiency, MCC Funding will (properly packaged, stored and markets. An approximate market-based be used to expand a planned USAID- transported) to increasingly quality rate will be established and adjusting on administered agricultural development conscious buyers in the European new and existing credits every six project and to target Transition to High Union, Commonwealth of Independent months, according to the process and Value Agriculture Project beneficiaries, States, and domestic retail markets. A methodology outlined in the high value such as producers within the pre-approved group of local and agriculture post-harvest policy and rehabilitated systems and other value international service providers will be procedures manual. The full list of chain actors active in the high value established to provide customized eligible investments will be provided in agriculture markets. Subject to funding consulting and business development the high value agriculture post-harvest availability, USAID intends to services on a competitive, cost-sharing policy and procedures manual. The contribute funding and administer and basis. specific determination of interest rates implement the program on behalf of (4) Implement Recommendations for will be done in a manner consistent MCA-Moldova and MCC. Specifically, an Improved Enabling Environment with a positive premium for the MCC Funding will support the Sub-Activity. This sub-activity will provision of term financing, and in a following tasks under the joint MCA- augment on-going efforts by USAID and manner which prices loans not Moldova and USAID Growing High other donors to identify and implement significantly below market rates. MCC Value Agriculture Sales Activity: needed policy reforms in the agriculture reserves the right to review rates in (1) Develop and Expand Market sector which will improve context of changing market conditions, Opportunities for Moldovan High Value competiveness and increase or preserve but will not raise the subsidy element as Agriculture Sub-Activity. This sub- access to export markets. This task will: a means to increase disbursements activity will focus on identifying market (A) Provide technical assistance to help without independent analysis showing opportunities and understanding buyer the Government adopt legislation and that this would lead to greater requirements and specifications, with policies to implement reforms that additionality of viable investment. the objective of increasing export sales support high value agriculture, with Borrowers are not restricted to and attracting regional buyers and specific attention to improving access to investments in, adjacent to, or serving private sector investment to Moldova. (and reducing import tariffs on) quality the MCC irrigation command areas. As a part of the process of facilitating seeds, fertilizers, and other inputs, (2) Investment Development Services. transactions and promoting Moldova as including high value agriculture-related Support for investment development a source of high value agriculture in the equipment; and (B) establish sanitary services will be provided on a demand- region, several approaches for and phytosanitary standards systems driven cost sharing basis through establishing a sustainable yet flexible and procedures to support exports and Moldovan investment development network of buyers will be developed reduce the risks of export bans through service providers to those producers, and tested. narrowly targeted upgrades in producer groups and rural (2) Training to Upgrade Production Government sanitary and phytosanitary entrepreneurs interested in developing and Meet Buyer Requirements Sub- controls, including laboratory post harvest investment projects and Activity. This sub-activity will develop equipment. As part of this component, obtaining loans for them via the High a field and classroom-based program to the Ministry of Agriculture and Food Value Agriculture Post-Harvest Credit help value chain actors, with primary Industry will be required to provide Facility. focus on producers and producer refurbished laboratory space, in (iv) Growing High Value Agriculture groups; better understand and meet conditions acceptable to USAID. Sales Activity. buyer requirements; reduce production (b) Beneficiaries. The objective of the Growing High and marketing costs; capture price By 2029, the Parties expect that the Value Agriculture Sales Activity is to premiums; and increase sales through Transition to High Value Agriculture increase farmer incomes by increasing improved high value agriculture Project will have benefitted at least

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124,000 individuals, or at least 31,000 expected to increase and safeguard Also significant is the successful households. Beneficiaries of the incomes for all high value agriculture partnership between USAID, MCC and Transition to High Value Agriculture producers in Moldova, estimated at MCA-Moldova. USAID and MCC Project include households with owners 83,000 households and 315,000 worked together to develop a joint or shareholders of farming enterprises, beneficiaries as of 2009. project designed to build on USAID’s 15 farmers or owners of land, producers (c) Environmental and Social years of experience in the agriculture and intermediaries investing in and Mitigation. sector and, at the same time, support the working in the high agriculture value The Transition to High Value significant MCC irrigation infrastructure sector, and laborers employed in the Agriculture Project is classified as investment. Subject to the availability of operation of enterprise farms within the ‘‘Category A’’ according to MCC funds, the joint Growing High Value command areas where MCC will Environmental Guidelines because it Agriculture Sales Activity is intended to rehabilitate the irrigation systems and could potentially result in significant, provide the technical assistance and producers and agribusinesses outside long-term direct, indirect, and market development support needed to the systems targeted for rehabilitation cumulative environmental and social help producers transition to high value that are already engaged in the high impacts, including impacts to two agriculture fruit and vegetable crops. value agriculture sector. international waterways. Environmental The Growing High Value Agriculture Farm enterprises in the centralized and social impact assessments have Sales Activity, which will target, but irrigation system areas are expected to been initiated, which will inform will not be limited to, areas where MCC capture the majority of the Transition to detailed project design and establish irrigation rehabilitation will occur, is High Value Agriculture Project’s environmental management plans and designed to emphasize promotion of benefits. Up to 3,100 farm households resettlement policy framework or action market opportunities within Moldova are expected to benefit from the plans to be implemented during the and encourage increased private sector rehabilitation of centralized irrigation construction and operation phases of and foreign investment in the high value systems. Switching from non-irrigated the project agriculture sector. Subject to the to irrigated agriculture in Moldova can The Access to Agricultural Finance availability of funds, USAID intends to increase profitability by 200–500 Activity will be designed and contribute funding for the Growing High percent or higher on a per hectare basis, implemented in accordance with Value Agriculture Sales Activity, which depending on the crop mix. In the next requirements set forth in MCC would be administered by USAID on 20 years, poor households could realize Environmental Guidelines for ‘‘Category behalf of MCA-Moldova. This joint a cumulative increase in income D’’ (financial intermediary) projects, approach addresses and reduces equivalent to three years of current farm requiring pre-screening of loan implementation capacity concerns by earnings, even with assumptions of applications for environmental and allowing for improved implementation gradual and partial adoption of social impacts as part of the approval and project oversight and more efficient irrigation. Individuals employed in process. MCC Environmental Guidelines use of resources. seasonal labor will also benefit from the under Category D reserves for MCC the (e) Sustainability. Transition to High Value Agriculture ‘‘right to set additional performance The Transition to High Value Project. Demand for seasonal labor is standards and monitoring requirements Agriculture Project is designed as a projected to increase as farms switch for subprojects on a case-by-case basis, comprehensive project that will increase from grains to more labor-intensive high depending on the nature of the farmer incomes and break the cycle of value agriculture crops. A projected intermediate facility.’’ poor water service, low water tariff 9,300 employees, most of whom are (d) Donor Coordination. revenue, underinvestment in irrigation poor, will realize increased wage MCC has coordinated closely with the system maintenance, and low income due to greater demand for two donors most active in the investment by farmers in high value agricultural labor in the centralized agriculture sector in Moldova—USAID agriculture. Each of the four activities irrigation system areas. Landowners will and the World Bank—on the Transition reinforces the other in ensuring project also benefit from the increased to High Value Agriculture Project. MCC sustainability and building the capacity productivity and value of their land has also worked closely with the of local institutions and service once it has access to irrigation. It is European Union, World Bank, providers. projected that approximately 15,500 Organization for Economic Co-operation The Irrigation Sector Reform Activity, individuals renting out their agricultural and Development, and the United and its Irrigation Management Transfer land will realize increased rent income Nations Development Fund for Women Sub-Activity and River Basin of at least 20 percent. on environmental and social issues such Management Sub-Activity, are designed The Access to Agricultural Finance as water resource management and to ensure that the rehabilitated Activity will directly benefit more than gender. Further, the World Bank centralized irrigation systems (MCC’s 100 post-production investors. The Mission in Chisinau, Moldova, and primary high value agriculture Growing High Value Agriculture Sales World Bank sector and regional investment) are effectively operated and Activity, which is intended to use specialists in Washington, DC, have maintained through the transfer of USAID funds, subject to availability, provided contacts, studies, lessons responsibility for operations and and MCC Funding, will assist learned, and informal peer review at all maintenance to the WUAs. A condition individuals in the centralized irrigation stages in the process starting with early for commencing rehabilitation of these system areas, as well as an additional concerns about land tenure and systems is the passage of a WUA Law 2,000 high value agriculture producers consolidation issues. Input and that will support the legal transfer of outside the centralized irrigation system collaboration between the World Bank responsibility for Government owned areas, of whom at least 1,300 producers and MCC have been the most significant assets to WUAs. The WUA Law will are expected to realize income gains. and influential in the development of require that WUA membership Additionally, the policy improvement the access to agricultural finance, represents at least 50 percent of the and efforts to improve sanitary and irrigation management transfer, and users and 50 percent of the intended phytosanitary standards of the Growing food safety components and service area of the WUA. The WUA Law High Value Agriculture Sales Activity is interventions. will also empower the WUAs with the

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authority to establish and collect water national economy resulting from the environmental and social mitigation tariffs sufficient to cover their fixed deteriorated road conditions; and (iii) (including resettlement), and other costs and ensure financial stability of reduce the number of road accidents project management costs and technical the rehabilitated systems. The River through improved traffic conditions. assistance to be incurred in connection Basin Management Sub-Activity will Rooted in the National Development with the M2 Road Activity. provide a comprehensive approach to Strategy and the Land Transport (ii) Supplemental Feasibility Study/ water management to build the Infrastructure Strategy (2008–2017), the ESIA and Design. Government’s capacity to ensure that Road Rehabilitation Project was MCC Funding will also be used for a water resources are effectively managed developed with the assistance of feasibility study/environmental and over the long term. external partners in the road sector social impact assessment for the road The Access to Agricultural Finance (World Bank, European Bank for segment from Arionesti to the border Activity and Growing High Value Reconstruction and Development, crossing in Otaci, detailed design work, Agriculture Sales Activity address the European Investment Bank, European a resettlement action plan and an need to upgrade production and the Commission, and MCC, collectively the updated environmental and social high value agriculture value chain in ‘‘Joint Group’’). The strategy impact assessment for the entire road order for Moldovan high value recommends the rehabilitation of the section from the Drochia junction to the agriculture producers to become and major trans-national axis that crosses border crossing in Otaci. remain competitive in the long term. It Moldova from north to south. (b) Beneficiaries. will also promote water and soil The Road Rehabilitation Project will The M2 Road Activity is expected to conservation, integrated pest improve part of the M2 1 road (‘‘M2’’), benefit approximately 78,000 management, and other sustainable which is an arterial highway from the households over the next 20 years, or agricultural practices. Both of these Moldovan capital, Chisinau, through the approximately 302,000 beneficiaries. activities are driven by market signals city of Soroca, to the Ukrainian border Rehabilitation of the M2 will benefit the and demand from the value chain and beyond to Kyiv, the Ukrainian users and owners of motorized vehicles actors, ensuring that the most capital. This route contains significant utilizing the road, including local appropriate and targeted training and traffic flows, serves as a significant link agricultural and other producers and technical assistance is provided. between Moldova and Ukraine for buyers; providers and users of passenger Technical assistance programs in both private, passenger, and commercial transport services; and non-commercial activities will utilize local service traffic, and has been prioritized by the owners of private motorized transport. providers whenever possible, and will Government for rehabilitation. In addition, sellers and merchandisers provide training to those local service The Road Rehabilitation Project of products transported along this road providers so that they are able to consists of the following: will likely benefit. At present there are sustainably serve the market after the (i) M2 Road Activity. approximately 273,000 beneficiaries Compact is completed. The High Value MCC Funding will be used to living along the road, and Agriculture Post-Harvest Credit Facility rehabilitate and upgrade a 93 km approximately 29,000 individuals from is intended to extend beyond the end of portion of the M2, beginning near the road rehabilitation outside the the Compact to facilitate issuance of Sarateni at the southern end and ending region. Over 20 years, poor beneficiary loans extending beyond the Compact. at the junction with the R7 road west to households (earning less than US$2 (f) Policy, Legal and Regulatory Drochia (the ‘‘Drochia junction’’) at the purchasing power parity (‘‘PPP’’) per day Reforms. northern end (the ‘‘M2 Road Activity’’). per capita) could realize a cumulative Regulatory reform is required for the MCC Funding will also be used to increase in income equivalent to more success of the Transition to High Value replace or upgrade associated structures than one year of current income. Taking Agriculture Project. The publication in within this segment of the M2, such as into account traffic originating from and the ‘‘Monitorul Oficial’’ of the WUA Law bridges, drainage systems and culverts, destined for areas outside the adjacent acceptable to MCC, which law will be to improve road maintenance and areas, the beneficiary analysis estimates in full force and effect no later than safety. The M2’s improvement is that about 15 percent of the three months after the date of expected to reduce vehicle operating beneficiaries of the investment will be publication, is a condition precedent to costs, reduce travel time, change among households that now live on less signing the detailed design studies maintenance costs, cause an increase in than US$2 per person per day (in PPP contract for the centralized irrigation the value of goods moved and cause an terms). system rehabilitation. Registration of increase in frequent travel. Specifically, (c) Environmental and Social WUAs to operate and maintain the MCC Funding will support: Mitigation. centralized irrigation systems to be (1) Construction costs: These costs The M2 Road Activity is classified as rehabilitated, and publication in the include, without limitation, pavement ‘‘Category B’’ according to MCC ‘‘Monitorul Oficial’’ of the Water Law rehabilitation and strengthening, Environmental Guidelines. The M2 acceptable to MCC are conditions embankment construction, road safety Road Activity is expected to produce precedent to commencement of improvements, replacement or site-specific and limited environmental procurement for the centralized upgrading of associated structures, such and social impacts that can be mitigated irrigation system construction works as bridges, drainage systems and and monitored. An environmental and contract. culverts, and any activity associated social impact assessment has been initiated which will inform detailed 2. Road Rehabilitation Project with the environmental management plan developed with respect to the product design and establish an (a) Summary of Project and Activities. Activity. environmental management plan and The objectives of the Road (2) Non-construction costs: These resettlement policy framework and Rehabilitation Project (the ‘‘Road costs include, without limitation, action plans for construction. Rehabilitation Project’’) are to: (i) studies, construction supervision, (d) Donor Coordination. Increase incomes of the local population In addition to general coordination by reducing the cost of transport, goods 1 As referenced, the M2 includes approximately 9 with the Joint Group, the Road and services; (ii) reduce losses to the km of the R7 road. Rehabilitation Project will benefit from

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technical assistance being provided to of the Road Fund Law to provide Compact, and (vii) competitively engage the State Road Administration through sustainable funding for adequate road one or more auditors to conduct audits the Road Sector Support Program maintenance. of its accounts. The Government will funded by an approximate US$5 million take the necessary actions to establish 3. Implementation Framework World Bank credit. The program will MCA-Moldova, in accordance with the fund consulting services for design and (a) Overview. applicable conditions precedent to the introduction of an axle load control The implementation framework and disbursement of Compact system; consulting services for reform of the plan for ensuring adequate Implementation Funding set forth in road maintenance execution governance, oversight, management, Annex IV to this Compact. arrangements (including road asset monitoring and evaluation, and fiscal MCA-Moldova will be administered valuation); technical and financial accountability for the use of MCC and managed by a Steering Committee audits; support by local consultants in Funding are summarized below. MCC and a Management Unit. In addition, the areas of procurement, environment, and the Government will enter into the MCA-Moldova will have the and financial management; and training Program Implementation Agreement, Consultative Group to continue the activities. and any other agreements in furtherance consultative process during (e) Sustainability. of this Compact, all of which, together implementation of the Program. The Sustainability of the Road with this Compact, set out certain rights, governance of MCA-Moldova will be set Rehabilitation Project requires both responsibilities, duties and other terms forth in more detail in the Establishment routine and periodic maintenance, relating to the implementation of the Decree, the Program Implementation which can only be accomplished if there Program. Agreement, and the internal regulations is adequate funding and if appropriate (b) MCC. of MCA-Moldova (‘‘MCA-Moldova mechanisms are in place to carry out the MCC will take all appropriate actions Bylaws’’), which will, collectively, set maintenance. A lack of maintenance is to carry out its responsibilities in forth the responsibilities of the Steering evidenced by the state of deterioration connection with this Compact and the Committee, the Consultative Group and of the road. At least 50 percent of the Program Implementation Agreement, the Management Unit. The MCA- road needs to be reconstructed from the including the exercise of its approval Moldova Bylaws will be developed and sub-base. Most of the bridges show rights in connection with the adopted in accordance with MCC’s severe corrosion of the reinforcement implementation of the Program. Guidelines for Accountable Entities and bars, causing a loss of required strength (c) MCA-Moldova. Implementation Structures, published and concrete spalling. In accordance with Section 3.2(b) of on the MCC Web site (the ‘‘Governance The Government, with the assistance this Compact, MCA-Moldova will act on Guidelines’’), and will be in form and of the Joint Group, had adopted the the Government’s behalf to implement substance satisfactory to MCC. Land Transport Infrastructure Strategy, the Program and to exercise and perform (i) Steering Committee. which, along with other points, the Government’s rights and (1) Composition. MCA-Moldova will addresses the current deficiencies in responsibilities with respect to the be governed by the steering committee, road maintenance funding and oversight, management, monitoring and or the board of directors (the ‘‘Steering execution. In particular, the evaluation, and implementation of the Committee’’), which will consist of Government committed in writing in Program, including, without limitation, voting members representing those February 2008 to amend the Road Fund managing the implementation of Government ministries and civil society Law to ensure that an adequate Projects and their Activities, allocating and private sector organizations set percentage of the revenue from the fuel resources, and managing procurements. forth in the Establishment Decree. The excise tax, sources of revenue The Government will ensure that MCA- Steering Committee will also consist of introduced in large part to fund road Moldova takes all appropriate actions to those non-voting observers set forth in maintenance, would be automatically implement the Program, including the the Establishment Decree. All voting allocated to the Road Fund. exercise and performance of the rights members will be selected in accordance To increase the likelihood of and responsibilities designated to it by with the MCA-Moldova Bylaws and sustaining the benefits of the the Government pursuant to this must be sufficiently senior and qualified rehabilitated M2, and to prepare a more Compact and the Program to make decisions on behalf of their sustainable basis for future investments Implementation Agreement. Without respective ministries and civil society in the roads sector, the Government will limiting the foregoing, the Government and private sector organizations, as provide MCC with evidence that an will also ensure that MCA-Moldova has applicable. Each voting member named amended Road Fund Law, providing a full decision-making autonomy, to serve on the Steering Committee, and more reliable mechanism for adequate including, inter alia, the ability, without any replacement for any voting member road maintenance funding, is in full consultation with, or the consent or or any alteration of the size or force and effect, before invitations for approval of, any other party, to (i) Enter composition of the Steering Committee, construction bids are issued under the into contracts in its own name, (ii) sue will be subject to MCC prior approval. Compact. Measurable progress monitors and be sued, (iii) establish an account in In the event that none of the civil are set forth in the Program a financial institution in the name of society and private sector organizations Implementation Agreement as MCA-Moldova and hold MCC Funding represented as voting members on the conditions precedent to disbursement in that account, (iv) expend MCC Steering Committee are from an for the Road Rehabilitation Project. Funding, (v) engage a fiscal agent who environmentally focused non- (f) Policy, Legal and Regulatory will act on behalf of MCA-Moldova on governmental organization, an Reforms. terms acceptable to MCC, (vi) engage additional observer from such an Policy, legal, and regulatory reforms one or more procurement agents who organization, subject to the prior receipt are required to implement the Road will act on behalf of MCA-Moldova, on of a no-objection notice from MCC, will Rehabilitation Project. As a condition terms acceptable to MCC, to manage the be appointed. precedent to commencement of acquisition of the goods, works, and (2) Roles and Responsibilities. The procurement for construction, the services required by MCA-Moldova to Steering Committee will be responsible Government will ensure the amendment implement the activities funded by this for overseeing the implementation of the

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Program and will have final decision- (1) Composition. The management substance satisfactory to MCC (each an making authority over the unit, which will be led by a ‘‘Implementing Entity Agreement’’). implementation of the Program. The competitively selected Executive (e) Fiscal Agent. Steering Committee will meet regularly; Director, will be composed of Unless MCC otherwise agrees in the frequency of meetings will be set competitively selected staff with writing, the Government, directly or forth in the MCA-Moldova Bylaws and expertise in the key components of the through MCA-Moldova, will engage a will be in accordance with the Program, including, without limitation, fiscal agent (a ‘‘Fiscal Agent’’), who will Governance Guidelines. The specific a Road Rehabilitation Project Director, be responsible for assisting the roles of the voting members and non- Transition to High Value Agriculture Government with its fiscal management voting observers will be set forth in the Director, Centralized Irrigation System and ensure appropriate fiscal Establishment Decree and the MCA- Rehabilitation Activity Director, as well accountability of MCC Funding, and Moldova Bylaws. as a Deputy Executive Director, a Legal whose duties will include those set (ii) Consultative Group. Advisor, and other key Directors, forth in the Program Implementation (1) Composition. Pursuant to the including, without limitation, a Finance Establishment Decree, the composition Agreement. and Administrative Director, (f) Procurement Agent. of the consultative group will be Communications and Documentation Unless MCC otherwise agrees in selected in accordance with the MCA- Director, a Procurement Director, a writing, the Government, directly or Moldova Bylaws and the Governance Monitoring and Evaluation Director, through MCA-Moldova, will engage one Guidelines and subject to MCC approval Environmental and Social Director, and or more procurement agents (each, a (the ‘‘Consultative Group’’). Without Social and Gender Officer (the ‘‘Procurement Agent’’) to carry out and limiting the foregoing, the ‘‘Management Unit’’). The Management certify specified procurement activities Establishment Decree provides that the Unit will also include such other in furtherance of this Compact. The Consultative Group will be composed personnel as provided for in the MCA- roles and responsibilities of each of, inter alia, Program beneficiaries, Moldova Bylaws. The directors will be Procurement Agent will be set forth in regional and local government supported by appropriate additional the Program Implementation Agreement representatives, entities with an interest staff to enable the Management Unit to or such agreement as the Government, or involvement in the implementation execute its roles and responsibilities. directly or through MCA-Moldova, of the Program, and any applicable civil (iv) Roles and Responsibilities. The society and private sector enters into with each Procurement Management Unit will be based in representatives. In addition, the Steering Agent, which agreement will be in form Chisinau, Moldova, and will be Committee may establish regional, and substance satisfactory to MCC. Each responsible for managing the day-to-day informal consultative groups in the Procurement Agent will adhere to the implementation of the Program, with project intervention zones composed of, procurement standards set forth in the oversight from the Steering Committee. inter alia, Program beneficiaries, MCC Program Procurement Guidelines The Management Unit will serve as the regional and local government and ensure procurements are consistent principal link between MCC and the representatives, entities with an interest with the procurement plan adopted by Government, and will be accountable or involvement in the implementation MCA-Moldova pursuant to the Program for the successful execution of the of the Program, and any applicable civil Implementation Agreement, unless MCC Program, each Project, and each society and private sector otherwise agrees in writing. representatives. The establishment and Activity. As a Government entity, MCA- composition of any such regional, Moldova will be subject to Government Annex II—Multi-Year Financial Plan informal consultative groups will also audit requirements. As a recipient of Summary MCC Funding, MCA-Moldova will also be subject to MCC approval. This Annex II summarizes the Multi- be subject to MCC audit requirements. (2) Roles and Responsibilities. Year Financial Plan for the Program. Consistent with the Governance (d) Implementing Entities. Guidelines, the Consultative Group (and Subject to the terms and conditions of 1. General this Compact and any other related any informal, regional stakeholders A multi-year financial plan summary agreements entered into in connection committees established by the Steering (‘‘Multi-Year Financial Plan Summary’’) with this Compact, the Government and Committee) will be responsible for is attached hereto as Exhibit A. By such MCC have identified certain principal continuing the consultative process time as is specified in the PIA, the public institutions that may or will throughout implementation of the Government will adopt, subject to MCC serve as implementing entities (each, an Program. While the Consultative Group approval, a multi-year financial plan ‘‘Implementing Entity’’) to implement (and any informal, regional stakeholders that includes, in addition to the multi- and carry out certain Projects and/or committees established by the Steering year summary of estimated MCC Activities (and/or any component Committee) will not have any decision- Funding and the Government’s thereof) in furtherance of this Compact. making authority, it will be responsible contribution of funds and resources, the Any Implementing Entity will be subject for, inter alia, reviewing, at the request annual and quarterly funding to review and approval by MCC. The of the Steering Committee or the requirements for the Program (including Government will ensure that the roles Management Unit, certain reports, administrative costs) and for each and responsibilities of each agreements, and documents related to Project, projected both on a commitment Implementing Entity and other the implementation of the Program in and cash requirement basis (‘‘Multi-Year appropriate terms are set forth in an order to provide advice and input to Financial Plan’’). MCA-Moldova regarding the agreement between MCA-Moldova and implementation of the Program. each Implementing Entity, which Exhibit A—Multi-Year Financial Plan (iii) Management Unit. agreement must be in form and Summary

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MULTI-YEAR FINANCIAL PLAN SUMMARY—PROJECTED DISBURSEMENTS (US$)

Project Prior to EIF Year 1 Year 2 Year 3 Year 4 Year 5 Total

1. Transition to High Value Agriculture (THVA) Project

Activity 1.1: Rehabilita- tion of Centralized Ir- rigation Systems (CIS)

Activity 1.2: Irrigation Sector Reform (ISR)

Activity 1.3: Access to Agricultural Finance (AAF)

Activity 1.4: Growing High Value Agri- culture Sales (GHS)

Sub-Total ...... 511,803 8,607,776 19,560,020 30,880,103 28,323,440 13,890,259 101,773,401

2. Road Rehabilitation Project

Activity 2.1: M2 Sarateni—Drochia Junction

Activity 2.2: M2 Drochia Junction—Otaci Stud- ies

Sub-Total ...... 37,500 2,037,500 26,278,000 52,206,000 39,142,000 13,139,000 132,840,000

3. Monitoring and Evaluation (M&E)

Monitoring and Evalua- tion

Sub-Total ...... 20,000 489,250 310,844 939,745 399,556 1,379,536 3,538,931

4. Program Administration and Audit

MCA-Moldova

Fiscal Agent/Procure- ment Agent

Audit

Sub-Total ...... 362,691 4,822,771 4,680,772 4,554,660 4,750,702 4,676,072 23,847,668

Grand Total .... 2931,994 15,957,297 50,829,636 88,580,508 72,615,698 33,084,867 262,000,000

Annex III—Description of Monitoring The M&E Plan may be modified from Activities to determine their efficiency and Evaluation Plan time to time with MCC approval and effectiveness, and (c) a methodology without requiring an amendment to this for assessment and rigorous evaluation This Annex III (this ‘‘M&E Annex’’) Annex III. of the outcomes and impact of the generally describes the components of Program (‘‘Evaluation Component’’). 1. Overview the Monitoring and Evaluation Plan Information regarding the Program’s (‘‘M&E Plan’’) for the Program. The MCC and the Government will performance, including the M&E Plan, actual content and form of the M&E Plan formulate and agree to, and the and any amendments or modifications will be agreed to by MCC and the Government will implement, or cause to thereto, as well as progress and other Government in accordance with the be implemented, an M&E Plan that reports, will be made publicly available Program Implementation Agreement. specifies (a) How progress toward the on the Web site of MCA-Moldova and Compact Goal, Program Objective and elsewhere. 2 Total commitments of Compact Implementation Project Objectives will be monitored 2. Program Logic Funding are expected to be approximately US$8.0 ‘‘ ’’ million. Disbursement of Compact Implementation ( Monitoring Component ), (b) a process Funding will continue after entry into force of the and timeline for the monitoring of The M&E Plan will be built on a logic Compact. planned, ongoing, or completed Project model which illustrates how the

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Program, Projects and Activities The M&E Plan will establish baselines the extent practicable. Subject to prior contribute to the Compact Goal, the which measure the situation prior to a written approval from MCC, MCA- Program Objective and the Project development intervention, against Moldova may add Indicators or refine Objectives. which progress can be assessed or the definitions and Targets of existing comparisons made (each a, ‘‘Baseline’’). Indicators. 3. Monitoring Component MCA-Moldova will collect Baselines on (i) Compact Indicators. To monitor progress toward the the selected Indicators or verify already (1) Goal. The M&E Plan will contain achievement of the impact and collected Baselines where applicable the following Indicators related to the outcomes, the Monitoring Component of and as set forth in the M&E Plan. Compact Goal. The Target of these the M&E Plan will identify (a) The (a) Indicators. The M&E Plan will Indicators are national goals as specified Indicators (as defined below), (b) the measure the results of the Program using in Moldova’s ‘‘National Development definitions of the Indicators, (c) the quantitative, objective and reliable data Strategy’’ to which the Project sources and methods for data collection, (‘‘Indicators’’). Each Indicator will have contributes, but are not solely (d) the frequency for data collection, (e) benchmarks that specify the expected attributable to the Project: the party or parties responsible, and (f) value and the expected time by which (A) Absolute poverty rate nationwide: the timeline for reporting on each that result will be achieved (‘‘Target’’). 30.2 percent to 20.0 percent by year Indicator to MCC. The M&E Plan will be prepared in 2015; and Further, the Monitoring Component accordance with the MCC Policy for (B) Absolute rural poverty rate: 34.1 will track changes in the selected Monitoring and Evaluation of Compacts percent to 22.6 percent by year 2015. Indicators for measuring progress and Threshold Programs. All Indicators (2) Other Indicators. The M&E Plan towards the achievement of the will be disaggregated by gender, income will contain the Indicators listed in the objectives during the Compact Term. level and age, and beneficiary types to following tables.

TABLE 1—TRANSITION TO HIGH VALUE AGRICULTURE PROJECT OBJECTIVE INDICATORS

Result Indicator Definition of indicator Baseline 3 Year 5

Incomes increase due to transition Increase in the annual profits of Total annual profits of crop pro- 180 390 to high value agriculture inter- crop production per hectare. duction in areas targeted by the ventions. Centralized Irrigation System Rehabilitation Activity (‘‘Target Areas’’) (excluding rent and labor cost)/total Target Areas (US$) 4. Increase in the rent for land paid Average rent paid by lessee to 80 100 to lessors per hectare. lessor per hectare of rented land in Target Areas (US$) 5. Increase in the wage bill paid to Value of labor (total person-days 40 180 labor per hectare. of labor × average daily wage excluding household labor) per annum/total Target Areas (US$) 6. Increase in the annual profits Percent differential between the NA 20% among assisted farms outside annual per hectare profit (ex- of Target Areas. cluding rent and labor costs) re- alized among assisted farms outside of Target Areas and a comparison farm group. Moldova has examples of a model Increase in the area irrigated in Number of hectares of irrigated 1,100 3,460 for transition to high value agri- Target Areas. crops (high value agriculture, culture in centrally irrigated grains and technical crops) in areas and an enabling environ- Target Areas 7. ment (legal, financial, and mar- ket) for replication of the model. Adoption of HVA crops in Target Number of hectares of irrigated 1,800 2,840 Areas. and non-irrigated high value ag- riculture crops (fruits, grapes, vegetables, potatoes, etc.) in Target Areas 8.

TABLE 1.1—REHABILITATION OF CENTRALIZED IRRIGATION SYSTEMS ACTIVITY INDICATORS

Result Indicator Definition of indicator Baseline 9 Year 5

Outcome Level Indicators

Rehabilitated centralized irrigation Command area with access to Hectares of agricultural land with 1,100 15,500 systems can serve a large agri- functional systems expands. access to the functional central- cultural area. ized irrigation systems rehabili- tated under Compact.

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TABLE 1.1—REHABILITATION OF CENTRALIZED IRRIGATION SYSTEMS ACTIVITY INDICATORS—Continued

Result Indicator Definition of indicator Baseline 9 Year 5

Output Level Indicators

Rehabilitated centralized irrigation Centralized irrigation systems re- Number of centralized irrigation NA 11 systems can serve a large agri- habilitated. systems with rehabilitation cultural area. works completed under Com- pact.

TABLE 1.2—IRRIGATION SECTOR REFORM ACTIVITY INDICATORS

Result Indicator Definition of indicator Baseline Year 5

Outcome Level Indicators

Management of centralized irriga- WUAs established under new law Number of WUAs registered under NA ...... 11 tion systems shifted to users. new specific WUAs law. MTAs signed ...... Number of MTAs signed between NA ...... 11 the Government, assisted WUAs, and MCA-Moldova. Effective governance and manage- Improved perception of quality of Percentage of centralized irrigation 41 ...... 75 ment in systems rehabilitated service by water users. systems users satisfied with the under the Compact. timeliness, cost and administra- tion of irrigation 10. . WUAs achieving financial sustain- Number of assisted WUAs where NA ...... 11 or all sys- ability. tariffs collected covers 100% of tems reha- operating costs plus an amount bilitated. for capital/replacement costs. . Active and representative govern- Number of WUAs with annual NA ...... 11 or all sys- ance. plans and year end reports ap- tems reha- proved by their respective gen- bilitated. eral assemblies. . Gender-balanced WUAs’ manage- Number of WUAs having at least NA ...... 9 or 80% of ment and governance. 20% of board member positions systems re- filled by women. habilitated. Enhanced management of water Revised water management policy The Water Law which establishes Water Law cir- Water Law in resources based on river basin framework—with long-term water long-term water rights is in full culated for full force management. rights defined—established. force and effect. comments. and effect.

TABLE 1.3—ACCESS TO AGRICULTURAL FINANCE ACTIVITY INDICATORS 11

Result Indicator Definition of indicator Baseline Year 5

Outcome Level Indicators

Post-harvest infrastructure and New high value agriculture post- Operational cold-storage capacity 0 1210,500. equipment is in place to support harvest infrastructure and of high value agriculture post- increases in high value agri- equipment operating effectively. harvest structures financed culture. under the Access to Agriculture Finance Activity (metric tons). Percentage of the financed 0 75 amount of the investment deemed to be additional 13. Investment Development Support New agricultural loans resulting Number of agricultural loans re- 0 55 Services facilitate creation of from Investment Development ceived by borrowers which re- post-harvest enterprises and re- Services. ceived support from Investment sult in new jobs. Development Services.

Output Level Indicators

Farmers and agricultural busi- Affordable financing provided for Amount of loans provided under 0 14,900,000 nesses have enhanced access post-harvest infrastructure the Access to Agriculture Fi- to affordable and adequate fi- through the High Value Agri- nance Activity for post-harvest nance. culture Post-Harvest Credit Fa- infrastructure (US$). cility.

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TABLE 1.4—GROWING HIGH VALUE AGRICULTURE SALES (USAID-ADMINISTERED) ACTIVITY INDICATORS 14

Result Indicator Definition of indicator Baseline Year 5

Outcome Level Indicators

Trade relations of Moldovan high Value of sales facilitated ...... Value of annual sales facilitated by NA 10,500,000 value agriculture suppliers are the Activity contractor on behalf enhanced due to promotion ac- of Moldovan producers or pro- tivities. ducer groups (US$).

Farmers, producer business co- Farmers apply acquired knowl- Number of farmers adopting prac- NA 2,800 operatives, and exporters meet edge. tices presented through tech- buyer requirements, lower costs, nical assistance programs, capture price premiums, and in- among farmers within Target crease sales due to technical as- Areas and farmers outside Tar- sistance. get Areas under the Growing High Value Agriculture Sales Activity. Enabling environment for high Reduced risk of export bans due Moldova sanitary and NA Audit value agriculture production and to improved export certification phytosanitary services achieve ‘‘passed.’’ export market access is im- and inspection systems. compliance with IPPC, ISPM proved due to implementation of Guidelines 7, 20 and 23 and the policy and sanitary and Central Phytosanitary Labora- phytosanitary standards rec- tory is certified to ISO 9000 ommendations. standards as confirmed by an independent auditor.

TABLE 2—ROAD REHABILITATION INDICATORS

Result Indicator Definition of indicator Baseline Year 5

Objective Level Indicators

Transportation conditions are en- Reduced costs to road users ...... Value of time savings and reduced 0 ...... 112,000,000 hanced. vehicle operating costs with the project compared to no rehabili- tation (modeled by HDM4) (US$). Increased vehicular activity ...... Average annual daily traffic on the 3,009 ...... 4,270. road segment rehabilitated under Compact.

Outcome Level Indicators

Road quality is improved ...... Improved international roughness International roughness index for 12 ...... 2. index. the road segment rehabilitated under Compact 15.

Road network is sustainably main- Revised legislative basis for road Appropriate legislation is in full Draft Road Road Fund tained. maintenance funding designed to force and effect in accordance Fund Law Law in full meet the needs for sustainability with the Program Implementation has been force and of roads infrastructure. Agreement to ensure a sufficient presented effect. percentage of revenue from the to the Joint fuel excise tax is automatically Group of allocated to the Road Fund. external partners.

Output Level Indicators

Roads are rehabilitated ...... Total length of roads rehabilitated Total length of road sections reha- 0 ...... 93. bilitated (km).

(b) Data Collection and Reporting. collection methodologies, procedures, Plan will be reviewed to ensure that The M&E Plan will establish guidelines and analysis required for reporting on data reported are as valid, reliable, and for data collection and reporting, and results at all levels. The M&E Plan will timely as resources will allow. The identify the responsible parties. describe any interim MCC approvals for objective of any data quality review will Compliance with data collection and data collection, analysis, and reporting be to verify the quality and the reporting timelines will be conditions plans. consistency of performance data across for Disbursements for the relevant (c) Data Quality Reviews. As 3 All currency figures are in 2009 values using a Project Activities as set forth in the determined in the M&E Plan or as market conversion rate of 10.52 MDL/US$. Program Implementation Agreement. otherwise requested by MCC, the quality 4 After Year 5, MCC forecasts this figure will The M&E Plan will specify the data of the data gathered through the M&E reach a peak value of 1,540 US$. The target refers

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different implementation units and institutions. Subject to Section 3.2(b) of methodologies employing reporting institutions. Such data quality the Compact, MCA–Moldova is randomization of access to the reviews also will serve to identify where responsible for implementation of the Centralized Irrigation System those levels of quality are not possible, M&E Plan. MCA–Moldova will oversee Rehabilitation Activity and Irrigation given the realities of data collection. all Compact-related monitoring and Management Transfer Activity will not (d) Management Information System. evaluation activities conducted for each be a necessary element of the The M&E Plan will describe the of the Projects, ensuring that data from evaluation. This strategy is contingent information system that will be used to all implementing entities is consistent, on timely execution of the Centralized collect data, store, process and deliver accurately reported and aggregated into Irrigation System Rehabilitation Activity information to relevant stakeholders in regular Compact performance reports as that would allow at least one growing such a way that the Program described in the M&E Plan. season after improved irrigation to be information collected and verified observed. pursuant to the M&E Plan is at all times 4. Evaluation Component (2) For the Access to Agricultural accessible and useful to those who wish The evaluation component of the Finance Activity, the incremental to use it. The system development will M&E Plan will contain three types of impact that can be attributed to MCC’s take into consideration the requirement evaluations: (a) Impact evaluations; (b) investments will be estimated by and data needs of the components of the project performance evaluations; and (c) comparing outcomes such as total Program, and will be aligned with special studies. The evaluation investment and profitability between existing MCC systems, other service component of the M&E Plan will those who received loans through the providers, and ministries. describe the purpose of the evaluation, program and a comparison group. A (e) Role of MCA–Moldova. The methodology, timeline, required MCC suitable method for creating a monitoring and evaluation of this approvals, and the process for collection comparison group is expected to Compact spans discrete Projects and and analysis of data for each evaluation. include an element of randomized will involve a variety of governmental, The results of all evaluations will be credit provision. Challenges such as the non-governmental, and private sector made publicly available in accordance availability of other donor financing and with MCC’s guidelines for monitoring the potentially limited scope of post- and will be assessed only with respect to irrigation and evaluation plans posted from time harvest investment in Moldova may systems which have been rehabilitated and have to time on the MCC Web site (the ‘‘MCC dictate amendments to this strategy completed one growing season after rehabilitation completion. Policy for Monitoring and Evaluation of during the evaluation design phase. 5 The target refers and will be assessed only with Compacts and Threshold Programs’’). Since gaps exist in many countries’ respect to irrigation systems which have been (a) Impact Evaluation. The M&E Plan financial markets where banks rely on a rehabilitated and have completed one growing will include a description of the high level of collateral and equity season after rehabilitation completion. methods to be used for impact markets are under-developed, it would 6 After Year 5, MCC forecasts this figure will evaluations and plans for integrating the reach a peak value of 420 US$. The target refers and be of value for Moldova, MCC, and the will be assessed only with respect to irrigation evaluation method into Project design. donor community to understand the systems which have been rehabilitated and have Based on in-country consultation with benefits and costs of subsidized lending. completed one growing season after rehabilitation stakeholders, the strategies outlined A mid-term review will be part of the completion. below were jointly determined as 7 After Year 5, MCC forecasts this figure will evaluation plan, and the activity may be reach a peak value of 13,000 hectares. having the strongest potential for terminated or scaled up depending 8 After Year 5, MCC forecasts this figure will rigorous impact evaluation. The M&E upon the results of this mid-term reach a peak value of 9,300 hectares. Plan will further outline in detail these evaluation. 9 All currency figures are in 2009 values using a methodologies. Final impact evaluation (3) For the Growing High Value market conversion rate of 10.52 MDL/US$. strategies are to be included in the M&E Agriculture Sales Activity, the 10 Index of perceptions/satisfaction with timeliness, cost, and administrative service is Plan. The following is a summary of the evaluation is expected to determine how measured through a weighted average of potential impact evaluation the Activity trainings affect prices, percentages of users answering ‘‘4’’ and ‘‘5’’ to methodologies: profit margins, and yields. As it is questions 20.1.3 (50 percent), 21.1.1 (25 percent), (i) Transition to High Value intended that the Growing High Value and 21.4.1 (25 percent) of the Moldova transition Agriculture Project. to high value agriculture Baseline Farm Survey Agriculture Sales Activity of the completed in 2009. (1) The Centralized Irrigation System Compact would be implemented by 11 The achievements of these targets are subject to Rehabilitation Activity and Irrigation USAID, close coordination in the the continuation and completion of the Activity Management Transfer Sub-Activity will evaluation would be required. MCC and after the pilot phase. be examined in conjunction with the USAID are currently in the process of 12 Based upon a projected cumulative five year MCC sponsored impact evaluation in loan volume of 14,900,000 US$, a price per metric defining how this coordination would ton for cold storage capacity of 750 US$, a loan-to- order to measure the combined effect of occur and confirming the feasibility of investment ratio of 60 percent, and approximately improved access to water and the such coordination. Randomized 50 percent of total loans financed devoted to cold technical assistance offered under the selection criteria are expected to be an storage. Cold storage facility is assumed to be Growing High Value Agriculture Sales operational within one year of the loan issuance. element of the evaluation. 13 For example, similar individuals who do not Activity as well as the stand alone value (ii) Road Rehabilitation Project. access financing from the project are expected to of the irrigation rehabilitation. Over A rigorous evaluation of the impact of find financing equivalent to or less than 25 percent time, hectares irrigated, hectares the Road Rehabilitation Project is not of the financing received by project beneficiaries. producing high value agriculture crops, envisioned due to the lengthy time of 14 The achievements of these targets are subject to and farm profits in areas where the construction and the natural time full funding of this Activity by MCC (US$4.4 million) and USAID (US$9.0 million, subject to Centralized Irrigation System required for the economy to adapt to the availability of funds). In the case of partial funding Rehabilitation Activity and Irrigation improvement. of this Activity, the targets will be revised by Management Transfer Activity are (b) Final Evaluation. The M&E Plan mutual agreement of MCC, USAID, and MCA- implemented should increase will make provision for final Project Moldova in the M&E Plan. ‘‘ ’’ 15 The target represents the minimum dramatically compared to areas outside level evaluations ( Final Evaluations ). International Roughness Index of the road segment the project area, and the path of With the prior written approval of MCC, during the life of the Compact. causation would be clear, therefore MCA–Moldova will engage independent

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evaluators to conduct the Final Program that underlies the any covenant, obligation, or Evaluations at the end of each Project. accomplishment of the Program responsibility of the Government or The Final Evaluations will review Objective, Project Objectives and MCA-Moldova under this Compact, the progress during Compact Activity outcomes and outputs. Program Implementation Agreement, implementation and provide a However, such assumptions and risks any supplemental agreement, or any qualitative context for interpreting will not excuse any Party’s performance Program Guidelines has occurred or is monitoring data and impact evaluation unless otherwise expressly agreed to in continuing. MCA-Moldova will have findings. They must at a minimum (i) writing by the Parties. delivered to MCC (x) evidence of the evaluate the efficiency and effectiveness 6. Implementation of the M&E Plan adoption and publication of the of the Project Activities, (ii) determine Establishment Decree, and (y) an up-to- if and analyze the reasons why the (a) Approval and Implementation. date extract from the state registry Compact Goal, Program Objective and The approval and implementation of the verifying that MCA-Moldova is a fully- Project Objective(s), outcome(s) and M&E Plan, as amended from time to formed and registered public institution output(s) were or were not achieved, time, will be in accordance with the under the laws of Moldova. (iii) identify positive and negative Program Implementation Agreement (c) MCA-Moldova will be sufficiently unintended results of the Program, (iv) and any other relevant supplemental mobilized in order for MCA-Moldova to provide lessons learned that may be agreement, and the MCC Policy for be able to fully perform its obligations applied to similar projects, and (v) Monitoring and Evaluation of Compacts and to act on behalf of the Government. assess the likelihood that results will be and Threshold Programs. (d) MCA-Moldova will have adopted sustained over time. Annex IV Conditions to Disbursement a Procurement Plan, in form and (i) Special Studies. The M&E Plan will of Compact Implementation Funding substance satisfactory to MCC, with include a description of the methods to respect to the Compact Implementation This Annex IV sets forth the be used for special studies, as necessary, Funding, and such Procurement Plan conditions precedent applicable to funded through this Compact or by remains in full force and effect. Disbursements of Compact MCC. Plans for conducting the special (e) MCA-Moldova will have adopted a Implementation Funding (each a ‘‘CIF studies will be determined jointly Fiscal Accountability Plan, in form and Disbursement’’). Capitalized terms used between MCA–Moldova and MCC substance satisfactory to MCC, and such in this Annex IV and not defined in this before the approval of the M&E Plan. Fiscal Accountability Plan remains in Annex IV or in the Compact have the The M&E Plan will identify and make full force and effect. provision for any other special studies, meanings assigned to such terms in the (f) The Government will have adopted ad hoc evaluations, and research that Program Implementation Agreement. and published a decree, in form and may be needed as part of the monitoring Upon execution of the Program substance satisfactory to MCC, and evaluating of this Compact. Either Implementation Agreement, each CIF administratively implementing the tax MCC or MCA–Moldova may request Disbursement will be subject to the exemption mechanism as set forth in the special studies or ad hoc evaluations of terms and conditions of the Program Compact, and such decree will remain Projects, Project Activities, or the Implementation Agreement (including, in full force and effect. Program as a whole prior to the without limitation, Section 3.3 thereof). (g) The Fiscal Agent will have been expiration of the Compact Term. When 1. Conditions to the Initial CIF duly appointed, and MCA-Moldova will MCA–Moldova engages an evaluator, Disbursement have duly executed the Fiscal Agent the engagement will be subject to the Agreement, and such agreement will be prior written approval of MCC. Contract Each of the following conditions in full force and effect without terms must ensure non-biased results precedent must have been met to MCC’s modification, alteration, rescission, or and the publication of results. satisfaction prior to the initial CIF (c) Request for Ad Hoc Evaluation or Disbursement: suspension of any kind, unless Special Study. If MCA–Moldova (a) Prior to any CIF Disbursement into otherwise agreed by MCC, and no requires an ad hoc independent any Permitted Account in accordance material breach has occurred or is evaluation or special study at the with an approved Disbursement continuing thereunder. request of the Government for any Request, MCA-Moldova will have (h) The Procurement Agent will have reason, including for the purpose of delivered to MCC a complete, correct, been duly appointed, and MCA- contesting an MCC determination with and fully executed Disbursement Moldova will have duly executed an respect to a Project or Activity or to seek Request for the relevant Disbursement agreement with the Procurement Agent, funding from other donors, no MCC Period, in form and substance and such agreement will be in full force Funding or MCA–Moldova resources satisfactory to MCC and submitted in and effect without modification, may be applied to such evaluation or accordance with the Reporting alteration, rescission, or suspension of special study without MCC’s prior Guidelines. Each Disbursement Request any kind, unless otherwise agreed by written approval. will include the following reference MCC, and no material breach has number: GR08MDA10010. occurred or is continuing thereunder. 5. Other Components of the M&E Plan (b)(i) Each Activity being funded by (i) The Bank will have been duly In addition to the monitoring and such CIF Disbursement is consistent appointed, and MCA-Moldova and the evaluation components, the M&E Plan with the goal of facilitating the Fiscal Agent will have duly executed will include the following components implementation of the Compact (ii) the Bank Agreement, and such for the Program, Projects and Project there has been no violation of, and the agreement will be in full force and effect Activities, including, where use of the requested funds for the without modification, alteration, appropriate, roles and responsibilities of purposes requested will not violate, the rescission, or suspension of any kind, the relevant parties and providers: limitations on the use or treatment of (1) unless otherwise agreed by MCC, and no (a) Costs. A detailed cost estimate for MCC Funding, as set forth in this material breach has occurred or is all components of the M&E Plan; and Compact, including under Section 2.7, continuing thereunder. (b) Assumptions and Risks. Any or (2) Compact Implementation (j) The Permitted Account will be assumption or risk external to the Funding; and (iii) no material breach of established.

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2. Conditions to Each CIF Disbursement Annex V Definitions Government has the meaning Thereafter Access to Agricultural Finance provided in the Preamble. Activity has the meaning provided in Government Decision No. 1140 has Each of the following conditions the meaning provided in Schedule F of precedent must have been met to MCC’s paragraph 1(a) of Part B of Annex I. Activity has the meaning provided in Annex VI. satisfaction prior to the applicable CIF Growing High Value Agriculture Sales Disbursement: Part B of Annex I. Additional Representative has the Activity has the meaning provided in (a) Prior to any CIF Disbursement into meaning provided in Section 4.2. paragraph 1(a) of Part B of Annex I. any Permitted Account in accordance Audit Guidelines has the meaning High Value Agriculture Post-Harvest with an approved Disbursement provided in Section 3.8(a). Credit Facility has the meaning Request, MCA-Moldova will have Baseline has the meaning provided in provided in paragraph 1(a)(iii) of Part B delivered to MCC a complete, correct, paragraph 3 of Annex III. of Annex I. and fully executed Disbursement Centralized Irrigation System Implementation Letter has the Request for the relevant Disbursement Rehabilitation Activity has the meaning meaning provided in Section 3.5. Implementing Entity has the meaning Period, together with any applicable provided in paragraph 1(a) of Part B of provided paragraph 3(d) of Part B of Periodic Reports covering such Annex I. Disbursement Period, in each case in CIF Disbursement has the meaning Annex I. Implementing Entity Agreement has form and substance satisfactory to MCC provided in Annex IV. the meaning provided in paragraph 3(d) and submitted in accordance with the CLD has the meaning provided in of Part B of Annex I. Reporting Guidelines. Each paragraph 1(a)(iii)(1) of Part B of Annex Indicators has the meaning provided Disbursement Request will include the I. in paragraph 3(a) of Annex III. following reference number: Compact has the meaning provided in GR08MDA10010. Inspector General has the meaning the Preamble. provided in Section 3.8(a). (b) (i) Each Activity being funded by Compact Goal has the meaning Investment Development Services has such CIF Disbursement is consistent provided in Section 1.1. the meaning provided in paragraph of with the goal of facilitating the Compact Implementation Funding 1(a)(iii) of Part B of Annex I. implementation of the Compact; (ii) has the meaning provided in Section Irrigation Management Transfer Sub- there has been no violation of, and the 2.2(a). Activity has the meaning provided in use of the requested funds for the Compact Records has the meaning paragraph 1(a)(ii) of Part B of Annex I. purposes requested will not violate, the provided in Section 3.7(a). Irrigation Sector Reform Activity has limitations on the use or treatment of (1) Compact Term has the meaning the meaning provided in paragraph 1(a) MCC Funding, as set forth in this provided in Section 7.4. of Part B of Annex I. Compact, including under Section 2.7, Construction Vendor has the meaning Joint Group has the meaning provided or (2) Compact Implementation provided in Schedule E of Annex VI. in paragraph 2(a) of Part B of Annex I. Funding; (iii) no material breach of any Consultative Group has the meaning M2 has the meaning provided in covenant, obligation, or responsibility of provided in paragraph 3(c)(ii)(1) of Part paragraph 2(a) of Part B of Annex I. the Government or MCA-Moldova under B of Annex I. M2 Road Activity has the meaning this Compact, the Program Covered Provider has the meaning provided in paragraph 2(a)(i) of Part B Implementation Agreement, any provided in Section 3.7(c). of Annex I. supplemental agreement, or any Customs Code has the meaning M&E Annex has the meaning Program Guidelines has occurred or is provided in Schedule F of Annex VI. provided in Annex III. continuing; and (iv) any Taxes paid Customs Tariff Law has the meaning M&E Plan has the meaning provided with MCC Funding through the date provided in Schedule B of Annex VI. in Annex III. Disbursement has the meaning ninety (90) days prior to the start of the Management Unit has the meaning provided in Section 2.4. applicable Disbursement Period have provided in paragraph 3(c)(iii)(1) of Part Establishment Decree has the meaning been reimbursed by the Government in B of Annex I. provided in Section 3.2(b). full in accordance with this Compact. MCA Act has the meaning provided in Evaluation Component has the Section 2.2(a). (c) The MCA-Moldova Procurement meaning provided in paragraph 1 of MCA-Moldova has the meaning Plan will be in full force and effect. Annex III. provided in Section 3.2(b). (d) The MCA-Moldova Fiscal Excess CIF Amount has the meaning MCA-Moldova Bylaws has the Accountability Plan will be in full force provided in Section 2.2(d). meaning provided in paragraph 3(c) of and effect. Exempt Employers has the meaning Part B of Annex I. (e) Each of the Fiscal Agent provided in Schedule D of Annex VI. MCC has the meaning provided in the Agreement, the MCA-Moldova Exempt Individual has the meaning Preamble. agreement with the Procurement Agent, provided in Schedule D of Annex VI. MCC Environmental Guidelines has and the Bank Agreement will be in full Exempt Personal Income has the the meaning provided in Section 2.7(c). force and effect without modification, meaning provided in Schedule D of MCC Funding has the meaning alteration, rescission, or suspension of Annex VI. provided in Section 2.3. any kind, unless otherwise agreed by Exempt Vendor has the meaning MCC Gender Policy has the meaning MCC, and no material breach has provided in Schedule C of Annex VI. provided in paragraph 3 of Part A of Final Evaluations has the meaning occurred or is continuing thereunder. Annex I. provided in paragraph 4(b) of Annex III. MCC Policy for Monitoring and (f) The Permitted Account will be in Fiscal Agent has the meaning Evaluation of Compacts and Threshold effect. provided in paragraph 3(e) of Part B of Programs has the meaning provided for (g) The decree administratively Annex I. in paragraph 4 of Annex III. implementing the tax exemption Governance Guidelines has the MCC Program Procurement mechanism set forth in the Compact meaning provided in paragraph 3(c) of Guidelines has the meaning provided in will be in full force and effect. Part B of Annex I. Section 3.6.

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MCC Web site has the meaning Provider has the meaning provided in Procedures provided in Section 2.7. Section 3.7(c). The beneficiaries of the exemption Moldova has the meaning provided in Reporting Guidelines means the MCC will procure services, goods and works the Preamble. ‘‘Guidance on Quarterly MCA exempted from VAT, except the Monitoring Component has the Disbursement Request and Reporting procurement of petroleum products, meaning provided in paragraph 1 of Package’’ posted by MCC on the MCC which is addressed in Schedule E. Annex III. Web site or otherwise publicly made MTAs has the meaning provided in available. Purchase of Goods (Except Imported paragraph 1(a)(ii)(1) of Part B of Annex River Basin Management Sub-Activity Goods), Services and Works I. has the meaning provided in paragraph Multi-Year Financial Plan has the 1(a)(ii) of Part B of Annex I. In order for the beneficiaries of the exemption to obtain the VAT exemption meaning provided in paragraph 1 of Road Rehabilitation Project has the from suppliers of the goods (except Annex II. meaning provided in paragraph 2(a) in imported goods), services and works Multi-Year Financial Plan Summary Part B of Annex I. has the meaning provided in paragraph supplied in Moldova, the MCA-Moldova State Fiscal Inspectorate has the 1 of Annex II. must provide the beneficiary of the meaning provided in Schedule E of OMB has the meaning provided in exemption with an official letter from Annex VI. Section 3.8(b). MCA-Moldova, issued on official OP 4.12 has the meaning provided in Steering Committee has the meaning letterhead, which will confirm that such paragraph 3 of Part A of Annex I. provided in paragraph 3(c)(i)(1) of Part goods, services or works are exempted Other Taxes has the meaning B of Annex I. from VAT, and which will contain the provided in Schedule I of Annex VI. Target has the meaning provided in name of the project and the name of the Party and Parties has the meaning paragraph 3(a) of Annex III. beneficiary of the exemption. provided in the Preamble. Target Areas has the meaning This letter will be attached to the Permitted Account has the meaning provided in Table 1 of Annex III. applicable provider’s invoice or waybill provided in Section 2.4. Tax Agent has the meaning provided (‘‘factura’’). The factura will serve as Personal Income Taxes has the in Schedule I of Annex VI. strict evidence of delivery of the goods, meaning provided in Schedule D of Tax Code has the meaning provided provision of services or rendering of Annex VI. in Schedule A of Annex VI. works. The ‘‘factura’’ will be PFIs has the meaning provided in Taxes has the meaning provided in countersigned by an authorized paragraph 1(a)(iii)(1) of Part B of Annex Section 2.8(a). representative of the beneficiary of the I. Transition to High Value Agriculture exemption. An original of the factura PPP has the meaning provided in Project has the meaning provided in will be kept by the applicable provider paragraph 2(b) of Part B of Annex I. paragraph 1(a) of Part B of Annex I. and will be provided in case of Principal Representative has the United States Dollars or US$ means inspection by fiscal authorities to show meaning provided in Section 4.2. the lawful currency of the United States the reason for exemption from VAT. Procurement Agent has the meaning of America. provided in paragraph 3(f) of Part B of Imported Goods USAID has the meaning provided in Annex I. paragraph 1(a) of Part B of Annex I. Program has the meaning provided in For the importation of goods into the Preamble. VAT has the meaning provided in Moldova, the exemption from VAT will Program Assets include MCC Section 2.8(b). be applicable while clearing the goods Funding, interest accrued thereon, and Vendor has the meaning provided in for customs. To receive the exemption any assets, goods or property (real, Schedule A of Annex VI. from VAT, the beneficiary of the tangible or intangible) purchased or Water Law has the meaning provided exemption will file a request to the financed in whole or in part (directly or in paragraph 1(a)(ii) of Part B of Annex customs office supported by: indirectly) by MCC Funding. I. • A letter from MCA-Moldova, issued Program Funding has the meaning WUA has the meaning provided in on official letterhead, which will provided in Section 2.1. paragraph 1(a) of Part B of Annex I. confirm that the goods are imported Program Guidelines means WUA Law has the meaning provided exclusively for the furtherance of the collectively the Audit Guidelines, the in paragraph 1(a)(ii) of Part B of Annex Compact, the name of the project and MCC Environmental Guidelines, the I. the name of the beneficiary of the Governance Guidelines, the MCC exemption; Annex VI Specific Tax Exemption • Program Procurement Guidelines, the Mechanisms Invoice for the goods; Reporting Guidelines, the MCC Policy • Copy of the purchase order or for Monitoring and Evaluation of Schedule A Value Added Tax (VAT) contract for the delivery of the Compacts and Threshold Programs, and Legal Basis for Exemption applicable goods to be used in any other guidelines, policies or furtherance of the Projects; guidance papers from time to time 1. The Compact. • Transportation documents (CMR, published on the MCC Web site. 2. Article 4, clause (1) of the Tax Code TIR carnet, Airway bill, etc.); and Program Implementation Agreement of Moldova (‘‘Tax Code’’) (Law 1163– • or PIA has the meaning provided in XIII, dated April 24, 1997). Certificates, authorizations, licenses, if required by Moldovan laws Section 3.1. Beneficiaries of Exemption Program Objective has the meaning and regulations for the importation of provided in Section 1.2. 1. MCA-Moldova. the goods. Project(s) has the meaning provided 2. Each Implementing Entity, and any Clearance will be granted by the in Section 6.2(b). vendor procuring services, goods or customs offices with the exemption Project Objective(s) has the meaning works in furtherance of the Compact from VAT based on the submission of provided in Section 1.3. (each a ‘‘Vendor’’). the above-mentioned documents

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Schedule B Customs Duties Vendor will earn taxable income from Vendor making large-scale Moldovan sources other than from procurements of petroleum products for Legal Basis for Exemption Compact-related activities, then such use in connection with such 1. The Compact. income will be recorded and accounted construction projects (a ‘‘Construction 2. Article 28, clause (n), and Article for by the Exempt Vendor separately Vendor’’). 31 and Note 1 of Annex 2 of the Law from the income from Compact-related Procedures on the Customs Tariff (the ‘‘Customs activities and will be outside the scope Tariff Law’’) (No. 1380–XIII, dated of the tax exemptions provided under A Construction Vendor procuring November 20, 1997). this Compact. and/or importing petroleum products to be used for the Compact Program will Beneficiaries of Exemption Schedule D Individual Income Tax pay the VAT and excise duties at the MCA-Moldova, each Implementing Legal Basis for Exemption point of purchase and request a refund Entity, and any Vendor importing goods of these taxes. 1. The Compact. for the furtherance of the Compact. In order to receive such refund, a 2. Article 4, clause (1) of the Tax Construction Vendor should submit to Code. Procedures State Fiscal Inspectorate under the Clearance of the imported goods Beneficiaries of Exemption Ministry of Finance of Moldova (the without customs duties will be All natural persons working in ‘‘State Fiscal Inspectorate’’) the performed by the customs offices. following documents: furtherance of the Compact (each • In order to obtain clearance for ‘‘Exempt Individual’’), other than An official letter from MCA- imported goods, the beneficiary of the nationals of Moldova. Non-Moldovan Moldova, issued on official letterhead, exemption will submit a request for nationals working in furtherance of the which will confirm the quantity/volume such goods to be exempted from Compact who, after passage of time, of petroleum products specified in such customs duties, supported by: Construction Vendor’s bid for a program • become Moldovan ‘‘tax residents’’ for the A letter from MCA-Moldova, issued purposes of Moldovan tax law will also contract, and which will contain the on official letterhead, which will be deemed Exempt Individuals. name of the construction project and the confirm that the goods are imported for name of the beneficiary of the the exclusive use of the Compact, and Procedures exemption; which will contain the name of the • The Exempt Individuals will be • An official request issued by the project and the name of the beneficiary exempt from any income, social Construction Vendor requesting that the of the exemption; security, medical insurance or other State Fiscal Inspectorate refund VAT • The invoice for the goods; mandatory taxes and charges imposed and excise-duty paid, certifying (i) the • A copy of the purchase order or by Moldova or any subdivision thereof, maximum quantity/volume of contract for the goods; regarding personal income (the petroleum products specified in the • Transportation documents (CMR, ‘‘Personal Income Taxes’’) received in beneficiary of the exemption’s bid TIR carnet, Airway bill, etc.); and connection with income earned from proposal for a Program contract (which • Certificates, authorizations, works and services performed in amount will be the maximum allowable licenses, if required for the importation furtherance of the Compact (the quantity subject to reimbursement), (ii) of goods. ‘‘Exempt Personal Income’’). the quantity of petroleum products • Schedule C Corporate Income Tax MCA-Moldova, the Implementing subject to reimbursement in the pending Entities, the Fiscal Agent and the request, (iii) the quantity of petroleum Legal Basis for Exemption Procurement Agent and any other products for which VAT and excise 1. The Compact. Vendor who employs Exempt duties have been previously reimbursed 2. Article 4, clause (1) of the Tax Individuals (the ‘‘Exempt Employers’’) to the beneficiary of the exemption Code. will not withhold or pay Personal under such contract, and (iv) that the Income Taxes for the Exempt petroleum products in the present Beneficiaries of Exemption Individuals. request were used in connection with 1. MCA-Moldova. • The Exempt Individual will have no the named construction project; and 2. Each Implementing Entity and any obligation to file an income tax return • The original fiscal invoice received Vendor working in furtherance of the in Moldova in relation to Exempt from the supplier of the petroleum Compact (each an ‘‘Exempt Vendor’’), Personal Income. products, while procuring them in the other than Vendors that are nationals of • The Exempt Employers will have territory of Moldova and/or customs Moldova. no obligation under Moldovan law in declaration issued in the name of the connection with the completion of any Construction Vendor, while importing Procedures mandatory filings, registrations and the petroleum products into Moldova. • MCA-Moldova and all Exempt periodic reporting in relation to the The above-mentioned documents will Vendors will be entitled to an Exempt Personal Income of the Exempt be submitted to State Fiscal Inspectorate exemption from Moldovan tax on Individuals. on a monthly basis for the petroleum income earned from supplying goods, Schedule E Taxation of Petroleum purchases made during the previous works or services in furtherance of the Products calendar month. Compact. The amount of VAT and excise-duties • MCA-Moldova will not be required Legal Basis for Exemption subject to refund should be determined to withhold tax from payments made to 1. The Compact. by the Construction Vendors and an Exempt Vendor. 2. Article 4, clause (1) of the Tax confirmed by the State Fiscal • The Exempt Vendor will not file Code. Inspectorate based on the amounts the any tax returns in Moldova for income VAT and excise-duties paid at the earned from supplies of goods, works Beneficiaries of Exemption moment of procuring of the petroleum and services in furtherance of the Vendors providing construction products and indicated in the fiscal Compact. In the event that an Exempt services to MCA-Moldova or another invoice(s) and/or customs declaration(s)

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and according to the excise duty rates Compact or for the personal use of the • Transportation documents (CMR, then applicable. Exempt Individual, and which will TIR carnet, Airway bill, etc.); and The amount of the VAT and excise- contain the name of the project and the • Certificates, authorizations, duties should be transfered to the bank name of the beneficiary of the licenses, if required for the importation account(s) of the Vendors opened in the exemption; of goods. banks, who have fiscal relations with • An invoice for the goods, if Clearance will be granted by the budgetary system of Moldova. The applicable; customs offices with the exemption of • decision on refund of these taxes will be A copy of the contract supporting the excise duties based on the taken by the State Fiscal Inspectorate the temporary admission of the goods, if submission of the above-mentioned within 45 days after receiving by the applicable; documents. • State Fiscal Inspectorate of the request. Transportation documents (CMR, TIR carnet, Airway bill, etc.), if Schedule H Customs Procedure Tax Schedule F Temporary Admission of applicable; and Legal Basis for Exemption Equipment, Vehicles, and Household • Certificates, authorizations, Goods licenses, if required for the importation 1. The Compact. Legal Basis for Exemption of goods. 2. Article 7 of the Customs Code (Law Authorization for temporary No. 1149–XIV dated July 20, 2000). 1. The Compact. admission, with the above-mentioned 3. Annex 2 of the Customs Tariff Law 2. Articles 7 and 68 of the Customs exemptions, will be granted by the (No. 1380–XIII, dated November 20, Code of Moldova (the ‘‘Customs Code’’) customs offices based on the submission 1997). (Law No. 1149–XIV, dated July 20, of the above-mentioned documents. Beneficiaries of Exemption 2000). Upon receipt of customs 3. Article 4, clause (1), Article 103, authorization, the beneficiary of the MCA-Moldova, each Implementing clause (2), sub-clause (c) of the Tax exemption will cause the customs Entity, any Vendor importing goods for Code. declaration to be prepared for use in furtherance of the Compact, as 4. Article 28, clause (f) of the Customs submission to the customs office, well as any Exempt Individual Tariff Law (Law No. 1380–XIII, dated whereupon the customs office will clear importing goods for personal use. November 20, 1997). the goods without payment of VAT, Procedures 5. Article 5, clause (3) and Article 7 customs duties, excise duties, customs of the Law on the Manner of procedure taxes, or any other Taxes. Clearance of the imported goods Introduction into the Territory of the If the imported goods are owned by without customs procedure tax will be Republic of Moldova and Re-export of the beneficiary of the exemption, the done by the customs offices. In order to Goods by Individuals (Law No. 1569– above-mentioned invoices and contracts obtain clearance for imported goods, the XV dated December 20, 2002). will not be required. beneficiaries of the exemption will 6. Chapter 7, Annex 1 of the submit a request for such goods to be Schedule G Excise Duty Governmental Decision approving the exempted from customs procedure regulation on implementation of the Legal Basis for Exemption taxes, supported by: • customs procedures, established by the 1. The Compact. A letter from MCA-Moldova, issued Customs Code, No. 1140 (‘‘Government 2. Article 4, clause (1), Article 124, on official letterhead, which will Decision No. 1140’’) dated November 2, clause (2), sub-clause (b) and Article confirm that the goods are imported for 2005. 124, clause (3) of the Tax Code. the exclusive use of the Compact, and Beneficiaries of Exemption which will contain the name of the Beneficiaries of Exemption project and the name of the beneficiary MCA-Moldova, any Implementing MCA-Moldova, any Implementing of the exemption; Entity, and any Vendor importing goods Entity, and any Vendors. • The invoice for the goods; on a temporary basis to be used • A copy of the purchase order or Procedures exclusively in furtherance of the contract for the goods; Compact; as well as any Exempt The exemption is applicable only • Transportation documents (CMR, Individual importing equipment, when importing goods in furtherance of TIR carnet, Airway bill, etc.), if vehicles, and household goods for the implementation of the Compact, applicable; and personal use. which are subject to excise duties, • Certificates, authorizations, Procedures except the procurement of petroleum licenses, if required for the importation products, which is addressed in of goods. The temporary admission of Schedule E. The exemption is granted If the imported goods are owned by equipment, vehicles, and household together with the exemptions from VAT the beneficiary of the exemption, the goods is granted by the customs office, and customs duties. In order to get the above-mentioned invoices and contracts without payment of VAT, customs goods cleared, the beneficiary of the will not be required. duties, excise duties, customs procedure exemption will submit a request for Clearance will be granted by the taxes, or any other Taxes, based on the exemption, supported by: customs offices with the exemption request submitted by the beneficiary of • A letter from MCA-Moldova, issued from the customs procedures tax based the exemption. The request should on official letterhead, which will on the submission of the above- provide the reasons for the temporary confirm that the goods are imported for mentioned documents. admission of the items in accordance the exclusive use of the Compact, and with Government Decision No. 1140 which will contain the name of the Schedule I Other Taxes and be supported by: project and the name of the beneficiary Legal Basis for Exemption • A letter from MCA-Moldova, issued of the exemption; on official letterhead, which will • The invoice for the goods; 1. The Compact. confirm that the goods are temporarily • A copy of the purchase order or 2. Article 4, clause (1) of the Tax imported for the exclusive use of the contract for the goods; Code.

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Beneficiaries of Exemption Committee, National Aeronautics and Aeronautics and Space Administration Any of MCA-Moldova, the Space Administration Headquarters, announces a meeting of the Commercial Implementing Entities, and Vendors; as Washington, DC 20546, (202) 358–2209. Space Committee to the NASA Advisory well as any Exempt Individual, SUPPLEMENTARY INFORMATION: The Council. importing or acquiring property or agenda for the meeting includes the DATES: Tuesday, February 16, 2010, 10 otherwise performing an act or action following topics: a.m.–5 p.m., Eastern. within the scope of the Compact that • Associate Administrator for Public ADDRESSES: NASA Headquarters, 300 E triggers payment of any tax included in Affairs Briefing. Street, SW., Room 6H45, Washington, the Tax Code, other than those • Discussion of Social Media DC 20546. addressed in Schedules A through Opportunities and Challenges. FOR FURTHER INFORMATION CONTACT: Mr. • Schedule H above (the ‘‘Other Taxes’’). Associate Administrator for John Emond, Innovative Partnerships Education Briefing. Program, National Aeronautics and Procedures • Discussion of Opportunities and Space Administration, Washington, DC • Whereas the Other Taxes may be Challenges to Reach K–12 Students. 20546. Phone 202–358–1686, fax: 202– chargeable not only by the tax offices, • Discussion of how to Organize the 358–3878, [email protected]. but also by third parties as agents of the Committee Work Plan. SUPPLEMENTARY INFORMATION: The tax offices (the ‘‘Tax Agent’’), any It is imperative that these meetings be agenda for the meeting includes an beneficiary of exemption will require an held on this date to accommodate the overview of the intended objectives for official letter from MCA-Moldova for the scheduling priorities of the key the Commercial Space Committee and purposes of filing it with the tax office participants. Attendees will be preliminary discussions on some of the or the Tax Agent in order to justify the requested to comply with NASA topic areas that will be explored by the claimed exemption of the relevant Other security requirements, including the Committee in future meetings. These Tax. presentation of a valid picture ID, before topic areas include but are not limited • The official letter from MCA- receiving an access badge. Foreign to exploring opportunities to stimulate Moldova is issued on official letterhead, nationals attending this meeting will be and encourage commercial space as well which will confirm that the event that required to provide a copy of their as the progression of commercial triggers payment of any Other Tax is passport, visa, or green card in addition capability to the ISS and to Low Earth within the scope of the Compact, and to providing the following information Orbit/LEO. This committee will also which contains the name of the project no less than 10 working days prior to explore opportunities for interagency and the name of the beneficiary of the the meeting: Full name; gender; date/ collaboration on commercial space exemption. place of birth; citizenship; visa/green initiatives, and fostering • The Government will ensure that card information (number, type, commercialization on the International the Government actions implementing expiration date); passport information Space Station as a National Lab. The the exemptions covered by the Compact (number, country, expiration date); meeting will be open to the public up will address the procedures applicable employer/affiliation information (name to the seating capacity of the room. It is to Other Taxes. of institution, address, country, phone); imperative that the meeting be held on [FR Doc. 2010–1944 Filed 1–28–10; 8:45 am] and title/position of attendee. To this date to accommodate the expedite admittance, attendees with BILLING CODE 9211–03–P scheduling priorities of the key U.S. citizenship can provide identifying participants. Visitors will need to show information 3 working days in advance a valid picture identification such as a by contacting Ms. Erika Vick via e-mail NATIONAL AERONAUTICS AND driver’s license to enter the NASA at [email protected] or by SPACE ADMINISTRATION Headquarters building (West Lobby— telephone at (202) 358–2209. Persons Visitor Control Center), and must state [Notice (10–015)] with disabilities who require assistance that they are attending the NASA should indicate this. Advisory Council Commercial Space NASA Advisory Council; Meeting Dated: January 22, 2010. Committee meeting in room 6H45, AGENCY: National Aeronautics and P. Diane Rausch, before receiving an access badge. All non-U.S citizens must fax a copy of Space Administration. Advisory Committee Management Officer, their passport, and print or type their ACTION: Notice of Meeting. National Aeronautics and Space Administration. name, current address, citizenship, SUMMARY: In accordance with the [FR Doc. 2010–1919 Filed 1–28–10; 8:45 am] company affiliation (if applicable) to include address, telephone number, and Federal Advisory Committee Act, Public BILLING CODE P Law 92–463, as amended, the National their title, place of birth, date of birth, Aeronautics and Space Administration U.S. visa information to include type, announces a meeting of the newly NATIONAL AERONAUTICS AND number, and expiration date, U.S. Social formed Education and Public Outreach SPACE ADMINISTRATION Security Number (if applicable), and Committee of the NASA Advisory place and date of entry into the U.S., fax [Notice: (10–014)] Council. This will be the first meeting to John Emond, NASA Advisory Council Commercial Space Committee of this Committee. NASA Commercial Space Committee; Executive Secretary, FAX: (202) 358– DATES: February 17, 2010—10 a.m.–4 Meeting p.m. (EST). 3878, by no later than February 9, 2010. AGENCY: National Aeronautics and To expedite admittance, attendees with ADDRESSES: NASA Headquarters, 300 E Space Administration. U.S. citizenship can provide identifying Street, SW., Washington, DC, Room ACTION: Notice of meeting. information 3 working days in advance CD61. by contacting John Emond via e-mail at FOR FURTHER INFORMATION CONTACT: Ms. SUMMARY: In accordance with the [email protected] or by telephone Erika G. Vick, Executive Secretary for Federal Advisory Committee Act, Public at (202) 358–1686 or fax: (202) 358– the Education and Public Outreach Law 92–463, as amended, the National 3878.

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Dated: January 25, 2010. between 8 a.m. and 8 p.m., Eastern time, NATIONAL SCIENCE FOUNDATION P. Diane Rausch, Monday through Friday. Proposal Review Panel for Materials Advisory Committee Management Office, SUPPLEMENTARY INFORMATION: National Aeronautics and Space Research; Notice of Meeting Administration. Title of Collection: International Cover [FR Doc. 2010–1814 Filed 1–28–10; 8:45 am] Page Addendum. In accordance with the Federal BILLING CODE 7510–13–P OMB Control No.: 3145–0205. Advisory Committee Act (Pub. L. 92– Expiration Date of Approval: May 31, 463 as amended), the National Science 2010. Foundation announces the following NATIONAL SCIENCE FOUNDATION meeting: Abstract: The Office of International Science and Engineering within the Name: Site visit review of the Agency Information Collection Materials Research Science and Activities: Comment Request Office of the NSF Director will use the International Cover Page Addendum. Engineering Center (MRSEC) at the AGENCY: National Science Foundation. Principal Investigators submitting Georgia Institute of Technology by NSF ACTION: Notice. proposals to this Office will be asked to Division of Materials Research (DMR) complete an electronic version of the #1203. SUMMARY: The National Science International Cover Page Addendum. Dates & Times: March 2, 2010, 7:30 Foundation (NSF) is announcing plans The Addendum requests foreign a.m.–4:45 p.m. to request clearance for this collection. counterpart investigator/host In accordance with the requirement of information and participant Place: Georgia Tech University, Section 3506 (c) (2) (A) of the demographics not requested elsewhere Atlanta, GA. Paperwork Reduction Act of 1995, we in NSF proposal documents. Type of Meeting: Part-open. are providing opportunity for public The information gathered with the Contact Person: Dr. Thomas Rieker, comment on this action. After obtaining International Cover Page Addendum Program Director, Materials Research and considering public comment, NSF serves four purposes. The first is to Science and Engineering Centers will prepare the submission requesting enable proposal assignment to the Program, Division of Materials Research, OMB clearance of this collection for no program officer responsible for activity Room 1065, National Science longer than three years. with the primary countries involved. No Foundation, 4201 Wilson Boulevard, Comments are invited on (a) Whether current component of a standard NSF the proposed collection of information Arlington, VA 22230, Telephone (703) proposal requests this information. (The 292–4914. is necessary for the proper performance international cooperative activities box of the functions of the Agency, on the standard NSF Cover Page applies Purpose of Meeting: To provide including whether the information shall only to one specific type of activity, not advice and recommendations have practical utility; (b) the accuracy of the wide range of activities supported concerning progress of the MRSEC at the Agency’s estimate of the burden of by OISE.) NSF proposal assignment Georgia Tech. the proposed collection of information; applications are program element-based Agenda (c) ways to enhance the quality, utility, and therefore can not be used to and clarity of the information on determine assignment by country. The Tuesday March 2, 2010 respondents, including through the use second use of the information is of automated collection techniques or program management. OISE is 7:30 a.m.–9:15 a.m. Closed—Executive other forms of information technology; committed to investing in activities in Session. and (d) ways to minimize the burden of all regions of the world. With data from 9:15 a.m.–3:45 a.m. Open—Review of the collection of information of this form, the Office can determine Georgia Tech MRSEC. respondents, including through the use submissions by geographic region. of automated collection techniques or 3:45 a.m.–4:45 a.m. Closed—Executive Thirdly, funding decisions can not be Session. other forms of information technology. made without details for the DATES: Written comments should be international partner not included in Reason for Closing: The work being received by March 30, 2010, to be any other part of the submission reviewed may include information of a assured of consideration. Comments process. The fourth section, counts of proprietary or confidential nature, received after that date will be scientists and students to be supported including technical information; considered to the extent practicable. by the project, are also not available financial data, such as salaries and ADDRESSES: Written comments elsewhere in the proposal since OISE personal information concerning regarding the information collection and budgets do not include participant individuals associated with the requests for copies of the proposed support costs. These factors are all proposals. These matters are exempt information collection request should be important for OISE program under 5 U.S.C. 552 b(c), (4) and (6) of addressed to Suzanne Plimpton, Reports management. the Government in the Sunshine Act. Clearance Officer, National Science Estimated Number of Annual Dated: January 26, 2010. Foundation, 4201 Wilson Boulevard, Respondents: 600. Room 295, Arlington, VA 22230, or by Susanne Bolton, e-mail to [email protected]. Burden on the Public: 150 hours (15 Committee Management Officer. mins each respondent). FOR FURTHER INFORMATION CONTACT: [FR Doc. 2010–1805 Filed 1–28–10; 8:45 am] Suzanne Plimpton on (703) 292–7556 or Dated: January 26, 2010. BILLING CODE 7555–01–P send e-mail to [email protected]. Suzanne H. Plimpton, Individuals who use a Reports Clearance Officer, National Science telecommunications device for the deaf Foundation. (TDD) may call the Federal Information [FR Doc. 2010–1835 Filed 1–28–10; 8:45 am] Relay Service (FIRS) at 1–800–877–8339 BILLING CODE 7555–01–P

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NUCLEAR REGULATORY September 14, 2008, calling into 2. Within 30 days of NRC approval of COMMISSION question the validity of the date on the auditor, the auditor will conduct the which this directive, and the others, had first audit, and the auditor will [Docket No. 03035572, License No. 52– been written. complete the first audit report within 90 25542–01, EA–09–147, NRC–2010–0028] Based on evidence developed during days of NRC approval of the auditor; In the Matter of Beta Gamma Nuclear the investigation, the NRC identified an 3. Following the first audit, three Radiology; Confirmatory Order apparent violation, including that the additional audits will be conducted on Modifying License (Effective BGNR Director, on behalf of BGNR, a quarterly basis at BGNR (four audits Immediately) submitted falsified written directives to completed within approximately one support BGNR’s dispute of the SLIV year); and, I NOV; and that as a result, BGNR 4. Within 30 days of the completion of each audit, BGNR will submit the Beta Gamma Nuclear Radiology maintained incomplete and inaccurate audit report to the NRC for review. (BGNR) (Licensee) is the holder of written directives in violation of 10 CFR 30.9. C. BGNR will request a license medical License No. 52–25542–01, amendment from the NRC to designate issued by the U.S. Nuclear Regulatory The July 2, 2009 NRC letter informed BGNR that the NRC was considering a new RSO on the BGNR license who Commission (NRC or Commission) will be responsible for implementation pursuant to 10 CFR part 30 on December escalated enforcement for the apparent violation. On July 6, 2009, BGNR and oversight of the radiation safety 21, 2000. The license authorizes the program, for a period of two years from operation of BGNR (facility) in requested the use of an ADR mediation session to resolve this matter. On the date of this Order. The license accordance with conditions specified amendment request, including therein. The facility is located on the October 27, 2009, the NRC and BGNR met in an ADR session mediated by a information regarding the qualifications Licensee’s site in Fajardo, Puerto Rico. of the proposed RSO in accordance with This Confirmatory Order is the result professional mediator, arranged through Cornell University’s Institute on the requirements of 10 CFR part 35, will of an agreement reached during an be submitted to the NRC within 30 days alternative dispute resolution (ADR) Conflict Resolution. This Confirmatory Order is issued pursuant to the of the date of Order issuance. mediation session conducted on D. BGNR will create a written policy, October 27, 2009. ADR is a process in agreement reached during the ADR process. and train employees, regarding which a neutral mediator with no expectations for: (1) Employees decision-making authority assists the III providing complete and accurate parties in reaching an agreement on During the ADR session, a information to the NRC; (2) compliance resolving any differences regarding the with NRC regulations; and, (3) the dispute. preliminary settlement agreement was reached. The elements of the agreement freedom to raise safety concerns with II consisted of the following: BGNR management and/or to the NRC without fear of retaliation; within 30 On July 2, 2009, the NRC issued a A. BGNR and the NRC agree to the following facts: days of the date of the Order. All new letter to BGNR, enclosing a summary of employees will also be trained on this an investigation conducted by the NRC 1. BGNR provided inaccurate information, in a response contesting policy. Office of Investigations (OI) (Reference In recognition of these actions, the the April 8, 2008 SLIV NOV, in that, the OI Investigation Report No. 1–2008– NRC agreed to issue a civil penalty in BGNR director, acting on behalf of the 052). OI opened the investigation to the amount of $5,000, and to issue licensee, stated that three written determine whether BGNR had BGNR an NOV containing a SL III directives for diagnostic doses of iodine- submitted falsified written directives in violation. a May 5, 2008, response to an April 8, 131 were written prior to the On January 12, 2010, BGNR consented 2008, Severity Level (SL) IV Notice of administrations, when in fact, the to issuing this Order with the Violation (NOV). written directives were signed and commitments, as described in Section V The SLIV NOV had been issued for dated after the administrations, in below. BGNR further agreed that this BGNR’s failure to prepare written violation of 10 CFR 30.9; Order is to be effective upon issuance directives prior to administering 2. BGNR maintained incomplete or and that it has waived its right to a diagnostic doses of radioactive iodine inaccurate written directives in hearing. on the dates of September 14, 2005, and violation of 10 CFR 30.9; and, February 19 and 26, 2008. In its May 5, 3. The violation of 10 CFR 35.40 IV 2008, response, BGNR disputed the contained in the NOV dated April 8, Since BGNR has agreed to take SLIV NOV in a sworn and notarized 2008 occurred as stated in the NOV. additional actions to address NRC letter stating that the BGNR Director, as B. BGNR will contract with a current concerns, as set forth in Item III above, the Authorized User, had in fact or former Radiation Safety Officer the NRC has concluded that its concerns prepared written directives for the I–131 (RSO), who has been authorized in that can be resolved through issuance of this sodium iodide administrations prior to capacity on an NRC or Agreement State Order. conducting them on September 14, medical license, to perform I find that BGNR’s commitments as 2005, and February 19 and 26, 2008, comprehensive audits of BGNR’s set forth in Section V are acceptable and and that although the written directives radiation safety program, including a necessary and conclude that with these had been misplaced, since the review of the corrective actions commitments the public health and inspection, the written directives had documented in the ADR Confirmatory safety are reasonably assured. In view of been located. The letter enclosed copies Order (Order). This will include the the foregoing, I have determined that of these written directives. During following actions: public health and safety require that the review of the letter, the NRC identified 1. Within 30 days of the issuance date Licensee’s commitments be confirmed that the written directive for the of the Order, BGNR will submit the by this Order. Based on the above and administrations performed on qualifications of the selected auditor to BGNR’s consent, this Order is September 14, 2005, was dated the NRC in writing; immediately effective upon issuance.

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V the above conditions upon Submittal server are detailed in NRC’s Accordingly, pursuant to Sections 81, demonstration by the Licensee of good ‘‘Guidance for Electronic Submission,’’ 161b, 161i, 161o, 182 and 186 of the cause. which is available on the agency’s public Web site at http://www.nrc.gov/ Atomic Energy Act of 1954, as amended, VI and the Commission’s regulations in 10 site-help/e-submittals.html. Participants Any person adversely affected by this may attempt to use other software not CFR 2.202 and 10 CFR Part 30 it is Confirmatory Order, other than the hereby ordered, effective immediately: listed on the Web site, but should note Licensee, may request a hearing within that the NRC’s E-Filing system does not A. BGNR will contract with a current 20 days of its publication in the Federal or former Radiation Safety Officer support unlisted software, and the NRC Register. Where good cause is shown, Meta System Help Desk will not be able (RSO), who has been authorized in that consideration will be given to extending to offer assistance in using unlisted capacity on an NRC or Agreement State the time to request a hearing. A request software. medical license, to perform for extension of time must be directed If a participant is electronically comprehensive audits of the radiation to the Director, Office of Enforcement, submitting a document to the NRC in safety program, including a review of U.S. Nuclear Regulatory Commission, accordance with the E-Filing rule, the the corrective actions documented in Washington, DC 20555–0001, and participant must file the document this Confirmatory Order. This will include a statement of good cause for using the NRC’s online, Web-based include the following actions: the extension. submission form. In order to serve 1. Within 30 days of the issuance date All documents filed in NRC documents through EIE, users will be of this Order, BGNR will submit the adjudicatory proceedings, including a required to install a Web browser plug- qualifications of the selected auditor to request for hearing, a petition for leave in from the NRC Web site. Further the NRC in writing; to intervene, any motion or other information on the Web-based 2. Within 30 days of the NRC document filed in the proceeding prior submission form, including the approval of the auditor, the auditor will to the submission of a request for installation of the Web browser plug-in, conduct the first audit, and the auditor hearing or petition to intervene, and is available on the NRC’s public Web will complete the first audit report documents filed by interested site at http://www.nrc.gov/site-help/e- within 90 days of NRC approval of the governmental entities participating submittals.html. auditor; under 10 CFR 2.315(c), must be filed in Once a participant has obtained a 3. Following the first audit, three accordance with the NRC E-Filing rule digital ID certificate and a docket has additional audits will be conducted on (72 FR 49139, August 28, 2007). The E- been created, the participant can then a quarterly basis at BGNR (four audits Filing process requires participants to submit a request for hearing or petition completed within approximately one submit and serve all adjudicatory for leave to intervene. Submissions year); and, documents over the Internet, or in some should be in Portable Document Format 4. Within 30 days of completion of cases to mail copies on electronic (PDF) in accordance with NRC guidance each audit, BGNR will submit the audit storage media. Participants may not available on the NRC public Web site at report to the NRC for review. submit paper copies of their filings http://www.nrc.gov/site-help/e- B. BGNR will request a license unless they seek an exemption in submittals.html. A filing is considered amendment from the NRC to designate accordance with the procedures complete at the time the documents are a new RSO on the BGNR license who described below. submitted through the NRC’s E-Filing will be responsible for implementation To comply with the procedural system. To be timely, an electronic and oversight of the radiation safety requirements of E-Filing, at least ten filing must be submitted to the E-Filing program for a period of two years from (10) days prior to the filing deadline, the system no later than 11:59 p.m. Eastern the date of this Order. The license participant should contact the Office of Time on the due date. Upon receipt of amendment request, including the Secretary by e-mail at a transmission, the E-Filing system information regarding the qualifications [email protected], or by telephone time-stamps the document and sends of the proposed RSO in accordance with at (301) 415–1677, to request (1) a the submitter an e-mail notice the requirements of 10 CFR part 35, will digital ID certificate, which allows the confirming receipt of the document. The be submitted to the NRC within 30 days participant (or its counsel or E-Filing system also distributes an e- of the date of Order issuance. representative) to digitally sign mail notice that provides access to the C. BGNR will create a written policy, documents and access the E-Submittal document to the NRC Office of the and train employees, regarding server for any proceeding in which it is General Counsel and any others who expectations for: (1) employees participating; and (2) advise the have advised the Office of the Secretary providing complete and accurate Secretary that the participant will be that they wish to participate in the information to the NRC; (2) compliance submitting a request or petition for proceeding, so that the filer need not with NRC regulations; and, (3) the hearing (even in instances in which the serve the documents on those freedom to raise safety concerns with participant, or its counsel or participants separately. Therefore, BGNR management and/or to the NRC representative, already holds an NRC- applicants and other participants (or without fear of retaliation; within 30 issued digital ID certificate). Based upon their counsel or representative) must days of the date of the Order. All new this information, the Secretary will apply for and receive a digital ID employees will also be trained on this establish an electronic docket for the certificate before a hearing request/ policy. hearing in this proceeding if the petition to intervene is filed so that they D. BGNR will pay a $5000 civil Secretary has not already established an can obtain access to the document via penalty in two equal installments; the electronic docket. the E-Filing system. first installment to be paid within 90 Information about applying for a A person filing electronically using days of the date of this Order, and the digital ID certificate is available on the agency’s adjudicatory E-Filing second installment to be paid within NRC’s public Web site at http:// system may seek assistance by 180 days of the date of this Order. www.nrc.gov/site-help/e-submittals/ contacting the NRC Meta System Help The Director, Office of Enforcement, apply-certificates.html. System Desk through the ‘‘Contact Us’’ link may, in writing, relax or rescind any of requirements for accessing the E- located on the NRC Web site at http://

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www.nrc.gov/site-help/e- unless excluded pursuant to an order of mediation session conducted on submittals.html, by e-mail at the Commission, an Atomic Safety and October 27, 2009. ADR is a process in [email protected], or by a toll- Licensing Board, or a Presiding Officer. which a neutral mediator with no free call at (866) 672–7640. The NRC Participants are requested not to include decision-making authority assists the Meta System Help Desk is available personal privacy information, such as parties in reaching an agreement on between 8 a.m. and 8 p.m., Eastern social security numbers, home resolving any differences regarding the Time, Monday through Friday, addresses, or home phone numbers in dispute. excluding government holidays. their filings. With respect to copyrighted II Participants who believe that they works, except for limited excerpts that have a good cause for not submitting serve the purpose of the adjudicatory On July 2, 2009, the U.S. Nuclear documents electronically must file an filings and would constitute a Fair Use Regulatory Commission (NRC or exemption request, in accordance with application, participants are requested Commission) issued a letter to Dr. Pe´rez, 10 CFR 2.302(g), with their initial paper not to include copyrighted materials in enclosing a summary of an investigation filing requesting authorization to their works. conducted by the NRC Office of continue to submit documents in paper Any person that requests a hearing Investigations (OI) (Reference OI format. Such filings must be submitted shall set forth with particularity the Investigation Report No. 1–2008–052). by: (1) first class mail addressed to the manner in which his interest is OI opened the investigation to Office of the Secretary of the adversely affected by this Order and determine whether Beta Gamma Nuclear Commission, U.S. Nuclear Regulatory shall address the criteria set forth in 10 Radiology (BGNR) had submitted Commission, Washington, DC 20555– CFR 2.309(d) and (f). falsified written directives in a May 5, 0001, Attention: Rulemaking and If the hearing is requested by a person 2008, response to a April 8, 2008, Adjudications Staff; or (2) courier, whose interest is adversely affected, the Severity Level (SL) IV Notice of express mail, or expedited delivery Commission will issue an Order Violation (NOV). service to the Office of the Secretary, designating the time and place of any The SLIV NOV had been issued for Sixteenth Floor, One White Flint North, hearing. If a hearing is held, the issue to BGNR’s failure to prepare written 11555 Rockville Pike, Rockville, be considered at such hearing shall be directives prior to administering Maryland 20852, Attention: Rulemaking whether this Confirmatory Order should diagnostic doses of radioactive iodine and Adjudications Staff. Participants be sustained. on the dates of September 14, 2005, and filing a document in this manner are In the absence of any request for February 19 and 26, 2008. In its May 5, responsible for serving the document on hearing, or written approval of an 2008, response, BGNR disputed the all other participants. Filing is extension of time in which to request a SLIV NOV in a sworn and notarized considered complete by first-class mail hearing, the provisions specified in letter stating that Dr. Pe´rez, as the as of the time of deposit in the mail, or Section V above shall be final 20 days Authorized User, had in fact prepared by courier, express mail, or expedited from the date of this Order without written directives for the I–131 sodium delivery service upon depositing the further order or proceedings. If an iodide administrations prior to document with the provider of the extension of time for requesting a conducting them on September 14, service. A presiding officer, having hearing has been approved, the 2005, and February 19 and 26, 2008, granted an exemption request from provisions specified in Section V shall and that although the written directives using E-Filing, may require a participant be final when the extension expires if a had been misplaced, since the or party to use E-Filing if the presiding hearing request has not been received. A inspection, the written directives had officer subsequently determines that the request for hearing shall not stay the been located. The letter enclosed copies reason for granting the exemption from immediate effectiveness of this order. of these written directives. During review of the letter, the NRC identified use of E-Filing no longer exists. For the Nuclear Regulatory Commission. Documents submitted in adjudicatory that the written directive for the proceedings will appear in NRC’s Dated this 21st day of January 2010. administrations performed on electronic hearing docket which is Marc L. Dapas, September 14, 2005, was dated available to the public at http:// Deputy Regional Administrator. September 14, 2008, calling into ehd.nrc.gov/EHD_Proceeding/home.asp, [FR Doc. 2010–1825 Filed 1–28–10; 8:45 am] question the validity of the date on unless excluded pursuant to an order of BILLING CODE 7590–01–P which this directive, and the others, had the Commission, or the presiding been written. officer. Participants are requested not to Based on evidence developed during include personal privacy information, NUCLEAR REGULATORY the investigation, the NRC identified an such as social security numbers, home COMMISSION apparent violation, including that Dr. addresses, or home phone numbers in [IA–09–041] Pe´rez, on behalf of BGNR, deliberately their filings, unless an NRC regulation submitted falsified written directives in or other law requires submission of such Juan E. Pe´rez Monte´, M.D.; violation of 10 CFR 30.10(a)(2), and as information. With respect to Confirmatory Order Modifying License a result, caused BGNR to maintain copyrighted works, except for limited (Effective Immediately) inaccurate information contrary to 10 excerpts that serve the purpose of the CFR 30.9, in violation of 10 CFR adjudicatory filings and would I 30.10(a)(1). constitute a Fair Use application, Juan E. Pe´rez Monte´, M.D. (Dr. Pe´rez) The July 2, 2009, NRC letter informed participants are requested not to include is named as the Radiation Safety Officer Dr. Pe´rez that the NRC was considering copyrighted materials in their (RSO) on License No. 52–25542–01 escalated enforcement for the apparent submission. issued by the NRC to Beta Gamma violation. On July 6, 2009, Dr. Pe´rez Documents submitted in adjudicatory Nuclear Radiology (BGNR), a medical requested the use of an ADR mediation proceedings will appear in NRC’s practice in Fajardo, Puerto Rico. session to resolve this matter. On electronic hearing docket which is This Confirmatory Order is the result October 27, 2009, the NRC and Dr. Pe´rez available to the public at http:// of an agreement reached during an met in an ADR session mediated by a ehd.nrc.gov/EHD_Proceeding/home.asp, alternative dispute resolution (ADR) professional mediator, arranged through

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Cornell University’s Institute on order prohibiting involvement in NRC- C. Dr. Pe´rez will offer to make the Conflict Resolution. This Confirmatory licensed activities, but rather, to issue a same or a similar presentation at the Order is issued pursuant to the Notice of Violation containing a next scheduled national meetings of the agreement reached during the ADR Severity Level III violation. On January Health Physics Society and the Society process. 12, 2010, Dr. Pe´rez consented to issuing of Nuclear Medicine. If the request to this Order with the commitments, as make a presentation is accepted, he will III described in Section V below. Dr. Pe´rez submit the planned presentation to the During that ADR session, a further agreed that this Order is to be NRC for approval at least two weeks preliminary settlement agreement was effective upon issuance and that he has before delivery of the presentation at reached. The elements of the agreement waived his right to a hearing. these meetings. consisted of the following: D. Dr. Pe´rez will be removed as RSO A. Dr. Pe´rez and the NRC agree that IV from any NRC or Agreement State Dr. Pe´rez committed two violations of Since Dr. Pe´rez has agreed to take licenses within 30 days of Order NRC requirements. Specifically, Dr. additional actions to address NRC issuance, and will not be re-designated Pe´rez: (1) Deliberately submitted concerns, as set forth in Item III above, or perform the functions of RSO for any falsified written directives to support the NRC has concluded that its concerns NRC or Agreement State licenses for two BGNR’s dispute of the April 8, 2008, can be resolved through issuance of this years from the date of Order issuance. NOV in violation of 10 CFR 30.10(a)(2); Order. The Director, Office of Enforcement, and, (2) deliberately caused BGNR to I find that Dr. Pe´rez’ commitments as may, in writing, relax or rescind any of maintain incomplete or inaccurate set forth in Section V are acceptable and the above conditions upon information as required by 10 CFR 30.9, necessary and conclude that with these demonstration by the Licensee of good in violation of 10 CFR 30.10(a)(1). commitments the public health and cause. B. Dr. Pe´rez will write an article safety are reasonably assured. In view of VI regarding: (1) Lessons learned from the the foregoing, I have determined that ADR experience; (2) the importance of public health and safety require that Dr. Any person adversely affected by this providing accurate information to the Pe´rez’ commitments be confirmed by Confirmatory Order, other than Dr. NRC; and, (3) compliance with NRC this Order. Based on the above and Dr. Pe´rez, may request a hearing within 20 requirements; and will complete the Pe´rez’ consent, this Order is days of its publication in the Federal following actions: immediately effective upon issuance. Register. Where good cause is shown, 1. Within six months of the date of the consideration will be given to extending Order, Dr. Pe´rez will submit the article V the time to request a hearing. A request for publication to the following: Galenus Accordingly, pursuant to Sections 81, for extension of time must be directed (Puerto Rico), the Journal of the Health 161b, 161i, 161o, 182 and 186 of the to the Director, Office of Enforcement, Physics Society, and the Journal of Atomic Energy Act of 1954, as amended, U.S. Nuclear Regulatory Commission, Nuclear Medicine; and, and the Commission’s regulations in 10 Washington, DC 20555–0001, and 2. Dr. Pe´rez will also submit the CFR 2.202 and 10 CFR Part 30, it is include a statement of good cause for article to the NRC for approval, at least hereby ordered, effective immediately: the extension. two weeks prior to submitting to the A. Dr. Pe´rez will write an article All documents filed in NRC publications listed above. regarding: (1) Lessons learned from the adjudicatory proceedings, including a C. Dr. Pe´rez will write a presentation ADR experience; (2) the importance of request for hearing, a petition for leave regarding: (1) Lessons learned from the providing accurate information to the to intervene, any motion or other ADR experience; (2) the importance of NRC; and, (3) compliance with NRC document filed in the proceeding prior providing accurate information to the requirements; and will complete the to the submission of a request for NRC; and, (3) compliance with NRC following actions: hearing or petition to intervene, and requirements. Dr. Pe´rez will submit to 1. Within six months of the date of the documents filed by interested the NRC the planned presentation for Order, Dr. Pe´rez will submit the article governmental entities participating approval at least two weeks before for publication to the following: Galenus under 10 CFR 2.315(c), must be filed in delivering the actual presentation to the (Puerto Rico), the Journal of the Health accordance with the NRC E-Filing rule Puerto Rico chapter of the Society of Physics Society, and the Journal of (72 FR 49139, August 28, 2007). The E- Nuclear Medicine. Nuclear Medicine; and, Filing process requires participants to D. Dr. Pe´rez will offer to make the 2. Dr. Pe´rez will also submit the submit and serve all adjudicatory same or a similar presentation at the article to the NRC for approval, at least documents over the Internet, or in some next scheduled national meetings of the two weeks prior to submitting to the cases to mail copies on electronic Health Physics Society and the Society publications listed above. storage media. Participants may not of Nuclear Medicine. If the request to B. Prior to the next scheduled submit paper copies of their filings make a presentation is accepted, he will national meetings of the Health Physics unless they seek an exemption in submit the planned presentation to the Society and the Society of Nuclear accordance with the procedures NRC for approval at least two weeks Medicine, Dr. Pe´rez will write a described below. before delivery of the presentation at presentation regarding: (1) Lessons To comply with the procedural these meetings. learned from the ADR experience; (2) requirements of E-Filing, at least ten E. Dr. Pe´rez will remove himself as the importance of providing accurate (10) days prior to the filing deadline, the RSO from any NRC or Agreement State information to the NRC; and, (3) participant should contact the Office of licenses within 30 days of Order compliance with NRC requirements. Dr. the Secretary by e-mail at issuance, and will not be re-designated Pe´rez will submit to the NRC the [email protected], or by telephone or perform the functions of RSO for any planned presentation for approval at at (301) 415–1677, to request (1) a NRC or Agreement State license for two least two weeks before delivering the digital ID certificate, which allows the years from the date of Order issuance. actual presentation to the Puerto Rico participant (or its counsel or In recognition of these actions, the chapter of the Society of Nuclear representative) to digitally sign NRC agreed to not issue Dr. Pe´rez an Medicine. documents and access the E–Submittal

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server for any proceeding in which it is General Counsel and any others who officer. Participants are requested not to participating; and (2) advise the have advised the Office of the Secretary include personal privacy information, Secretary that the participant will be that they wish to participate in the such as social security numbers, home submitting a request or petition for proceeding, so that the filer need not addresses, or home phone numbers in hearing (even in instances in which the serve the documents on those their filings, unless an NRC regulation participant, or its counsel or participants separately. Therefore, or other law requires submission of such representative, already holds an NRC- applicants and other participants (or information. With respect to issued digital ID certificate). Based upon their counsel or representative) must copyrighted works, except for limited this information, the Secretary will apply for and receive a digital ID excerpts that serve the purpose of the establish an electronic docket for the certificate before a hearing request/ adjudicatory filings and would hearing in this proceeding if the petition to intervene is filed so that they constitute a Fair Use application, Secretary has not already established an can obtain access to the document via participants are requested not to include electronic docket. the E-Filing system. copyrighted materials in their Information about applying for a A person filing electronically using submission. digital ID certificate is available on the agency’s adjudicatory E-Filing Any person that requests a hearing NRC’s public Web site at http:// system may seek assistance by shall set forth with particularity the www.nrc.gov/site-help/e-submittals/ contacting the NRC Meta System Help manner in which his interest is apply-certificates.html. System Desk through the ‘‘Contact Us’’ link adversely affected by this Order and requirements for accessing the E– located on the NRC Web site at http:// shall address the criteria set forth in 10 Submittal server are detailed in NRC’s www.nrc.gov/site-help/e- CFR 2.309(d) and (f). ‘‘Guidance for Electronic Submission,’’ submittals.html, by e-mail at which is available on the agency’s [email protected], or by a toll- If the hearing is requested by a person public Web site at http://www.nrc.gov/ free call at (866) 672–7640. The NRC whose interest is adversely affected, the site-help/e-submittals.html. Participants Meta System Help Desk is available Commission will issue an Order may attempt to use other software not between 8 a.m. and 8 p.m., Eastern designating the time and place of any listed on the Web site, but should note Time, Monday through Friday, hearing. If a hearing is held, the issue to that the NRC’s E-Filing system does not excluding government holidays. be considered at such hearing shall be support unlisted software, and the NRC Participants who believe that they whether this Confirmatory Order should Meta System Help Desk will not be able have a good cause for not submitting be sustained. In the absence of any to offer assistance in using unlisted documents electronically must file an request for hearing, or written approval software. exemption request, in accordance with of an extension of time in which to If a participant is electronically 10 CFR 2.302(g), with their initial paper request a hearing, the provisions submitting a document to the NRC in filing requesting authorization to specified in Section V above shall be accordance with the E-Filing rule, the continue to submit documents in paper final 20 days from the date of this Order participant must file the document format. Such filings must be submitted without further order or proceedings. If using the NRC’s online, Web-based by: (1) First class mail addressed to the an extension of time for requesting a submission form. In order to serve Office of the Secretary of the hearing has been approved, the documents through EIE, users will be Commission, U.S. Nuclear Regulatory provisions specified in Section V shall required to install a Web browser plug- Commission, Washington, DC 20555– be final when the extension expires if a in from the NRC Web site. Further 0001, Attention: Rulemaking and hearing request has not been received. A information on the Web-based Adjudications Staff; or (2) courier, request for hearing shall not stay the submission form, including the express mail, or expedited delivery immediate effectiveness of this order. installation of the Web browser plug-in, service to the Office of the Secretary, Dated this 21st day of January 2010. is available on the NRC’s public Web Sixteenth Floor, One White Flint North, For the Nuclear Regulatory Commission. site at http://www.nrc.gov/site-help/e- 11555 Rockville Pike, Rockville, submittals.html. Maryland 20852, Attention: Rulemaking Marc L. Dapas, Once a participant has obtained a and Adjudications Staff. Participants Deputy Regional Administrator. digital ID certificate and a docket has filing a document in this manner are [FR Doc. 2010–1824 Filed 1–28–10; 8:45 am] been created, the participant can then responsible for serving the document on BILLING CODE 7590–01–P submit a request for hearing or petition all other participants. Filing is for leave to intervene. Submissions considered complete by first-class mail should be in Portable Document Format as of the time of deposit in the mail, or NUCLEAR REGULATORY (PDF) in accordance with NRC guidance by courier, express mail, or expedited COMMISSION available on the NRC public Web site at delivery service upon depositing the Advisory Committee on Reactor http://www.nrc.gov/site-help/e- document with the provider of the submittals.html. A filing is considered service. A presiding officer, having Safeguards (ACRS) Meeting of the complete at the time the documents are granted an exemption request from ACRS Subcommittee on Radiation submitted through the NRC’s E-Filing using E-Filing, may require a participant Protection and Nuclear Materials; system. To be timely, an electronic or party to use E-Filing if the presiding Notice of Meeting filing must be submitted to the E-Filing officer subsequently determines that the The ACRS Subcommittee on system no later than 11:59 p.m. Eastern reason for granting the exemption from Radiation Protection and Nuclear Time on the due date. Upon receipt of use of E-Filing no longer exists. Materials will hold a meeting on a transmission, the E-Filing system Documents submitted in adjudicatory February 17, 2010, Room T2–B1, 11545 time-stamps the document and sends proceedings will appear in NRC’s Rockville Pike, Rockville, Maryland. the submitter an e-mail notice electronic hearing docket which is confirming receipt of the document. The available to the public at http:// The meeting will be open to public E-Filing system also distributes an e- ehd.nrc.gov/EHD_Proceeding/home.asp, attendance. mail notice that provides access to the unless excluded pursuant to an order of The agenda for the subject meeting document to the NRC Office of the the Commission, or the presiding shall be as follows:

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Wednesday, February 17, 2010—1:30 NUCLEAR REGULATORY Web site at http://www.nrc.gov/reading- p.m.–5 p.m. COMMISSION rm/doc-collections/acrs. Information regarding topics to be discussed, The Subcommittee will review Advisory Committee On Reactor changes to the agenda, whether the changes to NUREG–1536, Standard Safeguards (ACRS) meeting has been canceled or Review Plan for Spent Fuel Storage rescheduled, and the time allotted to Systems at a General License Facility. Meeting of the ACRS Subcommittee on present oral statements can be obtained The Subcommittee will hear EPR; Notice of Meeting from the Web site cited above or by presentations by and hold discussions The ACRS U.S. Evolutionary Power contacting the identified DFO. with NRC staff and other interested Reactor (EPR) Subcommittee will hold a Moreover, in view of the possibility that persons regarding this matter. The meeting on February 18–19, 2010, 11545 the schedule for ACRS meetings may be Subcommittee will gather information, Rockville Pike, T2–B3, Rockville, adjusted by the Chairman as necessary analyze relevant issues and facts, and Maryland. to facilitate the conduct of the meeting, formulate proposed positions and The entire meeting will be open to persons planning to attend should check actions, as appropriate, for deliberation public attendance, with the exception of with these references if such by the Full Committee. a portion that may be closed to protect rescheduling would result in major inconvenience. Members of the public desiring to information that is proprietary to provide oral statements and/or written AREVA, NP, pursuant to 5 U.S.C. Dated: January 25, 2010. comments should notify the Designated 552b(c)(4). Antonio F. Dias, The proposed agenda for the subject Federal Official (DFO), Christopher L. Chief, Reactor Safety Branch B, Advisory meeting shall be as follows: Committee on Reactor Safeguards. Brown (telephone: 301–415–7111, e- Thursday, February 18, 2010, 8:30 [FR Doc. 2010–1823 Filed 1–28–10; 8:45 am] mail: [email protected]), five p.m.–5 p.m. days prior to the meeting, if possible, so Friday, February 19, 2010, 8:30 p.m.– BILLING CODE 7590–01–P that appropriate arrangements can be 5 p.m. made. Thirty-five hard copies of each The Subcommittee will review presentation or handout should be selected chapters of the Safety OFFICE OF SCIENCE AND provided to the DFO thirty minutes Evaluation Report with Open Items TECHNOLOGY POLICY before the meeting. In addition, one concerning the U.S. EPR Design electronic copy of each presentation Certification (DCD) Application and the Subcommittee on Forensic Science; should be e-mailed to the DFO one day Calvert Cliffs Unit 3 Combined License Committee on Science; National before the meeting. If an electronic copy (COL) Application. The Subcommittee Science and Technology Council cannot be provided within this will hear presentations by and hold ACTION: Notice of Panel Session. Public timeframe, presenters should provide discussions with representatives of input is requested concerning the DFO with a CD containing each AREVA, NP, UniStar Nuclear Operating appropriate Federal Executive Branch presentation at least 30 minutes before Services, LLC, the NRC staff and other responses to the National Academy of the meeting. Electronic recordings will interested persons regarding this matter. Sciences 2009 report: ‘‘Strengthening be permitted. Detailed procedures for The Subcommittee will gather Forensic Science in the United States: A the conduct of and participation in information, analyze relevant issues and Path Forward’’ (http://www.nap.edu/ ACRS meetings were published in the facts, and formulate proposed positions catalog.php?record_id=12589#toc). Federal Register on October 14, 2009, and actions, as appropriate, for (74 FR 52829–52830). deliberation by the Full Committee. SUMMARY: The Subcommittee on Members of the public desiring to Forensic Science (SOFS) of the National Detailed meeting agendas and meeting provide oral statements and/or written Science and Technology Council’s transcripts are available on the NRC comments should notify the Designated (NSTC’s) Committee on Science will Web site at http://www.nrc.gov/reading- Federal Official (DFO), Mr. Derek host a public forum in collaboration rm/doc-collections/acrs. Information Widmayer (Telephone 301–415–7366, with the annual scientific meeting of the regarding topics to be discussed, E-mail: [email protected]) five American Academy of Forensic changes to the agenda, whether the days prior to the meeting, if possible, so Sciences (AAFS). The role of the SOFS meeting has been canceled or that appropriate arrangements can be is to coordinate Federal activities and rescheduled, and the time allotted to made. Thirty-five hard copies of each advise the Executive Office of the present oral statements can be obtained presentation or handout should be President on national efforts to improve from the Web site cited above or by provided to the DFO thirty minutes forensic science and its application in contacting the identified DFO. before the meeting. In addition, one America’s justice system. This special Moreover, in view of the possibility that electronic copy of each presentation session will serve to provide attendees the schedule for ACRS meetings may be should be e-mailed to the DFO one day with an update on the Subcommittee’s adjusted by the Chairman as necessary before meeting. If an electronic copy work and provide an opportunity for the to facilitate the conduct of the meeting, cannot be provided within this public to ask questions and provide persons planning to attend should check timeframe, presenters should provide comments. with these references if such the DFO with a CD containing each Dates and Addresses: The session will rescheduling would result in major presentation at least 30 minutes before be held in conjunction with the 62nd inconvenience. the meeting. Electronic recordings will Annual Scientific Meeting of the American Academy of Forensic Dated: January 25, 2010. be permitted. Detailed procedures for the conduct of and participation in Sciences, at the Washington State Antonio F. Dias, ACRS meetings were published in the Convention and Trade Center, 800 Chief, Reactor Safety Branch B, Advisory Federal Register on October 14, 2009 Convention Place, Seattle, WA 98101 on Committee on Reactor Safeguards. (74 FR 58268–58269). Friday, February 26, 2010, from 7 p.m. [FR Doc. 2010–1822 Filed 1–28–10; 8:45 am] Detailed meeting agendas and meeting to 8:30 p.m. Check the meeting BILLING CODE 7590–01–P transcripts are available on the NRC registration desk for room location.

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Information regarding the 62nd AAFS granted by Rule 19b–4(e), it is necessary SECURITIES AND EXCHANGE Annual Meeting is available at the that the SRO maintain, on-site, a copy COMMISSION AAFS Web site: http://www.aafs.org. of Form 19b–4(e) under the Act. Rule Submission for OMB Review; Note: Persons solely attending the SOFS 19b–4(e) requires SROs to file a public session do not need to register for the summary form, Form 19b–4(e), and Comment Request AAFS Annual Meeting to attend. There will thereby notify the Commission, within Upon Written Request, Copies Available be no admission charge for persons solely five business days after the From: Securities and Exchange attending the public meeting. Seating is commencement of trading a new Commission, Office of Investor limited and will be on a first come, first derivative securities product. In served basis. For those who cannot attend but Education and Advocacy, wish to provide written comments or addition, the Commission reviews SRO Washington, DC 20549–0213. questions, please do so by sending an email compliance with Rule 19b–4(e) through Extension: to the Subcommittee’s Executive Secretary, its routine inspections of the SROs. Rule 23c–3 and Form N–23c–3, SEC File Robin Jones, at: [email protected], no The collection of information is No. 270–373, OMB Control No. 3235– later than Friday, February 19, 2010. designed to allow the Commission to 0422. FOR FURTHER INFORMATION CONTACT: maintain an accurate record of all new Notice is hereby given that, pursuant Additional information and links to the derivative securities products traded to the Paperwork Reduction Act of 1995 Subcommittee on Forensic Science can through the facilities of SROs and to (44 U.S.C. 350 et. seq.), the Securities be obtained through the Office of determine whether an SRO has properly and Exchange Commission (the Science and Technology Policy’s NSTC availed itself of the permission granted ‘‘Commission’’) has submitted to the Web site at http://www.ostp.gov/cs/nstc by Rule 19b–4(e). Office of Management and Budget a or by calling 202–353–2436. request for extension of the previously The respondents to the collection of approved collection of information Kenneth E. Melson, information are SROs (as defined by the discussed below. Co-Chair, Subcommittee on Forensic Science. Act), all of which are national securities Rule 23c–3 (17 CFR 270.23c–3) under [FR Doc. 2010–1813 Filed 1–28–10; 8:45 am] exchanges. the Investment Company Act of 1940 BILLING CODE 4410–FY–P Twelve respondents file an average (15 U.S.C. 80a–1 et seq.) is entitled: total of 3,180 responses per year, which ‘‘Repurchase of Securities of Closed-End corresponds to an estimated annual Companies.’’ The rule permits certain SECURITIES AND EXCHANGE response burden of 3,180 hours. closed-end investment companies COMMISSION (‘‘closed-end funds’’ or ‘‘funds’’) to offer Compliance with Rule 19b–4(e) is to repurchase from shareholders a Proposed Collection; Comment mandatory. Information received in limited number of shares at net asset Request response to Rule 19b–4(e) shall not be value. The rule includes several kept confidential; the information reporting and recordkeeping Upon Written Request, Copies Available collected is public information. requirements. The fund must send From: Securities and Exchange Written comments are invited on: (a) shareholders a notification that contains Commission, Office of Investor Whether the proposed collection of specified information each time the Education and Advocacy, information is necessary for the proper fund makes a repurchase offer (on a Washington, DC 20549–0213. performance of the functions of the quarterly, semi-annual, or annual basis, Extension: Commission, including whether the or for certain funds, on a discretionary Rule 19b–4(e) and Form 19b–4(e), OMB information will have practical utility; basis not more often than every two Control No. 3235–0504, SEC File No. (b) the accuracy of the Commission’s years). The fund also must file copies of 270–447. estimate of the burden of the collection the shareholder notification with the Notice is hereby given that pursuant of information; (c) ways to enhance the Commission (electronically through the to the Paperwork Reduction Act of 1995 quality, utility, and clarity of the Commission’s Electronic Data (44 U.S.C. 3501 et seq.) the Securities information collected; and (d) ways to Gathering, Analysis, and Retrieval ‘‘ ’’ and Exchange Commission minimize the burden of the collection of System ( EDGAR )) attached to Form N– (‘‘Commission’’) has submitted to the information on respondents, including 23c–3 (17 CFR 274.221), a filing that provides limited information about the Office of Management and Budget through the use of automated collection fund and the type of offer the fund is requests for extension of the previously techniques or other forms of information making.1 The fund must describe in its approved collections of information technology. Consideration will be given discussed below. The Code of Federal annual report to shareholders the fund’s to comments and suggestions submitted policy concerning repurchase offers and Regulation citation to this collection of in writing within 60 days of this information is 17 CFR 240.19b–4(e) the results of any repurchase offers publication. under the Securities Exchange Act of made during the reporting period. The 1934 (17 U.S.C 78a et seq.) (the ‘‘Act’’). Comments should be directed to fund’s board of directors must adopt Rule 19b–4(e) permits a self- Charles Boucher, Director/Chief written procedures designed to ensure regulatory organization (‘‘SRO’’) to Information Officer, Securities and that the fund’s investment portfolio is immediately list and trade a new Exchange Commission, c/o Shirley sufficiently liquid to meet its repurchase derivative securities product so long as Martinson, 6432 General Green Way, obligations and other obligations under such product is in compliance with the Alexandria, Virginia 22312 or send an the rule. The board periodically must criteria of Rule 19b–4(e) under the Act. e-mail to: [email protected]. review the composition of the fund’s portfolio and change the liquidity However, in order for the Commission Dated: January 22, 2010. to maintain an accurate record of all new derivative securities products Florence E. Harmon, 1 Form N–23c–3 requires the fund to state its Deputy Secretary. registration number, its full name and address, the traded through the facilities of SROs date of the accompanying shareholder notification, [FR Doc. 2010–1846 Filed 1–28–10; 8:45 am] and to determine whether an SRO has and the type of offer being made (periodic, properly availed itself of the permission BILLING CODE 8011–01–P discretionary, or both).

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procedures as necessary. The fund also Commission on Form N–23c–3 will not (‘‘Phlx’’ or ‘‘Exchange’’) filed with the must file copies of advertisements and be kept confidential. An agency may not Securities and Exchange Commission other sales literature with the conduct or sponsor, and a person is not (‘‘SEC’’ or ‘‘Commission’’) the proposed Commission as if it were an open-end required to respond to, a collection of rule change as described in Items I, II, investment company subject to section information unless it displays a and III, below, which Items have been 24 of the Investment Company Act (15 currently valid control number. prepared by the Exchange. On January U.S.C. 80a–24) and the rules that The Commission staff estimates that 5, 2010, the Exchange filed Amendment implement section 24.2 31 funds make use of rule 23c–3 No. 1 thereto. The Commission is The requirement that the fund send a annually, including one fund that is publishing this notice to solicit notification to shareholders of each offer relying upon rule 23c–3 for the first comments on the proposed rule change, is intended to ensure that a fund time. The Commission staff estimates as amended, from interested persons. provides material information to that on average a fund spends 89 hours shareholders about the terms of each annually in complying with the I. Self-Regulatory Organization’s offer, which may differ from previous requirements of the rule and Form N– Statement of the Terms of Substance of offers on such matters as the maximum 23c–3, with funds relying upon rule the Proposed Rule Change amount of shares to be repurchased (the 23c–3 for the first time incurring an The Exchange proposes to amend the maximum repurchase amount may additional one-time burden of 28 hours. Exchange’s Fee Schedule by adopting, range from 5% to 25% of outstanding The Commission therefore estimates the for a two-month pilot period, per shares). The requirement that copies be total annual burden of the rule’s and contract transaction fees for options sent to the Commission is intended to form’s paperwork requirements to be overlying Standard and Poor’s enable the Commission to monitor the 2787 hours. Depositary Receipts/SPDRs (‘‘SPY’’).3 fund’s compliance with the notification Please direct general comments The fees would apply to: (i) Transaction requirement. The requirement that the regarding the above information to the sides that remove liquidity from the shareholder notification be attached to following persons: (i) Desk Officer for Exchange’s disseminated market, and Form N–23c–3 is intended to ensure the Securities and Exchange (ii) Firm and broker-dealer quotes and that the fund provides basic information Commission, Office of Management and orders that are included in the necessary for the Commission to process Budget, Room 10102, New Executive Exchange’s disseminated market. the notification and to monitor the Office Building, Washington, DC 20503 fund’s use of repurchase offers. The or send an e-mail to Shagufta Ahmed at Additionally, the Exchange proposes requirement that the fund describe its [email protected]; and (ii) to offer a transaction rebate to certain current policy on repurchase offers and Charles Boucher, Director/CIO, liquidity providers, as described more the results of recent offers in the annual Securities and Exchange Commission, fully below. shareholder report is intended to C/O Shirley Martinson, 6432 General While changes to the Exchange’s fee provide shareholders current Green Way, Alexandria, VA 22312; or schedule pursuant to this proposal are information about the fund’s repurchase send an e-mail to: effective upon filing, the Exchange has policies and its recent experience. The [email protected]. Comments must designated this proposal to be operative requirement that the board approve and be submitted to OMB within 30 days of for trades settling on or after January 4, review written procedures designed to this notice. 2010. The proposed changes to the fee maintain portfolio liquidity is intended Dated: January 25, 2010. schedule will be effective on a pilot to ensure that the fund has enough cash basis, scheduled to expire March 2, Florence E. Harmon, or liquid securities to meet its 2010. repurchase obligations, and that written Deputy Secretary. [FR Doc. 2010–1847 Filed 1–28–10; 8:45 am] The text of the proposed rule change procedures are available for review by is available on the Exchange’s Web site BILLING CODE 8011–01–P shareholders and examination by the at http://nasdaqomxphlx.cchwallstreet. Commission. The requirement that the com/NASDAQOMXPHLX/Filings/, at fund file advertisements and sales SECURITIES AND EXCHANGE the principal office of the Exchange, at literature as if it were an open-end COMMISSION the Commission’s Public Reference investment company is intended to Room, and on the Commission’s Web facilitate the review of these materials [Release No. 34–61398; File No. SR–Phlx– site at http://www.sec.gov. by the Commission or FINRA to prevent 2009–116] incomplete, inaccurate, or misleading II. Self-Regulatory Organization’s disclosure about the special Self-Regulatory Organizations; Notice Statement of the Purpose of, and characteristics of a closed-end fund that of Filing and Immediate Effectiveness Statutory Basis for, the Proposed Rule makes periodic repurchase offers. of Proposed Rule Change, as Modified Change Compliance with the collection of by Amendment No. 1 Thereto, by information requirements of the rule NASDAQ OMX PHLX, Inc. Relating to In its filing with the Commission, the and form is mandatory only for those Transaction Fees and Rebates for Exchange included statements funds that rely on the rule in order to Options Overlying Standard and concerning the purpose of and basis for repurchase shares of the fund. The Poor’s Depositary Receipts (‘‘SPDRs’’) the proposed rule change and discussed information provided to the any comments it received on the January 22, 2010. proposed rule change. The text of these Pursuant to Section 19(b)(1) of the 2 Rule 24b–3 under the Investment Company Act statements may be examined at the (17 CFR 270.24b–3), however, would generally Securities Exchange Act of 1934 places specified in Item IV below. The exempt the fund from that requirement when the (‘‘Act’’),1 and Rule 19b–4 thereunder,2 Exchange has prepared summaries, set materials are filed instead with the Financial notice is hereby given that on December forth in sections A, B, and C below, of Industry Regulatory Authority (‘‘FINRA’’). These 31, 2009, NASDAQ OMX PHLX, Inc. materials are virtually always submitted to FINRA, instead of the Commission, under FINRA 3 SPY options are based on the SPDR exchange- procedures which apply to the underwriter of every 1 15 U.S.C. 78s(b)(1). traded fund (‘‘ETF’’), which is designed to track the fund. 2 17 CFR 240.19b–4. performance of the S&P 500 Index.

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the most significant aspects of such ‘‘Directed Specialists, RSQTs, or • The Exchange pays a per-contract statements. SQTs’’ 8); (v) Firms; and (vi) broker- Market Access Provider (‘‘MAP’’) dealers. Subsidy to any Exchange member A. Self-Regulatory Organization’s The per-contract transaction charges organization that qualifies as an Eligible Statement of the Purpose of, and to be assessed on participants who MAP. The MAP Subsidy will not apply Statutory Basis for, the Proposed Rule submit proprietary quotes and/or orders 11 12 Change to electronic transactions in SPY. that remove liquidity in SPY options • Payment for Order Flow fees 13 will 1. Purpose from the Exchange in SPY options are, not be collected on transactions in SPY. • The purpose of the proposed rule by category: All electronic auctions will be free change is to increase liquidity and to to Non-Directed Customers, Directed Category Charge attract order flow in SPY options on the Customers, Directed Participants, Specialists, SQTs and RSQTs.14 Exchange. The purpose of this Specialist, SQT, $0.40 per contract. Amendment No. 1 is to correct a RSQT. Electronic auctions include, without typographical error by stating that the Non-Directed Cus- $0.40 per contract. limitation, the Complex Order Live Exchange proposes to assess a tomer. Auction (‘‘COLA’’),15 and Quote and transaction charge of $0.35 per contract Directed Customer .... $0.25 per contract. Market Exhaust auctions.16 Firms and to Firms and $0.45 per contract to Directed Participants $0.30 per contract. broker-dealers will be assessed the broker-dealers for adding liquidity. Firms ...... $0.45 per contract. appropriate charge for removing Broker-Dealers ...... $0.45 per contract. liquidity. Transaction Charges for Removing • The fees described herein will not Liquidity Transaction Charges for Adding apply to contracts executed during the The Exchange proposes to assess a Liquidity Exchange’s opening process.17 Firms per-contract transaction charge in SPY The Exchange proposes to assess a and broker-dealers will be assessed the options on six different categories of transaction charge of $0.35 per contract appropriate charge for removing market participants that submit orders to Firms and $0.45 per contract to liquidity. and/or quotes that remove, or ‘‘take,’’ broker-dealers. • The Exchange pays an Options liquidity from the Exchange. The per- Floor Broker Subsidy to member contract transaction charge would Rebates organizations with Exchange registered depend on the category of market In order to promote and encourage floor brokers for eligible contracts that participant submitting an order or quote liquidity in SPY options, the Exchange are entered into the Exchange’s Options to the Exchange that removes liquidity. proposes to amend its fee schedule to Floor Broker Management System. The The proposed amendments to the include a per-contract rebates relating to Options Floor Broker Subsidy will be Exchange’s Fee Schedule would break transaction charges for orders or applicable to the transactions described down market participants by the quotations that add liquidity in SPY herein.18 following six categories: (i) Specialists, options. The amount of the rebate • The Exchange assesses a Streaming Quote Traders (‘‘SQTs’’),4 and would depend on the category of Cancellation Fee of $2.10 per order on Remote Streaming Quote Traders participant whose order or quote was member organizations for each (‘‘RSQTs’’),5 (ii) customers that submit executed as part of the PHLX Best Bid orders that are not Directed Orders 6 and Offer. Specifically, the per-contract 11 An ‘‘Eligible MAP’’ is defined in the Exchange’s (‘‘Non-Directed Customers’’); (iii) rebates are, by category: Fee Schedule in the Market Access Provider Subsidy. customers that submit Directed Orders 12 7 Category Rebate See Securities Exchange Act Release No. 59537 (‘‘Directed Customers’’); (iv) specialists, (March 9, 2009), 74 FR 11151 (March 16, 2009) (SR– SQTs and RSQTs that receive Directed Specialist, SQT, $0.20 per contract. Phlx–2009–19). Orders (‘‘Directed Participants’’ or 13 See Securities Exchange Act Release No. 59841 RSQT. (April 29, 2009), 74 FR 21035 (May 6, 2009) (SR– Non-Directed Cus- $0.05 per contract. 4 An SQT is an Exchange Registered Options Phlx–2009–38). tomer. 14 With respect to electronic auctions, it is Trader (‘‘ROT’’) who has received permission from Directed Customer .... $0.20 per contract. the Exchange to generate and submit option systemically difficult to determine which quotations electronically through an electronic Directed Participants $0.25 per contract. participant(s) would qualify for a rebate, therefore interface with AUTOM via an Exchange approved Firms ...... N/A the Exchange has determined not to apply the proprietary electronic quoting device in eligible Broker-Dealers ...... N/A rebate to transactions resulting from electronic options to which such SQT is assigned. See auctions. Exchange Rule 1014(b)(ii)(A). Applicability of Other Fees 15 COLA is the automated Complex Order Live 5 An RSQT is an ROT that is a member or member Auction process. A COLA may take place upon organization with no physical trading floor • The $900,000 monthly cap that is identification of the existence of a COLA-eligible presence who has received permission from the currently applicable to ROTs and order either: (1) Following a COOP, or (2) during Exchange to generate and submit option quotations specialists transacting equity options normal trading if the Phlx XL system receives a electronically through AUTOM in eligible options Complex Order that improves the cPBBO. See to which such RSQT has been assigned. An RSQT will not be applicable to the fees Exchange Rule 1080. may only submit such quotations electronically described herein.9 16 Market Exhaust occurs when there are no Phlx from off the floor of the Exchange. See Exchange • The $85,000 Firm Related Equity XL II participant (specialist, SQT or RSQT) Rule 1014(b)(ii)(B). Option Cap will not be applicable to the quotations in the Exchange’s disseminated market 6 ‘‘Directed Order’’ means any customer order fees described herein.10 for a particular series and an initiating order in the (other than a stop or stop-limit order as defined in series is received. In such a circumstance, the Phlx Rule 1066) to buy or sell which has been directed XL II system, using Market Exhaust, will initiate a to a particular specialist, RSQT, or SQT by an Order 8 See Exchange Rule 1080(l), ‘‘* * * The term Market Exhaust auction for the initiating order. Flow Provider, as defined below. To qualify as a ‘Directed Specialist, RSQT, or SQT’ means a Under Market Exhaust, any order volume that is Directed Order, an order must be delivered to the specialist, RSQT, or SQT that receives a Directed routed to away markets will be marked as an Exchange via AUTOM. Order.’’ A Directed Participant has a higher quoting Intermarket Sweep Order or ‘‘ISO.’’ See Exchange 7 For the purposes of this fee, a Directed Customer requirement as compared with a specialist, SQT or Rule 1082. is an order from a customer directed to a Directed RSQT who is not acting as a Directed Participant. 17 See Exchange Rule 1017. Participant for execution. A Directed Participant is See Exchange Rule 1014. 18 See Securities Exchange Act Release No. 60578 a Specialist, SQT, or RSQT that executes an order 9 See proposed rule change SR–Phlx–2009–104. (August 27, 2009), 74 FR 45666 (September 3, 2009) directed to it for execution. 10 See proposed rule change SR–Phlx–2009–104. (SR–Phlx–2009–72).

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cancelled electronically delivered 2. Statutory Basis under the Plan; orders routed from away customer order in excess of the number The Exchange believes that its markets to remove liquidity are now of customer orders executed on the proposal to amend its schedule of fees routed directly to the Exchange, in large Exchange by that member organization is consistent with Section 6(b) of the part as Non-Directed Customer orders. 19 in a given month. The Cancellation Act 22 in general, and furthers the The Exchange assessed transaction Fee will continue to apply. objectives of Section 6(b)(4) of the Act 23 fees applicable to the execution of P/A • Transaction fees for Linkage ‘‘P’’ and in particular, in that it is an equitable Orders, but did not assess transaction ‘‘P/A’’ Orders would be applicable to the allocation of reasonable fees and other fees on customer orders sent to the transaction listed herein.20 charges among Exchange members. The Exchange outside the Linkage. The Exchange also charged different per- • Regular Equity Option transaction impact of the amendments upon the net fees paid by a particular market contract transaction fees for P/A Orders fees will apply to Complex Orders that 26 participant will depend on a number of and Principal Orders (‘‘P Orders’’) sent are electronically executed against a to remove liquidity from the Exchange contra-side order with the same variables, including its monthly volumes, the order types it uses, and the The Exchange charged $0.45 per option Complex Order Strategy. contract for P Orders sent to the • prices of its quotes and orders (i.e., its Single contra-side orders that are propensity to add or remove liquidity). Exchange and $.30 per contract for P/A 27 executed against the individual Specifically, the Exchange believes Orders. The Exchange believes that components of Complex Orders will be that its proposal to charge a different fee Non-Directed Customers now ‘‘stand in charged under the proposed Fee and to pay a different rebate for Non- the shoes’’ of what were previously P/A Schedule. The individual components Directed Customers relative to Directed Orders, and the proposed transaction of such a Complex Order will not be Customers is an equitable allocation of charges applicable to Non-Directed charged. reasonable fees and other charges among Customers are not unfairly • SPY transactions executed via open Exchange members, and is consistent discriminatory relative to the proposed outcry will be subject to the standard with the current fee schedule and fees for Directed Customers, based upon equity options fee schedule. However, if industry fee assessments of member the precedent of charging for P/A Orders one side of the transaction is executed firms that allow for different rates to be but not for customer orders sent outside the Linkage. using the Options Floor Broker charged for different order types Management System 21 and any other originated by dissimilarly classified Order flow providers that control customer order flow and route customer side of the trade was the result of an market participants.24 orders to exchanges are responsible to electronically submitted order or a The Exchange notes that the vast obtain the best pricing available for their quote, then the fees proposed herein majority of order flow that is routed to customers. An order flow provider has will apply to the FBMS contracts and the Exchange from away markets the ability to enter into arrangements contracts that are executed disseminating inferior prices is whereby they may receive consideration electronically all sides of the customer order flow that is not directed for directing the customer order to a transaction. to a particular specialist, SQT or RSQT. The Exchange believes that this Non- specific market maker (specialists, SQTs The proposed changes to the fee Directed Customer order flow represents and/or RSQTs). Under the proposal, a schedule will be effective for orders that were previously routed to Directed Customer would be charged a transactions settling on or after January the Exchange as Principal Acting as lower per-contract transaction fee, and 4, 2010, and will be effective for a pilot Agent Orders (‘‘P/A Orders’’) 25 via the would receive a higher rebate, based on period scheduled to expire March 2, Intermarket Option Linkage (‘‘Linkage’’) such an arrangement. 2010. under the Plan for the Purpose of The Exchange operates in a highly Creating and Operating an Intermarket competitive market in which market 19 See Securities Exchange Act Release No. 60188 ‘‘ ’’ participants can readily direct order (June 29, 2009), 74 FR 32986 (July 9, 2009) (SR– Option Linkage (the Plan ). The participating U.S. options exchanges flow to competing venues if they deem Phlx–2009–48). fee levels at a particular venue to be 20 See Securities Exchange Act Release No. 60210 determined to withdraw from the Plan (July 1, 2009), 74 FR 32989 (July 9, 2009) (SR–Phlx– and, on June 17, 2008, the Exchange excessive. The Exchange believes that 2009–53). This pilot is scheduled to expire on July filed an executed copy of the Options the fees it charges for options overlying 31, 2010. The Exchange understands that certain Order Protection and Locked/Crossed SPYs remain competitive with fees exchanges continue to utilize Linkage to send P/A charged by other venues and therefore Orders. Market Plan (‘‘New Plan’’), joining all 21 The Options Floor Broker Management System other approved options markets in continue to be reasonable and equitably (‘‘FBMS’’) is a component of the Exchange’s system adopting the New Plan. The concept of allocated to those members that opt to designed to enable Floor Brokers and/or their P/A orders routed through a central direct orders to the Exchange rather employees to enter, route and report transactions than competing venues. stemming from options orders received on the Linkage ‘‘hub’’ does not exist under the Exchange. The Options Floor Broker Management New Plan. P/A Orders were routed to B. Self-Regulatory Organization’s System also is designed to establish an electronic remove liquidity from the Exchange Statement on Burden on Competition audit trail for options orders represented and executed by Floor Brokers on the Exchange, such 22 The Exchange does not believe that that the audit trial provides an accurate, time- 15 U.S.C. 78f(b). sequenced record of electronic and other orders, 23 15 U.S.C. 78f(b)(4). the proposed rule change will impose quotations and transactions on the Exchange, 24 NYSE Amex currently charges different rates to any burden on competition not beginning with the receipt of an order by the different market participants in assessing its firm necessary or appropriate in furtherance Exchange, and further documenting the life of the facilitation fee. See Securities Exchange Act Release of the purposes of the Act. order through the process of execution, partial No. 60378 (July 23, 2009), 74 FR 38245 (July 31, execution, or cancellation of that order. AUTOM is 2009) (SR–NYSEAmex 2009–38). the Exchange’s electronic order delivery and 25 A P/A order is an order for the principal 26 A Principal Order is an order for the principal reporting system, which provides for the automatic account of a specialist (or equivalent entity on account of an Eligible Market Maker and is not a entry and routing of Exchange-listed equity options, another participant exchange that is authorized to P/A Order. index options and U.S. dollar-settled foreign represent public customer orders), reflecting the 27 See Securities Exchange Act Release No. 60210 currency options orders to the Exchange trading terms of a related unexecuted Public Customer (July 1, 2009), 74 FR 32989 (July 9, 2009) (SR–Phlx– floor. See Exchange Rule 1080, Commentary .06. order for which the specialist is acting as agent. 2009–53).

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C. Self-Regulatory Organization’s those that may be withheld from the Exhibit 5 to the 19b–4 form. A copy of Statement on Comments on the public in accordance with the this filing is available on the Exchange’s Proposed Rule Change Received From provisions of 5 U.S.C. 552, will be Web site at http://www.nyse.com, at the Members, Participants, or Others available for inspection and copying in Exchange’s principal office and at the No written comments were either the Commission’s Public Reference Commission’s Public Reference Room. Room, 100 F Street, NE., Washington, solicited or received. II. Self-Regulatory Organization’s DC 20549, on official business days Statement of the Purpose of, and III. Date of Effectiveness of the between the hours of 10 a.m. and 3 p.m. Statutory Basis for, the Proposed Rule Proposed Rule Change and Timing for Copies of the filing also will be available Change Commission Action for inspection and copying at the The foregoing rule change has become principal office of the Exchange. All In its filing with the Commission, the effective pursuant to Section comments received will be posted self-regulatory organization included 19(b)(3)(A)(ii) of the Act 28 and without change; the Commission does statements concerning the purpose of, paragraph (f)(2) of Rule 19b–4 29 not edit personal identifying and basis for, the proposed rule change thereunder. At any time within 60 days information from submissions. You and discussed any comments it received of the filing of the proposed rule change, should submit only information that on the proposed rule change. The text the Commission may summarily you wish to make available publicly. All of those statements may be examined at abrogate such rule change if it appears submissions should refer to File the places specified in Item IV below. to the Commission that such action is Number SR–Phlx–2009–116 and should The Exchange has prepared summaries, necessary or appropriate in the public be submitted on or before February 19, set forth in sections A, B, and C below, interest, for the protection of investors, 2010. of the most significant parts of such statements. or otherwise in furtherance of the For the Commission, by the Division of purposes of the Act. Trading and Markets, pursuant to delegated A. Self-Regulatory Organization’s authority.30 IV. Solicitation of Comments Statement of the Purpose of, and the Florence E. Harmon, Statutory Basis for, the Proposed Rule Interested persons are invited to Deputy Secretary. Change submit written data, views, and [FR Doc. 2010–1843 Filed 1–28–10; 8:45 am] arguments concerning the foregoing, 1. Purpose BILLING CODE 8011–01–P including whether the proposed rule The Exchange is proposing certain change is consistent with the Act. changes to Rule 6.87—Obvious Errors Comments may be submitted by any of SECURITIES AND EXCHANGE and Catastrophic Errors. Under the the following methods: COMMISSION current rule, an obvious error occurs when the execution price of an Electronic Comments [Release No. 34–61393; File No. SR– • NYSEArca–2010–03] electronic transaction is above or below Use the Commission’s Internet the Theoretical Price for the series by a comment form (http://www.sec.gov/ Self-Regulatory Organizations; Notice specified amount. The ‘‘Theoretical rules/sro.shtml); or Price’’ of an option series is currently • Send an e-mail to rule- of Filing and Immediate Effectiveness defined in rule 6.87(a)(2) as the last bid [email protected]. Please include File of Proposed Rule Change by NYSE price with respect to an erroneous sell Number SR–Phlx–2009–116 on the Arca, Inc. Amending Rule 6.87 transaction and the last offer price with subject line. January 21, 2010. respect to an erroneous buy transaction, Paper Comments Pursuant to Section 19(b)(1) 1 of the just prior to the trade, that comprise the Securities Exchange Act of 1934 (the • Send paper comments in triplicate National Best Bid/Offer (‘‘NBBO’’) as ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 to Elizabeth M. Murphy, Secretary, disseminated by the Options Price notice is hereby given that, on January Securities and Exchange Commission, Reporting Authority (‘‘OPRA’’) If there 8, 2010, NYSE Arca, Inc. (‘‘NYSE Arca’’ 100 F Street, NE., Washington, DC are no quotes for comparison, the or the ‘‘Exchange’’) filed with the 20549–1090. Theoretical Price is determined by a Securities and Exchange Commission 4 All submissions should refer to File designated Trading Official. (the ‘‘Commission’’) the proposed rule The Exchange is now proposing to Number SR–Phlx–2009–116. This file change as described in Items I, II, and permit Trading Officials to establish the number should be included on the III below, which Items have been Theoretical Price when the NBBO for subject line if e-mail is used. To help the prepared by the self-regulatory the affected series, just prior to the Commission process and review your organization. The Commission is erroneous transaction, is at least two comments more efficiently, please use publishing this notice to solicit times the permitted bid/ask differential only one method. The Commission will comments on the proposed rule change pursuant to the guidelines contained in post all comments on the Commission’s from interested persons. Rule 6.37A(b). This provision is similar Internet Web site (http://www.sec.gov/ to Rule 1092(b)(ii) of Nasdaq OMX Phlx rules/sro.shtml). Copies of the I. Self-Regulatory Organization’s (‘‘PHLX’’) and Rule 6.25(a)(1)(iv) of The submission, all subsequent Statement of the Terms of Substance of Chicago Board Options Exchange amendments, all written statements the Proposed Rule Change (‘‘CBOE’’). with respect to the proposed rule The Exchange proposes to amend change that are filed with the Exchange Rule 6.87—Obvious Errors 2. Statutory Basis Commission, and all written and Catastrophic Errors. The text of the This proposed rule change is designed communications relating to the proposed rule change is attached as to allow an Exchange officer to review proposed rule change between the a transaction in order to provide the Commission and any person, other than 30 17 CFR 200.30–3(a)(12). 1 15 U.S.C.78s(b)(1). 4 Trading Officials are employees or officers of the 28 15 U.S.C. 78s(b)(3)(A)(ii). 2 15 U.S.C. 78a. Exchange and are not affiliated with OTP Holders 29 17 CFR 240.19b–4(f)(2). 3 17 CFR 240.19b–4. or OTP Firms.

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opportunity for potential relief to a At any time within 60 days of the the principal office of NYSE Arca. All party affected by an obvious error. The filing of the proposed rule change, the comments received will be posted Exchange believes that for these reasons Commission may summarily abrogate without change; the Commission does the proposed rule change is consistent such rule change if it appears to the not edit personal identifying with Section 6(b) of the Act 5 in general, Commission that such action is information from submissions. You and furthers the objectives of Section necessary or appropriate in the public should submit only information that 6(b)(5) of the Act 6 in particular, because interest, for the protection of investors, you wish to make available publicly. All it is designed to prevent fraudulent and or otherwise in furtherance of the submissions should refer to File No. manipulative acts and practices, to purposes of the Act. SR–NYSEArca–2010–03 and should be promote just and equitable principles of IV. Solicitation of Comments submitted on or before February 19, trade, to foster cooperation and 2010. coordination with persons engaged in Interested persons are invited to submit written data, views, and For the Commission, by the Division of facilitating transactions in securities, Trading and Markets, pursuant to delegated and to remove impediments to and arguments concerning the foregoing, authority.12 including whether the proposed rule perfect the mechanism of a free and Florence E. Harmon, open market and a national market change is consistent with the Act. Comments may be submitted by any of Deputy Secretary. system. The proposed rule change will [FR Doc. 2010–1844 Filed 1–28–10; 8:45 am] incorporate a uniform approach in the following methods: BILLING CODE 8011–01–P determining obvious errors that is Electronic Comments consistent with other national options • Use the Commission’s Internet exchanges. comment form (http://www.sec.gov/ SECURITIES AND EXCHANGE B. Self-Regulatory Organization’s rules/sro.shtml); or COMMISSION • Statement on Burden on Competition Send an e-mail to rule- [Release No. 34–61405; File No. SR–Phlx– [email protected]. Please include File The Exchange does not believe that 2009–101] No. SR–NYSEArca–2010–03 on the the proposed rule change will impose subject line. Self-Regulatory Organizations; any burden on competition that is not NASDAQ OMX PHLX, Inc.; Order necessary or appropriate in furtherance Paper Comments Approving a Proposed Rule Change of the purposes of the Act. • Send paper comments in triplicate Relating to Collection of Exchange C. Self-Regulatory Organization’s to Elizabeth M. Murphy, Secretary, Fees Statement on Comments on the Securities and Exchange Commission, Proposed Rule Change Received From 100 F Street, NE., Washington, DC January 21, 2010. Members, Participants, or Others 20549–1090. I. Introduction All submissions should refer to File No. No written comments were solicited SR–NYSEArca–2010–03. This file On December 8, 2009, NASDAQ OMX or received with respect to the proposed number should be included on the PHLX, Inc. (‘‘Phlx’’ or ‘‘Exchange’’) filed rule change. subject line if e-mail is used. To help the with the Securities and Exchange III. Date of Effectiveness of the Commission process and review your Commission (‘‘Commission’’) pursuant Proposed Rule Change and Timing for to Section 19(b)(1) of the Securities comments more efficiently, please use 1 Commission Action only one method. The Commission will Exchange Act of 1934 (‘‘Act’’) and Rule 19b–4 thereunder,2 a proposed rule The Exchange has filed the proposed post all comments on the Commission’s Internet Web site (http://www.sec.gov/ change to amend Exchange Rule 909, rule change pursuant to Section Security for Exchange Fees and Other 19(b)(3)(A)(iii) of the Act 7 and Rule rules/sro.shtml). Copies of the submission,11 all subsequent Claims, to require member organizations 19b–4(f)(6) thereunder.8 Because the to provide a clearing account number at proposed rule change does not: (i) amendments, all written statements with respect to the proposed rule the National Securities Clearing Significantly affect the protection of Corporation (‘‘NSCC’’) for purposes of investors or the public interest; (ii) change that are filed with the Commission, and all written permitting the Exchange to debit any impose any significant burden on undisputed or final fees, fines, charges competition; and (iii) become operative communications relating to the proposed rule change between the and/or other monetary sanctions or prior to 30 days from the date on which 3 Commission and any person, other than monies owed to the Exchange. The it was filed, or such shorter time as the proposed rule change was published for Commission may designate, if those that may be withheld from the public in accordance with the comment in the Federal Register on consistent with the protection of December 17, 2009.4 The Commission investors and the public interest, the provisions of 5 U.S.C. 552, will be available for inspection and copying in proposed rule change has become 12 the Commission’s Public Reference 17 CFR 200.30–3(a)(12). effective pursuant to Section 19(b)(3)(A) 1 15 U.S.C. 78s(b)(l). of the Act 9 and Rule 19b–4(f)(6)(iii) Room, 100 F Street, NE., Washington, 2 17 CFR 240.19b–4. thereunder.10 DC 20549, on official business days 3 This includes, among other things, fines which between the hours of 10 a.m. and 3 p.m. result from: Violation of Rule 60, Order and Decorum; violations of the Minor Rule Plan 5 15 U.S.C. 78f(b). Copies of such filing also will be pursuant to Rule 970; monetary sanctions imposed 6 available for inspection and copying at 15 U.S.C. 78f(b)(5). by the Business Conduct Committee relating to a 7 15 U.S.C. 78s(b)(3)(A)(iii). Letter of Caution; and monetary sanctions imposed 8 17 CFR 240.19b–4(f)(6). at least five business days prior to the date of filing by a Hearing Panel in connection with Disciplinary 9 15 U.S.C. 78s(b)(3)(A). of the proposed rule change, or such shorter time Violations. See also Notice, infra note 4, for further 10 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– as designated by the Commission. The Exchange information regarding disciplinary and non- 4(f)(6)(iii) requires the Exchange to give the has satisfied the pre-filing requirement. disciplinary sanctions. Commission written notice of the Exchange’s intent 11 The text of the proposed rule change is 4 See Securities Exchange Act Release No. 61141 to file the proposed rule change along with a brief available on the Commission’s Web site at (December 10, 2009), 74 FR 67003 (December 17, description and text of the proposed rule change, http://www.sec.gov. 2009) (‘‘Notice’’).

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received no comments on the proposal. the amount indicated from the clearing IV. Conclusion 8 This order approves the proposed rule members’ account. It is therefore ordered, pursuant to change. The Exchange would provide Section 19(b)(2) of the Act,12 that the members with a thirty-day period, upon II. Description of the Proposal proposed rule change, (SR–Phlx–2009– Commission approval of this proposal, 101), be, and hereby is, approved. to provide an NSCC number to the Phlx Currently, Phlx Rule 909 requires For the Commission, by the Division of member organizations and applicants Membership Department if the member Trading and Markets, pursuant to delegated for registration to provide and maintain has not already provided one in the authority.13 9 a security deposit, unless the member past. Florence E. Harmon, organization maintains excess net III. Discussion and Commission Deputy Secretary. capital of at least the amount Findings [FR Doc. 2010–1848 Filed 1–28–10; 8:45 am] established by the Exchange. The BILLING CODE 8011–01–P Exchange proposes to eliminate the The Commission has carefully requirement to provide and maintain a reviewed the proposed rule change and finds that it is consistent with the security deposit and would instead SECURITIES AND EXCHANGE requirements of the Act and the rules require member organizations and COMMISSION and regulations thereunder applicable to applicants to provide a clearing account a national securities exchange.10 In [Release No. 34–61409; File No. SR–NYSE– number for an account at NSCC in order particular, the Commission finds that 2010–04] to permit the Exchange to debit the proposed rule change is consistent Self-Regulatory Organizations; New undisputed or final fees, fines, charges with Section 6(b)(5) of the Act,11 in that and/or other monetary sanctions or York Stock Exchange LLC; Notice of it is designed to promote just and Filing and Immediate Effectiveness of monies owed to the Exchange or other equitable principles of trade, to remove charges related to Rule 924.5 Proposed Rule Change To Extend for impediments to and perfect the 12 Months the Pilot Program Additionally, the Exchange proposes to mechanism of a free and open market amend the title of Rule 909 from Permitting the Exchange’s Ownership and a national market system, and, in Interest in BIDS Holdings L.P. (BIDS) ‘‘Security for Exchange Fees and Other general to protect investors and the Claims’’ to ‘‘Collection of Exchange Fees and the Affiliation of BIDS With the public interest. New York Block Exchange LLC and Other Claims’’ in order to more The Commission notes that Phlx accurately describe the proposed rule. would only initiate a debit for an January 22, 2010. Under the proposal, the Exchange undisputed or final fee, fine, charge, or Pursuant to Section 19(b)(1) of the would send a monthly invoice to each other monetary sanction or money owed Securities Exchange Act of 1934 member organization on approximately to the Exchange. In addition, because (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 the fourth through sixth business day of members would receive invoices notice is hereby given that, on January the month following the month in approximately two weeks before any 11, 2010, New York Stock Exchange which the charges were incurred.6 In funds are debited, members would have LLC (‘‘NYSE’’ or ‘‘Exchange’’) filed with addition, the Exchange would send a a means to monitor the accuracy of their the Securities and Exchange file to the member’s clearing firm which invoices and, if necessary, would have Commission (‘‘Commission’’) the will indicate the amounts to be debited time to contact the Exchange staff prior proposed rule change as described in from each member. If a member is self- to amounts being debited. Items I and II below, which Items have clearing, no such file would be sent, Further, the Exchange has informed been prepared by the Exchange. The since the member would receive the the Commission that the vast majority of Exchange filed this proposal pursuant to 3 invoice indicating the amount to be the Exchange’s members already Rule 19b–4(f)(6) under the Act and debited. If a member disputes an invoice voluntarily participate in the automatic- requested that the Commission waive in writing to the Exchange’s designated debit program, which the proposed rule the 30-day pre-operative waiting period contained in Rule 19b–4(f)(6)(iii).4 The staff by the fifteenth of the month, and would make mandatory. Those members Commission is publishing this notice to the amount in dispute is at least $10,000 that do not currently participate will solicit comments on the proposed rule or greater, the Exchange would not have thirty days from approval of this change from interested persons. include the disputed amount in the proposal to provide the NSCC number debit.7 to the Exchange. Finally, the I. Self-Regulatory Organization’s Commission notes that no comments Statement of the Terms of Substance of The Exchange then would send a file were received regarding the proposal. to NSCC on approximately the twenty- the Proposed Rule Change third of the month following the month The Exchange proposes to extend for 8 If the member clears through an Exchange in which the charges were incurred to clearing member, the estimated transactions fees an additional 12 months the January 22, initiate the debit of the appropriate owed to the Exchange are typically debited by the 2010 expiration date of the pilot amount. Once NSCC receives the file clearing member on a daily basis using daily program that provides an exception to transaction detail reports provided by the Exchange NYSE Rule 2B by permitting the from the Exchange, NSCC would debit to the clearing member in order to ensure adequate funds have been escrowed. Exchange’s equity ownership interest in 5 Phlx Rule 924 (Obligations of Members and 9 The Exchange noted that many of its members BIDS Holdings L.P. (‘‘BIDS’’), which is Member Organizations to the Exchange) states, have already provided voluntarily the Exchange the parent company of a member of the among other things, that members and member with an NSCC clearing account number, and those Exchange, and BIDS’s affiliation with organizations shall be liable for such fees, fines, members’ accounts are currently being debited on dues, penalties and other amounts imposed by the a monthly basis. See Notice, supra note 4, at note 12 Exchange. 10. 15 U.S.C. 78s(b)(2). 13 6 For example, invoices for the month of October 10 In approving this proposed rule change, the 17 CFR 200.30–3(a)(12). might be sent on November 5. Commission has considered the proposed rule’s 1 15 U.S.C. 78s(b)(1). 7 If the fifteenth day is not a business day, then impact on efficiency, competition, and capital 2 17 CFR 240.19b–4. the member would have until the following formation. See 15 U.S.C. 78c(f). 3 17 CFR 240.19b–4(f)(6). business day. 11 15 U.S.C. 78f(b)(5). 4 17 CFR 240.19b–4(f)(6)(iii).

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the New York Block Exchange LLC, an indirect ownership interest in BIDS Company would continue to be affiliate of the Exchange. There is no Trading violates the prohibition in Rule permitted. proposed rule text. 2B against the Exchange maintaining an If the Commission should determine ownership interest in a member prior to the end of the extended pilot II. Self-Regulatory Organization’s period that a permanent exception to Statement of the Purpose of, and organization. Second, BIDS Trading is NYSE Rule 2B is warranted, the Statutory Basis for, the Proposed Rule an affiliate of an affiliate of the 7 Exchange would have the option of Change Exchange, which violates the prohibition in Rule 2B against a member submitting a proposed rule change to In its filing with the Commission, the of the Exchange having such status. accomplish this and simultaneously self-regulatory organization included Consequently, in the Approval Order, terminate the pilot program. statements concerning the purpose of, the Commission permitted an exception 2. Statutory Basis and basis for, the proposed rule change to these two potential violations of and discussed any comments it received NYSE Rule 2B, subject to a number of The proposed rule change is on the proposed rule change. The text limitations and conditions. One of the consistent with Section 6(b) 11 of the of those statements may be examined at conditions for Commission approval Act,12 in general, and furthers the the places specified in Item IV below. was that the proposed exception from objectives of Section 6(b)(1) 13 of the The Exchange has prepared summaries, NYSE Rule 2B to permit NYSE’s Act, which requires a national securities set forth in sections A, B, and C below, indirect ownership/interest in BIDS exchange to be so organized and have of the most significant parts of such Trading and BIDS Trading’s affiliation the capacity to carry out the purposes of statements. with the Company (which is an affiliate the Act and to comply, and to enforce A. Self-Regulatory Organization’s of NYSE) would be for a pilot period of compliance by its members and persons Statement of the Purpose of, and the 12 months.8 associated with its members, with the Statutory Basis for, the Proposed Rule In discussing the pilot basis of the provisions of the Act. The proposed rule Change exception to NYSE Rule 2B, the change is also consistent with, and Approval Order noted that the pilot furthers the objectives of Section 1. Purpose period ‘‘will provide NYSE and the 6(b)(5) 14 of the Act, in that it is On January 22, 2009, the Commission Commission an opportunity to assess designed to prevent fraudulent and approved the governance structure whether there might be any adverse manipulative acts and practices, to proposed by the Exchange with respect consequences of the exception and promote just and equitable principles of to the New York Block Exchange whether a permanent exception is trade, to foster cooperation and (‘‘NYBX’’), a new electronic trading warranted.’’ 9 The 12-month pilot period coordination with persons engaged in facility of the Exchange for NYSE-listed is due to expire on January 22, 2010. facilitating transactions in securities, to securities that was established by means While the Exchange believes that the remove impediments to and perfect the of a joint venture between the Exchange experience to date operating under the mechanisms of a free and open market and BIDS.5 The governance structure exception to Rule 2B fully justifies and a national market system and, in that was approved is reflected in the making the exception permanent, the general, to protect investors and the Limited Liability Company Agreement Exchange now seeks to extend the public interest. of New York Block Exchange LLC (the ending date for the pilot program for In the Approval Order, the ‘‘Company’’), the entity that owns and another 12 months to January 22, 2011 Commission determined that the operates NYBX. Under the governance to allow additional time, if necessary, proposed exception from NYSE Rule 2B structure approved by the Commission, for the Commission to obtain and to permit NYSE’s indirect ownership the Exchange and BIDS each own a 50% review the information it needs in order interest in BIDS Trading and BIDS economic interest in the Company. In to make its determination regarding any Trading’s affiliation with the Company addition, the Exchange, through its adverse consequences of the exception was consistent with the Act, including wholly-owned subsidiary NYSE Market, and whether a permanent exception is Section 6(b)(5) thereof.15 As the basis for Inc., owns less than 10% of the warranted. During the proposed its determination, the Commission cited aggregate limited partnership interest in extension of the pilot program period, the specific limitations and conditions BIDS. BIDS is the parent company of the Exchange’s current indirect listed in the Approval Order to which BIDS Trading, L.P. (‘‘BIDS Trading’’), ownership interest in BIDS Trading 10 its approval of the exception to NYSE which became a member of the and BIDS Trading’s affiliation with the Rule 2B was subject,16 stating: ‘‘These Exchange in connection with the conditions appear reasonably designed establishment of NYBX. 7 Specifically, the Company is an affiliate of the to mitigate concerns about potential The foregoing ownership Exchange, and BIDS Trading is an affiliate of the conflicts of interest and unfair arrangements would violate NYSE Rule Company based on their common control by BIDS. competitive advantage. * * * These The affiliation in each case is the result of the 50% 2B without an exception from the ownership interest in the Company by each of the conditions appear reasonably designed Commission.6 First, the Exchange’s Exchange and BIDS. to promote robust and independent 8 See Approval Order, 74 FR at 5018. regulation of BIDS. * * * The 5 See Securities Exchange Act Release No. 59281 9 Id. at 5019. Commission believes that, taken (January 22, 2009), 74 FR 5014 (January 28, 2009) 10 Another condition for the exception to NYSE together, these conditions are (order approving SR–NYSE–2008–120) (‘‘Approval Rule 2B specified in the Approval Order was that reasonably designed to mitigate Order’’). the Exchange’s equity interest in BIDS must remain 6 NYSE Rule 2B provides, in relevant part, that: less than 9%, absent prior Commission approval of potential conflicts between the ‘‘[w]ithout prior SEC approval, the Exchange or any any increase. See id. at 5018. Subsequently, the Exchange’s commercial interest in BIDS entity with which it is affiliated shall not, directly Commission approved a proposal by the Exchange or indirectly, acquire or maintain an ownership to slightly increase the ceiling on its equity 11 15 U.S.C. 78f(b). interest in a member organization. In addition, a ownership in BIDS to less than 10%, and that will 12 15 U.S.C. 78. member organization shall not be or become an be the applicable limitation during the extension of 13 affiliate of the Exchange, or an affiliate of any the pilot period. See Securities Exchange Act 15 U.S.C. 78f(b)(1). affiliate of the Exchange. * * * The term affiliate Release No. 61257 (December 30, 2009), 75 FR 500 14 15 U.S.C. 78f(b)(5). shall have the meaning specified in Rule 12b–2 (January 5, 2010) (order approving SR–NYSE–2009– 15 See Approval Order, 74 FR at 5018–5019. under the Act.’’ 116). 16 Id. at 5018.

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and its regulatory responsibilities with Therefore, the Commission hereby Copies of the filing will also be available respect to BIDS.’’ 17 Because these same grants the Exchange’s request and for inspection and copying at the limitations and conditions will continue designates the proposal as operative principal office of the Exchange. All to be applicable during the extension of upon filing.19 comments received will be posted the pilot period, other than the ending At any time within 60 days of the without change; the Commission does date of the pilot period and the recently filing of the proposed rule change, the not edit personal identifying approved small increase in the ceiling Commission may summarily abrogate information from submissions. You on the Exchange’s equity interest in such rule change if it appears to the should submit only information that BIDS, the Exchange believes that the Commission that such action is you wish to make available publicly. All exception from NYSE Rule 2B described necessary or appropriate in the public submissions should refer to File above will continue to be consistent interest, for the protection of investors, Number SR–NYSE–2010–04 and should with the Act during that extension. or otherwise in furtherance of the be submitted on or before February 19, purposes of the Act. B. Self-Regulatory Organization’s 2010. Statement on Burden on Competition IV. Solicitation of Comments For the Commission, by the Division of Trading and Markets, pursuant to delegated The Exchange does not believe that Interested persons are invited to authority.20 submit written data, views, and the proposed rule change will impose Florence E. Harmon, any burden on competition that is not arguments concerning the foregoing, Deputy Secretary. necessary or appropriate in furtherance including whether the proposed rule of the purposes of the Act. change is consistent with the Act. [FR Doc. 2010–1850 Filed 1–28–10; 8:45 am] Comments may be submitted by any of BILLING CODE 8011–01–P C. Self-Regulatory Organization’s the following methods: Statement on Comments on the Proposed Rule Change Received From Electronic Comments SECURITIES AND EXCHANGE Members, Participants, or Others • Use the Commission’s Internet COMMISSION No written comments were solicited comment form (http://www.sec.gov/ [Release No. 34–61411; File No. SR–ISE– or received with respect to the proposed rules/sro.shtml); or 2010–05] rule change. • Send an e-mail to rule- [email protected]. Please include File Self-Regulatory Organizations; III. Date of Effectiveness of the Number SR–NYSE–2010–04 on the International Securities Exchange, Proposed Rule Change and Timing for subject line. LLC; Notice of Filing and Immediate Commission Action Effectiveness of Proposed Rule Paper Comments The foregoing proposal has become Change Regarding Market Maker effective pursuant to Section 19(b)(3)(A) • Send paper comments in triplicate Trading Licenses for Foreign Currency of the Act and Rule 19b–4(f)(6) to Elizabeth M. Murphy, Secretary, Options thereunder because it does not (i) Securities and Exchange Commission, Significantly affect the protection of 100 F Street, NE., Washington, DC January 22, 2010. investors or the public interest; (ii) 20549–1090. Pursuant to Section 19(b)(1) of the impose any significant burden on All submissions should refer to File Securities Exchange Act of 1934 (the competition; and (iii) become operative Number SR–NYSE–2010–04. This file ‘‘Act’’),1 and Rule 19b–4 thereunder,2 for 30 days from the date on which it number should be included on the notice is hereby given that on January was filed, or such shorter time as the subject line if e-mail is used. To help the 14, 2010, the International Securities Commission may designate if consistent Commission process and review your Exchange, LLC (the ‘‘Exchange’’ or the with the protection of investors and the comments more efficiently, please use ‘‘ISE’’) filed with the Securities and public interest.18 only one method. The Commission will Exchange Commission (‘‘Commission’’) The Exchange has asked the post all comments on the Commission’s the proposed rule change as described Commission to waive the 30-day Internet Web site (http://www.sec.gov/ in Items I, II, and III below, which items operative delay so that the proposal may rules/sro.shtml). Copies of the have been prepared by the Exchange. become operative immediately upon submission, all subsequent The Exchange has filed the proposal as filing. The Commission believes that amendments, all written statements a ‘‘non-controversial’’ proposed rule waiving the 30-day operative delay is with respect to the proposed rule change pursuant to Section consistent with the protection of change that are filed with the 19(b)(3)(A)(iii) of the Act 3 and Rule investors and the public interest, Commission, and all written 19b–4(f)(6) thereunder.4 The because the proposal would preserve communications relating to the Commission is publishing this notice to the benefits of the Exchange’s pilot proposed rule change between the solicit comments on the proposed rule program without interruption as the Commission and any person, other than change from interested persons. Exchange and the Commission monitor those that may be withheld from the I. Self-Regulatory Organization’s and assess whether any adverse public in accordance with the Statement of the Terms of Substance of consequences have resulted from the provisions of 5 U.S.C. 552, will be the Proposed Rule Change exceptions to NYSE Rule 2B and if the available for inspection and copying in exceptions continue to be appropriate. the Commission’s Public Reference The Exchange proposes to amend its Room, 100 F Street, NE., Washington, Rule 2213 regarding market maker 17 Id. at 5019. DC 20549, on official business days trading licenses for the Exchange’s 18 In addition, Rule 19b–4(f)(6) requires the foreign currency options. The text of the Exchange to give the Commission written notice of between the hours of 10 a.m. and 3 p.m. its intent to file the proposed rule change, along 20 17 CFR 200.30–3(a)(12). 19 For purposes only of waiving the 30-day with a brief description and text of the proposed 1 rule change, at least five business days prior to the operative delay of this proposal, the Commission 15 U.S.C. 78s(b)(1). date of filing of the proposed rule change, or such has considered the proposed rule’s impact on 2 17 CFR 240.19b–4. shorter time as designated by the Commission. The efficiency, competition, and capital formation. See 3 15 U.S.C. 78s(b)(3)(A). Exchange satisfied this requirement. 15 U.S.C. 78c(f). 4 17 CFR 240.19b–4(f)(6).

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proposed rule change is available on the Exchange sells up to 10 FXCMM trading C. Self-Regulatory Organization’s Exchange’s Web site http:// licenses per currency pair. The Statement on Comments on the www.ise.com, at the principal office of minimum price for a FXCMM trading Proposed Rule Change Received From the Exchange, and at the Commission’s license is currently $500. Members, Participants or Others Public Reference Room. The Exchange now proposes to The Exchange has not solicited, and II. Self-Regulatory Organization’s eliminate the minimum bid requirement does not intend to solicit, comments on Statement of the Purpose of, and for both FXPMM and FXCMM trading this proposed rule change. The Statutory Basis for, the Proposed Rule licenses. ISE believes doing so will Exchange has not received any Change promote competition among market unsolicited written comments from In its filing with the Commission, the makers by allowing smaller firms to members or other interested parties. self-regulatory organization included compete without the additional burden III. Date of Effectiveness of the statements concerning the purpose of, of a minimum fee. Further, some Proposed Rule Change and Timing for and basis for, the proposed rule change currency pairs are more popular than Commission Action and discussed any comments it received others so a minimum bid requirement Because the foregoing proposed rule on the proposed rule change. The text for some of the lesser popular currency change does not significantly affect the of these statements may be examined at pairs invites less interest from potential the places specified in Item IV below. protection of investors or the public market makers. While the minimum bid interest, does not impose any significant The self-regulatory organization has amounts do not amount to a large prepared summaries, set forth in burden on competition, and, by its capital outlay, firms that are terms, does not become operative for 30 sections A, B and C below, of the most contemplating entry into the FX options significant aspects of such statements. days from the date on which it was business will be further incentivized to filed, or such shorter time as the A. Self-Regulatory Organization’s do so because their start-up costs will be Commission may designate, it has Statement of the Purpose of, and reduced. FXPMMs will still be required become effective pursuant to Section Statutory Basis for, the Proposed Rule to submit a monetary bid and market 19(b)(3)(A) 9 of the Act and Rule 19b– Change quality commitments and FXCMMs will 4(f)(6) 10 thereunder. The Exchange still be required to submit only a 1. Purpose provided the Commission with written monetary bid, to compete for a trading notice of its intent to file the proposed ISE proposes to amend its rules license to serve as a market maker in FX rule change, along with a brief regarding Foreign Currency Options Options listed by the Exchange in the description and text of the proposed 5 (‘‘FX Options’’) traded on the Exchange. future. rule change, at least five business days Specifically, ISE proposes to amend its prior to the date of filing the proposed Rule 2213 regarding market maker 2. Statutory Basis rule change. trading licenses for the Exchange’s FX The Exchange believes the proposed At any time within 60 days of the Options. filing of the proposed rule change, the Under the Exchange’s current rules, rule change is consistent with the Securities Exchange Act of 1934 (the Commission may summarily abrogate FX Primary Market Makers (‘‘FXPMMs’’) such rule change if it appears to the ‘‘Act’’) and the rules and regulations are required to purchase, through a Commission that such action is under the Act applicable to a national sealed bid auction, a trading license in necessary or appropriate in the public securities exchange and, in particular, order to serve as a market maker in a interest, for the protection of investors, particular foreign currency pair. the requirements of Section 6(b) of the or otherwise in furtherance of the 7 FXPMMs must also provide market Act. Specifically, the Exchange purposes of the Act. quality commitments regarding (i) the believes the proposed rule change is average quotation size it will consistent with Section 6(b)(5) of the IV. Solicitation of Comments disseminate in the foreign currency Act’s 8 requirements that the rules of a Interested persons are invited to option, and (ii) the maximum quotation national securities exchange be submit written data, views, and spread it will disseminate in such designed to promote just and equitable arguments concerning the foregoing, product at least ninety percent of the principles of trade, to prevent including whether the proposed rule time. At the end of each auction, the fraudulent and manipulative acts and, change is consistent with the Act. Exchange determines the winning in general, to protect investors and the Comments may be submitted by any of bidder for an FXPMM trading license public interest. In particular, the the following methods: based on bid amount and market quality proposed rule change will allow smaller Electronic Comments commitment. There is only one FXPMM firms to compete for a trading license per currency pair. The minimum price • without the additional burden of a Use the Commission’s Internet for a FXPMM trading license is minimum fee. comment form (http://www.sec.gov/ currently $5,000. rules/sro.shtml); or The Exchange also sells FX B. Self-Regulatory Organization’s • Send an e-mail to rule- Competitive Marker Maker (‘‘FXCMM’’) Statement on Burden on Competition [email protected]. Please include File trading licenses. Pursuant to Exchange No. SR–ISE–2010–05 on the subject rules, FXCMM trading licenses are sold The proposed rule change does not line. pursuant to a ‘‘Dutch’’ auction.6 impose any burden on competition that FXCMMs are not required to submit any is not necessary or appropriate in Paper Comments market quality commitments. The furtherance of the purposes of the Act. • Send paper comments in triplicate to Elizabeth Murphy, Secretary, 5 ISE began trading FX options on April 17, 2007 Securities and Exchange Commission, pursuant to Commission approval. See Securities Exchange Act Release No. 55575 (April 3, 2007), 72 FR 17963 (April 10, 2007) (SR–ISE–2006–59). 7 15 U.S.C. 78f(b). 9 15 U.S.C. 78s(b)(3)(A). 6 See ISE Rule 2213(g). 8 15 U.S.C. 78f(b)(5). 10 17 CFR 240.19b–4(f)(6).

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100 F Street, NE., Washington, DC notice is hereby given that on January Exchange has prepared summaries, set 20549–1090. 14, 2010, NASDAQ OMX PHLX, Inc. forth in sections A, B, and C below, of All submissions should refer to File (‘‘Phlx’’ or the ‘‘Exchange’’) filed with the the most significant aspects of such Number SR–ISE–2010–05. This file Securities and Exchange Commission statements. (‘‘Commission’’) the proposed rule number should be included on the A. Self-Regulatory Organization’s change as described in Items I, II, and subject line if e-mail is used. To help the Statement of the Purpose of, and III below, which Items have been Commission process and review your Statutory Basis for, the Proposed Rule prepared by the Exchange. Phlx has comments more efficiently, please use Change only one method. The Commission will designated the proposed rule change as post all comments on the Commission’s constituting a rule change under Rule 1. Purpose 3 Internet Web site (http://www.sec.gov/ 19b–4(f)(6) under the Act, which The purpose of the proposed rule rules/sro.shtml). Copies of the renders the proposal effective upon change is to update various rules submission, all subsequent filing with the Commission. The pertaining to the opening by deleting amendments, all written statements Commission is publishing this notice to outdated language. In July 2009, the with respect to the proposed rule solicit comments on the proposed rule Exchange fully rolled out its new change that are filed with the change from interested persons. options trading system, Phlx XL II.4 Commission, and all written I. Self-Regulatory Organization’s Accordingly, many portions of Rule communications relating to the Statement of the Terms of Substance of 1017, which pertained to the old trading proposed rule change between the the Proposed Rule Change system, Phlx XL, no longer apply. A few Commission and any person, other than of the provisions applied to both Phlx The Exchange proposes to amend those that may be withheld from the XL and Phlx XL II; those are being Rule 1017, Openings in Options, to public in accordance with the amended to delete reference to Phlx XL, delete the portions of the rule that provisions of 5 U.S.C. 552, will be such that they remain applicable to Phlx pertain to the Phlx XL trading system, available for inspection and copying in XL II. the Commission’s Public Reference which has since been replaced by the Similarly, the Exchange is proposing Section, 100 F Street, NE., Washington, Phlx XL II trading system. Accordingly, to delete two Options Floor Procedure DC 20549, on official business days all of the commentary (.01 through .03) Advices (‘‘Advices’’). Historically, between the hours of 10 a.m. and 3 p.m. as well as paragraphs (a)–(g) will be Advices replicated the provisions of the Copies of the filing will also be available deleted, with the exception of the last Exchange’s rules that were most for inspection and copying at the sentence of paragraph (a) defining a pertinent for the trading floor principal office of the Exchange. All Phlx XL II participant and sub- community to keep handy, in lieu of the comments received will be posted paragraph (iii) of paragraph (c), which large, unwieldy rulebook; the Exchange without change; the Commission does will continue to state that to be adopted, for many years, both rules and not edit personal identifying considered in the determination of the advices that contained nearly identical information from submissions. You opening price and to participate in the language where the rule/advice was the should submit only information that opening trade, orders represented by subject of a fine schedule under the you wish to make available publicly. All Floor Brokers must be entered onto the Exchange’s minor rule plan in order for submissions should refer to File book electronically. Paragraphs (h) and the trading floor to have easy access to Number SR–ISE–2010–05 and should be (i) are proposed to be amended by these provisions (which the Exchange submitted on or before February 19, deleting references to the old trading printed and distributed) and in order for 2010. system, Phlx XL. those persons who administered fines to The Exchange also proposes to delete For the Commission, by the Division of have easy access to consult the Trading and Markets, pursuant to delegated Options Floor Procedure Advice applicable fine schedules.5 authority.11 (‘‘Advice’’) A–12, Opening Rotations, The first Advice proposed to be Florence E. Harmon, and Advice A–14, Equity Option And deleted is Advice A–12, which pertains Deputy Secretary. Index Option Opening Parameters, principally to Phlx XL and is therefore which are also outdated. obsolete; the portions that refer to Phlx [FR Doc. 2010–1853 Filed 1–28–10; 8:45 am] The text of the proposed rule change BILLING CODE 8011–01–P XL II merely cross-reference Rule 1017 is available on the Exchange’s Web site and state that the opening is conducted at http://www.nasdaqtrader.com/ automatically. Accordingly, Advice A– SECURITIES AND EXCHANGE micro.aspx?id=PHLXRulefilings, at the 12, which is merely descriptive, is no COMMISSION principal office of the Exchange, and at longer needed because there is no the Commission’s Public Reference behavior to which to apply the fine [Release No. 34–61397; File No. SR–Phlx– Room. 6 2010–07] schedule. Similarly, Advice A–14 is II. Self-Regulatory Organization’s also proposed to be deleted, because it Self-Regulatory Organizations; Notice Statement of the Purpose of, and is merely explanatory and cannot be of Filing and Immediate Effectiveness Statutory Basis for, the Proposed Rule violated; it was updated to reflect Phlx of Proposed Rule Change by NASDAQ Change XL II processes, but should instead have OMX PHLX, Inc. Deleting Obsolete In its filing with the Commission, the been deleted. Specifically, it describes Provisions Relating to the Opening Exchange included statements 4 Securities Exchange Act Release No. 59995 (May January 22, 2010. concerning the purpose of and basis for 28, 2009), 74 FR 26750 (June 3, 2009) (SR–Phlx– Pursuant to Section 19(b)(1) of the the proposed rule change and discussed 2009–32). Securities Exchange Act of 1934 any comments it received on the 5 At the time, such fines were administered by (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 proposed rule change. The text of these ‘‘Floor Officials,’’ who have since been replaced by statements may be examined at the ‘‘Options Exchange Officials.’’ 6 Advices are administered as part of the 11 17 CFR 200.30–3(a)(12). places specified in Item IV below. The Exchange’s minor rule plan; the Exchange proposes 1 15 U.S.C. 78s(b)(1). to remove Advices A–12 and A–14 from the minor 2 17 CFR 240.19b–4. 3 17 CFR 240.19b–4(f)(6). rule plan.

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how the system establishes opening or otherwise in furtherance of the For the Commission, by the Division of parameters. By proposing to delete these purposes of the Act. Trading and Markets, pursuant to delegated advices, the Exchange is also proposes authority.11 to amend its minor rule plan to delete IV. Solicitation of Comments Florence E. Harmon, these advices from it, because no fine Interested persons are invited to Deputy Secretary. schedule will apply. The content of both submit written data, views, and [FR Doc. 2010–1845 Filed 1–28–10; 8:45 am] Advices remains covered by Rule 1017. arguments concerning the foregoing, BILLING CODE 8011–01–P 2. Statutory Basis including whether the proposed rule The Exchange believes that its change is consistent with the Act. Comments may be submitted by any of SECURITIES AND EXCHANGE proposal is consistent with Section 6(b) COMMISSION of the Act 7 in general, and furthers the the following methods: objectives of Section 6(b)(5) of the Act 8 Electronic Comments [Release No. 34–61413; File No. SR–NSCC– in particular, in that it is designed to 2009–12] promote just and equitable principles of • Use the Commission’s Internet Self-Regulatory Organizations; trade, to remove impediments to and comment form (http://www.sec.gov/ National Securities Clearing perfect the mechanism of a free and rules/sro.shtml); or Corporation; Notice of Filing and open market and a national market • Send an e-mail to rule- system, and, in general to protect Immediate Effectiveness of Proposed [email protected]. Please include File Rule Change To Revise Fee Schedule investors and the public interest, by Number SR–Phlx–2010–07 on the removing obsolete language such that subject line. January 25, 2010. the rules are more clear. Pursuant to Section 19(b)(1) of the Paper Comments B. Self-Regulatory Organization’s Securities Exchange Act of 1934 1 Statement on Burden on Competition • Send paper comments in triplicate (‘‘Act’’), notice is hereby given that on December 31, 2009, National Securities The Exchange does not believe that to Elizabeth M. Murphy, Secretary, Clearing Corporation (‘‘NSCC’’) filed the proposed rule change will impose Securities and Exchange Commission, with the Securities and Exchange any burden on competition not 100 F Street, NE., Washington, DC Commission (‘‘Commission’’) the necessary or appropriate in furtherance 20549–1090. proposed rule change as described in of the purposes of the Act. All submissions should refer to File Items I, II, and III below, which Items C. Self-Regulatory Organization’s Number SR–Phlx–2010–07. This file have been prepared primarily by NSCC. Statement on Comments on the number should be included on the NSCC filed the proposal pursuant to Proposed Rule Change Received from subject line if e-mail is used. To help the Section 19(b)(3)(A)(ii) of the Act 2 and Members, Participants or Others Commission process and review your Rule 19b–4(f)(2) 3 thereunder so that the No written comments were either comments more efficiently, please use proposal was effective upon filing with solicited or received. only one method. The Commission will the Commission. The Commission is post all comments on the Commission’s publishing this notice to solicit III. Date of Effectiveness of the Internet Web site (http://www.sec.gov/ comments on the proposed rule change Proposed Rule Change and Timing for rules/sro.shtml). Copies of the from interested persons. Commission Action submission, all subsequent I. Self-Regulatory Organization’s amendments, all written statements Because the foregoing proposed rule Statement of the Terms of Substance of change does not: (i) Significantly affect with respect to the proposed rule the Proposed Rule Change the protection of investors or the public change that are filed with the interest; (ii) impose any significant Commission, and all written The purpose of the proposed rule burden on competition; and (iii) become communications relating to the change is to revise certain fees for NSCC operative for 30 days from the date on proposed rule change between the services and make other technical which it was filed, or such shorter time Commission and any person, other than changes to the NSCC Fee Schedule. as the Commission may designate, it has those that may be withheld from the II. Self-Regulatory Organization’s become effective pursuant to Section public in accordance with the Statement of the Purpose of, and 9 19(b)(3)(A) of the Act and Rule 19b– provisions of 5 U.S.C. 552, will be Statutory Basis for, the Proposed Rule 10 4(f)(6) thereunder. available for inspection and copying in Change At any time within 60 days of the the Commission’s Public Reference filing of the proposed rule change, the Room, on official business days between In its filing with the Commission, Commission may summarily abrogate the hours of 10 a.m. and 3 p.m. Copies NSCC included statements concerning such rule change if it appears to the of the filing also will be available for the purpose of and basis for the Commission that such action is inspection and copying at the principal proposed rule change and discussed any necessary or appropriate in the public office of the Exchange. All comments comments it received on the proposed interest, for the protection of investors, received will be posted without change; rule change. The text of these statements the Commission does not edit personal may be examined at the places specified 7 15 U.S.C. 78f(b). identifying information from in Item IV below. NSCC has prepared 8 15 U.S.C. 78f(b)(5). submissions. You should submit only summaries, set forth in sections (A), (B) 9 15 U.S.C. 78s(b)(3)(A). information that you wish to make and (C) below, of the most significant 10 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– aspects of such statements.4 4(f)(6) requires a self-regulatory organization to give available publicly. All submissions the Commission written notice of its intent to file should refer to File Number SR–Phlx– 1 the proposed rule change at least five business days 2010–07 and should be submitted on or 15 U.S.C. 78s(b)(1). 2 15 U.S.C. 78s(b)(3)(A)(ii). prior to the date of filing of the proposed rule before February 19, 2010. change, or such shorter time as designated by the 3 17 CFR 240.19b–4(f)(2). Commission. The Exchange has satisfied this 4 The Commission has modified the text of the requirement. 11 17 CFR 200.30–3(a)(12). summaries prepared by NSCC.

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(A) Self-Regulatory Organization’s and provide a technical adjustment to Electronic Comments Statement of the Purpose of, and the number of Participant Fees. • Electronic comments may be These proposed fee revisions are Statutory Basis for, the Proposed Rule submitted by using the Commission’s consistent with NSCC’s overall pricing Change Internet comment form (http:// philosophy of aligning service fees with www.sec.gov/rules/sro.shtml), or NSCC proposes revising certain underlying costs. The effective date for • Send an e-mail to rule- service fees and making other technical these fee adjustments was January 4, [email protected]. Please include File changes to its Fee Schedule. Increased 2010. The changes to NSCC’s Fee No. SR–NSCC–2009–12 on the subject fees are proposed for Fund/SERV Schedule can be found in Exhibit 5 to line. transactions and certain clearance proposed rule change SR–NSCC–2009– activity.5 There will also be an increase 12 at http://www.dtcc.com/downloads/ Paper Comments in the monthly fee for the mutual fund _ legal/rule filings/2009/nscc/2009- • Send paper comments in triplicate Profile Phase II Service; 6 however, 12.pdf. to Elizabeth M. Murphy, Secretary, NSCC is introducing a corresponding NSCC believes that the proposed rule Securities and Exchange Commission, credit for users of the service with change is consistent with the 100 F Street, NE., Washington DC twenty-five or fewer funds in their fund requirements of Section 17A of the 20549–1090. family. Act 10 and the rules and regulations thereunder because it updates NSCC’s All submissions should refer to File NSCC also proposes eliminating or Number SR–NSCC–2009–12. This file reducing certain fees. The monthly fee fee schedule to provide an equitable allocation of fees among its members. number should be included on the charged to members that act on behalf subject line if e-mail is used. To help the of brokers or dealers will be eliminated, (B) Self-Regulatory Organization’s Commission process and review your and the Flip Trades fee will be reduced. Statement on Burden on Competition comments more efficiently, please use Fee structure changes and other NSCC does not believe that the only one method. The Commission will technical Fee Schedule modifications proposed rule change will have any post all comments on the Commission’s are proposed. The fee structure for trade impact or impose any burden on Internet Web site (http://www.sec.gov/ processing accounts will be revised competition. rules/sro.shtml). Copies of the from a tiered structure to a flat monthly submission, all subsequent charge per account. A change reflecting (C) Self-Regulatory Organization’s amendments, all written statements that flat fee will remove monthly Statement on Comments on the with respect to the proposed rule maximum cumulative charges Proposed Rule Change Received From change that are filed with the associated with Trade Input, the Trade Members, Participants, or Others Commission, and all written Processing System, and the Global Written comments relating to the communications relating to the Clearance Network Service.7 Provisions proposed rule change have not yet been proposed rule change between the in the Fee Schedule stating that Trade solicited or received. NSCC will notify Commission and any person, other than Recording Fees are charged for all the Commission of any written those that may be withheld from the Online Comparison System and Intra- comments received by NSCC. public in accordance with the day Comparison System trades placed provisions of 5 U.S.C. 552, will be III. Date of Effectiveness of the available for inspection and copying in in NSCC’s comparison system will be Proposed Rule Change and Timing for 8 the Commission’s Public Reference removed. This is because those systems Commission Action no longer submit locked-in bond or Section, 100 F Street, NE., Washington foreign security trades to NSCC. The foregoing rule change has become DC 20549, on official business days Additional Fee Schedule changes will effective pursuant to Section between the hours of 10 a.m. and 3 p.m. remove monthly maximum cumulative 19(b)(3)(A)(ii) of the Act 11 and Rule Copies of such filings also will be membership fees for Fund/SERV, 19b–4(f)(2) 12 thereunder because the available for inspection and copying at Networking, and Mutual Fund proposed rule change is establishing or the principal office of NSCC and on Commission Settlement, relocate the changing a due, fee, or other charge NSCC’s Web site at http:// Clearance Activity Fee to demonstrate applicable only to a member. At any www.dtcc.com/downloads/legal/ _ its position in NSCC’s processing flow,9 time within sixty days of the filing of rule filings/2009/nscc/2009-12.pdf. All such rule change, the Commission may comments received will be posted summarily abrogate such rule change if 5 The Clearance Activity Fee formerly appeared without change; the Commission does on the NSCC Fee Schedule as the Trade Netting it appears to the Commission that such not edit personal identifying Fee. NSCC proposes changing the name to action is necessary or appropriate in the information from submissions. You Clearance Activity Fee to reflect that the fee covers public interest, for the protection of should submit only information that trade recording as well as netting services. The fee investors, or otherwise in furtherance of uses a tiered structure graduated to the number of you wish to make available publicly. All sides submitted monthly for trade recording and the purposes of the Act. submissions should refer to file number netting. It also includes a value into the net fee and SR–NSCC–2009–12 and should be IV. Solicitation of Comments a value out of the net fee. submitted on or before February 19, 6 NSCC offers two levels of the Profile service. Interested persons are invited to 2010. Profile Phase I transmits mutual fund price and rate submit written data, views and information. Profile Phase II stores data elements For the Commission, by the Division of such as accumulation, breakpoints, and commission arguments concerning the foregoing, Trading and Markets, pursuant to delegated eligibility that relate to mutual fund processing including whether the proposed rule authority.13 rules. change is consistent with the Act. Florence E. Harmon, 7 This charge will no longer apply to Municipal Comments may be submitted by any of Deputy Secretary. Comparison-Only Members. the following methods: 8 These changes are reflected in a footnote to [FR Doc. 2010–1854 Filed 1–28–10; 8:45 am] section I.C. of the Fee Schedule. BILLING CODE 8011–01–P 9 The introductory paragraph of the Trade 10 15 U.S.C. 78q–1. Clearance Fees section will also be revised to reflect 11 15 U.S.C. 78s(b)(3)(A)(ii). that the fee includes trade recording services. 12 17 CFR 240.19b–4(f)(2). 13 17 CFR 200.30–3(a)(12).

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SECURITIES AND EXCHANGE with related provisions in Addendum K Changes to Rule 9 affirmatively COMMISSION and Procedure XV, each of which is provide that NSCC does not guarantee proposed to be amended as further the payment obligation in ESS and that [Release No. 34–61415; File No. SR–NSCC– 2010–01] described below. payment credits and debits may be ESS allows an NSCC member reversed. Technical and conforming Self-Regulatory Organizations; (‘‘Member’’) through the facilities of changes clarify the concepts of National Securities Clearing NSCC, to physically deliver a sealed delivering and receiving Members and Corporation; Notice of Filing of envelope 4 containing securities and that settlement processing is subject not Proposed Rule Change To Eliminate such other items as NSCC may permit only to the rights of the NSCC under Guarantee of Payment in Connection from time to time, to a specified Section 2 of Rule 12 but also to the new With the Envelope Settlement Service receiving Member. NSCC then delivers reversal provision in Section 4 of Rule the envelope to the receiving Member. 9. January 25, 2010. The delivering Member must attach to Addendum D is similarly amended to Pursuant to Section 19(b)(1) of the each envelope (in duplicate), a credit conform to amended Rule 9 to state that Securities Exchange Act of 1934 list, which reflects the total money ESS is not guaranteed and that payment (‘‘Act’’) 1 and Rule 19b–4 thereunder 2 value, if any, of the envelope’s contents. credits and debits may be reversed as notice is hereby given that on January 4, If after receipt of the envelope NSCC provided in Rule 9. Clarification that 2010, the National Securities Clearing determines that the envelope delivered settlement processing is subject to the Corporation (‘‘NSCC’’) filed with the is properly listed on the accompanying rights of NSCC under Rule 9, new Securities and Exchange Commission credit list, NSCC stamps the duplicate Section 4, and Rule 12, Section 2, is also (‘‘Commission’’) the proposed rule credit list and makes it immediately carried over to Addendum D. change as described in Items I, II, and available to the Member’s representative Addendum D also covers other services III below, which Items have been making the delivery. Envelopes listed for which no change is being made in prepared primarily by NSCC. The on the credit list shall be deemed to this filing. Therefore, certain of the Commission is publishing this notice to have been accepted by NSCC when the revisions to Addendum D clarify that solicit comments on the proposed rule duplicate credit list is stamped. the amendments are limited to ESS. change from interested persons. As a related feature of ESS, the Historical statements in Addendum D I. Self-Regulatory Organization’s payment shown on the credit list is have been eliminated. Statement of the Terms of Substance of processed as part of the Members’ daily The change to Addendum K deletes the Proposed Rule Change end of day net money settlement the provision that formerly provided a obligations in reliance on the agreement guarantee for ESS and thereby deemed The purpose of the proposed rule between the delivering and receiving ESS to be a ‘‘System’’ within the change is to make modifications to parties that that amount is the contract meaning of Rule 4; without the ‘‘ ’’ NSCC’s Rules & Procedures ( Rules ) to amount. guarantee, ESS will not be considered a eliminate NSCC’s guarantee of payment Pursuant to this rule change, the ‘‘System.’’ in connection with the Envelope NSCC will amend Rule 9 and related Consistent with this change, clearing Settlement Service (‘‘ESS’’) as provided provisions so that the NSCC does not fund deposits allocated to ESS will be for under Rule 9, Addendum D, guarantee the payment obligation to the eliminated under Procedure XV, which Addendum K, and Procedure XV of the receiving Member in an ESS delivery will reduce the cost to members using Rules. and so that credits and debits of the ESS. The change to Procedure XV II. Self-Regulatory Organization’s payment amount of an envelope may be clarifies that when the clearing fund Statement of the Purpose of, and reversed. The rationale for these component titled ‘‘For Other Statutory Basis for, the Proposed Rule changes is to protect the NSCC against Transactions’’ (that is, for other than Change the risk of Member non-payment. CNS transactions and balance order transactions) is computed, ESS will not In its filing with the Commission, The payment reversal may be effected by the NSCC even if the receiving be included. NSCC included statements concerning In considering the elimination of the the purpose of and basis for the Member has taken possession of the envelope; however, if the receiving guarantee, NSCC surveyed selected proposed rule change and discussed any Members and learned that they did not comments it received on the proposed Member has not yet taken possession of the envelope at the time of a payment consider it vital that NSCC be rule change. The text of these statements responsible for their ESS payment may be examined at the places specified reversal, NSCC will return the envelope to the delivering Member. Any dispute obligations and that they do not rely on in Item IV below. NSCC has prepared the NSCC to guarantee such payments. summaries, set forth in sections (A), (B), between the delivering and receiving Members must be resolved by them The proposed rule changes will and (C) below, of the most significant therefore conform to current market aspects of these statements.3 outside the facilities of the NSCC. The primary substantive changes are expectations. (A) Self-Regulatory Organization’s in Rule 9, Addendum D and Addendum However, Members expressed a strong Statement of the Purpose of, and K with a conforming change to desire for NSCC to maintain the central Statutory Basis for, the Proposed Rule Procedure XV. Technical clean-up delivery service. The proposed changes Change changes are also made in each. are designed to meet this expressed need of certain Members while reducing The Envelope Settlement Service risk to NSCC and its Members generally. (‘‘ESS’’) is primarily provided for under 4 Rule 9 provides that except as NSCC may The burden of risk is shifted to those Rule 9 and Addendum D of the Rules determine to be appropriate or necessary, NSCC will not examine the contents of the envelopes or that should bear it, outside NSCC’s verify the amounts of money shown on the credit facilities. The changes will also insulate 1 15 U.S.C. 78s(b)(1). list, and it shall not be responsible with respect 2 17 CFR 240.19b–4. thereto except to deliver the envelopes accepted by other Members from any impact on net 3 The Commission has modified the text of the it to the authorized representatives of the Members settlement due to an ESS payment summaries prepared by NSCC. to whom they are addressed. dispute.

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NSCC believes the proposed rule rules/sro.shtml) or Send an e-mail to SECURITIES AND EXCHANGE change is consistent with the [email protected]. Please include COMMISSION requirements of Section 17A of the Act 5 File Number SR–NSCC–2010–01 on the and the rules and regulations subject line. [Release No. 34–61407; File No. SR–NYSE– thereunder applicable to NSCC because 2010–02] the proposed rule change facilitates the Paper Comments Self-Regulatory Organizations; Notice prompt and accurate clearance and • Send paper comments in triplicate settlement of securities transactions by of Filing and Immediate Effectiveness to Elizabeth M. Murphy, Secretary, protecting the NSCC’s net settlement of Proposed Rule Change by New York Securities and Exchange Commission, process while continuing to provide a Stock Exchange LLC To Amend 100 F Street, NE., Washington, DC central delivery point for physical Certain of Its Initial Listing deliveries of envelopes with constrained 20549–1090. Requirements All submissions should refer to File payment processing. The changes will January 21, 2010. reduce the NSCC’s exposure to potential Number SR–NSCC–2010–01. This file Pursuant to Section 19(b)(1) 1 of the losses from Member defaults, number should be included on the Securities Exchange Act of 1934 (the insolvencies, mistakes, and fraud and subject line if e-mail is used. To help the ‘‘Act’’),2 and Rule 19b–4 thereunder,3 will appropriately shift the risk outside Commission process and review your notice is hereby given that, on January NSCC, to the contracting Members in an comments more efficiently, please use 7, 2010, New York Stock Exchange LLC ESS transaction. only one method. The Commission will (the ‘‘NYSE’’ or the ‘‘Exchange’’) filed (B) Self-Regulatory Organization’s post all comments on the Commission’s with the Securities and Exchange Statement on Burden on Competition Internet Web site (http://www.sec.gov/ Commission (‘‘SEC’’ or ‘‘Commission’’) rules/sro.shtml). Copies of the the proposed rule changes as described NSCC does not believe that the submission, all subsequent proposed rule change would impose any in Items I and II below, which items amendments, all written statements burden on competition. have been prepared by the Exchange. with respect to the proposed rule The Commission is publishing this (C) Self-Regulatory Organization’s change that are filed with the notice to solicit comments on the Statement on Comments on the Commission, and all written proposed rule changes from interested Proposed Rule Change Received From communications relating to the persons. Members, Participants or Others proposed rule change between the I. Self-Regulatory Organization’s Written comments relating to the Commission and any person, other than Statement of the Terms of Substance of proposed rule change have not been those that may be withheld from the the Proposed Rule Change solicited or received. NSCC will notify public in accordance with the the Commission of any written provisions of 5 U.S.C. 552, will be The Exchange proposes to amend comments received by NSCC. available for inspection and copying in certain of its initial listing requirements as they relate to companies listing in III. Date of Effectiveness of the the Commission’s Public Reference Section, 100 F Street, NE., Washington, connection with a firm commitment Proposed Rule Change and Timing for underwritten public offering whose DC 20549–1090, on official business Commission Action common stock is registered under the days between the hours of 10 a.m. and Securities Exchange Act of 1934 prior to Within thirty-five days of the date of 3 p.m. Copies of such filings will also publication of this notice in the Federal listing but not listed on a national be available for inspection and copying securities exchange. Register or within such longer period (i) at the principal office of the NSCC and as the Commission may designate up to The text of the proposed rule change on NSCC’s Web site at http:// ninety days of such date if it finds such is available on the Exchange’s Web site www.dtcc.com/downloads/legal/ (http://www.nyse.com), at the longer period to be appropriate and _ publishes its reasons for so finding or rule filings/2010/nscc/2010-01.pdf. All Exchange’s Office of the Secretary and (ii) as to which the self-regulatory comments received will be posted at the Commission’s Public Reference organization consents, the Commission without change; the Commission does room. not edit personal identifying will: II. Self-Regulatory Organization’s (A) By order approve the proposed information from submissions. You should submit only information that Statement of the Purpose of, and rule change or Statutory Basis for, the Proposed Rule you wish to make available publicly. All (B) Institute proceedings to determine Change whether the proposed rule change submissions should refer to File should be disapproved. Number SR–NSCC–2010–01 and should In its filing with the Commission, the be submitted on or before February 19, self-regulatory organization included IV. Solicitation of Comments 2010. statements concerning the purpose of Interested persons are invited to and basis for the proposed rule change submit written data, views, and For the Commission by the Division of and discussed any comments it received Trading and Markets, pursuant to delegated arguments concerning the foregoing, on the proposed rule change. The text authority.6 including whether the proposed rule of these statements may be examined at change is consistent with the Act. Florence E. Harmon, the places specified in Item IV below. Comments may be submitted by any of Deputy Secretary. The NYSE has prepared summaries, set the following methods: [FR Doc. 2010–1852 Filed 1–28–10; 8:45 am] forth in Sections A, B and C below, of BILLING CODE 8011–01–P the most significant aspects of such Electronic Comments statements. • Use the Commissions Internet comment form (http://www.sec.gov/ 1 15 U.S.C. 78s(b)(1). 2 15 U.S.C. 78a. 5 15 U.S.C. 78q–1. 6 17 CFR 200.30–3(a)(12). 3 17 CFR 240.19b–4.

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A. Self-Regulatory Organization’s Offering, the Exchange will apply the which will not meet the NYSE’s Statement of the Purpose of, and $100 million market value of publicly- definition of an IPO, as the company’s Statutory Basis for, the Proposed Rule held shares standard of Section 102.01B common stock was registered under the Change if there is significant trading volume in Act immediately prior to the listing. the company’s securities in the over-the- These companies will generally not 1. Purpose counter market prior to listing. In have a large public float at the time of Section 102.01B of the Exchange’s addition, the Exchange will generally initial listing, as there will not have Listed Company Manual (the ‘‘Manual’’) apply the $100 million test if the been any prior transaction that led to a requires that a company listing at the company has previously registered on significant distribution event and, in the time of its initial public offering (‘‘IPO’’) one or more Securities Act registration absence of a listing, the company will or as a result of a spin-off or under the statements the sale of significant not have had a liquid trading market. Affiliated Company standard of Section numbers of shares of the class that the The Exchange believes that these 102.01C(iii) must demonstrate an company proposes to list, unless there companies are more similar to aggregate market value of publicly-held is evidence that subsequent trading has companies listing in connection with an shares (‘‘public float’’) of $40 million at been very limited. IPO than to companies transferring from the time of listing. All other companies Companies not listing in connection another exchange. As with companies must have a public float of $100 million with an IPO are generally transferring listing in connection with an IPO, these at the time of initial listing. For their listing from another national companies are undertaking their first purposes of Section 102.01B, an IPO is securities exchange. These companies major public distribution of their stock defined as an offering by an issuer have a history of trading in a liquid and will have their first truly liquid which, immediately prior to its original market and, in general, there is no trading market after listing. As such, the listing, does not have a class of common reason to believe that their public float Exchange believes that there is a stock registered under the Act. The will significantly increase in size simply reasonable basis for concluding that the distribution requirements set forth in as a result of transferring to the NYSE. public float of these companies will Section 103.01A for companies listing On the other hand, companies listing in increase over time in the same way as under the NYSE’s listing standards for connection with an IPO have generally is the case for a company after its IPO. non-U.S. companies also utilize the not previously had a trading market Consequently, the Exchange believes it same definition of an IPO. Section with significant liquidity and it has is generally appropriate to subject 102.01B and 103.01A both provide been the NYSE’s experience that companies listing in connection with an that—in connection with an IPO—the officers, directors and holders of more Initial Firm Commitment Underwritten NYSE will rely on a written than 10% of the company’s stock— Public Offering to the same public float commitment from the company’s whose shares are not counted as part of requirements as companies listing in underwriter to represent the anticipated the public float—in many cases sell connection with an IPO. value of the company’s offering to significant amounts of stock into the Notwithstanding the foregoing, the demonstrate the company’s compliance public markets after listing. This Exchange recognizes that there are with the applicable public float possibility of sales of shares by insiders companies that have significant trading requirement.4 after the IPO gives rise to a reasonable volume on the over-the-counter market The Exchange proposes to add a new expectation that a company’s public definition for use in Sections 102.01B and which are more similar to float will increase significantly over companies trading on a national and 103.01A. The proposed definition time after its IPO and the Exchange securities exchange than to the closely- would classify a company as listing at believes that the lower public float held companies with illiquid stocks for the time of its ‘‘Initial Firm Commitment requirement for IPOs is an appropriate which the Initial Firm Commitment Underwritten Public Offering’’ if (i) response to that fact. Such company has a class of common While most companies listing on the Underwritten Public Offering provision stock registered under the Act, (ii) such NYSE do so upon consummation of an is proposed. The Exchange will common stock has not been listed on a IPO, a spin-off or a carve-out or upon continue to apply the $100 million national securities exchange during the transfer from another exchange, the public float requirement to those types period since the commencement of its NYSE occasionally receives applications of companies. In addition, there are current registration under the Act,5 and for listing from companies whose companies traded on the over-the- (iii) such company is listing in common stock was registered under the counter market that have sold connection with a firm commitment Act prior to listing but which were significant numbers of equity securities underwritten public offering that is its neither listed on another exchange nor pursuant to Securities Act registration first firm commitment underwritten had a liquid trading market prior to statements, either in direct placements public offering of its common stock listing. Typically, these are companies or best efforts underwritings. The since the registration of its common that have never undertaken a firm Exchange will generally apply the $100 stock under the Act. The Exchange commitment underwritten public million public float requirement to would apply the $40 million public offering but have voluntarily registered those companies, unless there is only float requirement of Section 102.01B to their common stock under the Act or very limited trading activity in such a company listing in connection with its incurred an obligation to register under securities in the over-the-counter Initial Firm Commitment Underwritten Section 12(g) of the Act because the market, as they are also more similar to Public Offering. Notwithstanding the number of holders of their common companies trading on a national fact that a company is listing in stock exceeded the minimum securities exchange than to the closely- connection with its Initial Firm established under SEC rules. These held companies with illiquid stocks for Commitment Underwritten Public companies may seek to list in which the Initial Firm Commitment connection with a public offering which Underwritten Public Offering provision 4 Section 103.01A requires a worldwide public the company and the market will view is proposed. float of $100 million for all listings. as essentially identical to an IPO—as it The Exchange also believes that it is 5 A company which had previously been listed but was taken private prior to its current is the first broadly distributed public appropriate to amend Sections 102.01B registration under the Act would qualify. equity offering by the company—but and 103.01A to allow the Exchange to

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(i) base its determination as to whether Section 6(b) 6 of the Act, in general, and such shorter time as designated by the a company listing in connection with an furthers the objectives of Section 6(b)(5) Commission, the proposed rule change Initial Firm Commitment Underwritten of the Act,7 in particular in that it is has become effective pursuant to Public Offering has complied with the designed to promote just and equitable Section 19(b)(3)(A) of the Act 8 and Rule $4 stock price initial listing requirement principles of trade, to foster cooperation 19b–4(f)(6) thereunder.9 on the public offering price in the Initial and coordination with persons engaged At any time within 60 days of the Firm Commitment Underwritten Public in regulating, clearing, settling, filing of such proposed rule change, the Offering and (ii) rely on a letter from the processing information with respect to, Commission may summarily abrogate company’s underwriter in the Initial and facilitating transactions in such rule change if it appears to the Firm Commitment Underwritten Public securities, to remove impediments to Commission that such action is Offering as evidence of compliance with and perfect the mechanism of a free and necessary or appropriate in the public the applicable public float requirement. open market and a national market interest, for the protection of investors, These changes do not modify the system, and, in general, to protect or otherwise in furtherance of the quantitative public float requirement for investors and the public interest. The purposes of the Exchange Act. Exchange believes that the proposed companies whose common stock was IV. Solicitation of Comments registered prior to listing but which are amendment is consistent with the not transferring from another exchange. investor protection objectives of the Act Interested persons are invited to Rather, (i) in the case of the $4 stock in that, while it will allow certain submit written data, views and price requirement, it recognizes the fact companies to list subject to a lower arguments concerning the foregoing, that the offering price is a better gauge public float requirement, that lower including whether the proposed rule of the stock’s likely trading price after requirement is still set at a high enough change is consistent with the Act. listing than would be provided by any level that only companies that are Comments may be submitted by any of limited trading occurring in the over- suitable for listing on the Exchange will the following methods: the-counter market, and (ii) in the case qualify to list. In addition, in expanding Electronic Comments of the public float requirement, it the circumstances in which the • recognizes the fact that companies Exchange may rely on underwriters’ Use the Commission’s Internet listing in connection with an Initial letters to determine compliance with comment form (http://www.sec.gov/ Firm Commitment Underwritten Public market capitalization requirements, the rules/sro.shtml); or • Send an e-mail to rule- Offering typically will not have a proposed rule change is not [email protected]. Please include File significant public float prior to substantively changing the Exchange’s Number SR–NYSE–2010–02 on the consummating their offering, but will be quantitative initial listing requirements. subject line. able to demonstrate the required public B. Self-Regulatory Organization’s float at the time of listing. The Exchange Statement on Burden on Competition Paper Comments also proposes to amend the domestic • The Exchange does not believe that Send paper comments in triplicate company financial listing standards of to Secretary, Securities and Exchange Section 102.01C and the non-U.S. the proposed rule change will impose any burden on competition that is not Commission, 100 F Street, NE., company financial listing standards of Washington, DC 20549–1090. Section 103.01B to permit the Exchange necessary or appropriate in furtherance All submissions should refer to File to rely on a letter from the company’s of the purposes of the Act. Number SR–NYSE–2010–02. This file underwriter as evidence of compliance C. Self-Regulatory Organization’s number should be included on the with the market capitalization Statement on Comments on the subject line if e-mail is used. To help the requirements of the various financial Proposed Rule Change Received From Commission process and review your listing standards for companies listing Members, Participants or Others comments more efficiently, please use in connection with an Initial Firm only one method. The Commission will Commitment Underwritten Public Written comments were neither post all comments on the Commission’s Offering. solicited nor received. Internet Web site (http://www.sec.gov/ The Exchange believes that the III. Date of Effectiveness of the rules/sro.shtml). Copies of the proposed rule change is consistent with Proposed Rule Change and Timing for submission,10 all subsequent the protection of investors and the Commission Action amendments, all written statements public interest and does not raise any Because the proposed rule change: with respect to the proposed rule novel regulatory issues. The Exchange (i) Does not significantly affect the change that are filed with the notes that the $40 million public float protection of investors or the public Commission, and all written requirement for domestic IPOs and $100 interest; (ii) does not impose any communications relating to the million worldwide public float significant burden on competition; and proposed rule change between the requirement for non-U.S. companies are (iii) does not become operative for 30 Commission and any person, other than both higher than the public float days after the date of the filing, or such those that may be withheld from the requirements under the various Nasdaq shorter time as the Commission may Global Market initial listing standards, designate if consistent with the 8 15 U.S.C. 78s(b)(3)(A). which range from $8 million to $20 protection of investors and the public 9 17 CFR 240.19b–4(f)(6). In addition, the million. The Exchange also notes that interest, provided that the self- Commission notes that Rule 19b–4(f)(6)(iii) requires Nasdaq Global Market does not regulatory organization has given the a self-regulatory organization to give the distinguish between IPOs and other new Commission written notice of its intent to file the Commission written notice of its intent proposed rule change at least five business days listing for purposes of establishing its to file the proposed rule change at least prior to the date of filing of the proposed rule quantitative public float requirements. five business days prior to the date of change, or such shorter time as designated by the Commission. The Exchange has satisfied this 2. Statutory Basis filing of the proposed rule change or requirement. 10 The text of the proposed rule change is The Exchange believes that the 6 15 U.S.C. 78f(b). available on the Commission’s Web site at http:// proposed rule change is consistent with 7 15 U.S.C. 78f(b)(5). www.sec.gov.

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public in accordance with the function to find docket number SSA– we issued instructions to our employees provisions of 5 U.S.C. 552, will be 2009–0081. The system will issue a in an Emergency Message on August 30, available for inspection and copying in tracking number to confirm your 1996.1 We later included some of those the Commission’s Public Reference submission. You will not be able to instructions in our Program Operations Room, on official business days between view your comment immediately Manual System (POMS).2 Since 1996 we the hours of 10 a.m. and 3 p.m. Copies because we must post each comment have used these instructions and our of the filing also will be available for manually. It may take up to a week for regulations 3 to determine whether a inspection and copying at the principal your comment to be viewable. person’s DAA is a contributing factor office of the Exchange. All comments 2. Fax: Fax comments to (410) 966– material to our determination of received will be posted without change; 2830. disability. the Commission does not edit personal 3. Mail: Mail your comments to the identifying information from Office of Regulations, Social Security Request for Comments submissions. You should submit only Administration, 137 Altmeyer Building, information that you wish to make 6401 Security Boulevard, Baltimore, We are asking for your comments on available publicly. All submissions Maryland 21235–6401. the procedures we follow when should refer to File Number SR–NYSE– Comments are available for public evaluating DAA. In particular, we 2010–02 and should be submitted on or viewing on the Federal eRulemaking would like your opinion about what, if before February 19, 2010. portal at http://www.regulations.gov or any, changes you think we should make For the Commission, by the Division of in person, during regular business to our instructions. For example, do you Trading and Markets, pursuant to delegated hours, by arranging with the contact have any suggestions about: authority.11 person identified below. • What evidence we should consider Florence E. Harmon, FOR FURTHER INFORMATION CONTACT: to be medical evidence of DAA? Cheryl A. Williams, Social Security Deputy Secretary. • How we should evaluate claims of Administration, Room 4624 Annex [FR Doc. 2010–1849 Filed 1–28–10; 8:45 am] people who have a combination of DAA BILLING CODE 8011–01–P Building, 6401 Security Boulevard, Baltimore, MD 21235–6401, (410) 965– and at least one other physical 1020. For information on eligibility or impairment? • SOCIAL SECURITY ADMINISTRATION filing for benefits, call our national toll- How we should evaluate the claims free number, 1–800–772–1213 or TTY of people who have a combination of [Docket No. SSA–2009–0081] 1–800–325–0778, or visit our Internet DAA and at least one other mental site, Social Security Online, at http:// impairment? Drug Addiction and Alcoholism www.socialsecurity.gov. • Whether we should include using AGENCY: Social Security Administration. SUPPLEMENTARY INFORMATION: cigarettes and other tobacco products in ACTION: Request for Comments. Electronic Version our instructions? • How long a period of abstinence or SUMMARY: We are requesting your The electronic file of this document is comments about our operating available on the date of publication in nonuse we should consider to procedures for determining disability the Federal Register at http:// determine whether DAA is material to for persons whose drug addiction or www.gpoaccess.gov/fr/index.html. our determination of disability? alcoholism (DAA) may be a contributing • Whether there is any special Background factor material to our determination of guidance we can provide for people disability. The law provides that a person shall with DAA who are homeless? DATES: To ensure that your comments not be considered disabled for purposes Please see the information under are considered, we must receive them of the Social Security Disability ADDRESSES earlier in this document for no later than March 30, 2010. Insurance or the Supplemental Security methods to give us your comments. We ADDRESSES: You may submit comments Income programs if his or her DAA is by any one of three methods—Internet, a contributing factor material to our will not respond to your comments, but fax, or mail. Do not submit the same determination of disability. Sections we will consider them when we decide comments multiple times or by more 223(d)(2)(C) and 1614(a)(3)(J) of the whether and how we should update our than one method. Regardless of which Social Security Act (Act) (42 U.S.C. current instructions. method you choose, please state that 423(d)(2)(C) and 1382c(a)(3)(J)). If we Dated: January 22, 2010. your comments refer to Docket No. find that a person is disabled and we Michael J. Astrue, SSA–2009–0081 so that we may have medical evidence of DAA, we must Commissioner of Social Security. associate your comments with the decide whether the DAA is material to correct document. our determination of disability. To do [FR Doc. 2010–1834 Filed 1–28–10; 8:45 am] BILLING CODE 4191–02–P Caution: You should be careful to include this, we evaluate which of the person’s in your comments only information that you disabling physical and mental wish to make publicly available. We strongly limitations would remain if he or she urge you not to include in your comments stopped using drugs or alcohol. We then any personal information, such as Social determine whether any or all of these Security numbers or medical information. remaining limitations would be 1 1. Internet: We strongly recommend disabling. The DAA is material to our You can read the Emergency Message here: https://secure.ssa.gov/apps10/public/reference.nsf/ that you submit your comments via the determination of disability when we 1c87f767ab05e983852574da00547b35/4e8211854 Internet. Please visit the Federal find that the person’s remaining b65c36d852574da005a91e0!OpenDocument. eRulemaking portal at http:// limitations would not be disabling. 20 2 You can read the POMS instruction here: www.regulations.gov. Use the Search CFR 404.1535, 416.935. https://secure.ssa.gov/apps10/poms.nsf/lnx/ To provide guidance on how we 0490070050. 11 17 CFR 200.30–3(a)(12). interpret the DAA provisions of the Act, 3 20 CFR 404.1535 and 416.935.

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DEPARTMENT OF STATE Services, U.S. Department of State, 2401 Reorganization Plan Numbered 2 of E. Street, NW., L–603, Washington, DC 1977. It was reauthorized pursuant to [Public Notice: 6888] 20522, who may be reached on 202– Public Law 111–70 (2009). 663–2910. The Commission is a bipartisan panel 60-Day Notice of Proposed Information SUPPLEMENTARY INFORMATION: appointed by the President and created Collection: DS–5501, Electronic We are soliciting public comments to by Congress in 1948 to assess public Diversity Visa Entry Form, OMB permit the Department to: diplomacy policies and programs of the Control Number 1405–0153 • Evaluate whether the proposed U.S. government and publicly funded nongovernmental organizations. It ACTION: Notice of request for public information collection is necessary for submits reports to the Congress, the comments. the proper performance of our functions. President, and the Secretary of State to SUMMARY: The Department of State is • Evaluate the accuracy of our develop a better understanding of and seeking Office of Management and estimate of the burden of the proposed support for public diplomacy programs Budget (OMB) approval for the collection, including the validity of the and activities. information collection described below. methodology and assumptions used. FOR FURTHER INFORMATION CONTACT: Carl The purpose of this notice is to allow 60 • Enhance the quality, utility, and Chan, ACPD Executive Director) at (202) days for public comment in the Federal clarity of the information to be 632–2823 or via e-mail at Register preceding submission to OMB. collected. [email protected]. • We are conducting this process in Minimize the reporting burden on Dated: January 22, 2010. accordance with the Paperwork those who are to respond, including the Carl Chan, Reduction Act of 1995. use of automated collection techniques • Title of Information Collection: or other forms of technology. Executive Director, ACPD, Department of State. Electronic Diversity Visa Entry Form. Abstract of Proposed Collection • OMB Control Number: 1405–0153. [FR Doc. 2010–1865 Filed 1–28–10; 8:45 am] • Type of Request: Extension of The Department of State utilizes the BILLING CODE 4710–11–P currently approved collection. Electronic Diversity Visa Lottery (EDV) • Originating Office: Bureau of Entry Form to elicit information Consular Affairs, Office of Visa Services necessary to ascertain the applicability SUSQUEHANNA RIVER BASIN (CA/VO). of the legal provisions of the diversity COMMISSION • Form Number: DS–5501. program. Primary requirements are that • Respondents: Aliens entering the the applicant is from a low admission Notice of Projects Approved for Diversity Visa Lottery. country, is a high school graduate, or Consumptive Uses of Water • Estimated Number of Respondents: has two years of experience in a job that AGENCY: Susquehanna River Basin 6,000,000. requires two years of training. The Commission. • Estimated Number of Responses: individuals complete the electronic ACTION: Notice of approved projects. 6,000,000. entry forms and then applications are • Average Hours per Response: 30 randomly selected for participation in SUMMARY: This notice lists the projects minutes. the program. • approved by rule by the Susquehanna Total Estimated Burden: 3,000,000 River Basin Commission during the hours. Methodology period set forth in DATES. • Frequency: Once per entry. The EDV Entry Form is available DATES: • Obligation To Respond: Required to online at http://www.dvlottery.state.gov November 1, 2009, through obtain benefits. and can only be submitted December 31, 2009. DATE(S): The Department will accept electronically during the annual ADDRESSES: Susquehanna River Basin comments from the public up to 60 days registration period. Commission, 1721 North Front Street, Harrisburg, PA 17102–2391. from March 30, 2010. Dated: January 15, 2010. FOR FURTHER INFORMATION CONTACT: You may submit comments by any of David T. Donahue, the following methods: Richard A. Cairo, General Counsel, • Deputy Assistant Secretary, Bureau of telephone: (717) 238–0423, ext. 306; fax: E-mail: [email protected] (Subject Consular Affairs, Department of State. line must read DS–5501 (717) 238–2436; e-mail: [email protected] Reauthorization). [FR Doc. 2010–1863 Filed 1–28–10; 8:45 am] or Stephanie L. Richardson, Secretary to • Mail (paper, disk, or CD–ROM BILLING CODE 4710–06–P the Commission, telephone: (717) 238– submissions): Chief, Legislation and 0423, ext. 304; fax: (717) 238–2436; e- Regulations Division, Visa Services— DEPARTMENT OF STATE mail: [email protected]. Regular DS–5501 Reauthorization, 2401 E. mail inquiries may be sent to the above Street, NW., Washington, DC 20520– [Public Notice 6362] address. 30106. SUPPLEMENTARY INFORMATION: This • Renewal of the U.S. Advisory Fax: (202) 663–3898. notice lists the projects, described Commission for Public Diplomacy You must include the DS form number, below, receiving approval for the information collection title, and OMB SUMMARY: The Department of State has consumptive use of water pursuant to control number in any correspondence. renewed the Charter of the U.S. the Commission’s approval by rule FOR FURTHER INFORMATION CONTACT: Advisory Commission for Public process set forth in 18 CFR 806.22(e) Direct requests for additional Diplomacy. and 18 CFR 806.22(f) for the time period information regarding the collection The Advisory Commission was specified above: listed in this notice, including requests originally established under Section 604 for copies of the proposed information of the United States Information and Approvals Issued collection and supporting documents, to Exchange Act of 1948, as amended (22 Approvals By Rule Issued Under 18 Robert Harper of the Office of Visa U.S.C. 1469) and Section 8 of CFR 806.22(e):

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1. Tyco Electronics Corporation, to 4.000 mgd; Approval Date: Springfield Township, Bradford Lickdale Facility, ABR–20091222, November 16, 2009. County, Pa.; Consumptive Use of up Union Township, Lebanon County, 11. East Resources, Inc., Pad ID: West to 1.999 mgd; Approval Date: Pa.; Consumptive Use of up to 0.080 299, ABR–20091111, Richmond November 23, 2009. mgd; Approval Date: December 18, Township, Tioga County, Pa.; 22. EOG Resources, Inc., Pad ID: Lee 1H, 2009. Consumptive Use of up to 4.000 ABR–20091122, Springfield Approvals By Rule Issued Under 18 mgd; Approval Date: November 16, Township, Bradford County, Pa.; CFR 806.22(f): 2009. Consumptive Use of up to 1.999 12. Chesapeake Appalachia, LLC, Pad 1. East Resources, Inc., Pad ID: Stehmer mgd; Approval Date: November 23, ID: CSI, ABR–20091112, Burlington 420, ABR–20091101, Delmar 2009. Township, Bradford County, Pa.; 23. EOG Resources, Inc., Pad ID: Lee 2H, Township, Tioga County, Pa.; Consumptive Use of up to 7.500 ABR–20091123, Springfield Consumptive Use of up to 4.000 mgd; Approval Date: November 16, Township, Bradford County, Pa.; mgd; Approval Date: November 15, 2009. Consumptive Use of up to 1.999 2009. 13. East Resources, Inc., Pad ID: Button mgd; Approval Date: November 23, 2. East Resources, Inc., Pad ID: Johnson 402, ABR–20091113, Jackson 2009. 435, ABR–20091102, Shippen Township, Tioga County, Pa.; 24. EOG Resources, Inc., Pad ID: Lee 2H, Township, Tioga County, Pa.; Consumptive Use of up to 4.000 ABR–20091124, Springfield Consumptive Use of up to 4.000 mgd; Approval Date: November 16, Township, Bradford County, Pa.; mgd; Approval Date: November 16, 2009. Consumptive Use of up to 1.999 2009. 14. EXCO–North Coast Energy, Inc., Pad mgd; Approval Date: November 23, 3. J–W Operating Company, Pad ID: ID: Fidatti-Bianconi, ABR– 2009. Pardee & Curtin Lumber Co. C–09H, 20091114, Scott Township, 25. Rice Drilling B LLC, Pad ID: ABR–20091103, Shippen Lackawanna County, Pa.; Ultimate Warrior #1, ABR– Township, Cameron County, Pa.; Consumptive Use of up to 2.000 20091125, Upper Fairfield Consumptive Use of up to 4.500 mgd; Approval Date: November 16, Township, Lycoming County, Pa.; mgd; Approval Date: November 16, 2009. Consumptive Use of up to 1.000 2009. 15. Chief Oil & Gas, LLC, Pad ID: Teel mgd; Approval Date: November 30, 4. Citrus Energy, Pad ID: Procter & Unit #1H, ABR–20091115, 2009. Gamble Mehoopany Plant 2 1H, Springville Township, 26. Chief Oil & Gas, LLC, Pad ID: Hodge ABR–20091104, Washington Susquehanna County, Pa.; Unit Drilling Pad #1, ABR– Township, Wyoming County, Pa.; Consumptive Use of up to 5.000 20091201, Juniata Township, Blair Consumptive Use of up to 5.000 mgd; Approval Date: November 16, County, Pa.; Consumptive Use of up mgd; Approval Date: November 16, 2009. to 5.000 mgd; Approval Date: 2009. 16. EOG Resources, Inc., Pad ID: Guinan December 1, 2009. 5. Fortuna Energy, Inc., Pad ID: Eick IV, ABR–20091116, Springfield 27. Citrus Energy Corporation, Pad ID: 013, ABR–20091105; Columbia Township, Bradford County, Pa.; Martin #1V, ABR–20091202, Township, Bradford County, Pa.; Consumptive Use of up to 0.999 Sugarloaf Township, Columbia Consumptive Use of up to 3.000 mgd; Approval Date: November 18, County, Consumptive Use of up to mgd; Approval Date: November 16, 2009. 5.000 mgd; Approval Date: 2009. 17. EOG Resources, Inc., Pad ID: Guinan December 1, 2009. 6. East Resources, Inc., Pad ID: Brown 2H, ABR–20091117, Springfield 28. XTO Energy Incorporated, Pad ID: 425, ABR–20091106, Delmar Township, Bradford County, Pa.; Jenzano, ABR–20090713.1, Franklin Township, Tioga County, Pa.; Consumptive Use of up to 1.999 Township, Lycoming County, Pa.; Consumptive Use of up to 4.000 mgd; Approval Date: November 18, Consumptive Use total of up to mgd; Approval Date: November 16, 2009. 3.000 mgd; Approval Date: 2009. 18. Pennsylvania General Energy December 1, 2009. 7. East Resources, Inc., Pad ID: Barrett Company, L.L.C., Pad ID: COP Tract 29. EOG Resources, Inc., Pad ID: 410, ABR–20091107, Jackson 724—Pad A, ABR–20091118, Houseknecht 1H, ABR–20090423.1, Township, Tioga County, Pa.; Gamble Township, Lycoming Springfield Township, Bradford Consumptive Use of up to 4.000 County, Pa.; Consumptive Use of up County, Pa.; Consumptive Use total mgd; Approval Date: November 16, to 2.000 mgd; Approval Date: of up to 1.999 mgd; Approval Date: 2009. November 19, 2009, including a December 2, 2009. 8. East Resources, Inc., Pad ID: Starks partial waiver of 18 CFR Section 30. EOG Resources, Inc., Pad ID: Ward 461, ABR–20091108, Richmond 806.15. M 1H, ABR–20090421.1, Township, Tioga County, Pa.; 19. EOG Resources, Inc., Pad ID: Springfield Township, Bradford Consumptive Use of up to 4.000 Hoppaugh 1V, ABR–20091119, County, Pa.; Consumptive Use total mgd; Approval Date: November 16, Springfield Township, Bradford of up to 1.990 mgd; Approval Date: 2009. County, Pa.; Consumptive Use of up December 2, 2009. 9. Chesapeake Appalachia, LLC, Pad ID: to 0.999 mgd; Approval Date: 31. EOG Resources, Inc., Pad ID: Jones Doss, ABR–20091109, Albany November 20, 2009. IV, ABR–20091203, Springfield Township, Bradford County, Pa.; 20. EOG Resources, Inc., Pad ID: Township, Bradford County, Pa.; Consumptive Use of up to 7.500 Hoppaugh 2H, ABR–20091120, Consumptive Use of up to 0.999 mgd; Approval Date: November 16, Springfield Township, Bradford mgd; Approval Date: December 2, 2009. County, Pa.; Consumptive Use of up 2009. 10. East Resources, Inc., Pad ID: to 1.999 mgd; Approval Date: 32. Chief Oil & Gas, LLC, Pad ID: Teel Yungwirth 307, ABR–20091110, November 23, 2009. Unit Drilling Pad #2H, ABR– Charleston Township, Tioga 21. EOG Resources, Inc., Pad ID: 20091204, Springville Township, County, Pa.; Consumptive Use of up Hoppaugh 3H, ABR–20091121, Susquehanna County, Pa.;

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Consumptive Use of up to 2.000 mgd; Approval Date: December 14, 55. XTO Energy Incorporated, Pad ID: mgd; Approval Date: December 3, 2009. King Unit, ABR–20091225, 2009. 44. East Resources, Inc., Pad ID: Shrewsbury Township, Lycoming 33. Chief Oil & Gas, LLC, Pad ID: Teel Pannebaker 515, ABR–20091216, County, Pa.; Consumptive Use of up Unit Drilling Pad #3H, ABR– Rutland Township, Tioga County, to 3.000 mgd; Approval Date: 20091205, Springville Township, Pa.; Consumptive Use of up to 4.000 December 22, 2009. Susquehanna County, Pa.; mgd; Approval Date: December 14, 56. XTO Energy Incorporated, Pad ID: Consumptive Use of up to 2.000 2009. Booth, ABR–20091226, Shrewsbury mgd; Approval Date: December 3, 45. East Resources, Inc., Pad ID: Starks Township, Lycoming County, Pa.; 2009. 460, ABR–20091217, Richmond Consumptive Use of up to 4.000 34. East Resources, Inc., Pad ID: Township, Tioga County, Pa.; mgd; Approval Date: December 28, Chapman 237, ABR–20091206, Consumptive Use of up to 4.000 2009. Sullivan Township, Tioga County, mgd; Approval Date: December 14, 57. Seneca Resources Corporation, Pad Pa.; Consumptive Use of up to 4.000 2009. ID: Rich Valley 1V Pad, ABR– mgd; Approval Date: December 8, 46. East Resources, Inc., Pad ID: 20091227, Shippen Township, 2009. Oldroyd 509, ABR–20091218, Cameron County, Pa.; Consumptive 35. East Resources, Inc., Pad ID: Houck Rutland Township, Tioga County, Use of up to 0.500 mgd; Approval 433, ABR–20091207, Shippen Pa.; Consumptive Use of up to 4.000 Date: December 28, 2009. Township, Tioga County, Pa.; mgd; Approval Date: December 14, 58. Citrus Energy Corporation, Pad ID: Consumptive Use of up to 4.000 2009. Farver #1V, ABR–20091228, Benton mgd; Approval Date: December 9, 47. XTO Energy Incorporated, Pad ID: Township, Columbia County, Pa.; 2009. Hazlak, ABR–20090715.1, Franklin Consumptive Use of up to 5.000 36. Chesapeake Appalachia, LLC, Pad Township, Lycoming County, Pa.; mgd; Approval Date: December 28, ID: Stoorza, ABR–20091208, Terry Consumptive Use total of up to 2009. Township, Bradford County, Pa.; 3.000 mgd; Approval Date: 59. Seneca Resources Corporation, Pad Consumptive Use of up to 7.500 December 14, 2009. ID: Wolfinger, ABR–20091229, mgd; Approval Date: December 9, 48. XTO Energy Incorporated, Pad ID: Shippen Township, Cameron 2009. Temple, ABR–20090714.1, County, Pa.; Consumptive Use of up 37. Chesapeake Appalachia, LLC, Pad Moreland Township, Lycoming to 0.500 mgd; Approval Date: ID: Roger, ABR–20091209, Auburn County, Pa.; Consumptive Use total December 28, 2009, including a Township, Susquehanna County, of up to 3.000 mgd; Approval Date: partial waiver of 18 CFR Section Pa.; Consumptive Use of up to 7.500 December 14, 2009. 806.15. mgd; Approval Date: December 9, 49. EOG Resources, Inc., Pad ID: 60. Ultra Resources, Inc., Pad ID: 2009. Marshlands H. Bergey Unit #1, 38. Chesapeake Appalachia, LLC, Pad Harkness 1V, ABR–20091219, ABR–20091230, Gaines Township, ID: Readinger, ABR–20091210, Springfield Township, Bradford Tioga County, Pa.; Consumptive West Burlington Township, County, Pa.; Consumptive Use of up Use of up to 4.990 mgd; Approval Bradford County, Pa.; Consumptive to 0.999 mgd; Approval Date: Date: December 29, 2009. Use of up to 7.500 mgd; Approval December 14, 2009. Date: December 9, 2009. 50. EOG Resources, Inc., Pad ID: 61. Ultra Resources, Inc., Pad ID: 39. Chesapeake Appalachia, LLC, Pad Harkness 2H, ABR–20091220, Marshlands K. Thomas Unit #1, ID: Miller, ABR–20091211, Springfield Township, Bradford ABR–20091231, Elk Township, Towanda Township, Bradford County, Pa.; Consumptive Use of up Tioga County, Pa.; Consumptive County, Pa.; Consumptive Use of up to 1.999 mgd; Approval Date: Use of up to 4.990 mgd; Approval to 7.500 mgd; Approval Date: December 14, 2009. Date: December 29, 2009. December 9, 2009. 51. EOG Resources, Inc., Pad ID: 62. Ultra Resources, Inc., Pad ID: Lick 40. Chesapeake Appalachia, LLC, Pad Harkness 3H, ABR–20091221, Run Pad, ABR–20091232, Gaines ID: Grippo, ABR–20091212, Terry Springfield Township, Bradford Township, Tioga County, Pa.; Township, Bradford County, Pa.; County, Pa.; Consumptive Use of up Consumptive Use of up to 4.990 Consumptive Use of up to 7.500 to 1.999 mgd; Approval Date: mgd; Approval Date: December 29, mgd; Approval Date: December 9, December 14, 2009. 2009. 2009. 52. Seneca Resources Corporation, Pad 63. Ultra Resources, Inc., Pad ID: 41. Chesapeake Appalachia, LLC, Pad ID: T. Wivell Horizontal Pad, ABR– Hillside Pad, ABR–20091233, ID: Duffield, ABR–20091213, 20090814.1, Covington Township, Gaines Township, Tioga County, Tuscarora Township, Bradford Tioga County, Pa.; Consumptive Pa.; Consumptive Use of up to 4.990 County, Pa.; Consumptive Use of up Use total of up to 4.000 mgd; mgd; Approval Date: December 29, to 7.500 mgd; Approval Date: Approval Date: December 18, 2009. 2009. December 9, 2009. 53. Cabot Oil & Gas Corporation, Pad ID: 64. Ultra Resources, Inc., Pad ID: Button 42. Chief Oil & Gas, LLC, Pad ID: Clear HibbardAM P1, ABR–20091223, B 901 Pad, ABR–20091234, West Springs Dairy Drilling Pad #1, Dimock Township, Susquehanna Branch Township, Tioga County, ABR–20091214, Burlington County, Pa.; Consumptive Use of up Pa.; Consumptive Use of up to 4.990 Township, Bradford County, Pa.; to 3.575 mgd; Approval Date: mgd; Approval Date: December 29, Consumptive Use of up to 5.000 December 21, 2009. 2009. mgd; Approval Date: December 14, 54. Cabot Oil & Gas Corporation, Pad ID: 65. EOG Resources, Inc., Pad ID: Kenyon 2009. HibbardAM P2, ABR–20091224, 1V, ABR–20091235, Springfield 43. East Resources, Inc., Pad ID: Jenkins Dimock Township, Susquehanna Township, Bradford County, Pa.; 523, ABR–20091215, Rutland County, Pa.; Consumptive Use of up Consumptive Use of up to 0.999 Township, Tioga County, Pa.; to 3.575 mgd; Approval Date: mgd; Approval Date: December 29, Consumptive Use of up to 4.000 December 21, 2009. 2009.

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Authority: Pub. L. 91–575, 84 Stat. 1509 et meeting is scheduled for February 11, Safety Standards. The next meeting of seq., 18 CFR parts 806, 807, and 808. 2010, at the Marriott Washington the Working Group is scheduled for the Dated: January 19, 2010. Wardman Park Hotel located at 2660 February–March 2010 timeframe. Stephanie L. Richardson, Woodley Road, NW., Washington, DC. Contact: Charles Bielitz, (202) 493–6314. Secretary to the Commission. Since its first meeting in April of (Engineering Task Force) The 1996, the RSAC has accepted 32 tasks. Passenger Safety Working Group [FR Doc. 2010–1782 Filed 1–28–10; 8:45 am] The status for each of the open tasks approved a request from the FRA to BILLING CODE 7040–01–P (neither completed nor terminated) is establish an Engineering Task Force provided below: under the Passenger Safety Working Group in August 2009. The mission of Open Tasks DEPARTMENT OF TRANSPORTATION the Task Force is to produce a set of Task 96–4—Tourist and Historic technical evaluation criteria and Federal Aviation Administration Railroads. Reviewing the procedures for passenger rail equipment [Summary Notice No. PE–2009–61] appropriateness of the agency’s current built to alternative designs. The policy regarding the applicability of technical evaluation criteria and Petition for Exemption; Summary of existing and proposed regulations to procedures would provide a means of Petition Received tourist, excursion, scenic, and historic establishing whether an alternative railroads. This task was accepted on design would result in performance at Correction April 2, 1996, and a Working Group was least equal to the structural design In notice document 2010–808 established. The Working Group standards set forth in the Passenger beginning on page 2925 in the issue of monitored the steam locomotive Equipment Safety Standards (Title 49 Tuesday, January 19, 2010, make the regulation task. Planned future activities Code of Federal Regulations (CFR) Part following correction: involve the review of other regulations 238). The initial focus of this effort will On page 2925, in the third column, for possible adaptation to the safety be on Tier I standards. When completed, under the DATE: heading, ‘‘August 10, needs of tourist and historic railroads. the criteria and procedures would form 2010’’ is corrected to read ‘‘February 8, Contact: Grady Cothen, (202) 493–6302. a technical basis for making 2010’’. Task 03–01—Passenger Safety. This determinations concerning equivalent task includes updating and enhancing [FR Doc. C1–2010–808 Filed 1–28–08; 8:45 am] safety pursuant to 49 CFR Section the regulations pertaining to passenger BILLING CODE 1505–01–D 238.201 and provide a technical safety, based on research and framework for presenting evidence to experience. This task was accepted on FRA in support of any request for May 20, 2003, and a Working Group was DEPARTMENT OF TRANSPORTATION waiver of the compressive (buff) established. Prior to embarking on strength requirement set forth in 49 CFR Federal Railroad Administration substantive discussions of a specific Section 238.203. See, generally, 49 CFR task, the Working Group set forth, in Part 211 (Rules of Practice). The criteria [Notice No. 59; Docket No. FRA–2000–7257] writing, a specific description of the and procedures could be incorporated task. The Working Group reports into Part 238 at a later date after notice Railroad Safety Advisory Committee planned activity to the full Committee at and opportunity for public comment. (RSAC); Working Group Activity each scheduled full RSAC meeting, The Engineering Task Force was formed Update including milestones for completion of and a kickoff meeting was held on AGENCY: Federal Railroad projects and progress toward September 23–24, 2009. The group met Administration (FRA), Department of completion. At the first meeting held again on November 3–4, 2009, and Transportation (DOT). September 9–10, 2003, a consolidated January 7–8, 2010. A follow-on meeting list of issues was completed. At the ACTION: Announcement of Railroad is scheduled for March 9–10, 2010. second meeting held November 6–7, (Emergency Preparedness Task Force) Safety Advisory Committee (RSAC) 2003, four task groups were established: At the Working Group meeting of March Working Group Activities. Emergency Preparedness; Mechanical; 9–10, 2005, the Working Group received SUMMARY: The FRA is updating its Crashworthiness; and Track/Vehicle and approved the consensus report of announcement of RSAC’s Working Interaction. The task forces met and the Emergency Preparedness Task Force Group activities to reflect its current reported on activities for Working related to emergency communication, status. Group consideration at the third emergency egress, and rescue access. meeting held May 11–12, 2004, and a These recommendations were presented FOR FURTHER INFORMATION CONTACT: fourth meeting was held October 26–27, to and approved by the full RSAC Larry Woolverton, RSAC Designated 2004. The Working Group met on March Committee on May 18, 2005. The Federal Officer/Administrative Officer, 21–22, 2006, and again on September Working Group met on September 7–8, FRA, 1200 New Jersey Avenue, SE., 12–13, 2006, at which time the group 2005, and additional, supplementary Mailstop 25, Washington, DC 20590, agreed to establish a task force on recommendations were presented to and (202) 493–6212; or Grady Cothen, General Passenger Safety. The full accepted by the full RSAC on October Deputy Associate Administrator for Passenger Safety Working Group met on 11, 2005. The Notice of Proposed Safety, FRA, 1200 New Jersey Avenue, April 17–18, 2007; December 11–12, Rulemaking (NPRM) was published on SE., Mailstop 25, Washington, DC 2007; November 13, 2008; and June 8, August 24, 2006 (71 FR 50275) and was 20590, (202) 493–6302. 2009. On August 5, 2009, the Working open for comment until October 23, SUPPLEMENTARY INFORMATION: This Group was requested to establish an 2006. The Working Group agreed upon notice serves to update FRA’s last Engineering Task Force to consider recommendations for the final rule, announcement of working group technical criteria and procedures for including resolution of final comments activities and status reports of August qualifying alternative passenger received, during the April 17–18, 2007, 14, 2009 (74 FR 41181). The 40th full equipment designs as equivalent in meeting. The recommendations were RSAC Committee meeting was held safety to equipment meeting the design presented to and approved by the full September 10, 2009, and the 41st standards in the Passenger Equipment RSAC on June 26, 2007. The Passenger

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Train Emergency Systems final rule, end strength, which were adopted by of the gap that was considered and focusing on emergency communication, the Working Group on September 7–8, approved by the Working Group during emergency egress, and rescue access, 2005. The full Committee accepted the the December 11–12, 2007, meeting and was published on February 1, 2008 (73 recommendations on October 11, 2005. was presented to and approved by full FR 6370). The Task Force met on The Front-End Strength of Cab Cars and RSAC vote during the February 20, October 17–18, 2007, and reached Multiple-Unit Locomotives NPRM was 2008, meeting. The group met April 23– consensus on draft rule text for a published in the Federal Register on 24, 2008; December 3–4, 2008; and followup NPRM on passenger train August 1, 2007 (72 FR 42016), with April 21–23 and October 7–8, 2009. The emergency systems, focusing on low comments due by October 1, 2007. A Task Force continues work on passenger location emergency exit path marking, number of comments were entered into train door securement, ‘‘second train in emergency lighting, and emergence the docket, and a Crashworthiness Task station’’, trespasser incidents, and signage. The Task Force presented the Force meeting was held September 9, System Safety-based solutions by draft rule text to the Passenger Safety 2008, to resolve comments on the developing a regulatory approach to Working Group on December 11–12, NPRM. Based on the consensus System Safety. The Task Force has 2007, and the consensus draft rule text language agreed to at the meeting, FRA created two Task Groups to focus on was presented to and approved by full has prepared the text of the final rule these issues. The Door Safety Task RSAC vote during the February 20, incorporating the resolutions made at Group has reached consensus on 47 out 2008, meeting. During the May 13–14, the Task Force meeting, and the final of 48 safety issues addressed in the area 2008 meeting, the Task Force rule language was adopted at the of passenger train door mechanical and recommended clarifying the Passenger Safety Working Group operational requirements and will applicability of backup emergency meeting held on November 13, 2008. present draft regulatory language to the communication system requirements in The language was presented and General Passenger Safety Task Force at the February 1, 2008, final rule, and approved at the December 10, 2008, full the next meeting. The System Safety FRA announced its intention to exercise RSAC meeting. The final rule was Task Group has produced draft limited enforcement discretion for a issued on December 31, 2009, and regulatory language for a System Safety new provision amending instruction published on January 8, 2010 (75 FR Rule and will present its requirements for emergency window 1180). Contact: Gary Fairbanks, (202) recommendation to the General exit removal. The Working Group 493–6322. Passenger Safety Task Force at the next ratified these recommendations on June (Vehicle/Track Interaction Task meeting. No additional General 19, 2008. The Task Force met again on Force) The Task Force is developing Passenger Safety Task Force meetings March 31, 2009, to clarify issues, raised proposed revisions to 49 CFR Parts 213 are currently scheduled. Contact: Dan by members, related to the followup and 238, principally regarding high- Knote, (631) 567–1596. NPRM. The modified rule text was speed passenger service. The Task Force Task 05–01—Review of Roadway presented to and approved by the met on October 9–11 and again on Worker Protection Issues. This task was Passenger Safety Working Group on November 19–20, 2007, in Washington, accepted on January 26, 2005, to review June 8, 2009. The Working Group DC, and presented the final Task Force requested that FRA draft the rule text Report and final recommendations and 49 CFR Part 214, Subpart C, Roadway requiring daily inspection of removable proposed rule text for approval by the Worker Protection (RWP), and related panels or windows in vestibule doors, Passenger Safety Working Group at the sections of Subpart A; recommend and entrust the Emergency Preparedness December 11–12, 2007, meeting. The consideration of specific actions to Task Force with reviewing the text. FRA final report and the proposed rule text advance the on-track safety of railroad sent the draft text to the Task Force for were approved by the Working Group employees and contractors engaged in review and comment on August 4, 2009. and was presented to and approved by maintenance-of-way activities The draft rule text was approved by the full RSAC vote during the February 20, throughout the general system of Passenger Safety Working Group by 2008, meeting. The group last met on railroad transportation, including mail ballot on December 23, 2009. No February 27–28, 2008, and FRA is clarification of existing requirements. A additional Task Force meetings are currently crafting an NPRM with a target Working Group was established, and currently scheduled. Contact: Brenda publication date of March 2010. No reported to the RSAC any specific Moscoso, (202) 493–6282. additional Task Force meetings are actions identified as appropriate. The (Mechanical Task Force) (Completed) currently scheduled, but the Task Force first meeting of the Working Group was Initial recommendations on mechanical may be called back to review NPRM held on April 12–14, 2005. The group issues (revisions to 49 CFR Part 238) comments. Contact: John Mardente, drafted and accepted regulatory were approved by the full Committee on (202) 493–1335. language for various revisions, January 26, 2005. At the Working Group (General Passenger Safety Task Force) clarifications, and additions to 32 meeting of September 7–8, 2005, the At the Working Group meeting on April separate items in 19 sections of the rule. Task Force presented additional 17–18, 2007, the Task Force presented However, two parties raised technical perfecting amendments and the full a progress report to the Working Group. concerns regarding the draft language RSAC approved them on October 11, The Task Force met on July 18–19, concerning electronic display of track 2005. An NPRM was published in the 2007, and afterwards it reported authorities. The Working Group Federal Register on December 8, 2005 proposed reporting cause codes for reported recommendations to the full (70 FR 73070). Public comments were injuries involving the platform gap, Committee at the June 26, 2007, due by February 17, 2006. The final rule which were approved by the Working meeting. Through the NPRM process, was published in the Federal Register Group by mail ballot in September 2007. FRA will address this issue, along with on October 19, 2006 (71 FR 61835), The full RSAC approved the eight additional items on which the effective December 18, 2006. recommendations for changes to 49 CFR Working Group was unable to reach a (Crashworthiness Task Force) Section 225 accident/incident cause consensus. Comments were received (Completed) Among its efforts, the codes on October 25, 2007. The General and were considered during the drafting Crashworthiness Task Force provided Passenger Safety Task Force presented of the NPRM. In early 2008, the external consensus recommendations on static draft guidance material for management working group members were solicited

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to review the consensus text for errata related to issuance of Emergency Order remote control locomotives. The group review. No. 26 (prohibition on use of certain reached consensus regarding critical In order to address the heightened electronic devices while on duty) and locomotive electronic standard, updated concerns raised with the current ‘‘after arrival mandatory directives,’’ annual/biennial air brake standards, regulations for adjacent-track on-track among other issues. The Working Group clarification of the ‘‘air brakes operate as safety, an NPRM was published on July continues to work on after arrival intended’’ requirement, locomotive pilot 17, 2008, that focused on this element orders; and, at the September 25, 2008, clearance within hump classification of the RWP rule alone. As this was an meeting, voted to create a Highway-Rail yards, clarification of the ‘‘high voltage’’ NPRM, FRA sought comment on the Grade Crossing Task Force to review warning requirement, an update of entire proposal, including those highway-rail grade crossing accident ‘‘headlight lamp’’ requirements, and portions that FRA sought to clarify. reports regarding incidents of crossing language to allow locomotive records to However, on August 13, 2008, the warning systems providing ‘‘short or no be stored electronically. The Working NPRM was withdrawn to permit further warning’’ resulting from or contributed Group presented a draft Part 229 rule consideration of the RSAC-reported to ‘‘by train operational issues’’ with the text revision covering these items to the consensus language. intent to recommend new accident/ Committee for consideration at the FRA has decided to separately issue a incident reporting codes that would September 10, 2009, meeting and second proposed rule on adjacent track better explain such events, and which received approval. FRA has proceeded protection, which will be handled on an may provide information for remedial with drafting an NPRM, with a target accelerated basis. The second NPRM action going forward. A follow-on task publication date of March 2010. The concerning adjacent-controlled track is to review and provide Working Group may be called back to was published on November 25, 2009, recommendations regarding address comments received on the and comments are due to the docket by supplementary reporting of train NPRM after publication. Contact: January 25, 2010. The remaining larger operations-related no-warning or short- George Scerbo, (202) 493–6249. NPRM for the for various revisions, warning incidents that are not clarifications, and additions to 31 Task 06–02—Track Safety Standards technically warning system activation and Continuous Welded Rail (CWR). separate items in 19 sections of the rule failures but which result in an accident/ and FRA’s recommendations for the (Completed) Section 9005 of the Safe, incident or a near miss. The Task Force Accountable, Flexible, Efficient eight nonconsensus items is planned for has been formed and will meet in 2010 early 2010. Contact: Christopher Transportation Equity Act: A Legacy for after other Rail Safety Improvement Act Users (Pub. L. 109–59), the 2005 Surface Schulte, (610) 521–8201. of 2008 (RSIA) priorities are met. Task 05–02—Reduce Human Factor- Transportation Authorization Act, Contact: Douglas Taylor, (202) 493– Caused Train Accident/Incidents. This requires FRA to issue requirements for 6255. task was accepted on May 18, 2005, to inspection of joint bars in continuous reduce the number of human factor- Task 06–01—Locomotive Safety welded rail (CWR) to detect cracks that caused train accidents/incidents and Standards. This task was accepted on could affect the integrity of the track related employee injuries. The Railroad February 22, 2006, to review 49 CFR structure (49 U.S.C. 20142(e)). FRA Operating Rules Working Group was Part 229, Railroad Locomotive Safety published an interim final rule (IFR) formed, and the Group extensively Standards, and revise as appropriate. A establishing new requirements for reviewed the issues presented. The final Working Group was established with inspections on November 2, 2005 (70 FR Working Group meeting devoted to the mandate to report any planned 66288). On October 11, 2005, FRA developing a proposed rule was held activity to the full Committee at each offered the RSAC a task to review February 8–9, 2006. The Working Group scheduled full RSAC meeting, to comments on this IFR, but conditions was not able to deliver a consensus include milestones for completion of could not be established under which regulatory proposal but did recommend projects, and to progress toward the Committee could have undertaken that it be used to review comments on completion. The first Working Group this with a view toward consensus. FRA’s NPRM, which was published in meeting was held May 8–10, 2006. Comments on the IFR were received the Federal Register on October 12, Working Group meetings were held on through December 19, 2005. FRA 2006 (FR 71 60372), with public August 8–9, 2006; September 25–26, reviewed the comments. On February comments due by December 11, 2006. 2006; and October 30–31, 2006; and the 22, 2006, the RSAC accepted this task to Two reviews were held, one on Working Group presented review and revise the CWR related to February 8–9, 2007, the other on April recommendations regarding revisions to provisions of the Track Safety 4–5, 2007. Consensus was reached on requirements for locomotive sanders to Standards, with particular emphasis on four items and those items were the full RSAC on September 21, 2006. reduction of derailments and presented and accepted by the full The NPRM regarding sanders was consequent injuries and damage caused RSAC Committee at the June 26, 2007, published in the Federal Register on by defective conditions, including joint meeting. A final rule was published in March 6, 2007 (72 FR 9904). Comments failures, in track using CWR. A Working the Federal Register on February 13, received were discussed by the Working Group was established. The first 2008 (73 FR 8442), with an effective Group for clarification, and FRA Working Group meeting was held April date of April 14, 2008. FRA received published a final rule on October 19, 3–4, 2006, at which time the Working four petitions for reconsideration of that 2007 (72 FR 59216). The Working Group Group reviewed comments on the IFR. final rule. The final rule that responded met on January 9–10, 2007; November The second Working Group meeting was to the petitions for consideration was 27–28, 2007; February 5–6, 2008; May held April 26–28, 2006. The Working published in the Federal Register on 20–21, 2008; August 5–6, 2008; October Group also met May 24–25, 2006, and June 16, 2008, and concluded the 22–23, 2008; January 6–7, 2009; and July 19–20, 2006. The Working Group rulemaking. Working group meetings April 15–16, 2009. The group has now reported consensus recommendations were held September 27–28, 2007; completed the review of 49 CFR Part for the final rule that were accepted by January 17–18, 2008; May 21–22, 2008; 229 and was unable to reach consensus the full RSAC Committee by mail ballot and September 25–26, 2008. The regarding locomotive cab temperatures on August 11, 2006. The final rule was Working Group has considered issues standards, locomotive alerters, and published in the Federal Register on

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October 11, 2006 (71 FR 59677). The regulations for Critical Incident Stress (49 CFR Part 213) and presented a Working Group continued review of 49 Plans as required by the RSIA. When the recommendation to the Track Standards CFR Section 213.119, with a view to draft NPRM is accepted by the Medical Working Group at the November 20, proposing further revisions to update Standards Working Group, the two parts 2008, Working Group meeting. The the standards. The Working Group met of the rulemaking will be presented to language was approved by both the January 30–31, 2007; April 10–11, 2007; the full RSAC for approval. The Medical Working Group and the December 10, June 27–28, 2007; August 15–16, 2007; Standards Working Group is scheduled 2008, RSAC meeting and the Task Force October 23–24, 2007; and January, 8–9, to meet next on February 16–17, 2010, was dissolved. FRA is preparing an 2008. The Working Group reported with a follow-on meeting scheduled for NPRM with a target publication date of consensus recommendations for March 11–12, 2010. March 2010. Contact: Ken Rusk, (202) revisions to 49 CFR Section 213.119 (Physicians Task Force) A Physicians 493–6236. regulations to the full RSAC Committee Task Force, established by the Working Task 08–03—Track Safety Standards on February 20, 2008, and the Group in May 2007, is proceeding to Rail Integrity. This task was accepted on recommendations were accepted. FRA develop accompanying medical September 10, 2008 to consider specific published an NPRM on December 1, guidelines that will be used to provide improvements to the Track Safety 2008, and published a final rule on consistent criteria for determining the Standards or other responsive actions August 25, 2009. A correcting medical fitness for duty of the safety designed to enhance rail integrity. The amendment was published in the critical positions. These guidelines will Rail Integrity Task Force was created in Federal Register on October 21, 2009, be presented for the Medical Standards October 2007 under Task 07–01 and that addresses compliance dates for Working Group consideration when first met on November 28–29, 2007. The commuter railroads, intercity passenger complete. The Physicians Task Force Task Force met on February 12–13, railroads, and other additional railroads has had meetings or conference calls on 2008; April 15–16, 2008; July 8–9, 2008; with CWR. The amendment establishes July 24, 2007; August 20, 2007; October September 16–17, 2008; February 3–4, compliance dates of November 23, 2009, 15, 2007; October 31, 2007; June 23–24, 2009; June 16–17, 2009; October 29–30, for commuter railroads and intercity 2008; September 8–10, 2008; October 8, 2009; and January 20–21, 2010. passenger railroads; and February 22, 2008; November 12–13, 2008; December Consensus has been achieved on bond 2010, for Class III railroads and any 8–10, 2008; January 27–28, 2009; wires, and a common understanding on other additional railroads with CWR. February 24–25, 2009; March 11–12, internal rail flaw inspections has been See Tasks 07–01 and 08–03, below. 2009; March 31–April 1, 2009; April 15, reached. ‘‘Valid test’’ and ‘‘qualified Contact: Ken Rusk, (202) 493–6236. 2009; April 22, 2009; May 13, 2009; May operator’’ have been defined and will be 20, 2009; June 17, 2009. The Task Force issued as a technical bulletin. The Task Task 06–03—Medical Standards for is currently scheduled to meet next on Force has reached consensus to Safety-Critical Personnel. This task was January 21–22, 2010. Contact: Dr. recommend to the Working Group that accepted on September 21, 2006, to Bernard Arseneau, (202) 493–6002. the item regarding ‘‘the effect of rail enhance the safety of persons in the Task 07–01—Track Safety Standards. head wear, surface conditions and other railroad operating environment and the This task was accepted on February 22, relevant factors on the acquisition and public by establishing standards and 2007, to consider specific improvements interpretation of internal rail flaw test procedures for determining the medical to the Track Safety Standards or other results’’ be closed. The Task Force does fitness for duty of personnel engaged in responsive actions, supplementing work not recommend regulatory action safety-critical functions. A Working already underway on CWR, specifically concerning head wear. Surface Group has been established and will to: (1) Review controls applied to reuse conditions and their affect on test report any planned activity to the full of rail in CWR ‘‘plug rail’’; (2) review the integrity has been discussed and Committee at each scheduled full RSAC issue of cracks emanating from bond understood during dialogue concerning meeting, including milestones for wire attachments; (3) consider common understanding on internal rail completion of projects and progress improvements in the Track Safety flaw inspections. The Task Force toward completion. The first Working Standards related to fastening of rail to believes that new technology has been Group meeting was held December 12– concrete ties; and (4) ensure a common developed that improves test 13, 2006. The Working Group has held understanding within the regulated performance and will impact the affect follow-on meetings on the following community concerning requirements for of head wear and surface conditions on dates; February 20–21, 2007; July 24–25, internal rail flaw inspections. The tasks interpretation of internal rail flaw test 2007; August 29–30, 2007; October 31– were assigned to the Track Safety results. No additional Rail Integrity Task November 1, 2007; December 4–5, 2007; Standards Working Group. The Working Force meetings are scheduled at this February 13–14, 2008; March 26–27 and Group will report any planned activity time. Contact: Carlo Patrick, (202) 493– April 22–23, 2008, and December 8–9, to the full Committee at each scheduled 6399. 2009. At the April 2008 meeting, FRA full RSAC meeting, including Task No. 08–04—Positive Train announced that the agency would milestones for completion of projects Control (PTC). (Completed) This task prepare an NPRM draft based on the and progress toward completion. The was accepted on December 10, 2008, to discussions to date and schedule a first Working Group meeting was held provide advice regarding development further meeting for review of the on June 27–28, 2007, and the group met of implementing regulations for PTC document. At the December 2009 again on August 15–16 and October 23– systems and their deployment under the meeting, the draft NPRM was presented 24, 2007. Two Task Forces were created RSIA. The task included a requirement to the Group. The draft NPRM is under the Working Group: Concrete Ties to convene an initial meeting not later currently in FRA coordination and the and Rail Integrity. The Concrete Ties than January 2009 and to report language is being revised based on Task Force met on November 26–27, recommendations back to the RSAC no comments. At the December 2009 2007; February 13–14, 2008; April 16– later than April 24, 2009. The PTC meeting, the Group was also presented 17, 2008; July 9–10, 2008; and Working Group was created in RSAC Task 2009–02, Critical Incident September 17–18, 2008. The Concrete December 2008 by Working Group Response. The task is to provide advice Ties Task Force finalized consensus member nominations from committee regarding development of implementing language regarding concrete crossties member organizations under Task 08–

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04, and the kickoff meeting was held on Railroad Bridge Working Group, created evaluating the impact of various crew January 26–27, 2009. The group met under Task 08–01, was directed to schedules, and determine the effect of again on February 11–13 and 25–27, reconvene, and the kickoff meeting was alternative approaches on the March 17–18, and March 31–April 1, held January 28–29, 2009. The Working availability of employees to support 2009. On April 2, 2009, the RSAC Group also met on February 23–24, passenger service. The Group is charged approved the request by the working 2009, where they reached agreement on to report whether existing hours of group for agreement to vote on the draft consensus language covering all but two service restrictions are effective in rule text recommendations from the issues. The Working Group presented preventing fatigue among subject Working Group by mail ballot. On May the draft language to the full Committee employees, whether an alternative 11, 2009, by majority vote via mail at the April 2, 2009, meeting, and the approach to hours of service for the ballot, the RSAC Committee accepted Committee approved the consensus subject employees would enhance the recommendations of the PTC recommendations by vote as the safety, and whether alternative Working Group and forwarded those recommendations of the Committee to restrictions on hours of service could be recommendations to the FRA the FRA Administrator. The NPRM was coupled with other fatigue Administrator, with the understanding published on August 17, 2009, with a countermeasures to promote the fitness that there are other issues for which comment period open until October 1, of employees for safety-critical duties. FRA would be making proposals with 2009. The Working Group was The Passenger Hours of Service Working respect to their resolution. The NPRM reconvened on December 15, 2009, to Group was officially formed through the was published on July 21, 2009 (74 FR address NPRM comments. The final rule formal Committee member nomination 36152), with comments due by August is currently in coordination, with a process in May 2009 and the first 20, 2009. In addition, a public hearing target publication date of March 2010. meeting was held on June 24, 2009. A was held on August 13, 2009 (74 FR Contact: Gordon Davids, (202) 493– Passenger Hours of Service Task Force 36152). The PTC TC was reconvened on 6320. was formed to review collected data, August 31–September 2, 2009, to Task No. 08–0—Conductor and met on January 14–15, 2009. A discuss comments received on the Certification. This task was accepted on follow-on Working Group meeting is NPRM, and the PTC Working Group December 10, 2008, to develop currently scheduled for February 2–3, presented consensus rule text items to regulations for certification of railroad 2009. Contact: Grady Cothen, (202) 493– the RSAC for approval at the September conductors, as required by the RSIA, 6302. 10, 2009, meeting. The PTC consensus and to consider any appropriate related rule text was approved by majority amendments to existing regulations and Completed Tasks RSAC vote by electronic ballot on report recommendations for a proposed Task 96–1—(Completed) Revising the September 24, 2009, and the final rule final rule or an IFR (as determined by Freight Power Brake Regulations. was published on January 15, 2010. FRA in consultation with the Office of Task 96–2—(Completed) Reviewing (PTC Implementation Plan Task the Secretary of Transportation and the and recommending revisions to the Force) A Task Force was formed to Office of Management and Budget) by Track Safety Standards (49 CFR Part assist FRA in developing a model October 16, 2009. The Conductor 213). template for a successful PTC Certification Working Group was Task 96–3—(Completed) Reviewing Implementation Plan (PTCIP) and in officially formed by nominations from and recommending revisions to the development of an example risk member organizations in April 2009 and Radio Standards and Procedures (49 prioritization methodology. PTCIPs are the first meeting was held on July 21– CFR Part 220). required to be submitted by April 16, 23, 2009. Additional meetings are Task 96–5—(Completed) Reviewing 2010, under the mandate of the RSIA. scheduled for August 25–27, 2009; and recommending revisions to Steam FRA posted a final version of a PTCIP September 15–17, 2009; October 20–22, Locomotive Inspection Standards (49 template and an example risk 2009; November 17–19, 2009; and prioritization methodology model for December 16–18, 2009. Tentative CFR Part 230). prioritization of line segment consensus was reached on the vast Task 96–6—(Completed) Reviewing implementation to the public FRA Web majority of the regulatory text. An and recommending revisions to site on January 12, 2010, the same day electronic ballot is being circulated for miscellaneous aspects of the regulations as the final rule was made available for formal Working Group consensus and a addressing Locomotive Engineer public review. Contact: Tom McFarlin, recommendation is anticipated to the Certification (49 CFR Part 240). (202) 493–6203. full RSAC at the February 11, 2010, Task 96–7—(Completed) Developing Task No. 08–05—Railroad Bridge meeting. Contact: Mark McKeon, (202) Roadway Maintenance Machines (On- Safety Assurance. This task was 493–6350. Track Equipment) Safety Standards. accepted on December 10, 2008, to Task No. 09–01—Passenger Hours of Task 96–8—(Completed) This develop a draft rule encompassing the Service. This task was accepted on April planning task evaluated the need for requirements of Section 417 of RSIA, 2, 2009, to provide advice regarding action responsive to recommendations Railroad Bridge Safety Assurance. This development of implementing contained in a report to Congress titled, Section directs the Secretary of regulations for the hours of service of Locomotive Crashworthiness & Working Transportation to promulgate operating employees of commuter and Conditions. regulations, not later than 12 months intercity passenger railroads under the Task 97–1—(Completed) Developing after the October 16, 2008, date of RSIA. The Group has been tasked to crashworthiness specifications (49 CFR enactment, requiring owners of track review available data concerning the Part 229) to promote the integrity of the carried on one or more railroad bridges effects of fatigue on the performance of locomotive cab in accidents resulting to adopt a bridge safety management subject employees, and consider the role from collisions. program to reduce the risk of human of fatigue prevention in determining Task 97–2—(Completed) Evaluating casualties, environmental damage, and maximum hours of service. The Group the extent to which environmental, disruption to the Nation’s railroad has also been tasked to consider the sanitary, and other working conditions transportation system that would result potential for alternative approaches to in locomotive cabs affect the crew’s from a catastrophic bridge failure. The hour of service using available tools for health and the safe operation of

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locomotives, proposing standards where Task 01–1—(Completed) Developing Issued in Washington, DC, on January 25, appropriate. conformity of FRA’s regulations for 2010. Task 97–3—(Completed) Developing accident/incident reporting (49 CFR Part Grady C. Cothen, Jr., event recorder data survivability 225) to revised regulations of the Deputy Associate Administrator for Safety standards. Occupational Safety and Health Standards and Program Development. Task 97–4 and Task 97–5— Administration, U.S. Department of [FR Doc. 2010–1788 Filed 1–28–10; 8:45 am] (Completed) Defining PTC Labor, and to make appropriate BILLING CODE 4910–06–P functionalities, describing available revisions to the FRA Guide for technologies, evaluating costs and Preparing Accident/Incident Reports. benefits of potential systems, and Task 08–01—(Completed) Report on DEPARTMENT OF THE TREASURY considering implementation the Nation’s Railroad Bridges. Report to opportunities and challenges, including the Federal Railroad Administrator on Office of Thrift Supervision demonstration and deployment. the current state of railroad bridge safety Task 97–6—(Completed) Revising management; update the findings and Charter Bank: Santa Fe, New Mexico; various regulations to address the safety conclusions of the 1993 Summary Notice of Appointment of Receiver implications of processor-based signal Report of the FRA Railroad Bridge Notice is hereby given that, pursuant and train control technologies, Safety Survey. to the authority contained in section including communications-based Task No. 08–06—(Completed) Hours 5(d)(2) of the Home Owners’ Loan Act, operating systems. of Service Recordkeeping and the Office of Thrift Supervision has duly Task 97–7—(Completed) Determining Reporting. Develop revised appointed the Federal Deposit Insurance damages qualifying an event as a recordkeeping and reporting Corporation as sole Receiver for Charter reportable train accident. requirements for hours of service of Bank, Santa Fe, New Mexico, (OTS No. Task 00–1—(Completed–Task railroad employees. Final rule 08337) on January 22, 2010. Withdrawn) Determining the need to published May 27, 2009, with an Dated: January 25, 2010. amend regulations protecting persons effective date of July 16, 2009 (74 FR who work on, under, or between rolling 25330). By the Office of Thrift Supervision. equipment; and persons applying, Please refer to the notice published in Sandra E. Evans, removing, or inspecting rear end the Federal Register on March 11, 1996, Federal Register Liaison. marking devices (Blue Signal (61 FR 9740) for more information about [FR Doc. 2010–1779 Filed 1–28–10; 8:45 am] Protection). the RSAC. BILLING CODE 6720–01–M

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Part II

Department of Agriculture Food and Nutrition Service

7 CFR Parts 272 and 273 Food Stamp Program: Eligibility and Certification Provisions of the Farm Security and Rural Investment Act of 2002; Final Rule

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DEPARTMENT OF AGRICULTURE TANF cash assistance; and restore food 6 individuals. In this final rule, we will stamp eligibility to qualified aliens who not discuss comments that supported Food and Nutrition Service are otherwise eligible and who are our proposals. We will not discuss, in receiving disability benefits regardless detail, comments that concerned merely 7 CFR Parts 272 and 273 of date of entry, are under 18 years of technical corrections or inadvertent [FNS–2007–0006] age regardless of date of entry, or have omissions; we have simply made the lived in the United States for 5 years as corrections. We will not discuss several RIN 0584–AD30 qualified aliens beginning on the date of provisions on which we received no entry. comments. We will adopt these Food Stamp Program: Eligibility and DATES: Effective Date: This final rule is provisions as proposed. For a full Certification Provisions of the Farm effective April 1, 2010. understanding of the background of the Security and Rural Investment Act of Implementation Dates: provisions in this rule, see the proposed 2002 1. Sections 273.4(a)(6)(ii)(H), 273.8(b), rulemaking which was published in the AGENCY: Food and Nutrition Service, and 273.9(d)(1)—amendments of this Federal Register on April 16, 2004 (69 USDA. final rule were to be implemented FR 20724). With the exceptions noted October 1, 2002. above, we will discuss each provision ACTION: Final rule. 2. Sections 273.4(a)(6)(ii)(B) through and the comments made. SUMMARY: This final rule implements 11 (a)(6)(ii)(F) and 273.4(a)(6)(iii)— Availability of Food Stamp Program provisions of the Farm Security and amendments of this rule were to be Applications on the Internet—7 CFR Rural Investment Act of 2002 (FSRIA) implemented April 1, 2003. 273.2(c) that establish new eligibility and 3. Sections 273.4(a)(6)(ii)(J) and 273.4(c)(3)(vi)—amendments of this rule Section 11(e)(2)(B)(ii) of the Food certification requirements for the receipt Stamp Act (7 U.S.C. 2020(e)(2)(B)(ii)) of food stamps. The provisions of the were to be implemented October 1, 2003. requires State agencies to develop a final rule will simplify program Food Stamp Program application. administration, allow States greater 4. State agencies must implement §§ 273.4(c)(2)(v), 273.4(c)(3)(iv), Section 4114 of FSRIA amended Section flexibility, and provide enhanced access 11(e)(2)(b)(ii) to require State agencies to eligible populations. This rule will 273.4(c)(3)(vii), 273.9(b)(1)(vi), and 273.9(c)(3)(ii)(A) amendments no later that maintain a Web site to make their allow States, at their option, to treat State food stamp application available legally obligated child support than August 1, 2010. 5. State agencies may implement all on that Web site in each language in payments to a non-household member other amendments on or after April 1, which the State agency makes a printed as an income exclusion rather than a 2010. application available. This final rule deduction; allow a State option to 6. States that implemented amends current regulations at 7 CFR exclude certain types of income and discretionary provisions, either under 273.2(c)(3) to implement this provision. resources that are not counted under the existing regulations or policy guidance Section 4114 of FSRIA also required State’s Temporary Assistance for Needy issued by the Department, prior to the State agencies to provide the addresses Families (TANF) cash assistance or publication of this final rule have until and phone numbers of all State food Medicaid programs; replace the current, August 1, 2010 to amend their policies stamp offices and a statement that the fixed standard deduction with a to conform to the final rule household should return the application deduction that varies according to requirements. form to its nearest local office. household size and is adjusted annually Commenters suggested other for cost-of-living increases; allow States FOR FURTHER INFORMATION CONTACT: information that the Department should to simplify the Standard Utility Angela Kline, Branch Chief, require State agencies to place on their Allowance (SUA) if the State elects to Certification Policy Branch, Program Web site such as fax numbers and the use the SUA rather than actual utility Development Division, Food and service area of each local office or some costs for all households; allow States to Nutrition Service (FNS), USDA, 3101 other means to connect individuals to use a standard deduction from income Park Center Drive, Alexandria, Virginia the correct local office. We note that of $143 per month for homeless 22302, (703) 305–2495. Her e-mail many State agencies do provide detailed households with some shelter expenses; address is: local office information on their Web allow States to disregard reported [email protected]. sites. However, we decided that changes in deductions during SUPPLEMENTARY INFORMATION: requiring specific information about certification periods (except for changes each local office such as a fax number associated with new residence or earned Background and the service area of each office can income) until the next recertification; The Farm Security and Rural be unduly burdensome to the State increase the resource limit for Investment Act of 2002 (FSRIA), Public agencies, and should be a state option households with a disabled member Law 107–171, enacted May 13, 2002, rather than a Federal mandate. The from $2,000 to $3,000 consistent with amended the Food Stamp Act of 1977, purpose of the statutory provision is to the limit for households with an elderly 7 U.S.C. 2011, et seq. (the Act), by allow households to obtain a food stamp member; allow States to extend establishing new eligibility and application without having to visit the simplified reporting of changes to all certification requirements for the receipt local office and provide applicants with households; require State agencies that of food stamps. On April 16, 2004, we information to assist them in the have a Web site to post applications on published a rule proposing to codify application process. We believe that the these sites in the same languages that (published in the Code of Federal commenter’s proposal is best handled at the State uses for its written Regulations) the eligibility and the State level. applications; allow States to extend certification requirements of the FSRIA. The Department proposed to include from the current 3 months up to 5 The period for comment on the a reference to Section 504 of the months the period of time households proposed rule ended June 15, 2004. We Rehabilitation Act of 1973 (29 U.S.C. may receive transitional food stamp received comments from 19 State and 794) in 7 CFR 273.2(c)(3) to ensure that benefits when they cease to receive local agencies, 90 advocate groups, and documents on a State’s Web site are

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accessible to persons with disabilities. Partial Restoration of Benefits to Legal do not have to be consecutive. Second, Commenters suggested that the Immigrants—7 CFR 273.4 they asked us to clarify that temporary absences of less than 6 months from the regulatory language specify examples of 1. Expanded Eligibility for Certain United States, with no intention of the kinds of services States must offer in Noncitizens order to make their applications abandoning U.S. residency, do not accessible to people with disabilities. Section 4401 of FSRIA substantially terminate or interrupt the individual’s expanded eligibility for the Food Stamp They also suggested that the Department period of U.S. residency. Third, they Program for legal immigrants. Prior to reference helpful guidance written by asked us to clarify that prior residence the enactment of Section 4401, Section in any one or any combination of the the Architectural and Transportation 402 of the Personal Responsibility and Barriers Compliance Board on immigrant statuses that confer eligibility Work Opportunity Reconciliation Act of counts toward the 5-year residency improving access to individuals with 1996 (PRWORA), as amended, limited disabilities and how to comply with policy. Finally, to ensure that, when the eligibility for food stamps to United U.S. Citizenship and Immigration such guidance. Finally, they wanted the States citizens, non-citizen nationals, Services grants qualified status Department to provide information in and certain alien groups. The retroactively, the retroactive time counts the preamble of the final rule about requirements of Section 402 of toward the 5-year requirement. The various assessment tools available to PRWORA, as well as the alien eligibility Department has considered these determine whether or not a State meets requirements contained in Section 6(f) requests and the final rule reflects the accessibility standards. of the Act (7 U.S.C. 2015(f)), were recommended clarifications. implemented through current Although the Department appreciates The 5-year residency rule effectively regulations at 7 CFR 273.4(a). That these recommendations, it is eliminates the 7-year time limit on food section lists the groups eligible for food impracticable to include such guidance stamp participation for qualified aliens stamps which include qualified aliens, in a regulation due to its extensive who are eligible for the program because as defined under 7 CFR 273.4(a)(5)(i), they meet the criteria (for example, detail. As stated by the commenters, who meet at least one of the criteria refugee or asylee status) set out in other agencies have already provided specified at 7 CFR 273.4(a)(5)(ii). Some PRWORA and at current regulations 7 helpful guidance on improving access to of the criteria make a noncitizen eligible CFR 273.4(a)(5)(ii)(B) through individuals with disabilities. The for only 7 years, while other criteria (a)(5)(ii)(F). Because the 5-year Department encourages State agencies make the noncitizen permanently that administer the Food Stamp Program eligible for the program. The proposed residency rule effectively eliminates the to consult information such as the rule contained a detailed discussion of 7-year time limit on food stamp guidance written by the Architectural these requirements; interested parties eligibility, the Department proposed to and Transportation Barriers Compliance can refer to the current regulations and amend current regulations at 7 CFR Board in the development of accessible proposed rule for further discussion. 273.4(a)(5)(ii)(B) through (a)(5)(ii)(F) to remove the reference to the 7-year time systems. Section 4401 of FSRIA amended Section 402 of PRWORA to expand food limit. One commenter noted that while Commenters asked the Department to stamp eligibility for certain additional it is technically correct to strike the now provide a report on State compliance qualified aliens. First, Section 4401 irrelevant 7-year time limit language, with this provision in the preamble to extends eligibility for food stamps to they felt that the proposed regulations the final rule. The Department will not any qualified alien who has resided in would have required a confusing, provide such a report in the final rule the United States for 5 years or more as redundant two-pronged test. They because of the ever changing nature of a qualified alien. As written, Section suggested that the changes proposed by State systems. Additionally, the 4401 could be read to require that the Section 4401 gave FNS an opportunity Department does not provide reports in alien has been in a qualified status at for a substantial reorganization of 7 CFR the Federal Register on State the time he or she entered the United 273.4(a). compliance with other regulatory States in order to be eligible under this The commenter suggested that the provisions; therefore, it is not provision. However, in reviewing the Department move the ‘‘refugee’’ group to appropriate to provide a report on this legislative history behind FSRIA in the its own unencumbered section under 7 provision. development of the proposed rule, the CFR 273.4(a) and separately group the remaining qualified immigrants who However, the Department has made it Department came to the conclusion that must meet the two-pronged test. They clear to all State agencies that the it was not the intent of Congress to deny the benefits of the provision to aliens felt that eligibility workers would have information provided on their Web site who are not qualified when they enter difficulty determining what rule is must be easily accessible. The the United States but later attain applicable to the household and become Department also developed a page on its qualified status. Therefore, the confused about how a member of a own Web site to assist participants in Department proposed to amend current refugee group can be both ‘‘qualified’’ accessing program information for all 50 regulations at 7 CFR 273.4(a)(5)(ii) to and ‘‘eligible’’ under the same set of facts States and the District of Columbia. The extend eligibility for the Food Stamp but other non-citizens must meet a two- Department’s Web site contains a map Program to any alien who has resided in pronged test involving age, duration of and list of all 50 States and the District the United States in a qualified alien status, disability, work history or of Columbia. Participants can click on status as defined in PRWORA for 5 veteran status. The commenter also their State and obtain, at a minimum, an years. recommended that the Department English language application form, While most commenters approved of insert an additional provision to resolve acquire the food stamp hotline number the language in the proposed rule, they any confusion around situations where for their State, and find the nearest food asked the Department to clarify the 5- an individual presents proof of lawful stamp office. year residency requirement to permanent residence (LPR) such as a incorporate guidelines regarding the Permanent Resident Card, I–551, which calculation of the 5-year period. First, may have a ‘‘date of entry’’ based on they asked us to clarify that the 5 years when LPR status was granted, but the

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immigrant may have previously entered quarters or not. The 40 quarters 2000. At that time, the Department in refugee or asylee status. requirement is only applicable in cases rejected the proposal to conform their FNS has considered these suggestions, of lawful permanent residents who have policies to mirror those of the SSI but maintains that the two-pronged test been in the United States less than 5 program. However, the Department did is a statutory requirement that must be years but can still claim 40 qualifying amend the regulation to allow the State addressed in the regulations. FNS finds quarters of work, such as in the case of agency to continue eligibility until the that State agencies generally simplify an individual who claims quarters household’s next recertification once their eligibility requirements for credited from the work of a parent they determine eligibility based on eligibility workers. We have attempted earned before the applicant became 18. quarters of coverage of the spouse. to simplify this provision by listing the One commenter asked the Department The commenter asked for the requirements for eligibility for qualified to conform its regulations to those of the Department to revisit this issue based on aliens in one section at, 7 CFR Supplemental Security Income (SSI) a belief that the Department 273.4(a)(6)(ii). In this section, we delete program and provide that quarters unnecessarily relied on the technicality any reference to the 7-year time limit credited from a spouse are not lost if the that food stamps are provided on a time- and delineate between those aliens that couple divorces unless food stamp limited certification period. The do not have to meet the 5-year residency benefits actually terminate. The commenter felt that this reliance on a requirement at 7 CFR 273.4(a)(6)(ii)(A)– commenter believes that USDA should technicality in 2000 was unnecessary 273.4(a)(6)(ii)(J) and those that must conform its policy to that of other because the statute only requires that meet the 5-year residency requirement programs, including SSI, to further the couple ‘‘remain married’’ at the time at 7 CFR 273.4(a)(6)(iii) in order to simplify program administration. the quarters are credited, not that they establish eligibility. We did not relocate According to the commenter, continue to be married at the time of the refugee group to a separate group as individuals who meet the non-citizen recertification. there are other exceptions to the 5-year requirements for SSI based on the Although Congress intended to residency requirement and we felt that quarters of a spouse retain SSI eligibility simplify program administration under all of the eligibility requirements for upon divorce but lose food stamp the FSRIA, this was not an issue that qualified aliens should be grouped eligibility at their next recertification. they addressed. The FSRIA lists specific together. We did not add a provision Pursuant to 8 U.S.C. 1645, when programs that the Department needs to regarding the date of entry as current determining the number of qualifying work with to develop uniform policies. regulations at 7 CFR 273.4(a)(6)(iv) quarters of coverage under title II of the Congress did not include SSI in this list address aliens who change from one Social Security Act (SSA) (42 U.S.C. of specific programs. Additionally, the status to another. 401, et. seq.), an alien shall be credited current regulations are consistent with The 5-year residency rule also makes with all of the qualifying quarters the administration of the Food Stamp parolees and conditional entrants who worked by a spouse of such alien during Program. As stated above, the retain qualified alien status for 5 years their marriage if the alien remains certification period of the Food Stamp eligible for the program. Under the married to such spouse. Under the Program does not mirror that of the SSI current rules, these two categories of guidelines of the Social Security program. Therefore, the Department qualified aliens have to meet one of the Administration, provided in Section SI developed a regulation that came as requirements under 7 CFR 273.4(a)(5)(ii) 00502.135 of the Program Operations close to the SSI program policy as it in addition to meeting the requirements Manual (POMS), the qualifying quarters could without violating the overall for parolee or conditional entrant status. of a spouse cannot be credited if the principles of the Food Stamp Program. The Department proposed to amend the marriage has ended, unless by death, All federal benefit programs are current regulations to accommodate this before a determination of alien different in their administration of change in the law. These aliens are eligibility is made for aliens lawfully benefits because Congress implemented listed as qualified aliens in paragraph admitted for permanent residence. laws that fit the overall goals of each 273.4(a)(6)(i) of the final rule and are However, the POMS also states that program. Therefore, the agencies subject to the 5-year residency qualifying quarters credited from a governing these programs need to requirement listed at paragraph spouse are not lost if the marriage ends comply with Congressional intent and 273.4(a)(6)(iii) of the final rule. Section for any reason after a determination of develop rules to achieve the specific 4401 also effectively reduces the eligibility is made unless the benefits goals of each program. applicability of the 40 quarters of work terminate and a new claim is required. Although the 40 qualifying quarters requirement for aliens lawfully admitted Unlike food stamp benefits which requirement has been minimized as an for permanent residence under expire if there is no determination of eligibility requirement, it continues to PRWORA and current regulation 7 CFR eligibility for the new certification play a role in the area of deeming of the 273.4(a)(5)(ii)(A). Under the current period, SSI benefits are provided on a income of a sponsor to a sponsored rules, to be eligible to participate in the continual basis with the Social Security alien. Except for aliens exempt from the Food Stamp Program, an alien who is a Administration performing deeming requirement in accordance qualified alien because he or she was redeterminations on a schedule that is with 7 CFR 273.4(c)(3), the deeming admitted for permanent residence must based on the likelihood that a requirement applies until the alien has have or be credited with 40 qualifying recipient’s situation may change. This worked or can receive credit for 40 quarters of work to qualify for this difference has led the two agencies to qualifying quarters of work, gains exception. Thus, generally, a lawful apply different methodologies for United States citizenship, or his or her permanent resident must work for 10 crediting qualifying quarters worked by sponsor dies. Thus, even though a years before becoming eligible to a spouse. lawful permanent resident may be participate in the Food Stamp Program. In 2000, the Department received a eligible for the Food Stamp Program However, as a result of Section 4401, a similar comment to the proposed after 5 years without any qualifying lawful permanent resident will now Noncitizen Eligibility and Certification quarters of work, the deeming become eligible for food stamps after Provisions (NECP) Rule. The analysis of requirement may apply to the residing in the United States for 5 years this comment can be found in the final individual until he or she works or can whether he or she has any qualifying rule at 65 FR 70134 on November 21, receive credit for 40 qualifying quarters.

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The Department did receive comments age and not their disability is not from the sponsor during any period of regarding the deeming rules which will something that the Department can time that the sponsor receives food be discussed in detail below. control. The Department must comply stamps. The Department decided not to In addition to extending eligibility to with the Act and maintain the provision regulate the issue of sponsor liability aliens who satisfy the 5-year residency that the individual receive benefits any further until the Department has requirement, Section 4401 also extends based on disability criteria. There is completed a thorough policy eligibility to two other groups of nothing in the Act that requires State development process in coordination qualified aliens. First, Section 4401 agencies to accommodate disabled with other Federal agencies. Several extends eligibility for the Food Stamp individuals and make a disability commenters suggested that the Program to all qualified aliens who meet determination to qualify under this Department amend the regulations to the definition of disabled at Section 3(r) provision. Therefore, the Department clarify that sponsors are not required to of the Act, regardless of the date they cannot amend this provision of the reimburse agencies for benefits provided began residing in the United States. proposed rule and finalizes it as to immigrant children. They believed Second, Section 4401 extends eligibility proposed. that this would ensure that immigrant to all qualified aliens who are under the One commenter discovered what they children have access to food stamps, as age of 18. The Department proposed to believed to be conflicting language in intended by the recent legislation. amend current regulations at 7 CFR the proposed rule. They noted that the Sponsors are normally shielded from 273.4(a)(5)(ii) to incorporate the revised preamble states that Section 4401 liability in the first 5 years of residence eligibility requirements for certain extends eligibility to qualified aliens because, under prior law, sponsored qualified aliens. who meet the definition of disabled and aliens were not eligible (with limited Under the Act, individuals are further discussion states that they need exceptions) for 5 years. In amending the considered disabled if they receive to be qualified aliens legally residing in Act to make legal immigrant children certain federal or State disability the United States. immediately eligible for benefits, benefits. Most of the benefits listed in The language in the preamble to the Congress made sponsors of these the Act require an individual to provide proposed rule that refers to the term children potentially immediately liable proof of a disability. The Act also ‘‘lawfully residing’’ is in a discussion for benefits issued to them. The provides that persons receiving about the current regulations. The commenters believed that this was the disability-related Medicaid, State- proposed rule clearly states that the result of a Congressional oversight. funded medical assistance benefits, and requirement that an individual be Therefore, they suggested that the State General Assistance (GA) benefits ‘‘lawfully residing’’ as of a certain date Department consider the option of may be considered disabled for food would be amended. The proposed excluding benefits received by stamp purposes if they are determined language for 7 CFR 273.4(a)(5)(ii)(H) and sponsored alien children from sponsor disabled using criteria as stringent as 7 CFR 273.4(a)(5)(ii)(J) would have liability for the first 5 years that they are federal SSI criteria. One commenter amended the current language for those in residence. noted that some States will provide sections by removing the words ‘‘on The Department has considered these disability-related general or medical August 22, 1996, was lawfully residing comments and will maintain the current assistance to residents based on age. in the U.S. and is now’’ and adding in rule as proposed. This was not an issue They were concerned that although their place the word ‘‘is’’. Therefore, that Congress felt was necessary to raise some of these individuals also meet the there is no conflict for the Department in the statutory language and the SSI definition of disabled, they may be to correct in the final rule. Under the Department does not want to regulate denied food stamps because they did final rule, to be eligible under 7 CFR the issue of sponsor liability any further not have to provide proof of their 273.4(a)(6)(ii)(H), a qualified alien must until the Department has completed a disability to receive their State-funded be receiving benefits or assistance for thorough policy development process in assistance. To ensure that this does not blindness or disability. Under revised 7 coordination with other Federal happen, the commenter suggested that CFR 273.4(a)(6)(ii)(J), a qualified alien agencies. Since Congress did not raise the final rule clarify that an individual must be under 18. this issue in the statutory language, the may qualify as disabled for food stamp As a result of the change in program Department is following the statutory purposes if the individual has been rules qualifying individuals under the language and does not believe that it is determined by the State to have a age of 18, the Department received necessary or proper to regulate beyond disability that meets SSI standards, as several comments on the issue of these statutory provisions. long as the individual is receiving a sponsor liability regarding this group of Several commenters suggested that State-funded, needs-based, benefit. newly qualified immigrants. Under the the Department amend the current Although these points are addressed in current rules, sponsors who sign a regulations to clarify that human the preamble to the proposed rule and binding affidavit of support are trafficking victims and certain family in program policies, the commenter responsible for food stamp benefits members are eligible for food stamps to wanted to have these policies codified received by the immigrants they sponsor ensure that victims and their families to avoid the anomaly of denying food if those benefits were received during are not denied benefits. This was not stamps to disabled elders while the period of time the affidavit of addressed in the proposed rule. The allowing food stamps to non-elderly support is in effect. The affidavit of Department included this issue among disabled persons. support remains in effect until the several it addressed in the ‘‘Eligibility The Department has considered these sponsored immigrant becomes a Determination Guidance: Noncitizen comments and has determined that the naturalized citizen, can be credited with Requirements for the Food Stamp issue presented by the commenter is so 40 qualifying quarters of work, is no Program’’ issued in January 2003 (and in limited that it is not necessary to codify. longer a lawful permanent resident and further guidance issued in August Additionally, the Act requires the leaves the U.S. permanently, or until the 2004). individual to receive these benefits sponsor or the sponsored immigrant The guidance reflects the based on their disability. The fact that dies. requirements under the ‘‘Trafficking the State agency has elected to provide The NCEP Rule clarified that a State Victims Protection Act of 2000’’ (Pub. L. benefits to individuals based on their agency cannot request reimbursement 106–386), as reauthorized by the

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Trafficking Victims Protection agency will divide the sponsor’s sponsored households and decrease Reauthorization Act of 2003 (Pub. L. deemable income and resources by the program complexity. 108–193) that adult victims of number of sponsored aliens and deem to One commenter suggested that the trafficking who are certified by the U.S. each alien his or her portion. However, household be divided into different Department of Health and Human because sponsored aliens under the age units. In a household with a sponsored Services (DHHS) are eligible for food of 18 will now be exempt from deeming parent and two children (either stamp benefits to the same extent as requirements, following current rules, immigrant or citizen children), for refugees. Additionally, children who are the State agency must deem only a example, the two children would be under 18 years of age and have been portion of the sponsor’s income to the considered separately with only their subject to trafficking are also eligible on household. Even though the sponsored parent’s income counted in determining the same basis as refugees, but they do child is exempt from deeming their eligibility. Then the sponsored not need to be certified. The Department requirements, the sponsor is still parent’s eligibility would be determined is making a technical amendment to sponsoring that child. Thus, if an separately, with the sponsor’s income reflect the eligibility status of victims of individual sponsors two aliens, an adult considered. This same commenter trafficking as required by statute, by and a child who reside in the same food suggested an alternative approach adding these provisions to the final stamp household, the State agency must which would allow the sponsored regulations. Therefore, the final rule divide the sponsor’s deemable income immigrant to ‘‘opt out’’ of the household includes a new 7 CFR 273.4(a)(5). This and resources by two and deem one-half and be treated under the State’s formula new paragraph will clarify that of such income and resources to the for ‘‘PRWORA ineligible’’ immigrants. trafficking victims and certain family sponsored adult alien. The State agency The Department believes it was not members are eligible for food stamp would deem nothing to the child. The the intent of Congress to create an benefits. Department proposed to amend current inequity between citizen children and regulations at 7 CFR 273.4(c)(2)(v) to sponsored alien children that is 2. Elimination of the Deeming clarify this point. fundamentally at odds with the overall Requirement for Noncitizen Children While most commenters supported goal of the program. Therefore, the final In addition to expanding Food Stamp this provision, several had issues with rule places all households on equal Program eligibility to certain what they regarded inequitable footing providing the same income noncitizens, Section 4401 of FSRIA also treatment of households with U.S. deeming procedures to households with removed deeming requirements for citizen children versus those with citizen children as those applied to immigrant children. Deeming is the immigrant children. In a case involving households with immigrant children. process by which the State agency a sponsored immigrant adult and citizen 3. Attorney General Notification of counts a portion of the income and child, the eligibility worker would deem Indigency resources of an alien’s sponsor as all of the sponsor’s income to the income and resources belonging to the household. In a household with Current rules require that the State alien when determining the latter’s sponsored immigrant parents and agency notify the Attorney General any eligibility for the Food Stamp Program immigrant children, the eligibility time a sponsored alien has been and amount of benefits. Both Section worker would deem only that portion of determined indigent, and include in the 421(a) of PRWORA and Section 5(i) of the sponsor’s income attributable to the notification the names of the sponsor the Act impose deeming requirements adult and disregard the portion and sponsored aliens. Moreover, under on the Food Stamp Program. As stated attributed to the immigrant child. Section 423(b) of PRWORA, upon in the proposed rule, the requirements According to the commenters, this notification that a sponsored alien has of the two laws are not fully consistent. could result in the reduction or even the received any benefit under any means- However, the Department addressed and elimination of food stamp benefits for tested public benefits program, the resolved the inconsistencies in the the citizen child with sponsored appropriate Federal or State agency (or NCEP Rule. immigrant parents because all of the an agency of a political subdivision of Current deeming requirements appear sponsor’s countable income is added a State) must request reimbursement by in food stamp regulations at 7 CFR when determining a household’s the sponsor in the amount of such 273.4(c). A complete discussion of the eligibility for the Food Stamp Program. assistance. Commenters raised concerns current deeming rules is provided in the Commenters noted that according to the that some eligible aliens may be proposed rule. Section 4401 of FSRIA Urban Institute, 85 percent of deterred from applying for food stamps amends Section 421 of PRWORA and immigrant-headed households include because of the Attorney General Section 5(i) of the Act (7 U.S.C. 2014(i)) at least one U.S. citizen, typically a notification requirement and sponsor to add aliens under the age of 18 to the child. They felt that Congress could not liability, which could lead to reprisals list of sponsored aliens excluded from have intended to provide less assistance from their sponsors. The groups deeming requirements. Therefore, as of to households with U.S. citizen suggested that the Department allow October 1, 2003, the effective date of the children. alien applicants to opt out of the provision, the State agency may not The commenters asked the indigence determination and have their count the income and resources of the Department to place all sponsored eligibility and benefit levels determined sponsor of an alien under the age of 18 households on equal footing by under regular deeming rules. The when determining the eligibility or applying deemed income to households Department agreed with this concern benefit level of the sponsored alien’s with citizen children in the same over the mandatory notification household. The Department proposed to manner as it is applied to households requirement as a deterrent to amend current regulations at 7 CFR with immigrant children. The deemed participation and so proposed to amend 273.4(c)(3) to add sponsored aliens income would be divided equally current regulations at 7 CFR under the age of 18 to the list of aliens among any sponsored immigrants and 273.4(c)(3)(iv) to allow a household to exempt from deeming requirements. children in the household with the opt out of the indigence determination Under current rules at 7 CFR child’s amount excluded. They felt that and be subject to regular sponsor 273.4(c)(2)(v) if an alien’s sponsor this would prevent the inequitable deeming rules at 7 CFR 273.4(c)(2). sponsors more than one alien, the State distribution of benefits among Under the sponsor deeming rules,

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failure to verify the sponsor’s income information necessary for the purposes requires that States use the income and and assets would result in the of deeming the sponsor’s income to the resource standards that were in effect in disqualification of the sponsored alien. alien. As stated previously, the July 1996 for the Aid to Families with The Department received one consequence of failure to verify the Dependent Children (AFDC) program, comment from a State agency that saw sponsor’s income and assets is the but also provides options for States to little benefit in this provision. The disqualification of the sponsored alien. use less restrictive income and commenter stated that most sponsored The Department sees the new option as resources tests for these families. alien applicants who are determined to an administrative simplification, rather This final rule adds a new paragraph be indigent have either little or no than a basic change in policy. The new at 7 CFR 273.8(e)(19) which provides contact with their sponsor, or are provision allows the sponsored alien to State agencies the option to exclude receiving no monetary assistance from opt out at the beginning of the from resource consideration for food their sponsor. Therefore, it makes little application process. This results in an stamp purposes any resources they sense for the alien applicant to try to outcome that would have ensued under exclude when determining eligibility for request information from the sponsor for the existing regulations, but with much TANF cash assistance or medical purposes of regular sponsor deeming. more time consuming administrative assistance under Section 1931 of the Additionally, the commenter noted that process. The Department received SSA. However, the final rule prohibits allowing the applicants to opt out will comments in favor of this provision. State agencies from adopting resource not necessarily increase participation Therefore, we are incorporating this exclusions, for food stamp purposes, of because the aliens typically opt out provision in this final rule. TANF cash assistance and Medicaid completely or become ineligible if the programs that do not evaluate the sponsor’s income is deemed to them. 4. Comments Related to Department financial circumstances of adults in the However, the Department believes that Guidance on Immigration household while determining eligibility opting out may increase participation by In addition to the comments that and benefits. other household members, particularly addressed provisions of the proposed The requirement at 7 CFR 273.8(c)(3) children. Accordingly, the Department rule that are discussed above, the to deem the resources of sponsors of will adopt the revisions as proposed. Department received comments that aliens as resources of the alien The Department also received a address additional immigration issues. applicants continues to be in effect. comment asking that the final rule Most of these comments reflect However, if a State agency has chosen contain a provision that will ensure that primarily on the guidance issued by the in accordance with the provisions of 7 the sponsored alien is provided notice Department in January 2003. Since these CFR 273.8(e)(19) in this final rule to of the consequences of refusing an issues were not addressed in the exclude a type of resource excluded for indigence determination. Namely, that if proposed rule, the comments are TANF or Medicaid, and the alien’s the household refuses the beyond the scope of this rulemaking and sponsor owns that resource, the State determination, the State agency will not should be addressed in a future agency would not include that resource complete the determination and will rulemaking in order to have the force when determining which resources to deem the sponsor’s income and and effect of law. deem to the sponsored alien’s resources to the alien’s household. The Simplified Definition of Resources— household. final rule contains language to ensure 7 CFR 273.8 The final rule amends 7 CFR 273.8(b) that participants are notified of these to extend the $3,000 resource limit to consequences. For the purposes of this final rule, the households which contain a disabled Prior to the publication of the Department is defining cash assistance member or members. (The food stamp proposed rule, the Department was under a program funded under part A of definition of an elderly or disabled asked to permit State agencies to title IV of the SSA as ‘‘assistance’’ as member is reflected at 7 CFR 271.2). develop an administrative process defined in the TANF regulations at 45 A State agency that selects the option which requires an eligible sponsored CFR 260.31(a)(1) and (a)(2), except for to use its TANF cash assistance or alien to provide consent before release programs grand-fathered under Section Medicaid resource rules in lieu of food of information to the Attorney General 404(a)(2) of the SSA. Under TANF, stamp resource rules may not exclude or the sponsor. Commenters suggested assistance includes cash and other the following: that many sponsored aliens would learn forms of benefits designed to meet a 1. Licensed vehicles not excluded of the Attorney General notification and family’s ongoing basic needs including under Section 5(g)(2)(C) or (D) of the Act sponsor liability requirements only after benefits conditioned on participation in (7 U.S.C. 2014(g)(2)(C) and (D)). (Section they have disclosed their immigration work experience or community service. 5(g)(2)(D)) allows State agencies to status and social security number. Programs grand-fathered under Section substitute the vehicle rules they use in Fearing adverse consequences as a 404(a)(2) of the SSA include emergency their TANF programs for the food stamp result of the notification requirements, foster care, the Job Opportunities and vehicle rules when doing so results in the sponsored alien may withdraw the Basic Skills program and juvenile a lower attribution of resources to the entire application, resulting in other justice. We do not believe that these household); and household members, in many cases U.S. grand-fathered programs are what the 2. Cash on hand and amounts in any citizen children, losing the opportunity Congress meant when it used the term account in a financial institution that to receive benefits. The Department ‘‘cash assistance’’ in the statute, even are readily available to the household, stated in the proposed rule that it is though they may involve a cash including money in checking or savings within the discretion of the State agency payment to a family. accounts, stocks, bonds, or savings to utilize a process under which In the final rule, the Department is certificates. information about the sponsored alien is defining medical assistance under The proposed rule would have not shared with the Attorney General or Section 1931 of the SSA as Medicaid for required that the term ‘‘readily the sponsor without consent so long as low-income families with children. This available’’ apply to resources, in the sponsored alien is aware of the section, which was added by PRWORA, financial institutions, that can be consequences of failure to grant consent allows low-income families with converted to cash in a single transaction or failure to provide any other children to qualify for Medicaid. It without going to court to obtain access

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or incurring a financial penalty other resources. Title IV of the Food, • Other types of income that are than loss of interest. While commenters Conservation and Energy Act of 2008 determined by the Secretary through found the proposed definition of (Pub. L. 110–246)(FCEA) provided for regulations to be essential to equitable ‘‘readily available’’ to be easy to the exclusion of all IRAs. Accordingly, determinations of eligibility and benefit understand and specific, they also any discussion of IRAs is dropped from levels. found that it added complexity to this rule and will be discussed in a Current regulations at 7 CFR program administration. Some future rulemaking. 273.9(c)(3) provide an exclusion for suggested that making the term ‘‘readily educational assistance including grants, available’’ apply to all financial Simplified Definition of Income—7 CFR scholarships, fellowships, work-study, instruments would be simpler than the 273.9(c) educational loans which defer payment, proposed definition, which would be Current regulations at 7 CFR 273.9(c) veterans’ educational benefits and the more restrictive than current policy. specify the types of income that State like. These exclusions (based on an Others argued that we should allow agencies must exclude from a exclusion provided at Section 5(d) of State agencies to exclude stocks, bonds, household’s income when determining the Act) are limited to educational and savings certificates if their TANF the household’s eligibility for the assistance provided to a household cash assistance or Section 1931 Medical Program and benefit levels. Provisions member who is enrolled at a recognized assistance programs exclude them. We at 7 CFR 273.9(c)(1) through (c)(16) institution of post-secondary education disagree. These financial instruments provide a long list of income exclusions and that are used or earmarked for are generally easily converted to cash. In that State and local agencies must apply tuition or other allowable expenses. the rare instances where they are not when calculating a household’s income. State agencies have the option of easily cashed, current regulations would Section 4102 of FSRIA amends excluding this assistance from income exclude them as inaccessible resources. Section 5(d) of the Act (7 U.S.C. for food stamp purposes to the extent As examples, a stock certificate without 2014(d)) to add three new categories of that their Medicaid rules require value, one whose value is not easily income that, at the option of the State exclusion of additional educational determined, or an inherited stock that agency, may also be excluded from assistance, i.e., educational assistance has not yet cleared probate is household income. Under the that would not be excludable under the considered inaccessible under current amendment, State agencies may, at their current rules at 7 CFR 273.9(c)(3). rules and would not be counted against option, exclude the following types of To implement section 4102 of FSRIA, a household’s resource limit. For these income: the Department proposed to amend 7 reasons the final rule defines ‘‘readily 1. Educational loans on which CFR 273.9(c)(3) by adding a new 7 CFR available resources’’ as resources the payment is deferred, grants, 273.9(c)(3)(v) which grants State owner can simply withdraw from a scholarships, fellowships, veteran’s agencies the option to exclude any educational assistance required to be financial institution. For example, one educational benefits and the like that excluded under its State Medicaid rules can withdraw funds from a money are required to be excluded under a that would not already be excluded market account, or convert foreign State’s Medicaid rules; under food stamp rules. State agencies currency stored in a safety deposit box 2. State complementary assistance that implement this option must include to U.S. dollars, by simply going to the program payments excluded for the a statement in their State plan to that financial institution and going through purpose of determining eligibility for effect, including a statement of the types the required procedures. medical assistance under section 1931 Under the proposed rule, State of educational assistance that are being of the SSA; and agencies would have been able to excluded under the provision. 3. Any type of income that the State exclude deposits in individual One commenter recommended the agency does not consider when development accounts (IDAs) made Department take the opportunity in this determining eligibility or benefits for under written agreements that restrict final rule to clarify the interaction of the the use of such deposits to home TANF cash assistance or eligibility for federal Higher Education Act (Pub. L. purchase, higher education, or starting a medical assistance under section 1931. 99–498) with the Food Stamp Program. business. This provision drew over 100 However, a State agency may not The Higher Education Act, as amended, exclude the following: provides that certain types of student comments reminding FNS that the • Wages or salaries; financial assistance shall not be taken intent of the legislation is to simplify • food stamp resource rules and to Benefits under Titles I (Grants to into account in determining the need, conform them to other Federal States for Old-Age Assistance for the eligibility or benefit level of any person assistance programs. Commenters Aged), II (Federal Old Age, Survivors, for benefits or assistance under any argued that IDAs are intended to help and Disability Insurance Benefits), IV Federal, State or local program financed break the poverty cycle and to (Grants to States for Aid and Services to in whole or in part with Federal funds encourage work. We agree. The final Needy Families with Children and for (20 U.S.C. 1087uu). Food stamp rule allows States to exclude any and all Child-Welfare Services), X (Grants to regulations at 7 CFR 273.9(c)(3) differ IDAs from resources, provided their States for Aid to the Blind), XIV (Grants from 20 U.S.C. 1087uu by counting TANF cash assistance or Section 1931 to States for Aid to the Permanently and student aid as income when such aid is medical assistance programs exclude Totally Disabled) or XVI (Grants To used for normal living expenses, as them. States For Aid To The Aged, Blind, Or opposed to tuition and books. The The proposed rule would have offered Disabled and Supplemental Security commenter recommended that the States the option to exclude deposits in Income) of the SSA; Department amend food stamp individual retirement accountants • Regular payments from a regulations to conform to 20 U.S.C. (IRAs) the terms of which enforce a government source (such as 1087uu. penalty, other than forfeiture of interest, unemployment benefits and general The Department reviewed the for early withdrawal. The intent of this assistance); applicable language in the Higher language was to limit the exclusion to • Worker’s compensation; Education Act and confirmed that situations where converting the IRA to • Legally obligated child support current regulations at 7 CFR 273.9(c)(3) cash would entail significant loss of payments made to the household; or are inconsistent with this law. The Food

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Stamp Program is a federally funded 273.9(c)(19). Most of these comments ‘‘treatment’’ of income as well. If the program, thereby meeting the criteria of focused on the specific incomes or TANF or medical assistance program 20 U.S.C. 1087uu. Therefore, in addition payments listed in the paragraph. We treats a certain income as earned to adopting 7 CFR 273.9(c)(3)(v) as will address comments concerning income, the commenter would have the proposed, the Department is adding a specific incomes and payments in the State agency also apply the same new 7 CFR 273.9(c)(3)(ii)(A) to exclude order they appear in proposed 7 CFR treatment for food stamps. For example, student financial assistance received 273.9(c)(19). Before we begin this the regulations governing the TANF under 20 U.S.C. 1087uu of the Higher detailed discussion, we wish to address program treat workers’ compensation as Education Act. The Department notes two miscellaneous items. First, the earned income if it is employer funded that this section of the Higher Education Department is changing the format of and if the recipient is still considered an Act funds work study programs. the language in the proposed rule. The employee of the company. However, Therefore, any income received by an final rule lists each income or payment current food stamp policy requires individual participating in a work study that section 4102 of FSRIA does not worker’s compensation be counted as program funded under this section of exclude as income in a list format, unearned income. the Higher Education Act shall not be starting with 7 CFR 273.9(c)(19)(i) and The definition of earned and counted when determining the ending with (c)(19)(x). We believe this unearned income, as well as how much individual’s eligibility for food stamps. revised format will make it easier for of a particular type of income to count The final rule amends 7 CFR readers to understand what income or is set by regulation, not statute 273.9(b)(1)(vi) to conform to this payments cannot be excluded. (although Section 5(d) of the Food mandate. Second, the Department received a Stamp Act does say household income The Department proposed a new 7 comment regarding child support includes all income from whatever CFR 273.9(c)(18) to provide for the arrearages and whether such sums source except that which is specifically exclusion, at State agency option, of any should be included or excluded as excluded). Thus, even though FSRIA State complementary assistance income. The commenter pointed out speaks only to types of income to count program payments excluded for the that, in some cases, a large arrearage of or exclude for food stamp purposes, the purpose of determining eligibility for child support may accrue while the Department agrees with the commenter medical assistance under section 1931 non-custodial parent is unemployed or that having consistency among TANF, of the SSA. Complementary assistance working off the books to evade a wage medical assistance, and food stamps in relates to certain types of assistance attachment. State Child Support how they ‘‘treat’’ income would simplify provided under the old AFDC program. Enforcement offices (‘‘State IV–D budgeting for State or local staff who In the proposed rule, we specifically agencies’’) sometimes are able to attach administer multiple programs and asked State agencies to include, in their a bank account, tax refund, lottery would be another step toward comments, examples of the types of winnings or other property of the non- simplifying the Program. Therefore, the payments that fall under the category of custodial parent and may remit several Department is amending 7 CFR 273.9 to State complementary assistance months of support at once to the expand the list of allowable earned program payments. We received only custodial parent. These non-recurring income to include certain income as one example of such a program, the lump sums of child support must be earned income if the household is Supplemental Living Program in New excluded from the custodial parent’s receiving TANF and/or State medical Jersey. Due to the low response rate, the household income in accordance with 7 assistance and this income is treated as final rule does not include specific CFR 273.9(c)(8). However, the earned income by a State’s TANF or examples of these payments. This rule commenter thought that this may medical assistance program. adopts as final the proposed 7 CFR confuse some eligibility workers Even though a State may exclude 273.9(c)(18). accustomed to querying their State IV– income in its TANF or medical To incorporate the changes mandated D agencies for information on child assistance program, section 4102 by section 4102 of FSRIA, the support received. The commenter asked mandated that certain types of income Department proposed to add a new 7 the Department to include lump sums of cannot be excluded. Many commenters CFR 273.9(c)(19), that would allow the child support arrearages to the examples said these specific income exclusions State agency at its option to exclude of lump sums in 7 CFR 273.9(c)(8). disregarded the clearly expressed from Food Stamp Program income the The Department disagrees with the Congressional intent that the types of income that the State agency comment. Current 7 CFR 273.9(c)(8) Department only supplements the list in does not consider when determining contains some, but not all, examples of the case of unforeseen gamesmanship by eligibility or benefits for TANF cash non-recurring lump sum payments. The some States. Others claimed the assistance or eligibility for medical paragraph clearly indicates that the additional mandatory income assistance under section 1931 of the examples included in the text are not exclusions would increase the SSA. However, this provision would not exclusive. The Department sees no need administrative burdens on caseworkers include programs that do not evaluate to add more specific examples of non- and paperwork burdens on households. the financial circumstances of adults in recurring lump sum payments to this For example, State agencies would be the household and programs grand- paragraph. required to ask about these types of fathered under Section 404(a)(2) of the incomes on the application forms and SSA. Additionally, a State would not be 1. Income Excluded by State Agencies certification interviews even if a State able to exclude wages or salaries, When Determining TANF or Medical does not find them worth counting for benefits under Titles I, II, IV, XIV or XVI Assistance TANF and Medicaid. Moreover, of the SSA, regular payments from a The Department proposed to amend commenters noted that each type of government source, worker’s the current regulations at 7 CFR 273.9(c) income affects very few households and compensation, or legally obligated child to permit exclusion of new types of the Department does not collect data on support payments made to the income at State agency option. In them through its quality control household. addition to permitting the exclusion, database. Commenters stated that by The Department received several one commenter expressed the desire to supplementing the Congressional list of comments regarding proposed 7 CFR see this regulation apply to the exclusions, the language in the

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proposed rule largely eliminates the The commenter felt that there are very Department appreciates the commenter simplifying purpose of the provision. legitimate reasons why a State may wish pointing out this contradiction between The Department gave serious to develop or test an alternative 7 CFR 273.9(b)(1) and 7 CFR consideration to these comments. While approach. The commenter stated that 273.11(a)(2). To address this conflict, Congress supported simplifying imposing the uniform definition has the the final rule includes a reference in 7 program administration, it did give the effect of forcing States to either adopt CFR 273.9(c)(19) to 7 CFR 273.11(a)(2) Department the authority to add types of that definition for TANF purposes or and requires States to calculate self- income to the list of mandatory have inconsistent TANF and food stamp employment income in accordance with inclusions viewed essential to the definitions. This could greatly increase this part. equitable determination of eligibility the complexity of eligibility and benefit 3. Foster Care and Adoption Payments and benefit levels. The Department has determinations for self-employed determined that the additional types of households. This commenter suggested A commenter presented reasons why income included in the proposed rule that the final rule specify that while the Department should exempt adoption can be significant sources of income to States must count self-employment assistance for special needs children. households and should be counted in income, a State may elect to use the Adoption assistance for special needs determining food stamp eligibility and methodology it uses in its TANF or children are negotiated payments made benefits. medical assistance program for counting to families who adopt a child with special needs. Such payments are meant 2. Exemption of Gross Income From a such income. The Department disagrees with this to reimburse the adoptive parents for Self-employment Enterprise comment. The methodology a State uses the additional costs incurred due to the Three commenters argued that States to count self-employment income in its child’s needs, such as modifying a are unlikely to want to bear the TANF or medical assistance program home, respite care, and medical and expenses of a blanket disregard of self- may not conform to the rules and counseling needs. employment income in their TANF and regulations of the Food Stamp Program. The commenter discussed a situation medical assistance programs. They Moreover, these methodologies, if where a foster care family is receiving believe the Department should leave it applied to the Food Stamp Program, food stamps for its household, which to the States to determine which could allow a greater number of includes a foster child with special particular types of self-employment individuals to qualify for benefits than needs. If the family decides to adopt the income are rare and erratic forms of would be the case if States had used a special needs child, once they adopt income and not worth the trouble to ask specific food stamp methodology. Self- him/her, the child will become part of about through application questions employed individuals must be found their household and the family will be and/or verification requirements. eligible for food stamp benefits through eligible for the federal title IV adoption Commenters also stated that if the the use of a food stamp methodology. assistance program. The commenter Department is determined to regulate in State agencies that believe there is an noted that under the proposed rule, the the area of self-employment income, it administrative and cost advantage for adoption assistance payments will should only require the counting of self- applying TANF or medical assistance count, which may result in the employment income that is the program methodologies for counting household facing a reduction or, more household’s primary source of support. self-employed income to the Food likely, termination of their food stamp The amount of income received from Stamp Program may present their case benefits. The commenter urged the some self-employment sources, such as to FNS through the certification waiver Department to examine the issue and garage sales and sale of blood plasma, is process. facilitate a change that will serve as an sometimes minimal and is not a regular A commenter asked if it was the incentive for foster care families to source of net income to the household. Department’s intent to say that no self- adopt special needs children and The Department does not see a need employment income can be excluded proposed a remedy. The commenter to clarify this point in the final rule. In under this provision. Currently, 7 CFR suggested the Department exempt part determining a household’s income for 273.9(b)(1) indicates that gross self- of the adoption assistance that the certification period, State agencies employment income is counted and 7 reimburses the family for special needs are instructed by current regulations at CFR 273.11(a)(2) allows for excluding of the child. 7 CFR 273.10(c)(1) to consider income some self-employed income due to In the preamble for the proposed rule, already received by the household allowable costs. The commenter stated the Department answered a specific during the certification period and that the Department’s proposal implies question regarding whether adoption or anticipate income that the household that gross self-employment income is foster care payments made to a and State agency are reasonably certain countable without regard for allowable household must be counted as income will be received during the certification costs. The commenter noted that if this if they are excluded for TANF or period. Thus, the Department contends is the Department’s intent, it is a major Medicaid purposes. The Department that State agencies should only count change and will exclude many from said that section 4102 of FSRIA self-employment income that at receiving food stamps. They also noted specifically requires that the State certification can be anticipated with that the Department did not propose to include benefits paid under title IV of reasonable certainty. Income from rare revise the regulations at 7 CFR the SSA as income for food stamp or erratic sources, like garage sales and 273.11(a)(2) and this regulation purposes. Title IV–E of the SSA the sale of blood plasma, does not meet continues to provide that the costs for authorizes federal payments for foster the standard of reasonable anticipation. making the self-employment income are care and adoption assistance. Any Another commenter stated that there excluded. benefits received by a food stamp is no need for a single uniform In developing the language for the household pursuant to a program definition of self-employment income proposed rule, the Department intended operated under title IV–E must be for food stamp purposes. Most States that States would count self- counted as income to the household. count self-employment income in their employment income just as they do The Department has no discretion to TANF programs but take a range of currently, with the exclusions permitted exempt adoption subsidies for families approaches in their TANF definitions. under 7 CFR 273.11(a)(2). The received under a title IV–E program.

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Therefore, the Department cannot employer with funds provided by a inconsistent with the goals of State exempt part of these subsidies as Federal, State or local government, the flexibility and program simplification. requested by the commenter. State agency must count those payments Current regulations at 7 CFR Another commenter stated that the as income for food stamp purposes. This 273.9(c)(10)(iii) require that VISTA proposed rule is unnecessarily rule would apply even if such payments payments be counted as income only if restrictive by limiting States’ discretion. would be excluded under the State the households applies for benefits after For example, by specifying that foster TANF or medical assistance program. joining the VISTA program. There is care and adoption payments must be This requirement would not apply to nothing in the FSRIA that indicates counted as income, the proposed rule payments which are excluded from current food stamp policy should be did not accommodate the broad range of income for the purposes of determining changed to exempt VISTA subsidies different purposes and funding streams food stamp eligibility under another from income for these applicants. for these payments. As noted by the provision of law. Therefore, the Department adopts in the commenter, portions or all of these Several commenters objected to this final rule the portion of proposed 7 CFR payments may be funded by State or section of the proposed rule. The 273.9(c)(19) pertaining to regular local programs, and not just under title commenters contend that requiring payments from a government source. IV–E, and may be based on a child’s States to count governmental payments, 5. Child Support Payments Made by a special needs beyond normal living even if the household receives these Non-Household Member expenses. Thus, the commenter believed funds from a non-government source, Section 4102 explicitly requires that that it should be within a State’s can be extremely complex and goes legally obligated child support discretion to exclude foster care or against the idea of program payments made to households be adoption subsidies paid by State or local simplification. For example, fuel funds counted as income. This requirement programs as income for the purposes of and similar utility assistance programs includes any portion of a household’s determining food stamp eligibility and may be available to assist low-income benefit amounts. child support payments that are passed- households to buy low-cost heating and through to the household under the The final rule does not give States cooking fuel or to pay utility bills. The discretion to exclude foster care or State’s TANF program. Therefore, the commenters noted that these programs adoption subsidies paid by a State or Department proposed that all child may be funded by a combination of local agency. The Congressional intent support payments made to a household money from State and local in the 2002 FSRIA was to ensure that be counted as income for food stamp governments, utility companies, and payments from a government source, purposes. voluntary contributions from individual such as foster care or adoption subsidies We received several comments about ratepayers. from a State or local agency, would not voluntary child support payments. A be excluded. Although it may be The Department gave careful couple of commenters agreed that possible that funding for adoption or consideration to these comments. State voluntary child support should not be foster care payments may come from agencies, the entities directly treated differently from court-ordered several funding sources, the legislation responsible for implementing food child support. However, they stated that specifically refers to payments from a stamp rules, did not comment on this the Department should explicitly government source. This would include subject. The silence of State agencies reassure States that they should not payments from a State or local leads us to believe that this may not be count voluntary child support payments government. Neither Title IV–E of the as serious a problem for State agencies received by a household as income SSA nor the Act addresses adoption or as the commenters believe. unless they are reasonably certain a foster care payments from a non- Nevertheless, to ensure the regulation is voluntary child support payment will be governmental source. Therefore, States understood, the final rule clarifies in 7 received in a month. The commenters have discretion in determining the CFR 273.9(c)(19) that States should believed that no quality control error or exclusion of such payments. The final count money paid through a private claim should result when an irregular rule at 7 CFR 273.9(c)(19) does not grant intermediary when it is clear that all the voluntary child support payment is State agencies the option to exempt any funding money comes from a received that the State did not budget portion of adoption and foster care government source. when determining the household’s payments that are paid through federal, In the preamble to the proposed rule, income. Moreover, they stated that State or local government funds. the Department provided another States need some guidance on the example of a regular payment from a treatment of these payments but the 4. Regular Payments From a government source—Volunteers in Department failed to provide such Government Source Service to America (VISTA) payments guidance in the proposed rule. The Section 4102 of FSRIA does not made under Title I of the Domestic Department disagrees with these exclude regular payments from a Volunteer Service Act of 1973. (42 comments. We discussed the issue of government source. To fulfill this U.S.C. 4950, et. seq.) A commenter legally obligated or voluntary child mandate, the Department proposed to stated that States should be able to support payments in the preamble to the add a new 7 CFR 273.9(c)(19). The decide whether or not they want to proposed rule. The Department proposed rule would require counting exclude VISTA payments for VISTA explained that voluntary child support direct payments from a government volunteers who apply for food stamps payments should not be treated more source as income to a household. In after joining VISTA. The commenter favorably than legally obligated addition, the proposed rule would also noted that the proposed policy is payments. Moreover, the Department require counting of indirect payments or inequitable because VISTA volunteers noted that there may be circumstances allowances from a government source who are already receiving food stamps in which voluntary child support that are paid to a household through an have these payments excluded but payments to a household are paid intermediary. For example, as stated in volunteers who apply for benefits after infrequently or irregularly. The the proposed rule, if a household is they become part of VISTA must have Department reminded State agencies participating in an on-the-job training their subsidy counted as income. The that infrequent and irregular income can program and is being paid by an commenter believed that this policy is be excludable under current regulations

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at 7 CFR 273.9(c)(2) if not in excess of Child Support Payments—7 CFR regulations at 7 CFR 273.9(d)(5), a $30 per quarter. State agencies are 273.9(c) and (d) household can receive a deduction only for legally obligated child support expected to apply appropriate food 1. State Option To Treat Child Support payments paid by a household member stamp policy and use their judgment in Payments as an Income Exclusion or to or for a non-household member, cases where a household receives Deduction voluntary child support payment. including payments made to a third Current rules at 7 CFR 273.9(d)(5) Therefore, the Department is adopting party on behalf of the non-household provide households with a deduction this provision in our final rule. member (vendor payments). No from income for legally obligated child deduction is allowed for any amount 6. Monies Withdrawn or Dividends support payments paid by a household that the household member is not Received by a Household From Trust member to or for a non-household legally obligated to pay. State agencies, Funds member, including vendor payments in consultation with the State IV–D made on behalf of the non-household agency, may determine what constitutes The Department proposed that State member. Section 4101 of FSRIA a legal obligation to pay child support agencies count monies withdrawn or amended Section 5(d) of the Act (7 under State law. dividends received by a household from U.S.C. 2014(d)) to add legally obligated The preamble for the proposed rule trust funds considered to be excludable child support payments made by a also stated that if State agencies provide resources under 7 CFR 273.8(e)(8). The household member to a non-household a household an exclusion for legally Department believes that trust fund member to the list of income exclusions. obligated child support payments rather It also amended Section 5(e) by disbursements may be of a significant than a deduction, households may reap removing existing paragraph (4), which amount and may be made on a regular the benefit of both. The proposed established the child support deduction, basis to a household. exclusion would cause the household to and inserting a new paragraph (4) giving have a lower gross income, making it A commenter expressed the view that State agencies the option of treating more likely that the household would trust fund disbursements are typically child support payments as an income meet the program’s monthly gross made for specific purposes, such as deduction rather than as an exclusion. medical or educational expenses. The In order to implement Section 4101, income limit and be eligible for benefits. commenter noted that if such the Department proposed to amend 7 In addition, the excluded payments disbursements are made for normal CFR 273.9 to add a new paragraph would not be counted as part of the living expenses, they are not excludable (c)(17) which would provide that legally household’s net income, in effect deducting the payments from income. A under 7 CFR 273.8(e)(8). In most cases, obligated child support payments be detailed discussion of this provision the household should be able to show excluded from household income. The follows. that trust fund money is not accessible, proposed paragraph (c)(17) would give is a non-recurring lump sum payment, State agencies the option to treat child 2. Order of Determining Deductions or is an excluded reimbursement. The support payments as an income deduction rather than an income Current rules at 7 CFR 273.10(e)(1) commenter stated that the final rule specify the order in which State should allow any State to exclude these exclusion, and included a reference to 7 CFR 273.9(d)(5) which contains existing agencies must subtract deductions from funds for food stamps, if it is willing to requirements for the child support income when calculating a household’s do so for TANF and medical assistance deduction. In the proposed rule, 7 CFR net income. Under the rules, the order eligibility. This would avoid the 273.9(d)(5) would be amended to of subtraction is as follows: First, the 20 burdensome and confusing process that reference a new 7 CFR 273.9(c)(17), and percent earned income deduction; the proposed rule imposes on States. would provide that if the State agency second, the standard deduction; third, The Department disagrees. As we chooses not to exclude legally obligated the excess medical deduction; fourth, stated in the proposed rule, trust fund child support payments from household dependent care deductions; fifth, the disbursements may be of a significant income, then it must provide eligible child support deduction; and finally the amount and may be made on a regular households with an income deduction excess shelter deduction (or homeless basis to a household. While the trust for those payments. Commenters shelter deduction for homeless account itself may not be accessible to generally supported this new option households). The excess shelter deduction is subtracted last because, a household, the household may still while noting that it may benefit only a pursuant to Section 5(e)(6) of the Act (7 receive a trust fund disbursement that is small number of households. However, commenters had several concerns U.S.C. 2014(e)(6)), households are accessible and available to them. The entitled to a deduction for monthly household must report this information. regarding the implementation of this option and its effect on other eligibility shelter costs that exceed 50 percent of It is prudent for State agencies to ask calculations which will be discussed in their monthly income after all other about trust income at certification and further detail below. The proposed rule program deductions have been allowed. recertification, and note the household’s would further amend 7 CFR 273.9(d)(5) Section 4101 of FSRIA requires that if answer. Even if the household receives to require State agencies that choose to the State agency opts to provide irregular trust disbursements, they must provide a deduction rather than an households a deduction for legally be reminded of their obligation to report exclusion to include a statement to that obligated child support payments rather any trust disbursements in conformance effect in their State plan of operation. than an exclusion, the deduction must with the household’s reporting The Department did not receive any be determined before computation of requirement. This portion of proposed 7 comments regarding this requirement so the excess shelter deduction. The CFR 273.9(c)(19) is adopted in the final we are adopting it as proposed. Department proposed to make a minor rule. Under the proposed rule, child change to current rules at 7 CFR support payments that qualify under the 273.10(e)(1)(i)(F) to indicate that existing regulations for the income treating legally obligated child support deduction would also qualify for the payments as a deduction is a State income exclusion. Under current option. The Department did not receive

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any specific comments about this gross income ($1,000) prior to the agency to rely on information collected provision so adopts it as proposed. exclusion to calculate the earned by the State’s CSE agency concerning Prior to the publication of the income deduction. payments made in prior months in lieu proposed rule, several State agencies According to the State Options of obtaining current information from asked the Department how a Report, published by FNS in June 2009, the household. household’s earned income deduction thirteen (13) States are complying with To implement Section 4101, the should be computed if the State agency the rule and have effectively added Department proposed to amend current grants an income exclusion for child legally obligated child support to their rules at 7 CFR 273.2(f)(1)(xii) to permit support payments rather than a list of exclusions. The remaining States State agencies, in determining a deduction. Under current rules at 7 CFR have opted to treat child support household’s legal obligation to pay child 273.9(d)(2), the earned income payments as an income deduction rather support, the amount of its obligation, deduction is equal to 20 percent of the than an exclusion. Most of the State and amounts the household has actually household’s gross earned income. Child agencies that apply child support as an paid, to rely solely on information support payments that are excluded exclusion have programmed their provided through its State’s CSE agency from income are subtracted from the computer system to handle this and not require further reporting or household’s gross income. Thus, under calculation. The caseworker simply verification by the household. This the current rules, if the State agency types in the data for the amount of child proposed option would only be provides the household an income support paid by the applicant and the available in the cases of households that exclusion for child support payments, system performs the computation for the pay their child support through their the earned income used to make child caseworker. Most State agencies have State CSE agency. support payments will not be part of the not had to provide any extensive The Department received a number of household’s gross income when the training to eligibility workers about this comments expressing concern with this State agency calculates the earned calculation because it is performed by proposed amendment. Most of the income deduction. their computer system. Although State comments involved the reliance by State The Department proposed to address agencies and other commenters have agencies on information received from this problem by amending current rules expressed concern over the complexity the State CSE agency and the method for at 7 CFR 273.9(d)(2) and 7 CFR of this formula, the Department adopts obtaining this information. Some 273.10(e)(1)(i)(B) to specify that in the amendment as proposed. Most State commenters did not completely determining the earned income agencies are computerized so they can understand the fact that the provision deduction, the State agency must count program their systems to handle the only applied to households who pay any earnings used to pay child support calculation. their child support through their State that were excluded from the One commenter noted that the CSE agency. They were concerned that household’s income in accordance with purpose of choosing the exclusion over the Department’s use of the word the child support exclusion at 7 CFR the deduction is to help a family ‘‘solely’’ would disadvantage individuals 273.9(c)(17). The Department asked become eligible for food stamps by with legal obligations who make interested parties for suggestions on reducing their countable income. They payments outside of the CSE system. other methods for ensuring that felt that it was inequitable to allow an However, the Department notes that the households receive the full earned earned income deduction on one type of rule clearly states that this provision income deduction when they receive an excluded income but not on other types. only applies to those households who exclusion for child support payments. The Department has considered this make payments through the State CSE While the Department received comment but adopts the change as agency. comments supporting the proposed proposed because it is consistent with Other commenters noted that the use amendment, several commenters Congress’s intent in the implementation of the word ‘‘solely’’ could be limiting expressed concern with the time of this option in the FSRIA. for individuals who make payments consuming calculations involved. Some through the State CSE agency but who thought it was going to be difficult to 3. State Option To Simplify the either contest the information provided train workers and administer a system Determination of Child Support by the CSE agency or need time to where the State agency needs to exclude Payments accommodate for the lapse between the payments from gross income to come up Current rules at 7 CFR 273.2(f)(1)(xii) date of the order and the time it is with an adjusted gross income and then require the State agency to verify, prior recorded into the State CSE system. add it back in to determine the earned to a household’s initial certification, the Commenters requested that the final income deduction. They felt this two household’s legal obligation to pay child rule allow for a corroboration of sources. tier approach was complex and error support, the amount of the obligation, One commenter also asked for prone. Some also addressed concern and the monthly amount of child clarification regarding procedures for an regarding time and cost factors support the household actually pays. obligor who has multiple child support associated with system implementation. The rules strongly encourage the State cases and for child support cases that One commenter proposed an example agency to obtain information regarding cross State boundaries. of a household with a monthly gross a household member’s child support The Department has considered these income of $1,000 who has $400 in child obligation and payments from Child comments and the final rule modifies support payments excluded. The Support Enforcement (CSE) agency the proposed language so that State commenter asked if the rule intends to automated data files. agencies will not rely on this take 20 percent of the total gross income Section 4101 of FSRIA amended information as their sole source of prior to the exclusion ($1,000) or 20 Section 5 of the Act (7 U.S.C. 2014) to verification. The final rule gives State percent of the countable gross income add a new paragraph (n) that directs the agencies the opportunity to rely on this ($600) in calculating the earned income Department to establish simplified information but it will not have to be deduction. The answer to this question procedures that State agencies, at their the sole source of verification for is that when a State agency utilizes the option, can use to determine the amount households who participate in the State child support exclusion, the State of child support paid by a household, CSE system. Additionally, the final rule agency shall take 20 percent of the total including procedures to allow the State contains language that will provide

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households with the opportunity to State’s computerized child support custody. They asked for clarification challenge information provided by the enforcement system must provide from the Department about how to State CSE agency. security to prevent unauthorized access handle these situations. They felt that it If an obligor has multiple child to, or use of, the data in the system. would be egregious to disregard a support cases, the payments from these Both the Child Support Enforcement deduction or exclusion because the cases should be combined to determine Act (42 U.S.C. 654a(f)(3)) and the payment is being made to a household the total obligation of the household. regulations governing the OCSE (45 CFR member and also require the household The removal of the requirement for State 307.13(a)) limit the accessibility of the to report the payment as income. agencies to rely solely on information Child Support Enforcement data to The proposed rule refers parties to the received from the State CSE agency agencies that are necessary to perform final rule implementing the child should eliminate any complication that the duties under the Child Support support deduction, published on could arise from cases that cross State Enforcement Act, the TANF program October 17, 1996, at 61 FR 54282 to find boundaries. However, under the and the Medicaid program. Therefore, information on what qualifies as a child regulations governing the Office of legally, the State agencies administering support payment for purposes of the Child Support Enforcement (OCSE) at the Food Stamp Program will have to income deduction and exclusion. That 45 CFR 303.7(a), State CSE agencies obtain authorization for the use of the rule amended 7 CFR 273.9(d)(5) to allow must establish an interstate central data in the State CSE system. The a deduction for child support payments registry responsible for receiving, Department adopts this requirement as to or for a non-household member. The distributing and responding to inquiries proposed. For those State agencies who rule does not permit a deduction if a on all incoming interstate CSE cases. are having difficulties in working with child support payment is made to a Therefore, any problems arising from their counterparts in the State CSE household member. However, if the interstate cases should be minimal and agency, the Department is willing to child and the payor move into the same do not need to be addressed in work with DHHS or OCSE to assist any household but the payor is still regulatory form for Food Stamp Program State that wants to take up this option obligated to make payments to a non- participants. and requests such assistance. household member due to an arrearage Several commenters stated that the Commenters asked the Department to or other circumstance, the payor is still FSRIA suggests that the Department address what procedures a State agency allowed a deduction or exclusion. The develop a number of approaches to should follow when a non-custodial proposed rule reflected this in the simplified reporting of a household’s parent declines to authorize the release language that allowed a deduction, and child support obligation. They felt that of CSE information to the local food now exclusion, ‘‘to or for a non- the single proposed approach, the use of stamp office. As stated above, the household member’’ and for ‘‘amounts CSE, was insufficient to satisfy the removal of the requirement for States to paid toward child support arrearages.’’ mandate of Congress. In the proposed rely solely on information provided by The proposed language addressed the rule, the Department asked for the State CSE agency should clarify any concerns of the commenters so there is suggestions as to other simplified issues that may arise for individuals no need for further clarification. The methods State agencies could employ to who make payments through the CSE Department adopts this amendment as determine the amount of legally agency but wish to provide alternative proposed. obligated child support payments made verification. The information provided The Department also asked for by households. A detailed discussion of by the individual must satisfy program suggestions from interested parties as to the proposals made by commenters is verification requirements. The language other simplified methods State agencies provided below. in the proposed rule would have could employ to determine the amount In order to allow the State’s CSE required State agencies that chose this of legally obligated child support agency to share information with the option to include a statement indicating payments made by households. In Food Stamp Program, the proposed rule that they have implemented the option addition to the suggestions discussed would have required State agencies in their State plan of operation. The above, commenters suggested taking the following this procedure to have Department adopts this change as opportunity to conform the treatment of households eligible for the exclusion or proposed since no comments regarding outgoing child support payments to that deduction sign a statement authorizing this requirement were received. The of deductible dependent care or medical the release of the household’s child Department also proposed to make costs. This would make them an support payment records to the State conforming amendments to 7 CFR optional change reporting item. They agency. Several commenters opposed 273.2(f)(8)(i)(A), and 7 CFR proposed the deletion, rather than the this proposed procedure saying that it 273.12(a)(1)(vi) and (a)(4). The amendment, of 7 CFR 273.12(a)(1)(vi). was unnecessary and burdensome. Department did not propose any Some commenters proposed the Some State agencies already have a changes to the monthly reporting and codification of a provision of a question system in place allowing local offices retrospective budgeting rules at 7 CFR and answer policy memorandum that access to CSE records without any 273.21 because under 7 CFR 273.21(h) the Department issued following the authorization. They asked the and (i) the State agency may determine passage of the FSRIA. That Department to omit this requirement what information must be reported on memorandum addressed the issue of a and leave the accessibility of this the monthly report and what household’s responsibility to report a information to be worked out between information must be verified. change in their child support obligation. the local food stamp office and CSE. In the proposed rule, the Department The memorandum clarifies that the One commenter suggested that getting a asked State agencies interested in requirement to report a change depends signature might not be enough if there implementing this proposed provision on the household’s reporting is no agreement between the food stamp whether there are any additional issues requirements. It provides general office and CSE. that the Department needs to address by guidance for procedures a State agency The Department proposed the regulation in order to make this an can utilize in setting forth these provision in this manner because under effective option for States. Commenters requirements. The guidance gives an the Child Support Enforcement Act and pointed out that issues may arise in example of a procedure that a State the regulations governing the OCSE, the instances of reunification or change in agency could use to address this issue.

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The alternative approach listed in the with a standard deduction. Section 4103 less than 8.31 percent. Therefore, memorandum states that an eligibility of FSRIA amended section 5(e)(1) of the commenters are requesting that the worker would provide each household Act to replace the fixed standard Department round up all fractional with a reporting threshold. This deduction with one that is adjusted results to ensure that no household is threshold would include the sum of the annually and that also varies by denied a standard deduction ‘‘equal to’’ monthly gross income limit for the household size. 8.31 percent of the net income limits. household and its child support Under the new provision, each The Department finds the comment exclusion amount and then direct the household applying for or receiving has merit and simplifies program household to report when its income food stamps in the 48 contiguous States, administration. Therefore, the final rule the District of Columbia, Hawaii, exceeds this limit. The memorandum automatically rounds up the 8.31 Alaska, and the U.S. Virgin Islands will also highlights that there are other percent calculation to the nearest whole receive a standard deduction that is alternatives for reporting a change but dollar. This ensures that households are equal to 8.31 percent of the Food Stamp does not go into details about these not denied a standard deduction ‘‘equal Program’s monthly net income for its alternatives. Commenters felt that any to’’ 8.31 percent. For example, if 8.31 household size, except for household other approach subjects child support to percent of the monthly net income limit sizes greater than six, which will receive less favorable treatment than other equals $146.34, the figure would be deductible expenses, contrary to the the same standard deduction as a 6- rounded up to a standard deduction of intent of the FSRIA. person household. Section 4103 also $147. While the FSRIA permits the requires that the standard deduction for Department to develop simplified any household not fall below the The Department also proposed that procedures for State agencies to standard deduction in effect for FY ineligible and disqualified members determine the amount of a household’s 2002. would not be included when child support obligation, it does not To implement Section 4103, the determining the household’s size for the speak to reporting changes in this Department adjusts the standard purpose of assigning a standard obligation. In general, child support deduction every October 1 by deduction to the household. This would obligations change due to an multiplying the Food Stamp Program’s be consistent with other regulatory unanticipated change in circumstances monthly net income limits for provisions that do not include ineligible that may occur during the certification household sizes one through six for the and disqualified members in their period. Given the small number of 48 contiguous States and the District of calculations, including assigning a households claiming this deduction, Columbia, Alaska, Hawaii, and the U.S. benefit amount. and the fact that changes in the amount Virgin Islands by .0831, and rounding While some commenters agreed that of the obligation do not have to be the result to the nearest whole dollar. If keeping this provision consistent with reported under simplified reporting, 0.5 or higher, the amount is rounded up other eligibility provisions that look at there should be little or no cost to the next highest dollar; if 0.49 or household composition would help in attributable to making this an optional lower, the amount is rounded down. If achieving the goal of program change reporting item. Therefore, the the result is less than the FY 2002 simplification, others felt that treating Department will make reporting changes standard deduction for any household some households as smaller than they in a household’s child support size, that household size will receive the actually are is inconsistent with the obligation an optional change reporting standard deduction in effect in FY 2002 FSRIA’s recognition that larger item. The final rule amends the for its geographic area. The proposed households have larger, inescapable language in newly redesignated 7 CFR rule contains a chart illustrating how costs. Additionally, commenters noted 273.12(a)(6) and other sections of the the standard deduction for FY 2003 was that Section 3(i) of the Food Stamp Act calculated for the 48 contiguous States rule to reflect this change. (7 U.S.C. 2012(i)) defines a household in Finally, commenters noted a and the District of Columbia. terms of food purchasing and numbering problem in the proposed Section 4103 requires that for Guam, preparation patterns, family rule. The rule proposed to insert new the standard deduction for household relationships, and living arrangements. material on child support in 7 CFR sizes one to six be equal to two times Under that definition, an individual 273.12(a)(4). The proposed rule did not the monthly net income standard times could be considered a member of the take into consideration the 8.31 percent. The same rules for household whether or not they are redesignation of 7 CFR 273.12(a)(4) as 7 households over six and the minimum eligible to receive food stamps. These CFR 273.12(a)(5) in the final change deduction amount indicated above commenters felt that the Department reporting regulation. The Department apply to applicants and current had no reason to deny households with appreciates the commenters calling this recipients in Guam. ineligible members the full standard error to our attention. The final rule Although some commenters felt that deduction, especially when it would adopts the changes proposed for 7 CFR final rule should maintain the proposed unfairly reduce a household’s food 273.12(a)(4) but inserts them into 7 CFR rounding rules for the standard stamp allotment. 273.12(a)(5) instead. Other provisions of deduction, others pointed out that the the final rule are renumbered rounding rules could lead to a The Department has considered these accordingly. calculation that is fractionally less than comments but we continue to believe 8.31 percent of the net income limit. that only eligible household members Standard Deduction—7 CFR 273.9(d)(1) They noted that FSRIA requires that should be included in the calculation As noted above, a household’s net households receive a standard for the standard deduction. Only income for food stamp purposes is its deduction equal to 8.31 percent of the eligible household members should be nonexcluded gross income minus any program’s net income limit. The receiving the benefit; for that reason deductions for which the household is provision in the proposed rule that they are the only ones considered in eligible. Section 5(e) of the Act (7 U.S.C. called for the Department to round determining the standard deduction 2014(e)) lists the six allowable down where the number of odd cents in amount. Therefore, the Department deductions. Section 5(e)(1) requires that the exact figure is less than 0.50, would adopts the language from the proposed the Department provide all households lead to a standard that is fractionally rule.

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Simplified Determination of Housing households who seek to claim actual One commenter suggested that States Costs—7 CFR 273.9(d)(6)(i) expenses or if the State agency should be given the option to allow Current rules at 7 CFR 273.9(d)(6)(i) determines that households with shelter expenses based on a standard provide that State agencies may develop extremely low shelter costs are such as project area or household size a homeless household shelter deduction ineligible for the deduction. It is instead of the current dollar for dollar to be used in place of the excess shelter necessary for the final rule to retain the deduction. This option would be similar deduction in determining the net provision about verification because to the Standard Utility Allowance (SUA) income of homeless households. Under households can still claim actual costs that is revised annually based on the rules, State agencies may set the and amended Section 5(e) of the Act current costs for residents. The Department cannot establish a homeless household shelter deduction still makes it permissible for State agencies to make households with standard shelter deduction because the at any amount up to a maximum of $143 extremely low shelter costs ineligible for Food Stamp Act does not authorize the per month. State agencies may make this deduction. However, current Department to develop such a households with extremely low shelter regulations clearly allow the State deduction. Under Section 5(e)(6) of the costs ineligible for the deduction. worker to give the deduction solely on Food Stamp Act, a household can only Homeless households with actual the basis of the applicant’s statement. obtain a shelter deduction if their shelter expenses that exceed their Commenters suggested that the monthly shelter costs exceed 50 percent State’s homeless household shelter Department has the latitude to allow of their monthly income. In order for a deduction can opt to receive the excess States to assume that all homeless caseworker to determine if the shelter deduction instead of the households have shelter expenses and household’s shelter costs meet this homeless household shelter deduction if wants the Department to provide the requirement those costs need to be their actual shelter costs are verified. homeless shelter deduction simply assessed. Therefore, a standard Section 4105 of FSRIA amended based on a household’s meeting the deduction cannot be used in Section 5(e) of the Act (7 U.S.C. 2014(e)) program definition of being homeless. determining whether or not a household to grant State agencies the option of One commenter noted that some States qualifies for a shelter deduction. providing homeless households with a do not require verification of expenses Another commenter suggested that monthly shelter deduction of $143 in for households to qualify for the the Department should have taken this lieu of providing them an excess shelter standard homeless shelter deduction. opportunity to review the desk guide for deduction. Current regulations at 7 CFR They felt that this provides simple eligibility workers and its underlying 273.9(d)(6)(i) already reflect most of the administration for the State and regulations to identify other requirements of Section 4105 of FSRIA. substantial benefit to households. complexities in the deduction that do The only difference between the current Although this is a good point, other not serve important purposes and can be rules and the requirements of Section households are required to provide eliminated without violating 4105 is that the current rules permit some evidence of shelter costs so the Congressional prohibitions. State agencies to develop their own Department believes that State agencies Commenters also urged the Department homeless household shelter deduction should be provided with the latitude to to further simplify the process to up to a maximum of $143 per month, ensure that households have some support low-wage workers’ ability to whereas Section 4105 mandates that the shelter costs before making a deduction. obtain assistance but failed to identify homeless household shelter deduction However, as stated above, the final rule ways to simplify existing procedures be $143 per month. relocates and amends the language of other than the proposed development of Commenters suggested that 7 CFR the provision to discourage State a standard shelter deduction. As stated 273.2(f)(2)(iii) could be read to require agencies from requiring verification above, the purpose of this request was homeless households to verify some from homeless households when it is to address issues that had rulemaking shelter costs in order to receive the old not necessary. authority and ask for specific and the new shelter deduction. They Although Section 4105 only addresses suggestions, not issue overall directives noted that the provision does not limit the homeless household shelter for the Department. Since commenters itself to cases where the homeless deduction, the Conference Report (H.R. did not provide this information to the family’s statements are questionable and Conf. Rep. No. 107–424, at 537–538 Department, the final rule adopts this the verification requirement largely (2002)) in its discussion of Section 4105, section as proposed. undercuts the goal of simplification. directs the Department to review current Simplified Standard Utility Commenters suggested deleting 7 CFR rules regarding allowable shelter costs Allowance—7 CFR 273.9(d)(6)(iii) 273.2(f)(2)(iii). The removal of and determine if, within existing verification requirements and proposed statutory authority, the Department Current rules at 7 CFR 273.9(d)(6)(iii) deletion of 7 CFR 273.2(f)(2)(iii) could make the rules less complicated provide State agencies the option of originates from a concern that eligibility and error prone for food stamp developing a SUA to be used in place workers may take it upon themselves to participants and eligibility workers. In of a household’s actual utility costs require verification from homeless response to this directive, the when determining the household’s households when it is not necessary. Department asked commenters to excess shelter expenses deduction. State This may lead to fewer households identify ways to further simplify agencies may develop an SUA for any receiving the homeless shelter existing procedures for determining allowable utility expense listed in the deduction. eligible shelter expenses. The reason regulations at 7 CFR 273.9(d)(6)(ii)(C). The Department has considered these that the Department asked for Allowable utility expenses listed in 7 comments. The final rule relocates 7 recommendations and suggestions for CFR 273.9(d)(6)(ii)(C) include the costs CFR 273.2(f)(2)(iii) from the provision simplification was to help identify of heating and cooling; electricity or fuel about verification of questionable program complexities so they could be used for purposes other than heating information to 7 CFR 273.2(f)(4) which addressed in future rulemaking. and cooling; water; sewerage; well and addresses sources of verification. The However, very few commenters septic tank installation and final rule contains language to reflect provided suggestions that would be maintenance; garbage collection; and that these sources of verification are for feasible under the current law. telephone. State agencies may establish

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separate SUAs for each utility, an SUA The proposed rule also addressed two for this clarification and if the that includes expenses for all allowable SUA-related issues. First, the Department decided to change this utilities including heating or cooling Department proposed a technical policy that it would be burdensome for costs, and a limited utility allowance correction to the title of 7 CFR the States, detrimental to recipients, and (LUA) which includes expenses for at 273.9(d)(6). The title to the section was decrease participation rates. Based on least two allowable utility costs. The inadvertently changed in the NCEP final the support for the first option, which LUA may not include heating or cooling rule from ‘‘shelter costs’’ to ‘‘standard does not allow States to prorate the SUA costs, except that if the State agency is utility allowance.’’ The Department for households with ineligible members, offering the LUA to public housing proposed to amend 7 CFR 273.9(d)(6) to the Department incorporates this option residents it may include excess heating restore the proper title. We did not into this final rule. or cooling costs incurred by such receive any comments on this change; One commenter noted that the residents. therefore, the final rule restores the proposed rule does not mention The current rules at 7 CFR proper title to 7 CFR 273.9(d)(6). ineligible students. That commenter 273.9(d)(6)(iii) implement Section Under the current rule, State agencies asserted that it is confusing to allow the 5(e)(7)(C) of the Act (7 U.S.C. follow different procedures for prorating entire utility allowance for all ineligible 2014(e)(7)(C)), which generally leaves it the SUA when the household includes members except students. Ineligible to the Department to develop an ineligible member. Some follow the members should include all individuals regulations relating to SUAs. Section rule at 7 CFR 273.11(c)(2)(iii) which who reside in the household and 5(e)(7)(C), however, does impose certain requires the proration of shelter purchase and prepare meals together but requirements on the use of SUAs. expenses if the ineligible member is are excluded from participation based Section 4104 of FSRIA amends Section billed for or pays the expense; others on regulations governing the Food 5(e)(7)(C) of the Act to simplify current follow the rule at 7 CFR Stamp Program. Under the current rules relating to the SUA when the State 273.9(d)(6)(iii)(F) which prohibits the regulations, students are not included as agency elects to make the SUA proration of the SUA when the household members; therefore the mandatory. First, Section 4104 allows household shares the expense with an Department did not have to specifically State agencies that elect to make the ineligible household member. Because mention them in the proposed rule. SUA mandatory to provide a SUA that the SUA is a component of shelter costs, One commenter proposed a third includes heating and cooling costs to State agencies have interpreted both sets option, to allow the full SUA when the residents of public housing units which of regulations as applying to the SUA. ineligible person pays only a portion of have central utility meters and which However, on their face, the regulations the utility bill and to prorate the SUA charge the households only for excess appear to conflict. when the ineligible person pays the heating or cooling costs. Second, it To resolve any confusion related to entire bill or is responsible for all eliminates the current requirement to prorating the SUA when ineligible expenses even if they are not paid. This prorate the SUA when a household members are present in the household, same commenter suggested that the shares the living quarters with others. the Department proposed two Department incorporate all three Therefore, if the State agency mandates alternative procedures and asked for options into the final rule and allow the use of SUAs, a household eligible comments on which procedure States to select the option that they want for an SUA that includes heating or commenters prefer. The Department to implement, giving States maximum cooling costs and lives and shares said it would incorporate the procedure flexibility. Due to the overwhelming heating or cooling expenses with others that gets the most support into the final support of the first option and the fact must receive the full SUA. rule. that this provision is meant to simplify The Department proposed to amend The first option allows State agencies the program, the final rule does not current regulations at 7 CFR to implement the Department’s original incorporate this third option. 273.9(d)(6)(iii) to incorporate the new intention and not prorate the SUA when Although the proposed rule did not requirements. Several State agencies a household contains an ineligible address the issue of the LUA or propose commented that they have implemented member. The second option requires any changes to the provision in the this option and it has simplified policy State agencies to prorate the SUA when current regulations governing this significantly. No one opposed the the ineligible member pays either part allowance, the Department received a implementation of this provision. or all of the expenses included in the significant number of comments asking However, one commenter noted that SUA. Under the latter option, the the Department to allow States to use current regulations require States to household would be entitled to the full the SUA for households that pay for update their SUAs annually to reflect SUA if the expenses were paid in their only one utility. They noted that the changes in energy costs. That entirety by eligible household members, proposed rule would continue to commenter wanted the final rule to even if they were billed to the ineligible prohibit States from using a LUA for clarify that this requirement applies to member. households that do not pay for heating mandatory as well as non-mandatory A significant majority of the or cooling and pay only one other utility SUAs. commenters believed that the SUA bill. States have to collect information The requirement for States to update should not be prorated for households on actual expenses instead. Therefore, their SUAs is based upon changes in with ineligible members for program States have to keep questions about energy costs, not on whether the SUA is simplification and benefit actual expenses on the application mandatory. The regulations already maximization. Field workers have a which undermines the purpose of the clarify that State agencies must review much better understanding of the SUA new law in simplifying the SUA. These their standards annually and make procedures when the full SUA is always commenters asked the Department to adjustments to reflect changes in energy allowed. Therefore, allowing the full eliminate this complexity and allow costs. Therefore, the Department does SUA decreases the error rate for State States to use the SUA for households not need to amend the current agencies. One commenter stated that the that pay for only one utility. regulation regarding updating the SUA regulations and Department policy One commenter noted that the and adopts this section of the proposed made it clear that States must not legislative history for the FSRIA rule as written. prorate the SUA so there was no need suggests that it was the intent of

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Congress to give States the option of agency and the participating simplified reporting system is efficient providing a utility allowance to households. One State agency even and maintains program integrity. households with only one utility bill so noted that reforms like simplified Commenters also suggested that FNS more eligible families would find it reporting, which alleviate the workload use this opportunity to correct a easier to get the help they need. That for caseworkers, are critical for an technical error in 7 CFR 273.12(a)(1)(v). commenter suggested that to deny the overstressed and understaffed State This section requires households to LUA to households who pay only one agency. However, this commenter was report when the value of its resources utility bill would be contrary to the concerned about additional equals or exceeds $2,000. The intent of Congress and should be requirements imposed by the proposed commenters noted that the provision corrected. rule, as were many commenters. fails to mention the $3,000 resource The Department notes that the current The Department has decided to make limit for households with an elderly or regulations allow States to develop an very few major changes to the language disabled member. Contrary to the belief individual standard for each type of contained in the proposed rule. This of the commenters, this was not a utility expense. About fifteen States decision is due in part to the success of technical error. The provision was currently have single utility standards 50 State agencies who have designed to give all households one in place for certain utilities including implemented expanded simplified threshold to adhere to for reporting the non-heat electric, cooking fuel, water/ reporting systems with terms similar to value of their resources. Therefore, the sewer and garbage. Since there is those in the proposed rule. These State Department will not amend this already a provision in the current agencies are operating these expanded provision. regulations that allow States to develop systems under the authority of waiver Under the proposed rule, a State single standards, there is no need to requests approved by the Department. agency that opts to utilize simplified amend the current rule. These systems have addressed most of reporting procedures would be required the potential adverse consequences to include in its State plan of operation State Option To Reduce Reporting proposed by commenters. a statement that it has implemented the Requirements—7 CFR 273.12(a)(1)(vii) One commentator expressed the belief option and a description of the types of Current regulations at 7 CFR that eliminating the requirement to households to whom the option applies. 273.12(a)(1)(vii) allow State agencies to report circumstances that impact a The Department did not receive any simplify reporting requirements for client’s eligibility and/or benefit levels comments specifically addressing this households with earned income who are is not in the best interests of the client provision so adopts the requirement as assigned certification periods of 6 or the taxpaying public. The same proposed. months or longer. State agencies may commenter, a State fraud investigator, 2. Households To Include Under a require such households to report only also expressed the belief that the rules Simplified Reporting System changes in income that result in their as proposed all but eliminate the ability gross monthly income exceeding 130 to pursue an intentional program Under the proposed rule, a State percent of the monthly poverty income violation and/or sanction a client with agency could include any household guideline (i.e., the program’s monthly the exception of an instance of the certified for at least 4 months within a gross income limit) for their household client’s failure to report having simplified reporting system, except size. Households with earned income exceeded certain income thresholds. households subject to monthly reporting certified for longer than 6 months must Although we understand the under 7 CFR 273.21 or quarterly submit an interim report at 6 months commenter’s concerns, simplified reporting under 7 CFR 273.12(a)(4). The that includes all of the items subject to reporting is based on a statutory statute does not provide the Department reporting under 7 CFR 273.12(a)(1)(i) mandate. Therefore, we do not have the authority to apply simplified reporting through (a)(1)(vi). Section 4109 of discretion to withhold implementation to households certified for less than 4 FSRIA amends Section 6(c)(1) of the Act of expanded simplified reporting or to months. The Department did not receive (7 U.S.C. 2015(c)(1)) to provide State rescind the current regulations that any comments regarding this specific agencies the option to extend simplified provide State agencies with the provision. Therefore, we are adopting reporting procedures from just simplified reporting option. this requirement as proposed. households with earnings to all food Additionally, the program allows State 3. Application of Simplified Reporting stamp households. In addition, Section agencies to ensure that participants are to Households Exempt From Periodic 4109 amends Section 6(c)(1) to provide not committing intentional program Reporting Requirements that State agencies may require violations. households that submit periodic reports, Participants in a simplified reporting Under the proposed rule, households in lieu of change reporting, to submit system are required to report changes at exempt from periodic reporting under such reports at least once every 6 least twice a year, once during their Section 6(c)(1)(A) of the Act, which months, but not more often than once a periodic report and then again at includes homeless households and month. recertification. At that time, the State migrant and seasonal farm workers, agency has the opportunity to scrutinize would be subject to simplified reporting 1. In General any changes in the household but would not be required to submit The Department proposed to move circumstances that may go unreported, periodic reports. The certification current regulations on simplified pursue any intentional program periods of such households would be at reporting from 7 CFR 273.12(a)(1)(vii) to violations and sanction clients, if least 4 months but not more than 6 7 CFR 273.12(a)(5). The Department also necessary. The goal of simplified months. Those that offered comments proposed to amend the current rules to reporting is to provide stable benefits to on this provision offered support. include several requirements that will households with minor fluctuations in However, the FCEA provided that be discussed in detail below. In general, the benefit amount. Additionally, the simplified reporting could be extended commenters expressed overall support simplified reporting option provides to all households. Therefore, in the final for the concept of simplified reporting; overall improvements in program regulatory provisions on simplified indicating that by reducing the reporting administration and reduces error rates. reporting, we are dropping all references burden it would benefit both the State The Department is satisfied that the to the exclusion of elderly, disabled,

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homeless, and migrant and seasonal somewhat confusing and suggests that a resulting in the reduction or termination farm worker households in simplified State may impose both a periodic report of benefits, the State agency shall send reporting systems in a subsequent and a recertification requirement on a an adequate notice, as defined in 7 CFR proposed rulemaking to implement household for the same month. They 271.2. The notice must be issued so that provisions of the FCEA. Although not asked that final rule clarify that States the household will receive it no later included in this preamble discussion, may not require a periodic report at than the time that its benefits are we note that commenters addressed recertification. normally received. If the household fails reporting issues involving these The final rule does not make this to provide sufficient information or households, particularly the elderly and clarification because it is highly verification regarding a deductible disabled households. Commenters asked unlikely that State agencies would expense, the State agency will not that the final rule include an option for engage in such a practice. Requiring terminate the household, but will the States to extend the simplified households to submit a periodic report instead determine the household’s reporting option to any participant in at recertification would burden a State benefits without regard to the their respective food stamp program, agency as much as a household, create deduction. regardless of the household’s gross confusion at recertification, and The Department also proposed to income. They felt this would allow for completely undermine the purpose of subject periodic reports to the a more consistent approach for clients simplified reporting. requirements of 7 CFR 273.12(b)(2), and workers alike. One commenter Several commenters suggested that which currently apply only to quarterly expressed the mistaken belief that because monthly, quarterly and reports. This provision requires that simplified reporting was limited to simplified reporting are forms of quarterly reports be written in clear, households with at least some countable periodic reporting, the procedures for simple language, and meet the income. Under the proposed rule, all quarterly and simplified reporting program’s bilingual requirements should be moved from 7 CFR 273.12 to households would have been included described in 7 CFR 272.4(b). It also 7 CFR 273.21. These commenters also in a simplified reporting system. requires that the quarterly report form expressed the opinion that the move However, as discussed above, it is not specify the date by which the State would provide for consistent client to the advantage of the State agency or agency must receive the form and the protection for all forms of periodic the participants to include certain consequences of submitting a late or households in a simplified reporting reporting. Although the commenters raise a incomplete form; the verification the system due to the rules governing their household must submit with the form; participation in the Food Stamp valid point, we still feel that it would be more appropriate to include the where the household can call for help Program. Therefore, this final rule in completing the form; and that it adopts the proposed language. procedures for simplified reporting in 7 CFR 273.12. First, not all households include a statement to be signed by a 4. Periodic Reports subject to simplified reporting would be member of the household indicating his Under the proposed rule, the State submitting periodic reports since State or her understanding that the agency could have required most agencies would have the option of information provided may result in a households subject to simplified utilizing four to six-month certification reduction or termination of benefits. reporting to submit periodic reports on periods rather than periodic reports. Several commenters felt that the their circumstances from once every 4 Second, certain households, such as proposed notice and form requirements months up to once every 6 months. The homeless and migrant farmworker for periodic reports would provide Department did not receive any households, would be included in a inadequate protections for households comments that specifically addressed simplified reporting system if they are that participate in simplified reporting. this provision. assigned a 4- to 6-month certification Commenters noted that in the 1980s, Under the proposed rule, the State period. Finally, 7 CFR 273.21 provides during the Reagan Administration, FNS agency would not have to require an alternative to the prospective recognized that periodic reporting periodic reporting by any household budgeting system provided in the systems carry the risk that some eligible certified for 6 months or less. However, preceding sections with a system that households may lose benefits for purely households certified for more than 6 provides for the use of retrospective procedural reasons. As a result, the months would be required to submit a information in calculating household agency built into its monthly reporting periodic report at least every 6 months. benefits. regulations provisions to ensure that the The periodic report form would request Under the language in the proposed potentially burdensome requirements of from the household information on any rule, if a household fails to submit a monthly reporting are implemented as of the changes in circumstances listed at complete periodic report or if it submits fairly as possible. The commenters felt 7 CFR 273.12(a)(1)(i) through (a)(1)(vii). a complete report that results in a that the Congress clearly intended to The periodic report form would be the reduction or termination of benefits, the extend monthly reporting protections to sole reporting requirement for any State agency should follow the same simplified reporting. They believed that information that is required to be procedure used for quarterly reporting Representative Stenholm specifically reported on the form, except that at 7 CFR 273.12(a)(4)(iii). Under the insisted that the monthly reporting households would be required to report quarterly reporting requirements, if a protections would apply to simplified when their monthly gross income household fails to file a complete report reporting in his floor statement on the exceeds the monthly gross income limit by the specified filing date, the State final bill. In his statement, which can be for its household size and able-bodied agency sends a notice to the household found in the Congressional Record at adults subject to the time limit of 7 CFR advising it of the missing or incomplete 148 Cong. Rec. H2044, Representative 273.24 would be required to report report no later than 10 days from the Stenholm stated that Congress assumed whenever their work hours fall below 20 date the report should have been that the Department’s rules for monthly hours per week, averaged monthly. submitted. If the household does not reporting would apply to the simplified Commenters felt that the proposed respond to the notice, the household’s reporting option. This would include language (regarding who must submit a participation is terminated. If the providing households with the periodic report and how frequently) was household files a complete report opportunity to supply missing

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information when submitting a late or information. They felt that since quality commenter felt that this rule needlessly incomplete semiannual report. control counts improper issuances but complicates simplified reporting and is The commenters believed that the not improper denials, States will set inconsistent with the current regulatory proposed rule failed to follow their systems to err on the side of provision that requires an ABAWD to Congressional intent because it does not caution and implement systems that report changes in work hours in extend these protections to all forms of operate in favor of automatic accordance with the reporting system to periodic reporting. They felt that it is suspensions. The commenters felt that which he is subject. The commenter critical that FNS extend the most the final rule should prohibit the interpreted this provision to permit an important monthly reporting procedures reduction or termination of benefits to a ABAWD subject to simplified reporting to all other forms of periodic reporting. household unless an affirmative to only report a loss of job on their They noted that this could be decision is made that the household is interim report or at recertification. The accomplished by a reference to the either ineligible or in default of its commenter asked that the Department appropriate sections of the monthly procedural obligations. clarify the ABAWD reporting reporting regulations at 7 CFR 273.21(c), The Department will not amend the requirement to ensure that these 273.21(h), 273.21(j), and 273.21(k). The regulations to accommodate this participants only report a change in commenters felt that the most important comment because a State agency will their hours as a part of the reporting monthly reporting procedures include not avoid quality control or fiscal system to which they are subjected, and using: (1) Forms and processes that sanctions by suspending or terminating no more. This same commenter also participants can understand; (2) benefits due to the untimely processing asked that the Department eliminate the procedures for missing or incomplete of a periodic report. In assessing a case additional ABAWD reporting reports that do not penalize households for quality control purposes, the requirement for those on quarterly that may be attempting to comply; and reviewer conducts an analysis of all reporting at 7 CFR 273.12(a)(4)(iv). We (3) procedures for issuing benefits that variances in elements of eligibility and disagree with the commenter and adopt allow for timely issuance. The basis of issuance. If the benefits of a the language as proposed. First, we commenters provided a detailed list of household are suspended, the case may believe that compliance with the the citations and provisions that they still be selected for quality control ABAWD work requirement is a felt should be referenced. review. State agencies are expected to condition of eligibility, and, as such, The Department agrees with the basic process reports in a timely manner and must be reported as soon as the premise of these comments. The final when they fail to accomplish this goal, household member’s hours of work rule modifies the proposed language to they may be sanctioned accordingly. change. Second, we wish to note that incorporate the procedural protections Benefits shall not be terminated due to the language in 7 CFR the Department feels are necessary to an untimely processing of a periodic 273.12(a)(5)(iii)(E) of the final rule (the provide protections for households report but a suspension will help avoid phrase ‘‘as part of the reporting system participating in simplified reporting. making an overpayment or an to which they are subject’’) was intended Several of the procedures applicable to underpayment to the household. to harmonize reporting requirements for a monthly reporting system are not One commenter noted that under the all households containing ABAWDs. applicable to simplified reporting. proposed rule, a State agency would be The Department initially added the Additionally, several of the procedures allowed to elect to combine a notice of phrase to the regulations at a time when that are listed in these sections are a missing or incomplete report with a households were either subject to either provided under this rule or are notice of termination. Should a State change reporting under 7 CFR 273.12(a) contained within the current regulations agency make this election, it is not clear or monthly reporting under 7 CFR in a manner that is applicable to the how long a household has to respond to 273.21. We determined that a consistent provisions of 7 CFR 273.12. For the notice and be reinstated. The reporting standard should apply to these example, 7 CFR 273.12 contains Department proposed that if a participants because the ABAWD work provisions regarding processing reports, household fails to complete a report by requirement is an explicit condition of issuing notices, the timely issuance of a specified filing date, the State agency eligibility and up to 6 months may benefits and consequences for would then send a notice to the elapse before a household may be incomplete filing as they relate to household advising it of the missing or required to report a change in income. various changes. Since the rules incomplete report no later than 10 days governing periodic, quarterly, change from the date the report should have 5. Reporting When Income Exceeds and monthly reporting vary, the been submitted. If the household does Gross Income Limit for Household Size regulations need to contain provisions not respond to that notice, then the Under the language in the proposed consistent with each type of reporting household’s participation would be rule, households subject to simplified system. Therefore, the Department has terminated. The language in the reporting would be required to report applied those procedures that it feels are proposed rule would have allowed State when their monthly gross income necessary to provide protection to agencies to combine the notice of a exceeds the monthly gross income limit participants while maintaining the missing or incomplete report with the for their household size. Households overall principles of simplification. adequate notice termination. As stated would be required to report only if their Commenters also asked that the above, the final rule amends the income exceeds the monthly gross regulations clarify that if a household language in the proposed rule to include income limit for the household size that files a report on time, its benefits may some procedural protections for existed at the time of the household’s not be terminated simply because the households participating in simplified most recent certification or State agency fails to process the report. reporting. recertification. The Department did They pointed out that some computer One commenter disagreed with the receive support for this provision. systems may automatically terminate requirement that all able-bodied adults Commenters noted that under the benefits if an eligibility worker does not without dependants (ABAWDs) report current rules, State agencies take process a periodic report, even if the as soon as their work hours go below 20 different approaches to these reporting household filed the report on time and hours per week if they are in a requirements. Some agencies use the it contained all of the necessary simplified reporting system. The income limit for the household size at

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the time of the initial certification while proposed language at 7 CFR household size at the initial eligibility others use the household size at the 273.12(a)(5)(v) to require State agencies determination, they will continue to do time of the report. These commenters to act in accordance with 7 CFR so for this reporting requirement. believe that the proposed language 273.12(c) when acting on a household 6. Acting on Changes Outside of the would resolve this confusion by report that its gross monthly income Periodic Report requiring State agencies to use the exceeds the gross monthly income limit income limit for the household size at for its household size. The Department proposed to give the the time of their initial certification. The These commenters were concerned State agency two options for acting on commenters noted that this change is that State agencies may issue a Notice changes in household circumstances easier for households to understand. It of Adverse Action (NOAA) to reported outside the periodic report allows local offices to give households households experiencing a temporary (other than changes in monthly gross one figure, and explain that if the increase in their income which would income that exceed the monthly gross household income goes over this set normally not result in ineligibility. This income limit for the household’s size). figure then the household needs to could result in a decrease or termination First, the State agency would be allowed report to the local office. of benefits if the household fails to to follow current procedures at 7 CFR Although commenters provided clarify that the increase was only 273.12(a)(1)(vii)(A). Those rules overall support, they did have some temporary. Therefore, they asked the generally require that the State agency issues with the proposed regulatory Department to remind States that it is only act on changes that a household language. Some felt that the proposed inappropriate to routinely issue a reports outside its periodic report if the regulatory language was incomplete NOAA in response to a report that the changes would increase the household’s because virtually all States have some household’s income has exceeded the benefits. Other than increases in income participating households with a gross gross income limit. In many cases, that result in income exceeding the income in excess of the 130 percent further information is needed to monthly gross income limit, the State threshold, including elderly and determine the appropriate course of agency may only act on changes that disabled households with earned action. would decrease benefits if the change, income or households who are While we agree that, in certain cases, reported by the household or by another categorically eligible. The commenters the State agency should follow-up on source, is verified upon receipt or is a asked the Department to clarify that reported changes to ensure that the change in the household’s public States may use simplified reporting for household’s eligibility would actually assistance or general assistance grant. these households and articulate that be affected, we fail to see why there is Second, the State agency would be States may set their reporting threshold a need to elaborate on this in the allowed to act on all reported client to equal the Program’s gross income regulatory language. A similar situation changes, regardless of whether such limit that triggers categorical eligibility. currently exists with respect to change changes increase or decrease the They felt that this requirement could reporting and, for the most part, States household’s benefits. Following prohibit States from extending have not experienced problems in implementation of simplified reporting simplified reporting to these determining when a change is in the NCEP Rule, the Department households. temporary or when it would actually approved a number of waivers The Department does not see the need affect the household’s eligibility. requesting this latter procedure. To to amend the proposed regulatory One commenter, a State agency, eliminate the need to approve future language to accommodate the few expressed the opinion that requiring waivers, the Department proposed to households who may fall under this households to report when income incorporate the procedure as an option scenario. The Department has already exceeds 130 percent of the federal in the regulations. issued guidance that leaves the poverty level does not work well for While the proposed provision treatment of these households up to the households with an ineligible providing State agencies the option to States. Because these households are not noncitizen. In this instance, the State act on all changes did receive support, subject to the gross income guidelines, agency prorates income according to the several commenters felt that this option they would not be subject to this income rules at 7 CFR 273.11(c)(3). Because could adversely impact millions of food threshold. Therefore, the guidance determining the countable gross income stamp households. Most of the concerns issued by the Department suggests that for households with ineligible members lay with the possibility that State once households report going over the can be complex, the commenter implied agencies would act on changes reported 130 percent threshold, their reporting that it may be difficult to implement to other benefit programs. This will be requirement is met and States need not this reporting requirement for discussed in detail below. However, require further reporting. This practice households with ineligible members. some commenters also had concerns will be easier to administer than Since this income limit is applicable because this proposed option would throwing off an entire system for a few to most households, except elderly or allow States to reduce benefits and limit households for whom this reporting disabled households, the final rule also food stamp participation which is threshold would apply. includes this reporting requirement. contrary to the intent of simplified Commenters also stated that the Under the current rules at 7 CFR reporting. As stated above, the proposed language for this requirement 273.11(c)(3), State agencies who prorate Department incorporated this provision was confusing because the language did income must elect one State-wide into the proposed rule to further not specify what action the State agency option for determining the eligibility simplify reporting requirements. Several should take. The commenters noted that and benefit level of households with State agencies are currently by contrast, the proposed rule at 7 CFR ineligible aliens. The State agency implementing this option successfully 273.12(a)(5)(v)(A) would instruct State should continue to follow the same under waivers with it having a minimal agencies to act in accordance with 7 formula for determining whether the impact on limiting participation. CFR 273.12(c) when they receive income of the household has exceeded Several commenters expressed the information that the household was not the 130 percent threshold. For example, opinion that allowing State agencies to required to report. Commenters felt that if the State agency excludes the act on all changes will reduce the the final regulation should amend the ineligible members for determining advantage of using simplified reporting

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because it will not reduce the workload. otherwise subject to the simplified and we anticipate that only States with While the Department encourages State reporting requirements. The Department automated systems designed to agencies to limit the action it takes on does not include this prohibition in the implement changes in multiple changes reported in a simplified final rule because the primary purpose programs simultaneously would utilize reporting system, the Department also of the simplified reporting option under the option. Therefore, the time understands that the Food Stamp Section 4109 of FSRIA is to increase consuming, complex formula will be Program is not operated in a vacuum. State flexibility and decrease handled by a computer system, not the Therefore, State agencies need a administrative burden. eligibility worker. Additionally, if a common automated system to Commenters also felt that the State agency needs to verify information effectively operate all of their benefit Department went beyond the and the other program has more programs. To simplify these automated Congressional intent by including an stringent reporting requirements, the systems, it is easier for an eligibility option for making adjustments based on information provided for that program worker to enter a change into the system reports made to other assistance will satisfy the reporting requirements programs. The commenters point out and allow the system to process the for the Food Stamp Program. necessary calculations and issue the that the statutory language governing proper notices as a result of those simplified reporting expressly limits As stated above, in the last several calculations for all benefit programs reporting to circumstances in which the years, the Department has approved a rather than determine the impact of the household’s benefit exceeds the gross number of waivers allowing States to act change on each individual benefit income limit. Congress did not include on all changes reported to other program. The Department encourages a provision for benefits to be adjusted assistance programs, primarily because State agencies to harmonize their based on information provided to these States utilize multi-program systems to allow this option to reach its another program. automated systems that simultaneously full potential. However, we cannot The reason why the Department implement changes in all of the State- require State agencies to perform such includes this provision as an option is administered assistance programs, an act and, as stated above, the success to assist State agencies that have multi- including the Food Stamp Program. of this option for State agencies program computer systems. This option Although participating households may currently initiating it under a waiver provides simplification to those benefit from the delayed demonstrates that it should be agencies because they do not have to implementation of changes that would maintained in this final rule. adjust their computer systems to reduce their benefits, this benefit to a account for changes reported to the 7. Acting on Changes That a Household few participating households is Food Stamp Program and those reported outweighed by the overall increase in Reports to Another Public Assistance to other benefit programs. It also assists Program administrative efficiency for the State households because they do not have to agencies. Additionally, households have Under the proposed rule, State remember the various reporting protection because before making a agencies that choose to act on all requirements for each assistance reduction in benefits, State agencies reported changes would not be required program and can make one report that must follow the advance notice to act on changes that a household will impact all of their benefits. procedures of 7 CFR 273.12(c)(2). These reports for another public assistance Additionally, commenters expressed program when the change does not concern with the State option to act on procedures enable households to contest trigger action in that other program but changes reported to other programs, their benefit reduction and continue would decrease the household’s food based on the belief that the option receiving benefits. stamp benefit. For example, if a would add administrative complexity to Commenters also asked the household receiving Medicaid as well as the simplified reporting system. One Department to define what it means to food stamps reports an increase in commenter pointed out that, in their ‘‘trigger an action in another program.’’ income to its Medicaid office that it is State, eligibility workers manage several Apparently they were concerned that not required to report for food stamp programs for the same client. In a most changes reported to other purposes (i.e., the income does not push situation like that, the caseworker has to programs would trigger an action in the the household over the monthly gross first determine what program the client other program. Therefore, the State income limit for its household size), the is reporting the change for, then make agency would have to take action in the State agency would not have to reduce adjustments based on the impact that food stamp case for almost all of the the household’s food stamp benefit if the change has on the other program’s changes reported to other programs. the income change would not trigger a benefits and the potential change it may The intent of this provision is to give change in the household’s Medicaid have on the client’s food stamp benefits. eligibility or benefits. This provision The commenters felt that this would States the ability to develop a simplified was proposed to relieve State agencies be very complex and time consuming reporting system that would meet the that choose to act on all reported for eligibility workers in addition to needs of their multi-program eligibility changes from the burden of acting on being error prone. They asked that the system. The Department is allowing the reports required by another public Department allow them to act on State agencies, in their policies, to assistance program that do not trigger changes reported to another program if define what it means to ‘‘trigger an action in that other program and would it is verified by the other program. action in another program.’’ State not increase the household’s food stamp Commenters also asked that the final agencies are required to have clear, benefit. rule include exemptions for follow-up uniform rules on what changes they The Department received several requirements for simplified reporters should act on and what changes they comments on this provision. First, who have joint benefits with another should not act on. The State agency commenters suggested that the program that has more stringent cannot leave it up to the eligibility Department prohibit State agencies from reporting requirements. worker to determine how to define the acting on changes reported to other We wish to emphasize that allowing ‘‘triggers’’; the policy needs to be programs that would result in a decrease a State agency to utilize information implemented in their Statewide policies in benefits if the changes are not reported to other programs is an option and procedures.

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8. Using the Request for Contact for Commenters felt that this outcome determine its monthly net income. A Verification of Changes That Are Not clearly contravenes the intent of household’s eligibility for and the Subject to Mandatory Reporting simplified reporting. The system was amount of a deduction are established at In cases involving changes reported to intended to reduce paperwork and the household’s certification. Current another program, issues of verification decrease the number of households who rules require a participating household arise because the requirements for the fall out of the Food Stamp Program to report certain changes in various benefit programs differ. because they do not respond to a RFC. circumstances that occur during the Although it would be ideal for all Commenters expressed the belief that as certification period. These rules vary benefit programs to develop similar the result of quality control pressure depending on the reporting system verification requirements, State agencies and the need to respond to unverified utilized for the household. Some of the do not have the authority to develop reports for other programs, simplified changes that must be reported may their own, uniform verification reporting has been reduced to a version affect a household’s deductions. of change reporting. Section 4106 of FSRIA amends requirements. Under the current and Although the Department does not Section 5(f)(1) of the Act (7 U.S.C. proposed regulations, States are agree with the overall principle of 2014(f)(1)) to provide State agencies the permitted to pursue clarification and utilizing the RFC process to obtain option of disregarding, until a verification of reported changes that additional verification in a simplified household’s next recertification, any may be unclear to the caseworker. reporting system, we need to provide changes that affect the amount of Commenters expressed concern over the the State agencies with the flexibility to deductions for which a household is use of the Request for Contact (RFC), request verification of reported eligible. In other words, if a household specifically it’s used to obtain information that they may deem reports a change in circumstances that clarification of information not subject questionable. Under the current would change a deduction amount or to mandatory reporting in a State’s regulations, State agencies should only the household’s eligibility for the simplified reporting system. Under resort to the RFC process to obtain deduction, the State agency may simplified reporting, most changes do information about changes where they disregard the change and continue to not need to be reported between reviews cannot readily determine the effect of provide the deduction amount that was or reports. As discussed above, if a the change on the household’s benefit established at certification until the household reports information pursuant amount. Therefore, the Department household’s next recertification, when it to the reporting requirements in another encourages State agencies to only resort would have to amend the deduction to program, such as Medicaid or TANF, to this process when they deem reflect the household’s then current current rules often require (and the information to be questionable. circumstances. However, section 4106 proposed rule would require) the However, as stated above, we need to requires the State agency to act on two caseworker to evaluate the report for its allow States to utilize this process for types of reported changes that affect impact on the household’s food stamp information that they deem unclear. deductions. First, the State agency must benefits. Therefore, we will not amend the act on any change in a household’s Commenters felt that the most client- language from the proposed rule to excess shelter cost stemming from a friendly approach would be to follow accommodate this comment and adopt change in residence. Second, the State the existing procedures at 7 CFR this language as proposed. agency must act on changes in earned 273.12(c)(1) and (c)(2). Using these Commenters noted that the income in accordance with regulations rules, the State would send a food stamp Congressional intent in crafting established by the Department. request for verification if the household simplified reporting was to establish a The Department proposed to amend reports a change that would lead to an 6-month benefit freeze. The only current regulations at 7 CFR 273.12(c) to increase in benefits. If the household exception was to require households to comply with the provisions of Section fails to respond to the request for report if their income exceeds 130 4106 of FSRIA discussed above. To verification, it would forfeit the benefit percent of the federal poverty limit. The provide State agencies with maximum increase but would not lose eligibility. commenters felt that by requiring States flexibility, the Department proposed If the change suggests a decrease in to seek additional verification from that State agencies be permitted to benefits, but not ineligibility, the State households that report to other ignore changes that affect deductions would send a Notice of Adverse Action programs, the Department is suggesting that are reported by the household and (NOAA) informing the household that that Congress intended to single out changes that the State agency learns benefits would be reduced unless the these households who comply with from a third party. However, the State household disagrees. If the household other program requirements and subject agency would continue to be required to fails to respond to this notice, the them to additional verification act on changes in earned income and caseworker would reduce the benefits requirements. This results in putting changes in shelter costs arising from a without terminating the household. their case at risk. As stated above, the change in residence. Commenters also noted that one of the Department discourages State agencies Commenters requested that the reasons for the use of the RFC process from utilizing this process unless they Department clarify that whenever the set out in 7 CFR 273.12(c)(3) is that it feel that the information provided is too State recomputed the household’s provides States with better quality unclear for the State agency to earned income for any reason, it should control protection because there is no determine the effect of the change on adjust the household’s earned income risk that a quality control reviewer will the household’s benefit level. deduction to be 20 percent of the new question the caseworker’s decision to amount. The Department addressed this freeze or adjust benefits without Simplified Determination of in the proposed rule by stating that it is verification. Unfortunately, if the Deductions—7 CFR 273.12(c) retaining the current rules in the area of household fails to respond to the RFC, Current rules at 7 CFR 273.9(d) making appropriate changes to the it will be terminated from the Food provide households with six income household’s deductions when there is a Stamp Program. This is true even when deductions. The deductions are reported change in earned income. This the household is eligible for a benefit subtracted from a household’s non- would include adjusting the increase based on the reported change. excluded monthly gross income to household’s earned income deduction

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to be 20 percent of the new amount. The As stated above, the Department changes that would increase a Department does not believe that there believes that although shelter costs are deduction would increase program costs is a need for further clarification in the not listed among the traditional beyond what was anticipated when the final rule so adopts this change as mandatory verification requirements, a provision was enacted. proposed. State agency may elect to verify this Commenters supported this provision Several commenters supported the information if it is questionable. because it will simplify program provision in the proposed rule that However, they should not close a case administration. However, one would permit States to ignore changes for failure to verify. Instead, they should commenter stated that the rigidity of the that affect deductions because it would recalculate the benefit amount without proposed rule in this area is not ease administrative burden. However, the deductible expense. consistent with the rule’s other commenters asked the Department to Another commenter asked that the provisions and the intent of FSRIA to clarify what procedures States should final rule make it explicit that State provide State flexibility. The commenter follow when a household reports a agencies are not required to change the asked the Department to provide State change in address but does not report or shelter deduction of households with agencies the flexibility to act only on verify the shelter costs associated with unreported changes in address to avoid changes that would increase a the new residence. The commenters inappropriate attribution of claims and household’s benefit. As stated above, believed that if a State opts to ignore quality control errors. The Department the Department believes such a course changes that affect deductions and a adopts the change as proposed and does of action is untenable. The impact of household just reports a new address, not amend current regulatory language this provision is so minimal and so few the household has no obligation to for two reasons. First, the regulations commenters opposed the provision that report a change in shelter costs. already require State agencies to change the Department adopts this proposed Under current program guidelines, if the shelter deduction for change amendment as final based on the a household reports a change in reporting households but not for rationale set forth in the proposed rule. residence but fails to report the simplified reporting households. Another commenter suggested that associated shelter costs those costs may Second, the regulations specifically the Department make this provision be removed from the household budget. state that required change in shelter consistent with simplified reporting Regardless of any verification expenses would result from a reported rules by requiring States to act on requirements, if a household fails to change in residence. changes only if they are verified upon report a change in shelter costs and Under the proposed rule, a State receipt. Under simplified reporting, the these costs have changed due to a agency would have the option of verified upon receipt rule applies to reported change in residence, it is ignoring changes (other than changes in changes that decrease benefits. Since inappropriate to continue to allow a earned income and changes in shelter this provision differs in that we are deduction for the former amount. With costs related to a change in residence) discussing changes that would increase regard to any potential verification for all deductions or for any particular or decrease benefits, the rules will necessary for clarification, if a State deduction. Commenters noted that differ. Therefore, the Department rejects agency has elected to verify these costs, allowing State agencies to disregard the commenter’s suggestion and adopts it is also inappropriate to continue to reported changes in deductions would the language as proposed. allow a deduction for the former avoid client errors, reduce paperwork The Department also proposed to amount. However, if a State agency opts and be beneficial to the local offices include in the final regulation one of to verify this deductible expense, they since customers would feel better served two potential limitations on the need to advise the household of when they do not have to constantly provisions that would protect additional verification requirements and report changes to the local office. households: (1) Requiring State agencies state that failure to provide verification However, commenters also noted that if that take this option to act on reported shall result in a recalculation of their a State takes the option to freeze changes in expenses that exceed a benefits without the deduction. This deductions, denying households the certain dollar threshold; or (2) requiring final rule amends the appropriate deductions for which they are newly State agencies that take this option to regulatory language to clarify this eligible could involve a much more act on changes that affect deductions procedure. radical benefit reduction than anything after the 6th month for households that Additionally, commenters noted that Congress intended. As a result of these are certified for 12 months. The sending a household a RFC requiring comments, the final rule requires States Department asked for opinions on these the household to submit shelter expense who choose to freeze deductions to restrictions in addition to suggestions information when it reports a change in allow households to claim deductions for reducing their potentially harmful residence is inappropriate because the for which they become newly eligible effect. consequence of the household’s failure during their certification period. One commenter supported the to respond would be closing the case. It The State agency may also ignore limitation of requiring State agencies to was suggested that a better approach changes in deductions for certain act on changes that affect deductions would be for the food stamp office to categories of households while acting on after the 6th month for households who send the household a notice stating that changes in those same deductions for are certified for 12 months. They noted its allotment will be recalculated other types of households. The that this would be relatively easy for a without the shelter deduction unless the Department proposed that a State State agency to administer given the household provides verification of its agency cannot act on changes in only requirement that certain households new shelter expenses within a specified one direction. If the State agency need to file a periodic report after 6 period. The notice would make it clear chooses to act on changes that affect a months. Another commenter supported that the household does not need to deduction, then it must act on both the requirement that States act on wait until it makes its first regular changes that increase the deduction and changes that exceed a certain dollar utility or rental payments to contact the changes that decrease the deduction. threshold while noting that they were food stamp office with verification, as Acting only on changes that would unsure that either limitation would alternative forms of verification can be decrease a deduction would unfairly adequately prevent the potential accepted. harm households, while acting only on hardship caused by freezing all

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deductions. Other commenters were budgeted households, the State agency to this provision in other sections of the opposed to both limitations stating that may not disregard the effect of reported regulations. each one would unnecessarily changes in earned income and changes A. Households Who Are Eligible complicate program administration and in shelter costs related to a change in defeat the purpose of simplification. It residence. The Department did not The Department proposed to amend was suggested that States be permitted receive any comments specific to this the current regulations at 7 CFR to act only on reported and verified provision so we are adopting the 273.12(f)(4) by eliminating the changes that result in an increase in language as proposed. requirement that transitional benefits be deductions. None of the commenters provided, at a minimum, to all The Department also proposed to households with earnings who leave provided viable alternatives to the modify current rules at 7 CFR options listed by the Department. The TANF. In addition to households 273.12(b)(1) and (b)(2) and 7 CFR disqualified by statute, the Department Department has considered these 273.21(h)(2) to require the State agency comments and the final rule proposed to give State agencies to give notice in all change, periodic, unqualified authority to designate the incorporates a provision that requires and monthly report forms if it intends State agencies to act on changes that categories of households eligible for to postpone changing deductions until affect deductions after the 6th month for transitional benefits. the household’s next recertification. The households who are certified for 12 The proposed rule would have given Department did not receive any months. The Department also proposed State agencies the option to provide comments specific to this provision, so a limitation on the State agency option transitional benefits to formerly mixed we are adopting the change as proposed. to disregard reported changes that affect TANF households as well as households deductions for households assigned 24- Transitional Food Stamps for Families where all members received TANF. A month certification periods. Under Moving From Welfare—7 CFR mixed TANF household is one in which current regulations at 7 CFR 273.12(f)(4) only some members were receiving 273.10(f)(1), State agencies may assign TANF. Commenters supported this certification periods of up to 24 months 1. Transitional Benefit Program provision because it provides States for households in which all adult Summary with needed flexibility. The Department members are elderly or disabled. adopts this amendment as proposed. Current regulations at 7 CFR Section 3(c) of the Act (7 U.S.C. 2012(c)) 273.12(f)(4) provide State agencies the B. Households Who Are Ineligible and the regulations at 7 CFR 273.10(f)(1) option to offer transitional food stamp require the State agency to have at least Section 4115 modified the types of benefits to households leaving the one contact every 12 months with households who are ineligible for TANF program. Transitional benefits elderly and disabled households transitional benefits. The Department ensure that such households can certified for 24 months. proposed to amend 7 CFR 273.12(f)(4) to The Department proposed that the continue to meet their nutritional needs update the list of households that are State agency act on changes affecting as they adjust to the loss of cash ineligible for transitional benefits to deductions that are reported by these assistance. The Department adopted the reflect the requirements of Section 4115. households during the first 12 months transitional benefit option in the NCEP Because Section 4115 refers to ineligible of their certification period at the final rule at 65 FR 70134. The option households rather than ineligible required 12-month contact. Changes was not specifically authorized by household members, the Department reported during the second 12 months statute, but was developed in response interpreted this provision as applying could be disregarded until the to comments received on the NCEP only when the entire household is household’s next recertification. Most proposed rule. Interested parties may ineligible under Section 6 of the Act. A commenters supported this provision refer to the preamble of the NCEP final household with an ineligible member because it provides a good compromise rule and 7 CFR 273.12(f)(4) for a would be still eligible for transitional between protecting these households complete description of the regulatory benefits if the remaining members of the from the adverse effects of an increase scheme. Section 4115 of FSRIA amends household are eligible for food stamps. in household expenses and simplifying Section 11 of the Act to add a Commenters supported the program administration. One transitional benefits provision (7 U.S.C. Department’s judgment and agreed that commenter supported the provision but 2020(5)). This new statutory provision it was Congress’s intent to give States asked that the Department allow State incorporates the current regulatory the option to provide transitional agencies to have the option to act option but expands its scope in benefits to a household that contains immediately on changes that would significant ways. To accommodate members who are not in the TANF unit result in an increase in deductions or changes to this option and clarify the as well as those that contain ineligible benefits. Another commenter disagreed current regulations, the final rule members or members who are under a with the proposed rule and suggested divides Part 273 into subparts. Except TANF sanction. Commenters asked that that an alternative approach be for the addition of Subpart H, this the Department clarify that when a identified but did not offer any restructuring is for clarification household is under partial sanction but suggestions for this alternative purposes only and does not result in is still receiving TANF, if the assistance approach. The Department has any substantive change to the current ends for another reason, the household considered these comments and adopts regulations. The final rule implements may receive transitional benefits. the language as proposed. the statutory changes by removing 7 There has been confusion among State In addition to amending current rules CFR 273.12(f)(4) and restructuring the agencies about whether households at 7 CFR 273.12(c), the Department regulations to add a new Subpart H that under a partial TANF sanction can proposed to amend current regulations contains the revised policy in 7 CFR receive transitional benefits if the case at 7 CFR 273.21 to allow the State 273.26 through 7 CFR 273.32. A closes during the sanction period for agency to disregard changes that affect distribution table is published at the another reason. The language in the deductions for households subject to end of the preamble of this final rule for proposed rule clearly states that the monthly reporting and retrospective reference purposes and adjustments State agency may not provide budgeting. As with prospectively have been made to any references made transitional benefits when a household

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is leaving TANF due to a TANF Department proposed to remove this transitional period is ample time for sanction. Therefore, a household will requirement to simplify program households to make the transition from not be penalized because they were administration. However, the language TANF, bounce back from their hardship under a partial sanction; the sanction in the proposed rule would have and apply for other benefits. This has to be the cause of the case closure required that the notice clearly advise provision was mandated by the FSRIA in order for the household to be deemed households to apply for recertification if and not something that the Department ineligible for transitional benefits. they experience a decrease in income, has the authority to modify. Therefore, Therefore, the Department adopts this an increase in expenses or an increase we are adopting this amendment as amendment as proposed. in household size during the transition proposed. period. 2. Administrative and Procedural Commenters asked that the 4. Adjusting Benefit Amount Changes Department include in the list of notice Currently, 7 CFR 273.12(f)(4)(ii) A. The State Plan requirements a statement that requires the State agency to notify the households that apply for TANF cash household through the transition notice The Department proposed to require assistance will be asked to reapply for that it may report during the transition State agencies to include in their State food stamps at the same time. Proposed period if its income decreases or its plan of operation that they are providing 7 CFR 273.12(f)(4)(vi)(C) states that the expenses or household size increases. transitional benefits and specify the transition notice must contain a The provision at 7 CFR 273.12(f)(4)(iii) categories of households eligible for statement that if the household returns addresses the State agency’s such benefits and the maximum number to TANF during its transitional benefit requirement to act on changes in of months for which the transitional period, the State agency will either circumstances that the household benefits will be provided. The reevaluate the household’s food stamp reports during its transitional period. In Department also proposed to add a case or require the household to addition, this provision requires that if provision to remind State agencies that undergo a recertification. The a household reports a change during the they must follow the procedures at 7 Department believes that this provides transitional period that would increase CFR 273.12(f)(3) to determine the parties the needed flexibility and its benefit, the State agency must act on continued eligibility and benefit levels notifies participants of the procedures the change during the transitional of households leaving TANF who are they will undergo if they apply for period. However, if the household denied transitional benefits. Current TANF cash assistance. Therefore, the reports a change that would decrease its rules at 7 CFR 273.12(f)(3) prohibit the Department will not incorporate the benefit, the State agency must not act on State agency from terminating a commenter’s recommendation into the the change until after the transitional household’s food stamp benefit when final rule and adopts this amendment as period has ended. the household loses TANF eligibility proposed. Section 4115 requires that the without a separate determination that Commenters also requested that the household’s benefit during the the household fails to meet the Food Department include a requirement that transitional period be equal to the Stamp Program’s eligibility States inform households that they do benefit it was receiving in the month requirements. The Department adopts not need to receive TANF to be eligible preceding termination of TANF, the amendment as proposed since we for food stamps at the end of the adjusted for the loss of TANF income did not receive comments directly transitional period and that they are and, at the State agency’s option, opposed to this provision. likely to remain eligible at the end of the changes in household circumstances that the State agency learned of from B. The Transition Notice transitional period if their income remains low. Additionally, commenters another program in which the The Department proposed to maintain requested that the notice encourage household participates. The Department the existing requirement that the State people to reapply for food stamps. The proposed to amend the regulations at 7 agency issue a transition notice. Department has considered these CFR 273.12(f)(4) to note that in addition However, the Department proposed to comments and while we encourage to adjusting the household’s food stamp modify the contents of the notice. The State agencies to include this sort of benefit amount before initiating the notice would have to inform the information in their notice, it is not transition period to account for decrease household of its eligibility for something that the Department will in income due to the loss of TANF, the transitional benefits, the length of the prescribe in regulations. State agency may also adjust the benefit transitional period, and that it has a to account for changes in household right to apply for recertification at any 3. Increase in Transitional Period circumstances that it learns from time during the transitional period. The Section 4115 lengthens the another program in which the language in the proposed rule also transitional period from up to 3 months household participates. would have required the notice to to up to 5 months. In view of this Commenters wanted the Department explain any changes in the household’s requirement, we proposed language that to clarify that the correct transitional benefit amount, and that the household would permit State agencies to extend food stamp benefit amount for all is not required to report or verify the household’s certification period purposes, including quality control, is changes in household circumstances beyond the limits established in 7 CFR the amount of food stamps received in until the deadline established in a 273.10(f) to provide the household with the month prior to TANF case closure, written RFC or at their recertification up to a full 5 months of transitional adjusted for the loss of cash assistance. interview. benefits. The Department proposed to The Department’s quality control The Department also proposed to amend 7 CFR 273.12(f)(4) to change the guidance has followed and will remove the requirement that the State length of the transitional period from up continue to follow certification policy. agency notify the household through the to 3 months to up to 5 months. Therefore, there is no need to place an transition notice that it may report The Department did receive one additional provision about quality during the transition period if its comment stating that the proposed control under this section. Additionally, income decreases or its expenses or extension from 3 months up to 5 months the proposed rule already contains household size increases. The is not warranted as the current language about how to calculate the

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correct transitional benefit level. procedure that State agencies follow in information from other programs before Therefore, the Department adopts this the regular program when a household freezing the benefit amount and have amendment as proposed. member moves from one participating the option to make this the only time The Department believes that household to another. that they act on information from requiring the State agency to act on any One commenter said that households another program. They point out that reported changes in circumstances should not be required to report any there is nothing in the law to suggest during a household’s transitional period changes and staff should not have to act that acting on information from other defeats the intent of the transitional on these changes. Other commenters programs is an all-or-nothing option. benefit, which is to provide the asked that the Department clarify that The Department has considered these household with the same benefit it States must make this adjustment comments. This final rule modifies the received prior to termination of TANF without requiring any additional proposed language to give State agencies for a fixed number of months, with the information or verification from the the ultimate flexibility in accordance benefit adjusted only for the loss of household. They felt that requiring a with the intent of the FSRIA. TANF income and, at State agency household to report or verify Several commenters had concerns option, other changes that the State information defeats the purpose of the regarding verification requirements for agency learns of from the household’s benefit. Some commenters also noted changes resulting from information participation in another program. The that this provision increases the reported to other programs. They asked household is protected from being administrative burden on State agencies. that the final rule clarify that if States denied an increase in benefits by having While we agree with commenters that opt to act on information that they the option of applying for recertification the transitional benefit is meant to be a receive from other programs, they may at any time during the transitional frozen benefit amount for the duration not require any additional verification period. Therefore, the Department of the benefit period, the Food Stamp from the household. If the information proposed to remove the requirements at Act strictly prohibits duplicate reported to the other program is 7 CFR 273.12(f)(4)(ii) and (f)(4)(iii) participation. When a household insufficient to meet food stamp regarding the State agency’s obligation member leaves and either reapplies or guidelines, the State should continue to notify the household that it may becomes a member of a new household, the transitional benefit at its original report changes during the transitional that household member takes their level. period and the requirement that the income and resources with them. The Department has considered these State agency act on changes reported by Consequently, the State must adjust comments and although we discourage the household that would increase the both households’ allotments in States from requiring additional household benefits. The Department did accordance with 7 CFR 273.12(c) to verification or making changes at all, we not receive any specific comments ensure that the individual’s income and cannot forbid States from requiring opposed to the deletion of these resources are accounted for accordingly. additional verification when they requirements so adopts the amendment However, there is no need to get any receive unclear information. If the as proposed. additional information from the verification provided is insufficient to Although the Department deleted household to adjust the benefit amount meet program guidelines, we encourage these provisions as requirements, the for the household receiving transitional States to maintain the benefit level proposed rule still would have provided benefits. Therefore, the Department throughout the transitional period. The State agencies with the option to adjust retains this requirement in the final State agency should inform the the household’s benefit amount in rule. participant of the verification that is accordance with 7 CFR 273.12(c) or To provide maximum flexibility to necessary to make changes in their make the change effective in the month State agencies, the Department proposed benefit level. Additionally, action on following the last month of the to permit State agencies to adjust the changes reported to other programs is an transitional period. Commenters household’s transitional benefit at any option. Most States that are currently pointed out that this option runs time during the transitional period to providing transitional benefits are not contrary to subsequent program account for changes in household acting on these changes and prefer to guidance that provides that a State circumstances that it learns from provide a frozen benefit. cannot act on other reported changes another program. Commenters requested Commenters asked that the final rule aside from changes made due to that the Department clarify the proposed clarify that the transitional benefit level information received from other rule in numerous places to be adjusted for the automatic annual programs. The Department considered appropriately reflect the Congressional changes in the food stamp benefit rules. these comments and removed this intent regarding the benefit freeze. These statutory adjustments are option from the final rule. Commenters suggested that the programmed into most States’ The Department proposed that the Department change the language in the computers once each year and do not State agency be required to act if a proposed rule to mandate a benefit depend on the household providing any member of the household receiving freeze and then note exceptions to the information. These commenters noted transitional benefits moves out during freeze. The Department has considered that USDA has required States that have the transitional period and either this comment and we adopt the implemented the transitional food reapplies as a new household or is language as proposed as this is an stamp provision to make these reported as a new member of another optional provision and the exceptions to adjustments. Therefore, they are asking household. The Department proposed the freeze are noted in the final rule. the Department to incorporate this that the State agency be required to Commenters also asked that the requirement into the final rule. remove that member from the original Department clarify that States may act The primary automatic annual household and adjust the household’s on income information from another changes are the Cost of Living benefit to reflect the new household program either before setting the Adjustment for the Thrifty Food Plan size. This action is necessary to prevent transitional benefit amount, during the and the cap on the excess shelter cost duplicate participation by the member transitional period or both. They want deduction. State agencies who are that has left the household receiving to ensure that States are given the currently participating in the transitional benefits, and is the same option to adjust the amount based on transitional benefit program are dealing

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with this adjustment in a variety of first month of its transitional period and benefit period that results in a lower ways. While some States make the is determined eligible, the State agency benefit amount, the State agency must adjustment because it is automatically must terminate the transitional benefits, complete the recertification process and programmed into their system, others assign the household a new certification issue the lower benefit effective the first are providing a frozen benefit that does period and begin issuing new benefits to month of the new certification period. not account for any changes in the household. The Department, in its Commenters asked that the final rule circumstances. Because of the variety of proposed revision of 7 CFR 273.12(f)(4), provide that if the household chooses to methods utilized by State agencies in proposed to add a new 7 CFR not to withdraw their application but the implementation of this benefit, the 273.12(f)(4)(v) to include the provision instead to receive the lower benefit final rule includes this as an option but that a household may apply for amount, the transitional benefit amount not a requirement. The number of recertification at any time during the is the correct amount for the first month participants affected by a potential cost transitional period. of the new certification period, there of living adjustment is so small that the The Department proposed therein a shall be no over-issuance, and the new burden of this proposed requirement procedural scheme for the State agency benefit amount will be effective the would most likely outweigh its benefit. to observe when a household submits a following month. request for recertification prior to the The Department has considered these 5. Impact on the Household’s last month of its transitional benefit comments. The modification Certification Period period. The procedural scheme would recommended by the commenters is The Department proposed to remove have required the State agency to inconsistent with the procedures the prohibition on extending the schedule an interview, provide the followed for an application that results household’s certification period beyond household with a notice of required in an increase in benefits. An the maximum period specified in 7 CFR verification, and give them 10 days to application that results in an increase in 273.10(f)(1) and (f)(2) so that the State provide verification. Should the benefits is effective the first month of agency may extend the household’s household fail to comply with these the new certification period, and if the certification period up to 5 months in requirements or be ineligible for State agency has already issued the order to provide the household with up participation, the State agency would transitional benefit they need to issue a to a full 5 months of transitional deny the application and continue the supplement. The procedure proposed by benefits. If the household does not household’s transitional benefits until the Department provides participants apply for recertification during the the end of the period. Should the and administrators with a clean break, transitional period, Section 4115 household be eligible, the new and is a consistent policy for applicants provides the State agency the option in certification period would begin the first whose benefit amount either increases the final month of the transitional day of the month following the month or decreases. The Department is seeking period to shorten the household’s in which the household submitted the to simplify the administration of the certification period and require the application. Should the new benefit program. Providing two different household to undergo recertification. amount be lower than the transitional standards for applications filed during The Department proposed to amend benefit amount, the State agency would the transitional benefit period is too the current regulations to allow State be required to encourage the household complex and does not adhere to the goal agencies the option of shortening the to withdraw the application. of simplification. Therefore, the final household’s certification period and While some commenters supported rule does not include this suggested assign the household a new certification the proposed procedures, especially modification. period that conforms with the since its provision were favorable to Instead, the final rule provides State transitional period. All recertification households whose benefits would be agencies with an alternative to issuing a requirements that would normally apply reduced or terminated after the end of lower benefit amount. This alternative, when the household’s certification the transitional period, several offered which was proposed by a commenter, period has ended would be postponed criticism and proposed changes. provides State agencies with the option to the end of the new certification Commenters noted that proposed 7 to deny an application and allow the period. The State agency would not CFR 273.12(f)(4)(v) mentions a few parts transitional benefit period to run its have to issue a NOAA when the of the general application processing course if the benefit amount decreases household’s certification period is regulation at 7 CFR 273.2, but not all of when a household recertifies. If a State shortened, but would have to specify in it. The commenters believe that some agency incorporates this option into the transitional notice that the State agencies may infer that the other their State plan, they would avoid household must be recertified at the end parts of 7 CFR 273.2 do not apply. having to collect overpayments made to of the transitional benefit period or if it Therefore, they asked that the final rule households who were already issued returns to TANF during the transitional state that except as otherwise specified, their transitional benefit for the first period. Commenters suggested revising the provisions of 7 CFR 273.2 should month of their new certification period. 7 CFR 273.10(f)(4) to reflect the policy apply to reapplication during the Just as a State agency needs to issue a in the proposed 7 CFR 273.12(f)(4)(iv). transitional benefit period. The final household a supplement, if the benefit The Department has considered this rule provides references to the amount decreases the household may be comment and made the necessary paragraphs of 7 CFR 273.2 that are subject to an overpayment. This is why amendments to provide consistency in applicable to the general recertification the Department is encouraging State the final rule. process. It would be too cumbersome to agencies to implement an alternative include either a reference to all of 7 CFR such as denying these applications. If a 6. Applying for Recertification During 273.2 or a list of those paragraphs that State agency elects to adopt this option, the Transitional Period do or do not specifically apply. they must state this in their State plan Section 4115 provides the household Therefore, the Department adopts this of operation. with the option of applying for amendment as proposed. One commenter pointed out that if an recertification at anytime during the The proposed rule stated that if the application for recertification is made transitional period. Thus, if a household household chooses not to withdraw an toward the end of the month, this would applies for recertification during the application filed during the transitional require a decrease in benefits without

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advanced notice. They asked that either notice a statement to the effect that if The Department has considered these States be allowed to follow current the household reaches the end of its comments. However, because the TANF notice requirements or the Department transitional period, the State agency program and the Food Stamp Program should establish quality control would either reevaluate the household’s are administered by different federal protections for State agencies. The food stamp case or shorten the agencies, the Department does not have Department agrees with the commenter household’s certification period and the authority to regulate the TANF that, depending on the timing of the require it to undergo a recertification. program. However, State agencies may recertification application, the State Commenters asked the Department to choose to conform their application agency may or may not be able to establish a process to allow for joint process so long as they work within the provide the household with advance TANF-Food Stamp applications for guidelines of each program. notice of their decrease in benefits. families who reapply for both programs. One commenter said that their State However, under the current rules, a They recommended a 30-day processing continues the transitional benefits even NOAA is required for changes made standard to ensure that these if the household returns to TANF, for during the certification period. Because applications are processed together, payment accuracy. State agencies that this change will initiate a new noting that allowing a 30-day standard proceed in this manner are not certification period, there is no provides simplicity. The Department implementing transitional benefits requirement for the State to issue a has considered this recommendation. properly. The transitional benefit NOAA. The Department will not amend We agree. Therefore, the final rule program was intended to be the current regulations to accommodate includes a provision for implementing a implemented as a benefit that assists this comment and adopts the applicable 30-day processing standard for families who are making the transition language as proposed. households re-applying for TANF before from the TANF program. Households The proposed rule would have the end of their transition period. who return to TANF no longer need a required that applications for Commenters believed that the transitional benefit because they are no recertification submitted in the final proposed rule did not provide adequate longer in transition from TANF to the month of the transitional period to be guidance to States on what procedures workforce, and the State agency now processed in accordance with current to use when a household reapplies for has information about current family regulations at 7 CFR 273.14. Comments TANF during its transitional benefit circumstances. These households will related to this provision are discussed period. They pointed out that many of likely qualify for the regular program. below. the States that had implemented the Therefore, the State agency should transitional benefit program by late 2003 terminate the transitional case and 7. Households Who Return to TANF reported that a substantial number of enroll the household in the traditional During the Transitional Period the households that receive transitional Food Stamp Program. The Department proposed that when benefits reapply for TANF before the One commenter noted that in their a household returns to TANF during the expiration of their transitional benefit State, the eligibility and payment cycle transitional benefit period, the State period. Proposed 7 CFR 273.12(f)(4)(ix) for TANF is different from the Food agency would apply the same informs State agencies about the Stamp Program. Additionally, the TANF procedures it would apply if the procedures they would need to follow if program is operated by private agencies household had reached the final month a household receiving transitional and the Food Stamp Program by public of its transitional period. Thus, when benefits returns to TANF during the agencies. Therefore, requiring the State agency learns that a household transitional period. Therefore, the recertification for the food stamp receiving transitional benefits has Department does not agree with this program when a TANF case reopens returned to TANF, the State agency comment and adopts the language as increases hardship on households would either issue an RFC and adjust proposed. because they have to satisfy the household’s benefits based on Commenters suggested that the final requirements for both programs and information it has about the household’s regulation delete the requirement that make multiple applications. The new circumstances and extend the States must first approve a TANF commenter believes that the proposed household’s certification period if it application and then seek more language will create a barrier to chooses, or it would shorten the information from the family to continued nutritional assistance. household’s certification period and redetermine food stamp eligibility and The transitional program is just that, require the household to undergo a benefit levels. Instead, they want the transitional. It suspends gathering recertification. Department to establish a process that household information when the Because the law does not authorize allows food stamp households to shift household has separated from the TANF State agencies to shorten a household’s from the transitional period back to the program. Once the household rejoins certification period under these regular program based on a joint TANF- the TANF program and new information circumstances, the State agency would Food Stamp application. One way to do is gathered, it is appropriate to act on be required to issue a NOAA rather than this would be to treat the TANF this new information. Therefore, at a notice of expiration, which the State application as a joint TANF-Food Stamp some point, households will have to agency may issue when the household application and apply the new recertify for the Food Stamp Program. reaches the end of its transitional protections related to food stamp The final rule allows State agencies the period. To eliminate the delay reapplication during a transitional flexibility to develop a transitional associated with issuing a NOAA and to benefit period. As suggested above, the benefit program that will work with keep the procedure for when a processing time for these applications their State TANF program. The household returns to TANF during the would be 30 days. The commenters transitional benefit program is an option transitional benefit period consistent pointed out that households who are provided by the Department that may with the procedure for when a reapplying for TANF are likely to have not work in all States due to household reaches the end of its very limited resources so the final administrative circumstances such as transitional period, the Department regulation should aim to deliver the those noted by this commenter. The proposed that the State agency be appropriate benefit amount as quickly Department cannot create a rule that required to include in the transition and seamlessly as possible. will accommodate all circumstances.

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Therefore, States need to work with benefit, the households that remain and the requirements for participation. TANF administrators in their State to eligible for food stamps after the Finally, New York and Massachusetts develop ways to accommodate Food transitional period will have to stay provided the Department with copies of Stamp Program participants. connected to the regular Food Stamp transitional benefit notices that include One commenter suggested that if a Program. They believed that the information about other programs, household returns to TANF before the proposed rule would have treated the including transitional child care. The end of the transitional period, the final end of the transitional period the same Department has provided copies of rule should: (1) Allow the household to as the end of any other certification these notices to State agencies to utilize continue to receive transitional benefits period. They encouraged the if they decide to implement this option. during the TANF application process; Department to adopt final rule language (2) require the household to attend only that would require States to provide Implementation one interview for the TANF and food more complete information that will All of the provisions of FSRIA stamp application; (3) require the State encourage families to reapply for food addressed in this rule, except Section agency to determine TANF and Food stamps and stay connected to the 4401, were effective on October 1, 2002. Stamp Program eligibility at the same program. time; and (4) if the TANF application is Commenters asked that the final rule Section 4401 has 3 different accepted, give notice to the household require State agencies to issue notices implementation dates. The amendments that the transitional benefit period is that explicitly state that most people to 7 CFR 273.4(a)(6)(ii)(H), 7 CFR ended and that the household is eligible leaving cash assistance programs with 273.8(b), and 7 CFR 273.9(d)(1) were to for ongoing food stamp benefits. For the low earnings remain eligible for food be implemented October 1, 2002. These reasons stated in the preceding stamps and that there is a high provisions restored food stamp paragraph, the Department cannot likelihood that complying with eligibility to qualified aliens who are impose these requirements on the TANF recertification requirements will result otherwise eligible and who are receiving application process. However, a in a substantial food stamp allotment. disability benefits regardless of date of household is still eligible for the The commenters felt that individuals entry, extended the higher resource transitional benefit program until they who received transitional Medicaid limit to households with a disabled are accepted into the TANF program. benefits may become confused and just member, and replaced the current, fixed Therefore, it is not necessary to amend disregard the notice about the standard deduction with a deduction the proposed language to impose these termination of their transitional food that varies according to household size. requirements. stamps because the transitional period The amendments to 7 CFR is over. 273.4(a)(6)(ii)(B) through (a)(6)(ii)(F) 8. Moving Out of the Transitional Period While the Department agrees that this and 273.4(a)(6)(iii) were to be The Department proposed two is a valid point, and the Department implemented on April 1, 2003. These options for moving the household out of encourages State agencies to include provisions restored food stamp the transitional period. First, in this information in their notices, it is eligibility to qualified aliens who are accordance with current rules at 7 CFR not appropriate to regulate under this otherwise eligible and who have lived 273.12(f)(4)(iv), the State agency would section. The Department believes that in the U.S. for 5 years as a qualified be able to issue the household an RFC the best way to encourage the successful alien beginning on date of entry. The and act on any information it has about utilization of this option is to afford amendments to, 7 CFR 273.4(a)(6)(ii)(J), the household’s new circumstances in States broad latitude on how to and 7 CFR 273.4(c)(3)(vi) were to be accordance with 7 CFR 273.12(c)(3). implement the option. Moreover, this implemented on October 1, 2003. These Alternatively, in accordance with final rule details six items that must be provisions restored food stamp Section 4115, the State agency would be included in the notice and the eligibility to qualified aliens who are able to recertify the household in Department is not receptive to adding otherwise eligible and who are under 18 accordance with 7 CFR 273.14. Under further detail. The Department adopts regardless of date of entry and the the second option, the State agency this amendment as proposed. provisions eliminating the sponsor would be able to shorten the In a recent review of notices utilized deeming requirements for immigrant household’s prior certification period in by current State agencies who offer children. State agencies must order to recertify the household. In transitional benefits, the Department implement the provisions of 7 CFR shortening the certification period, the discovered that most State agencies 273.4(c)(2)(v), 7 CFR 273.4(c)(3)(iv), 7 State agency would be required to send provide information that goes beyond CFR 273.4(c)(3)(vii), 7 CFR the household a notice of expiration in the regulatory requirements. For 273.9(b)(1)(vii), and 7 CFR accordance with 7 CFR 273.14(b). The example, most States include 273.9(c)(3)(ii)(A) no later than August 1, Department does not believe that a information in the initial notice about 2010: State agencies may implement all NOAA is necessary to shorten the the need to reapply toward the end of other amendments on or after the certification period because Section the transitional period in order to effective date of this rule. States that 4115 authorizes State agencies to continue receiving food stamp benefits. implemented discretionary provisions, shorten a household’s certification Arizona, Oregon and Pennsylvania either under existing regulations or period in the final month of the provided the Department with copies of policy guidance issued by the transitional benefit period. fact sheets that they have created for the Department, prior to the publication of Commenters noted that for the program. These facts sheets are in plain this final rule have until August 1, 2010 transitional benefit program to fully language and provide participants with to amend their policies to conform to realize its purpose as a transitional a general understanding of the program the final rule requirements.

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DISTRIBUTION TABLE—THE TRANSITIONAL BENEFITS ALTERNATIVE

CFR Proposed rule Final rule

General eligibility guidelines. 273.12(f)(4) ...... 273.12(f)(4)(i) ...... 273.26. 273.12(f)(4)(i)(A) ...... 273.26(a). 273.12(f)(4)(i)(B) ...... 273.26(b). 273.12(f)(4)(i)(C) ...... 273.26(c). 273.12(f)(4)(i)(C)(1) ...... 273.26(c)(1). 273.12(f)(4)(i)(C)(2) ...... 273.26(c)(2). 273.12(f)(4)(i)(C)(3) ...... 273.26(c)(3). 273.12(f)(4)(i)(C)(4) ...... 273.26(c)(4). 273.12(f)(4)(i)(C)(5) ...... 273.26(c)(5). 273.12(f)(4)(i)(C)(6) ...... 273.26(c)(6). 273.12(f)(4)(i)(C)(7) ...... 273.26(c)(7). 273.12(f)(4)(i)(C)(8) ...... 273.26(d)(1). 273.12(f)(4)(i)(C)(9) ...... 273.26(c)(8). 273.12(f)(4)(i)(C)(10) ...... 273.26(c)(9). 273.12(f)(4)(i)(C)(11) ...... 273.26(d)(2). 273.12(f)(4)(i)(C)(12) ...... 273.26(d)(3). 273.12(f)(4)(i)(C)(13) ...... 273.26(c)(10). 273.12(f)(4) ...... 273.12(f)(4)(ii) ...... Need to be added as 273.26(e). General administrative guidelines. 273.12(f)(4)(i) ...... 273.12(f)(4)(iii) ...... 273.27(a). 273.12(f)(4)(iii) ...... 273.27(a)(1). 273.12(f)(4)(iii) ...... 273.27(a)(2). 273.12(f)(4)(iv) ...... 273.27(c). Application for Food Stamp Program recertifi- cation. 273.12(f)(4)(ii) ...... 273.12(f)(4)(v) ...... 273.28. 273.12(f)(4)(v)(A) ...... 273.28(a). 273.12(f)(4)(v)(B) ...... 273.28(b). 273.12(f)(4)(v)(C) ...... 273.28(c). 273.12(f)(4)(v)(C) ...... 273.28(c)(1). 273.12(f)(4)(v)(C) ...... 273.28(c)(2). 273.12(f)(4)(iii) ...... 273.12(f)(4)(v)(C) ...... 273.28(d). 273.12(f)(4)(v)(D) ...... 273.28(e). 273.12(f)(4)(v)(E) ...... 273.28(f). 273.12(f)(4)(v)(F) ...... 273.28(g). 273.12(f)(4)(v)(G) ...... 273.28(h). Transitional notice requirements. 273.12(f)(4)(iv) ...... 273.12(f)(4)(vi) ...... 273.29. 273.12(f)(4)(vi)(A) ...... 273.29(a). 273.12(f)(4)(vi)(B) ...... 273.29(b). 273.12(f)(4)(vi)(C) ...... 273.29(c). 273.12(f)(4)(vi)(D) ...... 273.29(d). 273.12(f)(4)(vi)(E) ...... 273.29(e). 273.12(f)(4)(vi)(F) ...... 273.29(f). Transitional benefits alternative change re- porting requirements. 273.12(f)(4)(vii) ...... 273.30. Closing the transitional period. 273.12(f)(4)(viii) ...... 273.31. 273.12(f)(4)(viii)(A) ...... 273.31(a). 273.12(f)(4)(viii)(B) ...... 273.31(b)...... Households who return to TANF during the transitional period. 273.12(f)(4)(ix) ...... 273.32.

Executive Order 12866 developed for this final rule. It follows estimated the total FSP costs to the this rule as an Appendix. The following Government of the FSRIA provisions This final rule has been determined to summarizes the conclusions of the implemented in the final rule as $2.669 be economically significant and was reviewed by the Office of Management regulatory impact analysis: This action billion in FY 2010 and $13.541 billion and Budget in conformance with is required to implement provisions of over the 5 years FY 2010 through FY Executive Order 12866. FSRIA (Pub. L. 107–171), which was 2014. These impacts are already enacted on May 13, 2002. This incorporated into the President’s budget Regulatory Impact Analysis rulemaking amends FSP regulations to baseline. implement 11 provisions of FSRIA that As required for all rules that have Regulatory Flexibility Act been designated as Significant by the establish new eligibility and Office of Management and Budget, a certification requirements for the receipt This rule has been reviewed with Regulatory Impact Analysis (RIA) was of food stamps. The Department has regard to the requirements of the

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Regulatory Flexibility Act (5 U.S.C. Prior Consultation With State Officials State or local laws, regulations or 601–612). The Under Secretary for the Before drafting this rule, we received policies that conflict with its provisions Food, Nutrition and Consumer Services, input from State agencies at various or that would otherwise impede its full has certified that this rule will not have times. Because the Program is a State- implementation. This rule is not a significant economic impact on a administered, federally funded program, intended to have retroactive effect substantial number of small entities. our regional offices have formal and unless so specified in the ‘‘Effective State and local human services agencies informal discussions with State and Date’’ paragraph of this rule. Prior to any will be the most affected to the extent local officials on an ongoing basis judicial challenge to the provisions of that they administer the Food Stamp regarding program implementation and this rule or the application of its Program. policy issues. This arrangement allows provisions, all applicable administrative procedures must be exhausted. In the Unfunded Mandates Reform Act State agencies to provide feedback that forms the basis for many discretionary Food Stamp Program, the administrative Title II of the Unfunded Mandates decisions in this and other Program procedures are as follows: (1) For Reform Act of 1995 (UMRA), Public rules. In addition, FNS held three program benefit recipients—State Law 104–4, establishes requirements for conferences with representatives of the administrative procedures issued Federal agencies to assess the effects of State agencies specifically to discuss the pursuant to 7 U.S.C. 2020(e)(1) of the their regulatory actions on State, local, provisions of FSRIA being implemented Food Stamp Act and regulations at 7 and tribal governments and the private through this rule. Dates and locations of CFR 273.15; (2) for State agencies— sector. Under Section 202 of the UMRA, the meetings were as follows: June 11, administrative procedures issued the Department generally must prepare 2002, in Alexandria, Virginia; June 13– pursuant to 7 U.S.C. 2023 of the Food a written statement, including a cost/ 14, 2002 in Kennebunkport, Maine; and Stamp Act and regulations at 7 CFR benefit analysis, for proposed and final June 17–19, 2002 in Dallas, Texas. We 276.7 (for rules related to non-quality rules with Federal mandates that may have also received written requests for control liabilities) or 7 CFR Part 283 (for result in expenditures to State, local, or policy guidance on the implications of rules related to quality control tribal governments in the aggregate, or FSRIA from State agencies that deliver liabilities); (3) for Program retailers and to the private sector, of $100 million or food stamp services. These questions wholesalers—administrative procedures more in any one year. When such a have helped us make the rule issued pursuant to Section 14 of the statement is needed for a rule, section responsive to concerns presented by Food Stamp Act (7 U.S.C. 2023) and 7 205 of the UMRA generally requires the State agencies. Finally, we solicited CFR 279. Department to identify and consider a comments on these amendments Civil Rights Impact Analysis reasonable number of regulatory through the rulemaking process. The FNS has reviewed this final rule in alternatives and adopt the least costly, comment period for the Proposed Rule accordance with the Department more cost-effective or least burdensome opened on April 16, 2004 and closed on Regulation 4300–4, ‘‘Civil Rights Impact alternative that achieves the objectives June 15, 2004. The comments on the Analysis,’’ to identify and address any of the rule. Proposed Rule from State officials were major civil rights impacts the rule might This rule contains no Federal carefully considered in drafting this have on minorities, women, and persons mandates (under the regulatory final rule. This preamble discusses in with disabilities. After a careful review provisions of Title II of the UMRA) that detail the nature of the concerns of the of the rule’s intent and provisions, and impose costs on State, local, or tribal State and local officials who commented the characteristics of food stamp governments or to the private sector of on the Proposed Rule, our position households and individual participants, $100 million or more in any one year. supporting the need to issue this final FNS has determined that there is no This rule is, therefore, not subject to the rule, and the extent to which the way to soften their effect on any of the requirements of sections 202 and 205 of concerns expressed by the State and protected classes. FNS has no discretion the UMRA. local officials have been met. in implementing many of these changes. Executive Order 12372 Nature of Concerns and the Need To The changes that are required to be The Food Stamp Program is listed in Issue This Rule implemented by law have been the Catalog of Federal Domestic Results of the consultations that were implemented. All data available to FNS Assistance under No. 10.551. For the held prior to the publication of the indicate that protected individuals have reasons set forth in the final rule in 7 Proposed Rule were discussed in the the same opportunity to participate in CFR 3015, Subpart V and related Notice preamble of that rule and therefore will the Food Stamp Program as non- (48 FR 29115), this Program is excluded not be discussed here. The comments protected individuals. FNS specifically from the scope of Executive Order that FNS received in response to the prohibits the State and local government 12372 which requires intergovernmental Proposed Rule are discussed at length agencies that administer the Program consultation with State and local later in this preamble. from engaging in actions that officials. discriminate based on race, color, Extent to Which We Met Those national origin, sex, religion, age, Executive Order 13132, Federalism Concerns disability, marital or family status (FSP Executive Order 13132 requires FNS considered comments on the nondiscrimination policy can be found Federal agencies to consider the impact Proposed Rule prior to publishing this at 7 CFR 272.6(a)). Where State agencies of their regulatory actions on State and final rulemaking. Our responses to these have options, and they choose to local governments. Where such actions comments are discussed at length later implement a certain provision, they have federalism implications, agencies in this preamble. must implement it in such a way that it are directed to provide a statement for complies with the regulations at 7 CFR Executive Order 12988 inclusion in the preamble to the 272.6. regulations describing the agency’s This rule has been reviewed under considerations in terms of the three Executive Order 12988, Civil Justice Paperwork Reduction Act categories called for under section Reform. This rule is intended to have The Paperwork Reduction Act of 1995 (6)(b)(2)(B) of Executive Order 13132. preemptive effect with respect to any (44 U.S.C. Chap. 35; see 5 CFR part

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1320) requires that each Federal agency The breakdown of the changes for each quarterly reporting households × 3 establish a process to evaluate proposed separate information collection burden reports × .1336 hours = 106,443 hours) collections of information and to reduce is described separately below. + (3,674,730 change reporting information collection burdens on the households × 3.5 reports × .0835 hours OMB Number: 0584–0064 public. The Office of Management and = 1,073,940 hours) = 1,180,383 hours]. Budget (OMB) must approve all Title: Application and Certification of The difference indicates a net decrease collections of information by a Federal Food Stamp Households. in expected household burden hours of agency from the public before they can Expiration Date: December 31, 2010. 653,958 hours (526,425 ¥ 1,180,383 = be implemented, and respondents are Type of Request: Revision of a ¥653,958 hours). not required to respond to any currently approved collection. State agency burden: The expanded information collection unless it displays Abstract: Title 7, Part 273 of the CFR use of simplified reporting also reduces a current valid OMB control number. sets forth the Food Stamp Program the State burden for processing reports. This final rule changes the requirements for the application, With the exception of households information collection burden certification and continued eligibility consisting entirely of elderly or disabled associated with currently-approved for food stamp benefits. This rulemaking persons, which may be subject to a collections OMB No. 0584–0064, No. revises the collection burden to account reporting requirement at an interval of 0584–0496, and No. 0584–0083. for changes required by FSRIA. up to 12 months, simplified reporting Implementation of the data collection Simplified Reporting (7 CFR typically requires a household to file a requirements resulting from this final 273.12(a)(5)): report once every 6 months, and also at rule is contingent upon OMB approval The expanded use of simplified any time that the household’s gross under the Paperwork Reduction Act of reporting allowed under FSRIA will income exceeds 130 percent of the 1995. greatly reduce reporting burdens for poverty level. This means that States FNS sought public comments specific households and State agencies. To the choosing the simplified reporting option to the estimated information collection extent that State agencies adopt will have fewer household reports to burden of the proposed rule and simplified reporting, households will process. Consistent with the analysis of received one comment. The commenter have fewer reports to file and the agency household burden, we estimate that suggested that FNS should consider will have fewer reports to process. 3,940,307 households are newly subject using a checklist for revisions to the Household burden: The expanded use to the expanded simplified reporting State Plan as means of reducing the of simplified reporting allowed under option; 265,577 of which would State agency paperwork burden related FSRIA reduces the household reporting otherwise have been subject to quarterly to revision of State plans. Because the burden by reducing the number of reporting, and 3,674,730 of which comment did not impact the burden on reports certain households must file would have been subject to change the respondents or concern the with the food stamp agency as a reporting requirements. Under semi- substantive provisions of this rule, we condition of their ongoing eligibility for annual reporting, all of these are deferring a decision of the benefits. households will submit one report suggestion and will consider it when we Based on a 2008 survey of State annually. We estimate that a State revise State plan requirements. Thus, choices and program data from the agency spends 11 minutes or .1837 the provisions contained in this final National Data Bank, out of 53 State hours processing each report for a total rule do not differ with regard to agencies, 50 State agencies have of 723,834 burden hours (3,940,307 information collection burden implemented simplified reporting. From reports × .1837 hours = 723,834 hours). requirements from those set forth in the this, we estimate that 3,940,307 Quarterly reporting households submit proposed rule. households are newly subject to the 3 reports annually and change reporting The calculation of the information expanded simplified reporting option. households submit an estimated average collection burden under the specific Of these households, we assume that of 3.5 reports annually. We estimate that OMB numbers, as revised to reflect without simplified reporting 265,577 the State agency spends 11 minutes or adjustments for SNAP participation would otherwise have been subject to .1837 hours processing each quarterly increases and changes contained in this quarterly reporting, and 3,674,730 report and 5 minutes or .0835 hours final rule, are described below. These would have been subject to change processing each change report. If calculations have been revised to reflect reporting requirements. We estimate simplified reporting households changes in the reporting and that it takes a household 8 minutes or continued instead to submit change or recordkeeping burdens resulting from .1336 burden hours to complete a semi- quarterly reports, the State agency new provisions added to the SNAP annual report under simplified would have a burden of 1,220,299 hours regulations by this final rule. As a result reporting or a quarterly report and 5 [(265,577 quarterly reporting of this rulemaking, the overall minutes or .0835 burden hours to households × 3 reports × .1837 hours = information collection burden hours complete a change report. We expect 146,359 hours) + (3,674,730 change associated with OMB No. 0584–0064, households to submit one report reporting households × 3.5 reports × No. 0584–0496, and No. 0584–0083 are annually under simplified semi-annual .0835 hours = 1,073,940 hours) = estimated to have decreased by about reporting; 3 reports annually under 1,220,299 hours]. As a result, the 1,150,423 hours annually (920,338 quarterly reporting; and an average of simplified reporting option results in an hours due to program changes and 3.5 reports annually under change estimated net reduction of 496,465 230,085 hours due to adjustments). Of reporting. Based on these estimates, burden hours (723,834 hours ¥ the total impact, the annual burden households subject to the simplified 1,220,299 hours = ¥496,465 hours) for hours are estimated to have decreased semi-annual report have a burden of State agencies implementing the option by 653,958 hours for food stamp 526,425 hours (3,940,307 semi-annual contained in the final rule. households (523,166 hours due to reporting households × 1 report × .1336 Transition Notices, Application program changes and 130,792 due to hours = 526,425 hours). Under quarterly Revisions Reflecting the Deduction adjustments) and by 496,465 hours for or change reporting, we estimate that Freeze During the Certification Period, States (397,172 hours due to program these households would have had a and Simplifying Child Support changes and 99,293 for adjustments). burden of 1,180,383 hours [(265,577 Payments (7 CFR 273.29):

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There are small increases in the household. We estimate that households State agency burden: The Notice of information collection burden expected spend an average of 19 minutes or .3173 Expiration (NOE) and the TN are to result from the final rule’s hours in total completing an application comparable notices, and the TN will requirements to develop transition for initial certification or recertification. replace the NOE in some cases. notices, to notify households about Since only 1.5 percent of all SNAP Therefore, we assume that the burden freezing deductions during the households received the child support for the TN will be minimal and will be certification period, and to simplify the deduction in FY 2008 and only some of incorporated into the NOE burden determination of child support those households will be subject to the calculations. Because of the substantial payments. These provisions are new requirement since it is a State changes to the current TN that are estimated to have resulted in a one-time option, the average time to complete an required by this provision, we anticipate increase in the burden for State agencies application will not be measurably a burden of 20 hours per State agency of 300 hours. There is also a small one- affected by this change. Therefore, we for developing the TN for both States time increase in the burden associated do not estimate a change in household that currently provide transitional with including information in the State burden from this provision. benefits pursuant to the regulatory plans related to which of the rule’s Notification on reporting forms if authority and those States that have not optional provisions States adopt. This State chooses to disregard changes in yet provided transitional benefits. As of provision is expected to increase the deductions (7 CFR 273.12(b)(1), 273.12 August 2008, 18 States have chosen to overall burden by 50 hours as States (b)(2), and 273.12(h)(2)): States are given implement the transitional benefit amend their Plans of Operation after the the option in FSRIA to postpone acting option. FNS calculated an average final rule becomes effective. In addition, on changes that would affect the amount annual burden of 120 hours each year (6 a small one-time increase in the burden of deductions, except for changes in × 20 hours = 120 hours) based on 6 already occurred in 2003 from the shelter expenses due to a change in States adopting this option each year FSRIA’s requirement that States post residence and changes in earned over a 3 year period. food stamp applications on State Web income. If the State adopts this option, Household burden: FNS believes sites. We anticipate no further burden it must include a notice on all report there is no burden to the household for from this requirement. forms that any reported changes that this provision. Determination of child support affect deductions will not be acted on Food Stamp applications on State payments. (7 CFR 273.12(a)(1)(vi)): until the household’s next Web sites (7 CFR 273.2(c)): Households that pay legally owed recertification. FSRIA requires every State agency child support are eligible for either an State agency burden: The notification that maintains a Web site to make its exclusion or deduction of those would be added to a State’s existing food stamp application available on the payments. FSRIA allows State agencies reporting forms, so this option would Web site in every language for which a to rely solely on information from the not impose an additional burden for printed copy is available. State agencies State’s Child Support Enforcement creating or sending a new notice. are not required to accept applications (CSE) agency in determining a on-line. household’s obligation and actual child However, States that choose this option would have to revise their reporting State agency burden: Because States support payments. As a result of this already develop applications, and all change, the household would not have forms to include notification about postponing changes in deductions. We States already maintain Web sites, FNS further reporting and verification does not project any additional ongoing requirements. estimate that modifying existing report forms will result in a burden of 20 hours reporting burden resulting from this State agency burden: This provision requirement. was intended to simplify the process by per State agency. We assume that 5 States in each of the next 3 years will Household burden: This requirement allowing State agencies to rely solely on simply makes the application available information from the Child Support choose this option, resulting in a burden × in another manner and does not impose Enforcement (CSE) agency in of 100 hours annually (5 States 20 hours = 100 hours). an additional burden for households. determining the amount of child Start-up burden: The startup burden Household burden: This provision support payments made. If a State resulting from this requirement has does not affect the burden for agency uses CSE data, it will not have already been incurred by State agencies. households. to perform other verification of FNS estimates that each State agency payments reported by the household. Transition notice (7 CFR 273.29): has previously incurred a one-time Most States already have a link to the FSRIA amended the Act to provide for burden of 1.5 hours to post its CSE agency, and would experience no an option for States to provide application(s) on the Web resulting in a additional burden to set up an interface transitional benefits to families leaving total burden of 80 hours (53 State with the CSE agency. However, we the TANF program. The Act amended agencies × 1.5 hours = 80 hours). There estimate that modifying instructions to and expanded the transitional benefit is no ongoing burden from this workers regarding the new process to alternative provided pursuant to the requirement. determine child support payments will regulatory authority. Current regulations This rule does not affect the current result in a burden of 20 hours per State require that States opting to provide recordkeeping burden involved with agency. We anticipate 5 State agencies transitional benefits provide a OMB# 0584–0064. in each of the next 3 years will choose Transition Notice (TN) to households. this option, resulting in a total of 100 The final rule also provides for a TN but OMB Number: 0584–0496 burden hours annually (5 States × 20 has substantially different requirements Title: State Agency Options. hours = 100 hours). for the notice. State agencies that opt to Expiration Date: October 31, 2010. Household burden: This provision provide transitional benefits must Type of Request: Revision of a will also reduce the reporting burden for provide families eligible for transitional currently approved collection. some households because the State benefits a TN that includes detailed and Abstract: Title 7, Part 273 of the CFR agency will rely on the information from specific information about the sets forth the Food Stamp Program the CSE agency instead of requiring household’s transitional benefits and requirements for the application, additional verification from the rights. certification and continued eligibility

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for food stamp benefits. This rulemaking plus the standards that State proposes to Type of Request: Revision of a revises the collection burden to account use and an explanation of how they currently approved collection. for changes required by FSRIA. were computed. If the State does not Abstract: The regulations at 7 CFR Establishing and reviewing standard have actual data, it must draw a sample 272.2 require that State agencies plan utility allowances (7 CFR of cases to obtain it. and budget program operations and 273.9(d)(6)(iii)(B)): Estimates of burden: Currently, 40 establish objectives for each year. State Section 273.9(d)(6)(iii)(B) of the food State agencies have elected to mandate agencies submit these plans to the stamp regulations allows State agencies the use of SUAs. We expect that regional offices for review and approval. to establish standard utility allowances additional States will decide to This rulemaking amends Part 7 CFR (SUAs) and requires State agencies to implement a mandatory SUA. There is 272.2(d) of the Food Stamp Program review and adjust established SUAs not an additional burden in developing Regulations to require State agencies annually to reflect changes in the cost the standards since these agencies that opt to implement certain provisions of utilities. Many State agencies already already establish the SUA. Therefore, of FSRIA to include these options in the have one or more approved standards, since there is no additional burden, the State Plan of Operation. The optional which they update annually. State total annual burden associated with provisions that must be included in the agencies may use information already mandatory utility standards is zero. State Plan of Operation are: simplified available from case files, quality control Self-employment costs (7 CFR definition of resources, simplified reviews, utility companies or other 273.11(b)): definition of income, optional child sources. State agencies may make Section 273.11(b) of the regulations support deduction, homeless household adjustments based on cost-of-living allows self-employment gross income to shelter deduction, simplified reporting, increases. The information is used to be reduced by the cost of producing simplified determination of deductions, establish standards to be used in place such income. The regulations allow the and transitional benefits. The of actual utility costs in the computation State agencies, with approval from FNS, regulations at 7 CFR 272.2(f) require that of the excess shelter deduction. State to establish the methodology for State agencies only have to provide FNS agencies are required to submit the offsetting the costs of producing self- with changes to these plans as they standard amounts and methodologies to employment income, as long as the occur. FNS when they are developed or procedure does not increase program Estimates of Burden: Out of 53 State changed. costs. State agencies may submit a agencies, 50 States have adopted Estimates of burden: Currently 52 request to FNS to use a method of simplified reporting; 18 states have State agencies out of 53 have a standard producing a reasonable estimate of the adopted transitional benefits; 43 States that includes heating or cooling costs costs of producing self-employment have adopted simplified definition of and 31 have a standard for utility costs income in lieu of calculating the actual income; 36 States have adopted other than heating or cooling. In costs for each household with such simplified definition of resources; 27 addition, 44 State agencies have a income. Different methods may be States have adopted the homeless telephone allowance standard. State proposed for different types of self- household deduction; 8 States have agencies are required to review the employment. The proposal shall include adopted the option to simplify standards each year to determine if cost a description of the proposed method, determination of deductions; and 14 of living increases are needed. We the number and type of households and states have chosen to treat legally estimate a minimum of 2.5 hours percent of the caseload affected, and obligated child support payments made annually to review and adjust the documentation indicating that the to non-household members as an × standards (2.5 hours 52 State agencies proposed procedure will not increase income exclusion while 39 States will = 130 hours). Total burden for this program costs. State agencies may continue to count the payments as a provision is estimated to be 130 hours collect this data from household case deduction. In view of the number of per year. records or other sources that may be States that have already selected the Mandatory utility standards: available. above options, we estimate that very few Section 273.9(d)(6)(iii) of the Estimates of burden: We estimate that additional States will elect to adopt regulations, as proposed to be amended, 10 State agencies will submit a request them in the future and that the allows State agencies to mandate the use of this type each year for the next three additional reporting burden resulting of an SUA when the excess shelter cost years. It is estimated that these States from revising State plans will be deduction is computed instead of will incur a one-time burden of at least minimal. The additional public allowing households to claim actual 10 working hours gathering and reporting burden for this proposed utility costs, provided the standards will analyzing data, developing the collection of information is estimated to not increase program costs. State methodology, determining the cost average an additional .25 hours per agencies may establish additional implication, and submitting a request to response. The total burden for this standards to implement this provision. FNS for a total burden of 100 hours collection is 40 hours (53 respondents They must show that mandatory utility annually. (State agencies) X 3 responses per year standards will not increase program Record keeping burden only: Each per respondent X .25 hours per costs. Request for FNS approval to use State agency would be required to keep response). There is no impact on the a standard for a single utility must a record of the information gathered and recordkeeping burden involved with include the cost figures upon which the submitted to FNS. We estimate this to OMB# 0584–0083. standard is based. If the State wants to be 7 minutes or .1169 hours per year for An Information Collection Request mandate use of utility standards but the 53 State agencies to equal a total of (ICR) package will be submitted to OMB does not want individual standards for 6 burden hours annually (53 × .1169 based on the provisions of this final rule each utility, the State needs to submit hours = 6 hours annual burden). to reflect the changes to OMB No. 0584– information showing the approximate 0064, No. 0584–0496, No. 0584–0083. number of food stamp households that OMB Number: 0584–0083 These amended information collection would be entitled to the nonheating and Title: Operating Guidelines, Forms requirements will not become effective noncooling standard and the average and Waivers. until approved by OMB. When these cost of their actual utility costs now Expiration Date: October 31, 2010. information collection requirements

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have been approved, FNS will publish (vi) State agencies that implemented PART 273—CERTIFICATION OF separate action in the Federal Register discretionary provisions, either under ELIGIBLE HOUSEHOLDS announcing OMB’s approval. existing regulations or policy guidance issued by the Department, prior to the ■ 4. The authority citation for part 273 E-Government Act Compliance publication of this final rule have until continues to read as follows: The Food and Nutrition Service is August 1, 2010 to amend their policies Authority: 7 U.S.C. 2011–2036. committed to complying with the E- to conform to the final rule ■ 5. Designate §§ 273.1 and 273.2 as Government Act of 2002, to promote the requirements. Subpart A of part 273 and add a subpart use of the Internet and other ■ 3. Section 272.2 is amended by adding heading to read as follows: information technologies to provide a new paragraph (d)(1)(xvi) to read as increased opportunities for citizen follows: Subpart A—General Rules access to Government information and services, and for other purposes. § 272.2 Plan of operation. ■ 6. In § 273.2: ■ a. Paragraph (c)(3) is amended by List of Subjects * * * * * (d) * * * adding three new sentences after the 7 CFR Part 272 (1) * * * second sentence. ■ b. Paragraph (f)(1)(xii) is amended by Alaska, Civil rights, Food stamps, (xvi) If the State agency chooses to adding four new sentences after the Grant programs—social programs, implement the optional provisions third sentence. Penalties, Reporting and recordkeeping specified in: ■ (A) Sections 273.2(f)(1)(xii), c. Paragraph (f)(2)(iii) is removed. requirements. ■ d. A new paragraph (f)(4)(v) is added. 273.2(f)(8)(i)(A), 273.9(d)(5), ■ e. Paragraph (f)(8)(i)(A) is revised. 7 CFR Part 273 273.9(d)(6)(i), and 273.12(a)(4) of this The additions and revision read as Administrative practice and chapter, it must include in the Plan’s follows: procedure, Aliens, Claims, Employment, attachment the options it has selected; Food stamps, Fraud, Government (B) Section 273.8(e)(19) of this § 273.2 Office operations and application employees. Grant programs—social chapter, it must include in the Plan’s processing. programs, Income taxes, Reporting and attachment a statement that the option * * * * * recordkeeping requirements, Students, has been selected and a description of (c) * * * Supplemental Security income, Wages. the resources being excluded under the (3) * * * If the State agency ■ Accordingly, 7 CFR parts 272 and 273 provision; maintains a Web page, it must make the are amended as follows: (C) Section 273.9(c)(3) of this chapter, application available on the Web page ■ 1. The authority citation for parts 272 it must include in the Plan’s attachment in each language in which the State and 273 continues to read as follows: a statement that the option has been agency makes a printed application selected and a description of the types Authority: 7 U.S.C. 2011–2036. available. The State agency must of educational assistance being provide on the Web page the addresses PART 272—REQUIREMENTS FOR excluded under the provision; and phone numbers of all State food PARTICIPATING STATE AGENCIES (D) Section 273.9(c)(18) of this stamp offices and a statement that the chapter, it must include in the Plan’s household should return the application ■ 2. Section 272.1 is amended by adding attachment a statement that the option form to its nearest local office. The a new paragraph (g)(173) to read as has been selected and a description of applications must be accessible to follows: the types of payments being excluded persons with disabilities in accordance under the provision; with Section 504 of the Rehabilitation § 272.1 General terms and conditions. (E) Section 273.9(c)(19) of this Act of 1973, Public Law 93–112, as * * * * * chapter, it must include in the Plan’s amended by the Rehabilitation Act (g) * * * attachment a statement that the option Amendments of 1974, Public Law 93– (173) Amendment No. 401. The has been selected and a description of 516, 29 U.S.C. 794. * * * provisions of Amendment No. 401 are the types of income being excluded * * * * * implemented as follows: under the provision; (i) The following amendments were to (f) * * * (F) Section 273.12(a)(5) of this be implemented October 1, 2002: 7 CFR (1) * * * chapter, it must include in the Plan’s 273.4(a)(6)(ii)(H), 7 CFR 273.8(b), and 7 (xii) * * * For households that pay attachment a statement that the option CFR 273.9(d)(1). their child support exclusively through (ii) The following amendments were has been selected and a description of their State CSE agency, the State agency to be implemented April 1, 2003: 7 CFR the types of households to whom the may use information provided by that 273.4(a)(6)(ii)(B) through 7 CFR option applies; agency in determining a household’s 273.4(a)(6)(ii)(F) and 273.4(a)(6)(iii). (G) Section 273.12(c) of this chapter, legal obligation to pay child support, the (iii) The following amendments were it must include in the Plan’s attachment amount of its obligation and amount the to be implemented October 1, 2003: 7 a statement that the option has been household has actually paid. A CFR 273.4 (a)(6)(ii)(J); 7 CFR selected and a description of the household would not have to provide 273.4(c)(3)(vi). deductions affected; and additional verification unless it (iv) State agencies must implement (H) Section 273.26 of this chapter, it disagrees with the data presented by the the following amendments no later than must include in the Plan’s attachment a State CSE agency. Before the State August 1, 2010: 7 CFR 273.4(c)(2)(v), 7 statement that the option has been agency may use the CSE agency’s CFR 273.4(c)(3)(iv), 7 CFR selected and specify the categories of information, the household must sign a 273.4(c)(3)(vii), 7 CFR 273.9(b)(1)(vi), households eligible for transitional statement authorizing release of the and 7 CFR 273.9(c)(3)(ii)(A). benefits and the maximum number of household’s child support payment (v) State agencies may implement all months for which such benefits will be records to the State agency. State other amendments on or after the provided. agencies that choose to rely on effective date. * * * * * information provided by their State CSE

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agency in accordance with this by their State CSE agency in accordance to the United States as a refugee under paragraph (f)(1)(xii) must specify in with this paragraph (f)(8)(i)(A) must Section 207 of the INA; their State plan of operation that they specify in their State plan of operation (iii) The spouse, child, parent or have selected this option. * * * that they have selected this option. For unmarried minor sibling of a victim of * * * * * all other households eligible for the a severe form of trafficking in persons (4) * * * child support deduction or exclusion, under 21 years of age, and who has (v) Homeless households. Homeless the State agency shall require the received a derivative T visa, to the same households claiming actual shelter household to verify any changes in the extent as an alien who is admitted to the expenses or those with extremely low legal obligation to pay child support, the United States as a refugee under Section shelter costs may provide verification of obligated amount, and the amount of 207 of the INA; or their shelter expenses to qualify for the legally obligated child support a (iv) The spouse or child of a victim of homeless shelter deduction if the State household member pays to a a severe form of trafficking in persons agency has such a deduction. If a nonhousehold member. The State 21 years of age or older, and who has homeless household has difficulty in agency shall verify reportedly received a derivative T visa, to the same obtaining traditional types of unchanged child support information extent as an alien who is admitted to the verification of shelter costs, the only if the information is incomplete, United States as a refugee under Section caseworker shall use prudent judgment inaccurate, inconsistent or outdated. 207 of the INA; or in determining if the verification * * * * * (6) An individual who is both a qualified alien as defined in paragraph obtained is adequate. For example, if a ■ 7. Designate §§ 273.3 and 273.4 as (a)(6)(i) of this section and an eligible homeless individual claims to have Subpart B of part 273 and add a subpart alien as defined in paragraph (a)(6)(ii) or incurred shelter costs for several nights heading to read as follows: and the costs are comparable to costs (a)(6)(iii) of this section. typically incurred by homeless people Subpart B—Residency and Citizenship (i) A qualified alien is: for shelter, the caseworker may decide (A) An alien who is lawfully admitted to accept this information as adequate ■ 8. In § 273.4: for permanent residence under the INA; information and not require further ■ a. Paragraphs (a)(5) and (a)(6) are (B) An alien who is granted asylum verification. redesignated as paragraphs (a)(6) and under section 208 of the INA; (C) A refugee who is admitted to the * * * * * (a)(7) respectively. ■ b. A new paragraph (a)(5) is added. United States under section 207 of the (8) * * * ■ (i) * * * c. Newly redesignated paragraph (a)(6) INA; is revised. (D) An alien who is paroled into the (A) At recertification the State agency ■ shall verify a change in income if the d. Newly redesignated paragraph U.S. under section 212(d)(5) of the INA source has changed or the amount has (a)(7) is amended by removing the for a period of at least 1 year; ‘‘ changed by more than $50. Previously words and (a)(5)(ii)(H) through (E) An alien whose deportation is ’’ unreported medical expenses, actual (a)(5)(ii)(J) and adding in their place being withheld under section 243(h) of ‘‘ ’’ utility expenses and total recurring and (a)(6)(ii)(I). the INA as in effect prior to April 1, ■ e. Paragraph (c)(2) introductory text is medical expenses which have changed 1997, or whose removal is withheld amended by removing the words by more than $25 shall also be verified under section 241(b)(3) of the INA; ‘‘paragraph (a)(5)(ii)(A)’’ and adding in (F) An alien who is granted at recertification. The State agency shall their place ‘‘paragraph (a)(6)(ii)(A)’’. conditional entry pursuant to section not verify income if the source has not ■ f. Paragraph (c)(2)(v) is amended by 203(a)(7) of the INA as in effect prior to changed and if the amount is unchanged adding a new sentence to the end of the April 1, 1980; or has changed by $50 or less, unless the paragraph. (G) An alien who has been battered or information is incomplete, inaccurate, ■ g. Paragraph (c)(3)(iv) is amended by subjected to extreme cruelty in the U.S. inconsistent or outdated. The State adding three new sentences after the by a spouse or a parent or by a member agency shall also not verify total first sentence, and is further amended of the spouse or parent’s family residing medical expenses, or actual utility by removing the semi-colon at the end in the same household as the alien at the expenses claimed by households which of the last sentence and adding in its time of the abuse, an alien whose child are unchanged or have changed by $25 place a period, and by adding three has been battered or subjected to battery or less, unless the information is sentences to the end of the paragraph. or cruelty, or an alien child whose incomplete, inaccurate, inconsistent or ■ h. A new paragraph (c)(3)(vi) is added. parent has been battered; 2 or outdated. For households eligible for the ■ i. A new paragraph (c)(3)(vii) is added. (H) An alien who is a Cuban or child support deduction or exclusion, The revision and additions read as Haitian entrant, as defined in section the State agency may use information follows: 501(e) of the Refugee Education provided by the State CSE agency in Assistance Act of 1980. determining the household’s legal § 273.4 Citizenship and alien status. (ii) A qualified alien, as defined in obligation to pay child support, the (a) * * * paragraph (a)(6)(i) of this section, is amount of its obligation and amounts (5) An individual who is: eligible to receive food stamps and is the household has actually paid if the (i) An alien who has been subjected not subject to the requirement to be in household pays its child support to a severe form of trafficking in persons qualified status for 5 years as set forth exclusively through its State CSE agency and who is certified by the Department in paragraph (a)(6)(iii) of this section, if and has signed a statement authorizing of Health and Human Services, to the such individual meets at least one of the release of its child support payment same extent as an alien who is admitted criteria of this paragraph (a)(6)(ii): records to the State agency. A to the United States as a refugee under (A) An alien age 18 or older lawfully household would not have to provide Section 207 of the INA; or admitted for permanent residence under any additional verification unless they (ii) An alien who has been subjected disagreed with the information provided to a severe form of trafficking in persons 2 For guidance, see Exhibit B to Attachment 5 of by the State CSE agency. State agencies and who is under the age of 18, to the the DOJ Interim Guidance published at 62 FR 61344 that choose to use information provided same extent as an alien who is admitted on November 17, 1997.

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the INA who has 40 qualifying quarters (F) An Amerasian admitted pursuant residency. If the resident is absent for as determined under Title II of the SSA, to section 584 of Public Law 100–202, more than 6 months, the agency shall including qualifying quarters of work as amended by Public Law 100–461; presume that U.S. residency was not covered by Title II of the SSA, based (G) An alien with one of the following interrupted unless the alien presents on the sum of: quarters the alien military connections: evidence of his or her intent to resume worked; quarters credited from the work (1) A veteran who was honorably U.S. residency. In determining whether of a parent of the alien before the alien discharged for reasons other than alien an alien with an interrupted period of became 18 (including quarters worked status, who fulfills the minimum active- U.S. residency has resided in the United before the alien was born or adopted); duty service requirements of 38 U.S.C. States for 5 years, the agency shall and quarters credited from the work of 5303A(d), including an individual who consider all months of residency in the a spouse of the alien during their died in active military, naval or air United States, including any months of marriage if they are still married or the service. The definition of veteran residency before the interruption: spouse is deceased. includes an individual who served (A) An alien age 18 or older lawfully (1) A spouse may not get credit for before July 1, 1946, in the organized admitted for permanent residence under quarters of a spouse when the couple military forces of the Government of the the INA. divorces prior to a determination of food Commonwealth of the Philippines while (B) An alien who is paroled into the stamp eligibility. However, if the State such forces were in the service of the U.S. under section 212(d)(5) of the INA agency determines eligibility of an alien Armed Forces of the U.S. or in the for a period of at least 1 year; based on the quarters of coverage of the Philippine Scouts, as described in 38 (C) An alien who has been battered or spouse, and then the couple divorces, U.S.C. 107; subjected to extreme cruelty in the U.S. the alien’s eligibility continues until the (2) An individual on active duty in by a spouse or a parent or by a member next recertification. At that time, the the Armed Forces of the U.S. (other than of the spouse or parent’s family residing State agency must determine the alien’s for training); or in the same household as the alien at the (3) The spouse and unmarried eligibility without crediting the alien time of the abuse, an alien whose child dependent children of a person with the former spouse’s quarters of has been battered or subjected to battery described in paragraphs (a)(6)(ii)(G)(1) coverage. or cruelty, or an alien child whose or (a)(6)(ii)(G)(2) of this section, (2) After December 31, 1996, a quarter parent has been battered; including the spouse of a deceased in which the alien actually received any (D) An alien who is granted veteran, provided the marriage fulfilled Federal means-tested public benefit, as conditional entry pursuant to section the requirements of 38 U.S.C. 1304, and defined by the agency providing the 203(a)(7) of the INA as in effect prior to the spouse has not remarried. An benefit, or actually received food stamps April 1, 1980. unmarried dependent child for purposes is not creditable toward the 40-quarter (iv) Each category of eligible alien total. Likewise, a parent’s or spouse’s of this paragraph (a)(6)(ii)(G)(3) is: a status stands alone for purposes of quarter is not creditable if the parent or child who is under the age of 18 or, if determining eligibility. Subsequent spouse actually received any Federal a full-time student, under the age of 22; adjustment to a more limited status does means-tested public benefit or actually such unmarried dependent child of a not override eligibility based on an received food stamps in that quarter. deceased veteran provided such child earlier less rigorous status. Likewise, if The State agency must evaluate quarters was dependent upon the veteran at the eligibility expires under one eligible of coverage and receipt of Federal time of the veteran’s death; or an status, the State agency must determine means-tested public benefits on a unmarried disabled child age 18 or if eligibility exists under another status. calendar year basis. The State agency older if the child was disabled and must first determine the number of dependent on the veteran prior to the * * * * * quarters creditable in a calendar year, child’s 18th birthday. For purposes of (c) * * * then identify those quarters in which this paragraph (a)(6)(ii)(G)(3), child (2) * * * the alien (or the parent(s) or spouse of means the legally adopted or biological (v) * * * The State agency must use the alien) received Federal means-tested child of the person described in the same procedure to determine the public benefits and then remove those paragraph (a)(6)(ii)(G)(1) or amount of deemed income and quarters from the number of quarters of (a)(6)(ii)(G)(2) of this section. resources to exclude in the case of a coverage earned or credited to the alien (H) An individual who is receiving sponsored alien or a citizen child of a in that calendar year. However, if the benefits or assistance for blindness or sponsored alien who is exempt from alien earns the 40th quarter of coverage disability (as specified in § 271.2 of this deeming in accordance with paragraphs prior to applying for food stamps or any chapter). (c)(3)(vi) or (c)(3)(vii) of this section. other Federal means-tested public (I) An individual who on August 22, (3) * * * benefit in that same quarter, the State 1996, was lawfully residing in the U.S., (iv) * * * Prior to determining agency must allow that quarter toward and was born on or before August 22, whether an alien is indigent, the State the 40 qualifying quarters total; 1931; or agency must explain the purpose of the (B) An alien admitted as a refugee (J) An individual who is under 18 determination to the alien and/or under section 207 of the INA; years of age. household representative and provide (C) An alien granted asylum under (iii) The following qualified aliens, as the alien and/or household section 208 of the INA; defined in paragraph (a)(6)(i) of this representative the opportunity to refuse (D) An alien whose deportation is section, must be in a qualified status for the determination. If the household withheld under section 243(h) of the 5 years before being eligible to receive refuses the determination, the State INA as in effect prior to April 1, 1997, food stamps. The 5 years in qualified agency will not complete the or whose removal is withheld under status may be either consecutive or determination and will deem the section 241(b)(3) or the INA; nonconsecutive. Temporary absences of sponsor’s income and resources to the (E) An alien granted status as a Cuban less than 6 months from the United alien’s household in accordance with or Haitian entrant (as defined in section States with no intention of abandoning paragraph (c)(2) of this section. The 501(e) of the Refugee Education U.S. residency do not terminate or State agency must inform the sponsored Assistance Act of 1980); interrupt the individual’s period of U.S. alien of the consequences of refusing

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this determination. * * * State agencies shall also not be excluded. The term (c) * * * may develop an administrative process ‘‘readily available’’ applies to resources (3) * * * under which information about the that the owner can simply withdraw (ii) * * * sponsored alien is not shared with the from a financial institution. State (A) Received under 20 CFR 1087uu. Attorney General or the sponsor without agencies may exclude deposits in This exemption includes student the sponsored alien’s consent. The State individual development accounts assistance received under part E of agency must inform the sponsored alien (IDAs). A State agency that chooses to subchapter IV of Chapter 28 of title 20 of the consequences of failure to provide exclude resources under this paragraph and part C of subchapter I of chapter 34 such consent. If the sponsored alien (e)(19) must specify in its State plan of of title 42, or under Bureau of Indian fails to provide consent, he or she shall operation that it has selected this option Affairs student assistance programs. be ineligible pursuant to paragraph and provide a description of the * * * * * (c)(5) of this section, and the State resources that are being excluded. (v) At its option, the State agency may agency shall determine the eligibility * * * * * exclude any educational assistance that and benefit level of the remaining ■ 12. In § 273.9: must be excluded under its State household members in accordance with ■ a. Paragraph (b)(1)(vi) is amended by Medicaid rules that would not already § 273.11(c). adding a new sentence to the end of the be excluded under this section. A State * * * * * paragraph. agency that chooses to exclude (vi) A sponsored alien child under 18 ■ b. Paragraph (c)(3)(ii) is amended by educational assistance under this years of age of a sponsored alien. redesignating paragraphs (c)(3)(ii)(A) paragraph (c)(3)(v) must specify in its (vii) A citizen child under age 18 of and (c)(3)(ii)(B) as paragraphs State plan of operation that it has a sponsored alien. (c)(3)(ii)(B) and (c)(3)(ii)(C), respectively selected this option and provide a * * * * * and adding a new paragraph description of the educational assistance ■ 9. Designate §§ 273.5, 273.6, and 273.7 (c)(3)(ii)(A). that is being excluded. The provisions as Subpart C of part 273 and add a ■ c. Paragraph (c)(3)(iii), first sentence is of paragraphs (c)(3)(ii), (c)(3)(iii) and subpart heading to read as follows: amended by removing the reference (c)(3)(iv) of this section do not apply to ‘‘paragraph (c)(3)(ii)(B)’’ and adding in income excluded under this paragraph Subpart C—Education and its place the reference ‘‘paragraph (c)(3)(v). Employment (c)(3)(ii)(C)’’. * * * * * ■ d. A new paragraph (c)(3)(v) is added. (17) Legally obligated child support ■ 10. Designate §§ 273.8, 273.9, 273.10, ■ e. New paragraphs (c)(17), (c)(18) and payments paid by a household member and 273.11 as Subpart D of part 273 and (c)(19) are added. to or for a nonhousehold member, add a subpart heading to read as ■ f. Paragraph (d)(1) is revised. including payments made to a third follows: ■ g. Paragraph (d)(2) is amended by party on behalf of the nonhousehold member (vendor payments) and Subpart D—Eligibility and Benefit revising the second sentence. ■ amounts paid toward child support Levels h. Paragraph (d)(5) is revised. ■ i. Paragraph (d)(6) is amended by arrearages. However, at its option, the ■ 11. Section 273.8 is amended in revising the paragraph heading. State agency may allow households a paragraph (b) after the words ‘‘for ■ j. Paragraph (d)(6)(i) is amended by deduction for such child support households including’’ by adding ‘‘one revising the first sentence and adding a payments in accordance with paragraph or more disabled members or’’ and by new sentence at the end of the (d)(5) of this section rather than an adding a new paragraph (e)(19) to read paragraph. income exclusion. as follows: ■ k. Paragraph (d)(6)(iii)(C) is amended (18) At the State agency’s option, any by adding at the end of the third State complementary assistance § 273.8 Resource eligibility standards. sentence the words ‘‘unless the State program payments excluded for the * * * * * agency mandates the use of standard purpose of determining eligibility under (e) * * * utility allowances in accordance with section 1931 of the SSA for a program (19) At State agency option, any paragraph (d)(6)(iii)(E) of this section’’. funded under Title XIX of the SSA. A resources that the State agency excludes ■ l. Paragraph (d)(6)(iii)(E) is amended State agency that chooses to exclude when determining eligibility or benefits by removing the fifth sentence and complementary assistance program for TANF cash assistance, as defined by adding four new sentences after the payments under this paragraph (c)(18) 45 CFR 260.31 (a)(1) and (a)(2), or second sentence. must specify in its State plan of medical assistance under Section 1931 ■ m. Paragraph (d)(6)(iii)(F) is amended operation that it has selected this option of the SSA. Resource exclusions under by revising the first sentence and by and provide a description of the types TANF and Section 1931 programs that removing the word ‘‘However, ’’ at the of payments that are being excluded. do not evaluate the financial beginning of the second sentence and (19) At the State agency’s option, any circumstances of adults in the capitalizing the next word, ‘‘The’’. types of income that the State agency household and programs grandfathered The additions and revisions read as excludes when determining eligibility under Section 404(a)(2) of the SSA shall follows: or benefits for TANF cash assistance as not be excluded under this paragraph defined by 45 CFR 260.31(a)(1) and (e)(19). Additionally, licensed vehicles § 273.9 Income and deductions. (a)(2), or medical assistance under not excluded under Section 5(g)(2)(C) or * * * * * Section 1931 of the SSA, (but not for (D) of the Food Stamp Act of 1977, as (b) * * * programs that do not evaluate the amended (7 U.S.C. 2014(g)(2)(C) or (D)), (1) * * * financial circumstances of adults in the cash on hand, amounts in any account (vi) * * * Earned income from work household and programs grandfathered in a financial institution that are readily study programs that are funded under under Section 404(a)(2) of the SSA). The available to the household including section 20 U.S.C. 1087uu of the Higher State agency must exclude for food money in checking or savings accounts, Education Act is excluded. stamp purposes the same amount of savings certificates, stocks, or bonds * * * * * income it excludes for TANF or

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Medicaid purposes. A State agency that standard deduction for a six-person allowance that includes heating or chooses to exclude income under this household. cooling costs provided to a household paragraph (c)(19) must specify in its (iii) Minimum deduction levels. that lives and shares heating or cooling State plan of operation that it has Notwithstanding paragraphs (d)(1)(i) expenses with others. In determining selected this option and provide a and (d)(1)(ii) of this section, the whether the standard utility allowances description of the resources that are standard deduction in any year for each increase program costs, the State agency being excluded. The State agency shall household in the 48 States and the shall not consider any increase in costs not exclude: District of Columbia, Alaska, Hawaii, that results from providing a standard (i) Wages or salaries; Guam, and the Virgin Islands shall not utility allowance that includes heating (ii) Gross income from a self- be less than $134, $229, $189, $269, and or cooling costs to residents of public employment enterprise, including the $118, respectively. housing units which have central utility types of income referenced in paragraph (2) * * * Earnings excluded in meters and which charge the (b)(1)(ii) of this section. Determining paragraph (c) of this section shall not be households only for excess heating or monthly income from self-employment included in gross earned income for cooling costs. The State agency shall must be calculated in accordance with purposes of computing the earned also not consider any increase in costs § 273.11(a)(2); income deduction, except that the State that results from providing a full (i.e., (iii) Benefits under Title I, II, IV, X, agency must count any earnings used to not prorated) standard utility allowance XIV or XVI of the SSA, including pay child support that were excluded that includes heating or cooling costs to supplemental security income (SSI) from the household’s income in a household that lives and shares benefits, TANF benefits, and foster care accordance with the child support heating or cooling expenses with others. and adoption payments from a exclusion in paragraph (c)(17) of this *** government source;. section. (F) If a household lives with and (iv) Regular payments from a * * * * * shares heating or cooling expenses with government source. Payments or (5) Optional child support deduction. another individual, another household, allowances a household receives from At its option, the State agency may or both, the State agency shall not an intermediary that are funded from a provide a deduction, rather than the prorate the standard for such government source are considered income exclusion provided under households if the State agency mandates payments from a government source; paragraph (c)(17) of this section, for use of standard utility allowances in (v) Worker’s compensation; legally obligated child support accordance with paragraph (d)(6)(iii)(E) (vi) Child support payments, support payments paid by a household member of this section. * * * or alimony payments made to the to or for a nonhousehold member, ■ 13. In § 273.10: household from a nonhousehold including payments made to a third ■ a. The introductory text of paragraph member; (d) is revised. (vii) Annuities, pensions, retirement party on behalf of the nonhousehold member (vendor payments) and ■ b. Paragraph (d)(8) is revised. benefits; ■ c. Paragraph (e)(1)(i)(B) is amended by (viii) Disability benefits or old age or amounts paid toward child support arrearages. Alimony payments made to adding a new sentence to the end of the survivor benefits; and paragraph. (ix) Monies withdrawn or dividends or for a nonhousehold member shall not be included in the child support ■ d. Paragraph (e)(1)(i)(F) is revised. received by a household from trust ■ deduction. A State agency that chooses e. The introductory text of paragraph funds considered to be excludable (f) is revised. resources under § 273.8(e)(8). to provide a child support deduction ■ rather than an exclusion in accordance f. Paragraph (f)(4) is revised. (d) * * * The revisions and addition read as with this paragraph (d)(5) must specify (1) Standard deduction—(i) 48 States, follows: District of Columbia, Alaska, Hawaii, in its State plan of operation that it has and the Virgin Islands. Effective October chosen to provide the deduction rather § 273.10 Determining household eligibility 1, 2002, in the 48 States and the District than the exclusion. and benefit levels. of Columbia, Alaska, Hawaii, and the (6) Shelter costs. (i) * * * A State * * * * * Virgin Islands, the standard deduction agency may provide a standard (d) Determining deductions. for household sizes one through six homeless shelter deduction of $143 a Deductible expenses include only shall be equal to 8.31 percent of the month to households in which all certain dependent care, shelter, medical monthly net income eligibility standard members are homeless individuals but and, at State agency option, child for each household size established are not receiving free shelter throughout support costs as described in § 273.9. under paragraph (a)(2) of this section the month. * * * A State agency that * * * * * rounded up to the nearest whole dollar. chooses to provide a homeless (8) Optional child support deduction. For household sizes greater than six, the household shelter deduction must If the State agency opts to provide standard deduction shall be equal to the specify in its State plan of operation that households with an income deduction standard deduction for a six-person it has selected this option. rather than an income exclusion for household. * * * * * legally obligated child support (ii) Guam. Effective October 1, 2002, (iii) * * * payments in accordance with in Guam, the standard deduction for (E) * * * If the State agency chooses § 273.9(d)(5), the State agency may household sizes one through six shall be to mandate use of standard utility budget such payments in accordance equal to 8.31 percent of double the allowances, it must provide a standard with paragraphs (d)(2) through (d)(5) of monthly net income eligibility standard utility allowance that includes heating this section, or retrospectively, in for each household size for the 48 States or cooling costs to residents of public accordance with § 273.21(b) and and the District of Columbia established housing units which have central utility § 273.21(f)(2), regardless of the under paragraph (a)(2) of this section meters and which charge the budgeting system used for the rounded up to the nearest whole dollar. households only for excess heating or household’s other circumstances. For household sizes greater than six, the cooling costs. The State agency also (e) * * * standard deduction shall be equal to the must not prorate a standard utility (1) * * *

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(i) * * * number of months in its certification removing the first sentence and by (B) * * * If the State agency has period during the transitional period, adding four new sentences to the chosen to treat legally obligated child and the State agency has chosen to beginning of the paragraph; support payments as an income recertify the household in accordance ■ g. A new paragraph (b)(1)(vi) is added; exclusion in accordance with with § 273.28(b). If the transition period ■ h. Paragraph (b)(2) is revised; § 273.9(c)(17), multiply the excluded results in a shortening of the ■ i. The introductory text of paragraph earnings used to pay child support by household’s certification period, the (c) is amended by: 20 percent and subtract that amount State agency shall not issue a household ■ 1. Removing the word ‘‘shall’’ in the from the total gross monthly income. a notice of adverse action but shall second sentence and adding in its place * * * * * specify in the transitional notice the word ‘‘may’’; (F) If the State agency has chosen to required under § 273.29 that the ■ 2. Removing the word ‘‘However,’’ at treat legally obligated child support household must be recertified when it the beginning of the fourth sentence and payments as a deduction rather than an reaches the end of the transitional capitalizing the next word, ‘‘During’’; exclusion in accordance with benefit period or if it returns to TANF and § 273.9(d)(5), subtract allowable during the transitional period. ■ 3. Adding one new sentence after the monthly child support payments in * * * * * first sentence. ■ accordance with § 273.9(d)(5). ■ 14. In § 273.11: j. A new paragraph (c)(4) is added; ■ * * * * * ■ a. Paragraph (c)(1)(ii) is amended by k. Paragraph (f)(4) is removed. (f) Certification periods. The State redesignating paragraphs (c)(1)(ii)(B) The additions and revisions read as agency must certify each eligible and (c)(1)(ii)(C) as paragraphs follows: household for a definite period of time. (c)(1)(ii)(C) and (c)(1)(ii)(D), § 273.12 Reporting requirements. State agencies must assign the longest respectively, and adding a new (a) * * * certification period possible based on paragraph (c)(1)(ii)(B). the predictability of the household’s ■ (1) * * * Simplified reporting b. Paragraph (c)(2)(iv) is amended by households are subject to the circumstances. The first month of the redesignating paragraphs (c)(2)(iv)(B) certification period will be the first procedures as provided in paragraph and (c)(2)(iv)(C) as paragraphs (a)(5) of this section. * * * month for which the household is (c)(2)(iv)(C) and (c)(2)(iv)(D), eligible to participate. The certification respectively, and adding a new * * * * * period cannot exceed 12 months except paragraph (c)(2)(iv)(B). (vi) * * * However, the State agency to accommodate a household’s The additions read as follows: may remove this reporting requirement transitional benefit period and as if it has chosen to use information specified in paragraphs (f)(1) and (f)(2) § 273.11 Action on households with provided by the State’s CSE agency in of this section. special circumstances. determining a household’s legal * * * * * * * * * * obligation to pay child support, the (4) Shortening certification periods. (c) * * * amount of its obligation, and amounts The State agency may not end a (1) * * * the household has actually paid in household’s certification period earlier (ii) * * * accordance with § 273.2(f)(1)(xii). than its assigned termination date, (B) Assigning a standard deduction to * * * * * unless the State agency receives the household; (5) The State agency may establish a information that the household has * * * * * simplified reporting system in lieu of become ineligible, the household has (2) * * * the change reporting requirements not complied with the requirements of (iv) * * * specified under paragraph (a)(1) of this § 273.12(c)(3), or the State agency must (B) Assigning a standard deduction to section. The following requirements are shorten the household’s certification the household; applicable to simplified reporting period to comply with the requirements * * * * * systems: of § 273.12(a)(5). Loss of public ■ 15. Designate §§ 273.12, 273.13, and (i) Included households. The State assistance or a change in employment 273.14 as Subpart E of part 273 and add agency may include any household status is not sufficient in and of itself to a subpart heading to read as follows: certified for at least 4 months within a meet the criteria necessary for simplified reporting system. shortening the certification period. The Subpart E—Continuing Participation (ii) Notification of simplified reporting State agency must close the household’s requirement. At the initial certification, case or adjust the household’s benefit ■ 16. In § 273.12: recertification and when the State amount in accordance with ■ a. The heading is revised; agency transfers the households to § 273.12(c)(1) or (c)(2) in response to ■ b. Paragraph (a)(1) introductory text is simplified reporting, the State agency reported changes. The State agency amended by adding a sentence after the shall provide the household with the must issue a notice of adverse action as second sentence; following: provided in § 273.13 to shorten a ■ c. Paragraph (a)(1)(vi) is amended by (A) A written and oral explanation of participating household’s certification adding a new sentence to the end of the how simplified reporting works; period in connection with imposing the paragraph; (B) A written and oral explanation of simplified reporting requirement. The ■ d. Paragraph (a)(1)(vii) is removed and the reporting requirements including: State agency may not use the Notice of paragraph (a)(1)(viii) is redesignated as (1) What needs to be reported and Expiration to shorten a certification paragraph (a)(1)(vii); verified; period, except that the State agency ■ e. Paragraphs (a)(5) and (a)(6) are (2) When the report is due; must use the Notice of Expiration to redesignated as paragraphs (a)(6) and (3) How to obtain assistance; and shorten a household’s certification (a)(7) respectively, and a new paragraph (4) The consequences of failing to file period when the household is receiving (a)(5) is added; a report. transitional benefits under Subpart H, ■ f. Newly redesignated paragraph (a)(6) (C) Special assistance in completing has not reached the maximum allowable introductory text is amended by and filing periodic reports to

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households whose adult members are (E) The periodic report form shall be (2) The State agency has information all either mentally or physically the sole reporting requirement for any about the household’s circumstances handicapped or are non-English information that is required to be considered verified upon receipt; or speaking or otherwise lacking in reading reported on the form, except that a (3) There has been a change in the and writing skills such that they cannot household required to report less household’s PA grant, or GA grant in complete and file the required report; frequently than quarterly shall report project areas where GA and food stamp and when its monthly gross income exceeds cases are jointly processed in accord (D) A telephone number (toll-free the monthly gross income limit for its with § 273.2(j)(2). number or a number where collect calls household size in accordance with (vii) State plan requirement. A State will be accepted outside the local paragraph (a)(5)(v) of this section, and agency that chooses to use simplified calling area) which the household may able-bodied adults subject to the time reporting procedures in accordance with call to ask questions or to obtain help limit of § 273.24 shall report whenever this section must state in its State plan in completing the periodic report. their work hours fall below 20 hours per of operation that it has implemented (iii) Periodic report. (A) The State week, averaged monthly. simplified reporting and specify the agency may require a household to (iv) Processing periodic reports. In types of households to whom the submit a periodic report on its selecting a due date for the periodic reporting requirement applies. circumstances from once every 4 report, the State agency must provide (6) For households eligible for the months up to once every 6 months. The itself sufficient time to process reports child support exclusion at § 273.9(c)(17) State agency need not require a so that households will receive adequate or deduction at § 273.9(d)(5), the State household certified for 6 months or less notice of action on the report in the first agency may use information provided to submit a periodic report during its month of the new reporting period. by the State CSE agency in determining certification period. However, except for (v) Reporting when gross income the household’s legal obligation to pay households in which all adults are exceeds 130 percent of poverty. A child support, the amount of its elderly or disabled with no earned household subject to simplified obligation and amounts the household income, a household certified for more reporting in accordance with paragraph has actually paid if the household pays than 6 months must submit a periodic (a)(5)(i) of this section, whether or not its child support exclusively through its report at least once every 6 months. it is required to submit a periodic State CSE agency and has signed a Households in which all adults are report, must report when its monthly statement authorizing release of its child elderly or disabled with no earned gross income exceeds the monthly gross support payment records to the State income must not be required to submit income limit for its household size, as agency. A household would not have to periodic reports more frequently than defined at § 273.9(a)(1). The household provide any additional verification once a year. shall use the monthly gross income unless they disagreed with the (B) The periodic report form must limit for the household size that existed information provided by the State CSE request from the household information at the time of its most recent agency. State agencies that choose to on any changes in circumstances in certification or recertification, regardless utilize information provided by their accordance with paragraphs (a)(1)(i) of any subsequent changes in its State CSE agency in accordance with through (a)(1)(vii) of this section and household size. this paragraph (a)(6) must specify in conform to the requirements of (vi) State agency action on changes their State plan of operation that they paragraph (b)(2) of this section. reported outside of a periodic report. have selected this option. If the State (C) If the household files a complete The State agency must act when the agency chooses not to utilize report resulting in reduction or household reports that its gross monthly information provided by its State CSE termination of benefits, the State agency income exceeds the gross monthly agency, the State agency may make shall send an adequate notice, as income limit for its household size. For reporting child support payments an defined in § 271.2 of this chapter. The other changes, the State agency need not optional change reporting item in notice must be issued so that the act if the household reports a change for accordance with paragraph (a)(5) of this household will receive it no later than another public assistance program in section. * * * the time that its benefits are normally which it is participating and the change * * * * * received. If the household fails to does not trigger action in that other (b) * * * provide sufficient information or program but results in a decrease in the (1) * * * verification regarding a deductible household’s food stamp benefit. The (vi) If the State agency has chosen to expense, the State agency will not State agency must act on all other disregard reported changes that affect terminate the household, but will changes reported by a household some deductions in accordance with instead determine the household’s outside of a periodic report in paragraph (c) of this section, a statement benefits without regard to the accordance with one of the following explaining that the State agency will not deduction. two methods: change certain deductions until the (D) If a household fails to file a (A) The State agency must act on any household’s next recertification and complete report by the specified filing change in household circumstances in identifying those deductions. date, the State agency will send a notice accordance with paragraph (c) of this (2) The quarterly report form, to the household advising it of the section; or including the form for the quarterly missing or incomplete report no later (B) The State agency must act on any reporting of the child support than 10 days from the date the report change in accordance with paragraph obligation, and the periodic report form should have been submitted. If the (c)(1) of this section if it would increase used in simplified reporting under household does not respond to the the household’s benefits. The State paragraph (a)(5)(ii) of this section, must: notice, the household’s participation agency must not act on changes that (i) Be written in clear, simple shall be terminated. The State agency would result in a decrease in the language; may combine the notice of a missing or household’s benefits unless: (ii) Meet the bilingual requirements incomplete report with the adequate (1) The household has voluntarily described in § 272.4(b) of this chapter; notice of termination described in requested that its case be closed in (iii) Specify the date by which the paragraph (a)(5)(iii)(C) of this section. accordance with § 273.13(b)(12); agency must receive the form;

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(iv) Specify the consequences of of the report, the State agency should option and specify the deductions submitting a late or incomplete form send a notice to the household that their affected. including whether the State agency allotment will be recalculated without * * * * * shall delay payment if the form is not the deduction. The notice will make it ■ received by a specified date; clear that the household does not need 17. Designate §§ 273.15, 273.16, (v) Specify the verification the to await its first regular utility or rental 273.17, 273.18, and 273.19 as Subpart F household must submit with the form; payments to contact the food stamp of part 273 and add a subpart heading (vi) Inform the household where to office. Alternative forms of verification to read as follows: call for help in completing the form; can be accepted, if necessary. Subpart F—Disqualification and (vii) Include a statement to be signed (ii) In the case of a household Claims by a member of the household assigned a 24-month certification period indicating his or her understanding that in accordance with § 273.10(f)(1) and ■ 18. Designate §§ 273.20, 273.21, the information provided may result in (f)(2), the State agency must act on any 273.22, 273.23, 273.24, and 273.25 as a reduction or termination of benefits; disregarded changes reported during the Subpart G of part 273 and add a subpart (viii) Include a brief description of the first 12 months of the certification heading to read as follows: Food Stamp Program fraud penalties; period at the required 12-month contact (ix) Include a statement explaining for elderly and disabled households and Subpart G—Program Alternatives that the State agency will not change in the thirteenth month of the certain deductions until the household’s certification period for households ■ 19. Add Subpart H to read as follows: next recertification and identify those residing on a reservation who are deductions if the State agency has Subpart H—The Transitional Benefits required to submit monthly reports. Alternative chosen to disregard reported changes Changes reported during the second 12 that affect certain deductions in months of the certification period can be Sec. accordance with paragraph (c) of this 273.26 General eligibility guidelines. disregarded until the household’s next 273.27 General administrative guidelines. section; recertification. (x) If the form requests Social Security 273.28 Application for Food Stamp (iii) If the State agency chooses to act Program recertification. numbers, include a statement of the on changes that affect a deduction, it 273.29 Transitional notice requirements. State agency’s authority to require may not act on changes in only one 273.30 Transitional benefit alternative Social Security numbers (including the direction, i.e., changes that only change reporting requirements. statutory citation, the title of the statute, increase or decrease the amount of the 273.31 Closing the transitional period. and the fact that providing Social deduction, but must act on all changes 273.32 Households who return to TANF Security numbers is mandatory), the that affect the deduction. during the transitional period. purpose of requiring Social Security (iv) The State agency may disregard numbers, the routine uses for Social Subpart H—The Transitional Benefits changes reported by the household in Alternative Security numbers, and the effect of not accordance with paragraph (a)(1) of this providing Social Security numbers. This section and changes it learns of from a § 273.26 General eligibility guidelines. statement may be on the form itself or source other than the household. The included as an attachment to the form. The State agency may elect to provide State agency must not disregard new households leaving TANF with * * * * * deductions, changes in earned income transitional food stamp benefits as (c) * * * However, the State agency or changes in shelter costs arising from provided in this section. A State agency has the option to disregard a reported a reported change in residence until the that chooses to provide transitional change to an established deduction in household’s next recertification or after benefits must state in its State plan of accordance with paragraph (c)(4) of this the sixth month of a 12-month operation that it has selected this option section. * * * certification period but must act on and specify the categories of households * * * * * those reports in accordance with eligible for such benefits, the maximum (4) State agency option for processing paragraphs (c)(1) and (c)(2) of this number of months for which changes in deductible expenses. (i) If section. When a household reports a transitional benefits will be provided the household reports a change to an change in residence, the State agency and any other items required to be established deduction amount during must investigate and take action on included under this subpart H. The the first six months of the certification potential changes in shelter costs arising State agency may choose to limit period, other than a change in earnings from this reported change. However, if transitional benefits to households in or residence, that would affect the a household fails to provide information which all members had been receiving household’s eligibility for, or amount of, regarding the associated changes in TANF, or it may provide such benefits the deduction under § 273.9(d), the shelter costs within 10 days of the to any household in which at least one State agency may at its option disregard report, the State agency should send a member had been receiving TANF. the change and continue to provide the notice to the household that their The State agency may not provide household the deduction amount that allotment will be recalculated without transitional benefits to a household was established at certification until the the deduction. The notice will make it which is leaving TANF when: household’s next recertification or after clear that the household does not need the sixth month for households certified to await its first regular utility or rental (a) The household is leaving TANF for 12 months. When a household payments to contact the food stamp due to a TANF sanction; reports a change in residence, the State office. Alternative forms of verification (b) The household is a member of a agency must investigate and take action can be accepted, if necessary. category of households designated by on potential changes in shelter costs (v) A State agency that chooses to the State agency as ineligible for arising from this reported change. postpone action on reported changes in transitional benefits; However, if a household fails to provide deductions in accordance with this (c) All household members are information regarding the associated paragraph (c) must state in its State plan ineligible to receive food stamps changes in shelter costs within 10 days of operation that it has selected this because they are:

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(1) Disqualified for intentional State agency may also adjust the benefit application while continuing the program violation in accordance with to account for: household’s transitional benefits. § 273.16; (1) Changes in household (2) If the application process cannot (2) Ineligible for failure to comply circumstances that it learns about from be completed due to State agency fault, with a work requirement in accordance another State or Federal means-tested the State agency must continue to with § 273.7; assistance program in which the process the application and provide a (3) Receiving SSI in a cash-out State household participates; or full month’s allotment for the first in accordance with § 273.20; (2) Automatic annual changes in the month of the new certification period. (4) Ineligible students in accordance food stamp benefit rules, such as the The State agency shall determine cause with § 273.5; annual cost of living adjustment. for any delay in processing a (5) Ineligible aliens in accordance (b) The State agency must include in recertification application in accordance with § 273.4; its State plan of operation whether it has with the provisions of § 273.2(h)(1). (6) Disqualified for failing to provide elected to make these changes: (d) If the application process cannot information necessary for making a (1) At the beginning of the transitional be completed because the household determination of eligibility or for period; or failed to take a required action, the State completing any subsequent review of its (2) Both at the beginning and during agency may deny the application at that eligibility in accordance with § 273.2(d) the transitional period. time or at the end of the 30 days. If the and § 273.21(m)(1)(ii); (c) When a household leaves TANF, household is determined to be ineligible (7) Disqualified for knowingly the State agency at its option may end for the program, the State agency will transferring resources for the purpose of the household’s existing certification deny the household’s application for qualifying or attempting to qualify for period and assign the household a new recertification and continue the the program as provided at § 273.8(h); certification period that conforms to the household’s transitional benefits to the (8) Disqualified for receipt of multiple transitional period. The recertification end of the transitional benefit period, at food stamps; requirements at § 273.14 that would which time the State agency will either (9) Disqualified for being a fleeing normally apply when the household’s recertify the household or send a RFC in felon in accordance with § 273.11(n); or certification period ends must be accordance with § 273.31; (10) Able-bodied adults without postponed until the end of the new (e) If the household is determined dependents who fail to comply with the certification period. If the transitional eligible for the regular Food Stamp requirements of § 273.24; period results in a shortening of the Program but is entitled to a benefit (d) The State agency has the option to household’s certification period, the lower than its transitional benefit, the exclude households where all State agency shall not issue a household State agency shall encourage the household members are ineligible to a notice of adverse action under household to withdraw its application receive food stamps because they are: § 273.10(f)(4) but shall specify in the for recertification and continue to (1) Disqualified for failure to perform transitional notice required under receive transitional benefits. If the an action under Federal, State or local § 273.29 that the household must be household chooses not to withdraw its law relating to a means-tested public recertified when it reaches the end of application, the State agency has the assistance program in accordance with the transitional benefit period or if it option to deny the application and § 273.11(k); returns to TANF during the transitional allow the transitional period to run its (2) Ineligible for failing to cooperate period. course, or complete the recertification with child support agencies in process and issue the household the accordance with § 273.11(o) and (p); or § 273.28 Application for Food Stamp (3) Ineligible for being delinquent in Program recertification. lower benefit amount beginning with court-ordered child support in At any time during the transitional the first month of the new certification accordance with § 273.11(q). period, the household may apply for period. (e) The State agency must use recertification. If a household applies (f) If the household is determined procedures at § 273.12(f)(3) to determine for recertification during its transitional eligible for the program, its new the continued eligibility and benefit period, the State agency shall observe certification period will begin with the level of households denied transitional the following procedures: first day of the month following the benefits under this section 273.26. (a) The State agency must schedule an month in which the household interview in accordance with § 273.2(e); submitted the application for § 273.27 General administrative (b) The State agency must provide the recertification. The State agency must guidelines. household with a notice of required issue the household full benefits for that (a) When a household leaves TANF, verification in accordance with month. For example, if the household the State agency may freeze for up to 5 § 273.2(c)(5) and provide the household applied for recertification on the 25th months the household’s benefit amount a minimum of 10 days to provide the day of the third month of a 5-month after making an adjustment for the loss required verification in accordance with transitional period, and the household of TANF. This is the household’s § 273.2(f). is determined eligible for the regular transitional period. To provide the full (c) Households that have met all of Food Stamp Program, the State agency transitional period, the State agency the required application procedures will begin the household’s new may extend the certification period for shall be notified of their eligibility or certification period on the first day of up to 5 months and may extend the ineligibility as soon as possible, but no what would have been the fourth month household’s certification period beyond later than 30 calendar days following of the transitional period. the maximum periods specified in the date the application was filed. (g) If the household is eligible for the § 273.10(f). Before initiating the (1) If the State agency does not regular Food Stamp Program and transitional period, the State agency determine a household’s eligibility and entitled to benefits higher than its must recalculate the household’s food provide an opportunity to participate transitional benefits, and the State stamp benefit amount by removing the within 30 days following the date the agency has already issued the TANF payment from the household’s application was filed, the State agency household transitional benefits for the food stamp income. At its option, the shall continue processing the first month of its certification period,

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the State agency must issue the transitional period, the State agency Dated: January 11, 2010. household a supplement. may make the change effective the Kevin Concannon, (h) Applications for recertification month following the last month of the Under Secretary, Food, Nutrition, and submitted in the final month of the transitional period or invite the Consumer Services. transitional period must be processed in household to reapply and be certified to Note: The following attachment will not accordance with § 273.14. receive benefits. However, in order to appear in the Code of Federal Regulations. § 273.29 Transitional notice requirements. prevent duplicate participation, the State agency must act to change the Regulatory Impact Analysis—Sections The State agency must issue a household’s transitional benefit when a 4101 through 4401 transitional notice (TN) to the household member moves out of the household that includes the following This action is required to implement information: household and either reapplies as a new provisions of the Farm Security and (a) A statement informing the household or is reported as a new Rural Investment Act of 2002 FSRIA household that it will be receiving member of another household. (Pub. L. 107–171), which was enacted transitional benefits and the length of its Moreover, the State agency must remove on May 13, 2002. This rulemaking transitional period; any income, resources and deductible amends Food Stamp Program (FSP) (b) A statement informing the expenses clearly attributable to the regulations to implement 11 provisions household that it has the option of departing member. of FSRIA that establish new eligibility applying for recertification at any time and certification requirements for the § 273.31 Closing the transitional period. during the transitional period. The receipt of food stamps. The Department household must be informed that if it In the final month of the transitional has estimated the total FSP costs to the does not apply for recertification during benefit period, the State agency must do Government of the FSRIA provisions the transitional period, the State agency one of the following: implemented in the final rule as $2.669 billion in fiscal year (FY) 2010 and must, at the end of the transitional (a) Issue the RFC specified in period, either reevaluate the $13.541 billion over the 5 years FY 2010 § 273.12(c)(3) and act on any through FY 2014. These impacts are household’s food stamp case or require information it has about the household’s the household to undergo a already incorporated into the new circumstances in accordance with President’s budget baseline. recertification; § 273.12(c)(3). The State agency may (c) A statement that if the household extend the household’s certification Encouragement of Payment of Child returns to TANF during its transitional period in accordance with § 273.10(f)(5) Support—Section 4101 benefit period, the State agency will unless the household’s certification either reevaluate the household’s food Discussion: Current rules at 7 CFR period has already been extended past stamp case or require the household to 273.9(d)(5) provide households with a undergo a recertification. However, if the maximum period specified in deduction from income for legally the household has been assigned a new § 273.10(f) in accordance with obligated child support payments paid certification period in accordance with § 273.27(a); or by a household member to or for a non- § 273.27(c), the notice must inform the (b) Recertify the household in household member. This provision household that it must be recertified if accordance with § 273.14. If the gives State agencies the option of it returns to TANF during its household has not reached the treating such payments as either an transitional period; maximum number of months in its income exclusion or an income (d) A statement explaining any certification period during the deduction. The rule provides that: (1) A changes in the household’s benefit transitional period, the State agency household can receive an exclusion or deduction only for legally obligated amount due to the loss of TANF income may shorten the household’s prior child support payments paid by a and/or changes in household certification period in order to recertify household member to or for a non- circumstances learned from another the household. When shortening the household member, including payments State or Federal means-tested assistance household’s certification period made to a third party on behalf of the program; pursuant to this section, the State non-household member (vendor (e) A statement informing the agency must send the household a household that it is not required to payments); (2) no exclusion or notice of expiration in accordance with deduction is allowed for any amounts report and provide verification for any § 273.14(b). changes in household circumstances the household member is not legally until the deadline established in § 273.32 Households who return to TANF obligated to pay; (3) State agencies may accordance with § 273.12(c)(3) or its during the transitional period. determine what constitutes a legal obligation to pay child support under recertification interview; and If a household receiving transitional (f) A statement informing the State law; (4) an exclusion or deduction benefits returns to TANF during the is allowed for amounts paid toward household that the State agency will not transitional period, the State agency act on changes that the household child support arrearages; (5) if the State shall end the household’s transitional reports during the transitional period agency opts to provide households a benefits and follow the procedures in prior to the deadline specified in deduction for legally obligated child § 273.31 to determine the household’s § 273.29(e) and that if the household support payments rather than an continued eligibility and benefits for the experiences a decrease in income or an exclusion, the deduction must be Food Stamp Program. This includes increase in expenses or household size determined before computation of the prior to that deadline, the household processing the application within 30 excess shelter deduction; and (6) State should apply for recertification. days. However, for a household agencies may, in determining a assigned a new certification period in household’s legal obligation to pay child § 273.30 Transitional benefit alternative accordance with § 273.27(c), the support, the amount of its obligation, change reporting requirements. household must be recertified if it and amounts the household has actually If the household does report changes returns to TANF during its transitional paid, rely solely on information in its circumstances during the period. provided through its State’s Child

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Support Enforcement agency and not number of un-weighted cases affected pensions and retirement benefits. FNS require further reporting or verification by this provision introduces substantial could have allowed States to exclude by the household. uncertainty. However, the small number these types of income but decided that Effect on Low-Income Families: The of affected cases indicates that the cost they ought to be counted as income effect of this provision on low-income to the Government of this provision is because they are very similar to other families will depend on their State of likely to be small. types of income we count (for example, residence. Families that live in States earnings other than self-employment or Simplified Definition of Income— that choose to treat child support child support income). payments as a deduction from income Section 4102 Effect on Low-Income Families: This will see no change in their eligibility or Discussion: This provision adds three provision will reduce reporting burdens benefit. Some families that live in States new categories of income that, at the and increase benefits for low-income that elect to exclude child support option of the State agency, may be families that have these sources of payments from countable income may excluded from household income in income to the extent they live in States become eligible if the exclusion lowers determining a household’s eligibility for that take this State option. their gross income below 130 percent of FSP and its benefit levels. The three Cost Impact: The cost to the the poverty guidelines. categories of income are: Government of this provision is $13 Cost Impact: The cost to the (1) Educational loans on which million in FY 2010, and $65 million Government of this provision is payment is deferred, grants, over the 5 years FY 2010 through FY minimal (less than $1 million) in FY scholarships, fellowships, veteran’s 2014. These impacts are already 2010 and over the 5 years FY 2010 educational benefits and the like that incorporated into the President’s budget through FY 2014. These impacts are are required to be excluded under a baseline. already incorporated into the State’s Medicaid rules as well as student As stated above, there are three President’s budget baseline. financial assistance received under 20 components of this provision. The first To estimate the effect of this U.S.C. 1087uu of the Higher Education excludes education assistance excluded provision, we used a micro-simulation Act; (2) State complementary assistance under the SSA Title XIX (Medicaid) and model and data from the U.S. Census program payments excluded for the 20 U.S.C. 1087uu of the Higher Bureau’s Survey of Income and Program purpose of determining eligibility for Education Act. Relatively few current Participation (SIPP) which includes Medicaid under section 1931 of the FSP households have income from these information on household income and SSA; and (3) any types of income that sources. Excluding this income would expenses. We simulated the impact of the State agency does not consider when increase total FSP benefits by $12.5 excluding all child support payments, determining eligibility or benefits for million (0.02 percent of projected rather than deducting these payments, TANF cash assistance or eligibility for benefit costs in fiscal year 2010) if all when determining household FSP Medicaid under section 1931. However, States adopted the option. eligibility and benefit levels. Among the statute provides an extensive list of The second component of this current participants, there is no impact; income types that may not be excluded estimate is to exclude State the effect of treating the payment as an and gives the Secretary authority to Complementary Assistance Programs. income exclusion or as a deduction is propose other income types that may Because there is little information on the same in the benefit calculation. not be excluded. As a result, the rule the State programs that fit into this However, this provision could make provides that a State agency may not category and the number of people who some families newly eligible if their exclude the following types of income: receive assistance, the provision will gross income is above 130 percent of the benefits under Titles I (Grants to States have an unknown, but we presume, poverty guidelines when the child for Old-Age Assistance for the Aged), II minimal impact. support payment is counted as income (Federal Old Age, Survivors, and The third component is the option to and less than 130 percent when the Disability Insurance Benefits), IV allow States to exclude some types of payment is excluded. Some of these (Grants to States for Aid and Services to income excluded in their cash newly eligible families may choose to Needy Families with Children and for assistance and Medicaid programs. The participate in the FSP, potentially Child-Welfare Services), X (Grants to Congressional Budget Office estimates increasing program costs. In our States for Aid to the Blind), XIV (Grants this provision would cost $2 million a analysis, we found a very small number to States for Aid to the Permanently and year; USDA has concurred with this of un-weighted cases in the SIPP data, Totally Disabled) or XVI (Grants To estimate. affected by this provision. Estimates States For Aid To The Aged, Blind, Or Each of the estimates shown above based on so few un-weighted cases are Disabled and Supplemental Security represents full-year national costs if all unreliable, but suggests that the number Income) of the SSA; wages and salaries; States adopt all options. Since passage of affected households is minimal. In regular payments from a government of the FSRIA, 29 States have addition, the cost impact depends on source (such as unemployment benefits implemented one or more of the the number of States that elect to and general assistance); worker’s options, representing 90.6 percent of exclude, rather than deduct, child compensation; or legally obligated child total issuance in fiscal year 2006. We support. As of November 2007, only support payments made to the therefore take only 90.6 percent of the fourteen States had made this election. household. This rule also allows States estimated costs of each provision. Therefore, it is estimated that this to include certain income as earned Therefore the total impact of this provision will have a minimal impact income if the household is receiving provision is $13 million in FY 2010 and on FSP costs. TANF cash assistance or Medicaid. $65 million over the 5 years FY 2010 Participation Impacts: Very few Discretion was given to USDA to through FY 2014. households will be affected by this mandate what other types of income Participation Impacts: We expect provision. could not be excluded by States minimal effects of these provisions on Uncertainty: There is a moderate level implementing this option. Of the types participation. None of the optional of uncertainty associated with this of income not explicitly included in the income exclusions are likely to make estimate. While the estimate is based on FSRIA, FNS is adding alimony, self- many more households eligible. Some a large national dataset, the small employment income, annuities, and unknown but small number of current

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participants will receive somewhat of twice the FSP’s monthly net income U.S. Department of Health and Human higher benefits. limit for household sizes up to six; (3) Services (DHHS) and used for FSP Uncertainty: There is a moderate level for the 48 contiguous States, the District eligibility standards. The poverty of uncertainty associated with this of Columbia, Hawaii, Alaska, the U.S. guidelines used for setting the FY 2010 estimate. While part of the estimate is Virgin Islands, and Guam, households FSP net income limits were published based on a large national dataset, the with more than six members must on January 23, 2009. The poverty small number of un-weighted cases receive the same standard deduction as threshold values for use in FY 2011 and affected by these provisions introduces a six-person household; and (4) the beyond were calculated by inflating the substantial uncertainty. However, the standard deduction for any household FY 2010 values by the Consumer Price small number of affected cases indicates must not fall below the standard Index for All Urban Consumers as that the cost to the Government of this deduction in effect in FY 2002. forecasted in the Office of Management provision is likely to be small. Effect on Low-Income Families: This and Budget’s economic assumptions. Alternatives: FNS considered whether provision will affect some low-income For each household size and for each or not to allow States to exclude families not already receiving the year, these values were multiplied by alimony, self-employment income, maximum FSP benefit by allowing them 8.31 percent. Comments received on the annuities, and pensions and retirement to claim a larger standard deduction and proposed rule suggested that the result benefits from household income. The to obtain higher FSP benefits. Larger be rounded up to the nearest whole final rule does not allow States to households will be affected by the dollar to ensure that no household be exclude these types of income because provision at implementation and given a standard deduction less than they are believed to be very similar to smaller households will be affected over 8.31 percent. This comment is other types of income that are counted. time as the new values of the standard incorporated into the final rule. deduction rise with inflation. Therefore, beginning in FY 2008, the Standard Deduction—Section 4103 Cost Impact: We estimate that the cost result was rounded up to the nearest Discussion: This provision replaces a to the Government of this provision will whole dollar. The rounded product was fixed standard deduction (used in be $424 million in FY 2010 and $2.510 then compared to the current standard calculating a household’s benefit level) billion over the 5 years, FY 2010 deduction value of $134, the higher of with one that is adjusted annually and through FY 2014. These impacts are which was adopted as the new standard that varies by household size. This rule already incorporated into the deduction for each household size. (For provides that: (1) For the 48 contiguous President’s budget baseline. example, the monthly poverty threshold States, the District of Columbia, Hawaii, First, the new standard deduction for a five-person household is $2,149 in Alaska, and the U.S. Virgin Islands, the values were projected for each FY 2010. Multiplying this value by 8.31 standard deduction will be equal to 8.31 household size (one-person through six percent and rounding up yields a percent of the FSP’s monthly net or more-persons) for each year. The new product of $179, which is larger than income limit for household sizes up to standard deduction values were based the standard deduction value of $134. six; (2) for Guam, the standard on monthly poverty guideline values by The new standard deduction value for deduction will be equal to 8.31 percent household size, as calculated by the these households is $179.

EXPECTED DOLLAR INCREASE IN THE FSP STANDARD DEDUCTION BY HOUSEHOLD SIZE AND FISCAL YEARS 2010 THROUGH 2014

Household size 2010 2011 2012 2013 2014

1 person...... 0 0 0 0 0 2 persons...... 0 0 0 0 0 3 persons...... 0 0 0 1 4 4 persons...... 19 22 25 28 32 5 persons...... 45 48 52 56 60 6+ persons...... 71 74 79 83 88

Second, the number of households number of FSP households in 2010 is Because the excess shelter deduction is affected for each household size and in 15,896,000. Thus, the number of five- calculated based on a household’s gross each year was estimated based on person households affected by the income less all other deductions, a participation projections from the provision in FY 2010 was calculated as change in the standard deduction can President’s budget baseline. The 15,896,000 households times 5.3 change the shelter deduction for some projections were adjusted based on data percent (in five-person households) households. In 2007, about 60 percent of on the proportion of households of each times 81.5 percent (not receiving the food stamp households claimed a size not receiving the maximum maximum benefit)—equal to 687,000 shelter deduction that is expected to allotment, from Characteristics of Food five-person households.] increase with an increase in the Stamp Households: Fiscal Year 2007. The cost of this provision was then standard deduction. Among these Households already receiving the calculated for each household size in households, the benefit reduction rate is maximum allotment are excluded each year. The cost equaled the product 45 percent. The remaining 40 percent of because their benefits cannot increase of the change in the standard deduction food stamp households did not claim a even though the larger standard for each household size, the number of shelter deduction or already receive the deduction decreases their net income. households affected, 12 months, and a maximum shelter deduction allowable. [For example, 5.3 percent of all benefit reduction rate of 39 percent. Among these households, the benefit households included five members in This benefit reduction rate represents reduction rate is 30 percent. Taking the 2007, 18.5 percent of which received the the average change in benefits for each weighted average of these two groups maximum benefit. The projected total dollar change in the standard deduction. yields a benefit reduction rate of 39

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percent. (For five-person households in Simplified Utility Allowance—Section utility expenses to the SUA value FY 2010, the cost of this provision was 4104 among States adopting a mandatory estimated as a $45 change in the Discussion: This provision simplifies SUA policy as a result of this provision; standard deduction ($179–$134), times current rules relating to the SUA when (2) increased costs due to ending the 687,000 households, times 12 months, the State agency elects to make the SUA SUA proration requirements; and (3) times 39 percent—equal to about mandatory. The rule provides that State increased costs due to extending the full $144,607 million.) agencies which elect to make the SUA heating and cooling SUA to certain households in public housing with The individual costs for each mandatory: (1) May provide a SUA that includes heating or cooling costs to shared utility meters. household size were summed in each The national savings impact of residents of public housing units which year and rounded to the nearest million limiting households with high utility have central utility meters and which dollars. expenses to a mandatory SUA was charge the households only for excess Participation Impacts: While we do estimated using a micro-simulation heating or cooling costs; and (2) must not expect this provision to significantly model with September 2005 SIPP data not prorate the SUA when a household increase FSP participation, we estimate and current FSP program rules. This shares living quarters with others. The that setting the standard deduction model was used because SIPP contains rule also provides that in determining if equal to 8.31 percent of poverty by information on household income and a State agency’s mandatory SUAs are expenses, including the information household size will raise benefits among cost neutral, the Department must not households currently participating. In about household utility expenses count any increase in cost that is due to necessary to estimate changes in FY 2010, households with four or more providing a SUA that includes heating persons will be affected by this household benefits resulting from or cooling costs to residents of certain changes to their excess shelter expense provision. Persons in smaller public housing units or to eliminating households will be affected in later deduction value. We used this model to proration of the SUA for a household substitute the mandatory SUA for actual years, as the indexed values of 8.31 that shares living quarters and expenses percent of the poverty guidelines for utility expenses. We estimate that this with others. substitution would reduce total FSP their household size exceed $134. The Effect on Low-Income Households: number of persons affected was benefits by 0.248 percent. We applied Relative to current regulations, this this percentage to the baseline cost calculated from the number of provision will increase the shelter projections for each year and adjusted households affected, times the number deduction and raise FSP benefits among the product to reflect the proportion of of persons per households, summed low-income households in shared living FSP participants (40 percent) expected across household sizes. In FY 2010, we arrangements and certain public to be made newly subject to a expect almost 11.9 million persons to housing situations to the extent they mandatory SUA as a result of this receive an average of $3.57 more per reside in States with mandatory SUA provision. month in food stamp benefits as a result policies. This provision will decrease The national cost impact of ending of this provision. the shelter deduction and lower FSP the proration requirement of the heating Uncertainty: Because these estimates benefits among low-income households and cooling SUA was estimated using are largely based on recent quality with utility expenses greater than the quality control data prior to enactment. control data, they have a high level of SUA to the extent that they reside in quality control data includes certainty. To the extent that the States that adopt mandatory SUA information on household income and distribution of FSP households by policies as a result of this provision. expenses and allows us to identify household size and income changes Cost Impact: We estimate that the cost which households received a prorated over time, the cost to the Government to the Government of this provision will SUA. Using this data, we calculated the could be larger or smaller. To the extent be $532 million in FY 2010 and $2.605 change in each household’s benefit as a that actual poverty guidelines are higher billion over the 5 years FY 2010 through result of changing the SUA proration or lower than projected, the cost to the FY 2014. These impacts are already rules and estimated a national increase Government could be larger or smaller. incorporated into the President’ budget in benefits of 1.509 percent. This baseline. percentage increase was multiplied by Alternatives: The proposed rule stated According to individual State SUA the baseline cost projections from the that the methodology for calculating the plans, there were 11 States with President’s budget baseline for each standard deduction each fiscal year mandatory SUA policies in FY 2002 at year. Since this provision is available would be based on 8.31 percent of the the time of enactment. Based on only to those households in States with monthly net income limits for participant data from the National Data mandatory SUA policies, the costs were household sizes one through six, Bank, those 11 States contained adjusted to account for the proportion of rounded to the nearest whole dollar approximately 25 percent of all food FSP participants subject to mandatory (‘‘regular rounding rules’’). Comments stamp participants in FY 2002. By SUA policies. As outlined above, we received on the proposed rule pointed November 2007, the number of States estimate that 66 percent of FSP out, however, that the regular rounding with mandatory SUA policies had participants were subject to mandatory rules could lead to a calculation that is grown to 40. As a result of this SUA policies in FY 2007 and beyond. fractionally less than 8.31 percent of the provision, roughly 66 percent of FSP The national cost impact of extending net income limit because the participants are now subject to the full heating and cooling SUA to Department would round down in cases mandatory SUA policies. We consider certain households in public housing where the number of odd cents in the this provision to be fully implemented with shared utility meters was based on exact figure is less than 50. As a result, by FY 2010 and attribute the increase in participation projections from the the final rule will ‘‘round up’’ all States with mandatory SUA policies President’s FY 2010 budget baseline. fractional results to ensure that no since FY 2002 to this provision. Based on tabulations of control data household is denied a standard The cost impact of this provision prior to enactment, 39.2 percent of deduction at least ‘‘equal to’’ 8.31 includes three components: (1) Savings households reported positive utility percent of the net income limits. from limiting households with high expenses lower than their State’s SUA.

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These were generally households who households affected by the public The provision of the rule were claiming actual utility expenses housing component of the provision implementing Section 4109 provides rather than the SUA when determining was estimated by taking the number of State agencies the option to extend their excess shelter expense deduction households affected times the average simplified reporting procedures, which and were likely to be affected by this number of persons per household. The are restricted to households with provision. Their average utility estimates from the individual earnings under current rules, to all FSP expenses were estimated at $109 and components were then summed. households. The rule provides that: (1) the average SUA value was $244. Based Uncertainty: The estimate of this The State agency may include any on data from the U.S. Department of provision has a moderate level of household certified for at least 4 months Housing and Urban Development certainty. The analyses are largely based within a simplified reporting system, (HUD), about 8 percent of these on the results of computer simulation except that the state agency may not households were assumed to live in models of large national datasets, which include households with no earned public housing. Based on multiple yield fairly precise estimates. Data on income in which all adult members are conversations with officials from HUD, which States choose to adopt this option elderly or disabled; (2) households the U.S. Department of Energy, utility is quite strong, as it is based on reports exempt from periodic reporting, companies, and building associations, from States about their policy choices. including homeless households and the proportion of those households with However, the estimate on the impact of migrant and seasonal farm workers, may shared utility meters was assumed to be ending pro-rationing is based on older be subject to simplified reporting but five percent. The national cost for the QC data, because QC data from after may not be required to submit periodic provision was then determined by enactment of this provision no longer reports; (3) the State agency may require multiplying the number of affected contains the data needed to make this other households subject to simplified households (39.2 percent of the baseline estimate. The most uncertain part of the reporting to submit periodic reports on number of households in each fiscal estimate is the assumption about the their circumstances from once every 4 year times 8 percent times 5 percent) number of households in public housing months up to once every 6 months; and times the average difference in the with shared meters. Despite an (4) households subject to simplified utility expenses used for the shelter extensive search, data on this subject reporting must report when their deduction ($244 less $109 = $135) times were difficult to obtain. The assumption monthly gross income exceeds the 12 months times a benefit reduction rate that 5 percent of families in public monthly gross income limit for their of 30 percent. The benefit reduction rate housing have shared meters is a best household size. FNS is extending represents how much benefits change guess, but is fairly uncertain. To the Section 4109 to homeless and migrant workers, with the distinctions noted for each dollar change in the excess extent that the actual number of shelter deduction. Again, the national above. FNS is using discretion here to households with shared meters is cost was then adjusted to reflect the allow States to put a homeless person smaller or larger, the cost to the proportion of FSP participants subject to into a simplified reporting system. Government of this provision would be mandatory SUA policies, approximately Another final rule, the Non-citizen lower or higher. 66 percent of participants. Eligibility, and Certification Provisions The impacts of the three components Simplified Determination of (NECP) of Public Law 104–193, as were summed and rounded to the Deductions—Section 4106, and State Amended by Public Laws 104–208, nearest million dollars. Option To Reduce Reporting 105–33, 105–185 (the NCEP Rule) Participation Impact: In FY 2010, Requirements—Section 4109 allowed homeless and migrant workers 384,000 persons are expected to gain an with earnings to be in a simplified average of $127.92 per month in FSP Discussion: The provision of the rule reporting system identical to this benefits as a result of this provision. In implementing Section 4106 provides provision, so for consistency with addition, 35,000 persons are expected to State agencies the option of disregarding previous rulemaking, FNS is extending lose an average of $139.30 per month in until a household’s next recertification simplified reporting to homeless FSP benefits, including 27,000 persons any reported changes that affect the persons and migrant workers without who will be ineligible in 2010 as a result amount of deductions for which a earnings. The final rule allows states to of this provision and not participate in household is eligible. However, the act on all changes without seeking a FSP. The number of persons made State agency must act on any change in waiver from FNS, which many States newly eligible by this provision is a household’s excess shelter cost had done after passage of the FSRIA. expected to be minimal. stemming from a change in residence Effect on Low-Income Families: Low- Participation effects were estimated and any changes in the household’s income families who reside in States using the same methodology as the cost earned income. The rule provides: (1) who implement this option may be estimate. The simulation results from The State agency has the option of impacted by this provision. Changes in quality control and SIPP data produced ignoring changes (other than changes in household circumstances may be participation impacts for those gaining earned income and changes in shelter disregarded for up to 6 months, which benefits, losing benefits and losing costs related to a change in residence) reduces the reporting burden on eligibility for those affected by for all deductions or for any particular households. eliminating the SUA proration deduction; (2) the State agency may Cost impact: The cost to the requirement and households with high ignore changes for deductions for Government of section 4106—simplified utility expenses made newly subject to certain categories of households while determination of deductions is included a mandatory SUA. The impacts, acting on changes for those same in the cost estimate of section 4109— expressed as a percent change from the deductions for other types of simplified reporting. The cost to the model’s baselines, were multiplied by households; and (3) the State agency Government in FY 2010 is expected to the participation projections in the may not act on changes in only one be $336 million. The 5-year total for FY President’s FY 2010 budget baseline, direction; i.e., if it chooses to act on 2010 through FY 2014 is $1.644 million. and were adjusted according to the changes that increase a household’s These impacts are already incorporated methodology outlined for the cost deduction, it must also act on changes into the President’s FY 2010 budget estimate. The number of persons in that would decrease the deduction. baseline.

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Section 4106 allows States to Simplified Definition of Resources— control data to determine the value of disregard changes in deduction Section 4107 benefits issued to households with non- amounts. The impact of this provision is Discussion: The provision amends categorically-eligible disabled members assumed to be included in the cost of current rules relating to the FSP’s who had assets greater than $2,000 but simplified reporting. Section 4109 resource limit. The provision increases less than $3,000. The simulation model extends the State option of simplified the resource limit for households with indicated that reversing the provision reporting to all households, not just a disabled person from $2,000 to $3,000. would reduce benefits by 0.057 percent. earners that existed under regulation It also provides State agencies the The annual cost of raising the asset limit prior to the FSRIA. In addition, FNS option to exclude from resource for these households was calculated as implemented a universal quarterly consideration any resources that the (positive) 0.057 percent times the baseline cost projections from the reporting system via the Anticipating State agency excludes when President’s budget baseline for each determining eligibility for TANF cash Income and Reporting Changes year. proposed rule for some time prior to assistance or medical assistance under The estimate to allow States to passage of the FSRIA. The details of Section 1931 of the SSA. State agencies exclude non-cash non-vehicle assets these systems are similar enough that that choose this option may not exclude that are excluded from their TANF or we took the estimated cost of universal cash, licensed vehicles, or readily Medicaid programs was derived from a quarterly reporting and multiplied by 2 available amounts deposited in financial micro-simulation model using SIPP data (from 3 months to 6 months). Combined institutions when determining FSP and FY 2009 program rules. We used those 47 States accounted for 90.6 eligibility. this model because SIPP is the only Effect on Low-Income Households: percent of all benefit costs in fiscal year national survey with detailed Under previous law, only households 2006; we assume by extension that they information about assets for a sample of with elderly members were able to account for 90.6 percent of the cost of low-income households, and because exclude the first $3,000 of countable simplified reporting: 90.6 percent of the we were able to generate a large enough resources; all other households were sample to generate a credible estimate. estimate equals $336 million in fiscal subject to the $2,000 resource limit. The year 2010. Because the only non-vehicle, non- provision to raise the asset limit for cash asset that SIPP collects data on is Participation Impact: This provision households with disabled members will retirement savings, our estimate is based only affects current participants in the bring these households in line with on the impact of excluding IRA and States that opt to implement. All those with elderly members. Second, Keogh retirement accounts. We households who are placed in this the provision permits States to exclude simulated the effect of the new reporting system benefit by reducing the some resources currently counted in the provision by excluding these retirement frequency of reports they must submit. FSP. By exercising this option, States savings from countable assets, FY 2007 quality control data indicate will reduce the resource total for some identifying households made newly that 28.69 percent of all households are households. As a result, both provisions eligible, and determining the value of coded as being in simplified reporting will increase the number of low-income benefits that would be issued to those and have no earnings. In 2010, this families who are eligible for FSP newly eligible likely to participate. The represents 10.033 million people benefits by either reducing the amount model estimated that excluding affected by this provision. They will see of assets that are countable or by raising retirement savings would increase total the resource limit for eligibility. These about $2.79 per month more in benefits benefits by 1.71 percent. However, we provisions will have no impact on those because of this provision in fiscal year made a few adjustments to the model currently eligible for food stamps. 2010. There are no new participants results. Cost Impact: We estimate that the cost First, our experience with the SIPP brought onto the program from this to the Government of the provision to model is that it overestimates the provision. raise the asset limit for households with participation rate among new eligibles Uncertainty: There is a moderate level disabled members will be $33 million in in simulations of expanding eligibility of certainty associated with this FY 2010, and $163 million over the 5 to asset-ineligible households, who are estimate. This estimate is based on years FY 2010 through FY 2014. The more likely to be elderly or working previous reporting estimates that use cost to the Government of the provision than other households. Therefore, we SIPP longitudinal data to track how to allow States to exclude non-vehicle adjusted the estimate by half. The much circumstances change because of and non-cash assets in accordance with second adjustment was to only count the new reporting rules. Adjustments their TANF or Medicaid program rules the impact among the three States that based on quality control data have a will be $67 million in FY 2010 and $326 chose to exclude retirement savings— high level of certainty as well. Some million over the 5-year period. The Illinois, Ohio, and Pennsylvania after uncertainty is introduced, however, impacts of both provisions are already this law was implemented but prior to with the use of two different data incorporated into the President’s FY the implementation of the Food, sources and other out-of-model 2010 budget baseline. Conservation, and Energy Act of 2008 adjustments. The estimate to raise the asset limit to (Pub. L. 110–246), which excluded $3,000 for households with disabled retirement savings for all States. The Alternatives: For consistency with members was derived using FY 2007 three States accounted for 13.32 percent prior rulemaking, the final rule permits quality control data. Because the of benefits issued in FY 2008. States to extend the certification periods provision was fully implemented in FY Participation Impact: In FY 2010, of certain homeless and migrant workers 2007, the quality control data already 25,000 newly eligible persons living in to allow them to be included in a included disabled households made households with disabled members are simplified reporting system. The costs eligible by the reform so we were able expected to participate as a result of the of this alternative are thought to be to estimate the impact of this provision increase in the asset limit. Their average minimal because relatively few on eligibility and benefits by simulating monthly FSP benefit is expected to be homeless and migrants participate in the reversal of the reform. In other $110.46. An additional 31,000 newly the program. words, we examined current quality eligible persons are expected to

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participate as a result of the State option provides that State agencies: (1) May increase in FSP benefits. Therefore, we to exclude non-vehicle, non-cash assets lengthen the maximum transitional assign a monthly transitional benefit for in fiscal year 2010 with an average period from up to three months to up to each leaver household of $417 in 2007. monthly FSP benefit of $178.95. Neither 5 months; (2) may extend the Inflating this benefit based on the provision will have an impact on the household’s certification period beyond change in the Thrifty Food Plan equals benefit size for those who are currently the limits established under current a $504 monthly benefit in 2010. This participating. rules to provide the household with up amount times the number of leavers The participant impact of the to a full 5 months of transitional benefit; produces the gross cost per month. The provision to raise the asset limit for (3) must adjust the household’s benefit cost of the transitional period is 4 times disabled households was estimated in the transitional period to take into this monthly cost. The current process using the same methodology as the cost account the reduction in income due to results in an extra month of benefits so estimate. The simulation results using the loss of TANF; (4) may further adjust the 5-month traditional benefit period quality control data produced an the household’s benefit in the results in four extra months of benefits. estimated participation drop of 0.072 transitional period to take into account The annual cost is the monthly cost percent by lowering the asset limit to changes in circumstances that it learns times 12 months. However, we know $2,000 for disabled households. of from another program in which the that leavers tend to ‘‘churn,’’ that is, Applying this percentage to the 2010 household participates; (5) must permit return to the program shortly after President’s budget baseline yields a the household to apply for leaving. In these cases, the cost is decrease of 25,000 participants in 2010. recertification at any time during the reduced because they return to the FSP To show the impact of the participation transitional period; (6) may shorten the even in the absence of a transitional increase, we simply changed the household’s certification period in the benefit. If the case returns in the first decrease to an increase. final month of the transitional period month, there is no additional savings The participant impact of the and require the household to undergo since it takes one month to close an FSP provision to allow States to use TANF recertification; and (7) must deny case normally. Returners in the second or Medicaid asset rules on FSP transitional benefits to households made through fifth month, however, do participation was estimated using the ineligible for such benefits by law. generate savings. Data from DHHS show same methodology as the cost estimate. Effect on Low-Income Families: This that 5 percent of leavers return to TANF The simulation results of the SIPP provision impacts low-income families in the second month, 4 percent return model produced participation impacts who leave TANF. If the State opts to in the third month, 3 percent return in for those gaining eligibility. The provide transitional benefits, these the fourth month, and 2 percent return impacts, measured as the percentage families receive up to 5 months of in the 5th month. After weighting these increase in FSP participation in the transitional food stamps after they exit by the number of months transitional SIPP database (1.39 percent), were from TANF. benefits would not be paid, we multiply multiplied by the participation Cost Estimate: The cost to the the percentage returning times the cost projections in the President’s FY 2010 Government of this provision in FY for the year. budget baseline and were adjusted 2010 is $191 million, and it costs $975 Prior to the passage of the FSRIA, according to the methodology outlined million over the 5 years FY 2010 some States had been operating a three- for the cost estimate. through FY 2014. These impacts are month transitional benefit option that Uncertainty: There is a small degree already incorporated into the FNS allowed via regulation. We of uncertainty associated with the President’s budget baseline. therefore reduced the cost further to estimate to raise the asset limit for This estimate uses data on the number avoid double counting what is already disabled households. The estimate is of households receiving transitional in the baseline. We assumed these based on 2007 quality control data. To benefits in the 2007 quality control data States would move to the 5-month the extent that asset values are not and projects it over the 2010–2014 option. The full cost of the three-month accurately recorded, this could affect period using expected FSP participation option was subtracted from the full cost the validity of the result. However, the from the President’s FY 2010 budget of the 5-month option to get the cost due data are fairly recent and of high baseline. We assume that about 48 to the legislative change. quality. percent of TANF leavers have earnings Finally, we make adjustments for the There is a moderate level of and other financial changes that offset proportion of States that have taken up uncertainty associated with the estimate the loss of the TANF income and the option. In FY 2006, 17 States, which to provide States with an option to therefore their food stamp benefit is not account for about 44 percent of food exclude non-cash and non-vehicle dramatically different from their pre- stamp issuance, adopted a transitional assets that are excluded by States’ TANF transitional benefit amount. Therefore benefit option. Therefore, we take 44 plans. The estimate is based on a micro- we score the cost of the remaining 52 percent of the cost in each year. simulation model with SIPP data, and percent whose FSP benefit is now Participation Impact: We estimate the sample size of newly eligible and higher due to the loss of TANF. that in FY 2010, an average of 49,000 participating households and We estimate that in FY 2010 there are TANF leavers will receive the food individuals is rather small. Second, the 49,000 leavers eligible for the stamp transitional benefit per month. only non-cash, non-vehicle assets that transitional benefit. The average food Uncertainty: There is a moderate level the SIPP data are able to identify are stamp benefit for TANF households in of uncertainty with this estimate. The retirement savings; thus these assets are FY 2007 was about $303 a month. estimate is based on 2007 quality the only ones included in the estimate. However, the statute states that the FSP control data which is considered timely benefit shall be adjusted due to the loss and reliable. Some uncertainty is Transitional Food Stamps for Families of TANF cash. The average TANF introduced, however, from our Moving From Welfare—Section 4115 benefit was $352 a month in FY 2007. assumptions about recidivism and the Discussion: This provision expands A $352 decrease in cash assistance portion of transitional benefit caseload the current option to provide times an expected benefit reduction rate that would have otherwise participated transitional benefits to households of 0.3250 for households with TANF in the FSP in the absence of the leaving the TANF program. The rule and earned income produces a $114 transitional benefit.

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Restoration of Benefits to Legal Cost Impact: The cost to the ineligible. These are typically Immigrants—Section 4401 Government of all three provisions will participating children whose Discussion: This provision be $1.073 billion in FY 2010 and $5.253 noncitizens parents’ income is sufficient substantially expands eligibility for the billion over the 5-year period of 2010 to reduce the household benefit or make FSP for legal immigrants. It restores through 2014. These costs are already the household ineligible. We estimate eligibility to three groups of legal incorporated into the President’s Budget that 14,000 participants will receive immigrants in three stages. Effective baseline. lower benefits and 532,000 will become The estimates for the provisions are October 1, 2002, legal immigrants who ineligible. We estimate that 1.263 based on data from the U.S. Census receive blind or disability benefits million newly-eligible immigrants will Bureau’s SIPP, a large national data set became eligible to participate in the participate, for a net participation gain which incorporates features that permit FSP. Effective April 1, 2003, legal of 731,000. the simulation of changes in eligibility immigrants who have resided for at least Uncertainty: The estimates for of immigrants in the FSP. The 5 years in the United States as a restoring eligibility to the three groups simulation substitutes new rules for of legal immigrants have some degree of qualified alien became eligible. Effective determining the eligibility of uncertainty, because they rely on October 1, 2003, all legal immigrants immigrants, determines the number of reported information in the SIPP. under age 18 became eligible for households made eligible by the new Because the SIPP does not collect data benefits, regardless of when they first rules, and calculates the value of arrived in the United States. The statute benefits that would be issued to those on immigrant status, the model has to and rule also removes sponsor deeming newly eligible who are likely to impute immigrant status, based on requirements for immigrant children. participate. The simulation estimated external data on the size and Effect on Low-Income Households: that restoring FSP eligibility to legally characteristics of the undocumented These three provisions affect low- resident noncitizen disabled, children, immigrant and refugee populations. income families who have legal and adults with 5 years legal residency Alternatives: The proposed rule immigrant members who are currently would increase program costs by 1.84 interpreted the extension of eligibility to ineligible for benefits but become percent. The annual cost of this any qualified alien who has resided in eligible after the provisions take effect. provision was estimated by multiplying the United States for 5 years or more as Many of these households contain U.S. this figure by the cost projections in the a qualified alien to include aliens who born children who are currently eligible 2010 President’s Budget. were not qualified aliens at the time of for food stamps but may not be Participation Impact: We estimate arrival in the United States but later participating. Most households that that by 2010, an additional 731,000 legal attained qualified status. As written, contain participating U.S. born children immigrants will be participating in the Section 4401 of FSRIA could be read to will receive larger benefits if the adults FSP. Some will be people who would require that the alien be in a qualified become eligible for benefits. Other have been covered by State-funded food status at the time of arrival in the United households will consist entirely of assistance benefits. Some others will be States. However, in reviewing the newly eligible persons. individuals who live in a household legislative history behind FSRIA, the The people benefiting from the with participating citizen children. Department concluded that it was not provision restoring eligibility to Others will live in households where no the intent of Congress to deny the immigrants with 5 years legal residency one participated in the program prior to benefits of the provision to those who are mostly living in households with the implementation of this provision. were not qualified aliens at the time of children. About half of new participants Participation effects were estimated arrival but later obtained the status. live in households with earnings. using the same methodology as the cost FNS lacks statistics on the number or Households with elderly and disabled estimate. The simulation results percent of legal permanent residents are less likely to be affected, since produced a participation impact who were non-immigrants or elderly and disabled who were legally estimate of 2.09 percent. The impact undocumented immigrants at the time resident before August 22, 1996, are was multiplied by the participation of arrival in the United States. A large eligible under current law. In addition, projections for the FY 2010 President’s portion of this group is the group of a few legal immigrants receiving State- budget baseline. funded disability payments qualify for We estimate that another 701 million formerly undocumented immigrants restored FSP eligibility on the basis of individuals already participating will be granted legal status under the receiving blind or disability benefits but receiving larger benefits. These are Immigration Reform and Control Act of legal immigrants have not had eligibility individuals living in already- 1986. Taking the more narrow for federal disability benefits restored. participating households with newly- interpretation of this provision would Lastly, foreign-born children who have eligible immigrants. These are significantly reduce costs and make legally resided in the United States for frequently US-born children of newly- many newly-eligible participants less than 5 years benefited from the eligible noncitizens parents. A relatively ineligible. provision restoring eligibility to small number of individuals will [FR Doc. 2010–815 Filed 1–28–10; 8:45 am] children effective October 1, 2003. receive lower benefits or become BILLING CODE 3410–30–P

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Part III

Department of Housing and Urban Development 24 CFR Part 242 Federal Housing Administration (FHA): Hospital Mortgage Insurance Program— Refinancing Hospital Loans; Proposed Rule

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DEPARTMENT OF HOUSING AND the development of a final rule that will are available for inspection and URBAN DEVELOPMENT codify in regulation FHA’s refinancing downloading at http://www.regulations. authority for hospitals. gov. 24 CFR Part 242 DATES: Comment Due Date: March 30, FOR FURTHER INFORMATION CONTACT: [Docket No. FR–5334–P–01] 2010. Roger E. Miller, Director, Office of ADDRESSES: Insured Health Care Facilities, Office of RIN 2502–AI74 Interested persons are invited to submit comments regarding Housing, Department of Housing and Urban Development, 451 7th Street, Federal Housing Administration (FHA): this rule to the Regulations Division, Office of General Counsel, Department SW., Washington, DC 20410–8000; Hospital Mortgage Insurance telephone number 202–708–0599 (this Program—Refinancing Hospital Loans of Housing and Urban Development, 451 7th Street, SW., Room 10276, is not a toll-free number). Hearing- and AGENCY: Office of the Assistant Washington, DC 20410–0500. speech-impaired persons may access Secretary for Housing—Federal Housing Communications must refer to the above this number through TTY by calling the Commissioner, HUD. docket number and title. There are two Federal Information Relay Service at 800–877–8339 (this is a toll-free ACTION: Proposed rule. methods for submitting public comments. All submissions must refer number). SUMMARY: This rule proposes to revise to the above docket number and title. SUPPLEMENTARY INFORMATION: the regulations governing FHA’s Section 1. Submission of Comments by Mail. I. Background—The Section 242 242 Hospital Mortgage Insurance Comments may be submitted by mail to Hospital Mortgage Insurance Program Program (Section 242 program) for the the Regulations Division, Office of purpose of codifying, in regulation, General Counsel, Department of Section 242 of the National Housing FHA’s implementation of its authority Housing and Urban Development, 451 Act (12 U.S.C. 1715z–7) authorizes FHA that allows hospitals to refinance 7th Street, SW., Room 10276, to insure mortgages to finance the existing loans, without requiring such Washington, DC 20410–0500. construction or rehabilitation of public refinancing to take place only in 2. Electronic Submission of or private nonprofit and propriety conjunction with the expenditure of Comments. Interested persons may hospitals, including for major movable funds for construction or renovation, submit comments electronically through equipment, as well as to refinance which is the existing program the Federal eRulemaking Portal at existing debt. Section 242 of the requirement. The current downturn in http://www.regulations.gov. HUD National Housing Act (NHA) provides the economy, which has reduced the strongly encourages commenters to this authority to FHA to: (1) Assist in availability of private financing, has not submit comments electronically. maintaining the availability of hospitals only adversely affected the housing Electronic submission of comments needed for the care and treatment of industry, but has had a serious impact allows the commenter maximum time to persons who are acutely ill or who on hospitals across the Nation. At a time prepare and submit a comment, ensures otherwise require medical care and when the demand for health care timely receipt by HUD, and enables related services of the kind customarily services is on the rise, the lack of access HUD to make them immediately furnished only (or most effectively) by to capital has made it difficult for available to the public. Comments hospitals (see 12 U.S.C. 1715z–7(a)); and hospitals to obtain financing for facility, submitted electronically through the (2) encourage the provision of equipment, and technology needs, as http://www.regulations.gov Web site can comprehensive health care, including well as to meet obligations on existing be viewed by other commenters and outpatient and preventive care, as well debt. By expanding FHA’s Hospital interested members of the public. as hospitalization. In the case of public Mortgage Insurance Program to allow for Commenters should follow the hospitals, Section 242 of the NHA refinancing of existing debt without instructions provided on that Web site (Section 242) is designed to encourage conditioning such refinancing on new to submit comments electronically. programs to provide health care services to all members of a community construction or renovation, HUD Note: To receive consideration as public believes it can contribute to alleviating comments, comments must be submitted regardless of ability to pay. (See 12 financial stress on hospitals and through one of the two methods specified U.S.C. 1715z–7(f).) maintaining the availability of hospitals above. Again, all submissions must refer to Entities that are insured under FHA’s in many communities. This refinancing the docket number and title of the rule. Section 242 program include health-care authority is specifically for the No Facsimile Comments. Facsimile facilities that range in size from large refinancing of non-FHA-insured loans of (FAX) comments are not acceptable. urban teaching hospitals to small rural hospitals. Hospitals currently insured Public Inspection of Public hospitals, and critical access hospitals under FHA’s Section 242 program may Comments. All properly submitted (hospitals with 25 beds or less that have refinance under the National Housing comments and communications received designation as such by states Act. submitted to HUD will be available for and the U.S. Department of Health and In order to allow eligible hospitals public inspection and copying between Human Services). To be eligible for seeking to refinance debt the 8 a.m. and 5 p.m. weekdays at the above mortgage insurance under the Section opportunity to immediately apply for a address. Due to security measures at the 242 program, facilities must be properly refinanced loan under the Section 242 HUD Headquarters building, an advance licensed, provide primarily acute program, FHA proceeded to implement appointment to review the public patient care, and be able to demonstrate this authority by notice issued on July comments must be scheduled by calling the need for the project. Key program 1, 2009, and, as subsequently revised by the Regulations Division at 202–708– criteria include a maximum loan-to- a January 2010 notice. This proposed 3055 (this is not a toll-free number). value of 90 percent and a loan term of 1 rule provides the regulatory format for Individuals with speech or hearing 25 years. such implementation and seeks impairments may access this number 1 More information about HUD’s Section 242 comment on the implementation. through TTY by calling the Federal program can be found at: http://portal.hud.gov/ Comments received in response to this Information Relay Service at 800–877– portal/page?_pageid=73,1826910&_dad=portal&_ rule will be taken into consideration in 8339. Copies of all comments submitted schema=PORTAL.

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The regulations for the Section 242 for hospitals is an action that could and renovations, and/or equipment, the cost program are codified in 24 CFR part should be taken at this time. of which is less than 20 percent of the 242. In 2005, HUD initiated rulemaking mortgage amount. The statute makes a II. This Proposed Rule to update the Section 242 program distinction between ‘‘substantial regulations and to bring them in This rule proposes to amend FHA’s rehabilitation,’’ which cannot be carried conformity with current hospital recently updated Section 242 out under Section 223(f) authority, and financing practices of that time. Prior to regulations (which were subject to the relatively less substantial work that the initiation of the 2005 rulemaking, public comment) to provide for the is allowed under Section 223(f). For this the regulations were last amended in regulatory codification of FHA’s reason, the definition of substantial 1995. (See proposed rule published on authority to refinance hospital debt rehabilitation was revised to make clear January 10, 2005, at 70 FR 17250.) That under Section 223(f), without the difference between the work rulemaking resulted in final regulations conditioning the refinancing on new performed in a Section 242 project (20 being promulgated on November 28, construction or renovation. The Section percent or more of the mortgage 2007. (See final rule published on 223(f) refinancing authority as a amount) and the work allowed in November 28, 2007, at 72 FR 67524.) component of the Section 242 program connection with a refinance mortgage Although HUD has long had the is referred to as the Section 242/223(f) under Section 223(f) (under 20 percent authority, under section 223(f) of the program. This refinancing authority is of the mortgage amount). Since the NHA,2 to provide for refinancing of for hospitals without FHA-insured revision to the definition of ‘‘substantial hospital debt without conditioning such loans. Hospitals with FHA-insured rehabilitation’’ includes a reference to refinancing on new construction or loans are eligible for refinancing of debt ‘‘hard costs,’’ HUD added this definition renovation, and HUD has implemented (without conditioning refinancing on for clarity purposes. this authority for multifamily rental new construction or renovation) under housing and health care facilities, HUD section 223(a)(7) of the NHA. Eligibility for Insurance and Transition has not implemented this authority for Specifically, the amendments proposed Provision (Section 242.4) hospitals. To date, it has been HUD’s by this rule would modify the This rule expands eligibility for view that private capital to help regulations in 24 CFR part 242, as insurance to include ‘‘refinancing of the hospitals refinance debt was sufficiently described in this section of the capital debt of an existing hospital available, and that the demand for this preamble, to reflect the authority pursuant to section 223(f) of the NHA type of refinancing was not as great as already implemented by notice that (Section 242/223(f)).’’ allows for refinancing without the was the need for financing for new Limitation on Refinancing of Existing construction, renovation and necessity for new construction or Indebtedness (Section 242.15) rehabilitation, and equipment renovation. As noted earlier in this purchases. preamble, FHA proceeded to implement This rule adds a new paragraph (b) to Since HUD initiated rulemaking to this authority by notice issued on July § 242.15 to provide that, in the case of update its Section 242 program 1, 2009, and, as subsequently revised by a loan insured under Section 242/223(f), regulations, the availability of credit has a January 2010 notice, which can be there is no requirement for hard costs. rapidly declined. Just as HUD has found at http://www.hud.gov/offices/ However, if there are hard costs, such initiated programs and initiatives to adm/hudclips/notices/hsg/files/09- costs must total less than 20 percent of assist troubled homeowners, through 05hsgn.doc. All regulations in 24 CFR the total mortgage amount. part 242 would be applicable to Section this rule, HUD believes it can provide Applications (Section 242.16) relief to hospitals that are experiencing 242/223(f) refinancing—those proposed increased debt-services costs. A report to be modified by this rule and those not The rule amends § 242.16(a)(2) to issued by the American Hospital modified by this rule. make certain amendments to the Association on January 6, 2009, regulatory provisions concerning Definitions (Section 242.1) describes the financial problems facing financial eligibility of hospitals seeking hospitals and health care facilities This proposed rule adds a definition refinancing under Section 242/223(f). today, and recommends actions that of ‘‘hard costs’’ to mean the costs of the The proposed rule would establish could be undertaken to alleviate the construction and equipment, including threshold requirements designed to financial stress on hospitals. One of construction-related fees such as determine the need of the hospital for those recommendations is for FHA to architect and construction manager fees. refinancing that would not be available implement its authority in section 223(f) The rule amends the definition of through other sources, and to screen out of the NHA (Section 223(f)) to refinance ‘‘substantial rehabilitation’’ to provide hospitals that would have little or no existing hospital debt. (See http:// that it includes ‘‘cases where the hard chance of having a formal application www.aha.org/aha/content/2009/pdf/ costs of construction and equipment are approved, based on their financial 090106-economic-recovery-mo.pdf.) equal to or greater than 20 percent of the performance. HUD specifically seeks HUD has considered this mortgage amount.’’ comments on these threshold recommendation and has determined While Section 242 is principally a requirements. that implementing the refinance construction program, HUD has allowed To receive consideration for Section authority in section 223(f) of the NHA up to 80 percent of the mortgage amount 224/223(f) refinancing, the hospital to be used for refinancing, provided that must meet two financial thresholds. 2 Section 223(f)(1) provides that ‘‘Notwithstanding at least 20 percent is used for First, the hospital must have a 3-year any of the provisions of this Act, the Secretary is construction and/or equipment. In aggregate operating margin of at least 0 authorized, in his discretion, to insure under any determining how to address the issue of percent and a 3-year average debt section of this title a mortgage executed in connection with the purchase or refinancing of an repairs, renovations, and/or equipment service coverage ratio of at least 1.4. existing multifamily housing project or the in a Section 242/223(f) case, which is Also, the proposed rule provides that purchase or refinancing of existing debt of an directed solely to refinancing debt, HUD the hospital must demonstrate that its existing hospital (or existing nursing home, existing decided that, for Section 242/223(f) financial health depends upon assisted living facility, existing intermediate care facility, existing board and care home, or any refinancing, it would allow loan refinancing its existing capital debt and combination thereof).’’ (12 U.S.C. 1715n(f).) proceeds to be used for repairs, that it provides an essential service to

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the community in which it operates. with respect to a Section 242/223(f) and other requirements pertaining to the This demonstration is met by providing mortgage, HUD will always consider mortgage.3 documentation of the following: market need in the preliminary Section 242.17(a) provides for (1) If the hospital were no longer in threshold requirement phase, as insurance of advances in cases where operation, the community in which it discussed in § 242.16(a)(4). there is a need for advances to fund presently operates would suffer from construction activities and the purchase The importance of market need varies inadequate access to an essential service of equipment. This is the case in Section from case to case. For example, an in- that the hospital presently provides; 242 projects and Section 242 projects (2) There are few alternative depth review of market need might not pursuant to Section 241. However, in affordable financing vehicles available be necessary for a hospital with Section 242 projects pursuant to Section to the hospital; and historically strong utilization and 223(f), the circumstances of each case (3) The hospital meets three of the financial statistics that is seeking a pure will determine whether the commitment following seven criteria: (i) The refinancing or a refinancing with minor will be for insurance of advances or proposed refinancing would reduce the repairs. However, an in-depth review is insurance upon completion. In a pure hospital’s total operating expenses by at likely needed in the case of a hospital refinancing, or a refinancing with minor least 0.25 percent; (ii) the interest rate that is using close to 20 percent of the repairs, renovations, and/or equipment of the proposed refinancing would be at mortgage proceeds (the maximum that the hospital can fund from its least 0.5 percentage points less than the allowed under Section 242/223(f)) for operations and cash reserves, there is no interest rate on the debt to be construction and equipment in order to need for advances and the commitment refinanced; (iii) the interest rate on the expand the services it provides to the will be for insurance upon completion. debt that the hospital proposes to public in a competitive market area. However, if a significant portion of the refinance has increased by at least one Other examples of cases where a study mortgage proceeds (subject to the 20 percentage point at any time since percent limitation) is to be used for January 1, 2008, or is very likely to may not be needed are geographically remote critical access hospitals and sole repairs, renovations, and/or equipment, increase by at least one percentage point and the hospital cannot fund these from within one year of the date of community provider hospitals. These designations by Centers for Medicare its own cash, then the commitment may application; (iv) the hospital’s annual provide for insurance of advances. total debt service is in excess of 3.4 and Medicaid Services are strong percent of total operating revenues, indicators of market need. HUD will Inspection Fee (Section 242.18) consider the characteristics of each case based on its most recent audited This rule amends § 242.18 to provide financial statement; (v) the hospital has in determining whether the study must that in the case of mortgages insured experienced a withdrawal of its credit address market need. under Section 242/223(f), the inspection enhancement facility, or the lender In addition to the amendment to fee shall be paid at endorsement, as providing its credit enhancement § 242.16(b)(5), this rule amends described in the amendments to facility has been downgraded, or the § 242.16(b)(3) to require that, in § 242.39, as discussed below. hospital can demonstrate that one of the applications for Section 242/223(f) In the traditional Section 242 events is imminent; (vi) the hospital is refinancing, the applicant must provide program, the inspection fee is generally party to overly restrictive or onerous a description of any repairs, 50 basis points on all loans. This fee bond covenants; or (vii) there are other renovations, and/or equipment to be covers such activities as review of circumstances that demonstrate that the financed with mortgage proceeds, and architectural plans and specifications, hospital’s financial health depends and periodic inspection as the upon refinancing its existing capital how those repairs, renovations, and/or equipment will affect the hospital. The construction gets under way. For debt. applicants seeking refinancing only, an The inclusion of these threshold rule amends § 242.16(b)(6) to provide that the required architectural plans and inspection fee that would involve factors to determine hospitals eligible generally no more than a site visit by for consideration for Section 242/223(f) specifications are not required of an application for Section 242/223(f) HUD architects and engineers will not refinancing is designed to assure that exceed 10 basis points on the loan. HUD is assisting those hospitals that mortgage insurance, except when merit serious consideration based on requested by HUD. This rule also Maximum Mortgage Amounts and Cash their financial strength and on need— amends § 242.16(d) to provide that an Equity Requirements (Section 242.23) theirs and that of the communities in application for Section 242/223(f) One of the more significant which they serve. mortgage insurance shall be on an amendments made to the regulations in In offering this new insurance approved FHA form, submitted jointly 24 CFR part 242 is made to § 242.23, to product, and as the proposed threshold by an approved mortgagee and the establish the maximum mortgage requirements may reflect, HUD is taking prospective mortgagor. amounts and cash equity amounts for a conservative approach intended to Commitments (Section 242.17) mortgages insured under Section 242/ attract those hospital applicants that 223(f). already meet the minimum operating This rule amends § 242.17(a) The rule adds a new paragraph (b) to margin and debt-service coverage ratios (Issuance of Commitment) to add a new § 242.23 to provide that, in addition to required for application approval under paragraph (a)(2) to provide that in the meeting the requirements of § 242.7 the current Section 242 program. (which addresses maximum mortgage The rule amends § 242.16(b)(5) to case of an application for Section 242/ provide that the study of market need 223(f) mortgage insurance where advances are not needed for funding any 3 Note that since there is an existing paragraph may not be required, subject to HUD’s (a)(2) in § 242.17, the existing paragraph ((a)(2)) and discretion, for an application for Section repairs, renovations, or equipment, a the paragraphs that follow will be redesignated 242/223(f) mortgage insurance. In most commitment for insurance upon accordingly). This rule amends § 242.17(b) (Type of cases, however, HUD does require this completion shall include the mortgage Commitment) to provide that in the case of a amount, interest rate, mortgage term, commitment for Section 242/223(f) insured study. Although HUD may determine refinancing, at HUD’s discretion the commitment not to require a study of market need date of commencement of amortization, may provide for insurance upon completion.

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amounts applicable to all mortgages Insurance Endorsement (Section 242.39) 242 for certificates, studies, and insured under the Section 242 statements have been met. program) 4, if the existing hospital debt This rule amends § 242.39 to divide this section into two main parts. The III. Corresponding Implementation is to be refinanced by the insured Notice mortgage (i.e., without a change in existing section is designated as ownership or with the hospital sold to paragraph (a) and entitled ‘‘New As noted earlier in this preamble, in a purchaser who has an identity of Construction/Substantial an effort to immediately address the interest, as defined by the FHA Rehabilitation.’’ New paragraph (b), lack of adequate private financing Commissioner, with the seller), the entitled ‘‘Section 242/223(f) available to hospitals, HUD issued a maximum mortgage amount must not Refinancing,’’ provides that in cases that notice on July 1, 2009, as recently exceed the cost to refinance the existing do not involve advances of mortgage amended in January 2010, which can be indebtedness. proceeds, endorsement shall occur after found at http://www.hud.gov/hudclips/, all relevant terms and conditions have that implemented FHA’s longstanding The rule provides that the existing been satisfied, including, if applicable, refinance authority under section 223(f) indebtedness will consist of the completion of any repairs, renovations, of the NHA to hospitals. The issue of the following items, the eligibility and and/or equipment, or upon assurance availability of hospitals and other health amounts of which must be determined acceptable to the FHA Commissioner care facilities in communities is one of by the FHA Commissioner: (1) The that all required repairs will be the important health care issues to be amount required to pay off the existing completed by a date certain following addressed. With an aging population, indebtedness; (2) reasonable and endorsement. New paragraph (b) and health care demands on the rise, customary legal, organization, title, and provides that in cases where advances hospitals need access to capital to recording expenses, including of mortgage proceeds are used to fund expand and improve facilities, mortgagee fees under § 242.22; (3) the repairs, renovation, and/or equipment, technology, and equipment. Without estimated costs, if any, of repairs, endorsement shall occur as described in access to capital, hospitals and facilities renovation, and/or equipment totaling § 242.39(a) immediately above for new will close or needed improvements in less than 20 percent of the mortgage construction/substantial rehabilitation. facility, technology, and equipment will amount; and (4) architect’s and not be addressed. engineer’s fees, municipal inspection Labor Standards (Section 242.55) While HUD recognizes that all financing needs of the hospitals and fees, and any other required This rule amends § 242.55(c) to reflect health-care facilities will not be professional or inspection fees. that the labor standards referenced in addressed by extending to hospitals, The rule also provides in the new that regulatory section are applicable to through the Section 242 program, the paragraph (b) added to § 242.23, that, in a refinancing loan under section 223(f) refinancing authority of Section 223(f) addition to meeting the requirements of of the NHA. of the NHA, HUD believes that through § 242.7, if mortgage proceeds are to be Eligibility of Refinancing Transactions the action taken initially in the used for an acquisition, the maximum (Section 242.91) implementing notice of July 1, 2009, as mortgage amount must not exceed the amended in January 2010, and by cost to acquire the hospital, which will This rule amends § 242.91 to following through with this rulemaking, consist of the following items, the consolidate the existing section into a it may be able to contribute to eligibility and amounts of which must new paragraph (a), and to add a new alleviating the financial stress faced by be determined by the FHA paragraph (b) that provides that a many hospitals today. Additionally, the Commissioner: (1) The actual purchase mortgage given to refinance the debt of action taken is consistent with HUD’s price of the land and improvements or an existing hospital under Section 242 statutory purpose under Section 242, HUD’s estimate (prior to repairs, of the NHA may be insured pursuant to which includes assisting in the renovation, and/or equipment Section 223(f) of the NHA. The new availability of needed hospitals for the replacement) of the fair market value of paragraph (b) also provides that a care and treatment of persons who are such land and improvements, mortgage may be executed in acutely ill or who otherwise require whichever is the lesser; (2) reasonable connection with the purchase or medical care and related services of the and customary legal, organization, title, refinancing of an existing hospital kind customarily furnished only (or and recording expenses, including without substantial rehabilitation. In most effectively) by hospitals. mortgagee fees under § 242.22; (3) the addition, the new paragraph (b) HUD determined that with minimal estimated costs, if any, of repairs, provides that the FHA Commissioner amendments to its regulations in 24 CFR renovation, and/or equipment totaling shall prescribe such terms and part 242 (recently the subject of public less than 20 percent of the mortgage conditions as the Commissioner deems comment and revised, in part, in amount; and (4) architect’s and necessary to assure that: (1) The response to such comment), HUD could engineer’s fees, municipal inspection refinancing is employed to lower the commence receiving applications for fees, and any other required monthly debt-service costs (taking into Section 242/223(f) mortgage insurance, professional or inspection fees. account any fees or charges connected and that is what the July 1, 2009, Because § 242.23 already has a with such refinancing) of such existing implementing notice allowed. paragraph (b), the existing paragraph (b) hospital; (2) the proceeds of any Although HUD determined to proceed and the paragraphs that follow will be refinancing will be employed only to: to implement, through notice, the redesignated accordingly. retire (a) the existing indebtedness; (b) Section 223(f) refinancing authority for pay for repairs, renovation, and/or hospitals, HUD recognizes the value and 4 Section 242.7 (24 CFR 242.7) provides: ‘‘The equipment totaling less than 20 percent importance of public input in mortgage shall involve a principal obligation not in of the mortgage amount; and (c) pay the determining final policy and developing excess of 90 percent of HUD’s estimate of the necessary cost of refinancing on such final application and review procedures. replacement cost of the hospital, including the equipment to be used in its operation when the existing hospital; (3) such existing It has always been HUD’s strategy to proposed improvements are completed and the hospital is economically viable; and (4) supplement its implementing notice equipment is installed.’’ the applicable requirements of Section with a proposed rule that would solicit

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public comment and commence the margin and debt-service coverage ratios assessment of costs and benefits, as set process of development of a final required for application approval under out in this section of the preamble, and regulatory structure that will govern the the current Section 242 program. The on the number of applications HUD Section 242/223(f) refinancing rule is not structured to address all expects to receive upon implementation authority. Before HUD issued its financing needs. The goal in of the Section 223(f) refinancing companion proposed rule to the July 1, implementing HUD’s Section 223(f) authority, as further revised by the 2009, notice, HUD received informal refinancing authority for hospitals is to January 2010 notice. feedback from hospitals and hospital assist those hospitals saddled with Information Collection Requirements representative organizations that the unexpectedly high interest rates, and threshold requirements presented a where refinancing is urgently needed for The information collection ‘‘refinancing only’’ bar that is too high. the hospital to continue to remain open requirements contained in this rule In response to such feedback, HUD has and adequately serve its surrounding were reviewed by OMB under the amended the threshold requirements, community. The primary beneficiaries Paperwork Reduction Act of 1995 (44 which, again, were designed to of this rule are the hospitals that receive U.S.C. 3501–3520) and assigned OMB determine refinancing need, but not an FHA-insured loan to refinance debt, Control Number 2502–0518. An agency serve as a substitute for the insurance and, through such loan insurance, are may not conduct or sponsor, and a eligibility requirements of the Section able to reduce their capital costs by person is not required to respond to, a 242 program. Those requirements and refinancing into a lower interest rate collection of information, unless the standards remain in place. This loan through the proposed program. The collection displays a valid control proposed rule, therefore, not only economic effect constitutes a transfer number. from the public to hospitals that would solicits comment specifically on the Environmental Impact threshold requirements presented in the not otherwise have been able to companion notice and proposed to be refinance out of their current high-cost A Finding of No Significant Impact codified by this rule, but on all other loans. (FONSI) with respect to the aspects of the changes made to the HUD estimates that the average environment has been made in Section 242 regulations to codify the decrease in the annual interest cost accordance with HUD regulations at 24 implementation of FHA’s Section 223(f) resulting from an eligible hospital’s CFR part 50, which implement section refinancing authority for hospitals with refinancing its current loan with an 102(2)(C) of the National Environmental non-FHA-insured loans. The final rule, FHA loan is 2 percentage points. After Policy Act of 1969 (42 U.S.C. when issued and in effect, will apply to the cost of the insurance premium is 4332(2)(C)). The FONSI is available for applications submitted for Section 242/ deducted, the net benefit is 1.5 public inspection between the hours of 223(f) refinancing authority following percentage points. The average loan size 8 a.m. and 5 p.m. weekdays in the the effective date of the rule. from FHA’s construction loan portfolio Regulations Division, Office of General is $60 million, which is used as an Counsel, Department of Housing and IV. Findings and Certifications estimate of the size of the principal of Urban Development, 451 7th Street, Regulatory Planning and Review loans to be refinanced. Assuming the SW., Room 10276, Washington, DC hospital’s current interest rate is 7.75 20410–0500. Due to security measures The Office of Management and Budget percent, and it is refinanced down to at the HUD Headquarters building, (OMB) reviewed this rule under 5.75 percent (effectively 6.25 percent please schedule an appointment to Executive Order 12866, Regulatory when the insurance premium is factored review the FONSI by calling the Planning and Review. OMB determined in), the annual savings to the hospital Regulations Division at 202–708–3055 that this rule is a ‘‘significant regulatory would be $688,740. (this is not a toll-free number). action,’’ as defined in section 3(f) of the The program has not been designed Individuals with speech or hearing order (although not an economically for the entire industry of 5,000 impairments may access this number significant regulatory action under the hospitals. As noted earlier, the pool of via TTY by calling the Federal order). The docket file is available for applicants is limited by the proposed Information Relay Service at 800–877– public inspection in the Regulations threshold restrictions. Industry experts 8339. Division, Office of General Counsel, have estimated that there would be a Department of Housing and Urban lead time of approximately 3 months Unfunded Mandates Reform Act Development, 451 7th Street, SW., while hospitals and lenders organized The Unfunded Mandates Reform Act Room 10276, Washington, DC 20410– their efforts and began to prepare of 1995 (2 U.S.C. 1531–1538) (UMRA) 0500. Due to security measures at the applications. After that (starting, in all establishes requirements for federal HUD Headquarters building, please likelihood, early in calendar year 2010), agencies to assess the effects of their schedule an appointment to review the they estimated that FHA would receive regulatory actions on state, local, and docket file by calling the Regulations from 35 to 50 applications during the tribal governments and on the private Division at 202–402–3055 (this is not a first year of the program. Assuming that sector. This rule does not impose a toll-free number). Individuals with the maximum of 50 applications are federal mandate on any state, local, or speech or hearing impairments may received in the first year, that they tribal government, or on the private access this number via TTY by calling arrive steadily during the year (4.17 sector, within the meaning of UMRA. the Federal Information Relay Service at applications per month), and that the 800–877–8339. average time to process them to Regulatory Flexibility Act This Section 242/223(f) program is commitment is 60 days, 10 months’ The Regulatory Flexibility Act (5 specifically for the refinancing of non- worth of applications received U.S.C. 601 et seq.) generally requires an FHA loans. In offering this new (approximately 41) could receive agency to conduct a regulatory insurance product, and as the proposed insurance commitments in 2010. The flexibility analysis of any rule subject to threshold requirements reflect, HUD is economic impact would amount to notice and comment rulemaking taking a conservative approach intended approximately $28.2 million annually. requirements, unless the agency certifies to attract hospital applicants that In addition to commenting on the that the rule will not have a significant already meet the minimum operating rule, HUD welcomes comment on its economic impact on a substantial

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number of small entities. The state law, unless the agency meets the 4. In § 242.15, the existing text of this amendments proposed by this rule will consultation and funding requirements section is redesignated as paragraph (a), expand the availability of financing for of section 6 of the Executive Order. This and a new paragraph (b) is added to hospitals and health care facilities, both rule does not have federalism read as follows: large and small, under FHA’s Section implications and does not impose 242 program, based on regulations that substantial direct compliance costs on § 242.15 Limitation on refinancing existing indebtedness. were recently the subject of notice and state and local governments nor comment. HUD defines a small hospital preempt state law within the meaning of * * * * * entity similar to the definition used by the Executive Order. (b) In the case of a loan insured under the Health Care Financing Section 242/223(f), there is no List of Subjects in 24 CFR Part 242 Administration of the U.S. Department requirement for hard costs. However, if of Health and Human Services: as a Hospitals, Mortgage insurance, there are hard costs, such costs must hospital of 50 or fewer beds. As noted Reporting and recordkeeping total less than 20 percent of the total earlier in this preamble, hospitals, large requirements. mortgage amount. or small, currently receiving Section Accordingly, for the reasons described 5. In § 242.16: 242-insured financing, large or small, in the preamble, HUD proposes to a. Paragraphs (a)(3) through (a)(5) are are eligible for refinancing under section amend 24 CFR part 242 to read as redesignated paragraphs (a)(4) through 223(a)(7) of the NHA. Currently, 21 follows: (a)(6), respectively; (approximately 25 percent) of the b. New paragraph (a)(3) is added; hospitals with Section 242-insured PART 242—MORTGAGE INSURANCE c. Newly redesignated paragraph financing have 50 or fewer beds. HUD FOR HOSPITALS (a)(6) introductory text is revised; and d. Paragraphs (b)(3), (5), and (6) and has approached development of its 1. The authority citation for 24 CFR paragraph (d) are revised to read as eligibility for section 223(f) refinancing part 242 is revised to read as follows: to take into consideration criteria that follows: all hospitals, large or small, can meet. Authority: 12 U.S.C. 1709, 1710, 1715b, 1715n(f), and 1715u; 42 U.S.C. 3535(d). § 242.16 Applications. The basis for FHA’s implementation of its refinancing authority, as has been 2. In § 242.1, definitions for ‘‘hard (a) * * * discussed in this preamble, is to assist costs’’ and ‘‘Section 242/223(f)’’ are (3) Threshold requirements— hospitals that provide valuable services added, and the definition of ‘‘substantial refinancing candidates. For an needed by the communities in which rehabilitation’’ is revised to read as application to be considered for they are located, and for which other follows: refinancing pursuant to Section 223(f), a hospital must meet the following refinancing sources are not available. § 242.1 Definitions. HUD believes that the criteria presented requirements in lieu of those described in this rule strikes the appropriate * * * * * in paragraph (a)(2) of this section: Hard costs means the costs of the balance. (i) The hospitals must have an Accordingly, it is HUD’s view that construction and equipment, including aggregate operating margin of at least 0 this rule will not have a significant construction-related fees such as percent, when calculated from the three economic impact on a substantial architect and construction manager fees. most recent annual audited financial number of small entities, and an initial * * * * * statements. regulatory flexibility analysis is not Section 242/223(f) refers to a loan (ii) The hospitals must have an required. However, as provided in insured under Section 242 of the Act average debt service coverage ratio of at HUD’s analysis under Executive Order pursuant to Section 223(f) of the Act. least 1.4 when calculated from the three 12866 (Regulatory Planning and * * * * * most recent annual audited financial Review), the impact of this rule on the Substantial rehabilitation means statements. economy is not anticipated to be additions, expansion, remodeling, (iii) HUD may, at its discretion, recast significant. This impact encompasses renovation, modernization, repair, and the operating margin and debt service large and small hospital entities, and the alteration of existing buildings, coverage ratio for prior periods by using impact on small entities does not rise to including acquisition of new or its estimate of the projected interest rate a level of a significant economic impact replacement equipment, in cases where in lieu of the historical interest rate(s). on a substantial number of small the hard costs of construction and (iv) The hospital must demonstrate entities; in this case, small hospitals. equipment are equal to or greater than that its financial health depends upon Notwithstanding HUD’s 20 percent of the mortgage amount. refinancing its existing capital debt and determination that this rule does not * * * * * that it provides an essential service to have a significant economic impact on 3. In § 242.4, the section heading and the community in which it operates. a substantial number of small entities, paragraph (a) are revised to read as This demonstration is met by providing HUD specifically invites comments from follows: documentation of the following: all entities, including small entities, (A) If the hospital were no longer in § 242.4 Eligible hospitals. regarding less burdensome alternatives operation, the community in which it to this rule that would meet HUD’s (a) The hospital to be financed with presently operates would suffer from objectives as described in this preamble. a mortgage insured under this part shall inadequate access to an essential service involve the construction of a new that the hospital presently provides; Executive Order 13132, Federalism hospital, the substantial rehabilitation (B) There are few alternative Executive Order 13132 (entitled (or replacement) of an existing hospital, affordable refinancing vehicles available ‘‘Federalism’’) prohibits an agency from or the refinancing of the capital debt of to the hospital. publishing any rule that has federalism an existing hospital pursuant to Section (C) The hospital meets three of the implications if the rule either imposes 242/223(f), or the acquisition of an following seven criteria: substantial direct compliance costs on existing hospital pursuant to Section (1) The proposed refinancing would state and local governments and is not 242/223(f). reduce the hospital’s total operating required by statute, or the rule preempts * * * * * expenses by at least 0.25 percent;

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(2) The interest rate of the proposed mortgage insurance, at HUD’s of this subpart. For applicants seeking refinancing would be at least 0.5 discretion, the study may not be refinancing only, an inspection fee that percentage points less than the interest required to address market need and, at would involve a site visit by HUD rate on the debt to be refinanced; HUD’s discretion, there may be no architects and/or engineers, or their (3) The interest rate on the debt that requirement for involvement of a review of a site visit report prepared by the hospital proposes to refinance has certified accounting firm; the architects and/or engineers of the increased by at least one percentage (6) Architectural plans and applicant hospital, will not exceed 10 point at any time since January 1, 2008, specifications in sufficient detail to basis points on the loan. or is very likely to increase by at least enable a reasonable estimate of cost (not 8. In § 242.23, paragraphs (b) and (c) one percentage within one year of the applicable to a Section 242/223(f) are redesignated as paragraphs (c) and date of application; application, except when architectural (d), respectively, and a new paragraph (4) The hospital’s annual total debt plans and specifications are requested (b) is added to read as follows: service is in excess of 3.4 percent of by HUD); total operating revenues, based on its § 242.23 Maximum mortgage amounts and * * * * * cash equity requirements. most recent audited financial statement; (d) Filing of application. An (5) The hospital has experienced a application for insurance of a mortgage * * * * * withdrawal or expiration of its credit on a project shall be submitted on an (b) Section 242/223(f) refinancing— enhancement facility, or the lender approved FHA form, by an approved additional limit. (1) In addition to providing its credit enhancement mortgagee and by the sponsors of such meeting the requirements of § 242.7, if facility has been downgraded, or the project, to the FHA Office of Insured the existing hospital debt is to be hospital can demonstrate that one of Health Care Facilities. An application refinanced by the insured mortgage (i.e., these events is imminent; for insurance of a mortgage pursuant to without a change in ownership or with (6) The hospital is party to overly Section 223(f) shall be submitted on an the hospital sold to a purchaser who has restrictive or onerous bond covenants; approved FHA form by an approved an identity of interest, as defined by the and mortgagee and by the proposed FHA Commissioner, with the seller), the (7) There are other circumstances that mortgagor. maximum mortgage amount must not demonstrate that the hospital’s financial exceed the cost to refinance the existing * * * * * indebtedness, which will consist of the health depends upon refinancing its 6. In § 242.17, paragraphs (a)(2) following items, the eligibility and existing capital debt. through (5) are redesignated as amounts of which must be determined * * * * * paragraphs (a)(3) through (6), a new by the FHA Commissioner: (6) Preapplication meeting. The next paragraph (a)(2) is added, and paragraph (i) The amount required to pay off the step in the application process is the (b) is revised to read as follows: preapplication meeting (this step is existing indebtedness; optional, at HUD’s discretion, in Section § 242.17 Commitments. (ii) Reasonable and customary legal, 242/223(f) cases). At HUD’s discretion, (a) * * * organization, title, and recording this meeting may be held at HUD (2) In the case of an application for expenses, including mortgagee fees Headquarters in Washington, DC, or at Section 242/223(f) insurance where under § 242.22; another site agreeable to HUD and the advances are not needed for funding any (iii) The estimated costs, if any, of potential applicant. The preapplication repairs, renovations, or equipment, a repairs, renovation, and/or equipment meeting is an opportunity for the commitment for insurance upon totaling less than 20 percent of the potential mortgagor to summarize the completion, reflecting the mortgage mortgage amount; proposed project, for HUD to summarize amount, interest rate, mortgage term, (iv) Architect’s and engineer’s fees, the application process, and for issues date of commencement of amortization, municipal inspection fees, and any that could affect the eligibility or and other requirements pertaining to the other required professional or underwriting of the project to be mortgage that will be issued. inspection fees. identified and discussed to the extent * * * * * (2) In addition to meeting the possible. Following the meeting, HUD (b) Type of commitment. The requirements of § 242.7, if mortgage may: commitment will provide for the proceeds are to be used for an (b) * * * insurance of advances of mortgage funds acquisition, the maximum mortgage (3) A description of the project, the during construction. In the case of a amount must not exceed the cost to business plan of the hospital, and how commitment for Section 242/223(f)- acquire the hospital, which will consist the project will further that plan, or, for insured refinancing, at HUD’s discretion of the following items, the eligibility applications pursuant to Section 223(f), the commitment may provide for and amounts of which must be a description of any repairs, insurance upon completion. determined by the FHA Commissioner: renovations, and/or equipment to be * * * * * (i) The actual purchase price of the financed with mortgage proceeds and 7. Section 242.18 is revised to read as land and improvements or HUD’s how those repairs, renovations, and/or follows: estimate (prior to repairs, renovation, equipment will affect the hospital; and/or equipment replacement) of the * * * * * § 242.18 Inspection fee. fair market value of such land and (5) A study of market need and The commitment may provide for the improvements, whichever is less; financial feasibility, addressing the payment of an inspection fee in an (ii) Reasonable and customary legal, factors listed in paragraphs (a)(1)(ii), amount not to exceed $5 per thousand organization, title, and recording (a)(2), and (a)(3) of this section, with dollars of the commitment. The expenses, including mortgagee fees assumptions and financial forecast inspection fee shall be paid at the time under § 242.22; clearly presented, and prepared by a of initial endorsement. In the case of (iii) The estimated costs, if any, of certified accounting firm acceptable to mortgages insured pursuant to section repairs, renovation, and/or equipment HUD, except that in the case of an 223(f), the inspection fee shall be paid totaling less than 20 percent of the application for Section 242/223(f) at endorsement, as described in § 242.39 mortgage amount;

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(iv) Architect’s and engineer’s fees, paragraph (a) of this section unexpired term of the existing mortgage, municipal inspection fees, and any immediately above, for new except that the new mortgage may have other required professional or construction/substantial rehabilitation. a term of not more than 12 years in inspection fees. * * * * * excess of the unexpired term of the * * * * * 10. In § 242.55, paragraph (c) is existing mortgage in any case in which 9. In § 242.39, the introductory text is revised to read as follows: HUD determines that the insurance of removed and paragraphs (a) and (b) are the mortgage for an additional term will revised to read as follows: § 242.55 Labor standards. inure to the benefit of the FHA * * * * * Insurance Fund, taking into § 242.39 Insurance endorsement. (c) Each laborer or mechanic consideration the outstanding insurance (a) New construction/substantial employed on any facility covered by a liability under the existing insured rehabilitation. Initial endorsement of mortgage insured under this part (except mortgage, and the remaining economic the mortgage note shall occur before any under 24 CFR 242.91(a), but including life of the property. mortgage proceeds are insured, and the a supplemental loan under section 241 (4) Minimum loan amount. The time of final endorsement shall be as set of the Act or a refinancing loan under mortgagee may not require a minimum forth in paragraph (a)(2) of this section. section 223(f) of the Act made in principal amount to be outstanding on (1) Initial endorsement. The FHA connection with a loan insured under the loan secured by the existing Commissioner shall indicate the this part) shall receive compensation at mortgage. insurance of the mortgage by endorsing a rate not less than one and one-half (b) A mortgage given to refinance the the original mortgage note and times the basic rate of pay for all hours debt of an existing hospital under identifying the section of the Act and worked in any workweek in excess of 8 Section 242 of the Act may be insured the regulations under which the hours in any workday or 40 hours in the under this subpart pursuant to Section mortgage is insured and the date of workweek. 223(f) of the Act. The mortgage may be insurance. * * * * * executed in connection with the (2) Final endorsement. When all 11. Section 242.91 is revised to read purchase or refinancing of an existing advances of mortgage proceeds have as follows: hospital without substantial been made and all the terms and rehabilitation. A mortgage insured conditions of the commitment have § 242.91 Eligibility of refinancing pursuant to this subpart shall meet all been met to HUD’s satisfaction, HUD transactions. other requirements of this part. The shall indicate on the original mortgage (a) A mortgage given to refinance an FHA Commissioner shall prescribe such note the total of all advances approved existing insured mortgage under Section terms and conditions as the FHA for insurance and again endorse such 241 or Section 242 of the Act covering Commissioner deems necessary to instrument. a hospital may be insured under this assure that: (3) Contract rights and obligations. subpart pursuant to Section 223(a)(7) of (1) The refinancing is employed to The FHA Commissioner and the the Act. Insurance of the new, lower the monthly debt service costs mortgagee or lender shall be bound from refinancing mortgage shall be subject to (taking into account any fees or charges the date of initial endorsement by the the following limitations: connected with such refinancing) of provisions of the Contract of Mortgage (1) Principal amount. The principal such existing hospital; Insurance stated in subpart B of part amount of the refinancing mortgage (2) The proceeds of any refinancing 207, which is hereby incorporated by shall not exceed the lesser of: will be employed only to retire the reference into this part. (i) The original principal amount of existing indebtedness; pay for repairs, (b) Section 242/223(f) refinancing. (1) the existing insured mortgage; or renovation, and/or equipment totaling In cases that do not involve advances of (ii) The unpaid principal amount of less than 20 percent of the mortgage mortgage proceeds, endorsement shall the existing insured mortgage, to which amount; and pay the necessary cost of occur after all relevant terms and may be added loan closing charges refinancing on such existing hospital; conditions have been satisfied, associated with the refinancing (3) Such existing hospital is including, if applicable, completion of mortgage, and costs, as determined by economically viable; and any repairs, renovations, and/or HUD, of improvements, upgrading, or (4) The applicable requirements of equipment, or upon assurance additions required to be made to the Section 242 for certificates, studies, and acceptable to the FHA Commissioner property. statements have been met. that all required repairs will be (2) Debt service rate. The monthly completed by a date certain following debt service payment for the refinancing Dated: December 19, 2009. endorsement. mortgage may not exceed the debt David H. Stevens, (2) In cases where advances of service payment charged for the existing Assistant Secretary for Housing—Federal mortgage proceeds are used to fund mortgage. Housing Commissioner. repairs, renovation, and/or equipment, (3) Mortgage term. The term of the [FR Doc. 2010–1488 Filed 1–28–10; 8:45 am] endorsement shall occur as described in new mortgage shall not exceed the BILLING CODE 4210–67–P

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Reader Aids Federal Register Vol. 75, No. 19 Friday, January 29, 2010

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING JANUARY

Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. Presidential Documents 3 CFR 8 CFR Executive orders and proclamations 741–6000 Proclamations: 328...... 2785 The United States Government Manual 741–6000 8469...... 885 329...... 2785 Other Services 8470...... 1265 9 CFR Electronic and on-line services (voice) 741–6020 8471...... 1267 Privacy Act Compilation 741–6064 8472...... 2051 94...... 1697 Public Laws Update Service (numbers, dates, etc.) 741–6043 8473...... 3841 392...... 3847 8474...... 3843 TTY for the deaf-and-hard-of-hearing 741–6086 10 CFR 8475...... 3981 50...... 13 ELECTRONIC RESEARCH Executive Orders: 12958 (Revoked by 430...... 652 World Wide Web 13526) ...... 707 431 ...... 652, 1122, 4474 Full text of the daily Federal Register, CFR and other publications 13292 (Revoked by 440...... 3847 is located at: http://www.gpoaccess.gov/nara/index.html 13526) ...... 707 Proposed Rules: Federal Register information and research tools, including Public 13526...... 707, 1013 32...... 1559 Inspection List, indexes, and links to GPO Access are located at: 13527...... 737 50...... 3876, 4493 l http://www.archives.gov/federal register 13528...... 2053 431...... 186 E-mail 13529...... 3331 11 CFR FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is Administrative Orders: an open e-mail service that provides subscribers with a digital Memorandums: 1...... 29 form of the Federal Register Table of Contents. The digital form Memorandum of 2...... 29 of the Federal Register Table of Contents includes HTML and December 15, 4...... 29 PDF links to the full text of each document. 2009 ...... 1015 5...... 29 To join or leave, go to http://listserv.access.gpo.gov and select Memorandum of 100...... 29 Online mailing list archives, FEDREGTOC-L, Join or leave the list December 29, 101...... 29 (or change settings); then follow the instructions. 2009 ...... 733 102...... 29 PENS (Public Law Electronic Notification Service) is an e-mail Memorandum of 104...... 29 service that notifies subscribers of recently enacted laws. January 20, 2010 ...... 3979 110...... 29 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html Orders: 113...... 29 and select Join or leave the list (or change settings); then follow Order of December 29, 114...... 29 the instructions. 2009 ...... 735 201...... 29 FEDREGTOC-L and PENS are mailing lists only. We cannot 300...... 29 respond to specific inquiries. 5 CFR 12 CFR Reference questions. Send questions and comments about the Proposed Rules: Federal Register system to: [email protected] 293...... 2821, 4308 3...... 4636 The Federal Register staff cannot interpret specific documents or 1631...... 2822 208...... 4636 regulations. 222...... 2724 6 CFR Reminders. Effective January 1, 2009, the Reminders, including 225...... 4636 Rules Going Into Effect and Comments Due Next Week, no longer Proposed Rules: 229...... 219 appear in the Reader Aids section of the Federal Register. This 27...... 1552, 2445 325...... 4636 information can be found online at http://www.regulations.gov. 567...... 4636 7 CFR CFR Checklist. Effective January 1, 2009, the CFR Checklist no 925...... 678 longer appears in the Federal Register. This information can be 253...... 4469 944...... 678 found online at http://bookstore.gpo.gov/. 272...... 4912 1233...... 4255 273...... 4912 1263...... 678 1290...... 678 FEDERAL REGISTER PAGES AND DATE, JANUARY 301...... 4228 305...... 1, 4228 1731...... 4255 1–218...... 4 3981–4254...... 26 318...... 4228 Proposed Rules: 219–736...... 5 4255–4468...... 27 319...... 1, 4228 327...... 2823 737–884...... 6 4469–4682...... 28 330...... 4228 360...... 934 885–1012...... 7 4683–4972...... 29 352...... 4228 652...... 3647 1013–1268...... 8 948...... 3333 906...... 1289 1269–1524...... 11 980...... 1269 1207...... 1289 1525–1696...... 12 984...... 1525 1697–2052...... 13 993...... 1269 13 CFR 2053–2432...... 14 1400...... 887 301...... 4259 2433–2784...... 15 Proposed Rules: 302...... 4259 2785–3124...... 19 205...... 1555 305...... 4259 3125–3330...... 20 930...... 1724 307...... 4259 3331–3614...... 21 1730...... 4206 308...... 4259 3615–3846...... 22 1774...... 3642 313...... 4259 3847–3980...... 25 3565...... 4707 315...... 4259

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Proposed Rules: 166...... 3282 4022...... 2437 265...... 1236 121...... 1296 240...... 4007, 4713 Proposed Rules: 266...... 1236 124...... 1296 242...... 3594 1904...... 4728 271...... 918, 1236 700...... 773 14 CFR 1910...... 3881, 4323 18 CFR 721...... 773 25...32, 35, 37, 39, 1527, 2433, 35...... 4689 30 CFR 723...... 773, 4295 2434 131...... 4689 250...... 1276 725...... 773 39 ...... 221, 224, 901, 904, 906, 154...... 4689 Proposed Rules: 910, 1017, 1527, 1529, 157...... 4689 31 CFR 50...... 1566, 2938 1533, 1536, 1538, 1697, 250...... 4689 1...... 743 52 ...... 97, 283, 953, 958, 2090, 2055, 2057, 2060, 2062, 281...... 4689 2091, 2452, 3183, 3668, 2064, 2067, 2787, 3125, 285...... 745 284...... 4689 Proposed Rules: 3680, 4036, 4742, 4745, 3127, 3141, 3144, 3147, 300...... 4689 4758, 4759 3150, 3615, 3983, 4265, 1...... 2086 341...... 4689 240...... 95 55...... 3423 4475, 4477, 4480, 4482, 344...... 4689 58...... 1566, 2938 4485 346...... 4689 32 CFR 81...... 2091 71 ...... 42, 43, 226, 3984, 4268, 347...... 4689 706...... 4272 131...... 4174 4269, 4270, 4683 348...... 4689 724...... 746 180...... 807 97 ...... 915, 916, 4487, 4488 375...... 4689 320...... 816 120...... 3153 381...... 3987 Proposed Rules: 721...... 1180 121...... 739 385...... 4689 2004...... 1566 761...... 4759 135...... 3153 Proposed Rules: 33 CFR Proposed Rules: Ch. 1 ...... 4316 41 CFR 25...... 75, 81 33...... 4498 27...... 1704 301–10...... 790 27...... 793, 942 35...... 4310, 4498 100...... 748 29...... 793, 942 117 ...... 227, 1705, 1706, 3856, 42 CFR 39...89, 91, 258, 260, 262, 264, 4693 19 CFR Proposed Rules: 801, 950, 1297, 1560, 1563, 138...... 750 Proposed Rules: 412...... 1844 1731, 2826, 2829, 2831, 101...... 266 165 ...... 754, 1706, 1709, 2077, 413...... 1844 3418, 3420, 3656, 3658, 113...... 266 2438, 3372, 3859, 4490 422...... 1844 3660, 3662, 4308, 4710 133...... 266 Proposed Rules: 495...... 1844 71 ...... 3877, 3878, 3879, 3880 117...... 1738 91...... 942 20 CFR 147...... 803 44 CFR 121...... 942 416...... 1271 165...... 2833 64...... 60, 4000 125...... 942 334...... 3883 67...... 3171 135...... 942 21 CFR 401...... 4331 206...... 2800 15 CFR 510...... 3159 34 CFR Proposed Rules: 522...... 1274, 4692 67...... 3885 90...... 44 Ch. II...... 3375, 4464 738...... 1028 524...... 4692 529...... 1021 45 CFR 744...... 1699 36 CFR 558...... 1275 60...... 4656 748...... 2435 1280...... 3862 902 ...... 554, 2198, 3335, 4684 170...... 2014 23 CFR Proposed Rules: Proposed Rules: 635...... 46 242...... 2448 46 CFR 922...... 952 Proposed Rules: 37 CFR Proposed Rules: 16 CFR 1340...... 4509 388...... 4334 432...... 3985 202...... 3863 24 CFR 47 CFR 640...... 2724 Proposed Rules: 698...... 2724 5...... 4271 383...... 3666 1...... 4701 1115...... 3355 92...... 4271 2...... 3622 38 CFR 1500...... 3154 257...... 1686 15...... 3622, 3639 Proposed Rules: Proposed Rules: 21 ...... 3163, 3165, 3168 25...... 1285 307...... 3664, 3665 242...... 4964 73 ...... 1546, 3640, 3641, 3871 39 CFR 74...... 3622 312...... 1734 25 CFR 111...... 1540 Proposed Rules: 17 CFR 514...... 2795 232...... 4273 11...... 4760 12...... 3371 601...... 1541 15...... 3682 26 CFR 200...... 3122 3020 ....1280, 3383, 3988, 4693 54...... 2836 202...... 3122 1 ...... 1704, 3159, 3160 Proposed Rules: 73 ...... 3693, 3694, 3695, 4036, 240...... 2789 301...... 48 111 ...... 282, 4031, 4741 4037 275...... 742, 1456 Proposed Rules: 3050...... 1301 97...... 3886 276...... 1492 1...... 1301, 3666 279...... 1456 31...... 1735 40 CFR 48 CFR Proposed Rules: 301...... 94 52 ...... 54, 56, 230, 232, 1284, 209...... 3178 1...... 3282, 4144 1543, 1712, 1715, 1716, 225...... 3179 3...... 3282 27 CFR 2079, 2440, 2796, 3870, 237...... 3178 4...... 3282 555...... 3160 3993, 3996, 4698 252...... 3178, 3179 5...... 3282 55 ...... 3387, 3392, 3617 Proposed Rules: 10...... 3282 28 CFR 63...... 522 205...... 3187 20...... 4144 Proposed Rules: 81 ...... 56, 1543, 2936 207...... 3187 140...... 3282 522...... 3182 180 ...760, 763, 767, 770, 4274, 208...... 3187 145...... 3282 4279, 4284, 4288, 4292 209...... 3187 147...... 3282 29 CFR 262...... 1236 211...... 3187 151...... 4144 404...... 4271 263...... 1236 215...... 2457, 3187 160...... 3282 2510...... 2068 264...... 1236 216...... 3187

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217...... 3187 942...... 964 236...... 2598 648 .....1021, 2820, 3180, 4004, 219...... 3187 949...... 964 238...... 1180 4490 225 ...... 832, 1567, 3187 950...... 964 544...... 1548 660...... 932, 4684 228...... 3187 951...... 964 830...... 922 665 ...... 1023, 2198, 3416 232...... 3187 952...... 964 Proposed Rules: 679 ...... 554, 792, 1723, 3180, 234...... 2457 5132...... 2463 172...... 1302 3873, 3874, 3875, 4491 236...... 3187 5136...... 2463 173...... 1302 237...... 3187 5152...... 2463 175...... 1302 Proposed Rules: 242...... 2457 234...... 2466 17 ...... 286, 310, 6061, 1567, 49 CFR 244...... 2457 367...... 4521 1568, 1574, 1741, 1744, 246...... 3187 Ch. III ...... 4305 395...... 285, 2467 2102, 2270, 3190, 3424 250...... 3187 171...... 63 92...... 3888 252 ...... 832, 1567, 2457, 3187 172...... 63 50 CFR 100...... 2448 928...... 964 173...... 63 17...... 235 223...... 316, 838 931...... 964 175...... 63 21...... 927, 3395 224...... 316, 838 932...... 964 178...... 63 22...... 927, 3395 226 ...... 319, 1582, 3191 933...... 964 213...... 4703 218...... 3395 300...... 1324 935...... 964 219...... 1547 223...... 2198 936...... 964 229...... 2598 300...... 554, 3335 622...... 2469 937...... 964 234...... 2598 622...... 4307, 4705 648...... 1024, 3434 941...... 964 235...... 2598 635...... 250 660...... 1745

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