Vol. 77 Wednesday, No. 182 September 19, 2012

Pages 57985–58300

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 77, No. 182

Wednesday, September 19, 2012

Agricultural Marketing Service Agency Information Collection Activities; Proposals, RULES Submissions, and Approvals: National Organic Program: Federal Acquisition Regulation; Corporate Aircraft Costs, National List of Allowed and Prohibited Substances 58103–58104 (Livestock), 57985–57990 Federal Acquisition Regulation; Transportation Requirements, 58102–58103 Agriculture Department Inventory of Contracts for Services, Fiscal Year 2011; See Agricultural Marketing Service Availability, 58104–58105 See Food Safety and Inspection Service Privacy Act; Systems of Records, 58105–58107 See Forest Service See Rural Utilities Service Department of Transportation NOTICES See Pipeline and Hazardous Materials Safety Agency Information Collection Activities; Proposals, Administration Submissions, and Approvals, 58088–58089 Air Force Department Drug Enforcement Administration NOTICES NOTICES Privacy Act; Systems of Records, 58107–58109 Decisions and Orders: Rene Casanova, M.D., 58150–58170 Alcohol, Tobacco, Firearms, and Explosives Bureau NOTICES Education Department Grantings of Relief; Federal Firearms Privileges: NOTICES Northrop Grumman Guidance and Electronics Co., Inc., Agency Information Collection Activities; Proposals, 58150 Submissions, and Approvals: Higher Education Act Title II Report Cards on State Centers for Disease Control and Prevention Teacher Credentialing and Preparation, 58111–58112 NOTICES Institute of Education Sciences; Free Application for Agency Information Collection Activities; Proposals, Federal Student Aid Completion Project Evaluation, Submissions, and Approvals, 58142–58143 58111 Meetings: National Public Education Financial Survey 2011–2014, Interagency Task Force on Antimicrobial Resistance; Common Core of Data, 58110–58111 Update of Public Health Action Plan to Combat Antimicrobial Resistance, 58143–58144 Energy Department See Energy Efficiency and Renewable Energy Office Commerce Department See Federal Energy Regulatory Commission See Industry and Security Bureau NOTICES See National Oceanic and Atmospheric Administration Environmental Assessments; Availability, etc.: See Patent and Trademark Office Richland, WA; Conveyance of Land at Hanford Site and Potential Floodplain and Wetland Involvement, Consumer Product Safety Commission 58112–58114 NOTICES Settlement Agreements and Orders: Energy Efficiency and Renewable Energy Office Haier America Trading, LLC; Provisional Acceptance, NOTICES 58098–58099 SunShot Prize; Race to the Rooftop, 58114–58115 Telephonic Prehearing Conference, 58099–58100 Telephonic Prehearing Conference; Correction, 58100 Environmental Protection Agency Copyright Office, Library of Congress RULES NOTICES Approvals and Promulgations of Implementation Plans: Resale Royalty Right, 58175–58179 Florida; New Source Review—Prevention of Significant Deterioration; Fine Particulate Matter (PM2.5), Defense Acquisition Regulations System 58027–58032 NOTICES New Mexico, Albuquerque/Bernalillo County – Agency Information Collection Activities; Proposals, Infrastructure and Interstate Transport Requirements Submissions, and Approvals, 58109 for 1997 and 2008 Ozone, etc., 58032–58035 National Emission Standards for Hazardous Air Pollutant Defense Department Emissions: See Air Force Department Hard and Decorative Chromium Electroplating and See Defense Acquisition Regulations System Chromium Anodizing Tanks; and Steel Pickling— See Navy Department HCl Process Facilities and Hydrochloric Acid NOTICES Regeneration Plants, 58220–58253 Agency Information Collection Activities; Proposals, Pesticide Tolerances: Submissions, and Approvals, 58100–58102 Clopyralid, 58045–58050

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Protection of Stratospheric Ozone: Turbomeca S.A. Turboshaft Engines, 58002–58003 Listing of Substitutes for Ozone-Depleting Substances— PROPOSED RULES Fire Suppression and Explosion Protection, 58035– Airworthiness Directives: 58045 GA 8 Airvan (Pty) Ltd Airplanes, 58052–58053 PROPOSED RULES NOTICES Approvals and Promulgations of Implementation Plans: Agency Information Collection Activities; Proposals, Texas; Beaumont-Port Arthur Ozone Maintenance Plan Submissions, and Approvals: Revision to Approved Motor Vehicle Emissions Changes in Permissible Stage 2 Airplane Operations, Budgets, 58058–58063 58207–58208 Texas; Reasonably Available Control Technology for 1997 FAA Acquisition Management System, 58207 8-Hour Ozone National Ambient Air Quality Operating Requirements; Commuter and On Demand Standard, 58063–58067 Operations, 58206–58207 Disapprovals of Implementation Plan Revisions: Airport Privatization Pilot Program: State of California; South Coast VMT Emissions Offset Application of Luis Munoz Marin International Airport, Demonstrations, 58067–58072 San Juan, Puerto Rico; 60 Day Public Review and Findings of Substantial Inadequacy of Implementation Comment Period; Public Meeting, 58208–58209 Plans: Meetings: Call for California State Implementation Plan Revision; RTCA Special Committee 206, Aeronautical Information South Coast, 58072–58076 and Meteorological Data Link Services, 58210 Protection of Stratospheric Ozone: RTCA Special Committee 226, Audio Systems and Listing of Substitutes for Ozone-Depleting Substances— Equipment, 58209–58210 Fire Suppression and Explosion Protection, 58081– Petitions for Exemptions; Summariea of Petitions Received, 58084 58210–58211 Revisions to California State Implementation Plan: South Coast Air Quality Management District, 58076– Federal Energy Regulatory Commission 58078 NOTICES Withdrawals of Approvals of Air Quality Implementation Agency Information Collection Activities; Proposals, Plans: Submissions, and Approvals, 58115–58117 California; San Joaquin Valley; 1-Hour and 8-Hour Ozone Applications: Extreme Area Plan Elements, 58078–58081 Exelon Generation Co., LLC, 58119 NOTICES Freeport LNG Development, L.P.; FLNG Liquefaction, Agency Information Collection Activities; Proposals, LLC; FLNG Liquefaction 2, LLC; FLNG Liquefaction Submissions, and Approvals, 58127–58129 3, LLC, 58118 Clean Water Act Class II: Tacoma Power, 58117–58118 Proposed Administrative Settlement, Penalty Assessment Tacoma Power; Errata Notice, 58118–58119 and Opportunity to Comment Regarding New Authorizations for Continued Project Operations: Cingular Wireless PCS, LLC, 58129–58131 Inman Mills, 58120 Cross-Media Electronic Reporting: Combined Filings, 58120–58122 State of Mississippi, Authorized Program Revision Environmental Assessments; Availability, etc.: Approval, 58131–58132 Colorado Interstate Gas Co., LLC, Proposed High Plains Public Water System Supervision Program: 2013 Expansion Project, 58122–58124 Revision for Colorado, 58132–58133 Exemption Transfers: Revision for Utah, 58132 Hardins Manufacturing Co.; Hardins Resources Co, 58124 Requests for Nominations: Initial Market-Based Rate Filings: Environmental Financial Advisory Committee, 58133– Dynamo Power LLC, 58124 58134 Preliminary Permit Applications: Requests to Voluntarily Cancel Certain Pesticide American River Power, LLC, 58125 Registrations, 58134–58139 Kaweah River Power Authority; Errata Notice, 58124 Executive Office of the President Requests under Blanket Authorizations: See Presidential Documents Natural Gas Pipeline Co. of America LLC, 58126 See Trade Representative, Office of United States Trunkline Gas Co., LLC, 58125–58126 Settlement Offers: Export-Import Bank Columbia Gas Transmission, LLC, 58126–58127 NOTICES Applications: Federal Financial Institutions Examination Council Final Commitment for Long-Term Loan or Financial NOTICES Guarantee in Excess of $100 million, 58139–58140 Meetings: Appraisal Subcommittee, 58140 Federal Aviation Administration RULES Airworthiness Directives: Federal Maritime Commission Airbus Airplanes, 57995–57996 NOTICES Bombardier, Inc. Airplanes, 57998–58001 Agreements Filed, 58140–58141 Eurocopter France Helicopters, 57996–57997 Lycoming Engines Reciprocating Engines, 58003–58006 Federal Railroad Administration The Boeing Company Airplanes, 57990–57994 NOTICES The Cessna Aircraft Company Airplanes, 57994–57995 Petitions for Waivers of Compliance, 58211–58212

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Federal Reserve System Interior Department NOTICES See Fish and Wildlife Service Changes in Bank Control: See Surface Mining Reclamation and Enforcement Office Acquisitions of Shares of a Bank or Bank Holding Company, 58141 International Trade Commission NOTICES Federal Retirement Thrift Investment Board Investigations: NOTICES Certain Electronic Fireplaces, Components Thereof, Meetings; Sunshine Act, 58141 Manuals for Same, Certain Processes for Manufacturing or Relating to Same and Certain Fish and Wildlife Service Products Containing Same, 58147–58149 RULES Recent Trends in U.S. Services Trade, 2013 Annual Report, Refuge-Specific Hunting and Sport Fishing Regulations; 58149–58150 CFR Correction, 58050–58051 PROPOSED RULES Justice Department Endangered and Threatened Wildlife and Plants: See Alcohol, Tobacco, Firearms, and Explosives Bureau 90-Day Findings on Petitions to Delist U.S. Captive See Drug Enforcement Administration Populations of Scimitar-horned Oryx, Dama Gazelle, and Addax, 58084–58086 Labor Department See Mine Safety and Health Administration Food and Drug Administration See Occupational Safety and Health Administration RULES New Animal Drugs for Use in Animal Feeds: Library of Congress Monensin, 58021–58022 See Copyright Office, Library of Congress

Food Safety and Inspection Service Maritime Administration NOTICES NOTICES Compliance Guidelines; Availability: Administrative Waivers of Coastwise Trade Laws: Salmonella; Small and Very Small Meat and Poultry Vessel DEFIANCE, 58212 Establishments that Produce Ready-to-Eat Products, Vessel ISLAND WATERS, 58213 58089–58091 Vessel RIVA, 58212–58213 Risk-Based Sampling of Beef Manufacturing Trimmings for Escherichia coli (E. coli) and Plans for Beef Baseline, Mine Safety and Health Administration 58091–58094 NOTICES Agency Information Collection Activities; Proposals, Forest Service Submissions, and Approvals: NOTICES Explosive Materials and Blasting Units (Pertains to Metal Meetings: and Nonmetal Underground Mines Deemed to be Central Idaho Resource Advisory Committee, 58094– Gassy), 58173–58174 58095 Fire Protection (Underground Coal Mines), 58170–58172 Prince of Wales Resource Advisory Committtee, 58095– Records of Preshift and Onshift Inspections of Slope and 58096 Shaft Areas of Slope and Shaft Sinking Operations at White Pine-Nye Resource Advisory Committee, 58095 Coal Mines, 58172–58173

General Services Administration National Aeronautics and Space Administration NOTICES NOTICES Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals, Submissions, and Approvals: Submissions, and Approvals: Art-in-Architecture Program National Artist Registry, Federal Acquisition Regulation; Corporate Aircraft Costs, 58141–58142 58103–58104 Federal Acquisition Regulation; Corporate Aircraft Costs, Federal Acquisition Regulation; Transportation 58103–58104 Requirements, 58102–58103 Federal Acquisition Regulation; Transportation Requirements, 58102–58103 National Archives and Records Administration NOTICES Health and Human Services Department Nixon Presidential Historical Materials; Opening of See Centers for Disease Control and Prevention Materials, 58179 See Food and Drug Administration Records Schedules; Availability and Request for Comments, See National Institutes of Health 58179–58181

Homeland Security Department National Credit Union Administration See U.S. Customs and Border Protection RULES Interest Rate Risk Policy and Program, 57990 Industry and Security Bureau RULES National Institutes of Health Additions and Removals of Certain Persons to Entity List NOTICES and Implementation of Entity List Annual Review Meetings: Changes, 58006–58020 Center for Scientific Review, 58144–58146

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National Institute of Biomedical Imaging and Presidential Documents Bioengineering, 58146–58147 PROCLAMATIONS Office of the Director, 58145–58146 Special Observances: National Employer Support of the Guard and Reserve National Oceanic and Atmospheric Administration Week (Proc. 8864), 58295–58296 RULES National Farm Safety and Health Week (Proc. 8865), Fisheries of the Northeastern United States: 58297–58298 Bluefish Fishery; Commercial Quota Harvested for National Hispanic Heritage Month (Proc. 8863), 58291– Commonwealth of Massachusetts, 58051 58294 PROPOSED RULES National Hispanic-Serving Institutions Week (Proc. 8866), Fisheries of the United States: 58299–58300 National Standard 1 Guidelines; Reopening of Public Comment Period, 58086–58087 NOTICES Railroad Retirement Board Aquatic Nuisance Species Task Force Strategic Plan 2013– NOTICES 2017, 58097 Agency Information Collection Activities; Proposals, Takes of Marine Mammals Incidental to Specified Submissions, and Approvals, 58186–58188 Activities: Marine Geophysical Survey off Central Coast of Rural Utilities Service California, November to December, 2012, 58256– NOTICES 58289 Environmental Impact Statements; Availability, etc.: Georgia Transmission Corp.; Public Scoping Meetings, Navy Department 58096–58097 NOTICES Privacy Act; Systems of Records, 58109–58110 Securities and Exchange Commission Nuclear Regulatory Commission NOTICES NOTICES Self-Regulatory Organizations; Proposed Rule Changes: License Renewals: BATS Exchange, Inc., 58195–58196, 58198–58199 Power Resources, Inc., Smith Ranch Highland Uranium BATS Y-Exchange, Inc., 58196–58198 Project, 58181–58185 C2 Options Exchange, Inc., 58188–58189 Meetings; Sunshine Act, 58185 NASDAQ Stock Market LLC, 58190–58194, 58199–58200 Occupational Safety and Health Administration National Securities Clearing Corp., 58201–58202 NOTICES Options Clearing Corp., 58194–58195 Meetings: Suspensions of Trading Orders: Federal Advisory Council on Occupational Safety and AER Energy Resources, Inc.; Alto Group Holdings, Inc.; Health, 58174–58175 Bizrocket.com Inc., et al., 58203 Freedom Environmental Services, Inc., 58203 Office of United States Trade Representative See Trade Representative, Office of United States State Department NOTICES Patent and Trademark Office Designations as Foreign Terrorist Organizations: NOTICES Haqqani Network, Also Known As HQN, 58203–58204 Adjustment of Fees for Trademark Applications: Meetings: Extension of Comment Period, 58097 Advisory Panel to U.S. Section of North Pacific Amending First Filing Deadline for Affidavits or Anadromous Fish Commission, 58204 Declarations of Use or Excusable Nonuse: International Joint Commission, Upper Great Lakes Extension of Comment Period, 58097–58098 Report; Teleconference, 58204 Specially Designated Global Terrorists: Pipeline and Hazardous Materials Safety Administration Haqqani Network, also known as HQN, 58205 NOTICES Actions on Special Permit Applications, 58213–58215 Applications for Special Permits, 58215–58216 Surface Mining Reclamation and Enforcement Office List of Applications for Modifications of Special Permits, RULES 58216–58217 Montana Regulatory Program, 58022–58025 List of Special Permit Applications Delayed More than 180 Texas Regulatory Program, 58025–58027 Days, 58217–58218 PROPOSED RULES Kentucky Regulatory Program, 58053–58056 Postal Regulatory Commission Mississippi Regulatory Program, 58056–58058 NOTICES NOTICES Action Subject to Intergovernmental Review, 58147 New Postal Products, 58185–58186

Postal Service Surface Transportation Board NOTICES NOTICES Product Changes: Abandonment Exemptions: Priority Mail Negotiated Service Agreement, 58186 BNSF Railway Co., McKinley County, NM, 58218

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Trade Representative, Office of United States Separate Parts In This Issue NOTICES Annual Reviews of Country Eligibility for Benefits under Part II African Growth and Opportunity Act: Environmental Protection Agency, 58220–58253 Requests for Public Comments, 58205–58206

Transportation Department Part III See Federal Aviation Administration Commerce Department, National Oceanic and Atmospheric See Federal Railroad Administration Administration, 58256–58289 See Maritime Administration See Pipeline and Hazardous Materials Safety Part IV Administration Presidential Documents, 58291–58300 See Surface Transportation Board

Treasury Department RULES Reader Aids Extension of Import Restrictions Imposed on Archaeological Consult the Reader Aids section at the end of this page for Material from Mali, 58020–58021 phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. U.S. Customs and Border Protection To subscribe to the Federal Register Table of Contents RULES LISTSERV electronic mailing list, go to http:// Extension of Import Restrictions Imposed on Archaeological listserv.access.gpo.gov and select Online mailing list Material from Mali, 58020–58021 archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.

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CFR PARTS AFFECTED IN THIS ISSUE

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

3 CFR Proclamations 8863...... 58293 8864...... 58295 8865...... 58297 8866...... 58299 7 CFR 205...... 57985 12 CFR 741...... 57990 14 CFR 39 (7 documents) ...... 57990, 57994, 57995, 57996, 57998, 58002, 58003 Proposed Rules: 39...... 58052 15 CFR 744...... 58006 19 CFR 12...... 58020 21 CFR 520...... 58021 558...... 58021 30 CFR 926...... 58022 943...... 58025 Proposed Rules: 917...... 58053 924...... 58056 40 CFR 52 (2 documents) ...... 58027, 58032 63...... 58220 82...... 58035 180...... 58045 Proposed Rules: 52 (6 documents) ...... 58058, 58063, 58067, 58072, 58076, 58078 82...... 58081 50 CFR 32 (3 documents) ...... 58050, 58051 648...... 58051 Proposed Rules: 17...... 58084 600...... 58086

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Rules and Regulations Federal Register Vol. 77, No. 182

Wednesday, September 19, 2012

This section of the FEDERAL REGISTER I. Background designated section of the National List contains regulatory documents having general regulations: applicability and legal effect, most of which On December 21, 2000, the Secretary are keyed to and codified in the Code of established within the NOP (7 CFR part Section 205.603 Synthetic Substances Federal Regulations, which is published under 205) the National List regulations Allowed for Use in Organic Livestock 50 titles pursuant to 44 U.S.C. 1510. sections 205.600 through 205.607. The Production National List identifies the synthetic This final rule amends the listing for The Code of Federal Regulations is sold by substances that may be used and the the Superintendent of Documents. Prices of synthetic methionine at section new books are listed in the first FEDERAL nonsynthetic (natural) substances that 205.603(d)(1) of the National List REGISTER issue of each week. may not be used in organic production. regulations by removing the expiration The National List also identifies date ‘‘October 1, 2012’’, revising the nonagricultural synthetic, nonsynthetic maximum levels of synthetic DEPARTMENT OF AGRICULTURE nonagricultural and nonorganic methionine allowed per ton of feed for agricultural substances that may be used organic poultry, and correcting the Agricultural Marketing Service in organic handling. The Organic Foods Chemical Abstracts Service (CAS) Production Act of 1990 (OFPA), as numbers in the annotation as follows: 7 CFR Part 205 amended, (7 U.S.C. 6501–6522), and (d)(1) DL-Methionine, DL-Methionine- NOP regulations, in section 205.105, hydroxy analog, and DL-Methionine- [Document Number AMS–NOP–11–0063; specifically prohibit the use of any hydroxy analog calcium (CAS #’s 59– NOP–11–11FR] synthetic substance in organic 51–8, 583–91–5, 4857–44–7, and 922– production and handling unless the 50–9)—for use only in organic poultry RIN 0581–AD018 synthetic substance is on the National production at the following maximum List. Section 205.105 also requires that levels of synthetic methionine per ton of National Organic Program (NOP); any nonorganic agricultural and any feed: laying and broiler chickens—2 Amendment to the National List of nonsynthetic nonagricultural substance pounds; turkeys and all other poultry— Allowed and Prohibited Substances used in organic handling must also 3 pounds. (Livestock) appear on the National List. Methionine is classified as an Under the authority of the OFPA, the essential amino acid for poultry because AGENCY: Agricultural Marketing Service, National List can be amended by the USDA. it is needed to maintain viability and Secretary based on recommendations must be acquired through the diet. ACTION: Final rule. developed by the National Organic Methionine is required for proper cell Standards Board (NOSB). Since development and feathering in poultry. SUMMARY: This final rule amends the established, the NOP has published U.S. Department of Agriculture’s Natural feed sources with a high multiple amendments to the National percentage of methionine include blood (USDA) National List of Allowed and List: October 31, 2003 (68 FR 61987); Prohibited Substances (National List) to meal, fish meal, crab meal, corn gluten November 3, 2003 (68 FR 62215); meal, alfalfa meal, and sunflower seed enact one recommendation submitted to October 21, 2005 (70 FR 61217); June 7, the Secretary of Agriculture (Secretary) meal. Synthetic methionine is also used 2006 (71 FR 32803); September 11, 2006 in poultry feed. This substance is a by the National Organic Standards (71 FR 53299); June 27, 2007 (72 FR Board (NOSB) on April 29, 2010. This colorless or white crystalline powder 35137); October 16, 2007 (72 FR 58469); that is soluble in water. It is regulated final rule revises the annotation for one December 10, 2007 (72 FR 69569); substance on the National List, as an animal feed nutritional December 12, 2007 (72 FR 70479); supplement by the Food and Drug methionine, to reduce the maximum September 18, 2008 (73 FR 54057); levels of synthetic methionine allowed Administration (21 CFR 582.5475). October 9, 2008 (73 FR 59479); July 6, In 2001, the NOSB evaluated a in organic poultry production after 2010 (75 FR 38693); August 24, 2010 (75 October 1, 2012. This final rule permits technical advisory panel analysis of FR 51919); December 13, 2010 (75 FR methionine against the criteria provided the use of synthetic methionine at the 77521); March 14, 2011 (76 FR 13504); following maximum levels per ton of in the OFPA, and determined that the August 3, 2011 (76 FR 46595); February use of synthetic methionine in organic feed after October 1, 2012: laying and 14, 2012 (77 FR 8089); May 15, 2012 (77 broiler chickens—2 pounds; turkeys and poultry feed is compatible with a system FR 28472); June 6, 2012 (77 FR 33290); of organic poultry production. Based on all other poultry—3 pounds. This action and August 2, 2012 (77 FR 45903). also corrects the Chemical Abstracts multiple NOSB recommendations, AMS Additionally, a proposed amendment to has amended section 205.603 of the Service (CAS) numbers for the allowable the National List was published on forms of synthetic methionine. National List to allow methionine as a January 12, 2012 (77 FR 1980). synthetic substance for use in organic DATES: Effective Date: This rule is This final rule amends the National poultry production four times (68 FR effective on October 2, 2012. List to enact a recommendation 61987, 70 FR 61217, 73 FR 54057, and FOR FURTHER INFORMATION CONTACT: submitted to the Secretary by the NOSB 75 FR 51919). AMS published a Melissa Bailey, Ph.D., Director, on April 29, 2010. complete account of the past NOSB Standards Division, National Organic II. Overview of Amendment recommendations and rulemaking Program, Telephone: (202) 720–3252; pertaining to methionine in the interim Fax: (202) 205–7808. The following provides an overview rule published in the Federal Register SUPPLEMENTARY INFORMATION: of the amendment made to the on August 24, 2010 (75 FR 51919)

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(finalized on March 14, 2011 (76 FR This final rule addresses the second listing for synthetic methionine on the 13501)). NOSB recommendation on synthetic National List. In effect, removal of the On July 31, 2009, the Methionine methionine from April 2010.1 This expiration date from the current Task Force (MTF), which is comprised recommendation was based upon their restrictive annotation provides for the of organic poultry producers, submitted evaluation of a petition submitted by the use of synthetic methionine until it is a new petition requesting to extend the Methionine Task Force, a group of reviewed again by the NOSB as part of allowance for synthetic methionine for organic poultry producers, a third party either the substance’s next sunset five years until October 2014. In technical review, and public comments review or through the petition process.5 addition, the MTF proposed that the received as part of their April 2010 total amount of synthetic methionine in public meeting.2 In their deliberations, The NOSB also recommended a the diet remain below the following the NOSB conveyed that the intent of reduction in the maximum levels of levels, calculated as the average pounds this recommendation was to balance synthetic methionine allowed in organic per ton of 100% synthetic methionine various interests including: (i) Providing poultry feed as part of their April 2010 over the life of the bird: laying for the basic maintenance requirements recommendation. In response to this chickens—4 pounds; broiler chickens— of organic poultry; (ii) satisfying recommendation, this final rule amends 5 pounds; and, turkey and all other consumer preference to reduce the use the listing for synthetic methionine by poultry—6 pounds. In consideration of of synthetic methionine in organic reducing the maximum levels of the the July 2009 petition and public poultry production; and (iii) motivating substance allowed per ton of feed for comments, the NOSB issued two the organic poultry industry to continue organic poultry from ‘‘laying chickens— recommendations on April 29, 2010. the pursuit of commercially sufficient 4 pounds; broiler chickens—5 pounds; These recommendations acknowledged sources of allowable natural sources of turkeys and all other poultry—6 a need for the continued allowance of methionine. A detailed discussion of the pounds’’ to ‘‘laying and broiler synthetic methionine, and conveyed the NOSB recommendation is available in chickens—2 pounds; turkeys and all intent to decrease the amount of the proposed rule which was published other poultry—3 pounds’’. synthetic methionine allowed in organic in the Federal Register on February 6, poultry production and encourage 2012 (77 FR 5717).3 Through this final rule, AMS is also development of natural alternatives. This NOSB recommendation from correcting the CAS numbers for the One recommendation proposed to allow April 2010 recommended that AMS forms of synthetic methionine specified synthetic methionine in organic poultry delete the expiration date from the on the National List. CAS numbers are production until October 1, 2012, at the substance’s current restrictive numeric identifiers which are used to following maximum levels per ton of annotation to provide for use of uniquely identify substances. As feed: laying chickens—4 pounds; broiler synthetic methionine in organic discussed in the proposed rule, two of chickens—5 pounds; and turkey and all production after its current expiration the three CAS numbers in the current other poultry—6 pounds. The first date, October 1, 2012.4 In response to listing for synthetic methionine are not recommendation was implemented the NOSB recommendation and public appropriately specified in the regulation through a final rule published on March comment, this final rule removes the (77 FR 5719). An overview of the 14, 2011 (76 FR 13501). October 1, 2012 expiration date from the changes is provided in Table 1.

TABLE 1—OVERVIEW OF CORRECTIONS TO CAS NUMBERS FOR ALLOWED FORMS OF SYNTHETIC METHIONINE

Is substance name Are CAS # and substance CAS # Substance name included in current Is CAS # included in name included in final regulations? current regulations? rule?

59–51–8 ...... DL-Methionine ...... yes ...... yes ...... yes. 348–67–4 ...... D-Methionine ...... no ...... yes ...... no. 63–68–3 ...... L-Methionine ...... no ...... yes ...... no. 583–91–5 ...... DL-Methionine-hydroxy yes ...... no ...... yes. analog. 4857–44–7 and 922–50–9 DL-Methionine-hydroxy yes ...... no ...... yes. analog calcium.

III. Related Documents of methionine in organic poultry interim rule with request for comments A notice was published in the Federal production on March 17, 2010 (75 FR in the Federal Register on August 24, Register announcing a meeting of the 12723). 2010 (75 FR 51919), and reaffirmed by NOSB and its planned deliberations to The current listing for methionine a final rule published on March 14, address a petition pertaining to the use was codified through publication of an 2011 (76 FR 13501).

1 NOSB recommendation on Methionine, April 3 There is an incorrect statement about the April NOSB recommendation (77 FR 12216). This 2010. Retrieved from the NOP Web site at: http:// 2010 NOSB recommendation in the proposed rule correction removed the October 2, 1012 date from www.ams.usda.gov/AMSv1.0/getfile?dDocName= (77 FR 5717). On page 5718, the proposed rule the amendatory language for synthetic methionine STELPRDC5085081&acct=nosb. states that ‘‘the second NOSB recommendation from which was proposed in the proposed rule. This date April 2010 * * * proposed reduced maximum 2 The technical report and the petition for was included in error. levels of synthetic methionine after October 1, 5 synthetic methionine, submitted by Dave Matinelli 2015’’. The date in this statement is incorrect. This A petition to change the annotation for on behalf of the Methionine Task Force on July statement should have read ‘‘the second NOSB methionine was submitted by the Methionine Task 2009, is retrievable from the NOP Web site in the recommendation from April 2010 * * * proposed Force on April 8, 2011. The petition is retrievable Petitioned Substances Database under reduced maximum levels of synthetic methionine from the NOP Web site in the Petitioned Substances ‘‘Methionine’’ at: http://www.ams.usda.gov/ after October 1, 2012’’ (emphasis added). Database under ‘‘Methionine’’ at: http://www.ams. AMSv1.0/getfile?dDocName= 4 On February 29, 2012, AMS published a usda.gov/NOPPetitionedSubstancesDatabase. The STELPRDC5084508&acct=nopgeninfo. correction to the proposed rule addressing this NOSB is currently reviewing the petition.

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The proposal to allow the use of purposes of the OFPA, (b) not be which would otherwise expire in methionine as specified in this final rule inconsistent with the OFPA, (c) not be October 2012. While the rule will was published as a proposed rule on discriminatory toward agricultural reduce the rates of synthetic methionine February 6, 2012 (77 FR 5717). commodities organically produced in allowed in organic poultry feed, this other States, and (d) not be effective action amends the regulations such that IV. Statutory and Regulatory Authority until approved by the Secretary. small entities will continue to have The OFPA authorizes the Secretary to Pursuant to section 6519(f) of the access to a substance for use in organic make amendments to the National List OFPA, this final rule would not alter the poultry production. AMS concludes that based on proposed amendments authority of the Secretary under the the economic impact of extending the developed by the NOSB. Sections Federal Meat Inspection Act (21 U.S.C. allowance for synthetic methionine in 6518(k)(2) and 6518(n) of the OFPA 601–624), the Poultry Products organic poultry production, if any, will authorize the NOSB to develop Inspection Act (21 U.S.C. 451–471), or be minimal to small agricultural service proposed amendments to the National the Egg Products Inspection Act (21 firms. Accordingly, AMS certifies that List for submission to the Secretary and U.S.C. 1031–1056), concerning meat, this rule will not have a significant establish a petition process by which poultry, and egg products, nor any of economic impact on a substantial persons may petition the NOSB for the the authorities of the Secretary of Health number of small entities. purpose of having substances evaluated and Human Services under the Federal Small agricultural service firms, for inclusion or deletion from the Food, Drug and Cosmetic Act (21 U.S.C. which include producers, handlers, and National List. The National List petition 301–399), nor the authority of the accredited certifying agents, have been process is implemented under section Administrator of the Environmental defined by the Small Business 205.607 of the NOP regulations. The Protection Agency under the Federal Administration (SBA) (13 CFR 121.201) current petition process (72 FR 2167, Insecticide, Fungicide and Rodenticide as those having annual receipts of less January 18, 2007) can be accessed Act (7 U.S.C. 136–136(y)). than $7,000,000, and small agricultural through the NOP Web site at http:// Section 6520 of the OFPA provides producers are defined as those having www.ams.usda.gov/nop. for the Secretary to establish an annual receipts of less than $750,000. expedited administrative appeals According to NOP’s Accreditation and A. Executive Order 12866 procedure under which persons may International Activities Division, the This action has been determined not appeal an action of the Secretary, the number of certified U.S. organic crop significant for purposes of Executive applicable governing State official, or a and livestock operations totaled over Order 12866, and therefore, has not certifying agent under this title that 17,000 in 2010. Based on USDA data been reviewed by the Office of adversely affects such person or is from the Economic Research Service Management and Budget (OMB). inconsistent with the organic (ERS) in 2008, these operations certification program established under contained more than 4.8 million B. Executive Order 12988 this title. The OFPA also provides that certified acres consisting of 2,665,382 Executive Order 12988 instructs each the U.S. District Court for the district in acres of cropland and 2,160,577 acres of executive agency to adhere to certain which a person is located has pasture and rangeland.6 The total requirements in the development of new jurisdiction to review the Secretary’s acreage under organic management and revised regulations in order to avoid final decision. represents a twelve percent increase unduly burdening the court system. from 2007. Organic poultry production C. Regulatory Flexibility Act This final rule is not intended to have has steadily contributed to the overall a retroactive effect. The Regulatory Flexibility Act (RFA) growth in the organic food market. ERS States and local jurisdictions are (5 U.S.C. 601–612) requires agencies to estimated that there were 5,538,011 preempted under the OFPA from consider the economic impact of each laying chickens and 9,015,984 broiler creating programs of accreditation for rule on small entities and evaluate chickens raised under organic private persons or State officials who alternatives that would accomplish the management in 2008.7 ERS estimated want to become certifying agents of objectives of the rule without unduly the number of certified organic turkeys organic farms or handling operations. A burdening small entities or erecting raised in the United States in 2008 at governing State official would have to barriers that would restrict their ability 398,531. Based on the USDA data apply to USDA to be accredited as a to compete in the market. The purpose reported by the National Agricultural certifying agent, as described in section is to fit regulatory actions to the scale of Statistical Service (NASS), the US 6514(b) of the OFPA. States are also businesses subject to the action. Section market value for organic eggs, and preempted under section 6503 through 605 of the RFA allows an agency to laying and broiler chickens was 6507 of the OFPA from creating certify a rule, in lieu of preparing an calculated at $352,831,850 in 2008.8 In certification programs to certify organic analysis, if the rulemaking is not addition to being sold as whole farms or handling operations unless the expected to have a significant economic products, organic eggs and poultry by- State programs have been submitted to, impact on a substantial number of small products are used in the production of and approved by, the Secretary as entities. organic processed products including meeting the requirements of the OFPA. Pursuant to the requirements set forth Pursuant to section 6507(b)(2) of the in the RFA, AMS performed an 6 U.S. Department of Agriculture, Economic OFPA, a State organic certification economic impact analysis on small Research Service. 2009. Data Sets: U.S. Certified program may contain additional entities in the final rule published in the Organic Farmland Acreage, Livestock Numbers and Farm Operations, 1992–2008. http://www.ers.usda. requirements for the production and Federal Register on December 21, 2000 gov/Data/Organic/. handling of organically produced (65 FR 80548). AMS has also considered 7 Ibid. agricultural products that are produced the economic impact of this action on 8 U.S. Department of Agriculture, National in the State and for the certification of small entities. The impact on entities Agricultural Statistics Service. 2010. The 2007 organic farm and handling operations affected by this final rule would not be Census of Agriculture, Organic Production Survey (2008): Volume 3, Special Studies, Part 2, AC–07– located within the State under certain significant. The effect of this final rule SS–2, Tables 10 & 11, pp 69–91. http://www. circumstances. Such additional is to continue the allowance of synthetic agcensus.usda.gov/Publications/2007/Online_ requirements must: (a) Further the methionine in poultry production, Highlights/Organics/ORGANICS.pdf.

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soups, broths, prepared meals, ice levels of synthetic methionine allowed Some commenters also raised cream, and egg nog. U.S. sales of organic per ton of feed could pose issues for concerns about the environmental food and beverages have grown from $1 some organic producers. These impacts of poultry diets with lower billion in 1990 to $26.7 billion in 2010. commenters described their concerns levels of synthetic methionine. These Sales in 2010 represented 7.7 percent with the proposed reduction, including commenters stated that studies show growth over 2009 sales.9 the lack of commercially available that inclusion of synthetic methionine In addition, USDA has 93 accredited natural sources of methionine, and in poultry diets reduced greenhouse gas certifying agents who provide considerations pertaining to animal production, reduced nitrogen waste and certification services to producers and health and welfare and the required less land be cultivated to handlers under the NOP. A complete environment. produce the same amount of poultry list of names and addresses of Commenters stated that natural products as those without methionine accredited certifying agents may be alternatives to compensate for the supplementation. Other commenters found on the AMS NOP Web site, at reduction in synthetic methionine are noted that producers may choose to http://www.ams.usda.gov/nop. AMS not commercially available at quantities meet the methionine needs of the birds believes that most of these accredited that would meet the nutritional by overfeeding protein. These certifying agents would be considered requirements of the birds. Commenters commenters stated that increased small entities under the criteria acknowledged that research was protein in the diet has been shown to established by the SBA. ongoing to identify high methionine lead to more nitrogen excretion and an feeds, but noted that these alternatives increase in ammonia levels in poultry D. Paperwork Reduction Act are not produced in sufficient quantities houses. No additional collection or to meet the demand of the organic To address these concerns, recordkeeping requirements are poultry market. Some commenters commenters recommended alternatives imposed on the public by this final rule. stated that, in the absence of natural to the proposed reduction in the levels Accordingly, OMB clearance is not alternatives, synthetic methionine of synthetic methionine. Some required by the Paperwork Reduction continues to be important for overall commenters suggested that the Act of 1995, 44 U.S.C. 3501, Chapter 35. production output, increased flock annotation on synthetic methionine should align with the methionine E. Executive Order 13175 uniformity and reduced feed costs. Some commenters noted that poultry recommendation from the National This final rule has been reviewed in diets are corn and soybean based and Research Council. Some commenters accordance with the requirements of suggested that producers may need to stated that the maximum levels of Executive Order 13175, Consultation meet the nutritional requirement for methionine per ton of feed should and Coordination with Indian Tribal methionine by overfeeding protein with remain at the levels currently codified Governments. The review reveals that extra soybean meal. A commenter (i.e. for laying chickens—4 pounds; for this regulation will not have substantial questioned if a sufficient quantity of broiler chickens—5 pounds; and turkey and direct effects on Tribal governments organic soybeans were available for this and all other poultry—6 pounds). Other and will not have significant Tribal strategy of overfeeding soybean meal to commenters suggested that, if the implications. compensate for reduced synthetic proposed reduction in synthetic methionine levels is finalized at 2 F. Comments Received on Proposed methionine levels. One commenter also suggested that feed costs could rise by pounds for laying and broiler chickens Rule NOP–11–11 and at 3 pounds for turkeys and all 20% if producers opt to overfeed other poultry, then the annotation AMS received 38 comments on the protein sources in response to the should specify that these levels be based proposed rule. Comments were received reduced levels. upon an average amount of synthetic from organic livestock producers, Some commenters cited scientific methionine per ton of feed fed over the consumers, accredited certifying agents, literature and National Research life of the birds. These commenters trade associations, non-profit Council (NRC) 10 recommendations on noted that this latter approach would be organizations, advocacy groups, and a the quantity of methionine needed in a consistent with the request of the 2011 methionine manufacturer. The majority poultry diet to optimize animal health. of comments supported a continued petition submitted by the Methionine The commenters stated that the Task Force. allowance for synthetic methionine in nutritional requirements for birds organic poultry production after its Consistent with the NOSB change over time with greater recommendation, AMS is maintaining current expiration date, October 1, 2012. methionine demand early in life and Nine comments specifically supported the proposed amendment to allow early in the laying period, and that the synthetic methionine in organic poultry the amendment as proposed. Seven of proposed reduction in synthetic these nine comments further stated their production after October 1, 2012, at methionine would not align with the reduced levels. The NOSB received support for the proposed action because nutritional demands of the birds during it will meet the intent of the NOSB to numerous public comments at their certain life stages. Commenters also April 2010 public meeting regarding the phase out the use of synthetic referenced the benefits to animal methionine in organic poultry use of synthetic methionine in organic welfare when the nutritional poultry production. During their production over time. Three requirement for methionine is met. commenters opposed the proposed rule deliberations, the NOSB also reviewed Commenters noted that diets with technical information on synthetic as they wanted no synthetic methionine inadequate amounts of methionine to be included in organic poultry diets. methionine in accordance with the could lead to increased feather pecking criteria in OFPA (7 U.S.C. 6517–6518) Changes Requested But Not Made and cannibalism. and the NOP regulations for synthetic Many commenters stated that the substances on the National List 10 The NRC is a branch of the National Academy (§ 205.600). As part of their decision proposed reduction in the maximum of Sciences. The NRC determines the nutritional requirements for livestock species in various phases making, the NOSB is mandated by 9 Organic Trade Association. 2011. Organic of production based upon a compilation of OFPA to evaluate whether alternative Industry Survey. www.ota.com. scientific studies. practices make the use of a substance

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such as synthetic methionine methionine in organic poultry methionine on the National List. Forms unnecessary. The NOSB recommended production (75 FR 12723). In response of synthetic methionine which are not an allowance for lower levels of to this notice, the NOSB accepted both indicated by their CAS number on the synthetic methionine based on their written and oral public comment on this National List at section 205.603 would perspective that implementing issue in advance of making their need to be petitioned for review by the management strategies and different recommendation. All comments were NOSB. housing practices should lessen or considered alongside the technical eliminate the need for synthetic information as part of the NOSB’s G. General Notice of Public Rulemaking methionine in organic production. The recommendation on synthetic This final rule reflects a NOSB also believed that a reduction in methionine to the Secretary. recommendation submitted to the the levels allowed after October 1, 2012, Two commenters suggested that, if Secretary by the NOSB for extending the will stimulate further market organic poultry were produced using use of synthetic methionine in organic development of natural alternatives and synthetic substances, then the organic poultry production. The NOSB drive management changes in the poultry products from these poultry evaluated this substance using criteria organic poultry industry. Amending the should be labeled as produced through in the OFPA in response to a petition. listing for this substance on the National use of a synthetic. The NOP regulations The NOSB has determined that while List to allow higher levels of the authorize the use of synthetic wholly natural substitute products exist, substance than recommended by the substances that have been they are not presently available in NOSB would not meet the intent of the recommended by the NOSB and sufficient supplies to meet poultry included on the National List by the NOSB to phase out the use of this producer needs. Therefore, some Secretary. Requiring labeling for the use synthetic methionine in organic poultry allowance for synthetic methionine is a of synthetic inputs as suggested by the production over time. Therefore, necessary component of a nutritionally commenters is outside the scope of this consistent with the NOSB adequate diet for organic poultry. rulemaking. recommendation, AMS is codifying the Pursuant to 5 U.S.C. 553, it is found and amendment to synthetic methionine Several commenters provided comments in reference to the petition determined upon good cause that it is through this final rule as proposed. impracticable and contrary to the public One commenter suggested that submitted in 2011 by the Methionine interest to give preliminary notice prior poultry diets without synthetic Task Force.11 A few comments to putting this rule into effect in order methionine may not be in compliance regarding the 2011 petition addressed to ensure the continued use of synthetic with the Association of American Feed the potential for increased audit times Control Officials’ Model Feed Bill and based on upon the petitioner’s request methionine after October 1, 2012, and Regulations which have been adopted in and the need for NOSB to consider use avoid any disruption to the organic 18 states. This rule allows for synthetic of a natural omnivorous diet as an poultry market. methionine in organic poultry feed in alternative to the petitioner’s request. List of Subjects in 7 CFR Part 205 accordance with its restrictive Other comments supported the 2011 annotation on the National List. This petition and urged the NOSB to review Administrative practice and action is not requiring the formulation it as soon as possible. These comments procedure, Agriculture, Animals, of organic poultry feed without are outside the scope of this rulemaking. Archives and records, Imports, Labeling, synthetic methionine. The NOSB is currently reviewing this Organically produced products, Plants, Some commenters questioned the petition and would accept comments on Reporting and recordkeeping process through which the NOSB made any NOSB proposal to address this requirements, Seals and insignia, Soil its April 2010 recommendation to the petition as part of a future NOSB conservation. NOP. Commenters reiterated that meeting. For the reasons set forth in the AMS specifically requested comments methionine requirements for poultry preamble, 7 CFR part 205, subpart G is on proposed corrections to the CAS and the commercial availability of amended as follows: natural sources of methionine have not numbers for the allowed forms of changed since the NOSB began its methionine. One comment was received PART 205—NATIONAL ORGANIC deliberations on the allowance for from a trade association on this issue. PROGRAM synthetic methionine in organic The commenter stated that correcting the CAS numbers (348–67–4 for D- production. Therefore, commenters ■ 1. The authority citation for 7 CFR Methionine and 63–68–3 for L- questioned, with the same information, part 205 continues to read as follows: the NOSB decision to further restrict the Methionine) would not impact any use of synthetic methionine in their poultry feeds currently on the market, Authority: 7 U.S.C. 6501–6522. April 2010 recommendation. One but noted that the correction would ■ commenter also stated that the NOSB prevent the addition of D-methionine or 2. Section 205.603(d)(1) is revised to should have accepted additional public L-methionine in future feed read as follows: comment at the April 2010 meeting on formulations. AMS is retaining the § 205.603 Synthetic substances allowed the reduced levels of the substance in corrections as proposed to ensure that for use in organic livestock production. their recommendation prior to voting. the appropriate CAS numbers are * * * * * One commenter disputed the reflected in the annotation for synthetic information provided to the NOSB (d) * * * Livestock Committee by anonymous 11 The 2011 petition is available on line at (1) DL-Methionine, DL-Methionine- feed mills and scientific experts about http://www.ams.usda.gov/AMSv1.0/ hydroxy analog, and DL-Methionine- getfile?dDocName=STELPRDC5090283& the feed requirements for poultry. acct=nopgeninfo. This petition requests an hydroxy analog calcium (CAS #’s 59– On March 17, 2010, a notice was allowance for synthetic methionine as follows: The 51–8, 583–91–5, 4857–44–7, and 922– published in the Federal Register allowed maximum average pounds per ton of 100% 50–9)—for use only in organic poultry announcing a meeting of the NOSB and synthetic methionine (MET) in the diet over the life production at the following maximum of the bird be at the following levels: Laying its planned deliberations to address a chickens—2.5 lbs; Broiler chickens—3 lbs; Turkeys levels of synthetic methionine per ton of petition pertaining to the use of and all other poultry—3 lbs. feed: Laying and broiler chickens—2

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pounds; turkeys and all other poultry— series airplanes. That AD currently New Jersey Avenue SE., Washington, 3 pounds. requires repetitive inspections to detect DC 20590. * * * * * cracking in the web of the aft pressure FOR FURTHER INFORMATION CONTACT: bulkhead at body station 1016 at the aft Dated: September 13, 2012. Alan Pohl, Aerospace Engineer, fastener row attachment to the ‘‘Y’’ Airframe Branch, ANM–120S, FAA, David R. Shipman, chord, and corrective actions if Administrator, Agricultural Marketing Seattle Aircraft Certification Office, necessary. This new AD adds various 1601 Lind Avenue SW., Renton, Service. inspections for discrepancies at the aft [FR Doc. 2012–23083 Filed 9–18–12; 8:45 am] Washington 98057–3356; phone: (425) pressure bulkhead, and related 917–6450; fax: (425) 917–6590; email: BILLING CODE 3410–02–P investigative and corrective actions if [email protected]. necessary. This AD was prompted by several reports of fatigue cracking at that SUPPLEMENTARY INFORMATION: NATIONAL CREDIT UNION location. We are issuing this AD to Discussion ADMINISTRATION detect and correct such fatigue cracking, which could result in rapid We issued a notice of proposed 12 CFR Part 741 decompression of the fuselage. rulemaking (NPRM) to amend 14 CFR RIN 3133–AD66 DATES: This AD is effective October 24, part 39 to supersede AD 99–08–23, 2012. Amendment 39–11132 (64 FR 19879, Interest Rate Risk Policy and Program The Director of the Federal Register April 23, 1999). That AD applies to the specified products. The NPRM Correction approved the incorporation by reference of a certain publication listed in the AD published in the Federal Register on In rule document 2012–02091, as of October 24, 2012. June 28, 2012 (77 FR 38547). That appearing on pages 55155–5167 in the The Director of the Federal Register NPRM proposed to continue to require issue of Thursday, February 2, 2012, approved the incorporation by reference repetitive inspections to detect cracking make the following corrections: of certain other publications listed in in the web of the aft pressure bulkhead 1. On page 5157, in the second this AD as of May 10, 1999 (64 FR at body station 1016 at the aft fastener column, in the first line, the text entry 19879, April 23, 1999). row attachment to the ‘‘Y’’ chord, and corrective actions if necessary. That ‘‘by asset size cohort at year-end 2010, ADDRESSES: For service information as depicted in Table 1:’’ is deleted. identified in this AD, contact Boeing NPRM also proposed to require adding 2. On page 5164, in the second Commercial Airplanes, Attention: Data various inspections for discrepancies at column, under the heading ‘‘Account & Services Management, P.O. Box 3707, the aft pressure bulkhead, and related Attributes’’ on the second line, MC 2H–65, Seattle, Washington 98124– investigative and corrective actions if ‘‘P\principal’’ should read ‘‘Principal’’. 2207; telephone 206–544–5000, necessary. [FR Doc. C1–2012–2091 Filed 9–18–12; 8:45 am] extension 1; fax 206–766–5680; Internet Comments BILLING CODE 1505–01–D https://www.myboeingfleet.com. You may review copies of the referenced We gave the public the opportunity to service information at the FAA, participate in developing this AD. We DEPARTMENT OF TRANSPORTATION Transport Airplane Directorate, 1601 have considered the comments received. Lind Avenue SW., Renton, Washington. Boeing supports the NPRM (77 FR Federal Aviation Administration For information on the availability of 38547, June 28, 2012). Aviation Partners this material at the FAA, call 425–227– Boeing stated that it has reviewed the 14 CFR Part 39 1221. NPRM and has determined that the installation of winglets per [Docket No. FAA–2012–0645; Directorate Examining the AD Docket supplemental type certificate Identifier 2011–NM–052–AD; Amendment ST01219SE does not affect the NPRM. 39–17190; AD 2012–18–13] You may examine the AD docket on the Internet at http://www.regulations. Conclusion RIN 2120–AA64 gov; or in person at the Docket Management Facility between 9 a.m. We reviewed the relevant data, Airworthiness Directives; The Boeing and 5 p.m., Monday through Friday, considered the comments received, and Company Airplanes except Federal holidays. The AD docket determined that air safety and the AGENCY: Federal Aviation contains this AD, the regulatory public interest require adopting the AD Administration (FAA), DOT. evaluation, any comments received, and as proposed. ACTION: Final rule. other information. The address for the Costs of Compliance Docket Office (phone: 800–647–5527) is SUMMARY: We are superseding an Document Management Facility, U.S. We estimate that this AD affects 566 existing airworthiness directive (AD) for Department of Transportation, Docket airplanes of U.S. registry. all The Boeing Company Model 737– Operations, M–30, West Building We estimate the following costs to 100, –200, –200C, –300, –400, and –500 Ground Floor, Room W12–140, 1200 comply with this AD:

ESTIMATED COSTS

Cost on U.S. Action Labor cost Parts cost Cost per product operators

Low frequency eddy current (LFEC) in- 8 work-hours × $85 per hour = $680 ..... $0 $680 ...... $384,880. spection [retained actions from AD 99-08–23, Amendment 39–11132 (64 FR 19879, April 23, 1999)].

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ESTIMATED COSTS—Continued

Cost on U.S. Action Labor cost Parts cost Cost per product operators

Detailed visual inspection [retained ac- 2 work-hours × $85 per hour = $170 ..... 0 170 ...... 96,220. tions from AD 99-08-23, Amendment 39–11132 (64 FR 19879, April 23, 1999)]. Detailed, high frequency eddy current Up to 60 work-hours × $85 per hour = 0 5,100 per inspec- 2,886,600 per in- inspection, and LFEC inspections of $5,100 per inspection cycle. tion cycle. spection cycle. the web at the ‘‘Y’’ chord of the bulk- head, the web located under the outer circumferential tear strap, the ‘‘Z’’ stiffeners at the dome cap, and existing repairs [new action].

We estimate the following costs to do results of the initial inspection. We have aircraft that might need these any necessary on-condition inspections no way of determining the number of inspections: that would be required based on the

ON-CONDITION COSTS

Cost per Action Labor cost Parts cost product

Detailed and HFEC inspections for oil-canning ...... 1 work-hour × $85 per hour = $85 ...... $0 $85 LFEC or HFEC inspections for cracking ...... 2 work-hours × $85 per hour = $170 ...... 0 170

We have received no definitive data responsibilities among the various FR 19879, April 23, 1999), and adding that would enable us to provide cost levels of government. the following new AD: estimates for the crack repairs specified For the reasons discussed above, I 2012–18–13 The Boeing Company: in this AD. certify that this AD: Amendment 39–17190; Docket No. (1) Is not a ‘‘significant regulatory FAA–2012–0645; Directorate Identifier Authority for This Rulemaking action’’ under Executive Order 12866, 2011–NM–052–AD. Title 49 of the United States Code (2) Is not a ‘‘significant rule’’ under (a) Effective Date specifies the FAA’s authority to issue DOT Regulatory Policies and Procedures This airworthiness directive (AD) is rules on aviation safety. Subtitle I, (44 FR 11034, February 26, 1979), effective October 24, 2012. (3) Will not affect intrastate aviation Section 106, describes the authority of (b) Affected ADs the FAA Administrator. Subtitle VII, in Alaska, and Aviation Programs, describes in more (4) Will not have a significant This AD supersedes AD 99–08–23, economic impact, positive or negative, Amendment 39–11132 (64 FR 19879, April detail the scope of the Agency’s 23, 1999). authority. on a substantial number of small entities under the criteria of the Regulatory (c) Applicability We are issuing this rulemaking under Flexibility Act. the authority described in Subtitle VII, This AD applies to all The Boeing Company Model 737–100, –200, –200C, Part A, Subpart III, Section 44701, List of Subjects in 14 CFR Part 39 –300, –400, and –500 series airplanes; ‘‘General requirements.’’ Under that Air transportation, Aircraft, Aviation certificated in any category. section, Congress charges the FAA with safety, Incorporation by reference, (d) Subject promoting safe flight of civil aircraft in Safety. air commerce by prescribing regulations Joint Aircraft System Component (JASC)/ for practices, methods, and procedures Adoption of the Amendment Air Transport Association (ATA) of America Code 53, Fuselage. the Administrator finds necessary for Accordingly, under the authority safety in air commerce. This regulation delegated to me by the Administrator, (e) Unsafe Condition is within the scope of that authority the FAA amends 14 CFR part 39 as This AD was prompted by several reports because it addresses an unsafe condition follows: of fatigue cracks in the aft pressure bulkhead. that is likely to exist or develop on We are issuing this AD to detect and correct products identified in this rulemaking PART 39—AIRWORTHINESS such fatigue cracking, which could result in action. DIRECTIVES rapid decompression of the fuselage. (f) Compliance Regulatory Findings ■ 1. The authority citation for part 39 Comply with this AD within the We have determined that this AD will continues to read as follows: compliance times specified, unless already not have federalism implications under Authority: 49 U.S.C. 106(g), 40113, 44701. done. Executive Order 13132. This AD will (g) Retained Initial Inspection § 39.13 [Amended] not have a substantial direct effect on This paragraph restates the initial the States, on the relationship between ■ 2. The FAA amends § 39.13 by inspection required by paragraph (a) of AD the national government and the States, removing airworthiness directive (AD) 99–08–23, Amendment 39–11132 (64 FR or on the distribution of power and 99–08–23, Amendment 39–11132 (64 19879, April 23, 1999). Perform either

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inspection specified by paragraph (g)(1) or (1) Perform a high frequency eddy current method approved in accordance with the (g)(2) of this AD at the time specified in inspection from the forward side of the procedures specified in paragraph (u) of this paragraph (h) of this AD. bulkhead to detect cracking of the web at the AD. Repeat the inspections at the applicable (1) Perform a low frequency eddy current ‘‘Y’’ chord attachment, around the entire times specified in table 2 of paragraph 1.E., (LFEC) inspection from the aft side of the aft periphery of the ‘‘Y’’ chord, in accordance ‘‘Compliance,’’ of Boeing Alert Service pressure bulkhead to detect discrepancies with Boeing 737 Nondestructive Test Manual Bulletin 737–53A1214, Revision 4, dated (including cracking, misdrilled fastener D6–37239, Part 6, Section 51–00–00, Figure December 16, 2011. holes, and corrosion) of the web of the upper 23, dated November 5, 1995. section of the aft pressure bulkhead at body (2) If the most recent inspection performed (m) New Requirements: One-Time Inspection station 1016 at the aft fastener row in accordance with paragraph (g) of this AD Under the Tear Strap attachment to the ‘‘Y’’ chord, from stringer 15 was not a detailed visual inspection: Except as required by paragraphs (r)(2) and left (S–15L) to stringer 15 right (S–15R), in Accomplish the actions specified by (r)(5) of this AD, at the applicable time accordance with Boeing 737 Nondestructive paragraph (g)(2) of this AD. If the inspection specified in table 3 of paragraph 1.E., Test Manual D6–37239, Part 6, Section 53– was a detailed visual inspection, it is not ‘‘Compliance,’’ of Boeing Alert Service 10–54, dated December 5, 1998. necessary to repeat that inspection prior to Bulletin 737–53A1214, Revision 4, dated (2) Perform a detailed visual inspection of further flight. December 16, 2011: Do a one-time LFEC the aft fastener row attachment to the ‘‘Y’’ (3) Repair any discrepancy such as inspection for cracks on the aft side of the chord from the forward side of the aft cracking or corrosion or misdrilled fastener bulkhead of the web located under the outer pressure bulkhead to detect discrepancies holes using a method approved in circumferential tear strap, or do a one-time (including cracking, misdrilled fastener accordance with the procedures specified in HFEC inspection for cracks from the forward holes, and corrosion) of the entire web of the paragraph (u) of this AD. side of the bulkhead of the web located under aft pressure bulkhead at body station 1016. (k) New Requirements: Inspections of the the outer circumferential tear strap, in (h) Retained Compliance Times Web at the ‘‘Y’’ Chord Upper Bulkhead From accordance with Part II of the S–15L to S–15R Accomplishment Instructions of Boeing Alert This paragraph restates the compliance Service Bulletin 737–53A1214, Revision 4, At the later of the times specified in times specified in paragraph (b) of AD 99– dated December 16, 2011, except as required paragraphs (k)(1) and (k)(2) of this AD: Do 08–23, Amendment 39–11132 (64 FR 19879, by paragraph (r)(1) of this AD. If any cracking detailed and LFEC inspections of the aft side April 23, 1999). Perform the inspection is found, before further flight, repair the of the bulkhead web, or do detailed and required by paragraph (g) of this AD at the bulkhead using a method approved in HFEC inspections from the forward side of time specified in paragraph (h)(1), (h)(2), or accordance with the procedures specified in the bulkhead, and do all applicable related (h)(3) of this AD, as applicable. paragraph (u) of this AD. (1) For airplanes that have accumulated investigative and corrective actions; in 40,000 or more total flight cycles as of May accordance with Part 1 of the (n) New Requirements: Inspection for Oil- 10, 1999 (the effective date of AD 99–08–23, Accomplishment Instructions of Boeing Alert Canning Amendment 39–11132 (64 FR 19879, April Service Bulletin 737–53A1214, Revision 4, Except as required by paragraph (r)(2) of dated December 16, 2011, except as required 23, 1999)): Inspect within 375 flight cycles or this AD, at the applicable time specified in by paragraphs (r)(1) and (r)(3) of this AD. 60 days after May 10, 1999 (the effective date table 4 of paragraph 1.E., ‘‘Compliance,’’ of Inspect for cracks, incorrectly drilled fastener of AD 99–08–23), whichever occurs later. Boeing Alert Service Bulletin 737–53A1214, holes, and elongated fastener holes. Do all (2) For airplanes that have accumulated Revision 4, dated December 16, 2011: Do a applicable related investigative and 25,000 or more total flight cycles and fewer detailed inspection from the aft side of the corrective actions before further flight. than 40,000 total flight cycles as of May 10, bulkhead for oil-canning and do all Repeat the inspections at the applicable 1999 (the effective date of AD 99–08–23, applicable related investigative and times specified in table 1 of paragraph 1.E., Amendment 39–11132 (64 FR 19879, April corrective actions, in accordance with Part II ‘‘Compliance,’’ of Boeing Alert Service 23, 1999)): Inspect within 750 flight cycles or of the Accomplishment Instructions of Bulletin 737–53A1214, Revision 4, dated 90 days after May 10, 1999 (the effective date Boeing Alert Service Bulletin 737–53A1214, of AD 99–08–23), whichever occurs later. December 16, 2011. Revision 4, dated December 16, 2011, except (3) For airplanes that have accumulated (1) Prior to the accumulation of 25,000 as required by paragraph (r)(1) of this AD. Do fewer than 25,000 total flight cycles as of total flight cycles. all related investigative and corrective May 10, 1999 (the effective date of AD 99– (2) Except as required by paragraphs (r)(2) actions before further flight. Thereafter, 08–23, Amendment 39–11132 (64 FR 19879, and (r)(4) of this AD, at the later of the times repeat the inspection at the applicable times April 23, 1999)): Inspect prior to the specified in the ‘‘Compliance Time’’ column specified in table 4 of paragraph 1.E., accumulation of 25,750 total flight cycles. in table 1 of paragraph 1.E., ‘‘Compliance,’’ of Boeing Alert Service Bulletin 737– ‘‘Compliance,’’ of Boeing Alert Service (i) Retained Repetitive Inspections 53A1214, Revision 4, dated December 16, Bulletin 737–53A1214, Revision 4, dated This paragraph restates the repetitive 2011. December 16, 2011. For oil-cans found inspections required by paragraph (c) of AD within the limits specified in Part II of the 99–08–23, Amendment 39–11132 (64 FR (l) New Requirements: Inspections of the Accomplishment Instructions of Boeing Alert 19879, April 23, 1999). Within 1,200 flight Web at the ‘‘Y’’ Chord in the Lower Service Bulletin 737–53A1214, Revision 4, cycles after performing the initial inspection Bulkhead From S–15L to S–15R dated December 16, 2011: In lieu of installing required by paragraph (g) of this AD, and Except as required by paragraphs (r)(2) and the repair before further flight, at the thereafter at intervals not to exceed 1,200 (r)(5) of this AD, at the applicable time applicable times specified in table 4 of flight cycles: Perform either inspection specified in table 2 of paragraph 1.E., paragraph 1.E., ‘‘Compliance,’’ of Boeing specified by paragraph (g)(1) or (g)(2) of this ‘‘Compliance,’’ of Boeing Alert Service Alert Service Bulletin 737–53A1214, AD. Bulletin 737–53A1214, Revision 4, dated Revision 4, dated December 16, 2011, do December 16, 2011: Do detailed and eddy initial and repetitive detailed and HFEC (j) Retained Corrective Actions current inspections of the web from the inspections for cracks of the oil-canning and This paragraph restates the corrective forward or aft side of the bulkhead for cracks, install the repair, in accordance with the actions required by paragraph (d) of AD 99– incorrectly drilled fasteners, and elongated Accomplishment Instructions of Boeing Alert 08–23, Amendment 39–11132 (64 FR 19879, fasteners, in accordance with Part III of the Service Bulletin 737–53A1214, Revision 4, April 23, 1999). If any discrepancy is Accomplishment Instructions of Boeing Alert dated December 16, 2011. If any crack is detected during any inspection required by Service Bulletin 737–53A1214, Revision 4, found, before further flight, repair the paragraph (g), (h), or (i) of this AD: Prior to dated December 16, 2011, except as required cracking using a method approved in further flight, accomplish the actions by paragraphs (r)(1) and (r)(3) of this AD. If accordance with the procedures specified in specified by paragraphs (j)(1) and (j)(3) of this any crack, incorrectly drilled fastener, paragraph (u) of this AD. Installing the repair AD, and paragraph (j)(2) of this AD, if elongated fastener, or corrosion is found, terminates the repetitive inspections for applicable. before further flight, repair the web using a cracks.

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(o) New Requirements: Inspection of the Boeing Alert Service Bulletin 737–53A1214, AD requires compliance within the specified Dome Cap at the Center of the Bulkhead Revision 4, dated December 16, 2011. If any compliance time relative to actions specified Except as required by paragraphs (r)(2) and cracking is found, before further flight, repair in paragraph (g)(2) of this AD. (r)(5) of this AD, at the applicable time using a method approved in accordance with (5) Where the Condition columns in tables specified in table 5 of paragraph 1.E., the procedures specified in paragraph (u) of 2, 3, 5, and 6 of paragraph 1.E., ‘‘Compliance,’’ of Boeing Alert Service this AD. Repeat the inspections, thereafter, at ‘‘Compliance,’’ of Boeing Alert Service Bulletin 737–53A1214, Revision 4, dated the applicable intervals specified in table 8 Bulletin 737–53A1214, Revision 4, dated December 16, 2011: Do an eddy current of paragraph 1.E., ‘‘Compliance,’’ of Boeing December 16, 2011, refer to total flight cycles, inspection to detect any cracking of the dome Alert Service Bulletin 737–53A1214, this AD applies to the airplanes with the cap at the center of the bulkhead, and do all Revision 4, dated December 16, 2011. specified total flight cycles as of the effective applicable corrective actions, in accordance (2) If any repair identified in the date of this AD. ‘‘Condition’’ column of table 8 of paragraph with Part IV of the Accomplishment (s) Terminating Action Instructions of Boeing Alert Service Bulletin 1.E., ‘‘Compliance,’’ of Boeing Alert Service 737–53A1214, Revision 4, dated December Bulletin 737–53A1214, Revision 4, dated Accomplishment of the requirements of 16, 2011. Do all corrective actions before December 16, 2011, is found and the paragraphs (k) through (q) of this AD further flight. Repeat the inspection at the ‘‘Reference’’ column refers to Appendix E of terminates the requirements of paragraphs (g) times specified in table 5 of paragraph 1.E., that service bulletin: At the applicable times through (j) of this AD. ‘‘Compliance,’’ of Boeing Alert Service specified in table 8 of paragraph 1.E., (t) Credit for Previous Actions Bulletin 737–53A1214, Revision 4, dated ‘‘Compliance,’’ of Boeing Alert Service December 16, 2011. Bulletin 737–53A1214, Revision 4, dated This paragraph provides credit for the December 16, 2011, except as required by actions required by paragraphs (k) through (s) (p) New Requirements: Inspection of the paragraph (r)(2) of this AD, remove the repair of this AD, if the actions were performed Forward Flange of the ‘‘Z’’ Stiffeners at the and replace with a new repair, in accordance before the effective date of this AD using the Dome Cap with Appendix E of Boeing Alert Service service bulletins specified in paragraphs Except as required by paragraphs (r)(2) and Bulletin 737–53A1214, Revision 4, dated (t)(1) through (t)(4) of this AD. (r)(5) of this AD, at the applicable time December 16, 2011. (1) Boeing Alert Service Bulletin 737– specified in table 6 of paragraph 1.E., (3) If any non-SRM (structural repair 53A1214, dated June 17, 1999. ‘‘Compliance,’’ of Boeing Alert Service manual) repair is found and the repair does (2) Boeing Alert Service Bulletin 737– Bulletin 737–53A1214, Revision 4, dated not have FAA-approved damage tolerance 53A1214, Revision 1, dated June 22, 2000. December 16, 2011: Do an HFEC inspection inspections, except as required by paragraph (3) Boeing Alert Service Bulletin 737– to detect any cracking of the ‘‘Z’’ stiffener (r)(2) of this AD, at the applicable time 53A1214, Revision 2, dated May 24, 2001. flanges at the dome cap in the center of the specified in table 7 of Paragraph 1.E., (4) Boeing Alert Service Bulletin 737– bulkhead, in accordance with Part V of the ‘‘Compliance,’’ of Boeing Alert Service 53A1214, Revision 3, dated January 19, 2011. Accomplishment Instructions of Boeing Alert Bulletin 737–53A1214, Revision 4, dated Service Bulletin 737–53A1214, Revision 4, December 16, 2011: Contact the Boeing (u) Alternative Methods of Compliance dated December 16, 2011, except as required Commercial Airplanes Organization (AMOCs) by paragraph (r)(1) of this AD. If any crack Designation Authorization (ODA) that has (1) The Manager, Seattle ACO, FAA, has is found, before further flight, repair the been authorized by the Manager, Seattle the authority to approve AMOCs for this AD, flanges using a method approved in Aircraft Certification Office, for damage if requested using the procedures found in 14 accordance with the procedures specified in tolerance inspections. Do those damage CFR 39.19. In accordance with 14 CFR 39.19, paragraph (u) of this AD. Repeat the tolerance inspections at the times given using send your request to your principal inspector inspection at the applicable times specified a method approved in accordance with the or local Flight Standards District Office, as in table 6 of paragraph 1.E., ‘‘Compliance,’’ procedures specified in paragraph (u) of this appropriate. If sending information directly of Boeing Alert Service Bulletin 737– AD. to the manager of the ACO, send it to the 53A1214, Revision 4, dated December 16, attention of the person identified in the (r) Exceptions to the Service Information 2011. Related Information section of this AD. (1) Where Boeing Alert Service Bulletin Information may be emailed to: 9-ANM- (q) New Requirements: Inspection for 737–53A1214, Revision 4, dated December [email protected]. Existing Repairs on the Bulkhead 16, 2011, specifies to contact Boeing for (2) Before using any approved AMOC, Except as required by paragraph (r)(2) of repair instructions: Before further flight, notify your appropriate principal inspector, this AD, at the applicable time specified in repair using a method approved in or lacking a principal inspector, the manager table 7 of paragraph 1.E., ‘‘Compliance,’’ of accordance with the procedures specified in of the local flight standards district office/ Boeing Alert Service Bulletin 737–53A1214, paragraph (u) of this AD. certificate holding district office. Revision 4, dated December 16, 2011: Do a (2) Where Boeing Alert Service Bulletin (3) An AMOC that provides an acceptable detailed inspection of the bulkhead web and 737–53A1214, Revision 4, dated December level of safety may be used for any repair stiffeners for existing repairs, in accordance 16, 2011, specifies a compliance time ‘‘after required by this AD if it is approved by the with Part VI of the Accomplishment the date of Revision 1 to this service Boeing Commercial Airplanes ODA that has Instructions of Boeing Alert Service Bulletin bulletin,’’ ‘‘from the date of Revision 3 of this been authorized by the Manager, Seattle ACO 737–53A1214, Revision 4, dated December service bulletin,’’ ‘‘after the date of Revision to make those findings. For a repair method 16, 2011, except as required by paragraph 3 to this service bulletin,’’ or ‘‘of the effective to be approved, the repair must meet the (r)(1) of this AD. date of AD 99–08–23,’’ this AD requires certification basis of the airplane, and the (1) If any repair identified in the compliance within the specified compliance approval must specifically refer to this AD. ‘‘Condition’’ column of table 8 of paragraph time after the effective date of this AD. (4) AMOCs approved previously in 1.E., ‘‘Compliance,’’ of Boeing Alert Service (3) Access and restoration procedures accordance with AD 99–08–23, Amendment Bulletin 737–53A1214, Revision 4, dated specified in the Accomplishment 39–11132 (64 FR 19879, April 23, 1999), are December 16, 2011, is found and the Instructions of Boeing Alert Service Bulletin approved as AMOCs for the corresponding ‘‘Reference’’ column refers to Appendix A, B, 737–53A1214, Revision 4, dated December provisions of this AD. C, or D of that service bulletin: At the 16, 2011, are not required by this AD. applicable times specified in table 8 of Operators may do those procedures following (v) Related Information paragraph 1.E., ‘‘Compliance,’’ of Boeing their maintenance practices. For more information about this AD, Alert Service Bulletin 737–53A1214, (4) Where table 1 of paragraph 1.E., contact Alan Pohl, Aerospace Engineer, Revision 4, dated December 16, 2011, except ‘‘Compliance’’ of Boeing Alert Service Airframe Branch, ANM–120S, FAA, Seattle as required by paragraph (r)(2) of this AD, do Bulletin 737–53A1214, Revision 4, dated Aircraft Certification Office, 1601 Lind a HFEC inspection or a LFEC inspection of December 16, 2011, specifies a compliance Avenue SW., Renton, Washington 98057– the web for cracking, in accordance with time relative to actions done ‘‘in accordance 3356; phone: (425) 917–6440; fax: (425) 917– Appendix A, B, C, or D, as applicable, of with paragraph (a)(2) of AD 99–08–23,’’ this 6590; email: [email protected].

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(w) Material Incorporated by Reference DEPARTMENT OF TRANSPORTATION www.regulations.gov; or in person at the (1) The Director of the Federal Register Docket Management Facility between 9 approved the incorporation by reference Federal Aviation Administration a.m. and 5 p.m., Monday through (IBR) of the service information listed in this Friday, except Federal holidays. The AD paragraph under 5 U.S.C. 552(a) and 1 CFR 14 CFR Part 39 docket contains this AD, the regulatory part 51. [Docket No. FAA–2012–0644; Directorate evaluation, any comments received, and (2) You must use this service information Identifier 2012–NM–011–AD; Amendment other information. The address for the as applicable to do the actions required by 39–17193; AD 2012–18–16] Docket Office (phone: 800–647–5527) is this AD, unless the AD specifies otherwise. Document Management Facility, U.S. RIN 2120–AA64 (3) The following service information was Department of Transportation, Docket approved for IBR on October 24, 2012. Airworthiness Directives; The Cessna Operations, M–30, West Building (i) Boeing Alert Service Bulletin 737– Aircraft Company Airplanes Ground Floor, Room W12–140, 1200 53A1214, Revision 4, dated December 16, New Jersey Avenue SE., Washington, 2011. AGENCY: Federal Aviation DC 20590. (ii) Reserved. Administration (FAA), DOT. FOR FURTHER INFORMATION CONTACT: (4) The following service information was ACTION: Final rule. Christine Abraham, Aerospace Engineer, approved for IBR on May 10, 1999 (64 FR Electrical Systems and Avionics Branch, 19879, April 23, 1999). SUMMARY: We are adopting a new ACE–119W, FAA, Wichita Aircraft (i) Boeing 737 Nondestructive Test Manual airworthiness directive (AD) for certain Certification Office, 1801 Airport Road, D6–37239, Part 6, Section 53–10–54, dated The Cessna Aircraft Company Model Room 100, Mid-Continent Airport, December 5, 1998. 750 airplanes. This AD was prompted Wichita, Kansas 67209; telephone: 316– (ii) Boeing 737 Nondestructive Test by reports of direct current (DC) 946–4165; fax: 316–946–4107; email: Manual D6–37239, Part 6, Section 51–00–00, generator overvoltage events. This AD [email protected]. Figure 23, dated November 5, 1995. requires replacing the auxiliary power (5) For The Boeing Company service unit (APU) generator control unit (GCU). SUPPLEMENTARY INFORMATION: information identified in this AD, contact We are issuing this AD to prevent DC Discussion Boeing Commercial Airplanes, Attention: generator overvoltage events, which Data & Services Management, P.O. Box 3707, could result in smoke in the cockpit and We issued a notice of proposed MC 2H–65, Seattle, Washington 98124–2207; loss of avionics and electrical systems. rulemaking (NPRM) to amend 14 CFR telephone 206–544–5000, extension 1; fax part 39 to include an AD that would DATES: This AD is effective October 24, 206–766–5680; Internet https://www. apply to the specified products. That 2012. myboeingfleet.com. NPRM published in the Federal The Director of the Federal Register (6) You may review copies of the Register on June 25, 2012 (77 FR 37827). referenced service information at the FAA, approved the incorporation by reference That NPRM proposed to require Transport Airplane Directorate, 1601 Lind of a certain publication listed in the AD replacing the auxiliary power unit Avenue SW., Renton, Washington. For as of October 24, 2012. (APU) generator control unit (GCU). information on the availability of this ADDRESSES: For service information Comments material at the FAA, call 425–227–1221. identified in this AD, contact Cessna (7) You may view this service information Aircraft Co., P.O. Box 7706, Wichita, We gave the public the opportunity to that is incorporated by reference at the Kansas 67277; telephone 316–517–6215; participate in developing this AD. We National Archives and Records fax 316–517–5802; email received no comments on the NPRM (77 Administration (NARA). For information on [email protected]; FR 37827, June 25, 2012) or on the the availability of this material at NARA, call Internet https:// determination of the cost to the public. 202–741–6030, or go to: http://www.archives. www.cessnasupport.com/newlogin.html. gov/federal-register/cfr/ibr-locations.html. You may review copies of the Conclusion Issued in Renton, Washington, on August referenced service information at the We reviewed the relevant data and 31, 2012. FAA, Transport Airplane Directorate, determined that air safety and the 1601 Lind Avenue SW., Renton, WA. public interest require adopting the AD Ali Bahrami, For information on the availability of as proposed. Manager, Transport Airplane Directorate, this material at the FAA, call 425–227– Costs of Compliance Aircraft Certification Service. 1221. [FR Doc. 2012–22334 Filed 9–18–12; 8:45 am] We estimate that this AD affects 58 Examining the AD Docket BILLING CODE 4910–13–P airplanes of U.S. registry. You may examine the AD docket on We estimate the following costs to the Internet at http:// comply with this AD:

ESTIMATED COSTS

Cost per Cost on U.S. Action Labor cost Parts cost product operators

Replacement ...... 2 work-hours × $85 per hour = $170 ...... $2,400 $2,570 $149,060

According to the manufacturer, all of affected individuals. As a result, we Authority for This Rulemaking the costs of this AD may be covered have included all costs in our cost Title 49 of the United States Code under warranty, thereby reducing the estimate. specifies the FAA’s authority to issue cost impact on affected individuals. We rules on aviation safety. Subtitle I, do not control warranty coverage for section 106, describes the authority of

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the FAA Administrator. Subtitle VII: FAA–2012–0644; Directorate Identifier (j) Related Information Aviation Programs, describes in more 2012–NM–011–AD. For more information about this AD, detail the scope of the Agency’s (a) Effective Date contact Christine Abraham, Aerospace authority. Engineer, Electrical Systems and Avionics We are issuing this rulemaking under This AD is effective October 24, 2012. Branch, ACE–119W, FAA, Wichita Aircraft the authority described in Subtitle VII, (b) Affected ADs Certification Office, 1801 Airport Road, Room 100, Mid-Continent Airport, Wichita, Part A, Subpart III, Section 44701: None. ‘‘General requirements.’’ Under that Kansas 67209; telephone: 316–946–4165; fax: section, Congress charges the FAA with (c) Applicability 316–946–4107; email: [email protected]. promoting safe flight of civil aircraft in This AD applies to The Cessna Aircraft air commerce by prescribing regulations Company Model 750 airplanes, certificated in (k) Material Incorporated by Reference for practices, methods, and procedures any category, having serial numbers –0222, (1) The Director of the Federal Register the Administrator finds necessary for –0225 through –0306 inclusive, and –0308. approved the incorporation by reference safety in air commerce. This regulation (d) Subject (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR is within the scope of that authority Joint Aircraft System Component (JASC)/ part 51. because it addresses an unsafe condition Air Transport Association (ATA) of America that is likely to exist or develop on (2) You must use this service information Code 24, Electrical power. as applicable to do the actions required by products identified in this rulemaking (e) Unsafe Condition this AD, unless the AD specifies otherwise. action. (i) Cessna Service Bulletin SB750–24–30, This AD was prompted by reports of direct dated December 5, 2011. Regulatory Findings current (DC) generator overvoltage events. (ii) Reserved. We are issuing this AD to prevent DC This AD will not have federalism (3) For service information identified in generator overvoltage events, which could implications under Executive Order this AD, contact Cessna Aircraft Co., P.O. Box result in smoke in the cockpit and loss of 13132. This AD will not have a 7706, Wichita, Kansas 67277; telephone 316– avionics and electrical systems. substantial direct effect on the States, on 517–6215; fax 316–517–5802; email the relationship between the national (f) Compliance [email protected]; Internet government and the States, or on the Comply with this AD within the https://www.cessnasupport.com/ newlogin.html. distribution of power and compliance times specified, unless already (4) You may view this service information responsibilities among the various done. at FAA, Transport Airplane Directorate, 1601 levels of government. (g) Replacement Lind Avenue SW., Renton, WA. For For the reasons discussed above, I information on the availability of this certify that this AD: Except as required by paragraph (h) of this AD: Within 6 months after the effective date material at the FAA, call 425–227–1221. (1) Is not a ‘‘significant regulatory (5) You may view this service information action’’ under Executive Order 12866, of this AD, replace the auxiliary power unit generator control unit (GCU) having part that is incorporated by reference at the (2) Is not a ‘‘significant rule’’ under National Archives and Records DOT Regulatory Policies and Procedures number (P/N) 9914752–2 with one having P/ N 9914752–6, in accordance with the Administration (NARA). For information on (44 FR 11034, February 26, 1979), Accomplishment Instructions of Cessna the availability of this material at NARA, call 202–741–6030, or go to: http:// (3) Will not affect intrastate aviation Service Bulletin SB750–24–30, dated www.archives.gov/federal-register/cfr/ibr- in Alaska, and December 5, 2011. (4) Will not have a significant locations.html. economic impact, positive or negative, (h) Exceptions Issued in Renton, Washington, on on a substantial number of small entities (1) Where the Accomplishment September 4, 2012. under the criteria of the Regulatory Instructions of Cessna Service Bulletin Flexibility Act. SB750–24–30, dated December 5, 2011, state Ali Bahrami, that operators must return the GCU having P/ Manager, Transport Airplane Directorate, List of Subjects in 14 CFR Part 39 N 9914752–2 to the manufacturer, this AD Aircraft Certification Service. Air transportation, Aircraft, Aviation does not require that action. [FR Doc. 2012–22337 Filed 9–18–12; 8:45 am] safety, Incorporation by reference, (2) Where the Accomplishment BILLING CODE 4910–13–P Safety. Instructions of Cessna Service Bulletin SB750–24–30, dated December 5, 2011, state Adoption of the Amendment that the operator must record that the service DEPARTMENT OF TRANSPORTATION Accordingly, under the authority bulletin has been completed, this AD does not require that action. delegated to me by the Administrator, Federal Aviation Administration the FAA amends 14 CFR part 39 as (i) Alternative Methods of Compliance follows: (AMOCs) 14 CFR Part 39 (1) The Manager, Wichita Aircraft PART 39—AIRWORTHINESS Certification Office (ACO), FAA, has the [Docket No. FAA–2011–0997; Directorate DIRECTIVES authority to approve AMOCs for this AD, if Identifier 2011–NM–043–AD; Amendment requested using the procedures found in 14 39–16963; AD 2012–04–07] ■ 1. The authority citation for part 39 CFR 39.19. In accordance with 14 CFR 39.19, continues to read as follows: send your request to your principal inspector RIN 2120–AA64 Authority: 49 U.S.C. 106(g), 40113, 44701. or local Flight Standards District Office, as appropriate. If sending information directly Airworthiness Directives; Airbus to the manager of the ACO, send it to the Airplanes § 39.13 [Amended] attention of the person identified in the ■ 2. The FAA amends § 39.13 by adding Related Information section of this AD. Correction (2) Before using any approved AMOC, the following new airworthiness notify your appropriate principal inspector, In rule document 2012–4498 directive (AD): or lacking a principal inspector, the manager appearing on pages 12989–12991 of the 2012–18–16 The Cessna Aircraft Company: of the local flight standards district office/ issue of Monday, March 5, 2012 make Amendment 39–17193; Docket No. certificate holding district office. the following correction:

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§ 39.13 [Corrected] Regional Counsel, Southwest Region, activated by shutting off both of the fuel ■ On page 12990, in the second column, 2601 Meacham Blvd., Room 663, Fort shut-off control levers, from switching in paragraph (g), in the last line, ‘‘EASA Worth, Texas 76137. off the electrical power system during an emergency shut down. (or its delegated’’ should read ‘‘EASA Examining the AD Docket (or its delegated agent).’’ You may examine the AD docket on Comments [FR Doc. C1–2012–4498 Filed 9–18–12; 8:45 am] the Internet at http:// We gave the public the opportunity to BILLING CODE 1505–01–D www.regulations.gov; or in person at the participate in developing this AD, but Docket Operations Office between 9 we did not receive any comments on the DEPARTMENT OF TRANSPORTATION a.m. and 5 p.m., Monday through NPRM. Friday, except Federal holidays. The AD FAA’s Determination Federal Aviation Administration docket contains this AD, any incorporated-by-reference service We have reviewed the relevant 14 CFR Part 39 information, the economic evaluation, information and determined that an any comments received, and other unsafe condition exists and is likely to [Docket No. FAA–2011–1408; Directorate information. The street address for the exist or develop on other helicopters of Identifier 2008–SW–10–AD; Amendment 39– Docket Operations Office (phone: 800– these same type designs and that air 17184; AD 2012–18–08] 647–5527) is U.S. Department of safety and the public interest require RIN 2120–AA64 Transportation, Docket Operations adopting the AD requirements as Office, M–30, West Building Ground proposed except we are replacing the Airworthiness Directives; Eurocopter Floor, Room W12–140, 1200 New Jersey word ‘‘travel’’ in the required actions France Helicopters Avenue SE., Washington, DC 20590. paragraph with the more accurate word AGENCY: Federal Aviation FOR FURTHER INFORMATION CONTACT: Eric ‘‘lever,’’ and other minor editorial Administration (FAA), DOT. Haight, Aviation Safety Engineer, changes. These changes are consistent with the intent of the proposals in the ACTION: Final rule. Regulations and Policy Group, Rotorcraft Directorate, FAA, 2601 NPRM and will not increase the SUMMARY: We are adopting a new Meacham Blvd., Fort Worth, TX 76137; economic burden on any operator nor airworthiness directive (AD) for telephone (817) 222–5110; email increase the scope of the AD. Eurocopter France (Eurocopter) Model [email protected]. Differences Between This AD and the SA330F, SA330G, SA330J, AS332C, SUPPLEMENTARY INFORMATION: EASA AD AS332L, AS332L1, and AS332L2 • helicopters to require cleaning, Discussion We use the word ‘‘inspect’’ to inspecting, and lubricating each describe the actions required by a On December 28, 2011, at 76 FR mechanic rather than the word ‘‘check.’’ tangential gearbox (gearbox) and 81430, the Federal Register published • adjusting, as necessary, the fuel shut-off We refer to the compliance time as our notice of proposed rulemaking ‘‘hours TIS’’ rather than ‘‘flying hours.’’ control lever. This AD was prompted by (NPRM), which proposed to amend 14 • the jamming of one of two fuel shut-off We use a different compliance time CFR part 39 to include an AD that for inspecting and lubricating the control levers because of solidified would apply to Eurocopter Model grease in the gearbox. A companion gearboxes. SA330F, SA330G, SA330J, AS332C, • We are not including the military gearbox had extensive corrosion. In case AS332L, AS332L1, and AS332L2 of an emergency, pilots may need to use model helicopters or Model AS332C1 in helicopters. That NPRM proposed to the applicability because they are not the control levers to shut off fuel going require within 50 hours time-in-service into the engine and to shut off the type certificated in the United States. (TIS) cleaning, inspecting and • We are not requiring measuring the helicopter’s electrical power system. lubricating each gearbox, and adjusting, operating loads of the fuel shut-off The jamming of the levers prevents the as necessary, the fuel shut-off control controls per paragraph 1.1 of the EASA shut off of the engine fuel and prevents travel. AD (paragraph 2.B.1 of the Eurocopter the parallel-mounted micro switches The European Aviation Safety Agency Alert Service Bulletin). from switching off the electrical power (EASA), which is the Technical Agent system. These actions are intended to for the Member States of the European Related Service Information prevent the jamming of the control Union, has issued EASA Emergency AD Eurocopter has issued an Alert levers, which could prevent shut-off of No. 2007–0082–E, dated March 27, Service Bulletin (ASB), Revision 1, the engine fuel and electrical power 2007, to correct an unsafe condition for dated March 22, 2007, with three system during an emergency shutdown. the Eurocopter Model SA330F, SA330G, numbers (Nos. 76.00.04, 76.00.03, and DATES: This AD is effective October 24, SA330J, AS332C, AS332C1, AS332L, 76.03). ASB No. 76.03 applies to the 2012. AS332L1, and AS332L2 helicopters. U.S. type-certificated Model SA330F, The Director of the Federal Register EASA advises that the emergency AD SA330G, and SA330J and also applies to approved the incorporation by reference was issued following two reports of the non-type-certificated military Model certain documents as of October 24, jamming of one of the fuel shut-off 330 helicopters. ASB No. 76.00.04 2012. control levers discovered during applies the U.S. type-certificated Model ADDRESSES: For service information maintenance. In both cases, this AS332C, AS332L, AS332L1, and identified in this AD, contact American jamming originates from solidified AS332L2 helicopters and also applies to Eurocopter Corporation, 2701 N. Forum grease in the gearboxes. EASA also the non-type-certificated AS332C1 and Drive, Grand Prairie, TX 75052; found corrosion in a gearbox. Jamming military Model 332 helicopters. ASB telephone (972) 641–0000 or (800) 232– of a fuel shut-off control lever No. 76.00.03 applies to the non-type- 0323; fax (972) 641–3775; or at http:// constitutes an unsafe condition because certificated military Model 532 www.eurocopter.com/techpub. You may it prevents the shut off of engine fuel helicopters. EASA classified this service review a copy of the referenced service and prevents the parallel-mounted information as mandatory and issued information at the FAA, Office of the electrical micro switches, normally Emergency AD No. 2007–0082–E, dated

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March 27, 2007, to correct the same List of Subjects in 14 CFR Part 39 Policy Group, Rotorcraft Directorate, FAA, 2601 Meacham Blvd., Fort Worth, TX 76137; unsafe condition as identified in the Air transportation, Aircraft, Aviation service information. telephone (817) 222–5110; email safety, Incorporation by reference, [email protected]. Costs of Compliance Safety. (2) For operations conducted under a 14 Adoption of the Amendment CFR part 119 operating certificate or under We estimate that this proposed AD 14 CFR part 91, subpart K, we suggest that will affect 29 helicopters of U.S. Accordingly, under the authority you notify your principal inspector, or registry. We also estimate that the cost delegated to me by the Administrator, lacking a principal inspector, the manager of to comply with this AD is $255 per the FAA amends 14 CFR part 39 as the local flight standards district office or helicopter, $7,395 for the fleet, follows: certificate holding district office, before assuming three work-hours at $85 per operating any aircraft complying with this hour to lubricate each gearbox. PART 39—AIRWORTHINESS AD through an AMOC. DIRECTIVES Authority for This Rulemaking (g) Additional Information ■ 1. The authority citation for part 39 Title 49 of the United States Code The subject of this AD is addressed in the continues to read as follows: European Aviation Safety Agency Emergency specifies the FAA’s authority to issue AD No. 2007–0082–E, dated March 27, 2007. rules on aviation safety. Subtitle I, Authority: 49 U.S.C. 106(g), 40113, 44701. section 106, describes the authority of § 39.13 [Amended] (h) Subject the FAA Administrator. Subtitle VII: ■ 2. The FAA amends § 39.13 by adding Joint Aircraft Service Component (JASC) Aviation Programs, describes in more the following new airworthiness Code: 7600, Engine Controls. detail the scope of the Agency’s directive (AD): (i) Material Incorporated by Reference authority. 2012–18–08 EUROCOPTER FRANCE: (1) The Director of the Federal Register We are issuing this rulemaking under Amendment 39–17184; Docket No. approved the incorporation by reference of the authority described in Subtitle VII, FAA–2011–1408; Directorate Identifier the following service information under 5 Part A, Subpart III, Section 44701: 2008–SW–10–AD. U.S.C. 552(a) and 1 CFR part 51: ‘‘General requirements.’’ Under that (a) Applicability (2) You must use this service information section, Congress charges the FAA with as applicable to do the actions required by promoting safe flight of civil aircraft in This AD applies to Model SA330F, this AD, unless the AD specifies otherwise. air commerce by prescribing regulations SA330G, SA330J, AS332C, AS332L, (i) Eurocopter ASB No. 76.00.04, Revision AS332L1, and AS332L2 helicopters, 1, dated March 22, 2007. for practices, methods, and procedures certificated in any category. the Administrator finds necessary for (ii) Eurocopter ASB No. 76.03, Revision 1, safety in air commerce. This regulation (b) Unsafe Condition dated March 22, 2007. is within the scope of that authority This AD defines the unsafe condition as Note 1 to paragraph (i)(2): Eurocopter because it addresses an unsafe condition jamming of one of the fuel shut-off control Alert Service Bulletin (ASB) No. 76.00.04, that is likely to exist or develop on levers because of solidified grease in a Revision 1, dated March 22, 2007, and helicopters identified in this rulemaking tangential gearbox (gearbox), which could Eurocopter ASB No. 76.03, Revision 1, dated action. prevent a pilot from the shutting off the March 22, 2007, are co-published as one engine fuel and prevent the parallel-mounted document along with Eurocopter ASB No. Regulatory Findings electrical micro switches from switching off 76.00.03, Revision 1, dated March 22, 2007, the electrical power system during an which is not incorporated by reference in this This AD will not have federalism emergency shutdown. AD. implications under Executive Order (c) Effective Date (3) For Eurocopter service information 13132. This AD will not have a identified in this AD, contact American substantial direct effect on the States, on This AD becomes effective October 24, 2012. Eurocopter Corporation, 2701 N. Forum the relationship between the national Drive, Grand Prairie, TX 75052; telephone government and the States, or on the (d) Compliance (972) 641–0000 or (800) 232–0323; fax (972) distribution of power and You are responsible for performing each 641–3775; or at http://www.eurocopter.com/ responsibilities among the various action required by this AD within the techpub. levels of government. specified compliance time unless it has (4) You may review a copy of the already been accomplished prior to that time. referenced service information at the FAA, For the reasons discussed above, I Office of the Regional Counsel, Southwest certify that this AD: (e) Required Actions Region, 2601 Meacham Blvd., Room 663, Fort (1) Is not a ‘‘significant regulatory Within 50 hours time-in-service, clean, Worth, Texas 76137. action’’ under Executive Order 12866; inspect, and lubricate each gearbox and (5) You may also review a copy of the adjust, as necessary, the fuel shut-off control service information that is incorporated by (2) Is not a ‘‘significant rule’’ under lever by following the Accomplishment DOT Regulatory Policies and Procedures reference at the National Archives and Instructions, Paragraph 2.B.2 (reference Records Administration (NARA). For (44 FR 11034, February 26, 1979); Figures 3 through 7), of Eurocopter Alert information on the availability of this (3) Will not affect intrastate aviation Service Bulletin (ASB) No. 76.03, Revision 1, material at NARA, call (202) 741–6030, or go in Alaska to the extent that it justifies dated March 22, 2007, for the Model SA330F, to: http://www.archives.gov/federal_register/ making a regulatory distinction; and SA330G, and SA330J helicopters, or ASB No. code_of_federal_regulations/ 76.00.04, Revision 1, dated March 22, 2007, ibr_locations.html (4) Will not have a significant for the Model AS332C, AS332L, AS332L1, economic impact, positive or negative, and AS332L2 helicopters. Issued in Fort Worth, Texas, on August 30, on a substantial number of small entities 2012. (f) Alternative Methods of Compliance under the criteria of the Regulatory (AMOCs) Kim Smith, Flexibility Act. Manager, Rotorcraft Directorate, Aircraft (1) The Manager, Safety Management Certification Service. We prepared an economic evaluation Group, FAA, may approve AMOCs for this of the estimated costs to comply with AD. Send your proposal to: Eric Haight, [FR Doc. 2012–22031 Filed 9–18–12; 8:45 am] this AD and placed it in the AD docket. Aviation Safety Engineer, Regulations and BILLING CODE 4910–13–P

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DEPARTMENT OF TRANSPORTATION Discussion Comments We gave the public the opportunity to Federal Aviation Administration We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR participate in developing this AD. We considered the comments received. 14 CFR Part 39 part 39 to include an AD that would apply to the specified products. That Request To Reference Most Recent [Docket No. FAA–2012–0142; Directorate NPRM was published in the Federal Service Information Register on March 20, 2012 (77 FR Identifier 2010–NM–275–AD; Amendment Comair Inc. (Comair) requested that 39–17188; AD 2012–18–11] 16193). That NPRM proposed to correct an unsafe condition for the specified we reference the most recent service products. The MCAI states: information. Comair also stated that the RIN 2120–AA64 revised service information has no effect Seven cases of on-ground hydraulic on airplanes on which inspections, Airworthiness Directives; Bombardier, accumulator screw cap/end cap failure have replacements, or maintenance program Inc. Airplanes been experienced on CL–600–2B19 revisions were accomplished using the aeroplanes resulting in loss of the associated AGENCY: Federal Aviation hydraulic system and high-energy impact previous issues that were identified in Administration (FAA), Department of damage to adjacent systems and structure. the NPRM (77 FR 16193, March 20, Transportation (DOT). The lowest number of flight cycles 2012). accumulated at the time of failure, to date, We agree to reference the most recent ACTION: Final rule. has been 6,991 flight cycles. service information of certain service Although there have been no failures to bulletins as identified below. SUMMARY: We are adopting a new date on any CL–600–2C10, CL–600–2D15 or • Bombardier Alert Service Bulletin airworthiness directive (AD) for certain CL–600–2D24 aeroplanes, similar A670BA–29–011, Revision B, dated Bombardier, Inc. Model CL–600–2C10 accumulators to those installed on the CL– December 22, 2010, including Appendix (Regional Jet Series 700, 701, & 702), 600–2B19, are installed. The part numbers (P/Ns) of the accumulators installed on CL– A, Revision A, dated July 27, 2010 (for CL–600–2D15 (Regional Jet Series 705), hydraulic system No. 1, and hydraulic and CL–600–2D24 (Regional Jet Series 600–2C10, CL–600–2D15 and CL–600–2D24 aeroplanes are 900096–1 (Hydraulic System system No. 2 accumulators). 900) airplanes. This AD was prompted • Bombardier Alert Service Bulletin by reports of failures of a hydraulic No. 1 and Hydraulic System No. 2 accumulators), 900097–1 (Hydraulic System A670BA–29–012, Revision B, dated accumulator’s screw-cap/end cap while No. 3 accumulator) and 08–60204–001 December 22, 2010, including Appendix on the ground that resulted in loss of (Inboard Brake and Outboard Brake A, Revision A, dated July 27, 2010 (for use of that hydraulic system, and in accumulators). hydraulic system No. 3 accumulators). high-energy impact damage to adjacent A detailed analysis of the calculated line • Bombardier Alert Service Bulletin systems and structures. This AD of trajectory of a failed screw cap/end cap for each of the accumulators has been A670BA–32–021, Revision D, dated requires an inspection for part numbers; December 22, 2010, including Appendix repetitive inspections for any cracking conducted, resulting in the identification of several areas where systems and/or structural A, Revision A, dated October 18, 2007 of certain hydraulic system (for inboard and outboard brake accumulators, and replacement, if components could potentially be damaged. Although all of the failures to date have accumulators). necessary; and revising the maintenance occurred on the ground, an in-flight failure • Bombardier Service Bulletin program to include a life limit for affecting such components could potentially 670BA–29–013, Revision B, dated certain hydraulic system accumulators. have an adverse effect on the controllability December 22, 2010, including Appendix We are issuing this AD to prevent loss of the aeroplane. A, dated January 29, 2010 (for hydraulic of use of a hydraulic system, which This [Canadian] directive gives instructions to conduct [an inspection to system No. 1, and hydraulic system No. could result in reduced controllability 2 accumulators). of the airplane. determine if certain hydraulic accumulators are installed and, if necessary,] repetitive • Bombardier Service Bulletin DATES: This AD becomes effective ultrasonic inspections [for cracking] of the 670BA–32–026, Revision B, dated October 24, 2012. Hydraulic System No. 1, Hydraulic System December 22, 2010, including Appendix The Director of the Federal Register No. 2, Hydraulic System No. 3, Inboard Brake A, dated January 29, 2010 (for inboard approved the incorporation by reference and Outboard Brake accumulators, P/Ns and outboard brake accumulators). of certain publications listed in this AD 900096–1, 900097–1, and 08–60204–001, that • Bombardier Service Bulletin as of October 24, 2012. are not identified by the letter ‘‘M’’ or ‘‘T’’ 670BA–32–028, Revision A, dated after the S/N [serial number] on the ADDRESSES: You may examine the AD identification plate. February 3, 2011 (for inboard brake and outboard brake accumulators). docket on the Internet at http:// * * * * * www.regulations.gov or in person at the This revised service information does U.S. Department of Transportation, Required actions include revising the not add more work to the actions Docket Operations, M–30, West maintenance program to include a life described in the NPRM (77 FR 16193, Building Ground Floor, Room W12–140, limit for certain accumulators, and for March 20, 2012). We have revised 1200 New Jersey Avenue SE., airplanes on which cracking is found paragraphs (i), (p), (q), and (t) of this AD Washington, DC. during an ultrasonic inspection, accordingly. replacing the accumulator with a new FOR FURTHER INFORMATION CONTACT: accumulator containing the letter ‘‘M’’ Request To Include an Alternative Cesar Gomez, Aerospace Engineer, or ‘‘T’’, as applicable, after the serial Method of Compliance (AMOC) for a Airframe and Mechanical Systems number on the identification plate or Different Part Number (P/N) Branch, ANE–171, FAA, New York with a new accumulator with a different Tactair Fluid Controls (Tactair) Aircraft Certification Office, 1600 part number, and eventual replacement requested that we include a hydraulic Stewart Avenue, Suite 410, Westbury, of certain accumulators with new accumulator having P/N 11093–4 as an New York 11590; telephone (516) 228– accumulators. You may obtain further AMOC for replacing hydraulic 7318; fax (516) 794–5531. information by examining the MCAI in accumulators having P/N 08–60204– SUPPLEMENTARY INFORMATION: the AD docket. 001. Tactair noted that more than half

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of the airplanes in the Model CL–600– Authority for This Rulemaking List of Subjects in 14 CFR Part 39 2B19 fleet have been retrofitted to P/N Title 49 of the United States Code Air transportation, Aircraft, Aviation 11093–4. Tactair also indicated that specifies the FAA’s authority to issue safety, Incorporation by reference, allowing use of P/N 11093–4 would be rules on aviation safety. Subtitle I, Safety. more economical for operators. section 106, describes the authority of Adoption of the Amendment We disagree with the commenter’s the FAA Administrator. ‘‘Subtitle VII: request. Part number 11093–4 has not Aviation Programs,’’ describes in more Accordingly, under the authority yet been certified for use on Model CL– detail the scope of the Agency’s delegated to me by the Administrator, 600–2C10 (Regional Jet Series 700, 701, authority. the FAA amends 14 CFR part 39 as & 702), CL–600–2D15 (Regional Jet We are issuing this rulemaking under follows: Series 705), or CL–600–2D24 (Regional the authority described in ‘‘Subtitle VII, PART 39—AIRWORTHINESS Jet Series 900) airplanes. Approval of Part A, Subpart III, Section 44701: DIRECTIVES AMOCs provides alternative methods of General requirements.’’ Under that compliance to the methods required to section, Congress charges the FAA with ■ 1. The authority citation for part 39 be used in the associated AD. An AMOC promoting safe flight of civil aircraft in continues to read as follows: is issued only after an AD has been air commerce by prescribing regulations issued and only after data are provided for practices, methods, and procedures Authority: 49 U.S.C. 106(g), 40113, 44701. to show that the proposed solution is the Administrator finds necessary for § 39.13 [Amended] complete and addresses the unsafe safety in air commerce. This regulation ■ 2. The FAA amends § 39.13 by adding condition. Once we issue this AD, any is within the scope of that authority the following new AD: person may request approval of an because it addresses an unsafe condition AMOC under the provisions of that is likely to exist or develop on 2012–18–11 Bombardier, Inc.: Amendment paragraph (s)(1) of this AD. We have not products identified in this rulemaking 39–17188. Docket No. FAA–2012–0142; Directorate Identifier 2010–NM–275–AD. changed this AD in this regard. action. (a) Effective Date Updated Credit Language Regulatory Findings This airworthiness directive (AD) becomes We have revised the heading and We determined that this AD will not effective October 24, 2012. have federalism implications under wording for paragraph (q) of this AD to (b) Affected ADs provide appropriate credit for previous Executive Order 13132. This AD will None. accomplishment of certain actions. This not have a substantial direct effect on change does not affect the intent of that the States, on the relationship between (c) Applicability paragraph. the national government and the States, This AD applies to the airplanes identified or on the distribution of power and in paragraphs (c)(1) and (c)(2) of this AD, Conclusion responsibilities among the various certificated in any category. We reviewed the available data, levels of government. (1) Bombardier, Inc. Model CL–600–2C10 (Regional Jet Series 700, 701, & 702) including the comments received, and For the reasons discussed above, I certify that this AD: airplanes, with serial number (S/N) 10003 determined that air safety and the through 10314 inclusive. public interest require adopting the AD 1. Is not a ‘‘significant regulatory action’’ under Executive Order 12866; (2) Bombardier, Inc. Model CL–600–2D15 with the changes described previously. (Regional Jet Series 705) and CL–600–2D24 2. Is not a ‘‘significant rule’’ under the (Regional Jet Series 900) airplanes, with S/N Costs of Compliance DOT Regulatory Policies and Procedures 15001 through 15259 inclusive. (44 FR 11034, February 26, 1979); We estimate that this AD will affect 3. Will not affect intrastate aviation in (d) Subject 389 products of U.S. registry. We also Alaska; and Air Transport Association (ATA) of estimate that it will take up to 21 work- 4. Will not have a significant America Code 29: Hydraulic Power, and 32: hours per product to comply with the economic impact, positive or negative, Landing Gear. basic requirements of this AD. The on a substantial number of small entities (e) Reason average labor rate is $85 per work-hour. under the criteria of the Regulatory This AD was prompted by reports of Required parts will cost about $8,988 Flexibility Act. per product. Where the service failures of a hydraulic accumulator’s screw- We prepared a regulatory evaluation cap/end cap while on the ground that information lists required parts costs of the estimated costs to comply with resulted in loss of use of that hydraulic that are covered under warranty, we this AD and placed it in the AD docket. system, and in high-energy impact damage to have assumed that there will be no adjacent systems and structures. We are charge for these parts. As we do not Examining the AD Docket issuing this AD to prevent loss of use of a control warranty coverage for affected You may examine the AD docket on hydraulic system, which could result in parties, some parties may incur costs the Internet at http:// reduced controllability of the airplane. higher than estimated here. Based on www.regulations.gov; or in person at the (f) Compliance these figures, we estimate the cost of Docket Operations office between 9 a.m. You are responsible for having the actions this AD to the U.S. operators to be up and 5 p.m., Monday through Friday, required by this AD performed within the to $4,190,697, or $10,773 per product, except Federal holidays. The AD docket compliance times specified, unless the per inspection cycle. contains the NPRM (77 FR 16193, actions have already been done. In addition, we estimate that any March 20, 2012), the regulatory (g) Inspection for Part Numbers (P/Ns) necessary follow-on actions would take evaluation, any comments received, and At the applicable time specified in up to 7 work-hours and require parts other information. The street address for paragraphs (g)(1), (g)(2), and (g)(3) of this AD, costing $8,988, for a cost of $9,583 per the Docket Operations office (telephone inspect the hydraulic accumulators in product. We have no way of (800) 647–5527) is in the ADDRESSES hydraulic systems No. 1, No. 2, and No. 3, determining the number of products section. Comments will be available in and the inboard and outboard brake systems, that may need these actions. the AD docket shortly after receipt. to determine the part number of the

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accumulator. A review of airplane 29–011, Revision B, dated December 22, required by paragraph (i) of this AD, within maintenance records is acceptable in lieu of 2010, including Appendix A, Revision A, 500 flight cycles after the previous ultrasonic this inspection if the part number of the dated July 27, 2010. inspection, inspect the accumulator in accumulator can be conclusively determined (2) For hydraulic system No. 3 accordance with paragraph (i) of this AD. from that review. accumulators: Bombardier Alert Service (1) If no cracking is found, do the actions (1) For an accumulator with more than Bulletin A670BA–29–012, Revision B, dated required by paragraph (l) of this AD and 4,500 total flight cycles as of the effective December 22, 2010, including Appendix A, repeat thereafter at intervals not to exceed date of this AD, inspect that accumulator Revision A, dated July 27, 2010. 500 flight cycles. within 500 flight cycles after the effective (3) For inboard brake and outboard brake (2) If any cracking is found, before further date of this AD. accumulators: Bombardier Alert Service flight, replace the accumulator with a new (2) For an accumulator with 4,500 or less Bulletin A670BA–32–021, Revision D, dated accumulator containing the letter ‘‘M’’ or total flight cycles as of the effective date of December 22, 2010, including Appendix A, ‘‘T,’’ as applicable, after the serial number on this AD, inspect that accumulator before it Revision A, dated October 18, 2007. the identification plate, in accordance with has accumulated 5,000 total flight cycles. (4) For hydraulic system No. 1 the Accomplishment Instructions of the (3) If it is not possible to determine the accumulators: Bombardier Service Bulletin applicable service bulletin identified in total flight cycles accumulated on an 670BA–29–013, Revision B, dated December paragraphs (i)(1) through (i)(6) of this AD, or accumulator, inspect that accumulator within 22, 2010, including Appendix A, dated replace the accumulator with a new 500 flight cycles after the effective date of January 29, 2010. accumulator as specified in paragraphs (k)(1), this AD. (5) For hydraulic system No. 2 (k)(2), and (k)(3) of this AD, as applicable. accumulators: Bombardier Service Bulletin (h) Inspection for Letter Designation After 670BA–29–013, Revision B, dated December (m) Replacement of Hydraulic System No. 1 the Serial Number 22, 2010, including Appendix A, dated and No. 2 Accumulators If, during an inspection required by January 29, 2010. For airplanes on which a hydraulic system paragraph (g) of this AD, an accumulator (6) For inboard brake and outboard brake No. 1 or No. 2 accumulator having P/N having P/N 900096–1 (for hydraulic systems accumulators: Bombardier Service Bulletin 900096–1 without the letter ‘‘M’’ after the No. 1 and No. 2 accumulators), 900097–1 (for 670BA–32–026, Revision B, dated December serial number is installed: At the applicable hydraulic system No. 3 accumulator), or 08– 22, 2010, including Appendix A, dated time specified in paragraphs (m)(1) and 60204–001 (for inboard and outboard brake January 29, 2010. (m)(2) of this AD, replace the accumulator accumulators) is found, at the applicable (j) No Cracking Found During with a new accumulator having P/N 900096– time specified in paragraphs (g)(1), (g)(2), and Accomplishment of the Actions Required by 1 with the letter ‘‘M’’ after the serial number; (g)(3) of this AD, do an inspection of the Paragraph (i) of This AD or having P/N 900121–1, in accordance with identification plate on the hydraulic If no cracking is found during the the Accomplishment Instructions of accumulator to determine if an ‘‘M’’ (for Bombardier Service Bulletin 670BA–29–014, hydraulic system accumulators) or a ‘‘T’’ (for inspections required by paragraph (i) of this AD, do the actions required by paragraph (l) dated December 22, 2010. brake system accumulators) follows the serial (1) For an accumulator with more than number on the identification plate. A review of this AD. 19,500 total flight cycles as of the effective of airplane maintenance records is acceptable (k) Cracking Found During Accomplishment date of this AD, replace that accumulator in lieu of this inspection if the part number of the Actions Required by Paragraph (i) of within 500 flight cycles after accomplishing and the letter of the accumulator can be This AD the most recent inspection required by conclusively determined from that review. If any cracking is found during the paragraph (i) or (l) of this AD. Note 1 to paragraphs (h), (i), (k), (l)(2), and inspections required by paragraph (i) of this (2) For an accumulator with 19,500 or less (m) of this AD: The letter ‘‘M’’ after the serial AD, before further flight, replace the total flight cycles as of the effective date of number on the identification plate is accumulator with a new accumulator this AD, replace that accumulator before it applicable to accumulators, P/Ns 900096–1 containing the letter ‘‘M’’ or ‘‘T’’, as has accumulated 20,000 total flight cycles. and 900097–1, on hydraulic systems No. 1, applicable, after the serial number on the (3) If it is not possible to determine the No. 2, and No. 3. The letter ‘‘T’’ after the identification plate, in accordance with the total flight cycles accumulated on an serial number on the identification plate is Accomplishment Instructions of the accumulator, replace that accumulator within applicable to accumulators, P/N 08–60204– applicable service bulletin identified in 500 flight cycles after accomplishing the 001, on the brake system. paragraphs (i)(1) through (i)(6) of this AD, or most recent ultrasonic inspection required by paragraph (i) or (l) of this AD. (i) Initial Ultrasonic Inspections of replace the accumulator with a new Hydraulic System No. 1, Hydraulic System accumulator as specified in paragraphs (k)(1) (n) Hydraulic System Safe Life Limit No. 2, Hydraulic System No. 3, Inboard through (k)(3) of this AD, as applicable. Introduction Brake, and Outboard Brake Accumulators (1) For any cracked hydraulic system No. 1 or No. 2 accumulator, replace the cracked Within 60 days after the effective date of If, during any inspection required by accumulator with a new accumulator, P/N this AD, revise the maintenance program to paragraph (h) of this AD, any accumulator 900121–1, in accordance with the include a safe life limit for the hydraulic without the letter ‘‘M’’ (for hydraulic system Accomplishment Instructions of Bombardier system No. 1 and No. 2 accumulators, P/N accumulators) or a ‘‘T’’ (for brake system Service Bulletin 670BA–29–014, dated 900096–1, by incorporating Tasks 29–11–11– accumulators) after the serial number is December 22, 2010. 000–801 and 29–11–11–400–801 of Section found, at the applicable time specified in (2) For any cracked hydraulic system No. 1.3—Safe Life Components, of Part 2, paragraph (g)(1), (g)(2), or (g)(3) of this AD: 3 accumulator, replace the cracked Airworthiness Limitations, Revision 11, Do an ultrasonic inspection of the inner accumulator with a new accumulator, P/N dated October 20, 2010, of the Bombardier shoulders of the accumulator screw-cap for 900122–1, in accordance with paragraph (o) CL–600–2C10, CL–600–2D15, CL–600–2D24, cracking, in accordance with Part B of the of this AD. CL–600–2E25 Maintenance Requirements Accomplishment Instructions of the (3) For any cracked inboard brake or Manual, CSP B–053. applicable Bombardier service bulletin outboard brake accumulator, replace the (o) Replacement of Hydraulic System No. 3 identified in paragraphs (i)(1), (i)(2), and cracked accumulator with a new Accumulator (i)(3) of this AD, and at the internal threads accumulator, P/N 90006691, in accordance of the screw-caps, in accordance with the with paragraph (p) of this AD. Within 4,000 flight cycles or 24 months Accomplishment Instructions of the after the effective date of this AD, whichever applicable Bombardier service bulletin (l) Repetitive Ultrasonic Inspections of occurs first, replace any hydraulic system No. identified in paragraphs (i)(4), (i)(5), and Hydraulic System No. 1, Hydraulic System 3 accumulator having P/N 900097–1 with a (i)(6) of this AD. No. 2, Hydraulic System No. 3, Inboard new accumulator having P/N 900122–1, in (1) For hydraulic system No. 1, and Brake, and Outboard Brake Accumulators accordance with the Accomplishment hydraulic system No. 2 accumulators: For each accumulator on which no Instructions of Bombardier Service Bulletin Bombardier Alert Service Bulletin A670BA– cracking was found during any inspection 670BA–29–015, dated December 22, 2010.

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(p) Replacement of Inboard or Outboard in 14 CFR 39.19. In accordance with 14 CFR (i) Bombardier Alert Service Bulletin Brake System Accumulators 39.19, send your request to your principal A670BA–29–011, Revision B, dated Within 4,000 flight cycles or 24 months inspector or local Flight Standards District December 22, 2010, including Appendix A, after the effective date of this AD, whichever Office, as appropriate. If sending information Revision A, dated July 27, 2010. occurs first, replace any inboard or outboard directly to the manager of the ACO, send it (ii) Bombardier Alert Service Bulletin to ATTN: Program Manager, Continuing brake system accumulator having P/N 08– A670BA–29–012, Revision B, dated 60204–001 with a new accumulator having Operational Safety, FAA, New York ACO, 1600 Stewart Avenue, Suite 410, Westbury, December 22, 2010, including Appendix A, P/N 90006691, in accordance with the Revision A, dated July 27, 2010. Accomplishment Instructions of Bombardier New York 11590; telephone 516–228–7300; fax 516–794–5531. Before using any (iii) Bombardier Alert Service Bulletin Service Bulletin 670BA–32–028, Revision A, approved AMOC, notify your appropriate A670BA–32–021, Revision D, dated dated February 3, 2011. principal inspector, or lacking a principal December 22, 2010, including Appendix A, (q) Credit for Previous Actions inspector, the manager of the local flight Revision A, dated October 18, 2007. (1) This paragraph provides credit for the standards district office/certificate holding (iv) Bombardier Service Bulletin 670BA– actions required by paragraph (i) of this AD, district office. The AMOC approval letter 29–013, Revision B, dated December 22, if those actions were performed before the must specifically reference this AD. (2) Airworthy Product: For any requirement 2010, including Appendix A, dated January effective date of this AD using Part B of the 29, 2010. Accomplishment Instructions of the in this AD to obtain corrective actions from a manufacturer or other source, use these (v) Bombardier Service Bulletin 670BA– Bombardier service bulletin identified in 32–026, Revision B, dated December 22, paragraph (q)(1)(i), (q)(1)(ii), (q)(1)(iii), actions if they are FAA-approved. Corrective 2010, including Appendix A, dated January (q)(1)(iv), (q)(1)(v), (q)(1)(vi), (q)(1)(vii), or actions are considered FAA-approved if they (q)(1)(viii) of this AD. are approved by the State of Design Authority 29, 2010. (i) Bombardier Alert Service Bulletin (or their delegated agent). You are required (vi) Bombardier Service Bulletin 670BA– A670BA–29–011, dated October 18, 2007. to assure the product is airworthy before it 29–014, dated December 22, 2010. is returned to service. (ii) Bombardier Alert Service Bulletin (vii) Bombardier Service Bulletin 670BA– A670BA–29–011, Revision A, dated July 27, (t) Related Information 29–015, dated December 22, 2010. 2010. Refer to Mandatory Continuing (viii) Bombardier Service Bulletin 670BA– (iii) Bombardier Alert Service Bulletin Airworthiness Information (MCAI) Canadian 32–028, Revision A, dated February 3, 2011. A670BA–29–012, dated March 13, 2008. Airworthiness Directive CF–2010–35R1, (ix) Tasks 29–11–11–000–801 and 29–11– (iv) Bombardier Alert Service Bulletin dated June 28, 2011, and the service 11–400–801 of Section 1.3—Safe Life A670BA–29–012, Revision A, dated July 27, information identified in paragraphs (t)(1) Components, of Part 2, Airworthiness 2010. through (t)(9) of this AD, for related Limitations, Revision 11, dated October 20, (v) Bombardier Alert Service Bulletin information. A670BA–32–021, dated November 21, 2006. 2010, of the Bombardier CL–600–2C10, CL– (1) Bombardier Alert Service Bulletin 600–2D15, CL–600–2D24, CL–600–2E25 (vi) Bombardier Alert Service Bulletin A670BA–29–011, Revision B, dated Maintenance Requirements Manual, CSP B– A670BA–32–021, Revision A, dated March 7, December 22, 2010, including Appendix A, 2007. Revision A, dated July 27, 2010. 053. (vii) Bombardier Alert Service Bulletin (2) Bombardier Alert Service Bulletin (3) For service information identified in A670BA–32–021, Revision B, dated October A670BA–29–012, Revision B, dated this AD, contact Bombardier, Inc., 400 Coˆte- 18, 2007. December 22, 2010, including Appendix A, Vertu Road West, Dorval, Que´bec H4S 1Y9, (viii) Bombardier Service Bulletin Revision A, dated July 27, 2010. Canada; telephone 514–855–5000; fax 514– A670BA–32–021, Revision C, dated July 27, (3) Bombardier Alert Service Bulletin 855–7401; email 2010. A670BA–32–021, Revision D, dated [email protected]; Internet http:// (2) This paragraph provides credit for the December 22, 2010, including Appendix A, www.bombardier.com. actions required by paragraphs (i) and (p) of Revision A, dated October 18, 2007. (4) You may review copies of the service this AD, if those actions were performed (4) Bombardier Service Bulletin 670BA– information at the FAA, Transport Airplane before the effective date of this AD using the 29–013, Revision B, dated December 22, Accomplishment Instructions of the 2010, including Appendix A, dated January Directorate, 1601 Lind Avenue SW., Renton, Bombardier service bulletin identified in 29, 2010. WA. For information on the availability of paragraph (q)(2)(i), (q)(2)(ii), (q)(2)(iii), (5) Bombardier Service Bulletin 670BA– this material at the FAA, call 425–227–1221. (q)(2)(iv), or (q)(2)(v) of this AD. 32–026, Revision B, dated December 22, (5) You may also review copies of the (i) Bombardier Service Bulletin 670BA–29– 2010, including Appendix A, dated January service information that is incorporated by 013, dated January 29, 2010. 29, 2010. reference at the National Archives and (ii) Bombardier Service Bulletin 670BA– (6) Bombardier Service Bulletin 670BA– Records Administration (NARA). For 29–013, Revision A, dated July 27, 2010. 29–014, dated December 22, 2010. information on the availability of this (iii) Bombardier Service Bulletin 670BA– (7) Bombardier Service Bulletin 670BA– material at an NARA facility, call 202–741– 32–026, dated January 29, 2010. 29–015, dated December 22, 2010. (iv) Bombardier Service Bulletin 670BA– 6030, or go to http://www.archives.gov/ (8) Bombardier Service Bulletin 670BA– _ _ _ _ 32–026, Revision A, dated July 27, 2010. 32–028, Revision A, dated February 3, 2011. federal register/code of federal regulations/ _ (v) Bombardier Service Bulletin 670BA– (9) Tasks 29–11–11–000–801 and 29–11– ibr locations.html. 32–028, dated December 22, 2010. 11–400–801 of Section 1.3—Safe Life Issued in Renton, Washington, on August Components, of Part 2, Airworthiness (r) Terminating Actions 31, 2012. Limitations, Revision 11, dated October 20, Accomplishing the actions required by 2010, of the Bombardier CL–600–2C10, CL– Ali Bahrami, paragraphs (m), (n), (o), and (p) of this AD 600–2D15, CL–600–2D24, CL–600–2E25 Manager, Transport Airplane Directorate, terminates the requirements of this AD for Maintenance Requirements Manual, CSP B– Aircraft Certification Service. the accumulator at that location only. 053. [FR Doc. 2012–22042 Filed 9–18–12; 8:45 am] (s) Other FAA AD Provisions (u) Material Incorporated by Reference BILLING CODE 4910–13–P The following provisions also apply to this (1) The Director of the Federal Register AD: approved the incorporation by reference (1) Alternative Methods of Compliance (IBR) of the following service information (AMOCs): The Manager, New York Aircraft under 5 U.S.C. 552(a) and 1 CFR part 51. Certification Office (ACO), ANE–170, FAA, (2) You must use the following service has the authority to approve AMOCs for this information to do the actions required by this AD, if requested using the procedures found AD, unless the AD specifies otherwise.

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DEPARTMENT OF TRANSPORTATION Docket Office (phone: 800–647–5527) is targeting a reasonable risk, argues for an Document Management Facility, U.S. earlier TU166 modification. Federal Aviation Administration Department of Transportation, Docket We do not agree. The risk analyzed by Operations, M–30, West Building Sikorsky had inputs that were too 14 CFR Part 39 Ground Floor, Room W12–140, 1200 conservative. We did not change the [Docket No. FAA–2011–0115; Directorate New Jersey Avenue SE., Washington, AD. DC 20590. Identifier 2010–NE–40–AD; Amendment 39– Conclusion 17195; AD 2012–18–18] FOR FURTHER INFORMATION CONTACT: Rose Len, Aerospace Engineer, Engine We reviewed the relevant data, RIN 2120–AA64 Certification Office, FAA, Engine & considered the comments received, and Airworthiness Directives; Turbomeca Propeller Directorate, 12 New England determined that air safety and the S.A. Turboshaft Engines Executive Park, Burlington, MA 01803; public interest require adopting the AD phone: 781–238–7772; fax: 781–238– with the changes described previously. AGENCY: Federal Aviation 7199; email: [email protected]. Costs of Compliance Administration (FAA), DOT. SUPPLEMENTARY INFORMATION: ACTION: Final rule. Based on the service information, we Discussion estimate that this AD will affect about SUMMARY: We are superseding an We issued a notice of proposed 551 products of U.S. registry. We also existing airworthiness directive (AD) for rulemaking (NPRM) to amend 14 CFR estimate that it will take about 60 work- certain Turbomeca S.A. Arriel 2B and part 39 to supersede AD 2011–13–05, hours per product to comply with this 2B1 turboshaft engines. That AD Amendment 39–16728 (76 FR 40222, AD. The average labor rate is $85 per currently requires accomplishment of July 8, 2011). That AD applies to work-hour. Required parts will cost the TU166 modification. This new AD Turbomeca S.A. Arriel 2B and 2B1 about $3,900 per product. Based on requires adding the Arriel 2S2 and 2C2 turboshaft engines. The NPRM these figures, we estimate the cost of the engines to the applicability of engines published in the Federal Register on AD on U.S. operators to be $4,959,000. requiring the TU166 modification with June 1, 2012 (77 FR 32437). That NPRM different compliance times. This AD proposed to continue to require Authority for This Rulemaking was prompted by reports of an accident accomplishment of the TU166 Title 49 of the United States Code involving a twin-engine helicopter modification on Turbomeca S.A. Arriel specifies the FAA’s authority to issue powered by two Arriel 2S2 engines. We 2B and 2B1 turboshaft engines. That rules on aviation safety. Subtitle I, are issuing this AD to prevent rupture NPRM also proposed to require adding Section 106, describes the authority of of a gas generator (GG) turbine blade, the Arriel 2S2 engine to the the FAA Administrator. Subtitle VII, which could result in an uncommanded applicability of engines requiring the Aviation Programs, describes in more in-flight shutdown and a forced landing TU166 modification with a different detail the scope of the Agency’s or accident. compliance time. authority. DATES: This AD is effective October 24, Comments We are issuing this rulemaking under 2012. the authority described in Subtitle VII, The Director of the Federal Register We gave the public the opportunity to Part A, Subpart III, Section 44701, approved the incorporation by reference participate in developing this AD. The ‘‘General requirements.’’ Under that of certain publications listed in the AD following presents the comments section, Congress charges the FAA with as of October 24, 2012. received on the proposal and the FAA’s promoting safe flight of civil aircraft in The Director of the Federal Register response to each comment. air commerce by prescribing regulations approved the incorporation by reference Request To Add the Arriel 2C2 Engine for practices, methods, and procedures of a certain other publication listed in Model the Administrator finds necessary for this AD as of August 12, 2011 (76 FR Turbomeca S.A. requested that we safety in air commerce. This regulation 40222, July 8, 2011). add the Arriel 2C2 engine model to the is within the scope of that authority ADDRESSES: For service information proposed AD applicability. The because it addresses an unsafe condition identified in this AD, contact commenter referenced European that is likely to exist or develop on Turbomeca, 40220 Tarnos, France; Aviation Safety Agency (EASA) AD products identified in this rulemaking phone: 33 (0)5 59 74 40 00; telex: 570 2012–0124, dated July 9, 2012, issued to action. 042; fax: 33 (0)5 59 74 45 15. You may include the Arriel 2C2 engine model Regulatory Findings view this service information at the requiring the TU166 modification. FAA, Engine & Propeller Directorate, 12 We agree. We added the Arriel 2C2 We have determined that this AD will New England Executive Park, engine model to the AD applicability. not have federalism implications under Burlington, MA. For information on the Executive Order 13132. This AD will availability of this material at the FAA, Request To Reduce Compliance Time not have a substantial direct effect on call 781–238–7125. Sikorsky requested that we reduce the the States, on the relationship between proposed AD compliance time for Arriel the national government and the States, Examining the AD Docket 2S2 engine models to within 100-cycles- or on the distribution of power and You may examine the AD docket on in-service (CIS), instead of 500 CIS, and, responsibilities among the various the Internet at http:// add a calendar time limitation of ‘‘but levels of government. www.regulations.gov; or in person at the not later than September 30, 2012,’’ For the reasons discussed above, I Docket Management Facility between 9 based on the EASA AD having a certify that this AD: a.m. and 5 p.m., Monday through compliance date of November 16, 2012. (1) Is not a ‘‘significant regulatory Friday, except Federal holidays. The AD The commenter believes that the action’’ under Executive Order 12866, docket contains this AD, the regulatory frequency of occurrence of the blade (2) Is not a ‘‘significant rule’’ under evaluation, any comments received, and ruptures, when the risk is analyzed per DOT Regulatory Policies and Procedures other information. The address for the the FAA Advisory Circular 39–8, (44 FR 11034, February 26, 1979),

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(3) Will not affect intrastate aviation after the effective date of this AD, whichever (i) Turbomeca Alert Mandatory Service in Alaska, and occurs first. Bulletin No. A292 72 4166 Version A, dated (4) Will not have a significant (2) For Arriel 2S2 turboshaft engines, March 23, 2012. accomplish the TU166 modification in (ii) Turbomeca Alert Mandatory Service economic impact, positive or negative, accordance with the instructions specified Bulletin No. A292 72 5166 Version A, dated on a substantial number of small entities within Turbomeca Alert MSB No. A292 72 June 18, 2012. under the criteria of the Regulatory 4166 Version A, dated March 23, 2012, when (4) The following service information was Flexibility Act. the GG Turbine is replaced or when the approved for IBR on August 12, 2011 (76 FR engine or Module M03 is going through 40222, July 8, 2011). List of Subjects in 14 CFR Part 39 overhaul or repair, or within 500 CIS after the (i) Turbomeca Alert Mandatory Service Air transportation, Aircraft, Aviation effective date of this AD, whichever occurs Bulletin (MSB) No. A292 72 3166 Version B, safety, Incorporation by reference, first. dated September 20, 2010. Safety. (3) For Arriel 2C2 turboshaft engines, (ii) Reserved. accomplish the TU166 modification in (5) For Turbomeca service information Adoption of the Amendment accordance with the instructions specified identified in this AD, contact Turbomeca, within Turbomeca Alert MSB No. A292 72 40220 Tarnos, France; phone: 33 (0)5 59 74 Accordingly, under the authority 5166 Version A, dated June 18, 2012, when 40 00; telex: 570 042; fax: 33 (0)5 59 74 45 delegated to me by the Administrator, the GG Turbine is replaced or when the 15. the FAA amends 14 CFR part 39 as engine or Module M03 is going through (6) You may view this service information follows: overhaul or repair or within 650 engine hours at FAA, Engine & Propeller Directorate, 12 after the effective date of this AD, whichever New England Executive Park, Burlington, PART 39—AIRWORTHINESS occurs first. MA. For information on the availability of DIRECTIVES (f) Credit for Actions Accomplished in this material at the FAA, call 781–238–7125. Accordance With Previous Service (7) You may view this service information ■ 1. The authority citation for part 39 Information at the National Archives and Records continues to read as follows: Administration (NARA). For information on (1) For Arriel 2B and 2B1 turboshaft the availability of this material at NARA, call Authority: 49 U.S.C. 106(g), 40113, 44701. engines, if you performed the TU166 202–741–6030, or go to: http:// modification before the effective date of this www.archives.gov/federal-register/cfr/ibr- § 39.13 [Amended] AD using Turbomeca Alert MSB No. A292 72 locations.html. 3166 Version A, dated August 17, 2010, you ■ 2. The FAA amends § 39.13 by met the requirements of paragraph (e)(1) of Issued in Burlington, Massachusetts, on removing airworthiness directive (AD) this AD. September 6, 2012. 2011–13–05, Amendment 39–16728 (76 (2) For Arriel 2C2 and 2S2 turboshaft Robert G. Mann, engines, if you performed the TU166 FR 40222, July 8, 2011), and adding the Acting Manager, Engine & Propeller following new AD: modification before the effective date of this AD using Turbomeca Alert MSB No. A292 72 Directorate, Aircraft Certification Service. 2012–18–18 Turbomeca S.A.: Amendment 2166 Version A, dated March 30, 2009, [FR Doc. 2012–22536 Filed 9–18–12; 8:45 am] 39–17195; Docket No. FAA–2011–0115; Version B, dated September 4, 2009, Version BILLING CODE 4910–13–P Directorate Identifier 2010–NE–40–AD. C, dated June 15, 2010, Version D, dated July (a) Effective Date 28, 2010, Version E, dated October 4, 2010, Version F, dated May 13, 2011, or Version G, DEPARTMENT OF TRANSPORTATION This airworthiness directive (AD) is dated March 26, 2012, you met the effective October 24, 2012. requirements of paragraph (e)(2) or (e)(3) as Federal Aviation Administration (b) Affected ADs applicable, of this AD. This AD supersedes AD 2011–13–05, (g) Alternative Methods of Compliance 14 CFR Part 39 Amendment 39–16728 (76 FR 40222, July 8, (AMOCs) [Docket No. FAA–2006–24785; Directorate 2011). The Manager, Engine Certification Office, Identifier 2006–NE–20–AD; Amendment 39– (c) Applicability may approve AMOCs for this AD. Use the 17196; AD 2012–19–01] procedures found in 14 CFR 39.19 to make This AD applies to Turbomeca S.A. Arriel your request. RIN 2120–AA64 2B, 2B1, 2S2, and 2C2 turboshaft engines not modified by TU166 modification. (h) Related Information Airworthiness Directives; Lycoming (1) For more information about this AD, (d) Unsafe Condition Engines Reciprocating Engines contact Rose Len, Aerospace Engineer, This AD was prompted by reports of an Engine Certification Office, FAA, Engine & AGENCY: Federal Aviation accident involving a twin-engine helicopter Propeller Directorate, 12 New England Administration (FAA), DOT. powered by two Arriel 2S2 engines. We are Executive Park, Burlington, MA 01803; ACTION: Final rule. issuing this AD to prevent rupture of a gas phone: 781–238–7772; fax: 781–238–7199; generator (GG) turbine blade, which could email: [email protected]. SUMMARY: We are superseding an result in an uncommanded in-flight (2) European Aviation Safety Agency AD existing airworthiness directive (AD) for shutdown and a forced landing or accident. 2012–0054, dated April 2, 2012, and AD certain Lycoming Engines (L)O–360, 2012–0124, dated July 9, 2012, also pertain (e) Compliance to this AD. (L)IO–360, AEIO–360, O–540, IO–540, Comply with this AD within the AEIO–540, (L)TIO–540, IO–580, and IO– compliance times specified, unless already (i) Material Incorporated by Reference 720 series reciprocating engines. That done. (1) The Director of the Federal Register AD currently requires replacing certain (1) For Arriel 2B and 2B1 turboshaft approved the incorporation by reference crankshafts in the affected engines. This engines, accomplish the TU166 modification (IBR) of the service information listed in this AD continues to require replacing in accordance with the instructions specified paragraph under 5 U.S.C. 552(a) and 1 CFR certain crankshafts, corrects the start within Turbomeca Alert Mandatory Service part 51. Bulletin (MSB) No. A292 72 3166 Version B, (2) You must use this service information date of affected engine models in dated September 20, 2010, when the GG as applicable to do the actions required by Lycoming Mandatory Service Bulletin Turbine is replaced or when the engine or this AD, unless the AD specifies otherwise. (MSB) No. 569A to the start date in Module M03 is going through overhaul or (3) The following service information was Supplement No. 1 to Lycoming MSB repair, or within 676 cycles-in-service (CIS) approved for IBR on October 24, 2012. No. 569A, dated May 27, 2009, and

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includes additional (formerly amend 14 CFR part 39 to supersede AD Costs of Compliance Paragraph experimental) IO–390, AEIO–390, and 2006–20–09, amendment 39–14778 (71 AEIO–580 series engine models having FR 57407, September 29, 2006). That We reviewed the cost estimate made affected crankshafts. This AD was AD applies to the specified products. in AD 2006–20–09 (71 FR 57407, prompted by Lycoming Engines The SNPRM published in the Federal September 29, 2006) when we added the discovering that the start date of affected Register on April 6, 2012 (77 FR 20743). new affected engine models to the engine models in MSB No. 569A is The original NPRM (76 FR 50152, SNPRM (77 FR 20743, April 6, 2012). incorrect and the need to include August 12, 2011) proposed to retain the We found that the cost estimate in AD additional engine models having the requirements of AD 2006–20–09 to 2006–20–09 included the number of affected crankshafts. We are issuing this replace certain crankshafts and to affected engines worldwide rather than AD to prevent failure of the crankshaft, correct the start date of MSB No. 569A those installed only on aircraft of U.S. which will result in total engine power from March 1, 1997 to January 1, 1997, registry. We also found that the cost loss, in-flight engine failure, and which is the start date in Supplement estimate in AD 2006–20–09 already possible loss of the aircraft. No. 1 to Lycoming MSB No. 569A, dated included the engine models that we DATES: This AD is effective October 24, May 27, 2009. The SNPRM proposed to have now added to the applicability of 2012. add IO–390, AEIO–390, and AEIO–580 this AD. Accordingly, we changed the The Director of the Federal Register series engine models that have the number of affected engine models from approved the incorporation by reference affected crankshafts to the applicability 3,774 to 2,831 and the overall cost of certain publications listed in the AD of the AD. The SNPRM also proposed to estimate from $60,384,000 to as of October 24, 2012. change Service Instruction No. 1009AS, $45,288,000. The Director of the Federal Register dated May 25, 2006, to Service Conclusion approved the incorporation by reference Instruction No. 1009AU, dated of a certain other publication listed in November 18, 2009, because Lycoming We reviewed the relevant data, the AD as of November 3, 2006 (71 FR updated this service instruction. The considered the comments received, and 57407, September 29, 2006). changes to Service Instruction 1009AS determined that air safety and the ADDRESSES: For service information do not affect the engine overhaul time. public interest require adopting the AD identified in this AD, contact Lycoming, as proposed. 652 Oliver Street, Williamsport, PA Comments 17701; phone: 570 323–6181; fax: 570– Costs of Compliance We gave the public the opportunity to 327–7101, or on the internet at participate in developing this AD. The We estimate that this AD affects 2,831 www.Lycoming.Textron.com. You may following presents the comment engines installed on airplanes of U.S. view this service information at the received on the proposal and the FAA’s registry. Because the AD compliance FAA, Engine & Propeller Directorate, 12 response to that comment. interval coincides with engine overhaul New England Executive Park, or other engine maintenance, we Burlington, MA. For information on the Request To Determine if AD Applies to estimate no additional labor hours will availability of this material at the FAA, IO–360 Engine be needed to comply with this AD. call 781–238–7125. A commenter asked if the AD applies Required parts will cost about $16,000 Examining the AD Docket to the Lycoming Engine IO–360–A3B6D. per engine. Based on these figures, we You may examine the AD docket on We reply that this engine is listed in estimate the total cost of the AD to be the Internet at http:// Lycoming MSB No. 569A, so if the $45,288,000. Our estimate is www.regulations.gov; or in person at the crankshaft serial number of that engine independent of any possible warranty Docket Management Facility between 9 is also listed in Table 5 of MSB No. coverage. a.m. and 5 p.m., Monday through 569A, then the AD applies. Authority for This Rulemaking Friday, except Federal holidays. The AD docket contains this AD, the regulatory Changes to Previous Credit Paragraph Title 49 of the United States Code evaluation, any comments received, and We reviewed our previous credit specifies the FAA’s authority to issue other information. The address for the paragraph in the SNPRM (77 FR 20743, rules on aviation safety. Subtitle I, Docket Office (phone: 800–647–5527) is April 6, 2012) and found that not all the Section 106, describes the authority of Document Management Facility, U.S. ADs and service bulletins (SBs) listed in the FAA Administrator. Subtitle VII, Department of Transportation, Docket paragraphs (f)(1) and (f)(2) of the Aviation Programs, describes in more Operations, M–30, West Building SNPRM resolved the unsafe conditions. detail the scope of the Agency’s Ground Floor, Room W12–140, 1200 Accordingly, we changed the Credit for authority. New Jersey Avenue SE., Washington, Previous Actions paragraphs, We are issuing this rulemaking under DC 20590. paragraphs (g)(1) and (g)(2) of this AD, the authority described in Subtitle VII, FOR FURTHER INFORMATION CONTACT: retaining only Lycoming MSB No. 569A Part A, Subpart III, Section 44701, Norm Perenson, Aerospace Engineer, and AD 2006–20–09 (71 FR 57407, ‘‘General requirements.’’ Under that New York Aircraft Certification Office, September 29, 2006) in the AD to section, Congress charges the FAA with FAA, Engine & Propeller Directorate, resolve the unsafe condition and promoting safe flight of civil aircraft in 1600 Stewart Avenue, Suite 410, deleting all other ADs and SBs air commerce by prescribing regulations Westbury, NY 11590; phone: 516–228– referenced in the SNPRM. Paragraphs for practices, methods, and procedures 7337; fax: 516–794–5531; email: (g)(1) and (g)(2) now read: ‘‘(1) If you the Administrator finds necessary for [email protected]. previously complied with AD 2006–20– safety in air commerce. This regulation SUPPLEMENTARY INFORMATION: 09 (71 FR 57407, September 29, 2006), is within the scope of that authority no further action is required. (2) If you because it addresses an unsafe condition Discussion previously accomplished Lycoming that is likely to exist or develop on We issued a supplemental notice of MSB No. 569A, no further action is products identified in this rulemaking proposed rulemaking (SNPRM) to required.’’ action.

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Regulatory Findings crankshafts listed by crankshaft serial not had the crankshaft replaced, no further number in Table 5 of Lycoming MSB 569A, action is required. We have determined that this AD will dated April 11, 2006. These applicable (4) If Table 1, Table 2, Table 3, or Table not have federalism implications under engines are manufactured new, rebuilt, 4 of Lycoming MSB No. 569A, dated April Executive Order 13132. This AD will overhauled, or had a crankshaft installed 11, 2006, lists your engine S/N, and Table 5 not have a substantial direct effect on after January 1, 1997, according to of MSB No. 569A, dated April 11, 2006, does the States, on the relationship between Supplement No. 1 to Lycoming MSB No. not list your crankshaft S/N, no further action the national government and the States, 569A, dated May 27, 2009. is required. (5) For engine model TIO–540–U2A, S/N or on the distribution of power and (d) Unsafe Condition responsibilities among the various L–4641–61A, no action is required. This AD results from Lycoming Engines levels of government. (h) Prohibition Against Installing Certain For the reasons discussed above, I discovering that the March 1, 1997 start date of affected engine models in Lycoming MSB Crankshafts certify that this AD: No. 569A, is incorrect. This AD also results After the effective date of this AD, do not (1) Is not a ‘‘significant regulatory from the need to include the IO–390, AEIO– install any crankshaft that has a S/N listed in action’’ under Executive Order 12866, 390, and AEIO–580 series engine models Table 5 of Lycoming MSB No. 569A, dated (2) Is not a ‘‘significant rule’’ under having affected crankshafts. We are issuing April 11, 2006, into any engine. DOT Regulatory Policies and Procedures this AD to prevent failure of the crankshaft, (i) Alternative Methods of Compliance (44 FR 11034, February 26, 1979), which will result in total engine power loss, (AMOC) (3) Will not affect intrastate aviation in-flight engine failure, and possible loss of in Alaska, and the aircraft. The Manager, New York Aircraft (4) Will not have a significant Certification Office, may approve AMOCs to (e) Compliance economic impact, positive or negative, this AD. Use the procedures in 14 CFR 39.19 on a substantial number of small entities You are responsible for having the actions to make your request. AMOCs approved for under the criteria of the Regulatory required by this AD performed within the AD 2002–19–03 (67 FR 59139, September 20, compliance times specified unless the 2002) and AD 2006–20–09 (71 FR 57407, Flexibility Act. actions have already been done. September 29, 2006) are approved as AMOCs for this AD. List of Subjects in 14 CFR Part 39 (f) Engines For Which Action Is Required Air transportation, Aircraft, Aviation If you did not previously comply with AD (j) Related Information safety, Incorporation by reference, 2006–20–09 or with MSB No. 569A, do the For more information about this AD, Safety. following: contact Norm Perenson, Aerospace Engineer, (1) If Table 1, Table 2, Table 3, or Table New York Aircraft Certification Office, FAA, Adoption of the Amendment 4 of Lycoming MSB No. 569A, dated April Engine & Propeller Directorate, 1600 Stewart Accordingly, under the authority 11, 2006, lists your engine serial number (S/ Avenue, Suite 410, Westbury, NY 11590; delegated to me by the Administrator, N), and Table 5 of MSB No. 569A, dated phone: 516–228–7337; fax: 516–794–5531; the FAA amends 14 CFR part 39 as April 11, 2006, lists your crankshaft S/N, email: [email protected]. replace the affected crankshaft with a follows: (k) Material Incorporated by Reference crankshaft that is not listed in Table 5 of (1) The Director of the Federal Register PART 39—AIRWORTHINESS MSB No. 569A at the earliest of the following: approved the incorporation by reference DIRECTIVES (i) The time of the next engine overhaul as (IBR) of the following service information under 5 U.S.C. 552(a) and 1 CFR part 51. ■ specified in Lycoming Service Instruction 1. The authority citation for part 39 No. 1009AU, dated November 18, 2009; or (2) You must use the following service continues to read as follows: (ii) The next separation of the crankcase, or information to do the actions required by this Authority: 49 U.S.C. 106(g), 40113, 44701. (iii) No later than 12 years from the time AD, unless the AD specifies otherwise. the crankshaft first entered service or was last (3) The following service information was § 39.13 [Amended] overhauled, whichever is later. approved for IBR on October 24, 2012. ■ 2. The FAA amends § 39.13 by (2) If Table 1, Table 2, Table 3, or Table (i) Lycoming Service Instruction No. 1009AU, dated November 18, 2009. removing airworthiness directive (AD) 4 of Lycoming MSB No. 569A, dated April 11, 2006, does not list your engine S/N, and (ii) Lycoming Mandatory Service Bulletin, 2006–20–09, Amendment 39–14778 (71 Table 5 of MSB No. 569A does list your Supplement No. 1 to Service Bulletin No. FR 57407), and adding the following crankshaft S/N (an affected crankshaft was 569A, dated May 27, 2009. new AD: installed as a replacement), replace the (4) The following service information was 2012–19–01 Lycoming Engines: affected crankshaft with a crankshaft that is approved for IBR on November 3, 2006 (71 Amendment 39–17196; Docket No. not listed in Table 5 of MSB No. 569A at the FR 57407, September 29, 2006). FAA–2006–24785; Directorate Identifier earliest of the following: (i) Lycoming Mandatory Service Bulletin 2006–NE–20–AD. (i) The time of the next engine overhaul as No. 569A, dated April 11, 2006. specified in Lycoming Service Instruction (ii) Reserved. (a) Effective Date No. 1009AU, dated November 18, 2009; or (5) For service information identified in This AD is effective October 24, 2012. (ii) The next separation of the crankcase, or this AD, contact Lycoming, 652 Oliver Street, (iii) No later than 12 years from the time Williamsport, PA 17701; phone: 570 323– (b) Affected ADs the crankshaft first entered service or was last 6181; fax: 570–327–7101, or on the Internet This AD supersedes AD 2006–20–09 (71 overhauled, whichever is later. at www.Lycoming.Textron.com. FR 57407, September 29, 2006). (6) You may view this service information (g) Credit for Previous Actions at the FAA, Engine & Propeller Directorate, (c) Applicability (1) If you previously complied with AD 12 New England Executive Park, Burlington, This AD applies to Lycoming Engines 2006–20–09 (71 FR 57407, September 29, MA. For information on the availability of (L)O–360, (L)IO–360, AEIO–360, IO–390, 2006), no further action is required. this material at the FAA, call 781–238–7125. AEIO–390, O–540, IO–540, AEIO–540, (2) If you previously accomplished (7) You may view this service information (L)TIO–540, IO–580, AEIO–580, and IO–720 Lycoming MSB No. 569A, no further action at the National Archives and Records series reciprocating engines listed by engine is required. Administration (NARA). For information on model number and serial number in Table 1, (3) If Lycoming Engines manufactured the availability of this material at NARA, call Table 2, Table 3, or Table 4 of Lycoming new, rebuilt, overhauled, or repaired your 202–741–6030, or go to: http:// Mandatory Service Bulletin (MSB) 569A, engine, or replaced the crankshaft in your www.archives.gov/federal-register/cfr/ibr- dated April 11, 2006, and those engines with engine before January 1, 1997, and you have locations.html.

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Issued in Burlington, Massachusetts, on availability of license exceptions in (b)(1)–(b)(5) of Section 744.11 include August 27, 2012. such transactions is limited. an illustrative list of activities that could Colleen M. D’Alessandro, DATES: Effective Date: This rule is be contrary to the national security or Assistant Manager, Engine & Directorate, effective September 19, 2012. foreign policy interests of the United Aircraft Certification Service. FOR FURTHER INFORMATION CONTACT: States. [FR Doc. 2012–22924 Filed 9–18–12; 8:45 am] Karen Nies-Vogel, Chair, End-User The six persons being added to the BILLING CODE 4910–13–P Review Committee, Office of the Entity List under this rule have been Assistant Secretary, Export determined by the ERC to be involved Administration, Bureau of Industry and in activities that are contrary to the DEPARTMENT OF COMMERCE Security, Department of Commerce, national security or foreign policy Phone: (202) 482–5991, Fax: (202) 482– interests of the United States. Two of Bureau of Industry and Security 3911, Email: [email protected]. the persons being added to the Entity List under this rule, Seyed Mahdi SUPPLEMENTARY INFORMATION: 15 CFR Part 744 Mousavi (‘‘Mousavi’’) and his company, Background Seyed Mousavi Trading, are located in [Docket No. 120813330–2330–01] The Entity List (Supplement No. 4 to the U.A.E. and in Iran. BIS’s RIN 0694–AF74 Part 744) provides notice to the public investigation of Mousavi and his that certain exports, reexports, and company, Seyed Mousavi Trading, Addition of Certain Persons to the transfers (in-country) to entities indicates that he, individually, and by Entity List; Removal of Person From identified on the Entity List require a and through his company, knowingly the Entity List Based on Removal license from BIS and that the acquired U.S.-origin items for Request; and Implementation of Entity availability of license exceptions in transshipment to Iran through the List Annual Review Changes such transactions is limited. Entities are U.A.E. and Hong Kong. Further, the investigation indicates that the AGENCY: Bureau of Industry and placed on the Entity List on the basis of certain sections of part 744 (Control shipments to Iran included shipments to Security, Commerce. a person on the Denied Persons List (see ACTION: Final rule. Policy: End-User and End-Use Based) of the EAR. section 764.3(a)(2) of the EAR). Therefore, pursuant to Section SUMMARY: The ERC, composed of representatives This rule amends the Export 744.11(b)(5) of the EAR, the ERC Administration Regulations (EAR) by of the Departments of Commerce (Chair), State, Defense, Energy and, determined that Mousavi and Seyed adding six persons under eight entries Mousavi Trading are knowingly and to the Entity List. The persons who are when appropriate, the Treasury, makes all decisions regarding additions to, willfully engaging in the transshipment added to the Entity List have been of U.S.-origin equipment subject to the determined by the U.S. Government to removals from, or other modifications to the Entity List. The ERC makes all EAR, without the required Department be acting contrary to the national of Commerce or Department of the security or foreign policy interests of the decisions to add an entry to the Entity List by majority vote and all decisions Treasury, Office of Foreign Assets United States. These persons will be Control (OFAC) export licenses, for use listed on the Entity List under Iran and to remove or modify an entry by unanimous vote. in Iran in violation of the embargo the United Arab Emirates (U.A.E.). against Iran as specified in the Iranian In addition, this rule removes one ERC Entity List decisions Transactions Regulations (31 CFR Part person from the Entity List, as the result Additions to the Entity List 560). Iran has been designated by the of a request for removal submitted by Secretary of State as a country that has the person, a review of information This rule implements the decision of repeatedly provided support for acts of provided in the removal request in the ERC to add six persons under eight international terrorism. In addition, accordance with the EAR, and further entries to the Entity List on the basis of pursuant to paragraph (b) of review conducted by the End-User Section 744.11 (license requirements Supplement No. 1 to Part 764 of the Review Committee (ERC). that apply to entities acting contrary to EAR, no person may, directly or Lastly, this rule amends the Entity the national security or foreign policy indirectly, export or reexport any item List on the basis of the annual review interests of the United States) of the subject to the EAR to or on behalf of a conducted by the ERC. The ERC EAR. The eight entries, two of which are denied person. conducts annual reviews to determine if alternate addresses of two of the persons The other four persons being added to any entries on the Entity List should be being added to the Entity List, consist of the Entity List under this rule, Fajr removed or modified. This rule reflects two entries in Iran and six entries in the Almadeena Electronics (FAE) and its the results of the annual review of U.A.E. owners, Alex Nouri Zadeh, Mohammad entities located in Belarus, Canada, the The ERC reviewed Section 744.11(b) Nayeb, and Jamal Hasan are all located People’s Republic of China (China), (Criteria for revising the Entity List) in in the U.A.E. BIS’s investigation Egypt, Germany, Hong Kong, Ireland, making the determination to add these indicates that FAE was listed as a Israel, Kuwait, Lebanon, Malaysia, persons to the Entity List. Under that recipient of hundreds of U.S.-origin Pakistan, Singapore, South Africa, paragraph, persons for which there is items. Although FAE claims that the Taiwan, and the United Kingdom. On reasonable cause to believe, based on items it receives remain in the U.A.E. the basis of the annual review, this rule specific and articulable facts, that the and that it is the end-user of record, removes fourteen entries, adds three persons have been involved, are FAE principals have not been able to entries, and amends thirty-six other involved, or pose a significant risk of provide information on the items’ entries. The Entity List provides notice being or becoming involved in activities current location or end-use. Moreover, to the public that certain exports, that are contrary to the national security BIS’s investigation indicates that FAE’s reexports, and transfers (in-country) to or foreign policy interests of the United office space is inappropriate for end-use entities identified on the Entity List States and those acting on behalf of such in situ of the items shipped. Therefore, require a license from the Bureau of persons may be added to the Entity List pursuant to Section 744.11(b)(4) and Industry and Security (BIS) and that pursuant to Section 744.11. Paragraphs (b)(5) of the EAR, the ERC determined

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that FAE, Alex Nouri Zadeh, —Jamal Haji, are implemented in stages as the ERC Mohammad Nayeb, and Jamal Hasan are No. 102 and 106, 1st Floor, K5 Entrance, completes its review of entities listed unreliable recipients of U.S.-origin Alshami Rest. Bldg., Al Muraqqabat Rd., under different destinations on the items and may be diverting such items Deira, Dubai, 184609 U.A.E.; and P.O. Entity List. This rule implements the through the U.A.E. to Iran, without the Box 184607, Dubai, U.A.E. results of the annual review for entities required Department of Commerce or (4) Mohammad Nayeb, No. 102 and located in Belarus, China, Egypt, Hong OFAC export licenses, for use in Iran in 106, 1st Floor, K5 Entrance, Alshami Kong, Kuwait, Malaysia, Pakistan, violation of the embargo against Iran as Rest. Bldg., Al Muraqqabat Rd., Deira, Singapore and South Africa. The specified in the Iranian Transactions Dubai, 184609 U.A.E.; and P.O. Box entities located in Canada, Germany, Regulations (31 CFR Part 560). As noted 184607, Dubai, U.A.E. Ireland, Israel, Lebanon, Taiwan, and above, Iran has been designated by the (5) Seyed Mahdi Mousavi, P.O. Box the United Kingdom were also reviewed Secretary of State as a country that has 49465, Dubai, U.A.E.; and, P.O. Box by the ERC, but no additional changes repeatedly provided support for acts of 7941, Dubai, U.A.E. (See alternate are being made to those entries as a international terrorism. addresses under Iran); and result of the annual review of the Entity For all eight entries for the six persons (6) Seyed Mousavi Trading, a.k.a., the List. being added to the Entity List, the ERC following two aliases: specified a license requirement for all 1. Removals From the Entity List on the items subject to the EAR and established —Hitech Computer Peripherals; and Basis of Annual Reviews —Hitech Corporation. a license application review policy of a This rule removes fourteen entries presumption of denial. The license P.O. Box 49465, Dubai, U.A.E.; and P.O. from the Entity List on the basis of the requirement applies to any transaction Box 7941, Dubai, U.A.E (See alternate annual review of the Entity List. The in which items are to be exported, addresses under Iran). persons removed were determined to no reexported, or transferred (in-country) to Removal From the Entity List longer meet the criteria for inclusion on such persons or in which such persons the Entity List. Specifically, this rule act as purchaser, intermediate This rule implements a decision of implements the decision of the ERC to consignee, ultimate consignee, or end- the ERC to remove one person, Raaziq remove one person located in China, user. In addition, no license exceptions International (Pvt.) Ltd., located in three persons located in Egypt, eight are available for exports, reexports, or Pakistan, from the Entity List as a result persons located in Hong Kong, and two transfers (in-country) to those persons of the person’s request for removal from persons located in Kuwait, as follows: being added to the Entity List. the Entity List. Based upon the review This final rule adds the following six of the information provided in the China persons under eight entries to the Entity removal request in accordance with (1) Tracy Little, Room 1104, North List: section 744.16 (Procedure for requesting Tower Yueziu City Plaza, No. 445 Dong removal or modification of an Entity Feng Zhong Rd., Guangzhou, China. Iran List entity), and after review by the (1) Seyed Mahdi Mousavi, BLK 6, No. ERC’s member agencies, the ERC Egypt 12 Beside Gilan Street, Rodstar Street, determined that this person should be (1) H Logic, Behind 14 Mahmoud Under Hafez Bridge, Tehran, Iran; and removed from the Entity List. Sedky St., El Ekbal, Alexandria, Egypt; No. 10–6th Floor Iranian Trade Center, The ERC decision to remove this and 11 Abd El-Hamid Shoman St., Valiasr Square, Tehran, Iran (See person took into account this person’s Nasser City, Cairo; alternate addresses under U.A.E.); and cooperation with the U.S. Government, (2) Hesham Yehia, Behind 14 (2) Seyed Mousavi Trading, a.k.a., the as well as this person’s assurances of Mahmoud Sedky St., El Ekbal, following two aliases: future compliance with the EAR. In Alexandria, Egypt; and —Hitech Computer Peripherals; and accordance with section 744.16(c), the (3) Najeeb Al Awadhi, 14 Mahmoud —Hitech Corporation. Deputy Assistant Secretary for Export Sedky St., El Ekbal, Alexandria, Egypt. BLK 6, No. 12 Beside Gilan Street, Administration has sent written Hong Kong Rodstar Street, Under Hafez Bridge, notification to this person, informing Tehran, Iran; and No. 10–6th Floor this entity of the ERC’s decision to (1) Amy So, Room 1701, New Iranian Trade Center, Valiasr Square, remove it from the Entity List. This final Commerce Centre, 19 On Sum St., Siu Tehran, Iran (See alternate addresses rule implements the decision to remove Lek Yuen, Shatin, N.T., Hong Kong; under U.A.E.). the following person located in Pakistan (2) Frank Lam, 1206–7, 12/F New from the Entity List: Victory House, Hong Kong; United Arab Emirates (3) Gary Chan, 4/F, Chinabest (1) Alex Nouri Zadeh, a.k.a. the Pakistan International Centre, 8 Kwai On Rd., following three aliases: (1) Raaziq International (Pvt.) Ltd., Kwai Chung, N.T., Hong Kong; —Alex Banai; House Number 32, F–2, Khusal Khan (4) Green Channel Electronics —Alex Norry; and Khattak Road, University Town, Company, Unit 902, Ricky Center, 36 —Nouri Zadeh, Peshawar, Pakistan. Chong Yip St., Kwun Tong, Kowloon, Hong Kong; No. 102 and 106, 1st Floor, K5 Entrance, Annual Review of the Entity List Alshami Rest. Bldg., Al Muraqqabat Rd., (5) Techlink Electronics, Unit 5, 18/F, Deira, Dubai, 184609 U.A.E.; and P.O. This rule also amends the Entity List Laurels Industrial Centre, 32 Tai Yau Box 184607, Dubai, U.A.E.; on the basis of the annual review of the St., San Po Kong, Kowloon, Hong Kong; (2) Fajr Almadeena Electronics, No. Entity List conducted by the ERC, in (6) TLG Electronics, Room 1701, New 102 and 106, 1st Floor, K5 Entrance, accordance with the procedures Commerce Centre, 19 On Sum St., Siu Alshami Rest. Bldg., Al Muraqqabat Rd., outlined in Supplement No. 5 to part Lek Yuen, Shatin, N.T., Hong Kong; Deira, Dubai, 184609 U.A.E.; and P.O. 744 (Procedures for End-User Review (7) Unite Chance Technology Box 184607, Dubai, U.A.E. Committee Entity List Decisions). The Company, Workshop A14, 5/F, Block A (3) Jamal Hasan, a.k.a. the following changes from the annual review of the Sheung Shui Plaza, 3 Ka Fu Close alias: Entity List that are approved by the ERC Sheung Shui, N.T., Hong Kong; and

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(8) Wing Shing Computer Components China, three entries under Malaysia, (4) Beijing Aerospace Automatic Company (H.K.) Ltd., Unit E, 9/F, Lladro twelve entries under Pakistan, one entry Control Institute (BICD), a.k.a., the Centre, 72 Hoi Yuen Rd., Kwon Tong, under Singapore, and five entries under following four aliases: Kin, Hong Kong. South Africa. The amendments clarify —12th Research Institute China the relationship between listed persons Kuwait Academy of Launch Vehicle and/or provide alternate addresses, Technology (CALT); (1) Advanced Technology General alternate spellings and acronyms and/or —Beijing Institute of Space Automatic Trading Company, Hawalli, Bin aliases for the names of the listed Control; Khaldoun St., Fadhalah Complex, persons, as follows: —Beijing Spaceflight Autocontrol Mizzanin, Office #4, P.O. Box 22682, Belarus Research Institute; and Safat, 13087, Kuwait. (See alternate —China Aerospace Science and address under U.A.E.); and (1) Belmicrosystems Research and Technology Corp First Academy 12th (2) Abubakr Abuelazm, Hawalli, Bin Design Center, Office 313, 12 Research Institute. Khaldoun St., Fadhalah Complex, Korzhenevsky Street, 20108 Minsk, Mizzanin, Office #4, P.O. Box 22682, 51 Yong Ding Road, Beijing; and No. 50 Republic of Belarus; and Korjenevsky Yongding Road, Haidian District, Safat, 13087, Kuwait (See alternate Str., 12, Minsk, 220108, Republic of address under U.A.E.). Beijing, China, 100854; Belarus; and 12, Korzhenevskogo Str., (5) Chinese Academy of Engineering The two entities removed from Minsk, 220108, Republic of Belarus; Kuwait are also listed in the U.A.E.; BIS Physics, a.k.a., the following seventeen (2) SOE Semiconductor Devices aliases: is not removing the two U.A.E. listings Factory, Office 313, 12 Korzhenevsky —Ninth Academy; from the Entity List at this time. The Street, 20108 Minsk, Republic of ERC will evaluate those entries as part —Southwest Computing Center; Belarus; and Korjenevsky Str., 12, —Southwest Institute of Applied of the annual review of the entities Minsk, 220108, Republic of Belarus; and located in the U.A.E. The removal of the Electronics; 12, Korzhenevskogo Str., Minsk, —Southwest Institute of Chemical above-referenced fourteen entities on 220108, Republic of Belarus; and the basis of annual review of the Entity Materials; (3) Vasili Kuntsevich, Office 313, 12 —Southwest Institute of Electronic List, and the removal of the one entity Korzhenevsky Street, 20108 Minsk, referenced above on the basis of a Engineering; Republic of Belarus; and Korjenevsky —Southwest Institute of Environmental Section 744.16 removal request that was Str., 12, Minsk, 220108, Republic of approved by the ERC, eliminates the Testing; Belarus; and 12, Korzhenevskogo Str., —Southwest Institute of Explosives and existing license requirements in Minsk, 220108, Republic of Belarus. Supplement No. 4 to part 744 for Chemical Engineering; exports, reexports and transfers (in- China —Southwest Institute of Fluid Physics; —Southwest Institute of General country) to these fifteen entities. (1) 33 Institute, a.k.a., the following However, the removal of these fifteen Designing and Assembly; three aliases: —Southwest Institute of Machining entities from the Entity List does not —Beijing Automation Control relieve persons of other obligations Technology; Equipment Institute (BACEI); —Southwest Institute of Materials; under part 744 of the EAR or under —Beijing Institute of Automatic Control —Southwest Institute of Nuclear other parts of the EAR. Neither the Equipment, China Haiying Physics and Chemistry (a.k.a., China removal of an entity from the Entity List Electromechanical Technology Academy of Engineering Physics nor the removal of Entity List-based Academy; and (CAEP)’s 902 Institute); license requirements relieves persons of —No. 33 Research Institute of the Third —Southwest Institute of Research and their obligations under General Academy of China Aerospace Science Applications of Special Materials Prohibition 5 in section 736.2(b)(5) of and Industry Corp (CASIC). Factory; the EAR which provides that, ‘‘you may Yungang, Fengtai District, Beijing; —Southwest Institute of Structural not, without a license, knowingly export Mechanics; or reexport any item subject to the EAR (2) 35 Institute, a.k.a., the following to an end-user or end-use that is four aliases: (all of preceding located in or near prohibited by part 744 of the EAR.’’ —Beijing Hangxing Machine Building Mianyang, Sichuan Province) Additionally these removals do not Corporation; —The High Power Laser Laboratory, relieve persons of their obligation to —Beijing Huahang Radio Measurements Shanghai; apply for export, reexport or in-country Research Institute, China Haiying —The Institute of Applied Physics and transfer licenses required by other Electronic Mechanical Technical Computational Mathematics, Beijing; provisions of the EAR. BIS strongly Research Academy; and urges the use of Supplement No. 3 to —Huahang Institute of Radio —901 Institute (P.O. Box 523 Chengdu, part 732 of the EAR, ‘‘BIS’s ‘Know Your Measurement; and 6100003); Customer’ Guidance and Red Flags,’’ —No. 35 Research Institute of the Third (6) First Department, Chinese when persons are involved in Academy of China Aerospace Science Academy of Launch Vehicle Technology transactions that are subject to the EAR. and Industry Corp (CASIC); (CALT), a.k.a., the following three (3) 54th Research Institute of China, aliases: 2. Modifications to the Entity List on the a.k.a., the following three aliases: —1st General Design Department (a.k.a., Basis of the Annual Review —China Electronics Technology Group Planning Department No 1) of the On the basis of decisions made by the Corp. (CETC) 54th Research Institute; China Aerospace Science & ERC during the annual review, in —Communication, Telemetry and Technology Corporation’s First addition to the removals described Telecontrol Research Institute (CTI); Academy (CALT); above, this rule amends thirty-six and —Beijing Institute of Astronautic entries currently on the Entity List. The —Shijiazhuang Communication Systems Engineering; and amended entries consist of three entries Observation and Control Technology —Beijing Institute of Space System under Belarus, twelve entries under Institute; Engineering.

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1 South Dahongmen Road, Fengtai Malaysia (7) Maple Engineering Pvt. Ltd. District, Beijing 100076; (1) Eco Biochem Sdn Bhd, No. 15, Consultants, Importers and Exporters, (7) Northwest Institute of Nuclear Jalan PJS 11/16, Taman Bandar Sunway, Islamabad; (8) Pakistan Atomic Energy Technology in the Science Research 46150 Petaling Jaya, Selangor D.E., Commission (PAEC), a.k.a., the (NINTF), Xi’an, Shanxi; and P.O. Box Malaysia; following alias: 69–12, Xi’an, Shaanxi Province 710024; (2) Festsco Marketing Sdn Bhd, 97C, (8) Northwestern Polytechnical Jalan Kenari 23, Puchong Jaya, Puchong, —Power Plant Workshops, University, a.k.a., the following three Selangor, Malaysia; and Suite D23, Tkt. P.O. Box 1114, Islamabad; and the aliases: 2, Plaza Pekeliling, Jalan Tun Razak, following three subordinate entities: —Northwestern Polytechnic University; Kuala Lumpur, Wilayah Persekkutuan, —National Development Complex —Northwest Polytechnic University; Malaysia; and (NDC), a.k.a., the following two and (3) VTE Industrial Automation Sdn aliases: —Northwest Polytechnical University. Bhd, 97C, Jalan Kenari 23, Puchong —National Development Centre; and 127 Yonyi Xilu, Xi’an 71002 Shaanxi, Jaya, Puchong, Selangor, Malaysia; and —National Defense Complex, Fateh China; and Youyi Xi Lu, Xi’an, Shaanxi, 45–02, Jalan Kenari 19A, Puchong Jaya, Jang, Punjab, Rawalpindi, Pakistan; China; and No. 1 Bianjia Cun, Xi’an; Puchong, Selangor 47100 Malaysia. and P.O. Box 2216, Islamabad, Pakistan; and West Friendship Rd. 59, Xi’an; and Pakistan 3 10 W Apt 3, Xi’an; —Pakistan Institute for Nuclear Science (9) Shanghai Institute of Space Power (1) Abdul Qader Khan Research and Technology (PINSTECH), Nilore, Sources, a.k.a., the following three Laboratories (AQKRL), a.k.a., the Islamabad; aliases: following seven aliases: —Nuclear reactors (including power —811th Research Institute, 8th —Abdul Qadeer Khan Research plants), fuel reprocessing and Academy, China Aerospace Science Laboratories; enrichment facilities, all uranium and Technology Corp. (CASC); —Dr. A.Q. Khan Research Laboratories; processing, conversion and —Shanghai Space Energy Research —Engineering Research Laboratories enrichment facilities, heavy water Institute; and (ERL); production facilities and any collocated ammonia plants. —Shanghai Space Power Supply —Institute of Industrial Control Systems Research Institute. (IICS); (9) People’s Steel Mills, Javedan Nagar, Manghopir Road, Karachi 75890, 388 Cang Wu Road, Shanghai; and —Kahuta Nuclear Facility; Pakistan; Dongchuan Rd., 2965 Shanghai; —Kahuta Research Facility; and (10) Space and Upper Atmosphere (10) Southwest Research Institute of —Khan Research Laboratories (KRL). Dhoke Nusah, Dakhli Gangal, Near Research Commission (SUPARCO), Electronics Technology, a.k.a., the a.k.a., the following alias: following three aliases: Chatri Chowk, P.O. Box 1398, Rawalpindi 46000, Pakistan; and P.O. —Space and Upper Atmospheric —10th Research Institute of China Research Commission. Electronic Technology Group Corp Box 852, Rawalpindi, Pakistan; and P.O. (CETC); Box 502, Kahuta, Pakistan; and 24 Sector 28, Gulzar-e-Hijiri, Off University Road, P.O. Box 8402, Karachi 75270; —CETC 10th Research Institute; and Mauve Area G 9/1, GPO Box 2891, (11) Wah Chemical Product Plant, —Southwest Institute of Electronic Islamabad; a.k.a., the following alias: Technology (SWIET). (2) Al Technique Corporation of Pakistan, Ltd. (ATCOP), 4th Floor, —Wah Nobel Chemicals Limited, No. 6 Yong Xin Street, Chengdu; and Dodhy Plaza, 52 Jinnah Avenue, P.O. Wah Cantonment, Rawalpindi, Pakistan; No. 90 Babao Street, Chengdu; and 48 Box 1878, Islamabad, Pakistan; Chadianzi Street East, Jinniu District, and (3) Allied Trading Co., a.k.a., the (12) Wah Munitions Plant, Wah Chengdu, 610036; following alias: (11) Xi’an Research Institute of Cantonment, Rawalpindi, Pakistan. —UCB Arcade. Navigation Technology, a.k.a., the Singapore following two aliases: 2, Wazir Mansion, main Aiwan-e-tijarat Road, Boulton Market, Karachi—74000, (1) Cyberinn PTE LTD, a.k.a., the —20th Research Institute of China following alias: Electronic Technology Group Corp Karachi, Pakistan (See alternate address under UCB Arcade in Uganda); —Index Consultancy & Services PTE (CETC); and LTD. —CETC 20th Research Institute. (4) Defense Science and Technology Organization (DESTO), a.k.a., the 1 Rochor Canal Road, #06–07 Sim Lim 1 Baisha Rd., Xi’an, Shaanxi; and following two aliases: Square, 188504, Singapore. (12) Xiangdong Machinery Factory, within the China Aerospace Science and —Defense Science and Technology South Africa Center; and Industry Corp’s (CASIC) Third (1) Gunther Migeotte, 1 River Street, Academy, a.k.a., the following two —Chaklala Defense Science and Technology Organization. Rosebank, Cape Town, 7700, South aliases: Africa; and P.O. Box 36623, Menlo Park, 182 Sir Syed Road, Chaklala Cantt, —China Haiying Electromechanical 0102, South Africa; and 16 Manu Rua, Rawalpindi 46200, Pakistan; and Technology Academy; and 262 Sprite Avenue, Faerie Glen, 0081, Headquarters, Chakklala Cantt, —China Haiying Science & Technology South Africa; and Suite 17–106, The Rawalpindi, 46200, Pakistan; Corporation (a.k.a., the following four Waverley Business Park, Wyecroft Rd., aliases: 239 Factory; Beijing Xinghang (5) High Technologies, Ltd. (HTL), Mowbray, Cape Town, 7925, South Electromechanical Equipment a.k.a., the following alias: Africa (See alternate address under Factory; Beijing Hangxing Machinery —High Technology, Ltd., Norway); Manufacturing Corporation; and Islamabad; (2) Icarus Marine (Pty) Ltd., 1 River Hangxing Machine Building (6) Machinery Master Enterprises Ltd. Street, Rosebank, Cape Town, South Company). (MME), Islamabad; Africa; and Suite 17–106, The Waverley

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Business Park, Wyecroft Rd., Mowbray, China significant for purposes of Executive Cape Town, 7925, South Africa; (1) Sichuan University, No. 24 South Order 12866. 2. Notwithstanding any other (3) Ralph Brucher, P.O. Box 9523, Section 1, Yihuan Road, Chengdu, provision of law, no person is required Centurion 0046, South Africa; and Unit China, 610065; and No. 29 Jiuyanqiao to respond to nor be subject to a penalty 4, Techni Park East, Alwyn Street, Wangjiang Road, Chengdu, China, for failure to comply with a collection Meyerspark Silverton, Pretoria, Gauteng, 610064; and People’s South Road, of information, subject to the South Africa; and Batter St, Techniec Chengdu, China, 610041; and Shuangliu requirements of the Paperwork Park East, Silverton, Pretoria, 0184, County, Chuanda Road, Chengdu, Reduction Act of 1995 (44 U.S.C. 3501 South Africa; and 26 Jakaranda St, China, 610207; and et seq.) (PRA), unless that collection of Centurion, Gauteng 0157, South Africa; (2) University of Electronic Science information displays a currently valid and Jacaranda St, Hennopspark Ext 7, and Technology of China, No. 4, 2nd Centurion, South Africa; Office of Management and Budget Section, North Jianshe Road, Chengdu, (OMB) Control Number. This regulation (4) Scavenger Manufacturing (Pty) 610054. Ltd., P.O. Box 288, Silverton, Pretoria involves collections previously 0127, South Africa; and Unit 4, Techni Uganda approved by the OMB under control numbers 0694–0088, ‘‘Multi-Purpose Park East, Alwyn Street, Meyerspark (1) UCB Arcade, a.k.a., the following Application,’’ which carries a burden Silverton, Pretoria, Gauteng, South alias: Africa; and Batter St, Techniec Park hour estimate of 43.8 minutes for a —Allied Trading Co., P.O. Box 5999, manual or electronic submission. Total East, Silverton, Pretoria, 0184, South Kampala, Uganda (See alternate Africa; and 26 Jakaranda St, Centurion, burden hours associated with the PRA address under Allied Trading Co. in and OMB control number 0694–0088 Gauteng 0157, South Africa; and Pakistan). Jacaranda St, Hennopspark Ext 7, are not expected to increase as a result Centurion, South Africa; and P.O. Box Savings Clause of this rule. You may send comments regarding the collection of information 9523, Centurion 0046, South Africa; and Shipments of items removed from (5) Shawn Hugo De Villiers, 1 River associated with this rule, including eligibility for a License Exception or suggestions for reducing the burden, to Street, Rosebank, Cape Town 7700, export or reexport without a license Jasmeet K. Seehra, Office of South Africa; and Myburgii Street, (NLR) as a result of this regulatory Management and Budget (OMB), by Somerset West, Cape Town, South action that were en route aboard a email to Africa; and Suite 17–106, The Waverley carrier to a port of export or reexport, on [email protected], or by Business Park, Wyecroft Rd., Mowbray, [INSERT DATE OF PUBLICATION], fax to (202) 395–7285. Cape Town, 7925, South Africa. pursuant to actual orders for export or 3. This rule does not contain policies 3. Additions to the Entity List reexport to a foreign destination, may with Federalism implications as that On the basis of decisions made by the proceed to that destination under the term is defined in Executive Order ERC during the annual review of the previous eligibility for a License 13132. Entity List, in addition to the removals Exception or export or reexport without 4. The provisions of the and modifications described above, this a license (NLR). Administrative Procedure Act (5 U.S.C. rule adds two separate entries under Although the Export Administration 553) requiring notice of proposed China for two entities formerly listed on Act expired on August 20, 2001, the rulemaking, the opportunity for public the Entity List under China as aliases of President, through Executive Order comment and a delay in effective date the Chinese Academy of Engineering 13222 of August 17, 2001, 3 CFR, 2001 are inapplicable because this regulation Physics: Sichuan University and Comp., p. 783 (2002), as extended by the involves a military or foreign affairs University of Electronic Science and Notice of August 15, 2012, 77 FR 49699 function of the United States. (See 5 Technology of China. Also on the basis (August 16, 2012), has continued the U.S.C. § 553(a)(1)). BIS implements this of decisions made by the ERC during the Export Administration Regulations in rule to protect U.S. national security or annual review of the Entity List, this effect under the International foreign policy interests by preventing rule adds one entry under Uganda, UCB Emergency Economic Powers Act. BIS items from being exported, reexported, Arcade, as an alternate address for continues to carry out the provisions of or transferred (in country) to the persons Allied Trading Co., an entity listed on the Export Administration Act, as being added to the Entity List. If this the Entity List under Pakistan, therefore appropriate and to the extent permitted rule were delayed to allow for notice creating a new country listing on the by law, pursuant to Executive Order and comment and a delay in effective Entity List. The ERC determined that the 13222. date, then entities being added to the licensing requirements and licensing Entity List by this action would review policies for all three of these Rulemaking Requirements continue to be able to receive items entries should mirror those in entries in 1. Executive Orders 13563 and 12866 without a license and to conduct which they were previously located. direct agencies to assess all costs and activities contrary to the national Therefore, for the entries for Sichuan benefits of available regulatory security or foreign policy interests of the University and University of Electronic alternatives and, if regulation is United States. In addition, because these Science and Technology of China, the necessary, to select regulatory parties may receive notice of the U.S. specified license requirement is all approaches that maximize net benefits Government’s intention to place these items subject to the EAR and the (including potential economic, entities on the Entity List once a final established license review policy is environmental, public health and safety rule was published it would create an case-by-case basis. For UCB Arcade, the effects, distributive impacts, and incentive for these persons to either specified license requirement is all equity). Executive Order 13563 accelerate receiving items subject to the items subject to the EAR and the emphasizes the importance of EAR to conduct activities that are established license review policy is quantifying both costs and benefits, of contrary to the national security or presumption of denial. The three reducing costs, of harmonizing rules, foreign policy interests of the United additions to the Entity List as a result of and of promoting flexibility. This rule States and/or to take steps to set up the annual review are as follows: has been determined to be not additional aliases, change addresses,

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and take other steps to try to limit the ■ (a) By revising under Belarus, three ‘‘Wing Shing Computer Components impact of the listing on the Entity List Belarusian entities; Company (H.K.) Ltd., Unit E, 9/F, Lladro once a final rule was published. Further, ■ (b) By removing under China, the Centre, 72 Hoi Yuen Rd., Kwon Tong, no other law requires that a notice of Chinese entity: ‘‘Tracy Little, Room Kin, Hong Kong.’’; proposed rulemaking and an 1104, North Tower Yueziu City Plaza, ■ (g) By adding under Iran, in opportunity for public comment be No. 445 Dong Feng Zhong Rd., alphabetical order, two Iranian entities; given for this rule. Because a notice of Guangzhou, China.’’; ■ (h) By removing the destination of proposed rulemaking and an ■ (c) By revising under China, twelve Kuwait under the Country column and opportunity for public comment are not Chinese entities; the two Kuwaiti entities: ‘‘Advanced required to be given for this rule by 5 ■ (d) By adding under China, in Technology General Trading Company, U.S.C. 553, or by any other law, the alphabetical order, two Chinese entities Hawalli, Bin Khaldoun St., Fadhalah analytical requirements of the for ‘‘Sichuan University’’ and Complex, Mizzanin, Office #4, P.O. Box Regulatory Flexibility Act, 5 U.S.C. 601 ‘‘University of Electronic Science and 22682, Safat, 13087, Kuwait.’’; and et seq., are not applicable. Technology of China’’; ‘‘Abubakr Abuelazm, Hawalli, Bin ■ Khaldoun St., Fadhalah Complex, List of Subjects in 15 CFR Part 744 (e) By removing under Egypt, three Egyptian entities: ‘‘H Logic, Behind 14 Mizzanin, Office #4, P.O. Box 22682, Exports, Reporting and recordkeeping Mahmoud Sedky St., El Ekbal, Safat, 13087, Kuwait.’’; requirements, Terrorism. Alexandria, Egypt; and 11 Abd El- ■ (i) By revising, under Malaysia, three Accordingly, part 744 of the Export Hamid Shoman St., Nasser City, Cairo.’’; Malaysian entities; Administration Regulations (15 CFR ‘‘Hesham Yehia, Behind 14 Mahmoud ■ (j) By removing under Pakistan, the parts 730–774) is amended as follows: Sedky St., El Ekbal, Alexandria, Egypt.’’; Pakistani entity: ‘‘Raaziq International and ‘‘Najeeb Al Awadhi, 14 Mahmoud (Pvt.) Ltd., House Number 32, F–2, PART 744—[AMENDED] Sedky St., El Ekbal, Alexandria, Egypt.’’; Khusal Khan Khattak Road, University ■ ■ 1. The authority citation for 15 CFR (f) By removing under Hong Kong, Town, Peshawar, Pakistan.’’; ■ part 744 is amended to read as follows: eight Hong Kong entities: ‘‘Amy So, (k) By revising under Pakistan, twelve Room 1701, New Commerce Centre, 19 Pakistani entities; Authority: 50 U.S.C. app. 2401 et seq.; 50 On Sum St., Siu Lek Yuen, Shatin, N.T., ■ (l) By revising under Singapore, one U.S.C. 1701 et seq.; 22 U.S.C. 3201 et seq.; Hong Kong.’’; ‘‘Frank Lam, 1206–7, 12/ Singaporean entity; 42 U.S.C. 2139a; 22 U.S.C. 7201 et seq.; 22 ■ U.S.C. 7210; E.O. 12058, 43 FR 20947, 3 CFR, F New Victory House, Hong Kong.’’; (m) By revising under South Africa, 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, ‘‘Gary Chan, 4/F, Chinabest five South African entities; 3 CFR, 1993 Comp., p. 608; E.O. 12938, 59 International Centre, 8 Kwai On Rd., ■ (n) By adding, in alphabetical order, FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. Kwai Chung, N.T., Hong Kong.’’; ‘‘Green the destination of Uganda under the 12947, 60 FR 5079, 3 CFR, 1995 Comp., p. Channel Electronics Company, Unit Country column and one Ugandan 356; E.O. 13026, 61 FR 58767, 3 CFR, 1996 902, Ricky Center, 36 Chong Yip St., entity; Comp., p. 228; E.O. 13099, 63 FR 45167, 3 Kwun Tong, Kowloon, Hong Kong.’’; ■ (o) By removing, under United Arab CFR, 1998 Comp., p. 208; E.O. 13222, 66 FR ‘‘Techlink Electronics, Unit 5, 18/F, Emirates, the parenthetical phrase ‘‘(See 44025, 3 CFR, 2001 Comp., p. 783; E.O. Laurels Industrial Centre, 32 Tai Yau alternate address under Kuwait)’’ from 13224, 66 FR 49079, 3 CFR, 2001 Comp., p. 786; Notice of September 21, 2011, 76 FR St., San Po Kong, Kowloon, Hong two entities, Abubakr Abuelazm and 59001 (September, 22, 2011); Notice of Kong.’’; ‘‘TLG Electronics, Room 1701, Advanced Technology General Trading November 9, 2011, 76 FR 70319 (November New Commerce Centre, 19 On Sum St., Company; and 10, 2011); Notice of January 19, 2012, 77 FR Siu Lek Yuen, Shatin, N.T., Hong ■ (p) By adding under United Arab 3067 (January 20, 2012); Notice of August 15, Kong.’’; ‘‘Unite Chance Technology Emirates, in alphabetical order, six 2012, 77 FR 49699 (August 16, 2012). Company, Workshop A14, 5/F, Block A Emirati entities. ■ 2. Supplement No. 4 to part 744 is Sheung Shui Plaza, 3 Ka Fu Close The additions and revisions read as amended: Sheung Shui, N.T., Hong Kong’’; and follows:

SUPPLEMENT NO. 4 TO PART 744—ENTITY LIST

Federal Register Country Entity License requirement License review policy citation

******* Belarus ...... Belmicrosystems Research and De- For all items subject to Presumption of denial 75 FR 36516, 6/28/10. sign Center, Office 313, 12 the EAR. (See 77 FR 58006, 9/19/12. Korzhenevsky Street, 20108 § 744.11 of the EAR). Minsk, Republic of Belarus; and Korjenevsky Str., 12, Minsk, 220108, Republic of Belarus; and 12, Korzhenevskogo Str., Minsk, 220108, Republic of Belarus. SOE Semiconductor Devices Fac- For all items subject to Presumption of denial 75 FR 36516, 6/28/10. tory, Office 313, 12 Korzhenevsky the EAR. (See 77 FR 58006, 9/19/12. Street, 20108 Minsk, Republic of § 744.11 of the EAR). Belarus; and Korjenevsky Str., 12, Minsk, 220108, Republic of Belarus; and 12, Korzhenevskogo Str., Minsk, 220108, Republic of Belarus.

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SUPPLEMENT NO. 4 TO PART 744—ENTITY LIST—Continued

Federal Register Country Entity License requirement License review policy citation

Vasili Kuntsevich, Office 313, 12 For all items subject to Presumption of denial 75 FR 36516, 6/28/10. Korzhenevsky Street, 20108 the EAR. (See 77 FR 58006, 9/19/12. Minsk, Republic of Belarus; and § 744.11 of the EAR). Korjenevsky Str., 12, Minsk, 220108, Republic of Belarus; and 12, Korzhenevskogo Str., Minsk, 220108, Republic of Belarus.

******* China, People’s Republic of

******* 33 Institute, a.k.a., the following For all items subject to See § 744.3(d) of this 66 FR 24266, 5/14/01. three aliases: the EAR having a part 75 FR 78883, —Beijing Automation Control Equip- classification other 12/17/10. ment Institute (BACEI); than EAR99 or a clas- 77 FR 58006, 9/19/12. —Beijing Institute of Automatic sification where the Control Equipment, China Haiying third through fifth dig- Electromechanical Technology its of the ECCN are Academy; and ‘‘999’’, e.g., XX999. —No. 33 Research Institute of the Third Academy of China Aero- space Science and Industry Corp (CASIC). Yungang, Fengtai District, Beijing. 35 Institute, a.k.a., the following For all items subject to See § 744.3(d) of this 66 FR 24266, 5/14/01. four aliases: the EAR having a part 75 FR 78883, —Beijing Hangxing Machine Build- classification other 12/17/10. ing Corporation; than EAR99 or a clas- 77 FR 58006, 9/19/12. —Beijing Huahang Radio Measure- sification where the ments Research Institute, China third through fifth dig- Haiying Electronic Mechanical its of the ECCN are Technical Research Academy; ‘‘999’’, e.g., XX999. —Huahang Institute of Radio Meas- urement; and —No. 35 Research Institute of the Third Academy of China Aero- space Science and Industry Corp (CASIC). 54th Research Institute of China, For all items subject to See § 744.3(d) of this 66 FR 24266, 5/14/01. a.k.a., the following three aliases: the EAR having a part 75 FR 78883, —China Electronics Technology classification other 12/17/10. Group Corp. (CETC) 54th Re- than EAR99 or a clas- 77 FR 58006, 9/19/12. search Institute; sification where the —Communication, Telemetry and third through fifth dig- Telecontrol Research Institute its of the ECCN are (CTI); and ‘‘999’’, e.g., XX999. —Shijiazhuang Communication Ob- servation and Control Technology Institute.

******* Beijing Aerospace Automatic Con- For all items subject to See § 744.3 of this part 64 FR 28909, trol Institute (BICD), a.k.a., the the EAR having a 5/28/99. following four aliases: classification other 75 FR 78883, —12th Research Institute China than EAR99. 12/17/10. Academy of Launch Vehicle 77 FR 58006, 9/19/12. Technology (CALT); —Beijing Institute of Space Auto- matic Control; —Beijing Spaceflight Autocontrol Research Institute; and —China Aerospace Science and Technology Corp First Academy 12th Research Institute. 51 Yong Ding Road, Beijing; and No. 50 Yongding Road, Haidian District, Beijing, China, 100854.

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SUPPLEMENT NO. 4 TO PART 744—ENTITY LIST—Continued

Federal Register Country Entity License requirement License review policy citation

******* Chinese Academy of Engineering For all items subject to Case-by-case basis 62 FR 35334, Physics, a.k.a., the following sev- the EAR. 6/30/97. enteen aliases: 66 FR 24266, 5/14/01. —Ninth Academy; 75 FR 78883, —Southwest Computing Center; 12/17/10. —Southwest Institute of Applied 76 FR 21628, 4/18/11. Electronics; 76 FR 50407, 8/15/11. —Southwest Institute of Chemical 77 FR 58006, 9/19/12. Materials; —Southwest Institute of Electronic Engineering; —Southwest Institute of Environ- mental Testing; —Southwest Institute of Explosives and Chemical Engineering; —Southwest Institute of Fluid Phys- ics; —Southwest Institute of General Designing and Assembly; —Southwest Institute of Machining Technology; —Southwest Institute of Materials; —Southwest Institute of Nuclear Physics and Chemistry (a.k.a., China Academy of Engineering Physics (CAEP)’s 902 Institute); —Southwest Institute of Research and Applications of Special Mate- rials Factory; —Southwest Institute of Structural Mechanics; (all of preceding located in or near Mianyang, Sichuan Province) —The High Power Laser Labora- tory, Shanghai; —The Institute of Applied Physics and Computational Mathematics, Beijing; and —901 Institute (P.O. Box 523 Chengdu, 6100003).

******* First Department, Chinese Acad- For all items subject to See § 744.3(d) of this 66 FR 24266, 5/14/01. emy of Launch Vehicle Tech- the EAR. part 75 FR 78883, nology (CALT), a.k.a., the fol- 12/17/10. lowing three aliases: 77 FR 58006, 9/19/12. —1st General Design Department (a.k.a., Planning Department No 1) of the China Aerospace Science & Technology Corpora- tion’s First Academy (CALT); —Beijing Institute of Astronautic Systems Engineering; and —Beijing Institute of Space System Engineering. 1 South Dahongmen Road, Fengtai District, Beijing 100076..

******* Northwest Institute of Nuclear Tech- For all items subject to See § 744.2 of this part 64 FR 28909, nology in the Science Research the EAR. 5/28/99. (NINTF), Xi’an, Shanxi; and P.O. 75 FR 78883, Box 69–12, Xi’an, Shaanxi Prov- 12/17/10. ince 710024. 77 FR 58006, 9/19/12.

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Northwestern Polytechnical Univer- For all items subject to See § 744.3(d) of this 66 FR 24266, 5/14/01. sity, a.k.a., the following three the EAR having a part 75 FR 78883, aliases: classification other 12/17/10. —Northwestern Polytechnic Univer- than EAR99 or a clas- 77 FR 58006, 9/19/12. sity; sification where the —Northwest Polytechnic University; third through fifth dig- and its of the ECCN are —Northwest Polytechnical Univer- ‘‘999’’, e.g., XX999. sity. 127 Yonyi Xilu, Xi’an 71002 Shaanxi, China; and Youyi Xi Lu, Xi’an, Shaanxi, China; and No. 1 Bianjia Cun, Xi’an; and West Friendship Rd. 59, Xi’an; and 3 10 W Apt 3, Xi’an.

******* Shanghai Institute of Space Power For all items subject to See § 744.3 of this part 64 FR 28909, Sources, a.k.a., the following the EAR having a 5/28/99. three aliases: classification other 75 FR 78883, —811th Research Institute, 8th than EAR99. 12/17/10. Academy, China Aerospace 77 FR 58006, 9/19/12. Science and Technology Corp. (CASC); —Shanghai Space Energy Re- search Institute; and —Shanghai Space Power Supply Research Institute. 388 Cang Wu Road, Shanghai; and Dongchuan Rd., 2965 Shanghai. Sichuan University, No. 24 South For all items subject to Case-by-case basis. 77 FR 58006, 9/19/12. Section 1, Yihuan Road, the EAR. Chengdu, China, 610065; and No. 29 Jiuyanqiao Wangjiang Road, Chengdu, China, 610064; and People’s South Road, Chengdu, China, 610041; and Shuangliu County, Chuanda Road, Chengdu, China, 610207. Southwest Research Institute of For all items subject to See § 744.3(d) of this 66 FR 24267, 5/14/01. Electronics Technology, a.k.a., the EAR having a part 75 FR 78883, the following three aliases: classification other 12/17/10. —10th Research Institute of China than EAR99 or a clas- 77 FR 58006, 9/19/12. Electronic Technology Group sification where the Corp (CETC); third through fifth dig- —CETC 10th Research Institute; its of the ECCN are and. ‘‘999’’, e.g., XX999. —Southwest Institute of Electronic Technology (SWIET); No. 6 Yong Xin Street, Chengdu; and No. 90 Babao Street, Chengdu; and 48 Chadianzi Street East, Jinniu District, Chengdu, 610036.

******* University of Electronic Science and For all items subject to Case-by-case basis. 77 FR 58006, 9/19/12. Technology of China, No. 4, 2nd the EAR. Section, North Jianshe Road, Chengdu, 610054.

******* Xi’an Research Institute of Naviga- For all items subject to See § 744.3(d) of this 66 FR 24267, 5/14/01. tion Technology, a.k.a., the fol- the EAR having a part 66 FR 24267, 5/14/01. lowing two aliases: classification other 75 FR 78883, —20th Research Institute of China than EAR99. 12/17/10. Electronic Technology Group 77 FR 58006, 9/19/12. Corp (CETC); and —CETC 20th Research Institute. Baisha Rd., Xi’an, Shaanxi.

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******* Xiangdong Machinery Factory, with- For all items subject to See § 744.3(d) of this 66 FR 24267, 5/14/01. in the China Aerospace Science the EAR. part 75 FR 78883, and Industry Corp’s (CASIC) 12/17/10. Third Academy, a.k.a., the fol- 77 FR 58006, 9/19/12. lowing two aliases: —China Haiying Electromechanical Technology Academy; and —China Haiying Science & Tech- nology Corporation (a.k.a., the following four aliases: 239 Fac- tory; Beijing Xinghang Electromechanical Equipment Factory; Beijing Hangxing Ma- chinery Manufacturing Corpora- tion; and Hangxing Machine Building Company).

******* Iran

******* Seyed Mahdi Mousavi, BLK 6, No. For all items subject to Presumption of denial 77 FR 58006, 9/19/12. 12 Beside Gilan Street, Rodstar the EAR. (See Street, Under Hafez Bridge, § 744.11 of the EAR). Tehran, Iran; and No. 10–6th Floor Iranian Trade Center, Valiasr Square, Tehran, Iran (See alternate addresses under U.A.E.). Seyed Mousavi Trading, a.k.a., the For all items subject to Presumption of denial 77 FR 58006, 9/19/12. following two aliases: the EAR. (See —Hitech Computer Peripherals; and § 744.11 of the EAR). —Hitech Corporation. BLK 6, No. 12 Beside Gilan Street, Rodstar Street, Under Hafez Bridge, Tehran, Iran; and No. 10– 6th Floor Iranian Trade Center, Valiasr Square, Tehran, Iran (See alternate addresses under U.A.E.).

******* Malaysia

******* Eco Biochem Sdn Bhd, No. 15, For all items subject to Presumption of denial 73 FR 54508, Jalan PJS 11/16, Taman Bandar the EAR. (See 9/22/08. Sunway, 46150 Petaling Jaya, § 744.11 of the EAR). 77 FR 58006, 9/19/12. Selangor D.E., Malaysia.

******* Festsco Marketing Sdn Bhd, 97C, For all items subject to Presumption of denial 73 FR 54508, Jalan Kenari 23, Puchong Jaya, the EAR. (See 9/22/08. Puchong, Selangor, Malaysia; § 744.11 of the EAR). 77 FR 58006, 9/19/12. and Suite D23, Tkt. 2, Plaza Pekeliling, Jalan Tun Razak, Kuala Lumpur, Wilayah Persekkutuan, Malaysia.

******* VTE Industrial Automation Sdn Bhd, For all items subject to Presumption of denial 73 FR 54508, 97C, Jalan Kenari 23, Puchong the EAR. (See 9/22/08. Jaya, Puchong, Selangor, Malay- § 744.11 of the EAR). 76 FR 78146, sia; and 45–02, Jalan Kenari 12/16/11. 19A, Puchong Jaya, Puchong, 77 FR 58006, 9/19/12. Selangor, 47100 Malaysia.

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******* Pakistan Abdul Qader Khan Research Lab- For all items subject to Case-by-case for all 63 FR 64322, 11/19/98. oratories (AQKRL), a.k.a., the fol- the EAR. items listed on the 65 FR 14444, 03/17/00. lowing seven aliases: CCL. Presumption of 66 FR 50090, 10/01/01. —Abdul Qadeer Khan Research approval for EAR99 77 FR 58006, 9/19/12. Laboratories; items. —Dr. A.Q. Khan Research Labora- tories; —Engineering Research Labora- tories (ERL);—Institute of Indus- trial Control Systems (IICS); —Kahuta Nuclear Facility; —Kahuta Research Facility; and —Khan Research Laboratories (KRL). Dhoke Nusah, Dakhli Gangal, Near Chatri Chowk, P.O. Box 1398, Rawalpindi 46000, Pakistan; and P.O. Box 852, Rawalpindi, Paki- stan; and P.O. Box 502, Kahuta, Pakistan; and 24 Mauve Area G 9/1, GPO Box 2891, Islamabad.

******* Al Technique Corporation of Paki- For all items subject to Case-by-case for all 63 FR 64322, 11/19/98. stan, Ltd. (ATCOP), the EAR. items listed on the 65 FR 14444, 03/17/00. 4th Floor, Dodhy Plaza, 52 Jinnah CCL. Presumption of 66 FR 50090, 10/01/01. Avenue, P.O. Box 1878, approval for EAR99 77 FR 58006, 9/19/12. Islamabad, Pakistan. items. Allied Trading Co., a.k.a., the fol- For all items subject to Case-by-case for all 63 FR 64322, 11/19/98. lowing alias: the EAR. items listed on the 65 FR 14444, 03/17/00. —UCB Arcade. CCL. Presumption of 66 FR 50090 10/01/01. 2, Wazir Mansion, main Aiwan-e- approval for EAR99 77 FR 58006, 9/19/12. tijarat Road, Boulton Market, Ka- items. rachi–74000, Karachi, Pakistan (See alternate address under UCB Arcade in Uganda).

******* Defense Science and Technology For all items subject to Case-by-case for all 63 FR 64322, 11/19/98. Organization (DESTO), a.k.a., the the EAR. items listed on the 65 FR 14444, 03/17/00. following two aliases: CCL. Presumption of 66 FR 50090, 10/01/01. —Defense Science and Technology approval for EAR99 77 FR 58006, 9/19/12. Center; and items. —Chaklala Defense Science and Technology Organization. 182 Sir Syed Road, Chaklala Cantt, Rawalpindi 46200, Pakistan; and Headquarters, Chakklala Cantt, Rawalpindi, 46200, Pakistan.

******* High Technologies, Ltd. (HTL), For all items subject to Case-by-case for all 63 FR 64322, 11/19/98. a.k.a., the following alias: the EAR. items listed on the 65 FR 14444, 03/17/00. —High Technology, Ltd. CCL. Presumption of 66 FR 50090, 10/01/01. Islamabad. approval for EAR99 77 FR 58006, 9/19/12. items.

******* Machinery Master Enterprises Ltd. For all items subject to Case-by-case for all 63 FR 64322, 11/19/98. (MME), Islamabad. the EAR. items listed on the 65 FR 14444, 03/17/00. CCL. Presumption of 66 FR 50090, 10/01/01. approval for EAR99 77 FR 58006, 9/19/12. items. Maple Engineering Pvt. Ltd. Con- For all items subject to Case-by-case for all 63 FR 64322, 11/19/98. sultants, Importers and Exporters, the EAR. items listed on the 65 FR 14444, 03/17/00. Islamabad. CCL. Presumption of 66 FR 50090, 10/01/01. approval for EAR99 77 FR 58006, 9/19/12. items.

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******* Pakistan Atomic Energy Commis- For all items subject to Case-by-case for all 63 FR 64322, 11/19/98. sion (PAEC), a.k.a., the following the EAR. items listed on the 65 FR 14444, 03/17/00. alias: CCL. Presumption of 66 FR 50090, 10/01/01. —Power Plant Workshops, approval for EAR99 77 FR 58006, 9/19/12. P.O. Box 1114, Islamabad; items. and the following three subordinate entities: —National Development Complex (NDC), a.k.a., the following two aliases: —National Development Centre; and —National Defense Complex, Fateh Jang, Punjab, Rawalpindi, Pakistan; and P.O. Box 2216, Islamabad, Pakistan; —Pakistan Institute for Nuclear Science and Technology (PINSTECH), Nilore, Islamabad; —Nuclear reactors (including power plants), fuel reprocessing and en- richment facilities, all uranium processing, conversion and en- richment facilities, heavy water production facilities and any collo- cated ammonia plants. People’s Steel Mills, Javedan For all items subject to Case-by-case for all 63 FR 64322, 11/19/98. Nagar, Manghopir Road, Karachi the EAR. items listed on the 65 FR 14444, 03/17/00. 75890, Pakistan. CCL. Presumption of 66 FR 50090, 10/01/01. approval for EAR99 77 FR 58006, 9/19/12. items.

******* Space and Upper Atmosphere Re- For all items subject to Case-by-case for all 63 FR 64322, search Commission (SUPARCO), the EAR. items listed on the 11/19/98. a.k.a., the following alias: CCL. Presumption of 65 FR 14444, —Space and Upper Atmospheric approval for EAR99 03/17/00. Research Commission, items. 66 FR 50090, Sector 28, Gulzar-e-Hijiri, Off Uni- 10/01/01. versity Road, P.O. Box 8402, Ka- 77 FR 58006, 9/19/12. rachi 75270.

******* Wah Chemical Product Plant, For all items subject to Case-by-case for all 63 FR 64322, 11/19/98. a.k.a., the following alias: the EAR items listed on the 66 FR 50090, 10/01/01. —Wah Nobel Chemicals Limited, CCL. Presumption of 77 FR 58006, 9/19/12. Wah Cantonment, Rawalpindi, Paki- approval for EAR99 stan. items. Wah Munitions Plant, Wah Canton- For all items subject to Case-by-case for all 63 FR 64322, 11/19/98. ment, Rawalpindi, Pakistan. the EAR. items listed on the 65 FR 14444, 03/17/00. CCL. Presumption of 66 FR 50090, 10/01/01. approval for EAR99 77 FR 58006, 9/19/12. items.

******* Singapore

******* Cyberinn PTE LTD, a.k.a., the fol- For all items subject to Presumption of denial 73 FR 54508, 9/22/08. lowing alias: the EAR. (See 77 FR 58006, 9/19/12. —Index Consultancy & Services § 744.11 of the EAR). PTE LTD., 1 Rochor Canal Road, #06–07 Sim Lim Square, 188504, Singapore.

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******* South Africa ...... Gunther Migeotte, 1 River Street, For all items subject to Presumption of denial 75 FR 36516, 6/28/10. Rosebank, Cape Town, 7700, the EAR. (See 77 FR 58006, 9/19/12. South Africa; and P.O. Box § 744.11 of the EAR). 36623, Menlo Park, 0102, South Africa; and 16 Manu Rua, 262 Sprite Avenue, Faerie Glen, 0081, South Africa; and Suite 17– 106, The Waverley Business Park, Wyecroft Rd., Mowbray, Cape Town, 7925, South Africa (See alternate address under Norway). Icarus Marine (Pty) Ltd., 1 River For all items subject to Presumption of denial 75 FR 36516, 6/28/10. Street, Rosebank, Cape Town, the EAR. (See 77 FR 58006, 9/19/12. South Africa; and Suite 17–106, § 744.11 of the EAR). The Waverley Business Park, Wyecroft Rd., Mowbray, Cape Town, 7925, South Africa. Ralph Brucher, P.O. Box 9523, For all items subject to Presumption of denial 75 FR 36516, 6/28/10. Centurion 0046, South Africa; the EAR. (See 77 FR 58006, 9/19/12. and Unit 4, Techni Park East, § 744.11 of the EAR). Alwyn Street, Meyerspark Silverton, Pretoria, Gauteng, South Africa; and Batter St, Techniec Park East, Silverton, Pretoria, 0184, South Africa; and 26 Jakaranda St, Centurion, Gauteng 0157, South Africa; and Jacaranda St, Hennopspark Ext 7, Centurion, South Africa. Scavenger Manufacturing (Pty) Ltd., For all items subject to Presumption of denial 75 FR 36516, 6/28/10. P.O. Box 288, Silverton, Pretoria the EAR. (See 77 FR 58006, 9/19/12. 0127, South Africa; and Unit 4, § 744.11 of the EAR). Techni Park East, Alwyn Street, Meyerspark Silverton, Pretoria, Gauteng, South Africa; and Batter St, Techniec Park East, Silverton, Pretoria, 0184, South Africa; and 26 Jakaranda St, Centurion, Gauteng 0157, South Africa; and Jacaranda St, Hennopspark Ext 7, Centurion, South Africa; and P.O. Box 9523, Centurion 0046, South Africa. Shawn Hugo De Villiers, 1 River For all items subject to Presumption of denial 75 FR 36516, 6/28/10. Street, Rosebank, Cape Town the EAR. (See 77 FR 58006, 9/19/12. 7700, South Africa; and Myburgii § 744.11 of the EAR). Street, Somerset West, Cape Town, South Africa; and Suite 17–106, The Waverley Business Park, Wyecroft Rd., Mowbray, Cape Town, 7925, South Africa.

******* Uganda ...... UCB Arcade, a.k.a., the following For all items subject to Presumption of denial 77 FR 58006, 9/19/12. alias: the EAR. (See —Allied Trading Co. § 744.11 of the EAR). P.O. Box 5999, Kampala, Uganda (See alternate address under Al- lied Trading Co. in Pakistan).

******* United Arab Emirates

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******* Alex Nouri Zadeh, a.k.a. the fol- For all items subject to Presumption of denial 77 FR 58006, 9/19/12. lowing three aliases: the EAR. (See —Alex Banai; § 744.11 of the EAR). —Alex Norry; and —Nouri Zadeh, No. 102 and 106, 1st Floor, K5 En- trance, Alshami Rest. Bldg., Al Muraqqabat Rd., Deira, Dubai, 184609 U.A.E.; and P.O. Box 184607, Dubai, U.A.E.

******* Fajr Almadeena Electronics, No. For all items subject to Presumption of denial 77 FR 58006, 9/19/12. 102 and 106, 1st Floor, K5 En- the EAR. (See trance, Alshami Rest. Bldg., Al § 744.11 of the EAR). Muraqqabat Rd., Deira, Dubai, 184609 U.A.E.; and P.O. Box 184607, Dubai, U.A.E.

******* Jamal Hasan, a.k.a. the following For all items subject to Presumption of denial 77 FR 58006, 9/19/12. alias: the EAR. (See —Jamal Haji, § 744.11 of the EAR). No. 102 and 106, 1st Floor, K5 En- trance, Alshami Rest. Bldg., Al Muraqqabat Rd., Deira, Dubai, 184609 U.A.E.; and P.O. Box 184607, Dubai, U.A.E.

******* Mohammad Nayeb, No. 102 and For all items subject to Presumption of denial 77 FR 58006, 9/19/12. 106, 1st Floor, K5 Entrance, the EAR. (See Alshami Rest. Bldg., Al § 744.11 of the EAR). Muraqqabat Rd., Deira, Dubai, 184609 U.A.E.; and P.O. Box 184607, Dubai, U.A.E.

******* Seyed Mahdi Mousavi, P.O. Box For all items subject to Presumption of denial 77 FR 58006, 9/19/12. 49465, Dubai, UAE; and P.O. the EAR. (See Box 7941, Dubai, U.A.E. (See al- § 744.11 of the EAR). ternate addresses under Iran). Seyed Mousavi Trading, a.k.a., the For all items subject to Presumption of denial 77 FR 58006, 9/19/12. following two aliases: the EAR. (See —Hitech Computer Peripherals; and § 744.11 of the EAR). —Hitech Corporation. P.O. Box 49465, Dubai, UAE; and P.O. Box 7941, Dubai, U.A.E. (See alternate addresses under Iran).

*******

Dated: September 12, 2012. Kevin J. Wolf, Assistant Secretary for Export Administration. [FR Doc. 2012–22952 Filed 9–18–12; 8:45 am] BILLING CODE 3510–33–P

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DEPARTMENT OF HOMELAND Programs, Office of International Trade, reflect the imposition of these SECURITY (202) 863–6563. restrictions, and included a list SUPPLEMENTARY INFORMATION: designating the types of archaeological U.S. Customs and Border Protection material covered by the restrictions. Background Import restrictions listed in 19 CFR DEPARTMENT OF THE TREASURY Pursuant to the provisions of the 1970 12.104g(a) are ‘‘effective for no more UNESCO Convention, codified into U.S. than five years beginning on the date on 19 CFR Part 12 law as the Convention on Cultural Property Implementation Act (hereafter, which the agreement enters into force [CBP Dec. 12–14] the ‘‘Cultural Property Implementation with respect to the United States. This period can be extended for additional RIN 1515–AD91 Act’’ or the ‘‘Act’’) (Pub. L. 97–446, 19 U.S.C. 2601 et seq.), signatory nations periods not to exceed five years if it is Extension of Import Restrictions (State Parties) may enter into bilateral or determined that the factors which Imposed on Archaeological Material multilateral agreements to impose justified the initial agreement still From Mali import restrictions on eligible pertain and no cause for suspension of archaeological and ethnological the agreement exists’’ (19 CFR AGENCY: U.S. Customs and Border materials under procedures and 12.104g(a)). Protection, Department of Homeland requirements prescribed by the Act. Security; Department of the Treasury. On September 20, 2002, the former Under the Act and applicable CBP United States Customs Service ACTION: Final rule. regulations (19 CFR 12.104g), the published T.D. 02–55 in the Federal restrictions are effective for no more Register (67 FR 59159), which amended SUMMARY: This final rule amends the than five years beginning on the date on U.S. Customs and Border Protection which the agreement enters into force 19 CFR 12.104g(a) to reflect the (CBP) regulations to reflect the with respect to the United States (19 extension of these import restrictions for extension of import restrictions on U.S.C. 2602(b)). This period may be an additional period of five years until certain archaeological material from extended for additional periods, each September 19, 2007. Mali. The restrictions, which were such period not to exceed five years, On September 19, 2007, CBP previously imposed by Treasury where it is determined that the factors published CBP Dec. 07–77 in the Decision (T.D.) 97–80, extended by T.D. justifying the initial agreement still Federal Register (72 FR 53414), which 02–55, and last extended and amended pertain and no cause for suspension of amended 19 CFR 12.104g(a) to reflect by CBP Dec. 07–77, are due to expire on the agreement exists (19 U.S.C. 2602(e); the extension of the import restrictions September 19, 2012, unless extended. 19 CFR 12.104g(a)). on this cultural property and the The Assistant Secretary for In certain limited circumstances, the addition of new subcategories of objects Cultural Property Implementation Act Educational and Cultural Affairs, United representing a broader time frame in the States Department of State, has authorizes the imposition of restrictions amended Designated List for an determined that conditions continue to on an emergency basis (19 U.S.C. additional period of five years until warrant the imposition of import 2603(c)(1)). Under the Act and September 19, 2012. Accordingly, the restrictions. Accordingly, the applicable CBP regulations (19 CFR title of the bilateral agreement was restrictions will remain in effect for an 12.104g(b)), emergency restrictions are additional five years, and the CBP effective for no more than five years amended at this time to read: regulations are being amended to from the date of the State Party’s request ‘‘Agreement between the Government of indicate this further extension. These and may be extended for three years the United States of America and the restrictions are being extended pursuant where it is determined that the Government of the Republic of Mali to determinations of the United States emergency condition continues to apply Concerning the Imposition of Import Department of State under the terms of with respect to the covered materials (19 Restrictions on Archaeological Material the Convention on Cultural Property U.S.C. 2603(c)(3)). from Mali from the Paleolithic Era Implementation Act in accordance with On September 23, 1993, under the (Stone Age) to Approximately the Mid- the United Nations Educational, authority of the Cultural Property Eighteenth Century.’’ Scientific and Cultural Organization Implementation Act, the former U.S. On March 12, 2012, the Department of (UNESCO) 1970 Convention on the Customs Service published Treasury State proposed in the Federal Register Decision (T.D.) 93–74 in the Federal Means of Prohibiting and Preventing the (77 FR 14583) to extend the Agreement. Register (58 FR 49428) imposing Illicit Import, Export and Transfer of Upon review of the findings and Ownership of Cultural Property. CBP emergency import restrictions on archaeological objects from the region of recommendations of the Cultural Dec. 07–77 contains the Designated List Property Advisory Committee, the of archaeological materials that the Niger River Valley of Mali and the Bandiagara Escarpment (Cliff), Mali and Assistant Secretary for Educational and describes the articles to which the Cultural Affairs, Department of State, restrictions apply. accordingly amending 19 CFR 12.104g(b). made the necessary determinations on DATES: Effective Date: September 19, On September 19, 1997, the United July 20, 2012 for extending the 2012. States entered into a bilateral agreement Agreement with Mali to continue the FOR FURTHER INFORMATION CONTACT: For with Mali that continued without imposition of import restrictions on the legal aspects, George F. McCray, Esq., interruption the import restrictions aforementioned categories of Chief, Cargo Security, Carriers and previously placed on the same archaeological material for an additional Immigration Branch, Regulations and archaeological material. On September five-year period. An exchange of Rulings, Office of International Trade, 23, 1997, the former United States diplomatic notes reflects the extension (202) 325–0082. For operational aspects, Customs Service published T.D. 97–80 of those restrictions. Accordingly, CBP Virginia McPherson, Interagency in the Federal Register (62 FR 49594), is amending 19 CFR 12.104g(a) to reflect Requirements Branch, Trade Policy and which amended 19 CFR 12.104g(a) to the extension of the import restrictions.

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The Designated List of Archaeological Sections 12.104 through 12.104i also (refusals) that is unnecessary and not Material from Mali covered by these issued under 19 U.S.C. 2612; required on product labeling. import restrictions is set forth in CBP * * * * * Refusals of free-choice cattle feeds, Dec. 07–77, see 72 FR 53414 dated including compressed blocks, granules, § 12.104g [Amended] September 19, 2007. More information and liquids, are unlikely in practice to on import restrictions can be obtained ■ 2. In § 12.104g(a), the table of the list be fed to another group of cattle. These from the Mali country section of the of agreements imposing import products are used almost exclusively in International Cultural Property restrictions on described articles of pasture-based systems where the Protection Web site (http:// cultural property of State Parties is product is placed in the pasture with exchanges.state.gov/heritage/culprop/ amended in the entry for Mali by the animals and is left until consumed. mlfact.html). removing the reference to ‘‘CBP Dec. In addition, it is extremely unlikely that The restrictions on the importation of 07–77’’ and adding in its place ‘‘CBP these free-choice cattle feeds would be these archaeological materials from Mali Dec. 12–14’’ in the column headed fed to another production class because are to continue in effect through ‘‘Decision No.’’. these products generally are not September 19, 2017. Importation of such David V. Aguilar, appropriate for the nutritional needs of another production class. materials continues to be restricted Deputy Commissioner, U.S. Customs and unless the conditions set forth in 19 Border Protection. For these reasons, FDA is revising the regulations to exclude monensin free- U.S.C. 2606 and 19 CFR 12.104c are Approved: September 13, 2012. met. choice Type C medicated feeds for Timothy E. Skud, growing cattle on pasture or in dry lot Inapplicability of Notice and Delayed Deputy Assistant Secretary of the Treasury. from the requirement to include a Effective Date [FR Doc. 2012–23057 Filed 9–18–12; 8:45 am] warning statement. This action is being This amendment involves a foreign BILLING CODE 9111–14–P taken to improve the accuracy of the affairs function of the United States and regulations. is, therefore, being made without notice This rule does not meet the definition or public procedure (5 U.S.C. 553(a)(1)). DEPARTMENT OF HEALTH AND of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because For the same reasons, pursuant to 5 HUMAN SERVICES it is a rule of ‘‘particular applicability.’’ U.S.C. 553(d)(3), a delayed effective date Therefore, it is not subject to the is not required. Food and Drug Administration congressional review requirements in 5 U.S.C. 801–808. Regulatory Flexibility Act 21 CFR Parts 520 and 558 List of Subjects Because no notice of proposed [Docket No. FDA–2012–N–0002] rulemaking is required, the provisions 21 CFR Part 520 New Animal Drugs for Use in Animal of the Regulatory Flexibility Act (5 Animal drugs. U.S.C. 601 et seq.) do not apply. Feeds; Monensin 21 CFR Part 558 Executive Order 12866 AGENCY: Food and Drug Administration, HHS. Animal drugs, Animal feeds. Because this rule involves a foreign ACTION: Final rule; technical affairs function of the United States, it Therefore, under the Federal Food, amendment. is not subject to Executive Order 12866. Drug, and Cosmetic Act and under authority delegated to the Commissioner SUMMARY: Signing Authority The Food and Drug of Food and Drugs and redelegated to Administration (FDA) is amending the the Center for Veterinary Medicine, 21 This regulation is being issued in animal drug regulations to remove a accordance with 19 CFR 0.1(a)(1). CFR parts 520 and 558 are amended as warning for growing cattle on pasture or follows: List of Subjects in 19 CFR Part 12 in dry lot and to codify all monensin free-choice Type C medicated feeds in PART 520—ORAL DOSAGE FORM Cultural property, Customs duties and 21 CFR part 558. This action is being NEW ANIMAL DRUGS inspection, Imports, Prohibited taken to improve the accuracy of the merchandise. regulations. ■ 1. The authority citation for 21 CFR Amendment to CBP Regulations DATES: This rule is effective September part 520 continues to read as follows: 19, 2012. Authority: 21 U.S.C. 360b. For the reasons set forth above, part FOR FURTHER INFORMATION CONTACT: 12 of Title 19 of the Code of Federal §§ 520.1448 and 520.1448a [Removed] Regulations (19 CFR part 12), is Christina C. Edwards, Center for ■ 2. Remove §§ 520.1448 and 520.1448a. amended as set forth below: Veterinary Medicine (HFV–126), Food and Drug Administration, 7500 Standish PART 558—NEW ANIMAL DRUGS FOR PART 12—SPECIAL CLASSES OF Pl., Rockville, MD 20855, 240–276– USE IN ANIMAL FEEDS MERCHANDISE 8228, Email: [email protected]. ■ ■ 3. The authority citation for 21 CFR 1. The general authority citation for SUPPLEMENTARY INFORMATION: FDA has part 558 continues to read as follows: part 12 and the specific authority noticed that the animal drug regulations citation for § 12.104g continue to read as for certain monensin free-choice Type C Authority: 21 U.S.C. 360b, 371. follows: medicated feeds for growing cattle on ■ 4. In § 558.355, revise paragraphs Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1202 pasture or in dry lot (slaughter, stocker, (d)(7)(vii), (d)(10)(i), and (d)(10)(ii); (General Note 3(i), Harmonized Tariff and feeder cattle; and dairy and beef remove and reserve paragraph (f)(3)(v); Schedule of the United States (HTSUS)), replacement heifers) reflect a warning redesignate paragraph (f)(7) as 1624; statement regarding the overdosing risk paragraph (f)(8); and add new paragraph * * * * * posed by uneaten free-choice feeds (f)(7) to read as follows:

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§ 558.355 Monensin. least 1 block per 5 head of cattle. Feed ACTION: Final rule; approval of * * * * * blocks continuously. Do not feed salt or amendment. (d) * * * minerals containing salt. The (7) * * * effectiveness of this block in cull cows SUMMARY: We are approving an (vii) If feed refusals containing and bulls has not been established. See amendment to the Montana regulatory monensin are fed to other groups of paragraph (d)(10)(i) of this section. program (the ‘‘Montana program’’) cattle, the concentration of monensin in (iii) Amount. 175 milligrams per under the Surface Mining Control and the refusals and amount of refusals fed pound of protein-mineral block (0.038 Reclamation Act of 1977 (‘‘SMCRA’’ or should be taken into consideration to percent). ‘‘the Act’’). Montana proposed revisions prevent monensin overdosing (see (a) Sponsor. See No. 066071 in to and additions of statutory definitions paragraphs (d)(10)(i) and (d)(10)(ii) of § 510.600(c) of this chapter. of approximate original contour, in situ this section). (b) Conditions of use—(1) Indications coal gasification, and recovery fluid. for use. For increased rate of weight gain Montana revised its program to clarify * * * * * in pasture cattle (slaughter, stocker, and ambiguities and improve operational (10) * * * feeder). efficiency. Montana intends to (i) Cattle (as described in paragraphs (2) Limitations. Provide 40 to 200 promulgate regulations pertaining to in (f)(3)(i) through (f)(3)(xii) of this milligrams of monensin (0.25 to 1.13 situ coal gasification within one year. section): See paragraphs (d)(6), (d)(7)(i), pounds or 4 to 18 ounces of block) per The statutory revisions discussed here (d)(7)(v), (d)(7)(vii), and (d)(7)(viii) of head per day, at least 1 block per 4 head will support that future rulemaking this section. Paragraph (d)(7)(vii) of this of cattle. Do not allow cattle access to effort. section does not apply to free-choice salt or mineral while being fed this Type C medicated feeds as defined in product. Ingestion by cattle of monensin DATES: Effective Date: September 19, § 510.455 of this chapter. at levels of 600 milligrams per head per 2012. (ii) Dairy cows (as described in day and higher has been fatal. The FOR FURTHER INFORMATION CONTACT: paragraphs (f)(3)(xiii) and (f)(3)(xiv) of effectiveness of this block in cull cows Jeffrey Fleischman, Chief, Casper Field this section): See paragraphs (d)(6), and bulls has not been established. See Office, Telephone: (307) 261–6550, (d)(7)(i), (d)(7)(vii), (d)(7)(viii), and paragraph (d)(10)(i) of this section. email address: [email protected]. (d)(7)(ix) of this section. Paragraph (iv) Amount. 400 milligrams per SUPPLEMENTARY INFORMATION: (d)(7)(vii) of this section does not apply pound of block (0.088 percent). to free-choice Type C medicated feeds (a) Sponsor. See No. 051267 in I. Background on the Montana Program as defined in § 510.455 of this chapter. § 510.600(c) of this chapter. II. Submission of the Proposed Amendment (b) Conditions of use—(1) Indications III. Office of Surface Mining Reclamation and * * * * * Enforcement’s (OSM’s) Findings (f) * * * for use. For increased rate of weight gain IV. Summary and Disposition of Comments (7) Free-choice feeds—(i) Amount. in pasture cattle (slaughter, stocker, V. OSM’s Decision 150 milligrams per pound of protein- feeder, and dairy and beef replacement VI. Procedural Determinations mineral block (0.033 percent). heifers). (a) [Reserved] (2) Limitations. Provide 50 to 200 I. Background on the Montana Program (b) Conditions of use—(1) Indications milligrams of monensin (2 to 8 ounces Section 503(a) of the Act permits a for use. For increased rate of weight of block) per head per day, at least 1 State to assume primacy for the gain; and for prevention and control of block per 5 head of cattle. Feed blocks regulation of surface coal mining and coccidiosis caused by Eimeria bovis and continuously. Do not feed salt or reclamation operations on non-Federal E. zuernii in pasture cattle (slaughter, mineral supplements in addition to the and non-Indian lands within its borders stocker, feeder, and dairy and beef blocks. Ingestion by cattle of monensin by demonstrating that its State program replacement heifers) which may require at levels of 600 milligrams per head per includes, among other things, ‘‘a State supplemental feed. day and higher has been fatal. The law which provides for the regulation of (2) Limitations. Provide 50 to 200 effectiveness of this block in cull cows surface coal mining and reclamation milligrams of monensin (0.34 to 1.33 and bulls has not been established. See operations in accordance with the pounds of block) per head per day, at paragraph (d)(10)(i) of this section. requirements of this Act * * *; and least 1 block per 10 to 12 head of cattle. * * * * * rules and regulations consistent with Roughage must be available at all times. Dated: September 13, 2012. regulations issued by the Secretary Do not allow animals access to other Bernadette Dunham, pursuant to this Act.’’ See 30 U.S.C. protein blocks, salt or mineral, while Director, Center for Veterinary Medicine. 1253(a)(1) and (7). On the basis of these being fed this product. The effectiveness [FR Doc. 2012–23065 Filed 9–18–12; 8:45 am] criteria, the Secretary of the Interior of this block in cull cows and bulls has conditionally approved the Montana BILLING CODE 4160–01–P not been established. See paragraph program on April 1, 1980. You can find (d)(10)(i) of this section. background information on the Montana (ii) Amount. 400 milligrams per program, including the Secretary’s DEPARTMENT OF THE INTERIOR pound of protein-mineral block (0.088 findings, the disposition of comments, percent). Office of Surface Mining Reclamation and conditions of approval in the April (a) Sponsor. See No. 067949 in and Enforcement 1, 1980, Federal Register (45 FR 21560). § 510.600(c) of this chapter. You can also find later actions (b) Conditions of use—(1) Indications 30 CFR Part 926 concerning Montana’s program and for use. For increased rate of weight gain program amendments at 30 CFR 926.15 in pasture cattle (slaughter, stocker, [SATS No. MT–034–FOR; Docket ID No. and 926.30. feeder, and dairy and beef replacement OSM–2011–0018] II. Submission of the Proposed heifers). Montana Regulatory Program (2) Limitations. Provide 80 to 200 Amendment milligrams of monensin (0.2 to 0.5 AGENCY: Office of Surface Mining By letter dated August 19, 2011, pounds of block) per head per day, at Reclamation and Enforcement, Interior. Montana sent us an amendment to its

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program (Administrative Record No. Montana proposed to define ‘‘in situ language is technically accurate, and MT–31–01) under SMCRA (30 U.S.C. coal gasification’’ whereas SMCRA Montana exceeds what is defined under 1201 et seq.). Montana submitted the defines ‘‘in situ processing.’’ The the Federal program, this addition is no amendment at its own initiative. Federal definition lists in situ less stringent than SMCRA. We announced receipt of the gasification as one type of in situ We are approving all of Montana’s proposed amendment in the December processing. Montana is proposing to August 19, 2011 proposed amendments. 6, 2011, Federal Register (76 FR 76111; define a subset of what the Federal IV. Summary and Disposition of Administrative Record No. MT–31–10). Program defines. Montana’s proposed Comments In the same document, we opened the language directly mirrors Wyoming’s public comment period and provided an existing definition of ‘‘in situ mining.’’ Public Comments opportunity for a public hearing or Wyoming’s definition was approved on We asked for public comments on the meeting on the amendment’s adequacy. March 31, 1980 (45 FR 20930), under amendment (Administrative Record ID We did not hold a public hearing or the partial approval of its original No. MT–31–10), but did not receive any. meeting because no one requested one. program. That approval set precedent Federal Agency Comments The public comment period ended on for the definition Montana recently January 5, 2012. We received comments proposed. Under 30 CFR 732.17(h)(11)(i) and from two Federal agencies, one State Montana’s proposed definition section 503(b) of SMCRA, we requested agency, and one industry group. excludes ‘‘the storage of carbon dioxide comments on the amendment from in a geologic storage reservoir’’ from various Federal agencies with an actual III. OSM’s Findings inclusion under in situ coal gasification. or potential interest in the Montana Following are the findings we made This phrase precludes in situ program (Administrative Record ID No. concerning the amendment under gasification projects from including MT–31–3). SMCRA and the Federal regulations at carbon capture and sequestration (CCS) By letter dated November 1, 2011, the 30 CFR 732.15 and 732.17. We are under the Montana coal regulatory Mine Safety and Health Administration approving the amendment. program. (MSHA) responded to our request Montana Senate Bill 498 (SB498) (Administrative Record ID No. MT–31– A. Minor Revisions to Montana’s Statute designated the Board of Oil and Gas 08). MSHA concurs with the proposed Conservation as the regulatory authority Montana proposed recodification revisions. We agree with MSHA that the for CCS activities within the State. changes to its statutory definitions. proposed revisions are acceptable. SB498 generally established that land MCA § 82–4–203(27) through (56) have By letter dated November 1, 2011, the surface owners own the pore space been recodified as MCA § 82–4–203(28) Bureau of Land Management (BLM) below the surface unless it is otherwise through (58). The addition of two new Montana State Office responded to our documented. As such, the Board would definitions (discussed below) request (Administrative Record ID No. regulate any proposed CCS activities necessitated these changes. These non- MT–31–09). The BLM stated that the appropriately. CCS operations have proposed changes appear to be substantive changes do not alter the potential environmental impacts such as definitions’ meaning or effectiveness. substantially in agreement with the groundwater contamination which, by corresponding Federal regulations and Because these changes are minor, we exclusion from regulation under in situ are therefore no less stringent than find the provisions remain no less coal gasification, would be avoided SMCRA. The BLM has no objection to stringent than SMCRA. under Montana’s coal regulatory the proposed amendments. We agree B. Revisions to Montana’s Statute That program (CCS would invoke a separate with BLM’s assessment. Are Not the Same as the Corresponding regulatory scheme). For this reason, Environmental Protection Agency (EPA) Provisions of the Federal Statute excluding CCS from in situ coal gasification is more stringent than the Concurrence and Comments Montana proposed revisions to its Federal Program because the Federal Under 30 CFR 732.17(h)(11)(ii), we statutory definition of Approximate Program does not address this issue at are required to obtain concurrence from Original Contour (AOC). The existing all. EPA for those provisions of the program definition contained language similar to Montana’s new definition provides a amendment that relate to air or water the Federal definition of AOC as well as technically accurate description of in quality standards issued under the additional stipulations. Montana situ coal gasification. Because there is authority of the Clean Water Act (33 proposed to reference its definition of precedent for Montana’s proposed U.S.C. 1251 et seq.) or the Clean Air Act ‘‘hydrologic balance’’ within its existing definition, the proposed language (42 U.S.C. 7401 et seq.). None of the AOC definition. The Federal exceeds what is defined or restricted revisions that Montana proposed to counterpart definition does not employ under the Federal program, and the make in this amendment pertains to air the term hydrologic balance. definition is technically accurate, this or water quality standards. Therefore, The proposed addition has no effect addition is no less stringent than we did not ask EPA to concur on the beyond referring the reader to the SMCRA. amendment. definition of an existing term. This Montana proposed to define Under 30 CFR 732.17(h)(11)(i), OSM addition does not alter the definition’s ‘‘recovery fluid.’’ The Federal Program requested comments on the amendment meaning or effectiveness. This does not define this term; however, the from EPA (Administrative Record definition remains no less stringent than Wyoming program approved by OSM on Document ID No. MT–31–3) by letter SMCRA. March 31, 1980 (45 FR 20930) defines dated September 28, 2011. EPA did not this term. That approval set precedent C. Revisions to Montana’s Statutes With respond to our request. for the definition Montana recently No Corresponding Federal Statutes proposed. Montana’s new definition State Historic Preservation Officer Montana proposed two new provides a technically accurate (SHPO) and the Advisory Council on definitions which do not have Federal description of recovery fluid. Because Historic Preservation (ACHP) counterparts under SMCRA: ‘‘in situ there is precedent for Montana’s Under 30 CFR 732.17(h)(4), we are coal gasification’’ and ‘‘recovery fluid.’’ proposed definition, the proposed required to request comments from the

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SHPO and ACHP on amendments that submitted by the States must be based U.S.C. 1292(d)) provides that agency may have an effect on historic solely on a determination of whether the decisions on proposed State regulatory properties. On September 28, 2011, we submittal is consistent with SMCRA and program provisions do not constitute requested comments on Montana’s its implementing Federal regulations major Federal actions within the amendment (Administrative Record ID and whether the other requirements of meaning of section 102(2)(C) of the Nos. MT–31–4 and MT–31–5). By letter 30 CFR parts 730, 731, and 732 have National Environmental Policy Act (42 dated September 26, 2011, the SHPO been met. U.S.C. 4332(2)(C) et seq.). responded to our request (Administrative Record ID No. MT–31– Executive Order 13132—Federalism Paperwork Reduction Act 07). The SHPO believes the proposed This rule does not have Federalism This rule does not contain changes do not appear to degrade implications. SMCRA delineates the information collection requirements that consideration of cultural resources in roles of the Federal and State require approval by OMB under the any less effective fashion than required governments with regard to the Paperwork Reduction Act (44 U.S.C. in Federal regulations. We agree with regulation of surface coal mining and 3501 et seq.). the SHPO’s assessment. reclamation operations. One of the Regulatory Flexibility Act purposes of SMCRA is to ‘‘establish a V. OSM’s Decision nationwide program to protect society The Department of the Interior Based on the above findings, we and the environment from the adverse certifies that this rule will not have a approve Montana’s August 19, 2011 effects of surface coal mining significant economic impact on a amendment. To implement this operations.’’ Section 503(a)(1) of substantial number of small entities decision, we are amending the Federal SMCRA requires that State laws under the Regulatory Flexibility Act (5 regulations at 30 CFR Part 926, which regulating surface coal mining and U.S.C. 601 et seq.). The State submittal, codify decisions concerning the reclamation operations be ‘‘in which is the subject of this rule, is based Montana program. We find that good accordance with’’ the requirements of upon counterpart Federal regulations for cause exists under 5 U.S.C. 553(d)(3) to SMCRA, and section 503(a)(7) requires which an economic analysis was make this final rule effective that State programs contain rules and prepared and certification made that immediately. Section 503(a) of SMCRA regulations ‘‘consistent with’’ such regulations would not have a requires that the State’s program regulations issued by the Secretary significant economic effect upon a demonstrates that the State has the pursuant to SMCRA. substantial number of small entities. In capability of carrying out the provisions making the determination as to whether of the Act and meeting its purposes. Executive Order 13175—Consultation this rule would have a significant Making this regulation effective and Coordination With Indian Tribal economic impact, the Department relied immediately will expedite that process. Governments upon the data and assumptions for the SMCRA requires consistency of State In accordance with Executive Order counterpart Federal regulations. and Federal standards. 13175, we have evaluated the potential Small Business Regulatory Enforcement VI. Procedural Determinations effects of this rule on Federally recognized Indian Tribes and have Fairness Act Executive Order 12630—Takings determined that the rule does not have This rule is not a major rule under 5 This rule does not have takings substantial direct effects on one or more U.S.C. 804(2), of the Small Business implications. This determination is Indian Tribes, on the relationship Regulatory Enforcement Fairness Act. based on the analysis performed for the between the Federal government and This rule: counterpart Federal regulation. Indian Tribes, or on the distribution of a. Does not have an annual effect on power and responsibilities between the the economy of $100 million. Executive Order 12866—Regulatory Federal government and Indian Tribes. b. Will not cause a major increase in Planning and Review The rule does not involve or affect costs or prices for consumers, This rule is exempted from review by Indian Tribes in any way. individual industries, Federal, State, or the Office of Management and Budget local government agencies, or (OMB) under Executive Order 12866 Executive Order 13211—Regulations geographic regions. (Regulatory Planning and Review). That Significantly Affect The Supply, c. Does not have significant adverse Distribution, or Use of Energy effects on competition, employment, Executive Order 12988—Civil Justice On May 18, 2001, the President issued investment, productivity, innovation, or Reform Executive Order 13211, which requires the ability of U.S. based enterprises to The Department of the Interior has agencies to prepare a Statement of compete with foreign-based enterprises. conducted the reviews required by Energy Effects for a rule that is (1) This determination is based upon the section 3 of Executive Order 12988 and considered significant under Executive fact that the State submittal, which is has determined that this rule meets the Order 12866, and (2) likely to have a the subject of this rule, is based upon applicable standards of subsections (a) significant adverse effect on the supply, counterpart Federal regulations for and (b) of that section. However, these distribution, or use of energy. Because which an analysis was prepared and a standards are not applicable to the this rule is exempt from review under determination made that the Federal actual language of State regulatory Executive Order 12866 and is not regulation was not considered a major programs and program amendments expected to have a significant adverse rule. because each program is drafted and effect on the supply, distribution, or use Unfunded Mandates promulgated by a specific State, not by of energy, a Statement of Energy Effects OSM. Under sections 503 and 505 of is not required. This rule will not impose an SMCRA (30 U.S.C. 1253 and 1255) and unfunded mandate on State, local, or the Federal regulations at 30 CFR National Environmental Policy Act tribal governments or the private sector 730.11, 732.15, and 732.17(h)(10), This rule does not require an of $100 million or more in any given decisions on proposed State regulatory environmental impact statement year. This determination is based upon programs and program amendments because section 702(d) of SMCRA (30 the fact that the State submittal, which

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is the subject of this rule, is based upon Dated: April 27, 2012. Authority: 30 U.S.C. 1201 et seq. counterpart Federal regulations for Allen D. Klein ■ which an analysis was prepared and a Director, Western Region. 2. Section 926.15 is amended in the determination made that the federal For the reasons set out in the table by adding a new entry in regulation did not impose an unfunded preamble, 30 CFR part 926 is amended chronological order by ‘‘Date of final mandate. as set forth below: publication’’ to read as follows: List of Subjects in 30 CFR Part 926 PART 926—MONTANA § 926.15 Approval of Montana regulatory program amendments Intergovernmental relations, Surface ■ 1. The authority citation for part 926 * * * * * mining, Underground mining. continues to read as follows:

Original amendment submission date Date of final publication Citation/description

******* August 19, 2011 ...... September 19, 2012 ...... MCA 82–4–203(4)(c) (definition of AOC); addition of –203(27) ‘‘in situ coal gasification;’’ –203(44) ‘‘recovery fluid;’’ recodification of former –203(27) through (56).

[FR Doc. 2012–23087 Filed 9–18–12; 8:45 am] IV. Summary and Disposition of Comments requested one. The public comment BILLING CODE 4310–05–P V. OSM’s Decision period ended on April 27, 2012. We did VI. Procedural Determinations not receive any public comments.

DEPARTMENT OF THE INTERIOR I. Background on the Texas Program III. OSM’s Findings Section 503(a) of the Act permits a The following are the findings we Office of Surface Mining Reclamation State to assume primacy for the made concerning the amendment under and Enforcement regulation of surface coal mining and SMCRA and the Federal regulations at reclamation operations on non-Federal 30 CFR 732.15 and 732.17. We are 30 CFR Part 943 and non-Indian lands within its borders approving the amendment as described [SATS No. TX–064–FOR; Docket ID: OSM– by demonstrating that its State program below. includes, among other things, ‘‘a State 2012–0005] 16 Texas Administrative Code (TAC) law which provides for the regulation of Section 12.108 Permit Fees Texas Regulatory Program surface coal mining and reclamation operations in accordance with the Texas proposed to revise its AGENCY: Office of Surface Mining requirements of this Act * * *; and regulations at 16 TAC sections Reclamation and Enforcement, Interior. rules and regulations consistent with 12.108(b)(1)–(3), adjusting the annual ACTION: Final rule; approval of regulations issued by the Secretary coal mining permit fees for calendar amendment. pursuant to this Act.’’ See 30 U.S.C. year 2011 and 2012. Fees for mining activity during calendar year 2011 must SUMMARY: We, the Office of Surface 1253(a)(1) and (7). On the basis of these Mining Reclamation and Enforcement criteria, the Secretary of the Interior be paid by coal mine operations by (OSM), are approving an amendment to conditionally approved the Texas March 15, 2012, which is in Texas’ 2012 the Texas regulatory program (Texas program effective February 16, 1980. fiscal year. Similarly, fees for mining program) under the Surface Mining You can find background information activity during calendar year 2012 are Control and Reclamation Act of 1977 on the Texas program, including the due by March 15, 2013, which is in (SMCRA or the Act). Texas proposed Secretary’s findings, the disposition of Texas’ 2013 fiscal year. comments, and the conditions of By this amendment, Texas is: revisions to its regulations regarding (1) Increasing the current $130.00 per annual permit fees. Texas revised its approval, in the February 27, 1980, Federal Register (45 FR 12998). You can acre fee to $154.00 per acre, the amount program at its own initiative to raise in paragraph (b)(1) for each acre of land revenues sufficient to cover its find later actions on the Texas program at 30 CFR 943.10, 943.15, and 943.16. within the permit area on which coal or anticipated share of costs to administer lignite was actually removed during the the coal regulatory program and to II. Submission of the Amendment calendar year; encourage mining companies to more By letter dated February 9, 2012 (2) Increasing the current $5.50 per quickly reclaim lands and request bond (Administrative Record No. TX–700), acre fee to $10.40 per acre, the amount release, thereby fulfilling SMCRA’s Texas sent us an amendment to its in paragraph (b)(2) for each acre of land purpose of assuring the reclamation of program under SMCRA (30 U.S.C. 1201 within a permit area covered by a mined land as quickly as possible. et seq.). Texas sent the amendment on reclamation bond on December 31st of DATES: Effective Date: September 19, its own initiative. the year; and 2012. We announced receipt of the (3) Increasing the current $4,250.00 FOR FURTHER INFORMATION CONTACT: proposed amendment in the March 28, fee to $6,900.00, the amount in Alfred L. Clayborne, Director, Tulsa 2012, Federal Register (77 FR 18738). In paragraph (b)(3) for each permit in effect Field Office. Telephone: (918) 581– the same document, we opened the on December 31st of the year. 6430. Email: [email protected]. public comment period and provided an The Federal regulations at 30 CFR SUPPLEMENTARY INFORMATION: opportunity for a public hearing or 777.17, concerning permit fees, provide I. Background on the Texas Program meeting on the adequacy of the that applications for surface coal mining II. Submission of the Amendment amendment. We did not hold a public permits must be accompanied by a fee III. OSM’s Findings hearing or meeting because no one determined by the regulatory authority.

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The Federal regulations also provide (Administrative Record No. TX–700.1). Executive Order 12866—Regulatory that the fees may be less than, but not We did not receive any comments. Planning and Review more than, the actual or anticipated cost This rule is exempted from review by of reviewing, administering, and Environmental Protection Agency (EPA) Concurrence and Comment the Office of Management and Budget enforcing the permit. (OMB) under Executive Order 12866. Texas’ amendment describes how Under 30 CFR 732.17(h)(11)(ii), we Texas funds its coal mining regulatory Executive Order 12988—Civil Justice are required to get a written concurrence Reform program. Texas operates on a biennial from EPA for those provisions of the budget which appropriates general program amendment that relate to air or The Department of the Interior has conducted the reviews required by revenue funds for permitting and water quality standards issued under section 3 of Executive Order 12988 and inspecting coal mining facilities within the authority of the Clean Water Act (33 has determined that this rule meets the the state. This appropriation is U.S.C. 1251 et seq.) or the Clean Air Act contingent on the Railroad Commission applicable standards of subsections (a) (42 U.S.C. 7401 et seq.). None of the of Texas (Commission) assessing fees and (b) of that section. However, these revisions that Texas proposed to make sufficient to generate revenue to recover standards are not applicable to the the general revenue appropriation. in this amendment pertain to air or actual language of State regulatory When calculating anticipated costs to water quality standards. Therefore, we programs and program amendments the Commission for regulating coal did not ask EPA to concur on the because each program is drafted and mining activity, Texas anticipates OSM amendment. However, on February 28, promulgated by a specific State, not by providing grant funding for regulatory 2012, under 30 CFR 732.17(h)(11)(i), we OSM. Under sections 503 and 505 of program costs based on section 705(a) of requested comments from the EPA on SMCRA (30 U.S.C. 1253 and 1255) and SMCRA. Historically, Texas has the amendment (Administrative Record the Federal regulations at 30 CFR estimated that OSM would fund 50% of No. TX–700.1). The EPA did not 730.11, 732.15, and 732.17(h)(10), the regulatory program costs. However, respond to our request. decisions on proposed State regulatory OSM does not agree that this is a programs and program amendments State Historical Preservation Officer reasonable expectation in light of the submitted by the States must be based (SHPO) and the Advisory Council on Administration’s proposed fiscal year solely on a determination of whether the Historic Preservation (ACHP) 2013 budget which reduces overall submittal is consistent with SMCRA and funding to states, and may result in its implementing Federal regulations Under 30 CFR 732.17(h)(4), we are and whether the other requirements of them receiving less than fifty percent of required to request comments from the their anticipated regulatory program 30 CFR parts 730, 731, and 732 have SHPO and ACHP on amendments that been met. costs, consistent with Section 705 of may have an effect on historic SMCRA. properties. On February 28, 2012, we Executive Order 13132—Federalism Texas adjusts its fees biennially to requested comments on Texas’ This rule does not have Federalism recover the amounts expended from amendment (Administrative Record No. implications. SMCRA delineates the state appropriations in accordance with TX–700.1), but neither the SHPO nor roles of the Federal and State a formula and schedule agreed to in ACHP responded to our request. governments with regard to the 2005 by the coal mining industry and regulation of surface coal mining and the Commission. This amendment V. OSM’s Decision reclamation operations. One of the represents the fourth adjustment to purposes of SMCRA is to ‘‘establish a Based on the above findings, we surface mining fees based upon that nationwide program to protect society approve the amendment Texas sent us agreement. Adjustments are expected to and the environment from the adverse continue for a ten year period that began on February 9, 2012 (Administrative effects of surface coal mining in 2005. Record No. TX–700). operations.’’ Section 503(a)(1) of We find that Texas’ fee changes are To implement this decision, we are SMCRA requires that State laws consistent with the discretionary amending the Federal regulations at 30 regulating surface coal mining and authority provided by the Federal CFR Part 943 that codify decisions reclamation operations be ‘‘in regulation at 30 CFR 777.17. Therefore, concerning the Texas program. We find accordance with’’ the requirements of OSM approves Texas’ proposed permit that good cause exists under 5 U.S.C. SMCRA, and section 503(a)(7) requires fees, recognizing that Texas has a 553(d)(3) to make this final rule that State programs contain rules and process to adjust its fees to cover the effective immediately. Section 503(a) of regulations ‘‘consistent with’’ cost of its regulatory program not SMCRA requires that the State’s regulations issued by the Secretary covered by the Federal grant. program demonstrate that the State has pursuant to SMCRA. IV. Summary and Disposition of the capability of carrying out the Executive Order 13175—Consultation Comments provisions of the Act and meeting its and Coordination With Indian Tribal purposes. Making this rule effective Governments Public Comments immediately will expedite that process. In accordance with Executive Order We asked for public comments on the SMCRA requires consistency of State 13175, we have evaluated the potential amendment, but did not receive any. and Federal standards. effects of this rule on Federally- Federal Agency Comments VI. Procedural Determinations recognized Indian tribes and have determined that the rule does not have On February 28, 2012, under 30 CFR Executive Order 12630—Taking substantial direct effects on one or more 732.17(h)(11)(i) and section 503(b) of Indian tribes, on the relationship SMCRA, we requested comments on the This rule does not have takings between the Federal Government and amendment from various Federal implications. This determination is Indian tribes, or on the distribution of agencies with an actual or potential based on the analysis performed for the power and responsibilities between the interest in the Texas program counterpart Federal regulation. Federal Government and Indian tribes.

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The basis for this determination is that Regulatory Flexibility Act determination made that the Federal our decision is on a State regulatory The Department of the Interior regulation was not considered a major program and does not involve Federal certifies that this rule will not have a rule. regulations involving Indian lands. significant economic impact on a Unfunded Mandates Executive Order 13211—Regulations substantial number of small entities under the Regulatory Flexibility Act (5 This rule will not impose an That Significantly Affect the Supply, unfunded mandate on State, local, or Distribution, or Use of Energy U.S.C. 601 et seq.). The State submittal, which is the subject of this rule, is based tribal governments or the private sector On May 18, 2001, the President issued upon counterpart Federal regulations for of $100 million or more in any given Executive Order 13211, which requires which an economic analysis was year. This determination is based upon agencies to prepare a Statement of prepared and certification made that the fact that the State submittal, which Energy Effects for a rule that is (1) such regulations would not have a is the subject of this rule, is based upon considered significant under Executive significant economic effect upon a counterpart Federal regulations for Order 12866, and (2) likely to have a substantial number of small entities. In which an analysis was prepared and a significant adverse effect on the supply, making the determination as to whether determination made that the Federal distribution, or use of energy. Because this rule would have a significant regulation did not impose an unfunded this rule is exempt from review under economic impact, the Department relied mandate. Executive Order 12866 and is not upon the data and assumptions for the List of Subjects in 30 CFR Part 943 expected to have a significant adverse counterpart Federal regulations. effect on the supply, distribution, or use Intergovernmental relations, Surface Small Business Regulatory Enforcement mining, Underground mining. of energy, a Statement of Energy Effects Fairness Act is not required. Dated: July 17, 2012. This rule is not a major rule under 5 Ervin J. Barchenger, National Environmental Policy Act U.S.C. 804(2), the Small Business Regional Director, Mid-Continent Region. Regulatory Enforcement Fairness Act. This rule does not require an This rule: (a) Does not have an annual For the reasons set out in the environmental impact statement effect on the economy of $100 million; preamble, 30 CFR part 943 is amended because section 702(d) of SMCRA (30 (b) Will not cause a major increase in as set forth below: U.S.C. 1292(d)) provides that agency costs or prices for consumers, PART 943—TEXAS decisions on proposed State regulatory individual industries, Federal, State, or program provisions do not constitute local government agencies, or ■ major Federal actions within the 1. The authority citation for Part 943 geographic regions; and (c) Does not continues to read as follows: meaning of section 102(2)(C) of the have significant adverse effects on National Environmental Policy Act (42 competition, employment, investment, Authority: 30 U.S.C. 1201 et seq. U.S.C. 4332(2)(C)). productivity, innovation, or the ability ■ 2. Section 943.15 is amended in the Paperwork Reduction Act of U.S.-based enterprises to compete table by adding a new entry in with foreign-based enterprises. This chronological order by ‘‘Date of final This rule does not contain determination is based upon the fact publication’’ to read as follows: information collection requirements that that the State submittal, which is the require approval by OMB under the subject of this rule, is based upon § 943.15 Approval of Texas regulatory Paperwork Reduction Act (44 U.S.C. counterpart Federal regulations for program amendments. 3507 et seq.). which an analysis was prepared and a * * * * *

Date of final Original amendment submission date publication Citation/description

******* February 9, 2012 ...... September 19, 16 TAC 12.108(b)(1)–(3) 2012

[FR Doc. 2012–23075 Filed 9–18–12; 8:45 am] ENVIRONMENTAL PROTECTION SUMMARY: EPA is taking final action to BILLING CODE 4310–05–P AGENCY approve changes to the Florida State Implementation Plan (SIP), submitted 40 CFR Part 52 by the Florida Department of Environmental Protection (FDEP) to [EPA–R04–OAR–2012–0555; FRL–9728–1] EPA on March 15, 2012. The March 15, 2012, SIP revision modifies Florida’s Approval and Promulgation of New Source Review (NSR) Prevention of Implementation Plans; Florida: New Significant Deterioration (PSD) Source Review—Prevention of permitting regulations to adopt, into the Significant Deterioration; Fine Florida SIP, federal NSR PSD Particulate Matter (PM2.5) requirements for the fine particulate matter (PM2.5) national ambient air AGENCY: Environmental Protection quality standards (NAAQS) as Agency (EPA). promulgated in EPA’s 2008 NSR PM2.5 Implementation Rule and the 2010 ACTION: Final rule. PM2.5 PSD Increment, Significant Impact

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Levels (SILs) and Significant Monitoring IV. Statutory and Executive Order Reviews program requirements to establish the Concentration (SMC) Rule. EPA is I. Background framework for implementing approving portions of Florida’s March preconstruction permit review for the 15, 2012, SIP revision because they are EPA is taking final action to approve PM2.5 NAAQS in both attainment areas consistent with the Clean Air Act (CAA portions of Florida’s March 15, 2012, and nonattainment areas (NAA) that: (1) or Act) and EPA regulations regarding SIP revision to adopt federal NSR Require NSR permits to address directly permitting requirements. Florida’s NSR permitting. emitted PM2.5 and precursor pollutants; March 15, 2012, SIP revision includes DATES: Effective Date: This rule will be (2) establish significant emission rates changes to the Florida Administrative effective October 19, 2012. for direct PM2.5 and precursor pollutants Code (F.A.C.) Chapter 62–210, ADDRESSES: EPA has established a (including sulfur dioxide (SO2) and Stationary Sources—General nitrogen oxides (NOX)); (3) establish docket for this action under Docket Requirements, Section 200—Definitions Identification No. EPA–R04–OAR– PM2.5 emission offsets; (4) provide (rule 62–210.200), and Chapter 62–212, exceptions to the grandfathering policy 2012–0555. All documents in the docket F.A.C., Stationary Sources— are listed on the www.regulations.gov for permits being reviewed under the Preconstruction Review, Section 300— PM10 surrogate program; and (5) require Web site. Although listed in the index, General Preconstruction Review some information is not publicly states to account for gases that condense Requirements (rule 62–212.300) and to form particles (condensables) in PM2.5 available, i.e., Confidential Business Section 400—Prevention of Significant Information or other information whose and PM10 emission limits in PSD or Deterioration (rule 62–212.400). These nonattainment NSR (NNSR) permits. disclosure is restricted by statute. changes adopt federal PSD permitting Certain other material, such as Additionally, the NSR PM2.5 Rule regulations promulgated in the final authorized states to adopt provisions in copyrighted material, is not placed on rulemakings entitled ‘‘Implementation the Internet and will be publicly their NNSR rules that would allow of the New Source Review (NSR) interpollutant offset trading. See 73 FR available only in hard copy form. Program for Particulate Matter Less than 28321. States were required to provide Publicly available docket materials are 2.5 Micrometers (PM2.5),’’ 73 FR 28321 SIP submissions to address the available either electronically through (May 16, 2008), hereafter referred to as requirements for the NSR PM Rule by www.regulations.gov or in hard copy at 2.5 the ‘‘NSR PM2.5 Rule’’ and ‘‘Prevention May 16, 2011. Florida’s March 15, 2012, the Regulatory Development Section, of Significant Deterioration (PSD) for SIP revision addresses only the PSD Air Planning Branch, Air, Pesticides and Particulate Matter Less Than 2.5 requirements related to EPA’s May 16, Toxics Management Division, U.S. 1 Micrometers (PM2.5)—Increments, 2008, NSR PM2.5 Rule. Environmental Protection Agency, Significant Impact Levels (SILs) and Region 4, 61 Forsyth Street SW., Significant Monitoring Concentration 1. PM10 Surrogate and Grandfathering Atlanta, Georgia 30303–8960. EPA (SMC),’’ 75 FR 64864 (October 20, Policy requests that if at all possible, you 2010), hereafter referred to as the ‘‘PM2.5 In the NSR PM2.5 Rule, EPA required contact the person listed in the FOR PSD Increment-SILs-SMC Rule.’’ EPA is that major stationary sources seeking FURTHER INFORMATION CONTACT section to not approving in this action Florida’s permits must begin directly satisfying schedule your inspection. The Regional incorporation into its SIP of the SIL the PM2.5 requirements, as of the Office’s official hours of business are thresholds and provisions promulgated effective date of the rule, rather than Monday through Friday, 8:30 to 4:30, in EPA’s PM2.5 PSD Increment-SILs- relying on PM10 as a surrogate, with two excluding federal holidays. SMC Rule. exceptions.2 The first exception is a FOR FURTHER INFORMATION CONTACT: For On July 27, 2012, EPA published a ‘‘grandfathering’’ provision in the information regarding the Florida SIP, proposed rulemaking to approve the federal PSD program at 40 CFR contact Ms. Twunjala Bradley, aforementioned changes to Florida’s Regulatory Development Section, Air NSR PSD program. See 77 FR 44198. 1 Florida’s March 15, 2012, SIP revision only Planning Branch, Air, Pesticides and Comments on the proposed rulemaking addresses the State’s PSD permitting program and Toxics Management Division, U.S. were due on or before August 27, 2012. does not adopt the NNSR permitting requirements for PM2.5 emission offsets, condensable provision or Environmental Protection Agency, No comments, adverse or otherwise, the discretionary interpollutant trading policy and Region 4, 61 Forsyth Street SW., were received on EPA’s July 27, 2012 ratios promulgated in the 2008 NSR PM2.5 Rule. Atlanta, Georgia 30303–8960. Ms. proposed rulemaking. Pursuant to Moreover Florida is in attainment of the 1997 annual and 2006 24-hour PM2.5 NAAQS. Bradley’s telephone number is (404) section 110 of the CAA, EPA is now 2 After EPA promulgated the NAAQS for PM2.5 in 562–9352; email address: taking final action to approve the 1997, the Agency issued guidance documents [email protected]. For changes to Florida’s NSR PSD program related to using PM10 as a surrogate for PM2.5 information regarding NSR, contact Ms. as provided in EPA’s July 27, 2012, entitled: ‘‘Interim Implementation of New Source Yolanda Adams, Air Permits Section, at Review Requirements for PM2.5.’’ John S. Seitz, proposed rulemaking. A summary of the EPA, October 23, 1997 (the ‘‘Seitz Memo’’) and the same address above. Ms. Adams’ background for today’s final action is ‘‘Implementation of New Source Review telephone number is (404) 562–9214; provided below. EPA’s July 27, 2012, Requirements in PM–2.5 Nonattainment Areas’’ (the email address: [email protected]. proposed rulemaking contains more ‘‘2005 PM2.5 NNSR Guidance’’). The Seitz Memo was designed to help states implement NSR For information regarding the PM2.5 detailed information regarding the requirements pertaining to the new PM2.5 NAAQS NAAQS, contact Mr. Joel Huey, Florida SIP revision being approved in light of technical difficulties posed by PM2.5 at Regulatory Development Section, at the today and the rationale for today’s final that time. The 2005 PM2.5 NNSR Guidance provided same address above. Mr. Huey’s action. Detailed information regarding direction regarding implementation of the NNSR telephone number is (404) 562–9104; provisions in PM2.5 nonattainment areas in the the PM2.5 NAAQS and NSR Program can interim period between the effective date of the email address: [email protected]. also be found in EPA’s July 27, 2012, PM2.5 nonattainment designations (April 5, 2005) SUPPLEMENTARY INFORMATION: proposed rulemaking as well as the and EPA’s promulgation of final PM2.5 NNSR abovementioned final rulemakings. regulations (this included recommending that until Table of Contents EPA promulgated the PM2.5 major NSR regulations, A. NSR PM2.5 Rule ‘‘States should use a PM10 nonattainment major I. Background NSR program as a surrogate to address the II. This Action EPA finalized the NSR PM2.5 Rule on requirements of nonattainment major NSR for the III. Final Action May 16, 2008, which revised the NSR PM2.5 NAAQS.’’).

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52.21(i)(1)(xi). This grandfathering 16, 2012, EPA proposed a rulemaking to Club v. EPA, Case No. 10–1413 (DC provision applied to sources that had amend the definition of ‘‘regulated NSR Circuit Court).7 applied for, but had not yet received, a pollutant’’ promulgated in the NSR 1. PSD Increments final and effective PSD permit before the PM2.5 Rule regarding the PM July 15, 2008, effective date of the May condensable provision at 40 CFR PSD increments prevent air quality in 2008 final rule. The second exception 51.166(b)(49)(vi), 52.21(b)(50)(i) and clean areas from deteriorating to the level set by the NAAQS. Therefore, an was that states with SIP-approved PSD EPA’s Emissions Offset Interpretative increment is the mechanism used to programs could continue to implement Ruling. See 77 FR 15656. The estimate ‘‘significant deterioration’’ 8 of the Seitz Memo’s PM10 Surrogate Policy rulemaking proposes to remove the for up to three years (until May 2011) air quality for a pollutant in an area. inadvertent requirement in the NSR or until the individual revised state PSD Under section 165(a)(3) of the CAA, a PM2.5 Rule that the measurement of programs for PM2.5 are approved by PSD permit applicant must demonstrate EPA, whichever comes first. On May 18, condensable ‘‘particulate matter that emissions from the proposed 2011 (76 FR 28646), EPA took final emissions’’ be included as part of the construction and operation of a facility action to repeal the grandfathering measurement and regulation of ‘‘will not cause, or contribute to, air provision at 40 CFR 52.21(i)(1)(xi). This ‘‘particulate matter emissions.’’ 5 pollution in excess of any maximum final action ended the use of the 1997 allowable increase or allowable B. PM2.5 PSD IncrementSILs-SMC Rule PM10 Surrogate Policy for PSD permits concentration for any pollutant.’’ When under the federal PSD program at 40 The PM2.5 PSD Increment-SILs-SMC a source applies for a permit to emit a CFR 52.21. In effect, any PSD permit Rule provided additional regulatory regulated pollutant in an area that meets applicant previously covered by the requirements under the PSD program the NAAQS, the state and EPA must grandfathering provision (for sources regarding the implementation of the determine if emissions of the regulated pollutant from the source will cause that completed and submitted a permit PM2.5 NAAQS for NSR including: (1) application before July 15, 2008) 3 that PM increments pursuant to section significant deterioration in air quality. 2.5 As described in the PM PSD did not have a final and effective PSD 166(a) of the CAA to prevent significant 2.5 Increment-SILs-SMC Rule, pursuant to permit before the effective date of the deterioration of air quality in areas the authority under section 166(a) of the repeal will not be able to rely on the meeting the NAAQS; (2) SILs used as a CAA, EPA promulgated numerical PSD 1997 PM10 Surrogate Policy to satisfy screening tool (by a major source subject increments for PM2.5 as a new the PSD requirements for PM2.5 unless to PSD) to evaluate the impact a the application includes a valid pollutant 9 for which NAAQS were proposed major source or modification surrogacy demonstration.4 See 76 FR established after August 7, 1977,10 and may have on the NAAQS or PSD 28646. In its March 15, 2012, SIP derived 24-hour and annual PM2.5 revision, Florida did not adopt the increment; and (3) a SMC, (also a increments for the three area grandfathering provision at 40 CFR screening tool) used by a major source classifications (Class I, II and III) using 52.21(i)(1)(xi) into its PSD regulations. subject to PSD to determine the the ‘‘contingent safe harbor’’ approach. Therefore, Florida’s SIP is consistent subsequent level of PM2.5 data gathering See 75 FR 64869 and the ambient air with current federal regulations required for a PSD permit application. increment tables at 40 CFR 51.166(c)(1) regarding the repeal of the The SILs and SMC are numerical values and 52.21(c). In addition to PSD grandfathering provision. that represent thresholds of increments for the PM2.5 NAAQS, the insignificant, i.e., de minimis,6 modeled PM2.5 PSD Increment-SILs-SMC Rule 2. ‘‘Condensable’’ Provision source impacts or monitored (ambient) amended the definition at 40 CFR In the NSR PM2.5 Rule, EPA revised concentrations, respectively. EPA 51.166 and 52.21 for ‘‘major source the definition of ‘‘regulated NSR established such values to be used as baseline date’’ and ‘‘minor source pollutant’’ for PSD to add a paragraph screening tools by a major source baseline date’’ (including trigger date) to providing that ‘‘particulate matter (PM) subject to PSD to determine the establish the PM2.5 NAAQS specific emissions, PM2.5 emissions and PM10 subsequent level of analysis and data dates associated with the emissions’’ shall include gaseous gathering required for a PSD permit 7 emissions from a source or activity application for emissions of PM On April 6, 2012, EPA filed a brief with the D.C. 2.5. Circuit court defending the Agency’s authority to which condense to form particulate EPA’s authority to implement the SILs matter at ambient temperatures and that implement SILs and SMC for PSD purposes. and SMC for PSD purposes has been 8 Significant deterioration occurs when the on or after January 1, 2011, such challenged by the Sierra Club. Sierra amount of the new pollution exceeds the applicable condensable particulate matter shall be PSD increment, which is the ‘‘maximum allowable accounted for in applicability increase’’ of an air pollutant allowed to occur above 5 determinations and in establishing The term ‘‘particulate matter emissions’’ the applicable baseline concentration1 for that includes particles that are larger than PM2.5 and pollutant. Section 169(4) of the CAA provides that emissions limitations for PM, PM2.5 and PM10 and is an indicator measured under various the baseline concentration of a pollutant for a PM10 in permits issued. See 40 CFR New Source Performance Standards (NSPS) at 40 particular baseline area is generally the air quality 51.166(b)(49)(vi), 52.21(b)(50)(vi) and CFR part 60. In addition to the NSPS for PM, it is at the time of the first application for a PSD permit ‘‘Emissions Offset Interpretative Ruling’’ noted that states have regulated ‘‘particulate matter in the area. 9 emissions’’ for many years in their SIPs for PM, and EPA generally characterized the PM2.5 NAAQS (40 CFR part 51, appendix S). On March the same indicator has been used as a surrogate for as a NAAQS for a new indicator of PM. EPA did determining compliance with certain standards not replace the PM10 NAAQS with the NAAQS for 3 Sources that applied for a PSD permit under the contained in 40 CFR part 63, regarding National PM2.5 when the PM2.5 NAAQS were promulgated in federal PSD program on or after July 15, 2008, are Emission Standards for Hazardous Air Pollutants. 1997. EPA rather retained the annual and 24-hour already excluded from using the 1997 PM10 6 The de minimis principle is grounded in a NAAQS for PM2.5 as if PM2.5 was a new pollutant Surrogate Policy as a means of satisfying the PSD decision described by the court case Alabama even though EPA had already developed air quality requirements for PM2.5. See 76 FR 28321. Power Co. v. Costle, 636 F.2d 323, 360 (D.C. Cir. criteria for PM generally. See 75 FR 64864 (October 4 Additional information on this issue can also be 1980). In this case, reviewing EPA’s 1978 PSD 20, 2012). found in an August 12, 2009, final order on a title regulations, the court recognized that ‘‘there is 10 EPA interprets 166(a) to authorize EPA to V petition describing the use of PM10 as a surrogate likely a basis for an implication of de minimis promulgate pollutant-specific PSD regulations for PM2.5. In the Matter of Louisville Gas & Electric authority to provide exemption when the burdens meeting the requirements of section 166(c) and Company, Petition No. IV–2008–3, Order on of regulation yield a gain of trivial or no value.’’ 636 166(d) for any pollutant for which EPA promulgates Petition (August 12, 2009). F.2d at 360. See 75 FR 64864. a NAAQS after 1977.

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3 implementation of PM2.5 PSD SILs-SMC Rules. FDEP’s PSD program and SMC of 4 mg/m for PM2.5 NAAQS. increments. See 75 FR 64864. definitions and preconstruction The March 15, 2012, SIP revision: (1) permitting rules are found at rule 62– Revises the definition for ‘‘maximum 2. Significant Monitoring 210.200, F.A.C., and rules 62–212.300 allowable increase’’ to incorporate by Concentrations through 62–212.400, F.A.C., reference (IBR) the PM2.5 PSD As mentioned above, the SMC respectively and apply to major increments numerical values numerical value represents a threshold stationary sources or modifications (established in the ambient air of insignificant (i.e., de minimis) constructed in areas designated increment tables at 40 CFR 51.166(c)(1) monitored ambient impacts on pollutant attainment or unclassifiable/attainment and 52.21(c) at 62–204.800, F.A.C.13); concentrations. In the PM2.5 PSD as required under part C of title I of the (2) amends the definitions for ‘‘major Increment-SILs-SMC Rule, EPA CAA with respect to the NAAQS. These source baseline date’’ and ‘‘minor 3 established a PM2.5 SMC of 4 mg/m to changes to Florida’s rules became state source baseline date’’ to establish be used as a screening tool by a major effective on March 28, 2012. FDEP’s SIP relevant dates for PM2.5 increment source subject to PSD to determine the revision adopts the NSR PM2.5 Rule PSD consumption and establish trigger dates subsequent level of PM2.5 data gathering provisions including: (1) The (as established at 40 CFR required for a PSD permit application. requirement for NSR permits to address 51.166(b)(14)(i)(c) and Using the SMC as a screening tool, directly emitted PM2.5 and precursor 51.166(b)(14)(ii)(c) respectively) and; (3) sources may be able to demonstrate that pollutants; (2) the amendment revises the definition for ‘‘baseline the modeled air quality impact of establishing significant emission rates area’’ as promulgated at 40 CFR emissions from the new source or for direct PM2.5 and precursor pollutants 51.166(b)(15)(i) and (ii) and adds modification, or the existing air quality (SO2 and NOX) and recognizing PM2.5 definitions for ‘‘baseline concentration.’’ level in the area where the source would precursors for the definition of The March 15, 2012, SIP submission construct, is less than the SMC (i.e., de ‘‘significant emission rates’’ (at rule 62– also adds definitions for ‘‘Class I Area’’ minimis), and as such, may be allowed 21.200(282)) (as amended at 40 CFR and ‘‘Class II Area’’ at Chapter 62– to forego the preconstruction monitoring 51.166(b)(23)(i)); and (3) the PSD 210.200(77) and (78), F.A.C., requirement for a particular pollutant at requirement for states to address respectively. The definition for Class I the discretion of the reviewing condensable PM in establishing Area IBR 40 CFR part 81, Subpart D (the authority. enforceable emission limits for PM10 federal Class I Area list) at rule 62– Recently, the Sierra Club filed suit and PM2.5 (at 62–212.300(1)(f)) as 204.800, F.A.C. challenging EPA’s authority to promulgated at 40 CFR 51.166(b)(49). Regarding the SILs and SMC, EPA’s 11 implement the PM2.5 SILs as well as Additionally, Florida’s March 15, 2012, authority to implement the PM2.5 SILs the SMC for PSD purposes as SIP revision did not adopt the and SMC is currently the subject of promulgated in the October 20, 2012, grandfathering provision at 40 CFR litigation by the Sierra Club. In a brief rule. Sierra Club v. EPA, Case No 10– 52.21(i)(1)(xi) in accordance with the filed in the DC Circuit on April 6, 2012, 1413, DC Circuit Court. Specifically, repeal of the PM2.5 grandfathering EPA described the Agency’s authority regarding the SMC, Sierra Club claims provision. under the CAA to promulgate and that the use of SMCs to exempt a source Regarding the condensable provision implement the SMCs and SILs de from submitting a year’s worth of and EPA’s intent to amend the minimis thresholds. Sierra Club v. EPA, monitoring data is inconsistent with the definition of ‘‘regulated NSR pollutant’’ Case No 10–1413 DC Circuit. However, CAA. EPA responded to Sierra Club’s as discussed in the March 16, 2012, EPA is finalizing approval of the claims in a Brief dated April 6, 2012, correction rulemaking, Florida’s March promulgated SMC thresholds into the which describes the Agency’s authority 15, 2012, SIP revision did not adopt the Florida SIP (at rule 62–212.400(3)(e)1, to develop and promulgate SMC.12 A term ‘‘particulate matter emissions’’ F.A.C.) because the Agency believes the copy of EPA’s April 6, 2010, Brief can regarding the requirement to consider SMC is a valid exercise of the Agency’s be found in the docket for today’s final condensables as promulgated in the de minimis authority as well as the fact rulemaking at www.regulations.gov NSR PM2.5 Rule. See 77 FR 15656. As they are consistent with EPA’s mentioned above, EPA is taking final using docket ID: EPA–R04–OAR–2012– promulgated levels in the PM2.5 PSD 0555. action to approve into the Florida SIP Increment-SILs-SMC Rule. The ongoing the remaining condensable requirement litigation may result in the court II. This Action at 40 CFR 51.166(b)(49)(vi), which decision that may require subsequent EPA is taking final action to approve requires that condensable emissions be rule revisions and SIP revisions from into the Florida SIP portions of the accounted for in applicability Florida. State’s March 15, 2012, SIP revision to determinations and in establishing In response to the litigation, EPA adopt the PSD permitting regulations to emissions limitations for PM2.5 and requested that the court remand and implement the PM NAAQS including PM10. Florida’s March 15, 2012, SIP vacate the new regulatory text at 40 CFR 2.5 revision added definitions for the NSR PM2.5 and PM2.5 Increment- 51.166(k)(2) and 52.21(k)(2) concerning ‘‘condensable PM10’’ at 62–210.200(94), the implementation of SILs for PM2.5 so 11 As mentioned earlier, due to litigation by the ‘‘condensable PM2.5’’ at 62–210–200(95) that EPA can make necessary Sierra Club, EPA is not taking final action on the and ‘‘condensable PM’’ at 62– rulemaking revisions to that text.14 In SILs portion of the Florida March 15, 2012, SIP 210.200(93), for clarification purposes. light of EPA’s request for remand and revision at this time but will take action once the EPA is taking final action to approve the court case regarding SILs implementation is vacatur and our acknowledgement of resolved. aforementioned changes into the Florida 12 Additional information on this issue can also SIP. 13 Florida IBR federal rules at rule 62–204.800 be found in an April 25, 2010, comment letter from With respect to the PM2.5 PSD F.A.C. EPA Region 6 to the Louisiana Department of Increment-SILs SMC Rule, EPA is taking 14 In the preamble to the October 20, 2010, final Environmental Quality regarding the SILs-SMC final action to also approve into the rule EPA indicates that the Agency does not litigation. A copy of this letter can be found in the consider the SILs to be a mandatory SIP element, docket for today’s rulemaking at Florida SIP the PSD increments for but regard them as discretionary on the part of www.regulations.gov using docket ID: EPA–R04– PM2.5 annual and 24-hour NAAQS regulating authority for use in the PSD permitting OAR–2012–0555. pursuant to section 166(a) of the CAA process. See 75 FR 64864 at 64899.

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the need to revise the regulatory text • Is certified as not having a the U.S. House of Representatives, and presently contained at paragraph (k)(2) significant economic impact on a the Comptroller General of the United of sections 51.166 and 52.21, the substantial number of small entities States prior to publication of the rule in Agency has determined at this time not under the Regulatory Flexibility Act (5 the Federal Register. A major rule to approve the SILs portion of FDEP’s U.S.C. 601 et seq.); cannot take effect until 60 days after it March 15, 2012, SIP revision that • Does not contain any unfunded is published in the Federal Register. contains the affected regulatory text in mandate or significantly or uniquely This action is not a ‘‘major rule’’ as Florida’s PSD regulations at rule, 62– affect small governments, as described defined by 5 U.S.C. 804(2). 212.400(5), F.A.C., and 62– in the Unfunded Mandates Reform Act Under section 307(b)(1) of the CAA, 210.200(283)(c), F.A.C. EPA will take of 1995 (Pub. L. 104–4); petitions for judicial review of this • action on the SILs portion of Florida’s Does not have Federalism action must be filed in the United States March 15, 2012, SIP revision in a implications as specified in Executive Court of Appeals for the appropriate separate rulemaking once the issue Order 13132 (64 FR 43255, August 10, circuit by November 19, 2012. Filing a regarding the court case has been 1999); petition for reconsideration by the • resolved.15 Is not an economically significant Administrator of this final rule does not regulatory action based on health or III. Final Action affect the finality of this action for the safety risks subject to Executive Order purposes of judicial review nor does it EPA is taking final action to approve 13045 (62 FR 19885, April 23, 1997); • extend the time within which a petition portions of Florida’s March 15, 2012, Is not a significant regulatory action for judicial review may be filed, and SIP revision (with the exception of the subject to Executive Order 13211 (66 FR shall not postpone the effectiveness of SILs threshold and provisions), that 28355, May 22, 2001); such rule or action. This action may not • Is not subject to requirements of adopt federal permitting regulations be challenged later in proceedings to Section 12(d) of the National amended in the NSR PM2.5 and the enforce its requirements. See section Technology Transfer and Advancement PM2.5 PSD Increment-SILs-SMC Rules to 307(b)(2). implement the PM2.5 NAAQS for the Act of 1995 (15 U.S.C. 272 note) because NSR program because they are application of those requirements would List of Subjects in 40 CFR Part 52 be inconsistent with the CAA; and consistent with section 110 of the CAA Environmental protection, Air • Does not provide EPA with the and its regulations regarding NSR pollution control, Incorporation by discretionary authority to address, as permitting. reference, Intergovernmental relations, appropriate, disproportionate human Particulate matter, Reporting and IV. Statutory and Executive Order health or environmental effects, using recordkeeping requirements, and Reviews practicable and legally permissible Volatile organic compounds. Under the CAA, the Administrator is methods, under Executive Order 12898 required to approve a SIP submission (59 FR 7629, February 16, 1994). Dated: September 6, 2012. that complies with the provisions of the In addition, this rule does not have A. Stanley Meiburg, Act and applicable federal regulations. tribal implications as specified by Acting Regional Administrator, Region 4. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Executive Order 13175 (65 FR 67249, 40 CFR part 52 is amended as follows: Thus, in reviewing SIP submissions, November 9, 2000), because the SIP is EPA’s role is to approve state choices, not approved to apply in Indian country PART 52—[AMENDED] provided that they meet the criteria of located in the State, and EPA notes that the CAA. Accordingly, this action it will not impose substantial direct ■ 1. The authority citation for part 52 merely approves state law as meeting costs on tribal governments or preempt continues to read as follows: federal requirements and does not tribal law. Authority: 42. U.S.C. 7401 et seq. impose additional requirements beyond The Congressional Review Act, 5 those imposed by state law. For that U.S.C. 801 et seq., as added by the Small Subpart K—Florida reason, this action: Business Regulatory Enforcement • Is not a ‘‘significant regulatory Fairness Act of 1996, generally provides ■ 2. Section 52.520(c) is amended under action’’ subject to review by the Office that before a rule may take effect, the Chapters 62–210 and 62–212 by revising of Management and Budget under agency promulgating the rule must the entries for ‘‘Section 62–210.200’’ Executive Order 12866 (58 FR 51735, submit a rule report, which includes a and ‘‘Section 62–212.400’’ to read as October 4, 1993); copy of the rule, to each House of the follows: • Does not impose an information Congress and to the Comptroller General collection burden under the provisions of the United States. EPA will submit a § 52.520 Identification of plan. of the Paperwork Reduction Act (44 report containing this action and other * * * * * U.S.C. 3501 et seq.); required information to the U.S. Senate, (c) * * *

EPA-APPROVED FLORIDA REGULATIONS

State effective State citation Title/subject date EPA approval date Explanation

15 EPA is currently developing guidance to (k)(2) provisions and the litigation. The guidance that a source’s impact will not cause or contribute provide a provisional course of action to implement will ensure that the PM2.5 SILs are properly applied to a violation of the PM2.5 NAAQS or increment. the PM2.5 SILs pending revision to implementing as part of a PSD compliance demonstration to show

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EPA-APPROVED FLORIDA REGULATIONS—Continued

State effective State citation Title/subject date EPA approval date Explanation

*******

Chapter 62–210 Stationary Sources—General Requirements

62–210.200 ... Definitions ...... March 28, 2012 September 19, 2012 [Insert cita- As of September 19, 2012, 61–210.200 does not tion of publication]. include Florida’s revision to adopt the PM2.5 SILs threshold and provisions (as promulgated in the October 20, 2010, PM2.5 PSD Increment-SILs- SMC Rule at 40 CFR 52.21(k)(2)).

*******

Chapter 62–212 Stationary Sources—Preconstruction Review

62–212.400 ... Prevention of March 28, 2012 September 19, 2012 [Insert cita- As of September 19, 2012, 61–212.400 does not Significant De- tion of publication]. include Florida’s revision to adopt the PM2.5 SILs terioration. threshold and provisions (as promulgated in the October 20, 2010, PM2.5 PSD Increment-SILs- SMC Rule at 40 CFR 52.21(k)(2)).

*******

* * * * * emissions from sources in the area do Ross Avenue, Suite 700, Dallas, Texas [FR Doc. 2012–22976 Filed 9–18–12; 8:45 am] not interfere with prevention of 75202–2733. The file will be made BILLING CODE 6560–50–P significant deterioration (PSD) measures available by appointment for public required in the SIP of any other state, inspection in the Region 6 FOIA Review with regard to the 1997 and 2008 ozone Room between the hours of 8:30 a.m. ENVIRONMENTAL PROTECTION and 1997 and 2006 PM2.5 NAAQS. EPA and 4:30 p.m. weekdays except for legal AGENCY is also approving SIP revisions that holidays. Contact the person listed in modify the PSD SIP to include nitrogen the FOR FURTHER INFORMATION CONTACT 40 CFR Part 52 oxides (NOX) as an ozone precursor. paragraph below or Mr. Bill Deese at [EPA–R06–OAR–2009–0648; FRL–9728–7] EPA is approving revisions to the 214–665–7253 to make an appointment. Albuquerque/Bernalillo County PSD SIP If possible, please make the Approval and Promulgation of that identify the PM2.5 precursors and appointment at least two working days Implementation Plans; New Mexico; establish significant emission rates for in advance of your visit. There will be Albuquerque/Bernalillo County: said precursors, consistent with the a fee of 15 cents per page for making Infrastructure and Interstate Transport federal requirements. We are also photocopies of documents. On the day Requirements for the 1997 and 2008 approving other revisions to the of the visit, please check in at the EPA Ozone and the 1997 and 2006 PM2.5 Albuquerque/Bernalillo County PSD SIP Region 6 reception area at 1445 Ross NAAQS to maintain consistency with the federal Avenue, Suite 700, Dallas, Texas. PSD permitting requirements. In The State submittal is also available AGENCY: Environmental Protection addition to these revisions, EPA is for public inspection during official Agency (EPA). approving other revisions to the business hours, by appointment, at the ACTION: Final rule. Albuquerque/Bernalillo County SIP City of Albuquerque, Environmental necessary to implement the NAAQS. Health Department—Air Quality SUMMARY: EPA is approving submittals Division, One Civic Plaza, Room 3047, from the Governor of New Mexico for DATES: This final rule is effective on Albuquerque, New Mexico 87103, the City of Albuquerque/Bernalillo October 19, 2012. telephone 505–768–1972, email address County area, pursuant to the Clean Air ADDRESSES: EPA has established a [email protected]. Act (CAA or the Act). These submittals docket for this action under Docket address the infrastructure elements Identification No. EPA–R06–OAR– FOR FURTHER INFORMATION CONTACT: Mr. specified in the CAA necessary to 2009–0648. All documents in the docket John Walser, Air Planning Section implement, maintain, and enforce the are listed in the www.regulations.gov (6PD–L), Environmental Protection 1997 and 2008 8-hour ozone and the index. Although listed in the index, Agency, Region 6, 1445 Ross Avenue, 1997 and 2006 fine particulate matter some information is not publicly Suite 700, Dallas, Texas 75202–2733, (PM2.5) national ambient air quality available, e.g., CBI or other information telephone 214–665–7128; fax number standards (NAAQS or standards). We whose disclosure is restricted by statute. 214–665–6762; email address find that the current Albuquerque/ Certain other material, such as [email protected]. Bernalillo County State Implementation copyrighted material, will be publicly SUPPLEMENTARY INFORMATION: Plan (SIP) meets the infrastructure available only in hard copy. Publicly Throughout this document, ‘‘we,’’ ‘‘us,’’ elements for the 1997 and 2008 8-hour available docket materials are available and ‘‘our’’ means EPA. ozone NAAQS and the 1997 and 2006 either electronically in Table of Contents PM2.5 NAAQS. We also find that the www.regulations.gov or in hard copy at current Albuquerque/Bernalillo County the Air Planning Section (6PD–L), I. Background SIP meets the CAA requirement that Environmental Protection Agency, 1445 a. Section 110(a)(1) and (2)

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b. PSD Requirements County SIP meets the section 110(a)(1) Future SIP revisions (110(a)(2)(H) of the c. Additional SIP Revisions and (2) infrastructure and interstate Act); II. Final Action transport SIP elements previously listed Consultation with government officials III. Statutory and Executive Order Reviews for the four NAAQS, we proposed to (110(a)(2)(J) of the Act); approve portions of two SIP revisions Public notification (110(a)(2)(J) of the Act); I. Background Prevention of significant deterioration and submitted by the Governor of New a. Section 110(a)(1) and (2) visibility protection (110(a)(2)(J) of the Act); Mexico to EPA on May 24, 2006 and Air quality modeling data (110(a)(2)(K) of The background for today’s action is August 16, 2010 to the Albuquerque the Act); discussed in detail in our April 13, 2012 PSD Permitting Program at 20.11.61 Permitting fees (110(a)(2)(L) of the Act); proposal (76 FR 22249). In that notice NMAC. These revisions identify NOX as and we proposed to approve submittals from a precursor to ozone, identify the Consultation/participation by affected local Albuquerque/Bernalillo County that precursors for PM2.5 and the applicable entities (110(a)(2)(M) of the Act). address the infrastructure elements significant emission rates for PM2.5 PSD We are approving the portion of the specified in the CAA section 110(a)(2), permitting, and make other necessary Albuquerque/Bernalillo County SIP necessary to implement, maintain, and updates to maintain consistency with revision submittal that addresses the enforce the 1997 and 2008 ozone and the federal PSD permitting requirements requirement of section 110(a)(2)(D)(i)(II) the 1997 and 2006 PM2.5 standards. at 40 CFR 51.166 and 40 CFR Part 51, of the Act that emissions from sources Those submittals are dated May 24, Appendix W. EPA believes that these in Albuquerque/Bernalillo County do 2006 and August 16, 2010. We proposed PSD revisions, taken together with the not interfere with measures required in to find that the following section PSD SIP and the interstate transport SIP, the SIP of any other state under part C 110(a)(2) elements are contained in the satisfies the PSD-related requirements of of the Act regarding PSD for the 1997 current Albuquerque/Bernalillo County 110(a)(2)(C), 110(a)(2)(J), and the and 2008 8-hour ozone and 1997 and SIP and provide the infrastructure for element of section 110(a)(2)(D)(i) which 2006 PM NAAQS. implementing the 1997 and 2008 ozone 2.5 requires that the SIP prohibit air We are approving Albuquerque/ and the 1997 and 2006 PM standards: 2.5 emissions from sources within a state Bernalillo County PSD SIP provisions to emission limits and other control from interfering with measures required 20.11.61 NMAC submitted May 24, 2006 measures (section 110(a)(2)(A)); ambient to prevent significant deterioration of air and August 16, 2010. These SIP air quality monitoring/data system quality in any other state. (section 110(a)(2)(B)); the program for revisions address NOX as a precursor for enforcement of control measures c. Additional SIP Revisions ozone, consistent with EPA’s November 29, 2005 Phase 2 rule for the 1997 ozone (section 110(a)(2)(C)); international and EPA also proposed to approve a NAAQS (70 FR 71612). These revisions interstate pollution abatement (section portion of a SIP revision submitted on also identify the precursors for PM 110(a)(2)(D)(ii)); adequate resources November 6, 2009 revising the 2.5 and significant emission rates necessary (section 110(a)(2)(E)); stationary source Albuquerque/Bernalillo County SIP for for PM PSD permitting, consistent monitoring system (section 110(a)(2)(F)); Ambient Air Quality Standards, 2.5 with EPA’s 2008 PM NSR rule for the emergency power (section 110(a)(2)(G)); codified at 20.11.8 NMAC (Part 8). The 2.5 1997 and 2006 PM NAAQS (73 FR future SIP revisions (section substantive revisions submitted to Part 2.5 28321, May 16, 2008). Additionally, the 110(a)(2)(H)); consultation with 8 revise the local ambient air quality May 24, 2006 and August 16, 2010 government officials (section standards to make them consistent with submittals make numerous other 110(a)(2)(J)); public notification (section the current NAAQS. 110(a)(2)(J)); PSD and visibility Our April 13, 2012 proposal provides changes necessary to maintain protection (section 110(a)(2)(J)); air a detailed description of all relevant consistency with the federal PSD quality modeling/data (section submittals and the rationale for EPA’s permitting requirements. Specifically, 110(a)(2)(K)); permitting fees (section proposed actions, together with a we are approving revisions to 110(a)(2)(L)); and consultation/ discussion of the opportunity to 20.11.61.7, 20.11.61.28, and 20.11.61.29 participation by affected local entities comment. The public comment period NMAC submitted on May 24, 2006. We (section 110(a)(2)(M)). for these actions closed on May 14, are also approving revisions to In addition, we proposed to find that 2012, and we did not receive any 20.11.61.1, 20.11.61.2, 20.11.61.7, Albuquerque/Bernalillo County has adverse comments. 20.11.61.11, 20.11.61.12, 20.11.61.14, adequately addressed one of the four 20.11.61.15, 20.11.61.16, 20.11.61.17, required elements (or prongs) of CAA II. Final Action 20.11.61.18, 20.11.61.19, 20.11.61.20, section 110(a)(2)(D)(i), the element We are approving the submittals 20.11.61.21, 20.11.61.23, 20.11.61.24, which requires that the SIP prohibit air provided to demonstrate that the 20.11.61.25, 20.11.61.26, 20.11.61.27, emissions from sources within a state Albuquerque/Bernalillo County SIP 20.11.61.28, 20.11.61.29, 20.11.61.30, from interfering with measures required meets the infrastructure elements for the and 20.11.61.31 NMAC submitted on to prevent significant deterioration of air 1997 and 2008 ozone and 1997 and August 16, 2010. quality in any other state. We are 2006 PM2.5 NAAQS listed below: We are also approving SIP revisions from November 6, 2009 pertaining to determining that emissions from sources Emission limits and other control measures in Albuquerque/Bernalillo County do (110(a)(2)(A) of the Act); updating Part 8 Ambient Air Quality not interfere with measures to prevent Ambient air quality monitoring/data Standards (20.11.8 NMAC). EPA is significant deterioration of air quality in system (110(a)(2)(B) of the Act); approving these revisions pursuant to any other state for the 1997 and 2008 Program for enforcement of control section 110 of the CAA. These revisions ozone and the 1997 and 2006 PM measures (110(a)(2)(C) of the Act); improve the Albuquerque/Bernalillo 2.5 Interstate transport, pursuant to section NAAQS (CAA section County SIP and update 20.11.8 NMAC 110(a)(2)(D)(ii) of the Act; to add new standards and revise 110(a)(2)(D)(i)(II)). Adequate resources (110(a)(2)(E) of the existing NAAQS in 20.11.8 NMAC to be b. PSD Requirements Act); Stationary source monitoring system consistent with 40 CFR Part 50— In conjunction with our proposed (110(a)(2)(F) of the Act); National Primary and Secondary finding that the Albuquerque/Bernalillo Emergency power (110(a)(2)(G) of the Act); Ambient Air Quality Standards.

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III. Statutory and Executive Order appropriate, disproportionate human reference, Intergovernmental relations, Reviews health or environmental effects, using Nitrogen dioxides, Ozone, Particulate Under the CAA, the Administrator is practicable and legally permissible matter, Reporting and recordkeeping required to approve a SIP submission methods, under Executive Order 12898 requirements, Volatile organic that complies with the provisions of the (59 FR 7629, February 16, 1994). compounds. Act and applicable Federal regulations. In addition, this rule does not have Dated: September 5, 2012. tribal implications as specified by 42 U.S.C. 7410(k); 40 CFR 52.02(a). Samuel Coleman, Executive Order 13175 (65 FR 67249, Thus, in reviewing SIP submissions, Acting Regional Administrator, Region 6. EPA’s role is to approve state choices, November 9, 2000), because the SIP is provided that they meet the criteria of not approved to apply in Indian country 40 CFR part 52 is amended as follows: located in the state, and EPA notes that the CAA. Accordingly, this action PART 52—[AMENDED] merely approves state law as meeting it will not impose substantial direct Federal requirements and does not costs on tribal governments or preempt tribal law. ■ 1. The authority citation for part 52 impose additional requirements beyond continues to read as follows: those imposed by state law. For that The Congressional Review Act, 5 reason, this action: U.S.C. 801 et seq., as added by the Small Authority: 42 U.S.C. 7401 et seq. • Is not a ‘‘significant regulatory Business Regulatory Enforcement action’’ subject to review by the Office Fairness Act of 1996, generally provides Subpart GG—New Mexico of Management and Budget under that before a rule may take effect, the Executive Order 12866 (58 FR 51735, agency promulgating the rule must ■ 2. Amend § 52.1620 by: October 4, 1993); submit a rule report, which includes a ■ a. Amending the second table in • Does not impose an information copy of the rule, to each House of the paragraph (c) entitled ‘‘EPA-Approved collection burden under the provisions Congress and to the Comptroller General Albuquerque/Bernalillo County, NM of the Paperwork Reduction Act (44 of the United States. EPA will submit a Regulations’’ as follows: U.S.C. 3501 et seq.); report containing this action and other ■ i. Revising the entry for Part 8 (20.11.8 • Is certified as not having a required information to the U.S. Senate, NMAC) under the heading ‘‘New significant economic impact on a the U.S. House of Representatives, and Mexico Administrative Code (NMAC) substantial number of small entities the Comptroller General of the United Title 20—Environment Protection, under the Regulatory Flexibility Act (5 States prior to publication of the rule in Chapter 11—Albuquerque/Bernalillo U.S.C. 601 et seq.); the Federal Register. A major rule County Air Quality Control Board’’; and • cannot take effect until 60 days after it Does not contain any unfunded ■ ii. Revising the entry for Part 61 is published in the Federal Register. mandate or significantly or uniquely (20.11.61 NMAC) under the heading This action is not a ‘‘major rule’’ as affect small governments, as described ‘‘New Mexico Administrative Code in the Unfunded Mandates Reform Act defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the CAA, (NMAC) Title 20—Environment of 1995 (Pub. L. 104–4); Protection, Chapter 11—Albuquerque/ • Does not have Federalism petitions for judicial review of this action must be filed in the United States Bernalillo County Air Quality Control implications as specified in Executive Board’’. Order 13132 (64 FR 43255, August 10, Court of Appeals for the appropriate ■ b. Amending the second table in 1999); circuit by November 19, 2012. Filing a • Is not an economically significant petition for reconsideration by the paragraph (e) entitled ‘‘EPA-Approved regulatory action based on health or Administrator of this final rule does not Nonregulatory Provisions and Quasi- safety risks subject to Executive Order affect the finality of this action for the Regulatory Measures in the New Mexico 13045 (62 FR 19885, April 23, 1997); purposes of judicial review nor does it SIP’’ by adding a new entry for • Is not a significant regulatory action extend the time within which a petition ‘‘Infrastructure and Interstate Transport subject to Executive Order 13211 (66 FR for judicial review may be filed, and for the 1997 and 2008 Ozone and the 28355, May 22, 2001); shall not postpone the effectiveness of 1997 and 2006 PM2.5 NAAQS’’ at the • Is not subject to requirements of such rule or action. This action may not end of the table. section 12(d) of the National be challenged later in proceedings to The additions and revisions read as Technology Transfer and Advancement enforce its requirements. (See section follows: Act of 1995 (15 U.S.C. 272 note) because 307(b)(2).) § 52.1620 Identification of plan. application of those requirements would be inconsistent with the CAA; and List of Subjects in 40 CFR Part 52 * * * * * • Does not provide EPA with the Environmental protection, Air (c) * * * discretionary authority to address, as pollution control, Incorporation by * * * * *

EPA-APPROVED ALBUQUERQUE/BERNALILLO COUNTY, NM REGULATIONS

State State citation Title/subject approval/ EPA Approval date Explanation effective date

New Mexico Administrative Code (NMAC) Title 20—Environment Protection, Chapter 11—Albuquerque/Bernalillo County Air Quality Control Board

******* Part 8 (20.11.8 Ambient Air Quality Standards...... 8/12/2009 8/19/2012, [Insert FR page number NMAC). where document begins].

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EPA-APPROVED ALBUQUERQUE/BERNALILLO COUNTY, NM REGULATIONS—Continued

State State citation Title/subject approval/ EPA Approval date Explanation effective date

******* Part 61 (20.11.61 Prevention of Significant Deterioration.. 1/10/2011 8/19/2012, [Insert FR page number NMAC). where document begins].

*******

(e) * * * * * * * *

EPA-APPROVED NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES IN THE NEW MEXICO SIP

Applicable geographic or State Name of SIP provision nonattainment submittal/ EPA approval date Explanation area effective date

******* Infrastructure and Interstate Bernalillo County 8/16/2010 8/19/2012, [Insert FR page num- Approval for 110(a)(2)(A), (B), (C), Transport regarding noninter- ber where document begins]. (D)(i)(II), (D)(ii), (E), (F), (G), ference with other states’ pro- (H), (J), (K), (L), and (M). grams for PSD for the 1997 and 2008 Ozone and the 1997 and 2006 PM2.5 NAAQS.

■ 3. Amend § 52.1634 by revising ENVIRONMENTAL PROTECTION 2012. If EPA receives adverse comment paragraph (c) to read as follows: AGENCY or receives a request for a public hearing, we will publish a timely § 52.1634 Significant deterioration of air 40 CFR Part 82 withdrawal in the Federal Register quality. [EPA–HQ–OAR–2011–0111; FRL–9729–5] informing the public that all or part of * * * * * this rule will not take effect. RIN–2060–AQ84 (c) The plan submitted by the ADDRESSES: Submit your comments, Governor in paragraph (a) of this section Protection of Stratospheric Ozone: identified by Docket ID No. EPA–HQ– for Prevention of Significant Listing of Substitutes for Ozone- OAR–2011–0111, by one of the Deterioration is not applicable to Depleting Substances—Fire following methods: • Bernalillo County. Therefore, the Suppression and Explosion Protection Email: [email protected]. following plan described below is • Mail: OAR Docket and Information applicable to sources located within the AGENCY: Environmental Protection Center, U.S. Environmental Protection boundaries of Bernalillo County Agency (EPA). Agency, Mailcode 6102T, 1200 (including the City of Albuquerque). ACTION: Direct final rule. Pennsylvania Ave. NW., Washington, This plan, submitted by the Governor of DC 20460. To expedite review, a second SUMMARY: EPA is taking direct final copy of the comments should be sent to New Mexico on April 14, 1989, August action to list substitutes for ozone- 7, 1989, May 1, 1990, May 17, 1993, Bella Maranion at the address listed depleting substances (ODSs) in the fire below under FOR FURTHER INFORMATION May 24, 2006, August 16, 2010, and suppression and explosion protection CONTACT. December 15, 2010 and respectively sector as acceptable subject to use • Hand Delivery: Air and Radiation adopted on March 8, 1989, July 12, restrictions under the EPA’s Significant Docket, EPA/DC, EPA West, Room 3334, 1989, April 11, 1990, February 10, 1993, New Alternatives Policy program. This 1301 Constitution Ave. NW., December 22, 2005, April 13, 2006, July program implements Section 612 of the Washington, DC 20004. Such deliveries 28, 2010, and December 10, 2010, by the Clean Air Act, as amended in 1990, are only accepted during the Docket’s Albuquerque/Bernalillo County Air which requires EPA to evaluate normal hours of operation, and special Quality Control Board, containing Part substitutes for ozone-depleting arrangements should be made for 61—Prevention of Significant substances and find them acceptable deliveries of boxed information. Deterioration is approved as meeting the where they pose comparable or lower Instructions: Direct your comments to requirements of part C of the Clean Air overall risk to human health and the Docket ID No. EPA–HQ–OAR–2011– Act for the prevention of significant environment than other available 0111. EPA’s policy is that all comments deterioration of air quality. substitutes. received will be included in the public [FR Doc. 2012–22975 Filed 9–18–12; 8:45 am] DATES: This rule is effective on docket without change and may be BILLING CODE 6560–50–P December 18, 2012 without further made available online at notice, unless EPA receives adverse www.regulations.gov, including any comment or receives a request for a personal information provided, unless public hearing on or before October 19, the comment includes information

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claimed to be Confidential Business Public Reading Room is (202) 566–1744, www.epa.gov/ozone/snap/lists/ Information (CBI) or other information and the telephone number for the Air index.html. The action in this direct whose disclosure is restricted by statute. and Radiation Docket is (202) 566–1742. final rule will add a total of three fire Do not submit information that you FOR FURTHER INFORMATION CONTACT: suppression agents to the SNAP list of consider to be CBI or otherwise Bella Maranion, Stratospheric acceptable substitutes in the appendices protected through www.regulations.gov Protection Division, Office of to subpart G: two fire suppression or email. The www.regulations.gov Web Atmospheric Programs (6205J), agents are added to the list of substitutes site is an ‘‘anonymous access’’ system, Environmental Protection Agency, 1200 for halon 1301 that are acceptable which means EPA will not know your Pennsylvania Ave. NW., Washington, subject to use conditions and one fire identity or contact information unless DC 20460; telephone number: (202) suppression agent is added to the list of you provide it in the body of your 343–9749; fax number: (202) 343–2363; substitutes for halon 1211 that are comment. If you send an email email address: [email protected]. acceptable subject to narrowed use comment directly to EPA without going SUPPLEMENTARY INFORMATION: EPA is limits. This action does not place any through www.regulations.gov your email significant burden on the regulated address will be automatically captured publishing this rule without a prior proposed rule because we view this as community but lists as acceptable, and included as part of the comment subject to use restrictions, three new that is placed in the public docket and a non-controversial action and anticipate no adverse comment. halon substitutes. The restrictions will made available on the Internet. If you ensure that these substitutes will not submit an electronic comment, EPA However, in the ‘‘Proposed Rules’’ section of today’s Federal Register, we pose a greater risk to human health or recommends that you include your the environment than other potentially name and other contact information in are publishing a separate document that will serve as the proposed rule if available substitutes in the fire the body of your comment and with any suppression end use. disk or CD–ROM you submit. If EPA adverse comments are received or a public hearing is requested on this This direct final rule regulates the use cannot read your comment due to ® technical difficulties and cannot contact direct final rule. We will not institute a of Powdered Aerosol F (KSA ) and you for clarification, EPA may not be second comment period on this action. Powdered Aerosol G (Dry Sprinkler able to consider your comment. Any parties interested in commenting Powdered Aerosol (DSPA) Fixed Electronic files should avoid the use of must do so at this time. For further Generators) by finding them acceptable special characters, any form of information about commenting on this subject to use conditions as substitutes encryption, and be free of any defects or rule, see the ADDRESSES section of this for halon 1301 for use in total flooding viruses. For additional information document. If EPA receives adverse fire suppression systems in normally about EPA’s public docket visit the EPA comment or a request for a public unoccupied spaces. This action also Docket Center homepage at http:// hearing, we will publish a timely finds C7 Fluoroketone acceptable www.epa.gov/epahome/dockets.htm. withdrawal in the Federal Register subject to narrowed use limits as a Docket: All documents in the docket informing the public that this direct substitute for halon 1211 for use as a are listed on the www.regulations.gov final rule will not take effect. If a public streaming agent in portable fire Web site. Although listed in the index, hearing is requested, EPA will provide extinguishers in nonresidential some information is not publicly notice in the Federal Register as to the applications. Halons are chemicals that available, e.g., CBI or other information location, date, and time. We would were once widely used in the fire whose disclosure is restricted by statute. address all public comments in a protection sector but have been banned Certain other material, such as subsequent final rule based on the from production in the U.S. since 1994 copyrighted material, will be publicly proposed rule. because their emissions into the available only in hard copy. Publicly The regulations implementing the atmosphere are highly destructive to the available docket materials are available Significant New Alternatives Policy stratospheric ozone layer. This action either electronically through (SNAP) program are codified at 40 CFR will provide users that need specialized www.regulations.gov or in hard copy at part 82, subpart G. The appendices to fire protection applications with more the Air and Radiation Docket, EPA/DC, subpart G list substitutes for ozone- alternatives to the use of halons. EPA West, Room 3334, 1301 depleting substances (ODSs) for specific Businesses that may be regulated, either Constitution Ave. NW., Washington, end uses as unacceptable or acceptable through manufacturing, distribution, DC. The Public Reading Room is open with certain restrictions imposed on installation and servicing, or use of the from 8:30 a.m. to 4:30 p.m., Monday their use. In addition, a list of fire suppression equipment containing through Friday, excluding legal acceptable substitutes without the substitutes are listed in the table holidays. The telephone number for the restrictions is available at http:// below:

TABLE 1—POTENTIALLY REGULATED ENTITIES, BY NORTH AMERICAN INDUSTRIAL CLASSIFICATION SYSTEM (NAICS) CODE

Category NAICS code Description of regulated entities

Construction ...... 238210 Alarm system (e.g., fire, burglar), electric, installation only. Manufacturing ...... 325998 Fire extinguisher chemical preparations manufacturing. Manufacturing ...... 332919 Nozzles, fire fighting, manufacturing. Manufacturing ...... 334290 Fire detection and alarm systems manufacturing. Manufacturing ...... 336611 Shipbuilding and repairing. Manufacturing ...... 339999 Fire extinguishers, portable, manufacturing. Manufacturing ...... 336411 Aircraft manufacturing. Manufacturing ...... 336413 Other aircraft parts and auxiliary equipment manufacturing.

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This table is not intended to be reduces the overall risk to human health tobacco expansion. These sectors exhaustive, but rather a guide regarding and the environment, and (2) is comprise the principal industrial sectors entities likely to be regulated by this currently or potentially available. that historically consumed the largest action. If you have any questions about • Listing of Unacceptable/Acceptable volumes of ODS. whether this action applies to a Substitutes—Section 612(c) also Section 612 of the CAA requires EPA particular entity, consult the person requires EPA to publish a list of the to list as acceptable those substitutes listed in the FOR FURTHER INFORMATION substitutes unacceptable for specific that do not present a significantly CONTACT section. uses and to publish a corresponding list greater risk to human health and the of acceptable alternatives for specific environment as compared with other Table of Contents uses. The list of acceptable substitutes is substitutes that are currently or I. Section 612 Program found at http://www.epa.gov/ozone/ potentially available. A. Statutory Requirements snap/lists/index.html, and the lists of Under the SNAP regulations, anyone B. Regulatory History ‘‘unacceptable,’’ ‘‘acceptable subject to who plans to market or produce a II. Listing Decision: Fire Suppression and use conditions,’’ and ‘‘acceptable substitute to replace a class I substance Explosion Protection subject to narrowed use limits’’ or class II substance in one of the eight A. Total Flooding: Powdered Aerosol F substitutes are found in the appendices major industrial use sectors must (KSA®)—Acceptable Subject to Use to subpart G of 40 CFR part 82. provide notice to the Agency, including Conditions • B. Total Flooding: Powdered Aerosol G Petition Process—Section 612(d) health and safety information on the (Dry Sprinkler Powdered Aerosol (DSPA) grant the right to any person to petition substitute at least 90 days before Fixed Generators)—Acceptable Subject EPA to add a substitute to, or delete a introducing it into interstate commerce to Use Conditions substitute from, the lists published in for significant new use as an alternative. C. Streaming: C7 Fluoroketone— accordance with Section 612(c). The 40 CFR 82.176(a). This requirement Acceptable Subject to Narrowed Use Agency has 90 days to grant or deny a applies to the persons planning to Limits petition. Where the Agency grants the introduce the substitute into interstate III. Statutory and Executive Order Reviews petition, EPA must publish the revised commerce,1 which typically are A. Executive Order 12866: Regulatory lists within an additional six months. chemical manufacturers but may Planning and Review and Executive • 90-Day Notification—Section 612(e) include importers, formulators, or end- Order 13563: Improving Regulation and Regulatory Review directs EPA to require any person who users when they are responsible for B. Paperwork Reduction Act produces a chemical substitute for a introducing a substitute into C. Regulatory Flexibility Act class I substance to notify the Agency commerce.2 The 90-day SNAP review D. Unfunded Mandates Reform Act not less than 90 days before new or process begins once EPA receives the E. Executive Order 13132: Federalism existing chemicals are introduced into submission and determines that the F. Executive Order 13175: Consultation interstate commerce for significant new submission includes complete and and Coordination With Indian Tribal uses as substitutes for a class I adequate data (40 CFR 82.180(a)). As Governments substance. The producer must also required by the CAA, the SNAP G. Executive Order 13045: Protection of provide the Agency with the producer’s regulations, 40 CFR 82.174(a), prohibit Children From Environmental Health the introduction of a substitute into Risks and Safety Risks unpublished health and safety studies on such substitutes. interstate commerce earlier than 90 days H. Executive Order 13211: Actions That • Significantly Affect Energy Supply, Outreach—Section 612(b)(1) states after notice has been provided to the Distribution, or Use that the Administrator shall seek to Agency. I. National Technology Transfer and maximize the use of federal research The Agency has identified four Advancement Act facilities and resources to assist users of possible decision categories for J. Executive Order 12898: Federal Actions class I and II substances in identifying substitutes that are submitted for To Address Environmental Justice in and developing alternatives to the use of evaluation: acceptable; acceptable Minority Populations and Low-Income such substances in key commercial subject to use conditions; acceptable Populations applications. subject to narrowed use limits; and K. Congressional Review Act • Clearinghouse—Section 612(b)(4) unacceptable 3 (40 CFR 82.180(b)). Use I. Section 612 Program requires the Agency to set up a public conditions and narrowed use limits are clearinghouse of alternative chemicals, both considered ‘‘use restrictions’’ and A. Statutory Requirements product substitutes, and alternative are explained below. Substitutes that are Section 612 of the Clean Air Act manufacturing processes that are deemed acceptable with no use (CAA) requires EPA to develop a available for products and program for evaluating alternatives to manufacturing processes which use 1 As defined at 40 CFR 82.104, ‘‘interstate ozone-depleting substances. EPA refers class I and II substances. commerce’’ means the distribution or transportation to this program as the Significant New of any product between one state, territory, B. Regulatory History possession or the District of Columbia, and another Alternatives Policy (SNAP) program. state, territory, possession or the District of The major provisions of Section 612 are: On March 18, 1994, EPA published Columbia, or the sale, use or manufacture of any • Rulemaking—Section 612(c) the original rulemaking (59 FR 13044) product in more than one state, territory, possession or District of Columbia. The entry points for which requires EPA to promulgate rules which established the process for a product is introduced into interstate commerce making it unlawful to replace any class administering the SNAP program and are the release of a product from the facility in I (chlorofluorocarbon, halon, carbon issued EPA’s first lists identifying which the product was manufactured, the entry into tetrachloride, methyl chloroform, and acceptable and unacceptable substitutes a warehouse from which the domestic manufacturer releases the product for sale or distribution, and at hydrobromofluorocarbon) or class II in the major industrial use sectors the site of United States Customs clearance. (hydrochlorofluorocarbon) substance (subpart G of 40 CFR part 82). These 2 As defined at 40 CFR 82.172, ‘‘end-use’’ means with any substitute that the sectors include: refrigeration and air- processes or classes of specific applications within Administrator determines may present conditioning; foam blowing; solvents major industrial sectors where a substitute is used adverse effects to human health or the cleaning; fire suppression and explosion to replace an ODS. 3 The SNAP regulations also include ‘‘pending,’’ environment where the Administrator protection; sterilants; aerosols; referring to submissions for which EPA has not has identified an alternative that (1) adhesives, coatings and inks; and reached a determination, under this provision.

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restrictions (no use conditions or other regulatory programs (e.g., worker ingredients for this technology are narrowed use limits) can be used for all protection regulations promulgated by solids before and fine solid particulates applications within the relevant end- the U.S. Occupational Safety and Health after use; therefore, the ozone depletion uses within the sector. Substitutes that Administration (OSHA)). The ‘‘Further potential (ODP), global warming are acceptable subject to use restrictions Information’’ classification does not potential (GWP), and atmospheric may be used only in accordance with necessarily include all other legal lifetime (ALT) are zero. Thus, Powdered those restrictions. obligations pertaining to the use of the Aerosol F is not expected to pose any After reviewing a substitute, the substitute. While the items listed are not significant adverse impacts on the ozone Agency may determine that a substitute legally binding under the SNAP layer or climate. is acceptable only if certain conditions program, EPA encourages users of All manufacturing occurs in a facility in the way that the substitute is used are substitutes to apply all statements in the with strict controls on all raw materials met to minimize risks to human health ‘‘Further Information’’ column in their and processes, so minimal release to the and the environment. EPA describes use of the substitute. In many instances, ambient air is expected during the such substitutes as ‘‘acceptable subject the information simply refers to sound manufacturing process. Because to use conditions.’’ Entities that use operating practices that have already installation and servicing occur at very these substitutes without meeting the been identified in existing industry and/ large sites, releases in such locations are associated use conditions are in or building codes and standards. Thus, expected to be well below the violation of EPA’s SNAP regulations. 40 many of the comments, if adopted, acceptable exposure limits. In the event CFR 82.174(c). would not require the affected user to of a fire, Powdered Aerosol F is For some substitutes, the Agency may make significant changes in existing dispersed as fine solid particulates, permit a narrow range of use within an operating practices. reacting to the heat to suppress the fire. end-use or sector. For example, the For copies of the comprehensive The constituents of Powdered Aerosol F Agency may limit the use of a substitute SNAP lists of substitutes or additional are not volatile organic compounds to certain end-uses or specific information on SNAP, refer to EPA’s (VOCs). If all spilled and settled applications within an industry sector. Ozone Layer Protection Web site at material in the manufacturing facility EPA describes these substitutes as www.epa.gov/ozone/snap/index.html. and all on-site (installation, servicing, ‘‘acceptable subject to narrowed use For more information on the Agency’s and system discharge) releases are limits.’’ A person using a substitute that process for administering the SNAP cleaned up and disposed of according to is acceptable subject to narrowed use program or criteria for evaluation of federal, state, and local requirements, limits in applications and end-uses that substitutes, refer to the March 18, 1994, consistent with the material safety data are not consistent with the narrowed SNAP final rulemaking (59 FR 13044), sheet (MSDS), no release to the use limit is using the substitute in an codified at 40 CFR part 82, subpart G. environment is expected. unacceptable manner and is in violation A complete chronology of SNAP Toxicity and exposure data: EPA of section 612 of the CAA and EPA’s decisions and the appropriate citations evaluated occupational and general SNAP regulations. 40 CFR 82.174(c). are found at http://www.epa.gov/ozone/ population exposure at manufacture and The Agency publishes its SNAP snap/chron.html. program decisions in the Federal at end use to ensure that the use of Register (FR). EPA first publishes II. Listing Decision: Fire Suppression Powdered Aerosol F will not pose decisions concerning substitutes that are and Explosion Protection unacceptable risks to workers or the general public. This risk screen is deemed acceptable subject to use A. Total Flooding: Powdered Aerosol F restrictions (use conditions and/or ® available in docket EPA–HQ–OAR– (KSA )—Acceptable Subject to Use 2011–0111 under the name, ‘‘Risk narrowed use limits), or substitutes Conditions deemed unacceptable, as proposed Screen on Substitute for Halon 1301 rulemakings to allow the public EPA’s Decision: EPA Finds Powdered Total Flooding Systems in Unoccupied Aerosol F Acceptable Subject to Use Spaces Substitute: Powdered Aerosol F opportunity to comment, before ® publishing final decisions. Conditions as a Substitute for Halon (KSA ).’’ In particular, the risk screen In contrast, EPA publishes decisions 1301 for Use in Total Flooding Fire considered the highly respirable nature concerning substitutes that are deemed Suppression Systems in Normally of the substitute as well as the potential acceptable with no restrictions in Unoccupied Spaces effect of increased blood pH from ‘‘notices of acceptability,’’ rather than as Powdered Aerosol F is acceptable, inhalation of the substitute. As proposed and final rules. As described subject to use conditions, as a halon discussed below, the use of proper in the preamble to the rule initially 1301 substitute for total flooding uses. personal protective equipment (PPE) implementing the SNAP program (59 FR As requested by the submitter, the use during manufacturing, at installation, 13044; March 18, 1994), EPA does not condition requires that Powdered maintenance, and clean-up minimizes believe that rulemaking procedures are Aerosol F be used only in areas that are personnel exposure from inhalation of necessary to list alternatives that are not normally occupied. Powdered the substitute. Blood pH modeling also acceptable without restrictions because Aerosol F is used as a fire suppression indicates that the levels of the such listings neither impose any agent in an aerosol fire-extinguishing constituent in Powdered Aerosol F sanction nor prevent anyone from using system. It may be marketed under the affecting blood pH are not expected to a substitute. name KSA®. pose a health risk. Based on this Many SNAP listings include The submitter has claimed the evaluation, EPA recommends the ‘‘Comments’’ or ‘‘Further Information’’ composition of Powdered Aerosol F as following specifications for filling to provide additional information on confidential business information (CBI). containers or installing total flooding substitutes. Since this additional You may find the submission under fire suppression systems with this agent: information is not part of the regulatory docket EPA–HQ–OAR–2011–0111 at —Appropriate protective clothing (e.g., decision, these statements are not http://www.regulations.gov. goggles, particulate removing binding for use of the substitute under Environmental information: EPA has respirators, and gloves) should be the SNAP program. However, regulatory reviewed the potential environmental worn during the manufacture, clean requirements so listed are binding under impacts of this substitute. The active up, and disposal of this agent.

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—Appropriate protective clothing (e.g., industrial hygiene practices for clean- generator or several generators may be goggles, particulate removing up and disposal. used in the protected space. When respirators, and gloves) should be The MSDS contains similar electrically or thermally activated, worn during the installation and requirements with regard to safe Powdered Aerosol G produces maintenance of the extinguishing handling, protection from, and clean-up combustion by-products (micron-sized units filled with the agent. of Powdered Aerosol F. particles and a gaseous mixture of —Training for safe handling procedures Use of Powdered Aerosol F should primarily nitrogen (N2, CAS Reg. No. should be provided to all employees conform to relevant Occupational Safety 7727–37–9)) that mix together into a that would be likely to handle the and Health Administration (OSHA) uniform fire extinguishing aerosol containers of the agent or requirements, including 29 CFR Part before being released into the protected extinguishing units filled with the 1910, Subpart L, Sections 1910.160 and area. The released inert gases extinguish agent. Use of this agent should be in 1910.162. Per OSHA requirements, a fire in the space by displacing the accordance with the safety guidelines protective gear (self-contained breathing oxygen available for combustion and in the latest edition of the National apparatus) should be available in the reducing the heat of the combustion Fire Protection Association (NFPA) event that personnel re-enter the area source. The submitter has claimed the 2010 Standard for Aerosol after Powdered Aerosol F has been composition of Powdered Aerosol G as Extinguishing Systems. discharged. CBI. You may find the submission The post activation product of Comparison to other fire under docket EPA–HQ–OAR–2011– Powdered Aerosol F is entirely suppressants: According to the 0111 at http://www.regulations.gov. particulates, and as indicated by the submitter, the active ingredients for Environmental information: The pre- submitter, of a fine size which makes it Powdered Aerosol F are solids before activation constituents of Powdered highly respirable. A constituent of and fine solid particulates after use. The Aerosol G are solids before use and Powdered Aerosol F, despite having low post-activation products of Powdered therefore have zero ODP and zero GWP. toxicity, can pose a human health risk Aerosol F have an ODP and a GWP of Further, the ODP of each of the post- because it can raise blood pH level if zero, which is comparable to or less activation constituents of Powdered inhaled in sufficient quantities. The than that for other non-ozone depleting Aerosol G is zero, and the GWPs of post- potential to increase blood pH is not substitutes for halon 1301, such as Inert activation constituents are 1 or less. Gas 100, HFC–227ea or HFC–125, with considered a significant adverse health Of the organic constituents of effect because the body can restore the GWPs of zero, 3220, and 3500, respectively.4 Toxicity risks are low as Powdered Aerosol G, only hydrogen pH to normal range. Using information cyanide (a post-activation product) has provided by the submitter, we modeled discussed above. We find that Powdered Aerosol F is acceptable for use in not been exempted as a VOC as defined a reasonable worst-case accidental under CAA regulations (40 CFR release (without a fire), exposing normally unoccupied spaces because it poses comparable or lower overall risk 51.100(s)); however, it constitutes maintenance personnel to the maximum ¥3 to public health and the environment approximately 5x10 percent of the design concentration provided by the post-activation products by weight submitter. Blood pH modeling indicates than the other available substitutes for the same end use. which is a very small amount. VOC that Powdered Aerosol F is not expected emissions from the production of the to pose a significant health risk. This B. Total Flooding: Powdered Aerosol G generators containing Powdered Aerosol calculation and the assumptions for (Dry Sprinkler Powdered Aerosol G are controlled through standard respirable amounts and releases of (DSPA) Fixed Generators)—Acceptable industry practices, and as such, VOC Powdered Aerosol F are included in the Subject to Use Conditions emissions from manufacture are risk screen conducted for this substitute EPA’s Decision: EPA Finds Powdered expected to be minimal. Potential and are available in the docket for this emissions of VOCs from the use of rule. While the levels of soluble Aerosol G (DSPA Fixed Generators) Acceptable as a Substitute for Halon Powdered Aerosol G in the fire particles of Powdered Aerosol F are not extinguishing and explosion prevention expected to pose a significant health 1301 for Total Flooding Uses in Normally Unoccupied Spaces sector are likely to be insignificant risk, EPA recommends the following: relative to VOCs from all other sources —Releases in all settings should be Powdered Aerosol G is acceptable, (i.e., other industries, mobile sources, limited to an appropriate design subject to use conditions, as a halon and biogenic sources). An assessment concentration for the protected space 1301 substitute for total flooding uses. was performed to compare the annual so that increased pH level would not As requested by the submitter, the use VOC emissions from use of Powdered adversely affect exposed individuals; condition requires that Powdered Aerosol G in total flooding systems exposed individuals should be given Aerosol G be used only in areas that are produced in one year to other an electrolyte solution to drink normally unoccupied. Powdered anthropogenic sources of VOC afterwards to restore the pH within Aerosol G is a solid material in pellet emissions. This assessment is available the appropriate range; form, which aerosolizes upon in docket EPA–HQ–OAR–2011–0111 —Users should provide special training activation, and housed in various-sized under the name, ‘‘Risk Screen on to individuals required to be in generator units. Depending on the fire Substitute for Halon 1301 Total environments protected by Powdered suppression requirement, a single Flooding Systems in Unoccupied Aerosol F extinguishing systems; each Spaces, Substitute: Powdered Aerosol G container of the Powdered Aerosol F 4 IPCC, 2007: Climate Change 2007: The Physical Science Basis. Contribution of Working Group I to (Dry Sprinkler Powdered Aerosol should be clearly labeled with the the Fourth Assessment Report of the (DSPA) Fixed Generators).’’ Assuming potential hazards from use and safe Intergovernmental Panel on Climate Change that 100 percent of Powdered Aerosol G handling procedures; and [Solomon, S., D. Qin, M. Manning, Z. Chen, M. produced in one year5 were to be used —In the case of an accidental spill, the Marquis, K.B. Averyt, M. Tignor and H.L. Miller (eds.)]. Cambridge University Press, Cambridge, area should be well-ventilated, and United Kingdom and New York, NY, USA. This 5 Maximum total production per year at market workers should wear protective document is accessible at http://www.ipcc.ch/ saturation figure is based on DSPA SNAP equipment while following good publications_and_data/ar4/wg1/en/contents.html. submission.

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in fire occurrences and thus released to industrial applications only in normally discharge until all particles have settled the atmosphere (extremely unlikely), unoccupied spaces. and/or been ventilated and the gases only 0.04 metric tonnes of VOCs would Powdered Aerosol G is not expected released by the system have dissipated. be emitted, which is approximately to pose a risk to workers during Workers entering the space before it has equal to 8.6x10¥6 percent of the annual manufacture due to an automated been ventilated should wear protective VOC emissions caused by fires,6 or only production process. The only place clothing, goggles, and a self-contained about 1.5x10¥6 percent of annual VOC where workers may be exposed to the breathing apparatus (SCBA). In emissions caused by highway vehicles.7 constituents is during the loading of the accordance with the MSDS, EPA This assessment finds that even at an processing vessel/mixer, which recommends the following: accounts for less than 10 minutes of the unlikely release rate of 100 percent, the —The post-activation products of production time. According to the VOC emissions from use of Powdered Powdered Aerosol G should be submitter, these workers wear PPE Aerosol G are several orders of collected by hand (e.g., with a including protective suits, safety magnitude lower than other dustpan and duster or a vacuum glasses, and respirators. The entire anthropogenic emissions; therefore, the cleaner); environmental impacts of these VOCs manufacturing space is ventilated with are not considered a significant risk to a local exhaust system to reduce —Waste should be collected in suitable local air quality. airborne exposure of the Powdered drums for disposal and the area Toxicity and exposure data: EPA Aerosol G constituents. The submitter should be washed clean with evaluated occupational and general reported to EPA that manufacture of sufficient quantities of water; population exposure at manufacture and Powdered Aerosol G pellets and —Employers should provide special at end use to ensure that the use of generators does not take place in the training to workers required to clean Powdered Aerosol G will not pose United States. Only the final product, up after discharge or required to work unacceptable risks to workers or the the Powdered Aerosol G generator unit, near spaces protected by Powdered general public. This risk screen is consisting of the rigid steel case Aerosol G fixed generator total available in docket EPA–HQ–OAR– containing solid blocks of the Powdered flooding systems; 2011–0111 under the name, ‘‘Risk Aerosol G extinguishing compound is —Each Powdered Aerosol G generator Screen on Substitute for Halon 1301 sold in the United States. In the unit should be clearly labeled with Total Flooding Systems in Unoccupied ‘‘Further Information’’ columns of the the potential hazards of use and with Spaces, Substitute: Powdered Aerosol G tables summarizing today’s listing safe handling procedures; and decisions, EPA recommends the (Dry Sprinkler Powdered Aerosol —In the case of an accidental discharge, following for establishments filling, (DSPA) Fixed Generators).’’ the area should be well-ventilated, installing, or servicing generator units or Exposure to the DSPA generator upon and workers should wear protective systems to be used in total flooding activation may result in irritation if equipment while following good applications: inhalation, ingestion, skin contact, or industrial hygiene practices for clean- eye contact occurs. Exposure to an —Appropriate protective clothing (e.g., up and disposal. aerosol suppression agent may cause goggles, particulate removing temporary, mild irritation of mucous respirators, and gloves) should be Use of Powdered Aerosol G generators membranes if inhaled and may cause worn during the manufacture, clean should conform to relevant OSHA slight irritation of the skin. In the event up, and disposal of this agent as well requirements, including 29 CFR part of an accidental discharge, the room as during the installation and 1910, subpart L, sections 1910.160 and should be immediately evacuated and maintenance of the generator units 1910.162. Per OSHA requirements, the instructions listed in the MSDS for filled with the agent; protective gear (self-contained breathing Powdered Aerosol G should be —Training for safe handling procedures apparatus) should be available in the followed. Workers should not enter the should be provided to all employees event that personnel re-enter the area space following discharge until all that would be likely to handle the before the particles have settled particles have settled and/or been agent or the generator units (approximately 30–40 minutes after ventilated and the gases released by the containing the agent; and discharge) or before the space has been system have dissipated. —Use of this agent should be in ventilated. EPA finds that the use of the exposure accordance with the safety guidelines Comparison to other fire controls discussed in the following in the latest edition of the National suppressants: The post-activation sections and adherence with the Fire Protection Association (NFPA) products of Powdered Aerosol G have appropriate occupational safety 2010 Standard for Aerosol ODPs of zero and GWPs of 1 or less, guidelines and requirements in the Extinguishing Systems. comparable to or less than that for other manufacturer’s MSDS are sufficient to Powdered Aerosol G generators are non-ozone depleting substitutes for ensure that the manufacture, not expected to pose a risk to workers halon 1301, such as Inert Gas 100, HFC– installation, maintenance, and cleanup during installation, maintenance, and 227ea or HFC–125, with GWPs of zero, of Powdered Aerosol G do not pose a cleanup. In accordance with Department 3220, and 3500, respectively.8 Toxicity risk to human health. Likewise, no of Health and Human Services risks are low when used in normally consumer exposure is expected because regulations (42 CFR part 84), safety unoccupied areas for commercial and Powdered Aerosol G systems are glasses and a NIOSH/CDC-approved industrial specialty fire protection designed for use in commercial and N99 respirator are required for applications. We find that Powdered individuals installing Powdered Aerosol Aerosol G is acceptable for use in 6 Based on 2010 projections calculated using 2008 G fixed systems. In the event of an normally unoccupied areas because it EPA annual VOC emissions data for residential accidental discharge, the manufacturer’s poses comparable or lower overall risk wood burning and agricultural field burning (EPA MSDS should be followed, including to public health and the environment 2008 and EPA 2011) and ICF assumptions. the use of a NIOSH N99 respirator and than the other substitutes acceptable in 7 Based on 2010 projections calculated using 2008 EPA annual VOC emissions data (EPA 2009) and goggles. For cleanup operations, ICF assumptions. workers should not enter the space after 8 IPCC, 2007.

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the end use listed above when used in allowable quantity of C7 FK produced AEL for C7 Fluoroketone of 225 ppm accordance with the use condition. by the submitter in one year was all over an 8-hour time-weighted average.11 released to the atmosphere (extremely EPA recommends the following for C. Streaming: C7 Fluoroketone— unlikely), the resulting VOC emissions establishments filling canisters to be Acceptable Subject to Narrowed Use would be approximately equal to 3.0 × used in streaming applications: Limits ¥ 10 2 percent of annual VOC emissions —Adequate ventilation should be in EPA’s decision: EPA Finds C7 caused by fires,9 or only about 1.1 × place; Fluoroketone Is Acceptable Subject to 10¥3 percent of all annual —All spills should be cleaned up Narrowed Use Limits as a Substitute for anthropogenic VOC emissions.10 As immediately in accordance with good Halon 1211 for Use as a Streaming these emissions are several orders of industrial hygiene practices; and Agent. The Narrowed Use Limits magnitude less than other —Training for safe handling procedures Require That C7 Fluoroketone Be Used anthropogenic emissions, the should be provided to all employees Only in Nonresidential Applications environmental impacts of these VOCs that would be likely to handle the are not considered a significant risk to containers of the agent or C7 Fluoroketone is also known as C7 local air quality. extinguishing units filled with the FK or FK–6–1–14. This substitute is a Toxicity and exposure data: agent. blend of two isomers, 3- Inhalation of C7 Fluoroketone could EPA anticipates that C7 Fluoroketone pentanone,1,1,1,2,4,5,5,5-octafluoro-2,4- cause respiratory tract irritation and bis(trifluoromethyl) (Chemical Abstracts will be used consistent with the symptoms may include cough, sneezing, recommendations specified in the Service Registry Number [CAS Reg. No.] nasal discharge, headache, hoarseness, 813–44–5) and 3- manufacturer’s MSDS. and nose and throat pain. Contact with EPA recommends use of C7 hexanone,1,1,1,2,4,4,5,5,6,6,6- the eyes and/or skin during product use undecafluoro-2-(trifluoromethyl) (CAS Fluoroketone as a streaming agent in is not expected to result in significant accordance with the latest edition of Reg. No. 813–45–6). You may find the irritation. Ingestion of C7 Fluoroketone submission under docket EPA–HQ– NFPA Standard 10 for Portable Fire is not expected to cause health effects, Extinguishers. We expect that users will OAR–2011–0111 at http:// and there is no anticipated need for first www.regulations.gov. be able to meet the recommended aid if C7 Fluoroketone is ingested. The workplace exposure limit and address Environmental information: C7 potential health effects of C7 Fluoroketone has zero ODP and a GWP potential health risks by following the Fluoroketone can be minimized by above recommendations, using the of approximately 1. Therefore, C7 following the exposure guidelines and substitute in accordance with the Fluoroketone is not expected to pose recommendations for ventilation and manufacturer’s MSDS, and following any significant adverse impact on the PPE outlined in the MSDS and other safety precautions common to the ozone layer or climate. discussed further below. The physicochemical properties of the EPA evaluated occupational and fire protection industry. Comparison to other fire majority of halon substitutes make it general population exposure at suppressants: C7 Fluoroketone is not unlikely that the substitutes would be manufacture and at end use to ensure ozone-depleting with a GWP of 1 in released to surface water as a result of that the use of C7 Fluoroketone will not use. In the case of C7 Fluoroketone, the pose unacceptable risks to workers or contrast to halon 1211 (with an ODP of proposed substitute is insoluble in the general public. This risk screen is 7.1 and a GWP of 1890), the ODS which water and readily volatilizes. Thus, EPA available in docket EPA–HQ–OAR– it replaces. Compared to other expects that all of the constituents 2011–0111 under the name, ‘‘Risk substitutes for halon 1211, such as would rapidly vaporize during Screen on Substitute for Halon 1211 as HCFC Blend B (with ODP of roughly expulsion from the container, would not a Streaming Agent in Portable Fire 0.01 and GWP of roughly 80), HFC– be likely to settle, and therefore would Extinguishers Substitute: C7 227ea (with ODP of 0 and GWP of 3220), be unlikely to lead to surface water Fluoroketone.’’ and HFC–236fa (with an ODP of 0 and contamination or generation of solid EPA is providing the following GWP of 9810), C7 Fluoroketone has a waste. additional information regarding use of similar or less significant impact on the C7 Fluoroketone has not been C7 Fluoroketone as a streaming agent in ozone layer and climate. Risk to the exempted as a VOC under the CAA (40 nonresidential applications. general population is expected to be CFR 51.100(s)). VOC emissions from the Appropriate protective measures should negligible provided that the substitute is production of portable extinguishers be taken and proper training not used in residential applications as charged with C7 Fluoroketone are administered for the manufacture, requested by the submitter and as controlled through standard industry clean-up and disposal of this product. established under the narrowed use practices, and as such, emissions from For this new chemical, the manufacturer limits. Occupational exposure should manufacture of units are likely to be developed an acceptable exposure limit not pose a problem if use is in minimal. An assessment was performed (AEL) for the workplace set at a level accordance with the manufacturer’s to compare the annual VOC emissions believed to protect from chronic adverse MSDS and other precautions normally from use of C7 Fluoroketone in portable health effects those workers who are used in the fire protection industry. extinguishers in one year to other regularly exposed, such as in the Thus, we find that C7 Fluoroketone is anthropogenic sources of VOC manufacturing or filling processes. EPA acceptable subject to narrowed use emissions. This assessment is available reviewed the submitter’s supporting limits because the overall in docket EPA–HQ–OAR–2011–0111 data and accepts the manufacturer’s environmental and human health risk under the name, ‘‘Risk Screen on posed by C7 Fluoroketone is lower than Substitute for Halon 1211 as a 9 Based on 2010 projections calculated using 2008 or comparable to the risks posed by Streaming Agent in Portable Fire EPA annual VOC emissions data for residential Extinguishers Substitute: C7 wood burning and agricultural field burning (EPA 11 ‘‘Determination of an AEL for C7 Fluoroketone 2008 and EPA 2011) and ICF assumptions. (C7 FK),’’ Appendix A to Risk Screen on Substitute Fluoroketone.’’ This assessment finds 10 Based on 2010 projections calculated using for Halon 1211 as a Streaming Agent in Portable that even if the entire portion for 2008 EPA annual VOC emissions data (EPA 2009) Fire Extinguishers Substitute: C7 Fluoroketone. streaming agent applications of the and ICF assumptions. Available in docket EPA–HQ–OAR–2011–0111.

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other available substitutes in the same entities, I certify that this action will not Therefore, this action is not subject to end use. have a significant economic impact on the requirements of sections 202 or 205 a substantial number of small entities. of the UMRA. III. Statutory and Executive Order This final rule will not impose any Reviews This action is also not subject to the requirements on small entities beyond requirements of section 203 of UMRA A. Executive Order 12866: Regulatory current industry practices. Today’s because it contains no regulatory Planning and Review and Executive action effectively supports the requirements that might significantly or Order 13563: Improving Regulation and introduction of three new alternatives to uniquely affect small governments. This Regulatory Review the market for fire protection direct final rule will provide additional extinguishing systems, thus providing OMB notified EPA on May 5, 2011, options for fire protection subject to additional options for users making the that it considers this action not a safety guidelines in industry standards. transition away from ozone-depleting ‘‘significant regulatory action’’ under These standards are typically already halons. required by state or local fire codes, so the terms of Executive Order 12866 (58 Use of halon 1301 total flooding this action will not affect small FR 51735, October 4, 1993) and it is systems and halon 1211 streaming governments. therefore not subject to review under agents have historically been in Executive Orders 12866 and 13563 (76 specialty fire protection applications E. Executive Order 13132: Federalism FR 3821, January 21, 2011). including essential electronics, civil B. Paperwork Reduction Act aviation, military mobile weapon This action does not have federalism systems, oil and gas and other process implications. It will not have substantial This action does not impose any new industries, and merchant shipping with direct effects on the States, on the information collection burden. This smaller segments of use including relationship between the national final rule is an Agency determination. It libraries, museums, and laboratories. government and the States, or on the contains no new requirements for The majority of halon system and distribution of power and reporting. However, the Office of equipment owners continue to maintain responsibilities among the various Management and Budget (OMB) has and refurbish existing systems since levels of government, as specified in previously approved the information halon supplies continue to be available Executive Order 13132. This regulation collection requirements contained in the in the U.S. Owners of new facilities applies directly to facilities that use existing regulations in subpart G of 40 make up the market for the new these substances and not to CFR part 82 under the provisions of the alternative agent systems and may also governmental entities. Thus, Executive Paperwork Reduction Act, 44 U.S.C. consider employing other available fire Order 13132 does not apply to this 3501 et seq. and has assigned OMB protection options including new, action. control numbers 2060–0226 (EPA ICR improved technology for early warning No. 1596.08). The OMB control numbers and smoke detection. Thus, EPA is F. Executive Order 13175: Consultation for EPA’s regulations are listed in 40 providing more options to any entity, and Coordination With Indian Tribal CFR part 9. including small entities, by finding Governments C. Regulatory Flexibility Act substitutes acceptable for use. The use This action does not have tribal restrictions imposed on the substitutes implications, as specified in Executive The Regulatory Flexibility Act (RFA) in today’s rule are consistent with the generally requires an agency to prepare Order 13175. It will not have substantial applications suggested by the submitters direct effects on tribal governments, on a regulatory flexibility analysis of any and with current industry practices. rule subject to notice and comment the relationship between the Federal Therefore, we conclude that the rule government and Indian tribes, or on the rulemaking requirements under the does not impose any new cost on Administrative Procedure Act or any distribution of power and businesses. responsibilities between the Federal other statutes unless the agency certifies Although this final rule will not have government and Indian tribes, as that the rule will not have a significant a significant economic impact on a specified in Executive Order 13175. It economic impact on a substantial substantial number of small entities, does not significantly or uniquely affect number of small entities. Small entities EPA nonetheless has tried to reduce the the communities of Indian tribal include small businesses, small impact of this rule on small entities. By governments, because this regulation organizations, and small governmental introducing three new substitutes, applies directly to facilities that use jurisdictions. today’s rule gives additional flexibility these substances and not to For purposes of assessing the impact to small entities that are concerned with governmental entities. Thus, Executive of today’s rule on small entities, small fire suppression. EPA also has worked Order 13175 does not apply to this entities are defined as (1) a small closely together with the NFPA, which action. business that produces or uses fire conducts regular outreach with small suppressants as total flooding and/or entities and involves small state, local, G. Executive Order 13045: Protection of streaming agents with 500 or fewer and tribal governments in developing Children From Environmental Health employees or total annual receipts of $5 and implementing relevant fire Risks and Safety Risks million or less; (2) a small governmental protection standards and codes. jurisdiction that is a government of a This action is not subject to E.O. city, county, town, school district or D. Unfunded Mandates Reform Act 13045 (62 FR 19885, April 23, 1997) special district with a population of less This action contains no Federal because it is not economically than 50,000; and (3) a small mandates under the provisions of Title significant as defined in E.O. 12866, and organization that is any not-for-profit II of the Unfunded Mandate Reform Act because the Agency does not believe the enterprise which is independently of 1995 (UMRA), 2 U.S.C. 1531–1538 for environmental health or safety risks owned and operated and is not State, local, or tribal governments or the addressed by this action present a dominant in its field. private sector. This action imposes no disproportionate risk to children. This After considering the economic enforceable duty on any State, local, or action’s health and risk assessments are impacts of today’s final rule on small tribal governments or the private sector. discussed in section II.

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H. Executive Order 13211: Actions That exposure to halocarbon and inert gas Business Regulatory Enforcement Significantly Affect Energy Supply, agents and aerosol extinguishing agents, Fairness Act of 1996, generally provides Distribution, or Use respectively. In addition, EPA has that before a rule may take effect, the This action is not subject to Executive worked in consultation with OSHA to agency promulgating the rule must Order 13211 (66 FR 28355 (May 22, encourage development of technical submit a rule report, which includes a 2001)), because it is not a significant standards to be adopted by voluntary copy of the rule, to each House of the regulatory action under Executive Order consensus standards bodies. Congress and to the Comptroller General of the United States. EPA will submit a 12866. J. Executive Order 12898: Federal report containing this rule and other Actions To Address Environmental I. National Technology Transfer and required information to the U.S. Senate, Justice in Minority Populations and Advancement Act the U.S. House of Representatives, and Low-Income Populations Section 12(d) of the National the Comptroller General of the United Technology Transfer and Advancement Executive Order (EO) 12898 (59 FR States prior to publication of the rule in Act of 1995 (‘‘NTTAA’’), Public Law 7629 (Feb. 16, 1994)) establishes federal the Federal Register. A major rule 104–113, 12(d) (15 U.S.C. 272 note) executive policy on environmental cannot take effect until 60 days after it directs EPA to use voluntary consensus justice. Its main provision directs is published in the Federal Register. standards in its regulatory activities federal agencies, to the greatest extent This action is not a ‘‘major rule’’ as unless to do so would be inconsistent practicable and permitted by law, to defined by 5 U.S.C. 804(2). This rule with applicable law or otherwise make environmental justice part of their will be effective December 18, 2012. impractical. Voluntary consensus mission by identifying and addressing, List of Subjects in 40 CFR Part 82 standards are technical standards (e.g., as appropriate, disproportionately high materials specifications, test methods, and adverse human health or Environmental protection, sampling procedures, and business environmental effects of their programs, Administrative practice and procedure, practices) that are developed or adopted policies, and activities on minority Air pollution control, Reporting and by voluntary consensus standards populations and low-income recordkeeping requirements, bodies. NTTAA directs EPA to provide populations in the United States. Stratospheric ozone layer. Congress, through OMB, explanations EPA has determined that this final Dated: September 11, 2012. when the Agency decides not to use rule will not have disproportionately Lisa P. Jackson, available and applicable voluntary high and adverse human health or Administrator. consensus standards. environmental effects on minority or For the reasons set out in the This rulemaking does not involve low-income populations because it preamble, 40 CFR part 82 is amended as setting technical standards. EPA defers increases the level of environmental follows: to existing NFPA voluntary consensus protection for all affected populations standards and Occupational Safety and without having any disproportionately PART 82—PROTECTION OF Health Administration (OSHA) high and adverse human health or STRATOSPHERIC OZONE regulations that relate to the safe use of environmental effects on any halon substitutes reviewed under SNAP. population, including any minority or ■ 1. The authority citation for part 82 EPA refers users to the latest edition of low-income population. This direct continues to read as follows: NFPA 2010 Standard on Aerosol final rule would provide fire Authority: 42 U.S.C. 7414, 7601, 7671– Extinguishing Systems which provides suppression substitutes that have no 7671q. for safe use of aerosol extinguishing ODP and low or no GWP. The avoided agents and technologies and NFPA 10 ODS and GWP emissions would assist Subpart G—Significant New Standard for Portable Fire in restoring the stratospheric ozone Alternatives Policy Program Extinguishers. Copies of these standards layer, avoiding adverse climate impacts, may be obtained by calling the NFPA’s and result in human health and ■ 2. Subpart G of part 82 is amended by telephone number for ordering environmental benefits. adding Appendix S to read as follows: publications at 1–800–344–3555. The Appendix S to Subpart G of Part 82— K. Congressional Review Act NFPA 2010 standards meet the Substitutes Listed in the September 19, objectives of the rule by setting The Congressional Review Act, 5 2012 Final Rule, Effective December 18, scientifically-based guidelines for safe U.S.C. 801 et seq., as added by the Small 2012.

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FIRE SUPPRESSION AND EXPLOSION PROTECTION SECTOR—ACCEPTABLE SUBJECT TO USE CONDITIONS

End-Use Substitute Decision Conditions Further information

Total Flooding ...... Powdered Aerosol Acceptable subject For use only in Use of this agent should be in accordance with the safety F (KSA®) as a to use conditions. normally unoccu- guidelines in the latest edition of the NFPA 2010 stand- substitute for pied areas. ard for Aerosol Extinguishing Systems. Halon 1301. For establishments filling, installing, servicing, using, or disposing of containers or systems to be used in total flooding applications, EPA recommends the following: —appropriate protective clothing (e.g., goggles, par- ticulate removing respirators, and gloves) should be worn during the installation and maintenance of the extinguishing units filled with the agent or dur- ing clean up and disposal of this agent; —training should be provided to all employees that would be likely to handle containers of the agent or extinguishing units filled with the agent, required to clean up after discharge or required to work near spaces protected by Powdered Aerosol F. Releases in all settings should be limited to an appro- priate design concentration for the protected space so that increased blood pH level would not adversely af- fect exposed individuals. Exposed individuals should be given an electrolyte solu- tion to drink afterwards to restore the pH within the ap- propriate range. Each extinguisher should be clearly labeled with the po- tential hazards from use and safe handling procedures. In the case of an accidental spill, the area should be well- ventilated, and workers should wear protective equip- ment while following good industrial hygiene practices for clean-up and disposal. See additional comments 1, 2, 3, 4. Total Flooding ...... Powdered Aerosol Acceptable subject For use only in Use of this agent should be in accordance with the safety G (Dry Sprinkler to use conditions. normally unoccu- guidelines in the latest edition of the NFPA 2010 stand- Powdered Aer- pied areas. ard for Aerosol Extinguishing Systems. osol (DSPA) For establishments filling, installing, servicing, using or Fixed Genera- disposing of generator units or systems in total flooding tors) as a sub- applications, EPA recommends the appropriate protec- stitute for Halon tive clothing (e.g., goggles, particulate removing res- 1301. pirators, and gloves) should be worn during the instal- lation and maintenance of the extinguishing units filled with the agent or during clean up and disposal of this agent. Powdered Aerosol G should be collected by hand (e.g., with a dustpan and duster or a vacuum cleaner); waste should be collected in suitable drums for disposal and the area should be washed clean with sufficient quan- tities of water; and training should be provided to all employees that would be likely to handle the agent or generator units filled containing the agent, required to clean up after discharge or required to work near spaces protected by Powdered Aerosol G fixed gener- ator total flooding systems. In accordance with Department of Health and Human Services regulations (42 CFR Part 84), safety glasses and a NIOSH/CDC-approved N99 respirator are re- quired for individuals installing Powdered Aerosol G fixed systems. Each generator unit should be clearly labeled with the po- tential hazards from use and safe handling procedures. In the case of an accidental discharge, the area should be well-ventilated, and workers should wear protective equipment while following good industrial hygiene prac- tices for clean-up and disposal. See additional comments 1, 2, 3, 4. Additional comments: 1—Should conform to relevant OSHA requirements, including 29 CFR 1910, Subpart L, Sections 1910.160 and 1910.162. 2—Per OSHA requirements, protective gear (SCBA) should be available in the event personnel should reenter the area. 3—The agent should be recovered from the fire protection system in conjunction with testing or servicing, and recycled for later use or de- stroyed. 4—EPA has no intention of duplicating or displacing OSHA coverage related to the use of personal protective equipment (e.g., respiratory pro- tection), fire protection, hazard communication, worker training or any other occupational safety and health standard with respect to halon substitutes.

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FIRE SUPPRESSION AND EXPLOSION PROTECTION SECTOR—ACCEPTABLE SUBJECT TO NARROWED USE LIMITS

End-Use Substitute Decision Conditions Further information

Streaming ...... C7 Fluoroketone as a Acceptable subject to For use only in non- Use of this agent should be in accordance with the latest edition of substitute for Halon narrowed use limits. residential applica- NFPA Standard 10 for Portable Fire Extinguishers. 1211. tions. For operations that fill canisters to be used in streaming applica- tions, EPA recommends the following: —Adequate ventilation should be in place; —All spills should be cleaned up immediately in accordance with good industrial hygiene practices; and —Training for safe handling procedures should be provided to all employees that would be likely to handle containers of the agent or extinguishing units filled with the agent. See additional comments 1, 2, 3, 4. Additional comments: 1—Should conform to relevant OSHA requirements, including 29 CFR 1910, Subpart L, Sections 1910.160 and 1910.162. 2—Per OSHA requirements, protective gear (SCBA) should be available in the event personnel should reenter the area. 3—The agent should be recovered from the fire protection system in conjunction with testing or servicing, and recycled for later use or destroyed. 4—EPA has no intention of duplicating or displacing OSHA coverage related to the use of personal protective equipment (e.g., respiratory protection), fire protec- tion, hazard communication, worker training or any other occupational safety and health standard with respect to halon substitutes.

[FR Doc. 2012–23138 Filed 9–18–12; 8:45 am] the telephone number for the OPP B. How can I get electronic access to BILLING CODE 6560–50–P Docket is (703) 305–5805. Please review other related information? the visitor instructions and additional You may access a frequently updated information about the docket available electronic version of EPA’s tolerance ENVIRONMENTAL PROTECTION at http://www.epa.gov/dockets. AGENCY regulations at 40 CFR part 180 through FOR FURTHER INFORMATION CONTACT: the Government Printing Office’s e-CFR 40 CFR Part 180 Laura Nollen, Registration Division site at http://ecfr.gpoaccess.gov/cgi/t/ (7505P), Office of Pesticide Programs, text/text-idx?&c=ecfr&tpl=/ecfrbrowse/ [EPA–HQ–OPP–2011–0569; FRL–9361–5] Environmental Protection Agency, 1200 Title40/40tab_02.tpl. Clopyralid; Pesticide Tolerances Pennsylvania Ave. NW., Washington, C. How can I file an objection or hearing DC 20460–0001; telephone number: request? AGENCY: Environmental Protection (703) 305–7390; email address: Agency (EPA). [email protected]. Under FFDCA section 408(g), 21 ACTION: Final rule. U.S.C. 346a, any person may file an SUPPLEMENTARY INFORMATION: objection to any aspect of this regulation SUMMARY: This regulation establishes I. General Information and may also request a hearing on those tolerances for residues of clopyralid in objections. You must file your objection or on multiple commodities which are A. Does this action apply to me? or request a hearing on this regulation identified and discussed later in this in accordance with the instructions document. This regulation additionally You may be potentially affected by provided in 40 CFR part 178. To ensure removes several established individual this action if you are an agricultural proper receipt by EPA, you must tolerances, as they will be superseded producer, food manufacturer, or identify docket ID number EPA–HQ– by inclusion in subgroup tolerances. pesticide manufacturer. Potentially OPP–2011–0569 in the subject line on Interregional Research Project Number 4 affected entities may include, but are the first page of your submission. All (IR–4) requested these tolerances under not limited to those engaged in the objections and requests for a hearing the Federal Food, Drug, and Cosmetic following activities: must be in writing, and must be Act (FFDCA). • Crop production (NAICS code 111). received by the Hearing Clerk on or DATES: This regulation is effective • Animal production (NAICS code before November 19, 2012. Addresses September 19, 2012. Objections and 112). for mail and hand delivery of objections requests for hearings must be received and hearing requests are provided in 40 • Food manufacturing (NAICS code on or before November 19, 2012, and CFR 178.25(b). 311). must be filed in accordance with the In addition to filing an objection or • instructions provided in 40 CFR part Pesticide manufacturing (NAICS hearing request with the Hearing Clerk 178 (see also Unit I.C. of the code 32532). as described in 40 CFR part 178, please SUPPLEMENTARY INFORMATION). This listing is not intended to be submit a copy of the filing that does not ADDRESSES: The docket for this action, exhaustive, but rather to provide a guide contain any CBI for inclusion in the identified by docket identification (ID) for readers regarding entities likely to be public docket. Information not marked number EPA–HQ–OPP–2011–0569, is affected by this action. Other types of confidential pursuant to 40 CFR part 2 available at http://www.regulations.gov entities not listed in this unit could also may be disclosed publicly by EPA or at the OPP Docket in the be affected. The North American without prior notice. Submit a copy of Environmental Protection Agency Industrial Classification System your non-CBI objection or hearing Docket Center (EPA/DC), located in EPA (NAICS) codes have been provided to request, identified by docket ID number West, Rm. 3334, 1301 Constitution Ave. assist you and others in determining EPA–HQ–OPP–2011–0569, by one of NW., Washington, DC 20460–0001. The whether this action might apply to the following methods: Public Reading Room is open from 8:30 certain entities. If you have any • Federal eRulemaking Portal: http:// a.m. to 4:30 p.m., Monday through questions regarding the applicability of www.regulations.gov. Follow the online Friday, excluding legal holidays. The this action to a particular entity, consult instructions for submitting comments. telephone number for the Public the person listed under FOR FURTHER Do not submit electronically any Reading Room is (202) 566–1744, and INFORMATION CONTACT. information you consider to be

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Confidential Business Information (CBI) Based upon review of the data of exposure. It is not a dermal irritant or other information whose disclosure is supporting the petition, EPA has or sensitizer, but it is a severe eye restricted by statute. determined that the proposed tolerance irritant in its acid form. No consistent • Mail: OPP Docket, Environmental on rapeseed subgroup 20A, except gold mammalian target organ was identified Protection Agency Docket Center (EPA/ of pleasure, forage is not necessary. in the clopyralid toxicological studies DC), Mail Code: 28221T, 1200 Additionally, EPA has determined that submitted to the Agency. Effects were Pennsylvania Ave. NW., Washington, several established tolerances should be noted in various organs and systems in DC 20460–0001. removed. Finally, the Agency different species, including increases in • Hand Delivery: To make special determined that the proposed tolerance liver weight, changes in clinical arrangements for hand delivery or on rapeseed subgroup 20A, except gold chemistry and blood cell parameters, delivery of boxed information, please of pleasure, meal should be established skin lesions, and decreases in body follow the instructions at http:// as a tolerance on rapeseed, meal. The weight gain. www.epa.gov/dockets/contacts.htm. reasons for these changes are explained In subchronic mouse studies, Additional instructions on in Unit IV.C. decreased body weights were observed commenting or visiting the docket, in males and females. Following chronic III. Aggregate Risk Assessment and along with more information about exposure, effects in dogs included Determination of Safety dockets generally, is available at reductions in red blood cell parameters, http://www.epa.gov/dockets. Section 408(b)(2)(A)(i) of FFDCA increased liver weight (males), and allows EPA to establish a tolerance (the vacuolated adrenal cortical cells II. Summary of Petitioned-for legal limit for a pesticide chemical (females). Additionally, skin lesions and Tolerances residue in or on a food) only if EPA clinical chemistry changes (decreased In the Federal Register of August 26, determines that the tolerance is ‘‘safe.’’ serum glucose, protein, and albumin) 2011 (76 FR 53372) (FRL–8884–9), EPA Section 408(b)(2)(A)(ii) of FFDCA were observed at the highest dose issued a notice pursuant to FFDCA defines ‘‘safe’’ to mean that ‘‘there is a tested. In the rat, epithelial hyperplasia, section 408(d)(3), 21 U.S.C. 346a(d)(3), reasonable certainty that no harm will thickening of the limiting ridge of the announcing the filing of a pesticide result from aggregate exposure to the stomach, and decreased body weight petition (PP 1E7882) by IR–4, 500 pesticide chemical residue, including were observed following chronic College Road East, Suite 201W., all anticipated dietary exposures and all exposure. There were no clinical Princeton, NJ 08540. The petition other exposures for which there is indications of neurotoxicity or requested that 40 CFR 180.431 be reliable information.’’ This includes immunotoxicity in the subchronic or amended by establishing tolerances for exposure through drinking water and in chronic toxicity studies. residues of the herbicide clopyralid, residential settings, but does not include No developmental toxicity was (3,6-dichloro-2-pyridinecarboxylic occupational exposure. Section observed in the rat at doses that caused acid), in or on apple at 0.05 parts per 408(b)(2)(C) of FFDCA requires EPA to maternal mortality and decreased body million (ppm); brassica, leafy greens, give special consideration to exposure weight gains. In the rabbit subgroup 5B at 5.0 ppm; rapeseed of infants and children to the pesticide developmental toxicity study, decreased subgroup 20A, except gold of pleasure, chemical residue in establishing a fetal body weights and hydrocephalus seed at 3.0 ppm; rapeseed subgroup tolerance and to ‘‘ensure that there is a were observed at a dose that caused 20A, except gold of pleasure, meal at 6.0 reasonable certainty that no harm will severe maternal toxicity including a ppm; and rapeseed subgroup 20A, result to infants and children from high rate of mortality, clinical signs of except gold of pleasure, forage at 3.0 aggregate exposure to the pesticide toxicity, decreased body weight gains, ppm. That notice referenced a summary chemical residue * * *.’’ and gastric mucosal lesions. of the petition prepared on behalf of IR– Consistent with FFDCA section Reproductive toxicity was not observed 4 by Dow AgroSciences, the registrant, 408(b)(2)(D), and the factors specified in in the rat, but mean pup weight which is available in the docket, FFDCA section 408(b)(2)(D), EPA has reductions and relative liver weight http://www.regulations.gov. There were reviewed the available scientific data increases were observed at doses that no comments received in response to and other relevant information in caused parental toxicity (decreased the notice of filing. support of this action. EPA has body weight/weight gain and food Additionally, in the Federal Register sufficient data to assess the hazards of consumption and gastric lesions). of July 25, 2012 (77 FR 43562) (FRL– and to make a determination on There was no evidence of 9353–6), EPA issued a notice pursuant aggregate exposure for clopyralid carcinogenic potential in the rat and to FFDCA section 408(d)(3), 21 U.S.C. including exposure resulting from the mouse 2-year carcinogenicity studies. 346a(d)(3), announcing the filing of a tolerances established by this action. Further, there were no positive findings pesticide petition (PP 2E8013) by IR–4. EPA’s assessment of exposures and risks for mutagenicity or clastogenicity The petition requested that 40 CFR associated with clopyralid follows. observed in a battery of mutagenicity 180.431 be amended by establishing studies (including bacterial reverse gene tolerances for residues of the herbicide A. Toxicological Profile mutation, in vitro and in vivo host- clopyralid, (3,6-dichloro-2- EPA has evaluated the available mediated assays in Salmonella and pyridinecarboxylic acid), in or on teff, toxicity data and considered its validity, Saccharomyces, in vivo chromosomal forage at 9.0 ppm; teff, grain at 3.0 ppm; completeness, and reliability as well as aberrations, unscheduled DNA teff, straw at 9.0 ppm; and teff, hay at the relationship of the results of the synthesis, and dominant lethal activity 9.0 ppm. That notice referenced a studies to human risk. EPA has also studies). Based on the results of these summary of the petition prepared on considered available information studies, EPA has determined that behalf of IR–4 by Dow AgroSciences, the concerning the variability of the clopyralid is ‘‘not likely to be registrant, which is available in docket sensitivities of major identifiable carcinogenic to humans.’’ ID number EPA–HQ–OPP–2012–0309, subgroups of consumers, including Specific information on the studies http://www.regulations.gov. There were infants and children. received and the nature of the adverse no comments received in response to Clopyralid has low acute toxicity via effects caused by clopyralid as well as the notice of filing. the oral, dermal, and inhalation routes the no-observed-adverse-effect-level

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(NOAEL) and the lowest-observed- observed (the NOAEL) and the lowest rule for clopyralid, published in the adverse-effect-level (LOAEL) from the dose at which adverse effects of concern Federal Register of March 24, 2010 (75 toxicity studies can be found at http:// are identified (the LOAEL). Uncertainty/ FR 14086) (FRL–8814–2), the Agency www.regulations.gov in document, safety factors are used in conjunction identified an acute dietary toxicological ‘‘Clopyralid. Human Health Risk with the POD to calculate a safe POD based on decreased maternal body Assessment for New Uses on Apples, exposure level—generally referred to as weight in the rat developmental toxicity Teff, Brassica Leafy Greens, and a population-adjusted dose (PAD) or a study. However, upon reevaluation of Rapeseed’’ at pages 32–35 in docket ID reference dose (RfD)—and a safe margin the toxicological database for clopyralid, number EPA–HQ–OPP–2011–0569. of exposure (MOE). For non-threshold EPA determined that the effect is not the B. Toxicological Points of Departure/ risks, the Agency assumes that any result of a single dose, and is not Levels of Concern amount of exposure will lead to some appropriate for an acute dietary degree of risk. Thus, the Agency Once a pesticide’s toxicological endpoint. Additionally, while the last estimates risk in terms of the probability profile is determined, EPA identifies final rule included endpoints and points of an occurrence of the adverse effect toxicological points of departure (POD) of departure for intermediate-term expected in a lifetime. For more and levels of concern to use in residential scenarios, including evaluating the risk posed by human information on the general principles postapplication incidental oral exposure exposure to the pesticide. For hazards EPA uses in risk characterization and a for children, the Agency has reevaluated that have a threshold below which there complete description of the risk this scenario and has determined that is no appreciable risk, the toxicological assessment process, see http:// for clopyralid, residential exposure to POD is used as the basis for derivation www.epa.gov/pesticides/factsheets/ children on turf is not likely to occur of reference values for risk assessment. riskassess.htm. over an intermediate-term duration (i.e., PODs are developed based on a careful A summary of the toxicological 1 month to 6 months). Further, analysis of the doses in each endpoints for clopyralid used for human intermediate-term exposures are not toxicological study to determine the risk assessment is shown in Table 1 of expected for residential handlers, based dose at which no adverse effects are this unit. EPA notes that in the last final on the use pattern.

TABLE 1—SUMMARY OF TOXICOLOGICAL DOSES AND ENDPOINTS FOR CLOPYRALID FOR USE IN HUMAN HEALTH RISK ASSESSMENT

Point of departure and uncer- RfD, PAD, LOC for risk assess- Exposure/Scenario tainty/safety factors ment Study and toxicological effects

Acute dietary (Females 13–50 An appropriate endpoint for a single exposure was not identified. years of age and general population, including infants and children).

Chronic dietary (All populations) NOAEL = 15 mg/kg/day ...... Chronic RfD = 0.15 mg/kg/day 2-Year Combined Chronic Toxicity/Car- UFA = 10x cPAD = 0.15 mg/kg/day cinogenicity (oral)—rat LOAEL = 150 UFH = 10x mg/kg/day based on increased epithelial FQPA SF = 1x hyperplasia and thickening of the lim- iting ridge of the stomach in both sexes. Incidental oral short-term (1 to NOAEL = 75 mg/kg/day UFA = LOC for MOE = 100 ...... Developmental Toxicity (oral)—rat LOAEL 30 days). 10x. = 250 mg/kg/day based on decreased UFH = 10x body weight gain and food consumption FQPA SF = 1x during gestation days 6–9. Inhalation short-term (1 to 30 Inhalation (or oral) study LOC for MOE = 100 ...... Developmental Toxicity (oral)—rat LOAEL days). NOAEL = 75 mg/kg/day. = 250 mg/kg/day based on decreased (inhalation absorption rate = body weight gain and food consumption 100%). during gestation days 6–9. UFA = 10x UFH = 10x FQPA SF = 1x

Cancer (Oral, dermal, inhala- ‘‘Not likely to be carcinogenic to humans.’’ Cancer risk is not of concern. tion). FQPA SF = Food Quality Protection Act Safety Factor. LOAEL = lowest-observed-adverse-effect-level. LOC = level of concern. mg/kg/day = milligram/kilogram/day. MOE = margin of exposure. NOAEL = no-observed-adverse-effect-level. PAD = population adjusted dose (a = acute, c = chronic). RfD = reference dose. UF = uncertainty factor. UFA = extrapolation from animal to human (interspecies). UFH = potential variation in sensitivity among members of the human population (intraspecies).

C. Exposure Assessment EPA assessed dietary exposures from identified in the toxicological studies clopyralid in food as follows: for clopyralid; therefore, a quantitative 1. Dietary exposure from food and i. Acute exposure. Quantitative acute acute dietary exposure assessment is feed uses. In evaluating dietary dietary exposure and risk assessments unnecessary. exposure to clopyralid, EPA considered are performed for a food-use pesticide, ii. Chronic exposure. In conducting exposure under the petitioned-for if a toxicological study has indicated the the chronic dietary exposure assessment tolerances as well as all existing possibility of an effect of concern EPA used the food consumption data clopyralid tolerances in 40 CFR 180.431. occurring as a result of a 1-day or single from the USDA 1994–1996 and 1998 exposure. No such effects were Continuing Surveys of Food Intakes by

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Individuals (CSFII). As to residue levels handlers and short-term postapplication available studies in the toxicology in food, EPA assumed tolerance-level exposure for children from incidental database, including the rat and rabbit residues, 100 percent crop treated (PCT) oral contact with treated turf (hand-to- developmental toxicity studies and a 2- estimates, and DEEMTM ver. 7.81 default mouth, object-to-mouth and soil generation reproduction toxicity study processing factors. ingestion). Although dermal exposure is in rats. In the developmental rat study, iii. Cancer. Based on the data anticipated from residential use of no developmental effects were seen at summarized in Unit III.A., EPA has clopyralid, risks via the dermal route of doses that caused maternal toxicity. In concluded that clopyralid does not pose exposure are not of concern for the rabbit developmental study, a cancer risk to humans. Therefore, a clopyralid; therefore, dermal risks were hydrocephalus and decreased mean dietary exposure assessment for the not quantitatively assessed for fetal weight were observed at a dose that purpose of assessing cancer risk is residential exposure. Further caused severe maternal toxicity, unnecessary. information regarding EPA standard including mortality. In the 2-generation iv. Anticipated residue and percent assumptions and generic inputs for reproduction study, decreased pup crop treated (PCT) information. EPA did residential exposures may be found at weights and increased relative liver not use anticipated residue or PCT http://www.epa.gov/pesticides/trac/ weights were observed at the same level information in the dietary assessment science/trac6a05.pdf. that resulted in parental toxicity for clopyralid. Tolerance level residues 4. Cumulative effects from substances (decreased body weights, body weight or 100 PCT were assumed for all food with a common mechanism of toxicity. gains and food consumption and slight commodities. Section 408(b)(2)(D)(v) of FFDCA focal hyperkeratotic changes in the 2. Dietary exposure from drinking requires that, when considering whether gastric squamous mucosa). water. The Agency used screening level to establish, modify, or revoke a 3. Conclusion. EPA has determined water exposure models in the dietary tolerance, the Agency consider that reliable data show the safety of exposure analysis and risk assessment ‘‘available information’’ concerning the infants and children would be for clopyralid in drinking water. These cumulative effects of a particular adequately protected if the FQPA SF simulation models take into account pesticide’s residues and ‘‘other were reduced to 1X. That decision is data on the physical, chemical, and fate/ substances that have a common based on the following findings: transport characteristics of clopyralid. mechanism of toxicity.’’ i. The toxicity database for clopyralid Further information regarding EPA EPA has not found clopyralid to share is complete. EPA has waived the drinking water models used in pesticide a common mechanism of toxicity with requirement of a 28-day inhalation exposure assessment can be found at any other substances, and clopyralid toxicity study in rats (OCSPP Guideline http://www.epa.gov/oppefed1/models/ does not appear to produce a toxic 870.3465) based on the low volatility water/index.htm. metabolite produced by other and low acute inhalation toxicity for Based on the First Index Reservoir substances. For the purposes of this clopyralid, as well as the selection of Screening Tool (FIRST) model, the tolerance action, therefore, EPA has conservative and adequately protective estimated drinking water concentration assumed that clopyralid does not have points of departure from oral studies for (EDWC) of clopyralid for chronic a common mechanism of toxicity with clopyralid. As the 28-day inhalation exposures is estimated to be 11.9 parts other substances. For information toxicity study was not required, oral per billion (ppb) for surface water. The regarding EPA’s efforts to determine studies were considered for use with Agency also considered available which chemicals have a common route-to-route extrapolation for the monitoring data from the United States mechanism of toxicity and to evaluate short-term adult handler inhalation Geological Survey (USGS) National the cumulative effects of such exposure assessment. For short-term Water Quality Assessment Data chemicals, see EPA’s Web site at inhalation exposure, the maternal Warehouse (http://water.usgs.gov/ http://www.epa.gov/pesticides/ toxicity NOAEL of 75 mg/kg/day from nawqa/) for clopyralid. For ground cumulative. the rat developmental toxicity study water monitoring data, the peak was selected based on mortality, D. Safety Factor for Infants and observed value for detectable levels of decreased maternal body weight gain, Children clopyralid was 0.5288 ppb (Oregon) and decreased food consumption at the with a nationwide mean value of 0.065 1. In general. Section 408(b)(2)(C) of LOAEL of 250 mg/kg/day. This study ppb. Therefore, the EDWC of clopyralid FFDCA provides that EPA shall apply was chosen because it was of the for chronic exposures is estimated to be an additional tenfold (10X) margin of appropriate duration and route, and it 0.5288 ppb for ground water. safety for infants and children in the provided the most sensitive NOAEL. For chronic dietary risk assessment, case of threshold effects to account for This endpoint is protective of potential the water concentration of value 11.9 prenatal and postnatal toxicity and the pre- and postnatal toxicity because ppb was used to assess the contribution completeness of the database on toxicity developmental toxicity in the rabbit was to drinking water. and exposure unless EPA determines only seen in the presence of significant 3. From non-dietary exposure. The based on reliable data that a different maternal toxicity (maternal/ term ‘‘residential exposure’’ is used in margin of safety will be safe for infants developmental NOAEL = 250 mg/kg/ this document to refer to non- and children. This additional margin of day), and developmental toxicity in the occupational, non-dietary exposure safety is commonly referred to as the rat was not observed up to a maternally (e.g., for lawn and garden pest control, FQPA Safety Factor (SF). In applying toxic dose. As such, it is considered to indoor pest control, termiticides, and this provision, EPA either retains the be a conservative endpoint for this flea and tick control on pets). default value of 10X, or uses a different exposure scenario. Clopyralid is currently registered for additional safety factor when reliable ii. In the rabbit developmental use on lawns, turf, and ornamentals in data available to EPA support the choice toxicity study, neuropathology residential and public areas, which of a different factor. (hydrocephalus) was observed at the could result in residential exposures. 2. Prenatal and postnatal sensitivity. highest dose tested. However, the EPA assessed residential exposure using There was no evidence of increased concern for this effect is considered low the following assumptions: Short-term prenatal and/or postnatal qualitative or because it occurred at a dose that caused inhalation exposure for adult residential quantitative susceptibility in the severe maternal toxicity, including a

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high rate of mortality and decreased short-term residential exposure plus chromatography/electron-capture body weight gain and food chronic exposure to food and water detection (GC/ECD) method. consumption. Further, there was no (considered to be a background B. International Residue Limits evidence of neurotoxicity in the rat exposure level). Clopyralid is currently developmental or reproduction studies registered for uses that could result in In making its tolerance decisions, EPA or in the available subchronic or chronic short-term residential exposure, and the seeks to harmonize U.S. tolerances with studies; therefore, there is no need for Agency has determined that it is international standards whenever a developmental neurotoxicity study or appropriate to aggregate chronic possible, consistent with U.S. food additional UFs to account for exposure through food and water with safety standards and agricultural neurotoxicity. short-term residential exposures to practices. EPA considers the iii. There is no evidence that clopyralid. international maximum residue limits clopyralid results in increased Using the exposure assumptions (MRLs) established by the Codex susceptibility in in utero rats or rabbits described in this unit for short-term Alimentarius Commission (Codex), as in the prenatal developmental studies or exposures, EPA has concluded the required by FFDCA section 408(b)(4). in young rats in the 2-generation combined short-term food, water, and The Codex Alimentarius is a joint reproduction study. residential exposures result in aggregate United Nations Food and Agriculture iv. There are no residual uncertainties MOEs of 5,300 for the general Organization/World Health identified in the exposure databases. population and 1,700 for children 1–2 Organization food standards program, The chronic dietary food exposure years old. Because EPA’s level of and it is recognized as an international assessment was performed based on 100 concern for clopyralid is a MOE of 100 food safety standards-setting PCT and tolerance-level residues. EPA or below, these MOEs are not of organization in trade agreements to made conservative (protective) concern. which the United States is a party. EPA assumptions in the ground and surface 4. Intermediate-term risk. may establish a tolerance that is water modeling used to assess exposure Intermediate-term aggregate exposure different from a Codex MRL; however, to clopyralid in drinking water. EPA takes into account intermediate-term FFDCA section 408(b)(4) requires that used similarly conservative assumptions residential exposure plus chronic EPA explain the reasons for departing to assess postapplication incidental oral exposure to food and water (considered from the Codex level. exposure of toddlers. These assessments to be a background exposure level). An The Codex has not established a MRL will not underestimate the exposure and intermediate-term adverse effect was for clopyralid in or on the commodities risks posed by clopyralid. identified; however, clopyralid is not associated with these petitions. E. Aggregate Risks and Determination of registered for any use patterns that C. Revisions to Petitioned-for Tolerances would result in intermediate-term Safety Based on the data supporting the residential exposure. Intermediate-term EPA determines whether acute and petitions, EPA has determined that the risk is assessed based on intermediate- chronic dietary pesticide exposures are proposed tolerance on rapeseed term residential exposure plus chronic safe by comparing aggregate exposure subgroup 20A, except gold of pleasure, dietary exposure. Because there is no estimates to the acute PAD (aPAD) and forage at 3.0 ppm is not necessary intermediate-term residential exposure chronic PAD (cPAD). For linear cancer because the commodity is not a and chronic dietary exposure has risks, EPA calculates the lifetime significant livestock feed item. already been assessed under the probability of acquiring cancer given the Additionally, the Agency has appropriately protective cPAD (which is estimated aggregate exposure. Short-, determined that the established at least as protective as the POD used to intermediate-, and chronic-term risks tolerances in or on crambe, seed; flax, assess intermediate-term risk), no are evaluated by comparing the seed; mustard, seed; and rapeseed, seed further assessment of intermediate-term estimated aggregate food, water, and should be removed because they are risk is necessary, and EPA relies on the residential exposure to the appropriate superseded by inclusion in rapeseed, chronic dietary risk assessment for PODs to ensure that an adequate MOE subgroup 20A, except gold of pleasure evaluating intermediate-term risk for exists. at 3.0 ppm. EPA is also removing the clopyralid. 1. Acute risk. An acute aggregate risk established tolerance on mustard greens, 5. Aggregate cancer risk for U.S. assessment takes into account acute as it is superseded by inclusion in population. Based on the lack of exposure estimates from dietary brassica, leafy greens, subgroup 5B. evidence of carcinogenicity in two consumption of food and drinking Finally, the Agency determined that the adequate rodent carcinogenicity studies, water. No adverse effect resulting from proposed tolerance on rapeseed clopyralid is not expected to pose a a single oral exposure was identified subgroup 20A, except gold of pleasure, cancer risk to humans. and no acute dietary endpoint was 6. Determination of safety. Based on meal at 6.0 ppm should be established selected. Therefore, clopyralid is not these risk assessments, EPA concludes on rapeseed, meal at 6.0 ppm. The EPA expected to pose an acute risk. that there is a reasonable certainty that may establish an individual tolerance 2. Chronic risk. Using the exposure on a processed commodity that is a assumptions described in this unit for no harm will result to the general population, or to infants and children member of rapeseed subgroup 20A. chronic exposure, EPA has concluded However, the Agency will not establish that chronic exposure to clopyralid from from aggregate exposure to clopyralid residues. a subgroup tolerance for processed food and water will utilize 25% of the foods prepared from crops covered by a cPAD for children 1–2 years old, the IV. Other Considerations group tolerance, as outlined in 40 CFR population group receiving the greatest A. Analytical Enforcement Methodology 180.40, paragraph (f). Therefore, a exposure. Based on the explanation in separate tolerance for the processed Unit III.C.3., regarding residential use The following adequate enforcement commodity is appropriate. patterns, chronic residential exposure to methodology is available in The residues of clopyralid is not expected. Pesticide Analytical Manual Vol. II to V. Conclusion 3. Short-term risk. Short-term enforce the tolerance expression for Therefore, tolerances are established aggregate exposure takes into account plant commodities: a gas for residues of clopyralid, (3,6-dichloro-

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2-pyridinecarboxylic acid), in or on the Federal Government and Indian § 180.431 [Amended] apple at 0.05 ppm; brassica, leafy tribes. Thus, the Agency has determined (a) * * * greens, subgroup 5B at 5.0 ppm; that Executive Order 13132, entitled rapeseed, subgroup 20A, except gold of ‘‘Federalism’’ (64 FR 43255, August 10, Commodity Parts per pleasure at 3.0 ppm; rapeseed, meal at 1999) and Executive Order 13175, million 6.0 ppm; teff, forage at 9.0 ppm; teff, entitled ‘‘Consultation and Coordination Apple ...... 0 .05 grain at 3.0 ppm; teff, hay at 9.0 ppm; with Indian Tribal Governments’’ (65 FR and teff, straw at 9.0 ppm. This 67249, November 9, 2000) do not apply ***** regulation additionally removes to this final rule. In addition, this final Brassica, leafy greens, subgroup established tolerances in or on crambe, rule does not impose any enforceable 5B ...... 5.0 seed; flax, seed; mustard greens; duty or contain any unfunded mandate mustard, seed; and rapeseed, seed. as described under Title II of the ***** Rapeseed, meal ...... 6 .0 VI. Statutory and Executive Order Unfunded Mandates Reform Act of 1995 Rapeseed, subgroup 20A, ex- Reviews (UMRA) (Public Law 104–4). cept gold of pleasure ...... 3 .0 This final rule establishes tolerances This action does not involve any technical standards that would require ***** under FFDCA section 408(d) in Teff, forage ...... 9 .0 response to a petition submitted to the Agency consideration of voluntary consensus standards pursuant to section Teff, grain ...... 3 .0 Agency. The Office of Management and Teff, hay ...... 9.0 Budget (OMB) has exempted these types 12(d) of the National Technology Teff, straw ...... 9.0 of actions from review under Executive Transfer and Advancement Act of 1995 Order 12866, entitled ‘‘Regulatory (NTTAA), Public Law 104–113, section ***** Planning and Review’’ (58 FR 51735, 12(d) (15 U.S.C. 272 note). October 4, 1993). Because this final rule VII. Congressional Review Act * * * * * has been exempted from review under [FR Doc. 2012–22754 Filed 9–18–12; 8:45 am] Executive Order 12866, this final rule is The Congressional Review Act, 5 BILLING CODE 6560–50–P not subject to Executive Order 13211, U.S.C. 801 et seq., generally provides entitled ‘‘Actions Concerning that before a rule may take effect, the Regulations That Significantly Affect agency promulgating the rule must DEPARTMENT OF THE INTERIOR Energy Supply, Distribution, or Use’’ (66 submit a rule report to each House of Fish and Wildlife Service FR 28355, May 22, 2001) or Executive the Congress and to the Comptroller Order 13045, entitled ‘‘Protection of General of the United States. EPA will 50 CFR Part 32 Children from Environmental Health submit a report containing this rule and other required information to the U.S. Risks and Safety Risks’’ (62 FR 19885, Refuge-Specific Hunting and Sport Senate, the U.S. House of April 23, 1997). This final rule does not Fishing Regulations contain any information collections Representatives, and the Comptroller subject to OMB approval under the General of the United States prior to CFR Correction Paperwork Reduction Act (PRA), 44 publication of this final rule in the U.S.C. 3501 et seq., nor does it require Federal Register. This final rule is not § 32.29 [Corrected] any special considerations under a ‘‘major rule’’ as defined by 5 U.S.C. ■ In Title 50 of the Code of Federal Executive Order 12898, entitled 804(2). Regulations, parts 18 to 199, revised as of October 1, 2011, on page 320, in ‘‘Federal Actions to Address List of Subjects in 40 CFR Part 180 Environmental Justice in Minority § 32.29, under Savannah National Populations and Low-Income Environmental protection, Wildlife Refuge, the second paragraph Populations’’ (59 FR 7629, February 16, Administrative practice and procedure, A.1. is removed. 1994). Agricultural commodities, Pesticides [FR Doc. 2012–23169 Filed 9–18–12; 8:45 am] Since tolerances and exemptions that and pests, Reporting and recordkeeping BILLING CODE 1505–01–D are established on the basis of a petition requirements. under FFDCA section 408(d), such as Dated: September 10, 2012. the tolerance in this final rule, do not DEPARTMENT OF THE INTERIOR require the issuance of a proposed rule, Lois Rossi, the requirements of the Regulatory Director, Registration Division, Office of Fish and Wildlife Service Flexibility Act (RFA) (5 U.S.C. 601 et Pesticide Programs. seq.) do not apply. Therefore, 40 CFR chapter I is 50 CFR Part 32 This final rule directly regulates amended as follows: growers, food processors, food handlers, Refuge-Specific Hunting and Sport and food retailers, not States or tribes, PART 180—[AMENDED] Fishing Regulations nor does this action alter the relationships or distribution of power ■ 1. The authority citation for part 180 CFR Correction and responsibilities established by continues to read as follows: § 32.37 [Corrected] Congress in the preemption provisions Authority: 21 U.S.C. 321(q), 346a and 371. ■ In Title 50 of the Code of Federal of FFDCA section 408(n)(4). As such, Regulations, Parts 18 to 199, revised as the Agency has determined that this ■ 2. In § 180.431, paragraph (a) is of October 1, 2011, on page 345, in action will not have a substantial direct amended by removing the commodities § 32.37, under Black Bayou Lake effect on States or tribal governments, ‘‘Crambe, seed’’; ‘‘Flax, seed’’; ‘‘Mustard National Wildlife Refuge, the second on the relationship between the national greens’’; ‘‘Mustard, seed’’; and paragraph B.1. and the second government and the States or tribal ‘‘Rapeseed, seed’’ from the table and by paragraph C.1. are removed. governments, or on the distribution of adding, alphabetically, the following power and responsibilities among the commodities to the table to read as [FR Doc. 2012–23170 Filed 9–18–12; 8:45 a.m.] various levels of government or between follows: BILLING CODE 1505–01–P

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DEPARTMENT OF THE INTERIOR SUMMARY: NMFS announces that the NMFS is required to publish 2012 bluefish commercial quota notification in the Federal Register Fish and Wildlife Service allocated to the Commonwealth of advising and notifying commercial Massachusetts has been harvested. vessels and dealer permit holders that, 50 CFR Part 32 Vessels issued a commercial Federal effective upon a specific date, the state’s fisheries permit for the bluefish fishery commercial quota has been harvested Refuge-Specific Hunting and Sport may not land bluefish in Massachusetts and no commercial quota is available for Fishing Regulations for the remainder of calendar year 2012, landing bluefish in that state. The CFR Correction unless additional quota becomes Regional Administrator has determined, available through a transfer from based upon dealer reports and other ■ In Title 50 of the Code of Federal another state. Regulations governing the available information, that Regulations, Parts 18 to 199, revised as bluefish fishery require publication of Massachusetts has harvested its quota of October 1, 2011, on page 410, in this notification to advise Massachusetts for 2012. § 32.44, the entry for Middle Mississippi that the quota has been harvested and to Section 648.4(b) provides that Federal River National Wildlife Refuge is advise vessel permit holders and dealer permit holders agree, as a condition of reinstated to read as follows: permit holders that no Federal the permit, not to land bluefish in any commercial quota is available for § 32.44 Missouri. state that the Regional Administrator landing bluefish in Massachusetts. has determined no longer has * * * * * DATES: Effective at 0001 hr local time, commercial quota available. Therefore, Middle Mississippi River National September 19, 2012, through 2400 hr effective 0001 hours, September 19, Wildlife Refuge local time December 31, 2012. 2012, landings of bluefish in FOR FURTHER INFORMATION CONTACT: Refer to § 32.32 Illinois for Massachusetts by vessels holding Carly Bari, (978) 281–9224, or regulations. Federal commercial bluefish permits are [email protected]. prohibited for the remainder of the 2012 * * * * * SUPPLEMENTARY INFORMATION: calendar year, unless additional quota [FR Doc. 2012–23171 Filed 9–18–12; 8:45 am] Regulations governing the bluefish becomes available through a transfer BILLING CODE 1505–01–D fishery are found at 50 CFR part 648. and is announced in the Federal The regulations require annual Register. Effective 0001 hours, specification of a commercial quota that September 19, 2012, federally permitted DEPARTMENT OF COMMERCE is apportioned on a percentage basis dealers are also notified that they may among the coastal states from Florida not purchase bluefish from federally National Oceanic and Atmospheric through Maine. The process to set the permitted vessels that land in Administration annual commercial quota and the Massachusetts for the remainder of the percent allocated to each state is calendar year, or until additional quota 50 CFR Part 648 described in § 648.162. becomes available through a transfer [Docket No. 120201086–2418–02] The initial total commercial quota for from another state. bluefish for the 2012 fishing year is Classification RIN 0648–XC236 10,317,362 lb (4,679,878 kg) (77 FR 25100, April 27, 2012). The percent This action is required by 50 CFR part Fisheries of the Northeastern United allocated to vessels landing bluefish in 648 and is exempt from review under States; Bluefish Fishery; Commercial Massachusetts is 6.7167 percent, Executive Order 12866. Quota Harvested for the resulting in a commercial quota of Authority: 16 U.S.C. 1801 et seq. Commonwealth of Massachusetts 692,986 lb (314,333 kg) after deduction Dated: September 14, 2012. AGENCY: National Marine Fisheries of research set-aside. Service (NMFS), National Oceanic and The Administrator, Northeast Region, Lindsay Fullenkamp, Atmospheric Administration (NOAA), NMFS (Regional Administrator), Acting Deputy Director, Office of Sustainable Commerce. monitors the state commercial quotas Fisheries, National Marine Fisheries Service. and determines when a state’s [FR Doc. 2012–23142 Filed 9–14–12; 4:15 pm] ACTION: Temporary rule; closure. commercial quota has been harvested. BILLING CODE 3510–22–P

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Proposed Rules Federal Register Vol. 77, No. 182

Wednesday, September 19, 2012

This section of the FEDERAL REGISTER and 5 p.m., Monday through Friday, Discussion contains notices to the public of the proposed except Federal holidays. issuance of rules and regulations. The The Civil Aviation Safety Authority For service information identified in (CASA), which is the aviation authority purpose of these notices is to give interested this proposed AD, contact Gippsland persons an opportunity to participate in the for Australia, has issued AD/GA8/6, Aeronautics, Attn: Technical Services, dated August 6, 2012 (referred to after rule making prior to the adoption of the final P.O. Box 881, Morwell Victoria 3840, rules. this as ‘‘the MCAI’’), to correct an unsafe Australia; telephone: + 61 03 5172 1200; condition for the specified products. fax: +61 03 5172 1201; Internet: http:// The MCAI states: DEPARTMENT OF TRANSPORTATION www.gippsaero.com/customer-support/ technical-publications.aspx. You may CASA has received a number of Service Federal Aviation Administration review copies of the referenced service Difficulty Reports regarding the pitot probe information at the FAA, Small Airplane heater connector. The loss of pitot heat in Instrument Meteorological Condition (IMC) 14 CFR Part 39 Directorate, 901 Locust, Kansas City, may lead to the loss of airspeed indication. Missouri 64106. [Docket No. FAA–2012–1007; Directorate This may lead to the loss of control of the Identifier 2012–CE–031–AD] Examining the AD Docket aeroplane. Remedial action is to replace the connector with a terminal block. RIN 2120–AA64 You may examine the AD docket on the Internet at http:// You may obtain further information by examining the MCAI in the AD docket. Airworthiness Directives; GA 8 Airvan www.regulations.gov; or in person at the (Pty) Ltd Airplanes Docket Management Facility between 9 Relevant Service Information a.m. and 5 p.m., Monday through GippsAero has issued Mandatory AGENCY: Federal Aviation Friday, except Federal holidays. The AD Service Bulletin SB–GA8–2012–77, Administration (FAA), Department of docket contains this proposed AD, the Issue 3, dated March 23, 2012. The Transportation (DOT). regulatory evaluation, any comments actions described in this service ACTION: Notice of proposed rulemaking received, and other information. The information are intended to correct the (NPRM). street address for the Docket Office unsafe condition identified in the (telephone (800) 647–5527) is in the MCAI. SUMMARY: We propose to adopt a new ADDRESSES section. Comments will be airworthiness directive (AD) for GA 8 available in the AD docket shortly after FAA’s Determination and Requirements Airvan (Pty) Ltd Models GA8 and GA8– receipt. of the Proposed AD TC320 airplanes. This proposed AD FOR FURTHER INFORMATION CONTACT: results from mandatory continuing This product has been approved by Doug Rudolph, Aerospace Engineer, airworthiness information (MCAI) the aviation authority of another FAA, Small Airplane Directorate, 901 originated by an aviation authority of country, and is approved for operation Locust, Room 301, Kansas City, another country to identify and correct in the United States. Pursuant to our Missouri 64106; telephone: (816) 329– an unsafe condition on an aviation bilateral agreement with this State of 4059; fax: (816) 329–4090; email: product. The MCAI describes the unsafe Design Authority, they have notified us [email protected]. condition as burnt electrical connectors of the unsafe condition described in the leading to the left-hand wingtip pitot SUPPLEMENTARY INFORMATION: MCAI and service information referenced above. We are proposing this heater, which may result in loss of air Comments Invited speed indication. We are issuing this AD because we evaluated all proposed AD to require actions to We invite you to send any written information and determined the unsafe address the unsafe condition on these relevant data, views, or arguments about condition exists and is likely to exist or products. this proposed AD. Send your comments develop on other products of the same to an address listed under the type design. DATES: We must receive comments on ADDRESSES section. Include ‘‘Docket No. this proposed AD by November 5, 2012. FAA–2012–1007; Directorate Identifier Costs of Compliance ADDRESSES: You may send comments by 2012–CE–031–AD’’ at the beginning of We estimate that this proposed AD any of the following methods: your comments. We specifically invite will affect 29 products of U.S. registry. • Federal eRulemaking Portal: Go to comments on the overall regulatory, We also estimate that it would take http://www.regulations.gov. Follow the economic, environmental, and energy about 4 work-hours per product to instructions for submitting comments. aspects of this proposed AD. We will comply with the basic requirements of • Fax: (202) 493–2251. consider all comments received by the this proposed AD. The average labor • Mail: U.S. Department of closing date and may amend this rate is $85 per work-hour. Required Transportation, Docket Operations, M– proposed AD because of those parts would cost about $100 per 30, West Building Ground Floor, Room comments. product. W12–140, 1200 New Jersey Avenue SE., We will post all comments we Based on these figures, we estimate Washington, DC 20590. receive, without change, to http:// the cost of the proposed AD on U.S. • Hand Delivery: U.S. Department of regulations.gov, including any personal operators to be $12,760, or $440 per Transportation, Docket Operations, M– information you provide. We will also product. 30, West Building Ground Floor, Room post a report summarizing each According to the manufacturer, all of W12–140, 1200 New Jersey Avenue SE., substantive verbal contact we receive the costs of this proposed AD may be Washington, DC 20590, between 9 a.m. about this proposed AD. covered under warranty, thereby

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reducing the cost impact on affected PART 39—AIRWORTHINESS to assure the product is airworthy before it individuals. We do not control warranty DIRECTIVES is returned to service. coverage for affected individuals. As a (3) Reporting Requirements: For any result, we have included all costs in our 1. The authority citation for part 39 reporting requirement in this AD, a federal continues to read as follows: agency may not conduct or sponsor, and a cost estimate. person is not required to respond to, nor Authority for This Rulemaking Authority: 49 U.S.C. 106(g), 40113, 44701. shall a person be subject to a penalty for failure to comply with a collection of Title 49 of the United States Code § 39.13 [Amended] information subject to the requirements of specifies the FAA’s authority to issue 2. The FAA amends § 39.13 by adding the Paperwork Reduction Act unless that rules on aviation safety. Subtitle I, the following new AD: collection of information displays a current section 106, describes the authority of valid OMB Control Number. The OMB GA 8 Airvan (Pty) Ltd: Docket No. FAA– Control Number for this information the FAA Administrator. ‘‘Subtitle VII: 2012–1007; Directorate Identifier 2012– collection is 2120–0056. Public reporting for Aviation Programs,’’ describes in more CE–031–AD. this collection of information is estimated to detail the scope of the Agency’s (a) Comments Due Date be approximately 5 minutes per response, authority. including the time for reviewing instructions, We are issuing this rulemaking under We must receive comments by November completing and reviewing the collection of the authority described in ‘‘Subtitle VII, 5, 2012. information. All responses to this collection Part A, Subpart III, Section 44701: (b) Affected ADs of information are mandatory. Comments concerning the accuracy of this burden and General requirements.’’ Under that None. suggestions for reducing the burden should section, Congress charges the FAA with (c) Applicability be directed to the FAA at: 800 Independence promoting safe flight of civil aircraft in Ave. SW., Washington, DC 20591, Attn: air commerce by prescribing regulations This AD applies to GA 8 Airvan (Pty) Ltd Information Collection Clearance Officer, for practices, methods, and procedures Models GA8 and GA8–TC320 airplanes, all AES–200. serial numbers, certificated in any category. the Administrator finds necessary for (h) Related Information safety in air commerce. This regulation (d) Subject Refer to MCAI Civil Aviation Safety is within the scope of that authority Air Transport Association of America Authority AD/GA8/6, dated August 6, 2012; because it addresses an unsafe condition (ATA) Code 30, Ice and Rain Protection. and GippsAero Mandatory Service Bulletin that is likely to exist or develop on (e) Reason SB–GA8–2012–77, Issue 3, dated March 23, products identified in this rulemaking 2012, for related information. For service action. This AD was prompted by burnt electrical information related to this AD, contact connectors leading to the left-hand wingtip Gippsland Aeronautics, Attn: Technical Regulatory Findings pitot heater, which may result in loss of air Services, P.O. Box 881, Morwell Victoria speed indication. We are issuing this We determined that this proposed AD 3840, Australia; telephone: + 61 03 5172 proposed AD to modify the pitot heat wiring 1200; fax: +61 03 5172 1201; Internet: would not have federalism implications on the left-hand wingtip with a terminal http://www.gippsaero.com/customer- under Executive Order 13132. This block to prevent loss of heating to the pitot support/technical-publications.aspx. You proposed AD would not have a system, which could result in loss of air may review copies of the referenced service substantial direct effect on the States, on speed indication. information at the FAA, Small Airplane the relationship between the national (f) Actions and Compliance Directorate, 901 Locust, Kansas City, Government and the States, or on the Missouri 64106. For information on the Unless already done, within the next 100 distribution of power and availability of this material at the FAA, call hours time-in-service or at the next annual (816) 329–4148. responsibilities among the various inspection, whichever occurs later, modify levels of government. the pitot heat wiring connector at the left Issued in Kansas City, Missouri, on For the reasons discussed above, I wingtip, following GippsAero Mandatory September 12, 2012. certify this proposed regulation: Service Bulletin SB–GA8–2012–77, Issue 3, Earl Lawrence, (1) Is not a ‘‘significant regulatory dated March 23, 2012. Manager, Small Airplane Directorate, Aircraft Certification Service. action’’ under Executive Order 12866, (g) Other FAA AD Provisions [FR Doc. 2012–23051 Filed 9–18–12; 8:45 am] (2) Is not a ‘‘significant rule’’ under The following provisions also apply to this the DOT Regulatory Policies and AD: BILLING CODE 4910–13–P Procedures (44 FR 11034, February 26, (1) Alternative Methods of Compliance 1979), (AMOCs): The Manager, Standards Office, (3) Will not affect intrastate aviation FAA, has the authority to approve AMOCs DEPARTMENT OF THE INTERIOR in Alaska, and for this AD, if requested using the procedures (4) Will not have a significant found in 14 CFR 39.19. Send information to Office of Surface Mining Reclamation ATTN: Doug Rudolph, Aerospace Engineer, and Enforcement economic impact, positive or negative, FAA, Small Airplane Directorate, 901 Locust, on a substantial number of small entities Room 301, Kansas City, Missouri 64106; 30 CFR Part 917 under the criteria of the Regulatory telephone: (816) 329–4059; fax: (816) 329– Flexibility Act. 4090; email: [email protected]. Before [SATS No. KY–253–FOR; Docket ID: OSM– using any approved AMOC on any airplane 2009–0014] List of Subjects in 14 CFR Part 39 to which the AMOC applies, notify your Air transportation, Aircraft, Aviation appropriate principal inspector (PI) in the Kentucky Regulatory Program FAA Flight Standards District Office (FSDO), safety, Incorporation by reference, AGENCY: Office of Surface Mining Safety. or lacking a PI, your local FSDO. (2) Airworthy Product: For any requirement Reclamation and Enforcement (OSM), The Proposed Amendment in this AD to obtain corrective actions from Interior. a manufacturer or other source, use these ACTION: Proposed rule; Removal of Accordingly, under the authority actions if they are FAA-approved. Corrective Required Amendments; public comment delegated to me by the Administrator, actions are considered FAA-approved if they period and opportunity for public the FAA proposes to amend 14 CFR part are approved by the State of Design Authority hearing. 39 as follows: (or their delegated agent). You are required

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SUMMARY: We are announcing our intent Lexington, Kentucky 40503, Telephone: 2008, using a standard of ‘‘no less to remove two required amendments to (859) 260–3902; Email: effective than the Federal regulations in the Kentucky regulatory program [email protected]. meeting the requirements of the Act’’ (hereinafter, the ‘‘Kentucky program’’) FOR FURTHER INFORMATION CONTACT: (65 FR 79658). As a part of the under the Surface Mining Control and Joseph L. Blackburn, Telephone: (859) evaluation, the Lexington Field Office of Reclamation Act of 1977 (SMCRA or the 260–3900. Email: OSM conducted several meetings with Act). As a result of OSM’s review of the [email protected]. the Kentucky Department for Natural Kentucky program concerning its Resources (KDNR). As a part of its regulations and procedures relating to SUPPLEMENTARY INFORMATION: review, OSM considered whether the Ownership and Control, and Transfer, I. Background on the Kentucky Program program is currently being implemented Assignment or Sale of Permit Rights, II. Background on the Ownership and Control in accordance with the current Federal OSM has determined that two Rule regulations. Because OSM had issued III. Description of OSM’s Proposed Action required amendments to KDNR prior to previously required amendments can be IV. Public Comment Procedures removed. Kentucky’s program with V. Procedural Determinations the current final rulemaking, OSM regard to Ownership and Control, and revisited the need for those required Transfer, Assignment, or Sale of Permit I. Background on the Kentucky amendments in light of the current Rights, is now consistent with the Program status of the Federal regulations. As a corresponding Federal regulations and result of that review, OSM is proposing Section 503(a) of the Act permits a SMCRA. to remove the previously required State to assume primacy for the This document gives the times and amendments as discussed below. regulation of surface coal mining and locations that the Kentucky program is reclamation operations on non-Federal III. Description of OSM’s Proposed available for your inspection, the and non-Indian lands within its borders Action comment period during which you may by demonstrating that its program submit written comments, and the OSM is proposing removal of a includes, among other things, ‘‘a State procedures that we will follow for the required amendment found at 30 CFR law which provides for the regulation of public hearing, if one is requested. 917.16 (e) regarding the Kentucky surface coal mining and reclamation ownership and control regulations. DATES: We will accept written operations in accordance with the Previously, OSM reviewed a program comments until 4:00 p.m., local time requirements of this Act * * *; and amendment submitted by Kentucky, October 19, 2012. If requested, we will rules and regulations consistent with which among other things, proposed to hold a public hearing on October 15, regulations issued by the Secretary add a regulation which prohibited 2012. We will accept requests to speak pursuant to this Act.’’ See 30 U.S.C. ‘‘* * * the issuance of a permit if the until 4:00 p.m., local time on October 4, 1253(a)(1) and (7). On the basis of these applicant, operator or anyone who owns 2012. criteria, the Secretary of the Interior or controls the applicant, controls or has ADDRESSES: You may submit comments, conditionally approved the Kentucky controlled any surface coal mining and identified by ‘‘KY–253–FOR; Docket program on May 18, 1982. You can find reclamation operation with a Number OSM–2009–0014’’ by either of background information on the demonstrated pattern of willful the following two methods: Kentucky program, including the violations of Kentucky Revised Statute Federal eRulemaking Portal: Secretary’s findings, the disposition of (KRS) chapter 350 and regulations www.regulations.gov. The proposed rule comments, and conditions of approval adopted pursuant thereto * * *’’ In a has been assigned Docket ID: OSM– of the Kentucky program in the May 18, Federal Register notice dated 2009–0014. If you would like to submit 1982, Federal Register (47 FR 21434). September 23, 1991 (56 FR 47907), OSM comments through the Federal You can also find later actions found the proposed 405 KAR 8:010 eRulemaking Portal, go to concerning Kentucky’s program and Section 13 (4)(c) to be less effective than www.regulations.gov and follow the program amendments at 30 CFR 917.11, its Federal counterpart at 30 CFR 773.15 instructions. 917.12, 917.13, 917.15, 917.16, and (b)(3) to the extent the proposal does not Mail/Hand Delivery/Courier: Joseph L. 917.17. include violations of Federal regulatory Blackburn, Field Office Director, programs and other State regulatory Lexington Field Office, Office of Surface II. Background on the Ownership and programs. OSM disapproved the Mining Reclamation and Enforcement, Control Rule proposed revisions and required 2675 Regency Road, Lexington, OSM first promulgated final rules to Kentucky to further amend its program Kentucky 40503. address Ownership and Control (O&C) to correct the deficiencies identified. Instructions: For detailed instructions over 20 years ago. Since then, OSM has OSM included a required program on submitting comments and additional published a series of changes to O&C amendment in its decision as follows: information on the rulemaking process, and related rules, some in response to 30 CFR 917.16(e) By March 23, 1992, see the ‘‘Public Comment Procedures’’ Federal Court decisions, culminating in Kentucky shall amend its rules at 405 KAR heading of the SUPPLEMENTARY our latest rulemaking published on 8:010 section 13(4)(c) to include violations of INFORMATION section in this document. December 3, 2007, which included Federal regulatory programs and other State Docket: In addition to obtaining changes to our Transfer, Assignment, or regulatory programs, not just violations of copies of documents at Sale (TAS) of Permit rights rules (72 FR KRS chapter 350 and regulations adopted www.regulations.gov, you may also 68000). thereto. obtain information at the address listed The Lexington Field Office conducted As a result of the recent review of the below during normal business hours, an evaluation of the Kentucky current O&C program in Kentucky, we Monday through Friday, excluding regulatory program pursuant to 30 CFR have determined that KDNR interprets holidays. 732.17 in order to determine if any 405 KAR 8:010 Section 13 (4) in a Joseph L. Blackburn, Field Office changes were required. The Lexington manner that is no less stringent than Director, Lexington Field Office, Office Field Office reviewed the Kentucky SMCRA and no less effective than the of Surface Mining Reclamation and program against all revisions to the corresponding Federal regulations. In Enforcement, 2675 Regency Road, Federal regulations through July 1, our previous assessment, leading to the

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required amendment, OSM considered 701.5). Therefore, the Federal accommodations to attend a public only one regulation, which on its face regulations no longer consider a change hearing, contact the person listed under implied that KDNR might not consider in the ‘‘operator’’ of a mine to fall under FOR FURTHER INFORMATION CONTACT. We all violations. However, our recent the definition of TAS. Kentucky will arrange the location and time of the review determined that KDNR has been continues to process a change in mine hearing with those persons requesting interpreting these standards consistent operator in a manner similar to the the hearing. If no one requests an with the Federal regulations. When process developed for the TAS opportunity to speak, we will not hold reviewing the Kentucky program in applications. In addition, KDNR will the hearing. total, we tentatively determined that the continue entering all data concerning a To assist the transcriber and ensure an program is being interpreted such that revision of the mine operator in both accurate record, we request, that if no permit will be issued to an applicant Applicant/Violator System (AVS) and possible, each person who speaks at a who owns or controls operations with a Kentucky Surface Mining Information public hearing provide us with a written demonstrated pattern of willful System (KYSMIS). copy of his or her comments. The public violations of the Kentucky program, IV. Public Comment Procedures hearing will continue on the specified SMCRA, or any other surface coal date until everyone scheduled to speak Under the provisions of 30 CFR mining regulatory program, that are of has been given an opportunity to be 732.17(h), we are seeking your such nature and duration with such heard. If you are in the audience and comments on whether the Kentucky resulting irreparable damage to the have not been scheduled to speak and program now satisfies the applicable environment as to indicate an intent not wish to do so, you will be allowed to program approval criteria of 30 CFR to comply with the Kentucky program, speak after those who have been 732.15. If we remove the required SMCRA, or with any other surface coal scheduled. We will end the hearing after mining regulatory program. For this amendments, the Kentucky program everyone scheduled to speak and others reason, we are proposing the removal of will be approved as it is currently being present in the audience who wish to the required amendment at 30 CFR implemented. speak, have been heard. 916.16(e). Written or Electronic Comments In addition, OSM is proposing Public Meeting removal of a required amendment found If you submit written comments, they at 30 CFR 917.16 (h) regarding the should be specific, confined to issues If there is only limited interest in Kentucky operator change revision pertinent to the proposed regulations, participating in a public hearing, we regulations. Previously OSM reviewed a and explain the reason for any may hold a public meeting rather than program amendment submitted by recommended change(s). We appreciate a public hearing. If you wish to meet Kentucky, which among other things, any and all comments, but those most with us to discuss the amendment, proposed to add a regulation which useful and likely to influence decisions please request a meeting by contacting ‘‘* * * established a new category of on the final regulations will be those the person listed under FOR FURTHER permit revision for operator changes that either involve personal experience INFORMATION CONTACT. All such meetings that do not constitute a transfer, or include citations to and analyses of are open to the public and, if possible, assignment or sale of permit rights.’’ SMCRA, its legislative history, its we will post notices of meetings at the In a Federal Register dated January implementing regulations, case law, locations listed under ADDRESSES. We 12, 1993 (58 FR 3833), OSM determined other pertinent Tribal or Federal laws or will make a written summary of each that the proposed change to 405 KAR regulations, technical literature, or other meeting a part of the administrative 8:010 Section 20(6)(h) did not include relevant publications. We cannot ensure record. notification to OSM, nor did the that comments received after the close V. Procedural Determinations proposed rule require that the regulatory of the comment period (see DATES) or at authority be notified when the approved locations other than those listed above Executive Order 12866—Regulatory change was consummated. OSM (see ADDRESSES) will be included in the Planning and Review disapproved the proposed revision and docket for this rulemaking and This rule is exempted from review by required Kentucky to further amend its considered. program to correct the deficiencies the Office of Management and Budget identified. OSM included a required Public Availability of Comments (OMB) under Executive Order 12866. program amendment in its decision as Before including your address, phone Other Laws and Executive Orders follows: number, email address, or other Affecting Rulemaking 30 CFR 917.16(h) By June 14, 1993, Kentucky personal identifying information in your shall amend its rules at 405 KAR 8:010 comment, be aware that your entire When a State submits a program Section 20(6)(h) by including OSM as one of comment—including your personal amendment to OSM for review, our the parties to be notified of the cabinet’s identifying information—may be made regulations at 30 CFR 732.17(h) require decision to approve or deny the application publicly available at any time. While us to publish a notice in the Federal for an operator change and to require that the you may ask us in your comment to Register indicating receipt of the regulatory authority be notified when the withhold your personal identifying proposed amendment, its text or a approved change is consummated. information from public review, we summary of its terms, and an OSM has historically interpreted the cannot guarantee that we will be able to opportunity for public comment. We Federal rules as meaning that changes in do so. We will not consider anonymous conclude our review of the proposed the ‘‘operator’’ of a mine, as that term is comments. amendment after the close of the public defined at 30 CFR 701.5, must be comment period and determine whether processed as a TAS of permit Public Hearing the amendment should be approved, regulations. In the December 3, 2007, If you wish to speak at the public approved in part, or not approved. At Federal regulation (72 FR 68000) OSM hearing, contact the person listed under that time, we will also make the made changes to TAS, including FOR FURTHER INFORMATION CONTACT by 4 determinations and certifications defining TAS as limited to ‘‘* * * a p.m., local time on October 4, 2012. If required by the various laws and change of a permittee * * *’’ (30 CFR you are disabled and need reasonable executive orders governing the

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rulemaking process and include them in to be no less effective than the Federal FOR FURTHER INFORMATION CONTACT: the final rule. regulations and to improve operational Sherry Wilson, Director, Birmingham efficiency. Field Office. Telephone: (205) 290– List of Subjects in 30 CFR Part 917 This document gives the times and 7282. Email: [email protected]. Intergovernmental relations, Surface locations of the Mississippi program SUPPLEMENTARY INFORMATION: mining, Underground mining. and this proposed amendment to that I. Background on Mississippi Program Dated: August 9, 2012. program are available for your II. Description of the Proposed Amendment Thomas D. Shope, inspection, the comment period during III. Public Comment Procedures IV. Procedural Determinations Regional Director, Appalachian Region. which you may submit written [FR Doc. 2012–23063 Filed 9–18–12; 8:45 am] comments on the amendment, and the procedures that we will follow for the I. Background on the Mississippi BILLING CODE 4310–05–P public hearing, if one is requested. Program DATES: We will accept written Section 503(a) of the Act permits a DEPARTMENT OF THE INTERIOR comments on this amendment until 4 State to assume primacy for the p.m., c.d.t., October 19, 2012. If regulation of surface coal mining and Office of Surface Mining Reclamation requested, we will hold a public hearing reclamation operations on non-Federal and Enforcement on the amendment on October 15, 2012. and non-Indian lands within its borders We will accept requests to speak at a by demonstrating that its program 30 CFR Part 924 hearing until 4 p.m., c.d.t. on October 4, includes, among other things, ‘‘a State law which provides for the regulation of [SATS No. MS–023–FOR; Docket No. OSM– 2012. surface coal mining and reclamation 2012–0018] ADDRESSES: You may submit comments, identified by SATS No. MS–023–FOR, operations in accordance with the Mississippi Regulatory Program by any of the following methods: requirements of this Act * * *; and • Mail/Hand Delivery: Sherry Wilson, rules and regulations consistent with AGENCY: Office of Surface Mining regulations issued by the Secretary Reclamation and Enforcement, Interior. Director, Birmingham Field Office, Office of Surface Mining Reclamation pursuant to this Act.’’ See 30 U.S.C. ACTION: Proposed rule; public comment 1253(a)(1) and (7). On the basis of these and Enforcement, 135 Gemini Circle, period and opportunity for public criteria, the Secretary of the Interior Suite 215, Homewood, Alabama 35209; hearing. conditionally approved the Mississippi Telephone: (205) 290–7282 program effective September 4, 1980. SUMMARY: We, the Office of Surface • Fax: (205) 290–7280 You can find background information Mining Reclamation and Enforcement • Federal eRulemaking Portal: http:// on the Mississippi program, including (OSM), are announcing receipt of a www.regulations.gov. Follow the the Secretary’s findings, the disposition proposed amendment to the Mississippi instructions for submitting comments. of comments, and the conditions of regulatory program (Mississippi Instructions: All submissions received approval of the Mississippi program in Program) under the Surface Mining must include the agency name and the September 4, 1980, Federal Register Control and Reclamation Act of 1977 docket number for this rulemaking. For (45 FR 58520). You can also find later (SMCRA or the Act). Mississippi detailed instructions on submitting actions concerning the Mississippi proposes revisions to its regulations comments and additional information program and program amendments at 30 regarding: definitions; identification of on the rulemaking process, see the CFR 924.10, 924.15, 924.16, and 924.17. interests; lands eligible for remining; ‘‘Public Comment Procedures’’ heading permit eligibility determination; review of the SUPPLEMENTARY INFORMATION II. Description of the Proposed of permit applications; eligibility for section of this document. Mississippi Amendment provisionally issued permits; criteria for Docket: For access to the docket to By email dated July 26, 2012 permit approval or denial; initial review review copies of the Mississippi (Administrative Record No. MS–0423), and finding requirements for program, a listing of any scheduled Mississippi sent us an amendment to its improvidently issued permits; notice public hearings, and all written Program under SMCRA (30 U.S.C. 1201 requirements for improvidently issued comments received in response to this et seq.). Mississippi submitted the permits; suspension or rescission document, you must go to the address proposed amendment in response to a requirements for improvidently issued of our Birmingham Field Office listed September 30, 2009, letter permits; unanticipated events or above during normal business hours, (Administrative Record No. MS–0420– conditions at remining sites; verification Monday through Friday, excluding 02) that OSM sent to Mississippi in of ownership or control application holidays. You may receive one free copy accordance with 30 CFR 732.17(c), with information; who may challenge of the amendment by contacting OSM’s an additional change submitted on its ownership or control listings and Birmingham Field Office or going to own initiative. Below is a summary of findings; how to challenge an www.regulations.gov. the changes proposed by Mississippi. ownership or control listing or finding; Sherry Wilson, Director, Birmingham The full text of the program amendment burden of proof for ownership or control Field Office, Office of Surface Mining is available for you to read at the challenges; written agency decision on Reclamation and Enforcement, 135 locations listed above under ADDRESSES challenges to ownership or control Gemini Circle, Suite 215, Homewood, or at www.regulations.gov. listings or findings; post-permit Alabama 35209, Telephone: (205) 290– Mississippi proposes to revise its issuance requirements for regulatory 7282, Email: [email protected]. Surface Coal Mining Regulations in the authorities and other actions based on In addition, you may review a copy of following sections: ownership, control, and violation the amendment during regular business information; post-permit issuance hours at the following location: A. Mississippi Surface Coal Mining requirements for permittees; backfilling Mississippi Office of Geology, Regulations § 105. Definitions and grading: previously mined areas; Department of Environmental Quality, Mississippi proposes to modify this and alternative enforcement. 700 N. State Street, Jackson, Mississippi section by changing language, adding Mississippi intends to revise its program 39202, Telephone: (601) 961–5519. new language, or deleting language for

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the definitions of Applicant Violator J. Mississippi Surface Coal Mining violations, and add new language System or AVS; Knowing or Knowingly; Regulations § 3129. Suspension or regarding written agency decisions on Knowingly; Ownership or Control Link; Rescission Requirements for challenges to ownership or control Previously mined area; Slope; Violation; Improvidently Issued Permits listings or findings. and Willfully. Mississippi proposes to change the Q. Mississippi Surface Coal Mining B. Mississippi Surface Coal Mining language of this section regarding Regulations § 3138. Post-Permit Regulations § 2305. Identification of suspension and rescission requirements Issuance Requirements for Regulatory Interests for improvidently issued permits. Authorities and Other Actions Based on Mississippi proposes to add K. Mississippi Surface Coal Mining Ownership, Control, and Violation additional language requiring the Regulations § 3130. Unanticipated Information identification of interests for the Events or Conditions at Remining Sites Mississippi proposes to add this new applicant and operator, and the entry of Mississippi proposes to add this new section regarding post-permit issuance the applicants information into the section regarding unanticipated events requirements for regulatory authorities Applicant/Violator System (AVS). or conditions at remining sites. and other actions based on ownership, control, and violation information. C. Mississippi Surface Coal Mining L. Mississippi Surface Coal Mining Regulations § 2902. Lands Eligible for Regulations § 3131. Verification of R. Mississippi Surface Coal Mining Remining Ownership or Control Application Regulations § 3139. Post-Permit Mississippi proposes to add a new Information Issuance Requirements for Permittees section regarding lands eligible for Mississippi proposes to change remining. Mississippi proposes to add this new language in this section regarding the section regarding post-permit issuance D. Mississippi Surface Coal Mining determination of additional owners or requirements for permittees. Regulations § 3102. Permit Eligibility controllers and their identification Determination information for entry into AVS if the S. Mississippi Surface Coal Mining applicant or operators do not have Regulations § 5396. Backfilling and Mississippi proposes to add a new Grading: Previously Mined Areas section regarding permit eligibility previous mining experience. determination. M. Mississippi Surface Coal Mining Mississippi proposes to add this new section regarding backfilling and E. Mississippi Surface Coal Mining Regulations § 3133. Who May Challenge Ownership or Control Listings and grading requirements on previously Regulations § 3112. Review of Permit mined areas. Applications Findings Mississippi proposes to renumber Mississippi proposes to delete T. Mississippi Surface Coal Mining section § 3113 as § 3112. language in this section regarding the Regulations Chapter 73. Alternative review of ownership or control and Enforcement F. Mississippi Surface Coal Mining violation information, and add language Mississippi proposes to add this new Regulations § 3113. Eligibility for regarding who may challenge an Provisionally Issued Permits chapter regarding alternative ownership or control listing or finding. enforcement by adding new sections Mississippi proposes to add this new N. Mississippi Surface Coal Mining § 7301 Scope, § 7303 General section regarding an applicant’s Regulations § 3135. How to Challenge Provisions, § 7305 Criminal Penalties, eligibility for a provisionally issued an Ownership or Control Listing or and § 7307 Civil Actions for Relief. permit. Finding III. Public Comment Procedures G. Mississippi Surface Coal Mining Mississippi proposes to delete Regulations § 3115. Criteria for Permit language in this section regarding Under the provisions of 30 CFR Approval or Denial procedures for challenging ownership or 732.17(h), we are seeking your Mississippi proposes to add new control links in AVS and add language comments on whether Mississippi’s language regarding permit approval for regarding how to challenge ownership proposed amendment satisfies the remining operations. or control listings or findings. applicable program approval criteria of 30 CFR 732.15. If we approve the H. Mississippi Surface Coal Mining O. Mississippi Surface Coal Mining amendment, it will become part of Regulations § 3127. Initial Review and Regulations § 3136. Burden of Proof for Mississippi’s State Program. Finding Requirements for Improvidently Ownership or Control Challenges Electronic or Written Comments Issued Permits Mississippi proposes to delete Mississippi proposes to delete old language from this section regarding If you submit written comments, they language regarding general procedures written agency decisions on challenges should be specific, confined to issues for improvidently issued permits and to ownership or control listings or pertinent to the proposed regulations, insert new language regarding initial findings and add new language and explain the reason for any review and finding requirements for regarding the burden of proof for recommended change(s). We appreciate improvidently issued permits. ownership or control challenges. any and all comments, but those most useful and likely to influence decisions I. Mississippi Surface Coal Mining P. Mississippi Surface Coal Mining on the final regulations will be those Regulations § 3128. Notice Regulations § 3137. Written Agency that either involve personal experience Requirements for Improvidently Issued Decision on Challenges to Ownership or or include citations to and analyses of Permits Control Listings or Findings SMCRA, its legislative history, its Mississippi has proposed to add a Mississippi proposes to delete implementing regulations, case law, new section regarding the notice language from this section regarding other pertinent State or Federal laws or requirements for improvidently issued standards for challenging ownership or regulations, technical literature, or other permits. control links and the status of relevant publications.

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We cannot ensure that comments IV. Procedural Determinations 8-hour ozone maintenance area consists received after the close of the comment of Hardin, Jefferson, and Orange Executive Order 12866—Regulatory period (see DATES) or sent to an address Counties in Texas. Texas submitted this Planning and Review other than those listed (see ADDRESSES) request to EPA for parallel processing will be included in the docket for this This rule is exempted from review by on June 28, 2012. rulemaking and considered. the Office of Management and Budget DATES: Comments must be received on (OMB) under Executive Order 12866. or before October 19, 2012. Public Availability of Comments Other Laws and Executive Orders ADDRESSES: Submit your comments, Before including your address, phone Affecting Rulemaking identified by Docket No. EPA–R06– OAR–2012–0435, by one of the number, email address, or other When a State submits a program following methods: personal identifying information in your amendment to OSM for review, our • Federal Rulemaking Portal: http:// comment, you should be aware that regulations at 30 CFR 732.17(h) require www.regulations.gov. Follow the online your entire comment including your us to publish a notice in the Federal instructions for submitting comments. personal identifying information may be Register indicating receipt of the • U.S. EPA Region 6 ‘‘Contact Us’’ made publicly available at any time. proposed amendment, its text or a Web site: http://epa.gov/region6/ While you can ask us in your comment summary of its terms, and an r6comment.htm. Please click on ‘‘6PD to withhold your personal identifying opportunity for public comment. We (Multimedia)’’ and select ‘‘Air’’ before information from public review, we conclude our review of the proposed submitting comments. cannot guarantee that we will be able to amendment after the close of the public • Email: Mr. Guy Donaldson at do so. comment period and determine whether [email protected]. Please also the amendment should be approved, Public Hearing send a copy by email to the person approved in part, or not approved. At listed in the FOR FURTHER INFORMATION that time, we will also make the If you wish to speak at the public CONTACT section below. determinations and certifications hearing, contact the person listed under • Fax: Mr. Guy Donaldson, Chief, Air required by the various laws and FOR FURTHER INFORMATION CONTACT by 4 Planning Section (6PD–L), at fax executive orders governing the p.m., c.d.t. on October 4, 2012. If you number 214–665–7263. are disabled and need reasonable rulemaking process and include them in • Mail: Mr. Guy Donaldson, Chief, accommodations to attend a public the final rule. Air Planning Section (6PD–L), hearing, contact the person listed under List of Subjects in 30 CFR Part 924 Environmental Protection Agency, 1445 FOR FURTHER INFORMATION CONTACT. We Ross Avenue, Suite 1200, Dallas, Texas Intergovernmental relations, Surface will arrange the location and time of the 75202–2733. mining, Underground mining. hearing with those persons requesting • Hand or Courier Delivery: Mr. Guy the hearing. If no one requests an Dated: July 31, 2012. Donaldson, Chief, Air Planning Section opportunity to speak, we will not hold Paul J. Ehret, (6PD–L), Environmental Protection a hearing. Acting Regional Director, Mid-Continent Agency, 1445 Ross Avenue, Suite 1200, To assist the transcriber and ensure an Region. Dallas, Texas 75202–2733. Such accurate record, we request, if possible, [FR Doc. 2012–23077 Filed 9–18–12; 8:45 am] deliveries are accepted only between the that each person who speaks at the BILLING CODE 4310–05–P hours of 8 a.m. and 4 p.m. weekdays, public hearing provide us with a written and not on legal holidays. Special copy of his or her comments. The public arrangements should be made for hearing will continue on the specified ENVIRONMENTAL PROTECTION deliveries of boxed information. date until everyone scheduled to speak AGENCY Instructions: Direct your comments to has been given an opportunity to be Docket ID No. EPA–R06–OAR–2012– heard. If you are in the audience and 40 CFR Part 52 0435. EPA’s policy is that all comments received will be included in the public have not been scheduled to speak and [EPA–R06–OAR–2012–0435; FRL–9731–1] docket without change and may be wish to do so, you will be allowed to made available online at speak after those who have been Approval and Promulgation of www.regulations.gov, including any scheduled. We will end the hearing after Implementation Plans; Texas; personal information provided, unless everyone scheduled to speak and others Beaumont/Port Arthur Ozone Maintenance Plan Revision to the comment includes information present in the audience who wish to claimed to be Confidential Business speak, have been heard. Approved Motor Vehicle Emissions Budgets Information (CBI) or other information Public Meeting whose disclosure is restricted by statute. AGENCY: Environmental Protection Do not submit information that you If only one person requests an Agency (EPA). consider to be CBI or otherwise opportunity to speak, we may hold a ACTION: Proposed rule. protected through www.regulations.gov public meeting rather than a public or email. The www.regulations.gov Web hearing. If you wish to meet with us to SUMMARY: EPA is proposing to approve site is an ‘‘anonymous access’’ system, discuss the amendment, please request Texas’ request to revise its Beaumont/ which means EPA will not know your a meeting by contacting the person Port Arthur (BPA) 1997 8-hour ozone identity or contact information unless listed under FOR FURTHER INFORMATION maintenance air quality State you provide it in the body of your CONTACT. All such meetings are open to Implementation Plan (SIP) by replacing comment. If you send an email the public; if possible, we will post the previously approved motor vehicle comment directly to EPA without going notices of meetings at the locations emissions budgets (budgets) with through www.regulations.gov, your listed under ADDRESSES. We will make budgets developed using EPA’s Motor email address will be automatically a written summary of each meeting a Vehicle Emissions Simulator (MOVES) captured and included as part of the part of the administrative record. 2010a emissions model. The BPA 1997 comment that is placed in the public

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docket and made available on the Table of Contents precursors to address pollution from Internet. If you submit an electronic I. What action is EPA proposing? cars and trucks. SIP budgets are the comment, EPA recommends that you II. What is the background for this portions of the total allowable emissions include your name and other contact rulemaking? that are allocated to on-road vehicle use information in the body of your A. SIP Budgets and Transportation that, together with emissions from other comment and with any disk or CD–ROM Conformity sources in the area, will provide for you submit. If EPA cannot read your B. Prior Approval of Budgets attainment or maintenance. The budget comment due to technical difficulties C. The MOVES Emissions Model and Regional Transportation Conformity serves as a ceiling on emissions from an and cannot contact you for clarification, Grace Period area’s planned transportation system. EPA may not be able to consider your D. Submission of New Budgets Based on For more information about budgets, see comment. Electronic files should avoid MOVES2010a the preamble to the November 24, 1993, the use of special characters, any form III. What are the criteria for approval? transportation conformity rule (58 FR of encryption, and be free of any defects IV. What is EPA’s analysis of the State’s 62188). or viruses. For additional information submittal? Under section 176(c) of the CAA, about EPA’s public docket visit the EPA A. The Revised Inventories transportation plans, Transportation Docket Center homepage at http:// B. Approvability of the MOVES2010a- Based Budgets Improvement Programs (TIPs), and www.epa.gov/epahome/dockets.htm. C. Applicability of MOBILE6.2-Based transportation projects must ‘‘conform’’ Docket: All documents in the docket Budgets to (i.e., be consistent with) the SIP are listed in the www.regulations.gov V. Proposed Action before they can be adopted or approved. VI. Statutory and Executive Order Reviews index. Although listed in the index, Conformity to the SIP means that some information is not publicly I. What action is EPA proposing? transportation activities will not cause available, e.g., CBI or other information EPA is proposing to approve new new air quality violations, worsen whose disclosure is restricted by statute. MOVES2010a-based budgets for the existing air quality violations, or delay Certain other material, such as Beaumont/Port Arthur (BPA) 1997 8- timely attainment of the NAAQS or copyrighted material, will be publicly hour ozone maintenance area. The BPA delay an interim milestone. The available only in hard copy. Publicly area was redesignated to attainment of transportation conformity regulations available docket materials are available the 1997 8-hour ozone standard on can be found at 40 CFR Part 93. either electronically at October 20, 2010 (75 FR 64675, effective Before budgets can be used in www.regulations.gov or in hard copy at date November 19, 2010), and the the Air Planning Section (6PD–L), conformity determinations, EPA must MOBILE6.2-based budgets were affirmatively find the budgets adequate. Environmental Protection Agency, 1445 approved in that notice. Should EPA Ross Avenue, Suite 700, Dallas, Texas However, adequate budgets do not finalize this proposed approval, the supersede approved budgets for the 75202–2733. The file will be made newly submitted MOVES2010a budgets available by appointment for public same CAA purpose. If the submitted SIP will replace the existing, MOBILE6.2- budgets are meant to replace budgets for inspection in the Region 6 FOIA Review based budgets in the state’s 1997 8-hour Room between the hours of 8:30 a.m. the same purpose, as is the case with ozone maintenance plan and must then Texas’ MOVES2010a 1997 8-hour ozone and 4:30 p.m. weekdays except for legal be used in future transportation holidays. Contact the person listed in maintenance plan budgets, EPA must conformity analyses for the area. At that approve the budgets, and can affirm that the FOR FURTHER INFORMATION CONTACT time, the previously approved budgets paragraph below or Mr. Bill Deese at they are adequate at the same time. would no longer be applicable for Once EPA approves the submitted 214–665–7253 to make an appointment. transportation conformity purposes. budgets, they must be used by state and If possible, please make the Should EPA approve the appointment at least two working days MOVES2010a-based budgets, the BPA Federal agencies in determining in advance of your visit. There will be 1997 8-hour ozone maintenance area whether transportation activities a fee of 15 cents per page for making must use the MOVES2010a-based conform to the SIP as required by photocopies of documents. On the day budgets starting on the effective date of section 176(c) of the CAA. EPA’s of the visit, please check in at the EPA that final approval. See 75 FR 9411– substantive criteria for determining the Region 6 reception area at 1445 Ross 9414 for background and section II.C adequacy of budgets are set out in 40 Avenue, Suite 700, Dallas, Texas 75202. below for details. CFR 93.118(e)(4). The State submittal is also available II. What is the background for this B. Prior Approval of Budgets for public inspection during official rulemaking? business hours by appointment: Texas EPA had previously approved budgets Commission on Environmental Quality, A. SIP Budgets and Transportation for the Beaumont/Port Arthur 8-hour Office of Air Quality, 12124 Park 35 Conformity ozone maintenance area for volatile Circle, Austin, Texas 78753. Under the Clean Air Act (CAA), states organic compounds (VOCs) and nitrogen oxides (NO ) for the year 2021 FOR FURTHER INFORMATION CONTACT: Mr. are required to submit, at various times, X on October 20, 2010 (75 FR 64675). Jeffrey Riley, Air Planning Section control strategy SIP revisions and These budgets were based on EPA’s (6PD–L), Environmental Protection maintenance plans for nonattainment Agency, Region 6, 1445 Ross Avenue, and maintenance areas for a given MOBILE6.2 emissions model. The ozone Suite 700, Dallas, Texas 75202–2733, National Ambient Air Quality Standard maintenance plan established 2021 telephone 214–665–8542; fax number (NAAQS). These emission control budgets for the Beaumont/Port Arthur 214–665–6762; email address strategy SIP revisions (e.g., reasonable area of 4.77 tons per summer day (tpd) [email protected]. further progress and attainment for VOCs and 7.24 tpd for NOX. The demonstration SIP revisions) and budgets demonstrated a net reduction in SUPPLEMENTARY INFORMATION: maintenance plans include budgets of emissions from the monitored Throughout this document, ‘‘we,’’ ‘‘us,’’ on-road mobile source emissions for attainment year and the NOX budget and ‘‘our’’ means EPA. criteria pollutants and/or their included a margin of safety.

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C. The MOVES Emissions Model and transportation plan and also for the SIP. total VOC emissions from all sources Regional Transportation Conformity Texas is revising the budgets at this time between the 2005 attainment year and Grace Period using the latest planning assumptions the 2021 budget year, there is an The MOVES model is EPA’s state-of- including population and employment offsetting 7.3% decrease in total NOX the-art tool for estimating highway updates. In addition, newer vehicle emissions from all sources between emissions. The model is based on registration data has been used to these years. Therefore, the mobile analyses of millions of emission test update the age distribution of the source emissions, when included with results and considerable advances in the vehicle fleet. Texas finds that updating point, area and non-road sources the budgets with MOVES2010a will agency’s understanding of vehicle continue to demonstrate maintenance of prepare the South East Texas Regional the 1997 8-hour ozone standard emissions. MOVES incorporates the Planning Commission (SETRPC, the attainment level of emissions in the latest emissions data, more Beaumont/Port Arthur area MPO) for Beaumont/Port Arthur area. sophisticated calculation algorithms, the transition to using MOVES for No additional control measures were increased user flexibility, new software conformity analyses and needed to maintain the 1997 ozone design, and significant new capabilities determinations. The interagency standard emissions in the Beaumont/ relative to those reflected in consultation group has had extensive Port Arthur area. The on-road MOBILE6.2. consultation on the requirements and MOVES2010a based budgets are in EPA announced the release of need for new budgets. Table 4–7 of the submittal and are listed MOVES2010 in March 2010 (75 FR as 9.7 tpd for NOX and 3.9 tpd for VOCs 9411). This notice approved the use of D. Submission of New Budgets Based on in the year 2021. These budgets will MOVES2010 in official SIP submissions MOVES2010a continue to keep emissions in the to EPA and for regional emissions On June 28, 2012, Texas submitted for Beaumont/Port Arthur area below the analyses for transportation conformity parallel processing replacement budgets calculated attainment year of emissions. purposes outside of California. In based on MOVES2010a for the addition, the notice started a two-year Beaumont/Port Arthur area. Texas is III. What are the criteria for approval? grace period before MOVES2010 is currently providing public review and The CAA has always required that required to be used in new regional comment at the state level. The state revisions to existing SIPs and budgets emissions analyses for transportation public comment period ended on continue to meet applicable conformity determinations outside of August 3, 2012. EPA is proposing to requirements (i.e., reasonable further California. EPA has since extended that approve the MOVES2010a budgets after progress (RFP), attainment, or grace period until March 2, 2013 (77 FR completion of the public process and maintenance). States that revise their 11394). formal submittal of the SIP revision existing SIPs to include MOVES budgets On September 8, 2010, EPA released request. must therefore show that the SIP MOVES2010a, which included minor The MOVES2010a budgets are continues to meet applicable revisions that enhance model proposed to replace the prior approved requirements with the new level of performance and do not significantly MOBILE6.2 budgets and are for the motor vehicle emissions contained in affect the criteria pollutant emissions same year and pollutants/precursors. the budgets. results from MOVES2010. Therefore, The new MOVES2010a budgets are for The transportation conformity rule (at MOVES2010a is not considered a ‘‘new the year 2021 for both VOCs and NOX. 40 CFR 93.118(e)(4)(iv)) requires that model’’ under 40 CFR 93.111. As a Texas has also submitted MOVES2010a ‘‘the motor vehicle emissions budget(s), result, the MOVES2010 grace period for emissions for the attainment year of when considered together with all other regional conformity analyses applies to 2005 (and interim inventory years 2011, emissions sources, is consistent with the use of MOVES2010a as well.1 2014 and 2017) as a comparison to the applicable requirements for reasonable EPA encouraged Metropolitan 2021 budget year. Table 4–1 in the further progress (RFP), attainment, or Planning Organizations (MPOs), submittal demonstrates how mobile maintenance (whichever is relevant to Departments of Transportation, and source emissions decline from the the given implementation plan state air agencies to examine how attainment year of 2005. In 2005, the submission).’’ This and the other MOVES would affect future estimated NOX emissions from mobile adequacy criteria found at 40 CFR transportation plans and TIP conformity sources is 45.60 tpd and the estimated 93.118(e)(4) must be satisfied before determinations so, if necessary, SIPs VOC emissions from mobile sources is EPA can find submitted budgets and budgets could be revised with 11.63 tpd. The 2021 estimated adequate or approve them for MOVES2010 or transportation plans and emissions for NOX from mobile sources conformity purposes. TIPs could be revised (as appropriate) is 6.24 tpd and the VOC estimated In addition, EPA has stated that areas prior to the end of the regional emissions from mobile sources is 4.77 can revise their budgets and inventories transportation conformity grace period. tpd. using MOVES without revising their EPA also encouraged state and local air Tables 4–2 and 4–3 in the submittal entire SIP if (1) the SIP continues to agencies to consider how the release of demonstrate trends in total estimated meet applicable requirements when the MOVES would affect analyses NOX and VOC emissions, respectively, previous motor vehicle emissions supporting SIP submissions under between 2005 to 2021. In 2005, the total inventories are replaced with MOVES development. estimated NOX emissions from all base year and milestone, attainment, or The Texas Transportation Institute sources (including mobile, point, area maintenance year inventories, and (2) (TTI) (under contract with the Texas and non-road sources) is 148.04 tpd and the state can document that growth and Commission on Environmental Quality the total VOC emissions, for the 2005 control strategy assumptions for non- (TCEQ)) has used MOVES2010a attainment year, from all sources is motor vehicle sources continue to be emission rates with the transportation 210.51 tpd. The 2021 estimated valid and any minor updates do not network information to estimate emissions for total NOX from all sources change the overall conclusions of the emissions in the years of the is 137.24 tpd and the total VOC SIP. For example, the first criterion emissions from all sources is 222.69 tpd. could be satisfied by demonstrating that 1 For more information, see 77 FR 11394. Although there is a 5.8% increase in the emissions reductions between the

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baseline/attainment year and 2021 year are 137.24 tpd for NOX and EPA is moving forward with maintenance year are the same or 222.69 tpd for VOCs. Although there is proposing approval with this parallel greater using MOVES than they were a 5.8% increase in total VOC emissions process because transportation projects previously. The Texas submittal meets from all sources between the 2005 cannot be amended to the Beaumont/ this requirement as described below in attainment year and the 2021 budget Port Arthur Transportation Plan and section IV. year, there is an offsetting 7.3% transportation improvement program For more information, see EPA’s latest decrease in total NOX emissions from all until this budget replacement is ‘‘Policy Guidance on the Use of sources between these years. These completed. The budgets need to be MOVES2010 for State Implementation totals demonstrate that emissions in the updated, not only to accommodate the Plan Development, Transportation Beaumont/Port Arthur area are use of MOVES2010a, but also because of Conformity, and Other Purposes’’ continuing to decline and remain below the updated planning assumptions for available online at: www.epa.gov/otaq/ the 1997 8-hour ozone standard mobile sources. stateresources/transconf/ attainment levels. The adequacy criteria found in 40 policy.htm#models. CFR 93.118(e)(4) are as follows: Texas has submitted MOVES2010a- • based budgets for the Beaumont/Port The submitted SIP was endorsed by IV. What is EPA’s analysis of the State’s [the Governor/Governor’s designee] and submittal? Arthur area that are clearly identified in Table 4–7 of the submittal. The budgets was subject to a state public hearing A. The Revised Inventories for 2021 are 9.7 tpd for NO and 3.9 tpd (§ 93.118(e)(4)(i)); X • The submitted SIP underwent for VOCs. The Texas SIP revision request for consultation among Federal, state, and Beaumont/Port Arthur 1997 8-hour local agencies and the state fully TABLE 1—BEAMONT/PORT ARTHUR ozone maintenance plan seeks to revise documented the submittal MOVES2010A-BASED MVEBS (TPD) only the on-road mobile source (§ 93.118(e)(4)(ii)); inventories and not the non-road • The budgets are clearly identified inventories, area source inventories or NOX VOC Budget year MVEB MVEB and precisely quantified point source inventories for the 2021 (§ 93.118(e)(4)(iii)); year for which the SIP revises the 2021 ...... 9.7 3.9 • The budgets, when considered with budgets. TCEQ has certified that the other emission sources, are consistent control strategies remain the same as in B. Approvability of the MOVES2010a- with applicable requirements for the original SIP, and that no other Based Budgets [reasonable further progress/attainment/ control strategies are necessary. This is maintenance] (§ 93.118(e)(4)(iv)); confirmed by the complete, quality- EPA is proposing to approve the • The budgets are consistent with and assured 2009–2011 ozone season MOVES2010a-based budgets submitted clearly related to the emissions monitoring data for Beaumont/Port by the state for use in determining inventory and control measures in the Arthur, which shows continued transportation conformity in the SIP (§ 93.118(e)(4)(v)); and attainment for the 1997 8-hour ozone Beaumont/Port Arthur 1997 ozone • The revisions explain and standard. Thus, the current control maintenance area. EPA is making this document changes to the previous strategies are continuing to keep the proposal based on our evaluation of budgets, impacts on point and area area in attainment of the 1997 8-hour these budgets using the adequacy source emissions and changes to ozone NAAQS. criteria found in 40 CFR 93.118(e)(4) established safety margins EPA has reviewed the emission and our in-depth evaluation of the (§ 93.118(e)(4)(vi)). estimates for point, area and non-road State’s submittal and SIP requirements. Our review finds that Texas has met sources and concluded that no major EPA has determined, based on its all of the adequacy criteria, except the changes to the projections need to be evaluation, that the area’s maintenance public process and final submittal by made. The submittal states that analysis plan would continue to serve its the Governor or Governor’s designee. of emissions in these source categories intended purpose with the submitted The interagency consultation group, using more recent growth and control MOVES2010a-based budgets and that which is composed of the state air strategy assumptions than the original the budgets themselves will meet the agency, state Department of 2008 submittal resulted in lower adequacy criteria in the conformity rule Transportation, Federal Highway emissions estimates of NOX and VOCs at 40 CFR 93.118(e)(4) after the state Administration, EPA, and SETRPC have for each inventory year. Because of this, public hearing is completed and the SIP discussed and reviewed the budgets EPA concludes that the growth and is formally submitted. developed with MOVES2010a. The control strategy assumptions for non- EPA is parallel processing this SIP budgets are clearly identified and mobile sources for the years 2005, 2011, revision request which means that EPA precisely quantified in the submittal in 2014, 2017 and 2021 continue to be is proposing approval at the same time table 4–7. The budgets when considered valid and do not affect the overall that the state is completing the public with other emissions sources (point, conclusions of the original plan. process at the state level. This SIP area, non-road) are consistent with Texas confirms that the SIP continues revision request will not be complete continued maintenance of the 1997 to demonstrate its purpose of and will not meet all the adequacy ozone standard. The budgets are clearly maintaining the 1997 ozone standard criteria until the state public process is related to the emissions inventory and because the emissions are continuing to complete and the SIP revision is control measures in the SIP. The decrease from the attainment year to the submitted in final with a letter from the changes from the previous budgets are final year of the maintenance plan. The Governor or Governor’s designee. EPA is clearly explained with the change in the total emissions in the revised SIP proposing to approve the SIP revision model from MOBILE6.2 to (which includes MOVES2010a request after completion of the state MOVES2010a and the revised and emissions from mobile sources) are public process and final submittal. If updated planning assumptions. The 148.04 tpd for NOX and 210.51 tpd for any comments are received, EPA will inputs to the model are detailed in the VOCs in the 2005 attainment year. The consider those comments received both Appendix to the submittal. EPA has total emissions from all sources in the at the state and Federal level. reviewed the inputs to the

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MOVES2010a modeling and MOVES2010a base year and milestone, because the emissions are continuing to participated in the consultation process. attainment, or maintenance year decrease from the attainment year to the The Federal Highway Administration- inventories, and final year of the maintenance plan. The Texas Division and the Texas (2) The state can document that total emissions in the revised SIP Department of Transportation have growth and control strategy assumptions (which includes MOVES2010a taken a lead role in working with the for non-motor vehicle sources continue emissions for mobile sources) decrease MPO and contractor to provide accurate, to be valid and any minor updates do from 148.04 tpd for NOX and 210.51 tpd timely information and inputs to the not change the overall conclusions of for VOCs in the 2005 attainment year to the SIP. MOVES2010a model runs. The SETRPC 137.24 tpy NO and 222.69 tpd VOC in network model provided the vehicle EPA has reviewed the emission X 2021. Although there is a 5.8% increase miles of travel and other necessary data estimates for point, area and non-road in total VOC emissions from all sources from the travel demand networks. sources and concluded that no major The CAA requires that revisions to changes to the projections need to be between the 2005 attainment year and existing SIPs and budgets continue to made. The submittal states that analysis the 2021 budget year, there is an meet applicable requirements (in this of emissions in these source categories offsetting 7.3% decrease in total NOX case, maintenance). Therefore, states using more recent growth and control emissions from all sources between that revise existing SIPs with MOVES strategy assumptions than the original these years. These totals demonstrate must show that the SIP continues to 2008 submittal resulted in lower that emissions in the Beaumont/Port meet applicable requirements with the emissions estimates of NOX and VOCs Arthur area are continuing to decline new level of motor vehicle emissions for each inventory year. Because of this, and remain below the 1997 8-hour calculated by the new model. EPA concludes that the growth and ozone standard attainment levels. Table To that end, Texas’ submitted control strategy assumptions for non- 2 shows total emissions in the MOVES2010a budgets meet EPA’s two mobile sources for the years 2005, 2011, Beaumont/Port Arthur area including criteria for revising budgets without 2014, 2017 and 2021 continue to be point, area, non-road, and mobile revising the entire SIP: valid and do not affect the overall sources, and demonstrates the declining (1) The SIP continues to meet conclusions of the original plan. emissions from the 2005 attainment applicable requirements when the Texas confirms that the SIP continues year. previous motor vehicle emissions to demonstrate its purpose of inventories are replaced with maintaining the 1997 ozone standard

TABLE 2—TOTAL EMISSIONS WITH MOVES2010A MOBILE EMISSIONS

2005 2011 2014 2017 2021

VOC (tpd)...... 210.51 216.60 217.20 219.14 222.69 NOX (tpd) ...... 148.04 142.80 138.02 136.27 137.24

Based on our review of the SIP and V. Proposed Action provided that they meet the criteria of the new budgets provided, EPA has EPA is proposing in this action that the CAA. Accordingly, this action determined that the SIP will continue to the Beaumont/Port Arthur existing merely approves state law as meeting meet its requirements if the revised Federal requirements and does not approved budgets for VOCs and NOX for motor vehicle emissions inventories are 2021 for the 1997 8-hour ozone impose additional requirements beyond replaced with MOVES2010a maintenance plan be replaced with new those imposed by state law. For that inventories. budgets based on the MOVES2010a reason, this action: • C. Applicability of MOBILE6.2-Based emissions model. Once this proposal is Is not a ‘‘significant regulatory Budgets finalized, future transportation action’’ subject to review by the Office conformity determinations would use of Management and Budget under Pursuant to the State’s request, EPA is the new, MOVES2010a-based budgets Executive Order 12866 (58 FR 51735, proposing that, if we finalize the and would no longer use the existing October 4, 1993); approval of the revised budgets, the MOBILE6.2-based budgets. EPA is also • Does not impose an information state’s existing MOBILE6.2-based proposing to find that the Beaumont/ collection burden under the provisions budgets will no longer be applicable for Port Arthur area’s maintenance plan of the Paperwork Reduction Act (44 transportation conformity purposes would continue to meet its requirements U.S.C. 3501 et seq.); upon the effective date of that final as set forth under the CAA when these • Is certified as not having a approval. new budgets are included. significant economic impact on a In addition, once EPA approves the VI. Statutory and Executive Order substantial number of small entities MOVES2010a-based budgets, the Reviews under the Regulatory Flexibility Act (5 regional transportation conformity grace U.S.C. 601 et seq.); Under the CAA, the Administrator is period for using MOVES2010 (and • Does not contain any unfunded required to approve a SIP submission subsequent minor revisions) for the mandate or significantly or uniquely that complies with the provisions of the pollutants included in these budgets affect small governments, as described Act and applicable Federal regulations. will end for the Beaumont/Port Arthur in the Unfunded Mandates Reform Act 42 U.S.C. 7410(k); 40 CFR 52.02(a). ozone maintenance area on the effective of 1995 (Pub. L. 104–4); 2 Thus, in reviewing SIP submissions, date of that final approval. • EPA’s role is to approve state choices, Does not have Federalism 2 For more information, see Question 11 of EPA’s implications as specified in Executive ‘‘Policy Guidance on the Use of MOVES2010 for Transportation Conformity, and Other Purposes’’ Order 13132 (64 FR 43255, August 10, State Implementation Plan Development, and 75 FR 9411. 1999);

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• Is not an economically significant are proposing to approve portions of www.regulations.gov Web site is an regulatory action based on health or two revisions to the Texas SIP ‘‘anonymous access’’ system, which safety risks subject to Executive Order submitted by the Texas Commission on means EPA will not know your identity 13045 (62 FR 19885, April 23, 1997); Environmental Quality (TCEQ) as or contact information unless you • Is not a significant regulatory action meeting certain Reasonably Available provide it in the body of your comment. subject to Executive Order 13211 (66 FR Control Technology (RACT) If you send an email comment directly 28355, May 22, 2001); requirements for Volatile Organic to EPA without going through • Is not subject to requirements of Compounds (VOC) and Oxides of www.regulations.gov, your email Section 12(d) of the National Nitrogen (NOX) in the HGB Area. We are address will be automatically captured Technology Transfer and Advancement also proposing to approve the 2007 and included as part of the comment Act of 1995 (15 U.S.C. 272 note) because Voluntary Mobile Emission Reduction that is placed in the public docket and application of those requirements would Program (VMEP) commitments for the made available on the Internet. If you be inconsistent with the CAA; and HGB Area. This action is in accordance submit an electronic comment, EPA • Does not provide EPA with the with section 110 of the federal Clean Air recommends that you include your discretionary authority to address, as Act (the Act, CAA). name and other contact information in appropriate, disproportionate human DATES: Comments must be received on the body of your comment and with any health or environmental effects, using or before October 19, 2012. disk or CD–ROM you submit. If EPA practicable and legally permissible ADDRESSES: Submit your comments, cannot read your comment due to methods, under Executive Order 12898 identified by Docket No. EPA–R06– technical difficulties and cannot contact (59 FR 7629, February 16, 1994). OAR–2012–0100, by one of the you for clarification, EPA may not be In addition, this rule does not have following methods: able to consider your comment. tribal implications as specified by • Federal eRulemaking Portal: http:// Electronic files should avoid the use of Executive Order 13175 (65 FR 67249, www.regulations.gov. Follow the on-line special characters, any form of November 9, 2000), because the SIP is instructions for submitting comments. encryption, and be free of any defects or not approved to apply in Indian country • U.S. EPA Region 6 ‘‘Contact Us’’ viruses. located in the state, and EPA notes that Web site: http://epa.gov/region6/ Docket: All documents in the docket it will not impose substantial direct r6coment.htm. Please click on ‘‘6PD’’ are listed in the www.regulations.gov costs on tribal governments or preempt (Multimedia) and select ‘‘Air’’ before index. Although listed in the index, tribal law. submitting comments. some information is not publicly List of Subjects in 40 CFR Part 52 • Email: Mr. Guy Donaldson at available, e.g., CBI or other information [email protected]. Please also whose disclosure is restricted by statute. Environmental protection, Air send a copy by email to the person Certain other material, such as pollution control, Intergovernmental listed in the FOR FURTHER INFORMATION copyrighted material, will be publicly relations, Nitrogen dioxide, Ozone, CONTACT section below. available only in hard copy. Publicly Volatile organic compounds. • Fax: Mr. Guy Donaldson, Chief, Air available docket materials are available Authority: 42 U.S.C. 7401 et seq. Planning Section (6PD–L), at fax either electronically in www.regulations.gov or in hard copy at Dated: September 11, 2012. number 214–665–7263. • Mail: Mr. Guy Donaldson, Chief, the Air Planning Section (6PD–L), Samuel Coleman, Environmental Protection Agency, 1445 Acting Regional Administrator, Region 6. Air Planning Section (6PD–L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas [FR Doc. 2012–23123 Filed 9–18–12; 8:45 am] Ross Avenue, Suite 1200, Dallas, Texas 75202–2733. The file will be made BILLING CODE 6560–50–P 75202–2733. available by appointment for public • Hand or Courier Delivery: Mr. Guy inspection in the Region 6 FOIA Review Donaldson, Chief, Air Planning Section Room between the hours of 8:30 a.m. ENVIRONMENTAL PROTECTION and 4:30 p.m. weekdays except for legal AGENCY (6PD–L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, holidays. Contact the person listed in FOR FURTHER INFORMATION CONTACT 40 CFR Part 52 Dallas, Texas 75202–2733. Such the deliveries are accepted only between the paragraph below to make an [EPA–R06–OAR–2012–0100; FRL–9728–8] hours of 8:00 a.m. and 4:00 p.m. appointment. If possible, please make the appointment at least two working Approval and Promulgation of weekdays except for legal holidays. Special arrangements should be made days in advance of your visit. There will Implementation Plans; Texas; be a 15 cent per page fee for making Reasonably Available Control for deliveries of boxed information. Instructions: Direct your comments to photocopies of documents. On the day Technology for the 1997 8-Hour Ozone Docket ID No. EPA–R06–OAR–2012– of the visit, please check in at the EPA National Ambient Air Quality Standard 0100. The EPA’s policy is that all Region 6 reception area at 1445 Ross AGENCY: Environmental Protection comments received will be included in Avenue, Suite 700, Dallas, Texas 75202– Agency (EPA). the public docket without change and 2733. The State submittal is also available ACTION: Proposed rule. may be made available online at www.regulations.gov, including any for public inspection at the State Air SUMMARY: The EPA is proposing to personal information provided, unless Agency listed below during official approve revisions to the Texas State the comment includes information business hours by appointment: TCEQ, Implementation Plan (SIP) for the claimed to be Confidential Business Office of Air Quality, 12124 Park 35 Houston/Galveston/Brazoria (HGB) 1997 Information (CBI) or other information Circle, Austin, Texas 78753. 8-Hour ozone nonattainment Area the disclosure of which is restricted by FOR FURTHER INFORMATION CONTACT: Mr. (Area). The HGB Area consists of statute. Do not submit information Alan Shar, Air Planning Section (6PD– Brazoria, Chambers, Fort Bend, through www.regulations.gov or email L), Environmental Protection Agency, Galveston, Harris, Liberty, Montgomery that you consider to be CBI or otherwise Region 6, 1445 Ross Avenue, Suite 700, and Waller counties. Specifically, we protected from disclosure. The Dallas, Texas 75202–2733, telephone

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(214) 665–6691, fax (214) 665–7263, which addressed the Texas Low 2010 submittal that Texas has met email address [email protected]. Emission Diesel standards for marine certain RACT requirements under SUPPLEMENTARY INFORMATION: fuels. We approved this component of section 182(b). Appendix D of the April Throughout this document ‘‘we,’’ ‘‘us,’’ the June 13, 2007 submittal on October 6, 2010 submittal is titled ‘‘Reasonably and ‘‘our’’ refer to EPA. 24, 2008, at 73 FR 63378. The revision Available Control Technology to these sections has been in effect, Analysis.’’ See section B for more Outline federally, since November 24, 2008. The information on RACT evaluation for the I. Background second component of the June 13, 2007 HGB Area. submittal concerns revisions to 30 TAC, A. What actions are we proposing? B. What is RACT? 1. The June 13, 2007 Submittal Chapter 115 Control of Air Pollution 2. What is a VMEP commitment? from Volatile Organic Compounds, The EPA has defined RACT as the 3. The April 6, 2010 Submittal sections 115.110, 115.112 –115.117, lowest emissions limitation that a B. What is RACT? 115.119, 115.541–115.547 and 115.549. particular source is capable of meeting II. Evaluation We approved these revisions as by the application of control technology A. What types of VMEP commitments enhancing the Texas SIP because these that is reasonably available, considering qualify for SIP credit? technological and economic feasibility. B. What type of programs did Texas submit rule revisions required additional VOC as VMEP? controls on storage tanks, lowered VOC See 44 FR 53761, September 17, 1979. C. Do the 2007 VMEPs meet our emissions, and helped lower ozone Section 172(c)(1) of the Act requires that requirements for approval? levels in the HGB Area. See 75 FR 15348 SIPs for nonattainment areas ‘‘provide D. What action is EPA taking on the 2007 of March 29, 2010. The revisions to for the implementation of all reasonably VMEP? these sections have been in effect, available control measures as E. What is TCEQ’s approach and analysis federally, since May 28, 2010. We are expeditiously as practicable (including to RACT in the June 13, 2007 submittal? now proposing to approve the 2007 such reductions in emissions from F. What CTG source categories are we VMEP for the HGB Area into Texas SIP. existing sources in the area as may be addressing in this action? For more information on VMEP see obtained through the adoption, at a G. Are there any negative declarations minimum, of reasonably available associated with the VOC source section below. In addition, the June 13, categories in the HGB Area? 2007 submittal included an analysis control technology) and shall provide H. Why does the revision to 30 TAC intended to demonstrate RACT was for attainment of the primary National Chapter 115 of the June 13, 2007 being implemented in the HGB Area as Ambient Air Quality (NAAQS) submittal meet RACT? required by the CAA (Appendix D of the standards.’’ I. Is Texas’ approach to major Non-CTG submittal). Section 182(b)(2) of the Act requires sources for RACT determination in the states to submit a SIP revision and HGB Area acceptable? 2. What is a VMEP commitment? implement RACT for moderate and J. Is Texas’ approach to RACT Voluntary mobile source strategies above ozone nonattainment areas. For a determination for CTG sources based on complement existing regulatory Moderate, Serious, or Severe Area a the June 13, 2007 and April 6, 2010 programs through voluntary, non- major stationary source is one which submittals acceptable? emits, or has the potential to emit, 100, K. Is Texas’ approach to RACT regulatory changes in local determination for VOC sources based on transportation activities or changes in 50, or 25 tons per year (tpy) or more of the June 13, 2007 and April 6, 2010 in-use vehicle and engine composition. VOCs or NOX, respectively. See CAA submittals acceptable? The EPA believes that the Act allows sections 182(b), 182(c), and 182(d). The L. Is Texas’ approach to for RACT SIP credit for new approaches to EPA provides states with guidance determination for major NOX sources reducing mobile source emissions, concerning what types of controls could based on the June 13, 2007 and April 6, where supported by enforceable constitute RACT for a given source 2010 submittals acceptable? commitments to monitor and assess category through the issuance of Control III. Proposed Action implementation and backfill any Techniques Guidelines (CTG) and IV. Statutory and Executive Order Reviews emissions reductions shortfall in a Alternative Control Techniques (ACT) I. Background timely fashion. This flexible approach is documents. See http://www.epa.gov/ttn/ consistent with the Clean Air Act naaqs/ozone/ctg_act/index.htm (URL A. What actions are we proposing? section 110. Economic incentive dating May 23, 2012) for a listing of We are proposing to approve portions provisions are also available in sections EPA-issued CTGs and ACTs for VOC or of revisions to the Texas SIP submitted 182 and 108 of the Act. Credits Oxides of Nitrogen (NOX). to EPA with two separate letters dated generated through VMEP can be The HGB Area was designated as June 13, 2007 and April 6, 2010 from counted toward attainment and Severe for the 1997 8-Hour ozone TCEQ. These two separate submittals maintenance of the NAAQS. Due to the NAAQS. See 73 FR 56983, October 1, are described below. innovative nature of this program, only 2008. Thus, per section 182(d) of the CAA, a major stationary source in the 1. The June 13, 2007 Submittal up to 3% of the total future year emissions reductions required to attain HGB Area is one which emits, or has the The June 13, 2007 submittal, sent to an appropriate NAAQS, may be claimed potential to emit, 25 tpy or more of EPA from TCEQ, included the following under the VMEP policy guidance. VOCs or NOX. The inventory of VOC components. (1) Control of Air Pollution and NOX sources listed in Appendix D from Motor Vehicles, (2) Control of Air 3. The April 6, 2010 Submittal of the April 6, 2010 submittal is Pollution from Volatile Organic In conjunction with the June 13, 2007 intended to fulfill this requirement. Compounds, and (3) Voluntary Mobile submittal, we are also proposing to Under section 183(b), EPA is required Emission Reduction Program (VMEP) approve a part of the April 6, 2010 to periodically review and, as necessary, commitments. Each component is revision to the Texas SIP, submitted update CTGs. EPA issued a number of discussed below. The first component with TCEQ’s letter of April 6, 2010, for new CTGs in 2006, 2007, and 2008. concerns revisions to 30 TAC Chapter VOC RACT purposes. Specifically, we Accordingly, Texas revised its Chapter 114 Control of Air Pollution from Motor are proposing to find, based on the 115 regulations to address these VOC Vehicles, sections 114.6 and 114.319 analysis in Appendix D of the April 6, RACT control measures. These most

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recent revisions to Chapter 115 TABLE 1—VOLUNTARY MOBILE EMIS- E. What is TCEQ’s approach and regulations corresponding to these SION REDUCTION PROGRAMS AND analysis to RACT in the June 13, 2007 newly-EPA-issued CTGs will be CREDITS CLAIMED submittal? addressed in a separate rulemaking Under sections 182(b)(2)(A) and (B) action. NOX benefits Program type (tons per day) states must insure RACT is in place for II. Evaluation each source category for which EPA A. What types of VMEP commitments Public and Private Sector issued a CTG. As a part of June 13, 2007 qualify for SIP credit? Clean Fuel Fleet ...... 2 .0 submittal TCEQ conducted a RACT Commute Solutions ...... 0.77 analysis to demonstrate that the RACT The basic framework for ensuring SIP Pooled Ownership of Vehi- requirements for CTG sources in the credit for VMEPs is spelled out in cles ...... 0.05 HGB 8-Hour ozone nonattainment Area guidance issued under a memorandum have been fulfilled. The TCEQ revised Total Benefits (tpd) ...... 2.82 from Richard D. Wilson, Acting and supplemented this analysis in the Assistant Administrator for Air and This revision to the VMEP builds on the April 6, 2010 submittal. The TCEQ Radiation, dated October 24, 1997, existing HGB VMEP program approved conducted its analysis by: (1) entitled ‘‘Guidance on Incorporating by EPA on November 14, 2001 which Identifying all categories of CTG and Voluntary Mobile Source Emission the State previously has committed to major non-CTG sources of VOC and Reduction Programs in State evaluate and report on the program NOX emissions within the HGB Area; (2) Implementation Plans (SIPs).’’ implementation and results and to Listing the state regulation that Generally, to obtain credit for a VMEP, timely remedy any credit shortfall. implements or exceeds RACT a State submits a SIP that: (1) Identifies requirements for that CTG or non-CTG and describes a VMEP; (2) Contains C. Do the 2007 VMEPs meet our category; (3) Detailing the basis for projections of emission reductions requirements for approval? concluding that these regulations fulfill attributable to the program, along with A detailed analysis of all the VMEP RACT through comparison with any relevant technical support measures can be found in our TSD established RACT requirements documentation; (3) Commits to prepared for this document. For each described in the CTG guidance evaluation and reporting on program creditable VMEP, the measure was documents and rules developed by implementation and results; and (4) found to be quantifiable. The reductions other state and local agencies; and (4) Commits to the timely remedy of any are surplus because they are not Submitting negative declarations when credit shortfall should the VMEP not substitutes for mandatory, required there are no CTG or major Non-CTG achieve the anticipated emission emission reductions. The commitment sources of VOC emissions within the reductions. More specifically, the to monitor, assess and timely remedy HGB Area. We have reviewed the guidance suggests the following key any shortfall from implementation of submittal and are proposing that TCEQ points be considered for approval of the measures is enforceable against the has properly conducted its analysis, and credits. The credits should be State. The reductions will continue at their approach to control requirements quantifiable, surplus, enforceable, least for as long as the time period in are in agreement with our RACT permanent, and adequately supported. which they are used by this SIP requirements for affected VOC sources In addition, VMEPs must be consistent demonstration, so they are considered in the HGB Area. with attainment of the standard and permanent. There is a commitment that F. What CTG source categories are we with the ROP requirements and not each measure is adequately supported addressing in this action? interfere with other CAA requirements. by personnel and program resources for The VMEP program for an area can be implementation. The EPA entered into a CD with the revised by a SIP revision that substitutes Sierra Club concerning revisions to the or adds other VMEP measures if needed. D. What action is EPA taking on the Texas SIP for HGB Area. Under the 2007 VMEP? B. What type of programs did Texas terms of this CD, February 1, 2013 is the The HGB Area’s ozone SIP VMEP submit as VMEP? deadline by which EPA has to propose meets the criteria for credit in the SIP. a rulemaking action relevant to RACT The State submitted program Texas has demonstrated that the credits for VOC and NOX source for the HGB descriptions that projected emission are quantifiable, surplus, enforceable, Area. Table 2 below contains a list of reductions attributable to each specific permanent, adequately supported, and VOC CTG source categories and their program as part of the HGB attainment consistent with the SIP and the Act. corresponding sections of 30 TAC demonstration submitted June 13, 2007. Therefore, we are proposing to approve Chapter 115 that fulfill the applicable Table 1 below lists the identified the 2007 VMEP portion of the Texas RACT requirements, under the terms of programs and their projected credits. SIP. the CD.

TABLE 2—CTG SOURCE CATEGORIES AND THEIR CORRESPONDING TEXAS VOC RACT RULES

Source category in HGB area Fulfilling RACT requirement, 30 TAC chapter 115

Bulk Gasoline Plants ...... § 115.211–219. Natural Gas/Gasoline Processing ...... § 115.352–359. Synthetic Organic Chemical Manufacturing Industry—Polymer & Resin Manufac- § 115.352–359. turing. Gasoline Tank Trucks & Vapor Collection Systems ...... § 115.211–219 and § 115.234–239. Refineries—Leaks from Equipment ...... § 115.352–359. Synthetic Organic Chemical Manufacturing Industry—High Density Resins ...... § 115.120–129. Synthetic Organic Chemical Manufacturing Industry—Synthesized Pharmaceutical § 115.531—539. Products. Petroleum Liquid Storage—External Floating Roof Tanks ...... § 115.112–119.

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TABLE 2—CTG SOURCE CATEGORIES AND THEIR CORRESPONDING TEXAS VOC RACT RULES—Continued

Source category in HGB area Fulfilling RACT requirement, 30 TAC chapter 115

Refineries—Vacuum Producing Systems, Wastewater Separators, Unit Turn- § 115.311–319 and § 115.131–139. arounds. Synthetic Organic Chemical Manufacturing Industry—Air Oxidation Processes ..... § 115.120–129. Synthetic Organic Chemical Manufacturing Industry—Reactor Processes & Dis- § 115.120–129. tillation Operations. Shipbuilding and Ship Repair ...... § 115.420–429. Solvent Metal Cleaning ...... § 115.412–419 and § 115.420–429. Gasoline Service Stations ...... § 115.221–229. Petroleum Liquid Storage—Fixed Roof Tanks ...... § 115.112–119. Tank Trucks—Gasoline Loading Terminals ...... § 115.211–219 or § 115.221–229.

G. Are there any negative declarations I. Is Texas’ approach to major Non-CTG approve TCEQ’s determination that associated with the CTG source sources for RACT determination in the VOC control measures in Chapter 115 categories in the HGB Area? HGB Area acceptable? meet RACT requirements for the major Under section 182(b)(2)(C) states must Non-CTG sources of VOC in the HGB Yes, Texas has declared that there are assure that major sources not covered by Area under the 1997 8-Hour ozone no existing major sources of rubber tire a CTG have RACT in place. Texas has NAAQS. manufacturing, identified with the identified a list, in its Appendix D of the Standard Industrial Classification (SIC) J. Is Texas’ approach to RACT April 6, 2010 submittal, of major VOC determination for CTG source categories 3011, in the HGB Area. As such, TCEQ sources in the HGB Area to determine based on the June 13, 2007 and April 6, does not have to adopt VOC regulations if any do not have RACT level controls 2010 submittals acceptable? relevant to this source category at this in place and do not fall into the time for the HGB Area. However, if a identified sectors for which EPA has As a part of 1-Hour ozone attainment major source of this category locates in issued a CTG. TCEQ reviewed the point demonstration plan for the HGB Area at the HGB Area in future, then TCEQ will source emissions inventory and title V 70 FR 58136, October 5, 2005; and 71 need to take appropriate regulatory databases to identify all major sources of FR 52676, September 6, 2006, we stated measures for SIP purposes. VOC emissions. All sources in the title that Texas has met RACT for VOC and V database that were listed as a major NOX sources. In the TSD developed for H. Why does the revision to 30 TAC source for VOC emissions were this action, we evaluated the Chapter 115 of the June 13, 2007 included in the RACT analysis. Since corresponding sections of 30 TAC submittal meet RACT? the point source emissions inventory Chapter 115 for the source categories database reports actual emissions rather identified in Table 2 above in the HGB As stated elsewhere, we approved than potential to emit emissions, the Area, and have reviewed these sections revisions to 30 TAC, Chapter 115 TCEQ reviewed sources that reported against our identified reference Control of Air Pollution from Volatile actual emissions as low as 10 tpy of documents. In its April 6, 2010, Organic Compounds on March 29, 2010 VOC to account for the difference submittal to EPA, TCEQ states that it at 75 FR 15348. We now have reviewed between actual and potential emissions. has reviewed the HGB VOC rules and these revisions to Chapter 115 and have To be conservative, sites from the certifies that they satisfy RACT determined that they are in agreement emissions inventory database with requirements for the 8-Hour ozone with EPA’s Control Technique emissions of 10 tpy or more of NOX or standard by the application of control Guidelines (CTG) documents titled VOC that were not identified in the title technology that is reasonably available Control of Volatile Organic Emissions V database and could not be verified as considering technological and economic from Storage of Petroleum Liquids in minor sources by other means are also feasibility. We are proposing a Fixed-Roof Tanks (EPA–450/2–77–036, included in the RACT analysis. We have determination that Texas VOC rules are December 1977); Control of Volatile reviewed TCEQ’s April 6, 2010 in agreement with the CAA’s RACT Organic Emissions from Petroleum submittal and find their approach to requirements. Consequently, by Liquid Storage in External Floating Roof include these sources in the inventory implementing these control Tanks (EPA–450/2–78–047, December of the sources acceptable. As requirements (Chapter 115) Texas is 1978); and Alternative Control documented in Appendix D, Texas satisfying the RACT requirements for Techniques Document—Volatile found that each source was covered by CTG source categories identified in Organic Liquid Storage in Floating and existing rules and the corresponding Table 2 of this document in the HGB Fixed Roof Tanks (EPA–453/R–94–001, VOC control measures were in place for Area under the 1997 8-Hour ozone January 1994). Also, see our Technical the affected sources. Consistent with our standard. finding under the 1-Hour ozone Support Document (TSD) prepared in K. Is Texas’ approach to RACT attainment demonstration plan for the conjunction with this document. Since determination for VOC sources based on HGB Area at 70 FR 58136, October 5, these revisions are in agreement with the June 13, 2007 and April 6, 2010 2005, and 71 FR 52676, September 6, our guideline documents, we are submittals acceptable? 2006, Texas has met RACT for VOC and proposing that they satisfy RACT NOX sources, and because Texas’ Yes. The purpose of 30 TAC Chapter requirements, and by implementing approach in its April 06, 2010 submittal, 115 rules for the HGB Area is to these measures Texas is meeting the in identifying major Non-CTG sources, establish reasonable controls on the VOC RACT for liquid storage sources in is acceptable and consistent with our emissions of ozone precursors. Texas the HGB Area. finding and State has certified that it has has reviewed its VOC rules and has RACT in place; we are proposing to certified that its rules satisfy RACT

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requirements. As such and based upon IV. Statutory and Executive Order 2000), because the SIP is not approved the above two sections we are proposing Reviews to apply in Indian country located in the to find that for both the CTG categories Under the Clean Air Act, the state, and EPA notes that it will not identified in Table 2 and all Non-CTG Administrator is required to approve a impose substantial direct costs on tribal sources Texas has RACT-level controls SIP submission that complies with the governments or preempt tribal law. in place for the HGB Area under the provisions of the Act and applicable Authority: 42 U.S.C. 7401 et seq. 1997 8-Hour ozone standard. Federal regulations. If a portion of the List of Subjects in 40 CFR Part 52 L. Is Texas’ approach to for RACT plan revision meets all the applicable determination for major NOX sources requirements of this chapter and Federal Environmental protection, Air based on the June 13, 2007 and April 6, regulations, the Administrator may pollution control, Hydrocarbons, 2010 submittals acceptable? approve the plan revision in part. 42 Incorporation by reference, U.S.C. 7410(k); 40 CFR 52.02(a). Thus, Intergovernmental relations, Reporting Texas has identified a list of major in reviewing SIP submissions, EPA’s and recordkeeping requirements, NOX sources in the HGB Area, in its role is to approve state choices that meet Volatile organic compounds. Appendix D of the April 6, 2010 the criteria of the Act, and to disapprove Dated: September 6, 2012. submittal. TCEQ reviewed the point state choices that do not meet the source emissions inventory and title V Lynda F. Carroll, criteria of the Act. Accordingly, this Acting Regional Administrator, Region 6. databases to identify all major sources of proposed action approves state law as NOX emissions. All sources in the title meeting Federal requirements and does [FR Doc. 2012–23152 Filed 9–18–12; 8:45 am] V database that were listed as a major not impose additional requirements BILLING CODE 6560–50–P source for NOX emissions were included beyond those imposed by state law. For in the RACT analysis. Since the point that reason, this proposed action: source emissions inventory database • ENVIRONMENTAL PROTECTION Is not a ‘‘significant regulatory AGENCY reports actual emissions rather than action’’ subject to review by the Office potential to emit emissions, the TCEQ of Management and Budget under 40 CFR Part 52 reviewed sources that reported actual Executive Order 12866 (58 FR 51735, emissions as low as 10 tpy of NOX to October 4, 1993); [EPA–R09–OAR–2012–0713; FRL–9727–6] account for the difference between • Does not impose an information actual and potential emissions. To be collection burden under the provisions Disapproval of Implementation Plan conservative, sites from the emissions of the Paperwork Reduction Act (44 inventory database with emissions of 10 Revisions; State of California; South U.S.C. 3501 et seq.); Coast VMT Emissions Offset tpy or more of NOX that were not • Is certified as not having a Demonstrations identified in the title V database and significant economic impact on a could not be verified as minor sources substantial number of small entities AGENCY: Environmental Protection by other means are also included in the under the Regulatory Flexibility Act (5 Agency (EPA). RACT analysis. We have reviewed U.S.C. 601 et seq.); ACTION: Proposed rule. TCEQ’s April 6, 2010 submittal and find • Does not contain any unfunded their approach to include these sources mandate or significantly or uniquely SUMMARY: EPA is proposing to withdraw in the inventory of the sources affect small governments, as described its final approvals of state acceptable. in the Unfunded Mandates Reform Act implementation plan revisions Texas reviewed the list of sources and of 1995 (Pub. L. 104–4); submitted by the State of California to certified that it has the appropriate NOX • Does not have Federalism meet the vehicle-miles-traveled control measures in place for the implications as specified in Executive emissions offset requirement under the affected sources. In addition, as a part Order 13132 (64 FR 43255, August 10, Clean Air Act for the Los Angeles-South of 1-Hour ozone attainment 1999); Coast Air Basin 1-hour and 8-hour demonstration plan for the HGB Area at • Is not an economically significant ozone nonattainment areas. EPA is also 70 FR 58136, October 5, 2005, and 71 regulatory action based on health or proposing to disapprove the same plan FR 52676, September 6, 2006, Texas has safety risks subject to Executive Order revisions. EPA is proposing the met RACT for VOC and NOX sources. 13045 (62 FR 19885, April 23, 1997); withdrawal and disapproval actions in We are proposing to approve TCEQ’s • Is not a significant regulatory action response to a remand by the Ninth determination that NOX control subject to Executive Order 13211 (66 FR Circuit Court of Appeals in Association measures in Chapter 117 meet RACT 28355, May 22, 2001); of Irritated Residents v. EPA. The effect • requirements for major sources of NOX Is not subject to requirements of of this action, if finalized as proposed, in the HGB Area under the 1997 8-Hour section 12(d) of the National would be to trigger deadlines by which ozone NAAQS. Technology Transfer and Advancement new plan revisions meeting the Act of 1995 (15 U.S.C. 272 note) because III. Proposed Action applicable requirements must be application of those requirements would submitted by the State of California and Today, we are proposing to find that be inconsistent with the Clean Air Act; approved by EPA to avoid sanctions and • for VOC, CTG categories identified in Does not provide EPA with the to avoid an obligation on EPA to Table 2 and major Non-CTG sources, discretionary authority to address, as promulgate a federal implementation and for NOX, Texas has RACT-level appropriate, disproportionate human plan. controls in place for the HGB Area health or environmental effects, using under the 1997 8-Hour ozone standard. practicable and legally permissible DATES: Written comments must be The EPA had previously approved methods, under Executive Order 12898 received on or before October 19, 2012. RACT for VOC and NOX into Texas’ SIP (59 FR 7629, February 16, 1994); and ADDRESSES: Submit comments, under the 1-Hour ozone standard. We • This rule does not have tribal identified by docket number EPA–R09– are also proposing to approve the 2007 implications as specified by Executive OAR–2012–0713, by one of the VMEP into Texas SIP. Order 13175 (65 FR 67249, November 9, following methods:

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• Federal eRulemaking Portal: http:// B. South Coast Ozone Designations and particular importance for the purposes www.regulations.gov. Follow the on-line Classifications and Related SIP Revisions of this proposed action, section instructions for submitting comments. C. Litigation on EPA’s Final Action on 182(d)(1)(A) requires the following: • 2003 South Coast 1-Hour Ozone SIP Email: [email protected]. D. Litigation on EPA’s Final Action on Within 2 years after November 15, 1992, • Mail or deliver: Wienke Tax, Air 2007 South Coast 8-Hour Ozone SIP the State shall submit a revision that Planning Office, U.S. Environmental II. Proposed Withdrawal of Previous identifies and adopts specific enforceable Protection Agency, Region 9, Mailcode Approvals, and Proposed Disapproval, of transportation control strategies and AIR–2, 75 Hawthorne Street, San VMT Emissions Offset Demonstrations transportation control measures to offset any growth in emissions from growth in vehicle Francisco, California 94105–3901. III. Proposed Action and Request for Public Comment miles traveled or numbers of vehicle trips in Instructions: All comments will be IV. Statutory and Executive Order Reviews such area and to attain reduction in motor included in the public docket without vehicle emissions as necessary, in change and may be made available I. Background combination with other emission reduction requirements of this subpart, to comply with online at http://www.regulations.gov, A. Regulatory Context including any personal information the requirements of subsection (b)(2)(B) and The Clean Air Act (CAA or Act) (c)(2)(B) of this section (pertaining to provided, unless the comment includes periodic emissions reduction requirements). information claimed to be Confidential requires EPA to establish national ambient air quality standards (NAAQS The State shall consider measures specified Business Information (CBI) or other or ‘‘standards’’) for certain widespread in section 7408(f) of this title, and choose information whose disclosure is from among and implement such measures as pollutants that cause or contribute to air restricted by statute. Information that necessary to demonstrate attainment with the pollution that is reasonably anticipated you consider CBI or otherwise protected national ambient air quality standards; in to endanger public health or welfare should be clearly identified as such and considering such measures, the State should (see sections 108 and 109 of the CAA). should not be submitted through http:// ensure adequate access to downtown, other In 1979, under section 109 of the commercial, and residential areas and should www.regulations.gov or email. The CAA, EPA established a primary health- avoid measures that increase or related http://www.regulations.gov Web site is based NAAQS for ozone 1 at 0.12 parts emissions and congestion rather than reduce an ‘‘anonymous access’’ system, and per million (ppm) averaged over a 1- them. EPA will not know your identity or hour period. See 44 FR 8202; (February EPA believes that it is appropriate to contact information unless you provide 8, 1979). The Act, as amended in 1990, treat the three required elements of it in the body of your comment. If you required EPA to designate as section 182(d)(1)(A) (i.e., offsetting send an email comment directly to EPA, nonattainment any area that had been emissions growth, attainment of the your email address will be designated as nonattainment before the rate-of-progress (ROP) reduction, and automatically captured and included as 1990 Amendments [section 107(d)(1)(C) attainment of the ozone NAAQS) as part of the public comment. If EPA of the Act; 56 FR 56694; (November 6, separable. As to the first element of cannot read your comment due to 1991)]. The Act further classified 1-hour CAA section 182(d)(1)(A) (i.e., offsetting technical difficulties and cannot contact ozone nonattainment areas, based on the emissions growth caused by growth in you for clarification, EPA may not be severity of their nonattainment problem, vehicle miles travelled (VMT)), EPA had able to consider your comment. as Marginal, Moderate, Serious, Severe, historically interpreted this CAA Docket: The index to the docket for or Extreme. provision to allow areas to meet the this action is available electronically on The control requirements and date by requirement by demonstrating that the http://www.regulations.gov Web site which attainment of the 1-hour ozone emissions from motor vehicles decline and in hard copy at EPA Region IX, 75 standard was to be achieved varied with each year through the attainment year. Hawthorne Street, San Francisco, an area’s classification. Marginal areas See, e.g., 57 FR 13498, at 13521–15323; California, 94105. While all documents were subject to the fewest mandated (April 16, 1992). This proposed rule in the docket are listed in the index, control requirements and had the relates only to the first element of some information may be publicly earliest attainment date, November 15, section 182(d)(1)(A) (i.e., offsetting available only at the hard copy location 1993, while Extreme areas were subject emissions growth caused by growth in (e.g., copyrighted material), and some to the most stringent planning VMT). Herein, we refer to this element may not be publicly available at either requirements and were provided the as the Vehicle Miles Traveled (VMT) location (e.g., CBI). To inspect the hard most time to attain the standard, until emissions offset requirement (‘‘VMT copy materials, please schedule an November 15, 2010. The various ozone emissions offset requirement’’) and the appointment during normal business planning requirements to which demonstration submitted to us to hours with the contact listed in the FOR Extreme ozone nonattainment areas are address this requirement as the ‘‘VMT FURTHER INFORMATION CONTACT section subject are set forth in section 172(c) emissions offset demonstration.’’ below. and section 182(a)–(e) of the CAA. Of In 1997, EPA replaced the 1-hour ozone standard with an 8-hour ozone FOR FURTHER INFORMATION CONTACT: 1 Ground-level ozone or smog is formed when standard of 0.08 ppm. See 62 FR 38856; Wienke Tax, Air Planning Office, U.S. oxides of nitrogen (NOX), volatile organic (July 18, 1997).2 Environmental Protection Agency, We promulgated final compounds (VOC), and oxygen react in the rules to implement the 1997 8-hour Region 9, Mail Code AIR–2, 75 presence of sunlight, generally at elevated Hawthorne Street, San Francisco, temperatures. Strategies for reducing smog typically ozone standard in two phases. The require reductions in both VOC and NO emissions. California 94105–3901, 415–947–4192, X ‘‘Phase 1’’ rule, which was issued on Ozone causes serious health problems by damaging April 30, 2004 (69 FR 23951) [email protected]. lung tissue and sensitizing the lungs to other irritants. When inhaled, even at very low levels, establishes, among other things, the SUPPLEMENTARY INFORMATION: ozone can cause acute respiratory problems, Throughout this document, ‘‘we,’’ ‘‘us’’ aggravate asthma, temporary decreases in lung 2 In 2008, EPA tightened the 8-hour ozone and ‘‘our’’ refer to EPA. capacity of 15 to 20 percent in healthy adults, NAAQS to 0.075 ppm, see 73 FR 16436 (March 27, inflammation of lung tissue, lead to hospital 2008). Today’s proposed action relates only to SIP Table of Contents admissions and emergency room visits, and impair requirements arising from the classifications and the body’s immune system defenses, making people designations of the South Coast with respect to the I. Background more susceptible to respiratory illnesses, including 1979 1-hour ozone and 1997 8-hour ozone A. Regulatory Context bronchitis and pneumonia. standards.

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classification structure and classified it as Extreme for the 1-hour See 69 FR 23858; (April 30, 2004) and corresponding attainment deadlines, as ozone standard; thus the area had an 75 FR 24409; (May 5, 2010). In 2007, well as the anti-backsliding principles attainment date no later than November CARB submitted a SIP revision to for the transition from the 1-hour ozone 15, 2010 (56 FR 56694). address the 8-hour ozone SIP planning standard to the 8-hour ozone standard. The California Air Resources Board requirements for the South Coast (‘‘2007 For an area that was designated (CARB) has submitted a number of SIP South Coast 8-hour Ozone SIP’’). The nonattainment for the 1-hour ozone revisions over the years for the South 2007 South Coast 8-Hour Ozone SIP standard at the time when EPA Coast Air Basin to address 1-hour ozone included, among many other elements, designated it as nonattainment for the SIP planning requirements. Specifically, a VMT emissions offset demonstration 1997 8-hour ozone standard as part of in 1994, CARB submitted a 1-hour addressing the VMT emissions offset the initial 8-hour ozone designations, ozone SIP that, among other things, requirement under CAA section most of the requirements that had included for the South Coast an 182(d)(1)(A).6 Consistent with the applied by virtue of the area’s attainment demonstration, ROP approach used for the demonstration classification for the 1-hour ozone demonstrations, and transportation submitted for 1-hour ozone purposes in standard continue to apply even after control measures (TCMs). In 1997, EPA 2008, the 2007 South Coast 8-Hour revocation of the 1-hour ozone standard approved the 1994 Ozone SIP as it Ozone SIP showed compliance with the (which occurred in June 2005 for most applied to the South Coast for the 1- VMT emissions offset requirement, as areas). See 40 CFR 51.905(a)(1) and 40 hour standard. See 62 FR 1150; (January then interpreted by EPA, by showing CFR 51.900(f). Thus, for example, an 8, 1997). that aggregate motor vehicle emissions area that was designated nonattainment In 1997 and 1999, CARB submitted are projected to decrease each year from and classified as Extreme for the 1-hour revisions to the 1994 South Coast 1- the base year through the attainment ozone standard at the time of an initial Hour Ozone SIP, including revised ROP year (2024). designation of nonattainment for the 8- demonstrations, and a revised In March 2012, EPA approved the hour standard remains subject to the attainment demonstration (‘‘1997/1999 2007 South Coast 8-Hour Ozone SIP, VMT emissions offset requirement South Coast 1-Hour Ozone SIP’’). See 65 including the VMT emissions offset under CAA section 182(d)(1)(A) for the FR 18903; (April 10, 2000). In 2004, demonstration addressing the VMT 1-hour ozone NAAQS even if the area CARB submitted revisions to the 1997/ emissions offset requirement under would not otherwise have been subject 1999 South Coast 1-Hour Ozone SIP CAA section 182(d)(1)(A). See 77 FR to that particular requirement based on (‘‘2003 South Coast 1-Hour Ozone SIP’’). 12674; (March 1, 2012). the area’s classification for the 1997 8- In 2008, the 2003 South Coast 1-Hour C. Litigation on EPA’s Final Action on hour ozone standard. See 40 CFR Ozone SIP was supplemented by 2003 South Coast 1-Hour Ozone SIP 51.905(a)(1) and 40 CFR 51.900(f)(11). submittal of a VMT emissions offset The Phase 2 rule, which was issued demonstration 4 that was intended to In approving the VMT emissions on November 29, 2005 (70 FR 71612), comply with the VMT emissions offset offset demonstration that was submitted addresses the SIP obligations for the requirement by showing that there by the South Coast Air Quality 1997 8-hour ozone standard. Under the would be no upturn in emissions Management District to supplement the Phase 2 rule, an area that is designated between the area’s base year for the SIP 2003 South Coast 1-Hour Ozone SIP, as nonattainment for the 1997 8-hour revision and the area’s attainment year. EPA applied its then-longstanding ozone standard, and classified under In 2009, EPA disapproved the revised interpretation of the VMT emissions subpart 2 (of part D of title I of the ROP demonstrations and attainment offset requirement under CAA section CAA), is subject to the requirements of demonstration in the 2003 South Coast 182(d)(1)(A) that no TCMs are necessary subpart 2 that apply for that 1-Hour Ozone SIP, but approved the if aggregate motor vehicle emissions are classification. See 40 CFR 51.902(a). VMT emissions offset demonstration projected to decline each year from the Among the requirements for areas that had been submitted in 2008. 74 FR base year of the plan to the attainment classified as Severe or Extreme for the 10176; (March 10, 2009).5 year. See 74 FR 10176, at 10179–10180; 1997 8-hour ozone standard is the VMT With respect to the 1997 8-hour (March 10, 2009). EPA’s 2009 approval emissions offset requirement under standard, EPA designated the South was challenged in the U.S. Court of CAA section 182(d)(1)(A). Coast as nonattainment and classified Appeals for the Ninth Circuit, and, in the area as ‘‘Severe-17,’’ but later 2011, the court ruled against EPA, B. South Coast Ozone Designations and approved a request by California to determining that EPA incorrectly Classifications and Related SIP reclassify the South Coast to ‘‘Extreme.’’ interpreted the statutory phrase ‘‘growth Revisions in emissions’’ in section 182(d)(1)(A) as As noted above, the CAA, as amended 4 Letter from Elaine Chang, Deputy Executive meaning a growth in ‘‘aggregate motor in 1990, required EPA to designate as Officer, South Coast Air Quality Management vehicle emissions.’’ In other words, the District, dated September 10, 2008, approved at 40 nonattainment any area that had been CFR 52.220(c)(339)(ii)(B)(2). court ruled that additional designated as nonattainment before the 5 In response to comments on EPA’s proposal to transportation control strategies and 1990 Amendments. The CAA also partially approve and partially disapprove the 2003 measures are required whenever vehicle required EPA to classify nonattainment South Coast 1-Hour Ozone SIP, EPA indicated that emissions are projected to be higher areas as Marginal, Moderate, Serious, the second and third elements of CAA section than they would have been had vehicle 182(d)(1)(A) were satisfied in 1997 when EPA Severe, or Extreme depending upon the approved the 1994 South Coast 1-Hour Ozone SIP’s miles traveled not increased, even when design value of the area. On November transportation control strategies and TCMs, such as aggregate vehicle emissions are actually 6, 1991, EPA designated the Los TCM–1 (‘‘Transportation Improvements’’), which decreasing. Association of Irritated Angeles-South Coast Air Basin Area includes the capital and non-capital facilities, Residents v. EPA, 632 F.3d 584, at 596– 3 projects, and programs contained in the Regional (‘‘South Coast’’) as nonattainment and Mobility Element and programmed through the 597 (9th Cir. 2011), reprinted as Regional Transportation Improvement Program 3 The South Coast includes Orange County, the (RTIP) process to reduce emissions, in the same 6 See pages 6–23 and 6–27 (table 6–12) of the southwestern two-thirds of Los Angeles County, action in which EPA approved the South Coast ROP Final 2007 Air Quality Management Plan, June southwestern San Bernardino County, and western and attainment demonstrations. See 74 FR 10176, 2007, prepared by the South Coast Air Quality Riverside County (see 40 CFR 81.305). at 10179; (March 10, 2009). Management District.

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amended on January 27, 2012, 686 F.3d emissions offset demonstration in our effective date of the final disapproval. 668, further amended February 13, 2012 March 8, 2009 final action on the 2003 The highway funding sanctions in CAA (‘‘AIR v. EPA’’). South Coast 1-Hour Ozone SIP. Second, section 179(b)(1) would apply in the Based on this reasoning, the court we are proposing to withdraw our area six months after the offset sanction remanded the approval of the VMT March 1, 2012 approval of the portion is imposed. These sanctions will apply emissions offset demonstration back to of the 2007 South Coast 8-Hour Ozone unless we take final action approving EPA for further proceedings consistent SIP that was submitted to address the SIP revisions meeting the relevant with the opinion. In May 2011, EPA VMT emissions offset requirement of requirements of the CAA prior to the filed a petition for panel rehearing CAA section 182(d)(1)(A). time the sanctions would take effect. If requesting the court to reconsider its Withdrawal of our approvals of the we propose approval of a SIP revision decision as to the VMT emissions offset two section 182(d)(1)(A) demonstrations meeting the relevant requirements of the requirement. In January 2012, the court would remove them from the California CAA and determine at that time that it denied the request and issued the SIP and we would be obligated to take is more likely than not the deficiency mandate shortly thereafter. action on them under section 110(k), has been corrected, sanctions would be unless the State were to also withdraw D. Litigation on EPA’s Final Action on deferred. See 40 CFR 52.31 which sets the demonstrations from their 2007 South Coast 8-Hour Ozone SIP forth when sanctions apply and when submissions to us. To date, the State has they may be stopped or deferred. As of December 15, 2011, the time of not withdrawn these demonstrations. In addition to the sanctions, CAA signature on the final rule approving the Therefore, in this action, we are section 110(c) provides that EPA must 2007 South Coast 8-hour Ozone SIP, the proposing to disapprove them. promulgate a federal implementation court had not yet responded to our Specifically, we are proposing to plan addressing the deficiency that is petition for panel rehearing in AIR v. disapprove the demonstrations the basis for this disapproval two years EPA. Notwithstanding adverse submitted by California to demonstrate after the effective date of the comments on the proposed approval of compliance with the VMT emissions disapproval unless we have approved a the VMT emissions offset demonstration offset requirement under CAA section revised SIP before that date. in the 2007 South Coast 8-Hour Ozone 182(d)(1)(A) with respect to the 1-hour We are soliciting comments on these SIP, EPA proceeded to approve the and 8-hour ozone standards because proposed actions. Comments will be demonstration on the basis of the same they are predicated on EPA’s previous accepted for 30 days following rationale that had been rejected by the interpretation of section 182(d)(1)(A) publication of this proposal in the Ninth Circuit in connection with the that has been rejected by the Ninth Federal Register. We will consider all VMT emissions offset demonstration Circuit. The demonstrations are not comments in our final rulemaking. submitted as part of the 2003 South consistent with the court’s ruling on the Coast 1-Hour Ozone SIP. The final rule requirements of section 182(d)(1)(A) IV. Statutory and Executive Order was ultimately published on March 1, because they fail to identify, compared Reviews 2012 (77 FR 12674). Shortly thereafter, to a baseline assuming no VMT growth, A. Executive Order 12988, Regulatory several environmental and community the level of increased emissions Planning and Review groups filed a lawsuit in the Ninth resulting solely from VMT growth and Circuit challenging that approval. to show how such increased emissions The Office of Management and Budget Communities for a Better Environment, have been offset through adoption and (OMB) has exempted this regulatory et al. v. EPA, No. 12–71340. implementation of transportation action from Executive Order 128665, control strategies and transportation entitled ‘‘Regulatory Planning and II. Proposed Withdrawal of Previous Review.’’ Approvals, and Proposed Disapproval, control measures. of VMT Emissions Offset III. Proposed Action and Request for B. Paperwork Reduction Act Demonstrations Public Comment This action does not impose an As noted above, the Ninth Circuit EPA is proposing to withdraw and to information collection burden under the rejected EPA’s long-standing disapprove our final approvals of SIP provisions of the Paperwork Reduction interpretation of the first element of revisions submitted by the State of Act, 44 U.S.C. 3501 et seq. Burden is section 182(d)(1)(A) that states could California to demonstrate compliance defined at 5 CFR 1320.3(b). demonstrate compliance with the VMT with the VMT emissions offset C. Regulatory Reduction Act emissions offset requirement through requirement under CAA section submittal of aggregate motor vehicle 182(d)(1)(A) with respect to the 1-hour The Regulatory Flexibility Act (RFA) emissions estimates showing year-over- and 8-hour ozone standards in the generally requires an agency to conduct year declines in such emissions. These South Coast nonattainment area. EPA is a regulatory flexibility analysis of any demonstrations formed the basis for our proposing this action in response to a rule subject to notice and comment consideration and approval of the decision of the Ninth Circuit in AIR v. rulemaking requirements unless the section 182(d)(1)(A) VMT emissions EPA. Under section 110(k) of the Clean agency certifies that the rule will not offset demonstrations submitted in Air Act, we are proposing to disapprove have a significant economic impact on connection with the 2003 South Coast 1- these same plan elements because they a substantial number of small entities. Hour Ozone SIP and the 2007 South reflect an approach to showing Small entities include small businesses, Coast 8-Hour Ozone SIP. In response to compliance with section 182(d)(1)(A) small not-for-profit enterprises, and the court’s rejection of our that was rejected by the court as small governmental jurisdictions. interpretation of the Act and its remand inconsistent with the CAA section This rule will not have a significant of our action approving the VMT 182(d)(1)(A) VMT emissions offset impact on a substantial number of small emissions offset demonstration for the requirement. Should we finalize the entities because SIP approvals or 1-hour ozone standard, we are disapproval proposed here, the offset disapprovals under section 110 and proposing the following two actions. sanction in CAA section 179(b)(2) subchapter I, part D of the Clean Air Act First, we are proposing to withdraw would apply in the South Coast ozone do not create any new requirements but our previous approval of the VMT nonattainment area 18 months after the simply approve or disapprove

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requirements that the State is already implications.’’ ‘‘Policies that have G. Executive Order 13045, Protection of imposing. Therefore, because the federalism implications’’ is defined in Children From Environmental Health proposed withdrawal of previous the Executive Order to include Risks and Safety Risks approvals of certain SIP revisions, and regulations that have ‘‘substantial direct EPA interprets Executive Order 13045 proposed disapproval of the same, do effects on the States, on the relationship (62 FR 19885, April 23, 1997) as not create any new requirements, I between the national government and applying only to those regulatory certify that this proposed action will not the States, or on the distribution of actions that concern health or safety have a significant economic impact on power and responsibilities among the risks, such that the analysis required a substantial number of small entities. various levels of government.’’ Under under section 5–501 of the Executive Moreover, due to the nature of the Executive Order 13132, EPA may not Order has the potential to influence the Federal-State relationship under the issue a regulation that has federalism regulation. This rule is not subject to Clean Air Act, preparation of flexibility implications, that imposes substantial Executive Order 13045, because it analysis would constitute Federal direct compliance costs, and that is not proposes to withdraw previous inquiry into the economic required by statute, unless the Federal approvals of certain SIP revisions reasonableness of State action. The government provides the funds implementing a federal standard, and Clean Air Act forbids EPA to base its necessary to pay the direct compliance proposes disapproval of the same. actions concerning SIPs on such costs incurred by State and local H. Executive Order 13211, Actions That grounds. Union Electric Co., v. U.S. governments, or EPA consults with Significantly Affect Energy Supply, EPA, 427 U.S. 246, 255–66 (1976); 42 State and local officials early in the Distribution, or Use U.S.C. 7410(a)(2). process of developing the proposed D. Unfunded Mandates Reform Act regulation. EPA also may not issue a This proposed rule is not subject to Executive Order 13211, ‘‘Actions Under section 202 of the Unfunded regulation that has federalism implications and that preempts State Concerning Regulations That Mandates Reform Act of 1995 Significantly Affect Energy Supply, (‘‘Unfunded Mandates Act’’), signed law unless the Agency consults with State and local officials early in the Distribution, or Use’’ (66 FR 28355, May into law on March 22, 1995, EPA must 22, 2001) because it is not a significant prepare a budgetary impact statement to process of developing the proposed regulation. regulatory action under Executive Order accompany any proposed or final rule 12866. that includes a Federal mandate that This rule will not have substantial may result in estimated costs to State, direct effects on the States, on the I. National Technology Transfer and local, or tribal governments in the relationship between the national Advancement Act aggregate; or to the private sector, of government and the States, or on the Section 12 of the National Technology $100 million or more. Under section distribution of power and Transfer and Advancement Act 205, EPA must select the most cost- responsibilities among the various (NTTAA) of 1995 requires Federal effective and least burdensome levels of government, as specified in agencies to evaluate existing technical alternative that achieves the objectives Executive Order 13132, because it standards when developing a new of the rule and is consistent with merely proposes to withdraw previous regulation. To comply with NTTAA, statutory requirements. Section 203 approvals of certain SIP revisions EPA must consider and use ‘‘voluntary requires EPA to establish a plan for implementing a Federal standard, and consensus standards’’ (VCS) if available informing and advising any small proposes disapproval of the same, and and applicable when developing governments that may be significantly does not alter the relationship or the programs and policies unless doing so or uniquely impacted by the rule. distribution of power and would be inconsistent with applicable EPA has determined that the responsibilities established in the Clean law or otherwise impractical. proposed withdrawal and disapproval Air Act. Thus, the requirements of The EPA believes that VCS are action does not include a Federal section 6 of the Executive Order do not inapplicable to this proposed action. mandate that may result in estimated apply to this rule. Today’s proposed action does not costs of $100 million or more to either require the public to perform activities State, local, or tribal governments in the F. Executive Order 13175, Coordination conducive to the use of VCS. aggregate, or to the private sector. This With Indian Tribal Governments J. Executive Order 12898: Federal Federal action proposes to withdraw Actions To Address Environmental previous approvals of certain SIP Executive Order 13175, entitled Justice in Minority Populations and revisions, and proposes disapproval of ‘‘Consultation and Coordination with Low-Income Population the same, and imposes no new Indian Tribal Governments’’ (65 FR requirements. Accordingly, no 67249, November 9, 2000), requires EPA Executive Order (EO) 12898 (59 FR additional costs to State, local, or tribal to develop an accountable process to 7629 (Feb. 16, 1994)) establishes federal governments, or to the private sector, ensure ‘‘meaningful and timely input by executive policy on environmental result from this proposed action. tribal officials in the development of justice. Its main provision directs regulatory policies that have tribal federal agencies, to the greatest extent E. Executive Order 13132, Federalism implications.’’ This proposed rule does practicable and permitted by law, to Federalism (64 FR 43255, August 10, not have tribal implications, as specified make environmental justice part of their 1999) revokes and replaces Executive in Executive Order 13175. It will not mission by identifying and addressing, Orders 12612 (Federalism) and 12875 have substantial direct effects on tribal as appropriate, disproportionately high (Enhancing the Intergovernmental governments, on the relationship and adverse human health or Partnership). Executive Order 13132 between the Federal government and environmental effects of their programs, requires EPA to develop an accountable Indian tribes, or on the distribution of policies, and activities on minority process to ensure ‘‘meaningful and power and responsibilities between the populations and low-income timely input by State and local officials Federal government and Indian tribes. populations in the United States. in the development of regulatory Thus, Executive Order 13175 does not EPA lacks the discretionary authority policies that have federalism apply to this proposed rule. to address environmental justice in this

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proposed rulemaking. In reviewing SIP impose a Federal Implementation Plan. appointment during normal business submissions, EPA’s role is to approve or EPA is also proposing that if EPA makes hours with the contact listed in the FOR disapprove state choices, based on the such a finding or disapproval, sanctions FURTHER INFORMATION CONTACT section criteria of the Clean Air Act. would apply consistent with our below. Accordingly, this action merely regulations, such that the offset sanction FOR FURTHER INFORMATION CONTACT: proposes to withdraw previous would apply 18 months after such Wienke Tax, Air Planning Office, U.S. approvals of certain SIP revisions, and finding or disapproval and highway Environmental Protection Agency, proposes disapproval of the same, and funding restrictions would apply six Region 9, Mail Code AIR–2, 75 will not in-and-of itself create any new months later unless EPA first takes Hawthorne Street, San Francisco, requirements. Accordingly, it does not action to stay the imposition of the California 94105–3901, 415–947–4192, provide EPA with the discretionary sanctions or to stop the sanctions clock [email protected]. authority to address, as appropriate, based on the State curing the SIP disproportionate human health or deficiencies. SUPPLEMENTARY INFORMATION: environmental effects, using practicable Throughout this document, ‘‘we,’’ ‘‘us’’ DATES: Written comments must be and ‘‘our’’ refer to EPA. and legally permissible methods, under received on or before October 19, 2012. Executive Order 12898. ADDRESSES: Submit comments, Table of Contents List of Subjects in 40 CFR Part 52 identified by docket number EPA–R09– I. Background Environmental protection, Air OAR–2012–0721, by one of the A. Regulatory Context following methods: pollution control, Intergovernmental • B. South Coast Ozone Designations and relations, Ozone, Reporting and Federal eRulemaking Portal: http:// Classifications and Related SIP Revisions recordkeeping requirements, Volatile www.regulations.gov. Follow the on-line C. Litigation on EPA’s Final Action on organic compounds. instructions for submitting comments. 2003 South Coast 1-Hour Ozone SIP • Email: [email protected]. D. Determination of South Coast’s Failure Authority: 42 U.S.C. 7401 et seq. • Mail or deliver: Wienke Tax, Air to Attain 1-Hour Ozone Standard Dated: August 30, 2012. Planning Office, U.S. Environmental II. Rationale for Proposed SIP Call Protection Agency, Region 9, Mailcode III. Consequences of Proposed SIP Call Jared Blumenfeld, IV. Proposed Action and Request for Public Regional Administrator, EPA Region IX. AIR–2, 75 Hawthorne Street, San Francisco, California 94105–3901. Comment [FR Doc. 2012–22973 Filed 9–18–12; 8:45 am] V. Statutory and Executive Order Reviews Instructions: All comments will be BILLING CODE 6560–50–P included in the public docket without I. Background change and may be made available A. Regulatory Context ENVIRONMENTAL PROTECTION online at http://www.regulations.gov, AGENCY including any personal information The Clean Air Act (CAA or Act) provided, unless the comment includes requires EPA to establish national 40 CFR Part 52 information claimed to be Confidential ambient air quality standards (NAAQS Business Information (CBI) or other [EPA–R09–OAR–2012–0721; FRL–9727–5] or ‘‘standards’’) for certain widespread information whose disclosure is pollutants that cause or contribute to air restricted by statute. Information that Finding of Substantial Inadequacy of pollution that is reasonably anticipated you consider CBI or otherwise protected Implementation Plan; Call for to endanger public health or welfare should be clearly identified as such and California State Implementation Plan (see sections 108 and 109 of the CAA). should not be submitted through http:// Revision; South Coast In 1979, under section 109 of the www.regulations.gov or email. The CAA, EPA established a primary health- AGENCY: Environmental Protection http://www.regulations.gov Web site is based NAAQS for ozone 1 at 0.12 parts Agency (EPA). an ‘‘anonymous access’’ system, and per million (ppm) averaged over a 1- ACTION: Proposed rule. EPA will not know your identity or hour period. See 44 FR 8202 (February contact information unless you provide 8, 1979). The Act, as amended in 1990, SUMMARY: In response to a remand by it in the body of your comment. If you required EPA to designate as the Ninth Circuit Court of Appeals, and send an email comment directly to EPA, nonattainment any area that had been pursuant to the Clean Air Act, EPA is your email address will be designated as nonattainment before the proposing to find that the California automatically captured and included as 1990 Amendments [section 107(d)(1)(C) State Implementation Plan (SIP) for the part of the public comment. If EPA of the Act; 56 FR 56694; (November 6, Los Angeles-South Coast Air Basin cannot read your comment due to 1991)]. The Act further classified these (South Coast) is substantially technical difficulties and cannot contact areas, based on the severity of their inadequate to comply with the you for clarification, EPA may not be obligation to adopt and implement a able to consider your comment. 1 Ground-level ozone or smog is formed when plan providing for attainment of the 1- Docket: The index to the docket for oxides of nitrogen (NOX), volatile organic hour ozone standard. If EPA finalizes this action is available electronically on compounds (VOC), and oxygen react in the presence of sunlight, generally at elevated this proposed finding of substantial the http://www.regulations.gov Web site temperatures. Strategies for reducing smog typically inadequacy, California would be and in hard copy at EPA Region IX, 75 require reductions in both VOC and NOX emissions. required to revise its SIP to correct these Hawthorne Street, San Francisco, Ozone causes serious health problems by damaging deficiencies within 12 months of the California, 94105. While all documents lung tissue and sensitizing the lungs to other irritants. When inhaled, even at very low levels, effective date of our final rule. If EPA in the docket are listed in the index, ozone can cause acute respiratory problems, finds that California has failed to submit some information may be publicly aggravate asthma, temporary decreases in lung a complete SIP revision as required by available only at the hard copy location capacity of 15 to 20 percent in healthy adults, a final rule or if EPA disapproves such (e.g., copyrighted material), and some inflammation of lung tissue, lead to hospital admissions and emergency room visits, and impair a revision, such finding or disapproval may not be publicly available at either the body’s immune system defenses, making people would trigger clocks for mandatory location (e.g., CBI). To inspect the hard more susceptible to respiratory illnesses, including sanctions and an obligation for EPA to copy materials, please schedule an bronchitis and pneumonia.

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nonattainment problem, as Marginal, as nonattainment for the 1997 8-hour ‘‘carrying capacity’’ in the South Coast Moderate, Serious, Severe, or Extreme. ozone standard, and classified under air basin, as well as additional The control requirements and date by subpart 2 (of part D of title I of the commitments by CARB to achieve which attainment of the 1-hour ozone CAA), is subject to the requirements of specified amounts of VOC and NOX standard was to be achieved varied with subpart 2 that apply for that emission reductions needed for an area’s classification. Marginal areas classification. See 40 CFR 51.902(a). attainment by the applicable attainment were subject to the fewest mandated date (November 15, 2010) in light of control requirements and had the B. South Coast Ozone Designations and these updated analyses. Id. at 73 FR earliest attainment date, November 15, Classifications and Related SIP 63410, 63416 (October 24, 2009). In 1993, while Extreme areas were subject Revisions 2008, however, CARB withdrew key to the most stringent planning As noted above, the CAA, as amended components of the emission reduction requirements and were provided the in 1990, required EPA to designate as commitments in the 2003 South Coast 1- most time to attain the standard, until nonattainment any area that was Hour Ozone SIP. See 73 FR at 63410– November 15, 2010. The various ozone violating the 1-hour ozone standard. 12 (citing letter from James Goldstene, planning requirements to which The CAA also required EPA to classify Executive Officer, CARB, dated Extreme ozone nonattainment areas are nonattainment areas as Marginal, February 13, 2008). subject are set forth in section 172(c) Moderate, Serious, Severe, or Extreme In 2009, EPA approved certain and section 182(a)–(e) of the CAA. depending upon the design value of the elements of the 2003 South Coast 1- In 1997, EPA replaced the 1-hour area. On November 6, 1991, EPA Hour Ozone SIP 4 but disapproved the ozone standard with an 8-hour ozone designated the Los Angeles-South Coast revised ROP demonstrations and standard of 0.08 ppm. See 62 FR 38856 Air Basin Area (‘‘South Coast’’) 3 as attainment demonstration in the 2003 (July 18, 1997).2 We promulgated final nonattainment and classified it as South Coast 1-Hour Ozone SIP, in large rules to implement the 1997 8-hour Extreme for the 1-hour ozone standard; part because CARB’s 2008 withdrawal ozone standard in two phases. The thus the area had an attainment date no of key components of the emission ‘‘Phase 1’’ rule, which was issued on later than November 15, 2010 (56 FR reduction commitments submitted in April 30, 2004 (69 FR 23951) 56694). 2004 rendered the plan insufficient to establishes, among other things, the The California Air Resources Board demonstrate attainment and to meet classification structure and (CARB) has submitted a number of SIP ROP milestones. 74 FR 10176, 10181 corresponding attainment deadlines, as revisions over the years for the South (March 10, 2009). More specifically as to well as the anti-backsliding principles Coast to address 1-hour ozone SIP the attainment demonstration, EPA for the transition from the 1-hour ozone planning requirements. Specifically, in concluded that the 2003 South Coast 1- standard to the 8-hour ozone standard. 1994, CARB submitted a 1-hour ozone Hour Ozone SIP did not meet the CAA For an area that was designated SIP that, among other things, included section 182(c)(2)(A) requirement for a nonattainment for the 1-hour ozone for the South Coast an attainment demonstration of attainment of the 1- standard at the time EPA designated it demonstration, a ‘‘rate of progress’’ hour ozone NAAQS by the applicable as nonattainment for the 1997 8-hour (ROP) demonstration, and attainment date because the modeled ozone standard as part of the initial 8- transportation control measures (TCMs). attainment demonstration ‘‘relies upon hour ozone designations, most of the In 1997, EPA approved the 1994 South emission reductions from [CARB’s] requirements that had applied by virtue Coast Ozone SIP as it applied to the control strategy as set forth in the 2003 of the area’s classification for the 1-hour South Coast for the 1-hour standard. See State Strategy, most of which was ozone standard continue to apply even 62 FR 1150 (January 8, 1997). withdrawn by [CARB] on February 13, after revocation of the 1-hour ozone In 1997 and 1999, CARB submitted 2008.’’ 73 FR 63408, 63416; (October 24, standard (which occurred in June 2005 revisions to the 1994 South Coast 1- 2008). EPA also concluded that the for most areas). See 40 CFR 51.905(a)(1) Hour Ozone SIP, including a revised disapproval of the attainment and 40 CFR 51.900(f). Thus, for ROP demonstration and a revised demonstration did not trigger sanctions example, an area that was designated attainment demonstration (‘‘1997/1999 clocks or a Federal implementation plan nonattainment and classified as Extreme South Coast 1-Hour Ozone SIP’’), which (FIP) obligation because the approved for the 1-hour ozone standard at the EPA approved in 2000. See 65 FR 18903 SIP already contained an approved 1- time of an initial designation of (April 10, 2000). In 2004, CARB hour ozone attainment demonstration nonattainment for the 1997 8-hour meeting CAA requirements. See 74 FR submitted revisions to the 1997/1999 standard remains subject to the at 10177, 10181. South Coast 1-Hour Ozone SIP (‘‘2003 requirement to have a fully-approved With respect to the 1997 8-hour ozone attainment demonstration meeting South Coast 1-Hour Ozone SIP’’) standard, EPA initially designated the Extreme area requirements for the 1- intended to update and replace the South Coast as nonattainment and hour ozone standard or an alternative as State’s control measure commitments in classified it as ‘‘Severe-17,’’ but later provided under 40 CFR 51.905(a)(1)(ii). the 1997/1999 South Coast 1-Hour approved a request by California to See 40 CFR 51.905(a)(1) and 40 CFR Ozone SIP. See 73 FR 63408, 63410 reclassify the area to ‘‘Extreme.’’ See 69 51.900(f)(13). (October 24, 2008). The revised FR 23858 (April 30, 2004) and 75 FR The Phase 2 rule, which was issued attainment demonstration submitted as 24409 (May 5, 2010). In 2007, CARB on November 29, 2005 (70 FR 71612), part of the 2003 South Coast 1-Hour addresses the SIP obligations for the Ozone SIP included updated emissions 4 Among the elements EPA approved in 2009 1997 8-hour ozone standard. Under the inventories showing higher mobile were control measures adopted by the California Phase 2 rule, an area that is designated source emissions than the State had Air Resources Board, including a control measure, previously projected and updated referred to as ‘‘PEST–1’’ that carried forward the existing Pesticide Element from the 1994 California 2 In 2008, EPA tightened the 8-hour ozone modeling that indicated a lower 1-Hour Ozone SIP that EPA approved in 1997, and NAAQS to 0.075 ppm, see 73 FR 16436 (March 27, a demonstration submitted by the South Coast Air 2008). Today’s proposed action relates only to SIP 3 The South Coast includes Orange County, the Quality Management District addressing the first requirements arising from the classifications and southwestern two-thirds of Los Angeles County, element of CAA section 182(d)(1)(A), referred to designations of the South Coast with respect to the southwestern San Bernardino County, and western herein as the ‘‘VMT emissions offset 1-hour ozone and 1997 8-hour ozone standards. Riverside County (see 40 CFR 81.305). demonstration.’’

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submitted a SIP revision to address the and the submission disapproved was D. Determination of South Coast’s Extreme 8-hour ozone SIP planning voluntarily submitted by the State to Failure to Attain 1-Hour Ozone requirements for the South Coast (‘‘2007 replace the existing approved SIP Standard South Coast 8-hour Ozone SIP’’), which element. The court briefly referenced its On December 30, 2011, EPA EPA fully approved in March 2012. See analysis of the FIP provisions to determined that the South Coast 77 FR 12674 (March 1, 2012). conclude that the disapproval also extreme ozone nonattainment area had C. Litigation on EPA’s 2009 Final Action triggered mandatory sanctions. Id. at failed to attain the 1-hour ozone on the South Coast 2003 1-Hour Ozone 591–594. standard by its applicable attainment SIP As to the 1994 Pesticide Element, the date of November 15, 2010. 76 FR On May 8, 2009, several court held that EPA had an affirmative 82133; (December 30, 2011). This environmental and community groups duty to review the substance of the determination was based on quality- filed a petition for review in the U.S. element anew in light of subsequent assured and certified ambient air quality Court of Appeals for the Ninth Circuit litigation over the Pesticide Element monitoring data from 2008–2010, the challenging EPA’s March 2009 partial that revealed approvability issues not three-year period preceding the approval and partial disapproval of the accounted for in EPA’s previous review applicable attainment date. Id. EPA 2003 South Coast 1-Hour Ozone SIP. and approval of the element. Id. at 594– made this determination pursuant to its Association of Irritated Residents et al. 595. EPA is addressing this portion of obligation and authority under CAA v. EPA, Case Nos. 09–71383 and 09– the court’s decision in a separate section 301(a) and the relevant portion 71404. The case centered on three main rulemaking. See footnote #5 of this of section 181(b)(2) to ensure issues: (1) The consequences of EPA’s document. implementation of 1-hour ozone anti- backsliding contingency measures and final disapproval of the attainment Finally, the court disagreed with section 185 fee program requirements. demonstration; (2) the necessity for EPA’s interpretation of the VMT Id. at 82145. substantive review of the previously- emissions offset requirement and found approved 1994 Pesticide Element that the plain language of the Act II. Rationale for Proposed SIP Call brought forward in the 2003 State requires SIPs subject to CAA section The Ninth Circuit concluded in AIR v. Strategy; and (3) EPA’s interpretation of 182(d)(1)(A) to include additional EPA that EPA must promulgate a FIP CAA section 182(d)(1)(A), which transportation control strategies and requires SIPs for ‘‘Severe’’ or ‘‘Extreme’’ under CAA section 110(c) or issue a SIP measures whenever vehicle emissions call where EPA disapproves an ozone nonattainment areas to include are projected to be higher, due to growth specific transportation control strategies attainment demonstration submitted to in VMT, than they would have been had replace an already-approved attainment and transportation control measures VMT not increased, even when (TCMs) to offset any growth in demonstration in the SIP, unless the aggregate vehicle emissions are actually Agency determines that the SIP as emissions from growth in vehicle miles decreasing. Id. at 595–597. EPA is traveled (‘‘VMT emissions offset approved remains sufficient to addressing this portion of the court’s requirement’’), and EPA’s approval of demonstrate attainment of the NAAQS. decision in a separate rulemaking. See the State’s demonstration of compliance AIR v. EPA, 632 F.3d 584 (9th Cir. footnote #5 of this document. with this SIP requirement.5 2011), as amended at 686 F.3d 668. On February 2, 2011, the Ninth On May 5, 2011, EPA filed a petition Consistent with this directive and in Circuit ruled in favor of the petitioners for panel rehearing requesting the court response to the court’s conclusion that on all three issues and remanded EPA’s to reconsider its decision on the issue of ‘‘EPA should have ordered California to 2009 final action on the 2003 South whether CAA section 179 sanctions are submit a revised attainment plan for the Coast 1-Hour Ozone SIP. Association of triggered by disapproval of a revision to South Coast after it disapproved the Irritated Residents v. EPA, 632 F.3d 584 an already-approved SIP element, and 2003 Attainment Plan,’’ id. at 681, EPA (9th Cir. 2011). In so doing, the court on the court’s interpretation of CAA is proposing to issue a SIP call under held that EPA must promulgate a FIP section 182(d)(1)(A).6 On January 27, CAA section 110(k)(5) to require under CAA section 110(c) or issue a SIP 2012, the Ninth Circuit denied EPA’s California to submit a new attainment call where EPA disapproves a new petition for rehearing but issued an demonstration for the 1-hour ozone attainment demonstration unless the amended opinion deleting references to standard in the South Coast. Agency determines that the SIP as the imposition of sanctions following Section 110(k)(5) of the CAA states, in approved remains sufficient to disapproval of the South Coast plan. relevant part, as follows: demonstrate attainment of the NAAQS. The mandate in the case issued on Whenever the Administrator finds that the Specifically, the court rejected EPA’s February 13, 2012. See Association of applicable implementation plan for an area is argument that there is no FIP duty Irritated Residents v. EPA, 632 F.3d 584 substantially inadequate to attain or maintain the relevant national ambient air quality where the EPA had already approved (9th Cir. 2011), reprinted as amended on into the SIP the required plan element standard, * * * or to otherwise comply with January 27, 2012, 686 F.3d 668, further any requirement of [the Act], the amended February 13, 2012 (‘‘AIR v. Administrator shall require the State to revise 5 EPA is addressing issues #2 and #3 in separate EPA’’). The decision, as amended, states the plan as necessary to correct such rulemakings. With respect to issue #2 (the continuation of the 1994 Pesticide Element, also inter alia that ‘‘EPA should have inadequacies, and may establish reasonable known as ‘‘PEST–1’’), the EPA Region IX Regional ordered California to submit a revised deadlines (not to exceed 18 months after the Administrator signed a final rule on August 14, attainment plan for the South Coast after date of such notice) for the submission of 2012 approving certain State fumigant regulations it disapproved the 2003 Attainment such plan revisions. Such findings and notice and a revised Pesticide Element commitment for shall be public. Any finding under this San Joaquin Valley, thereby responding to the Plan’’ and remands EPA’s action ‘‘for paragraph shall, to the extent the remand in the Association of Irritated Residents further proceedings consistent with Administrator deems appropriate, subject the case. See, also, 77 FR 24441; (April 24, 2012) [the] opinion.’’ Id. at 681. State to the requirements of this chapter to (proposed rule on fumigant regulations and revised Pesticide Element for San Joaquin Valley). With which the State was subject when it respect to issue #3 (VMT emissions offset 6 See Docket Nos. 09–71383 and 09–71404 developed and submitted the plan for which requirement), EPA is proposing action in a separate (consolidated), Docket Entry 41–1, Petition for such finding was made, except that the document in today’s Federal Register. Panel Rehearing. Administrator may adjust any dates

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applicable under such requirements as purposes, and in 2004, EPA found the effective date of the final SIP call, by appropriate (except that the Administrator 1-hour ozone motor vehicle emissions considering the severity of the may not adjust any attainment date budgets (MVEBs) in the 2003 South remaining nonattainment problem in prescribed under part D of this subchapter, the South Coast and the availability and unless such date has elapsed). Coast 1-Hour Ozone SIP to be adequate for transportation conformity purposes. feasibility of pollution control measures. Our proposed SIP call is based on the See 68 FR 15720; (April 1, 2003) and 69 See CAA section 172(a)(2). evidence submitted by California in the FR 15325; (March 25, 2004). Adequacy The SIP call provisions of CAA form of the 2003 South Coast 1-Hour findings for transportation conformity section 110(k)(5) direct EPA, ‘‘to the Ozone Plan that the approved 1997/ purposes are generally based on cursory extent [EPA] deems appropriate,’’ to 1999 South Coast 1-Hour Ozone SIP was reviews of submitted plans, but EPA’s ‘‘subject the State to the requirements of substantially inadequate to provide for approval of EMFAC2002 and finding of this chapter to which the State was attainment of the 1-hour ozone standard adequacy of the MVEBs in 2003 South subject when it developed and by the applicable attainment date of Coast 1-Hour Ozone SIP show general submitted the plan for which such November 15, 2010. Two major agreement by EPA with the technical finding was made, except that the developments that occurred after EPA foundation for the 2003 South Coast 1- Administrator may adjust any dates approval of the 1997/1999 South Coast Hour Ozone SIP, which highlights the applicable under such requirements as 1-Hour Ozone SIP led the State of inadequacy of the attainment appropriate (except that the California to reconsider the adequacy of demonstration in the 1997/1999 South Administrator may not adjust any the control strategy for attaining the 1- Coast 1-Hour Ozone Plan. attainment date prescribed under part D hour ozone standard in the South Coast In addition, in 2011, EPA determined, of this subchapter, unless such date has by the applicable attainment date based on quality-assured and certified elapsed).’’ By relying on section (2010). ambient air quality monitoring data, that 172(a)(2) as the basis for the applicable First, CARB released a significant the South Coast area has failed to attain attainment date for the South Coast, we update to California’s mobile source the 1-hour ozone NAAQS by the are subjecting the State to the same CAA emissions model (EMFAC2002) that applicable attainment date of November requirement that applied at the time that resulted in significantly higher motor 15, 2010. 76 FR 82133; (December 30, the State developed and submitted the vehicle emissions estimates than 2011). EPA’s 2011 determination of 1997/1999 South Coast 1-Hour Ozone previously calculated, and second, failure to attain the standard by the SIP, because, at that time, the area was South Coast Air Quality Management applicable attainment date provides an extreme ozone area with an District (SCAQMD) updated its ozone further support for our proposed action attainment date of 2010 and subject to modeling and concluded that the because it establishes, as a factual the potential for a finding of failure to carrying capacity of the South Coast Air matter, that the 1997/1999 South Coast attain by the applicable attainment date Basin was significantly lower than 1-Hour Ozone SIP failed to achieve its under CAA section 179(c) that would previously calculated. See, generally, stated purpose of bringing the South trigger a requirement under CAA section appendix III (‘‘Base and Future Year Coast area into attainment of the 1-hour 179(d) to submit a new plan meeting the Emission Inventories’’) and appendix V ozone NAAQS by the applicable requirements of section 172. (‘‘Modeling and Attainment The 12-month deadline for submittal Demonstrations’’) of the SCAQMD’s attainment date. In light of the evidence discussed of a revised attainment demonstration 2003 South Coast Air Quality above, we propose to find that the plan is appropriate in light of the time Management Plan (AQMP), August approved 1997/1999 South Coast 1- that has elapsed since the AIR decision 2003. was published and the significant Together, these technical Hour Ozone SIP is substantially inadequate to provide for attainment of planning effort that the SCAQMD has considerations prompted CARB and already undertaken to develop a new 1- SCAQMD to conclude that more control the 1-hour ozone standard and is therefore substantially inadequate to hour ozone attainment plan but also measures would be necessary than recognizing the potential need to contained in the 1997/1999 South Coast comply with EPA’s ‘‘anti-backsliding’’ requirement at 40 CFR 51.905(a)(1)(i) to develop additional control measures, 1-Hour Ozone SIP to attain the 1-hour beyond those already adopted for the ozone standard by 2010. In reference to adopt and implement such a plan for the South Coast. purposes of the South Coast 8-hour the 1997/1999 South Coast 1-Hour Ozone SIP, given the geographic extent Ozone SIP, the 2003 South Coast 1-Hour III. Consequences of Proposed SIP Call and frequency of exceedances of the 1- Ozone SIP states: ‘‘The Plan is EPA is proposing to require the State hour ozone standard. See, e.g., the 1- consistent with and builds upon the of California to submit, within 12 hour ozone summary data for 2008– approaches taken in the 1997 AQMP months, a SIP revision meeting the 2010 published at 76 FR 56694, at and the 1999 Amendments to the Ozone requirements of CAA section 56697; (September 14, 2011). SIP for the South Coast Air Basin for the 182(c)(2)(A) 7 and demonstrating If EPA subsequently finds that attainment of the federal ozone air attainment of the 1-hour ozone standard California has failed to submit a quality standard. However, this revision in the South Coast as expeditiously as complete SIP revision that responds to points to the urgent need for additional practicable but no later than five years a final SIP call, CAA section 179(a) emission reductions (beyond those from the effective date of a final SIP call provides for EPA to issue a finding of State failure. Such a finding starts incorporated in the 1997/99 Plan) to unless the State can justify a later date, mandatory 18-month and 24-month offset increased emission estimates from not to exceed 10 years beyond the mobile sources and meet all federal sanctions clocks and a 24-month clock criteria pollutant standards within the 7 Under CAA section 182(c)(2)(A), the State must for promulgation of a FIP by EPA. The time frames allowed under the federal submit a revision to the SIP that includes a two sanctions that apply under CAA Clean Air Act.’’ See SCAQMD, 2003 Air demonstration that the plan, as revised, will section 179(b) are the 2-to-1 emission Quality Management Plan,’’ August provide for attainment of the ozone NAAQS. The offset requirement for all new and attainment demonstration must be based on 2003, pages ES–1 and ES–2. photochemical grid modeling or any other modified major sources subject to the In 2003, EPA approved the use of analytical method determined by the EPA to be at nonattainment new source review EMFAC2002 for SIP development least as effective. program and restrictions on highway

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funding. However, section 179 leaves it obligation for a State to revise its SIP List of Subjects in 40 CFR Part 52 up to the Administrator to decide the arise out of section 110(a) and 110(k)(5). Environmental protection, Air order in which these sanctions apply. The finding and State obligation do not pollution control, Intergovernmental EPA issued an order of sanctions rule in directly impose any new regulatory relations, Ozone, Reporting and 1994 (59 FR 39832, August 4, 1994, requirements. In addition, the State recordkeeping requirements, Volatile codified at 40 CFR 52.31) but did not obligation is not legally enforceable by organic compounds. specify the order of sanctions where a a court of law. EPA would review its state fails to submit or submits a intended action on any SIP submittal in Authority: 42 U.S.C. 7401 et seq. deficient SIP in response to a SIP call. response to the finding in light of Dated: August 30, 2012. However, the order of sanctions applicable statutory and Executive Jared Blumenfeld, specified in that rule (40 CFR 52.31) Order requirements, in subsequent Regional Administrator, EPA Region IX. should apply here for the same reasons rulemaking acting on such SIP [FR Doc. 2012–22972 Filed 9–18–12; 8:45 am] discussed in the preamble to that rule. submittal. For those reasons, this BILLING CODE 6560–50–P Thus, if EPA issues a final SIP call proposed action: and California fails to submit the • Is not a ‘‘significant regulatory required SIP revision, or submits a action’’ subject to review by the Office ENVIRONMENTAL PROTECTION revision that EPA determines is of Management and Budget under AGENCY incomplete or that EPA disapproves, Executive Order 12866 (58 FR 51735, EPA proposes that the 2-to-1 emission October 4, 1993); 40 CFR Part 52 offset requirement will apply for all new • Does not impose an information [EPA–R09–OAR–2012–0611; FRL–9730–2] sources subject to the nonattainment collection burden under the provisions new source review program 18 months of the Paperwork Reduction Act (44 Revisions to the California State following such finding or disapproval U.S.C. 3501 et seq.); Implementation Plan, South Coast Air unless the State corrects the deficiency • Is certified as not having a Quality Management District before that date. EPA proposes that the significant economic impact on a highway funding restrictions sanction AGENCY: substantial number of small entities Environmental Protection will also apply 24 months following under the Regulatory Flexibility Act (5 Agency (EPA). such finding or disapproval unless the U.S.C. 601 et seq.); ACTION: Proposed rule. State corrects the deficiency before that • date. EPA is also proposing that the Does not contain any unfunded SUMMARY: EPA is proposing to approve provisions in 40 CFR 52.31 regarding mandate or significantly or uniquely revisions to the South Coast Air Quality staying the sanctions clock and affect small governments, as described Management District (SCAQMD) portion deferring the imposition of sanctions in the Unfunded Mandates Reform Act of the California State Implementation would apply. of 1995 (Pub. L. 104–4); Plan (SIP). These revisions concern lead • In addition, CAA section 110(c) Does not have Federalism emissions from large lead-acid battery obligates EPA to promulgate a FIP implications as specified in Executive recycling facilities. We are approving a addressing the deficiency that is the Order 13132 (64 FR 43255, August 10, local rule that regulates these emission basis for a finding of failure to submit 1999); sources under the Clean Air Act (CAA or a disapproval within two years after • Is not an economically significant or the Act). We are taking comments on the effective date of such finding or regulatory action based on health or this proposal and plan to follow with a disapproval, unless EPA has approved a safety risks subject to Executive Order final action. 13045 (62 FR 19885, April 23, 1997); revised SIP correcting the deficiency DATES: Any comments must arrive by • before that date. Is not a significant regulatory action October 19, 2012. subject to Executive Order 13211 (66 FR IV. Proposed Action and Request for ADDRESSES: Submit comments, 28355, May 22, 2001); Public Comment • identified by docket number R09–OAR– Is not subject to requirements of 2012–0611, by one of the following EPA is proposing to find, pursuant to Section 12(d) of the National section 110(k)(5) of the CAA, that the methods: Technology Transfer and Advancement 1. Federal eRulemaking Portal: California SIP is substantially Act of 1995 (15 U.S.C. 272 note) because inadequate to comply with the www.regulations.gov. Follow the on-line application of those requirements would instructions. obligation to adopt and implement a be inconsistent with the Clean Air Act; plan providing for attainment of the 2. Email: [email protected]. and 3. Mail or deliver: Andrew Steckel one-hour ozone NAAQS in the South • Does not provide EPA with the (Air-4), U.S. Environmental Protection Coast. If EPA finalizes this proposal, discretionary authority to address, as California will be required to submit a Agency Region IX, 75 Hawthorne Street, appropriate, disproportionate human San Francisco, CA 94105–3901. SIP revision correcting the deficiency health or environmental effects, using within 12 months of the effective date Instructions: All comments will be practicable and legally permissible included in the public docket without of EPA’s final rule. methods, under Executive Order 12898 We will accept comments on this change and may be made available (59 FR 7629, February 16, 1994). proposal for 30 days following online at www.regulations.gov, publication of this proposed rule in the In addition, this rule does not have including any personal information Federal Register. We will consider all Tribal implications as specified by provided, unless the comment includes submitted comments in our final Executive Order 13175 (65 FR 67249, Confidential Business Information (CBI) rulemaking. November 9, 2000), because the finding or other information whose disclosure is of SIP inadequacy would not apply in restricted by statute. Information that V. Statutory and Executive Order Indian country located in the State, and you consider CBI or otherwise protected Reviews EPA notes that it will not impose should be clearly identified as such and Under the Clean Air Act, a finding of substantial direct costs on Tribal should not be submitted through substantial inadequacy and subsequent governments or preempt Tribal law. www.regulations.gov or email.

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www.regulations.gov is an ‘‘anonymous www.regulations.gov, some information A. What rule did the State submit? access’’ system, and EPA will not know may be publicly available only at the B. Are there other versions of this rule? your identity or contact information hard copy location (e.g., copyrighted C. What is the purpose of the submitted material, large maps), and some may not rule? unless you provide it in the body of II. EPA’s Evaluation and Action. your comment. If you send email be publicly available in either location A. How is EPA evaluating the rule? directly to EPA, your email address will (e.g., CBI). To inspect the hard copy B. Does the rule meet the evaluation be automatically captured and included materials, please schedule an criteria? as part of the public comment. If EPA appointment during normal business C. EPA Recommendations To Further cannot read your comment due to hours with the contact listed in the FOR Improve the Rule. technical difficulties and cannot contact FURTHER INFORMATION CONTACT section. D. Public Comment and Final Action. III. Statutory and Executive Order Reviews you for clarification, EPA may not be FOR FURTHER INFORMATION CONTACT: Adrianne Borgia, EPA Region IX, (415) able to consider your comment. I. The State’s Submittal Docket: Generally, documents in the 972–3576, [email protected]. docket for this action are available SUPPLEMENTARY INFORMATION: A. What rule did the State submit? electronically at www.regulations.gov Throughout this document, ‘‘we,’’ ‘‘us’’ Table 1 lists the rule addressed by this and in hard copy at EPA Region IX, 75 and ‘‘our’’ refer to EPA. proposal with the dates that it was Hawthorne Street, San Francisco, Table of Contents adopted by the local air agency and California. While all documents in the submitted by the California Air docket are listed at I. The State’s Submittal Resources Board (CARB).

TABLE 1—SUBMITTED RULES

Local agency Rule # Rule title Adopted Submitted

SCAQMD ...... 1420.1 Emissions Standard For Lead From Large Lead-Acid Battery Recy- 11/5/10 9/27/11 cling Facilities.

On October 24, 2011, EPA determined requirements (see sections 110(l) and Controlling Lead Emissions,’’ EPA 457/ that the submittal for SCAQMD Rule 193). A SIP, outlining the strategy to R–12–001, March 2012. 1420.1 met the completeness criteria in demonstrate attainment with the lead B. Does the rule meet the evaluation 40 CFR Part 51 Appendix V, which NAAQS, must be submitted within 18 criteria? must be met before formal EPA review. months of the final designation date. In addition, SIP rules must implement We believe this rule is consistent with B. Are there other versions of this rule? Reasonably Available Control Measures the relevant policy and guidance There are no previous versions of (RACM), including Reasonably regarding enforceability, RACM/RACT, Rules 1420.1 in the SIP. Available Control Technology (RACT and SIP relaxations. The TSD has more C. What is the purpose of the submitted (see CAA sections 189(a)(1) and information on our evaluation. 189(b)(1)). The SCAQMD regulates a rule? C. EPA Recommendations To Further lead nonattainment (see 40 CFR part Improve The Rule Lead is classified as a hazardous air 81), so SCAQMD must implement pollutant under the Clean Air Act (CAA) RACM/RACT. The TSD describes additional rule Section 112 (b). On November 12, 2008, Guidance and policy documents that revisions that we recommend for the The EPA published the final rule on the next time the local agency modifies the Lead National Ambient Air Quality we use to evaluate enforceability and RACM/RACT requirements consistently rule but are not currently the basis for Standards (NAAQS). The revisions to rule disapproval. the primary and secondary Lead include the following: NAAQS were to provide increased 1. ‘‘Issues Relating to VOC Regulation D. Public Comment and Final Action Cutpoints, Deficiencies, and Deviations; protection for children and other at-risk Because EPA believes the submitted Clarification to Appendix D of populations against an array of health rule fulfills all relevant requirements, November 24, 1987 Federal Register effects. Such health effects most notably we are proposing to fully approve it as Notice,’’ (Blue Book), notice of include neurological effects in children, described in section 110(k)(3) of the Act. availability published in the May 25, including neurocognitive and We will accept comments from the 1988 Federal Register. neurobehavioral effects. Section 110(a) public on this proposal for the next 30 of the CAA requires States to submit 2. ‘‘Guidance Document for Correcting days. Unless we receive convincing new regulations that control lead emissions. Common VOC & Other Rule information during the comment period, SCAQMD Rule 1420.1 imposes these Deficiencies,’’ EPA Region 9, August 21, we intend to publish a final approval revised emission standards for large 2001 (the Little Bluebook). action that will incorporate this rule lead-acid battery recycling facilities. 3. ‘‘State Implementation Plans; into the federally enforceable SIP. EPA’s technical support document General Preamble for the (TSD) has more information about this Implementation of Title I of the Clean III. Statutory and Executive Order rule. Air Act Amendments of 1990,’’ 57 FR Reviews II. EPA’s Evaluation and Action. 13498 (April 16, 1992); 57 FR 18070 Under the Clean Air Act, the (April 28, 1992). Administrator is required to approve a A. How is EPA evaluating the rule? 4. ‘‘Implementation of the 2008 Lead SIP submission that complies with the Generally, SIP rules must be National Ambient Air Quality Standards provisions of the Act and applicable enforceable (see section 110(a) of the Guide to Developing Reasonably Federal regulations. 42 U.S.C. 7410(k); Act) and must not relax existing Available Control Measures (RACM) for 40 CFR 52.02(a). Thus, in reviewing SIP

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submissions, EPA’s role is to approve Dated: September 5, 2012. Agency Region 9, 75 Hawthorne Street, State choices, provided that they meet Jared Blumenfeld, San Francisco, CA 94105. the criteria of the Clean Air Act. Regional Administrator, Region IX. Instructions: All comments will be Accordingly, this action merely [FR Doc. 2012–23154 Filed 9–18–12; 8:45 am] included in the public docket without approves State law as meeting Federal BILLING CODE 6560–50–P change and may be made available requirements and does not impose online at www.regulations.gov, additional requirements beyond those including any personal information imposed by State law. For that reason, ENVIRONMENTAL PROTECTION provided, unless the comment includes this action: AGENCY • Is not a ‘‘significant regulatory Confidential Business Information (CBI) action’’ subject to review by the Office 40 CFR Part 52 or other information whose disclosure is restricted by statute. Information that of Management and Budget under [EPA–R09–OAR–2012–0734; FRL–9727–4] Executive Order 12866 (58 FR 51735, you consider CBI or otherwise protected October 4, 1993); Withdrawal of Approval of Air Quality should be clearly identified as such and • Does not impose an information Implementation Plans; California; San should not be submitted through collection burden under the provisions Joaquin Valley; 1-Hour and 8-Hour www.regulations.gov or email. The of the Paperwork Reduction Act (44 Ozone Extreme Area Plan Elements www.regulations.gov Web site is an U.S.C. 3501 et seq.); ‘‘anonymous access’’ system, and EPA • Is certified as not having a AGENCY: U.S. Environmental Protection will not know your identity or contact significant economic impact on a Agency (EPA). information unless you provide it in the substantial number of small entities ACTION: Proposed rule. body of your comment. If you send under the Regulatory Flexibility Act (5 SUMMARY: EPA is proposing to withdraw email directly to EPA, your email U.S.C. 601 et seq.); address will be automatically captured • Does not contain any unfunded a March 8, 2010 final action approving state implementation plan (SIP) and included as part of the public mandate or significantly or uniquely comment. If EPA cannot read your affect small governments, as described revisions submitted by the State of California under the Clean Air Act comments due to technical difficulties in the Unfunded Mandates Reform Act and cannot contact you for clarification, of 1995 (Pub. L. 104–4); (CAA) to provide for attainment of the EPA may not be able to consider your • Does not have Federalism 1-hour ozone National Ambient Air implications as specified in Executive Quality Standards (NAAQS) in the San comment. Order 13132 (64 FR 43255, August 10, Joaquin Valley extreme ozone Docket: The index to the docket for 1999); nonattainment area. This proposed this proposed action is available • Is not an economically significant action is in response to a decision electronically on the regulatory action based on health or issued by the U.S. Court of Appeals for www.regulations.gov Web site and in safety risks subject to Executive Order the Ninth Circuit (Sierra Club v. EPA, hard copy at EPA Region 9, 75 13045 (62 FR 19885, April 23, 1997); 671 F.3d 955 (9th Cir. 2012)) remanding Hawthorne Street, San Francisco, • Is not a significant regulatory action EPA’s approval of these SIP revisions. In California 94105. While all documents subject to Executive Order 13211 (66 FR addition, EPA is proposing to withdraw in the docket are listed in the index, 28355, May 22, 2001); our approval of a portion of a March 1, some information may be publicly • Is not subject to requirements of 2012 final rule approving SIP revisions available only at the hard copy location Section 12(d) of the National submitted by California to provide for (e.g., copyrighted material), and some Technology Transfer and Advancement attainment of the 1997 8-hour ozone may not be publicly available at either NAAQS in the San Joaquin Valley. The Act of 1995 (15 U.S.C. 272 note) because location (e.g., CBI). To inspect the hard portion of this final action for which application of those requirements would copy materials, please schedule an EPA is proposing to withdraw its be inconsistent with the Clean Air Act; appointment during normal business and approval addressed requirements hours with the contact listed in the FOR • Does not provide EPA with the regarding emissions growth caused by discretionary authority to address growth in vehicle miles traveled under FURTHER INFORMATION CONTACT section disproportionate human health or the CAA. This proposed action is in below. environmental effects with practical, response to a decision issued by the FOR FURTHER INFORMATION CONTACT: appropriate, and legally permissible U.S. Court of Appeals for the Ninth Frances Wicher, Air Planning Office methods under Executive Order 12898 Circuit (Association of Irritated (AIR–2), (415) 972–3957, (59 FR 7629, February 16, 1994). Residents, 632 F.3d 584 (9th Cir. 2011), [email protected]. In addition, these rules do not have as amended Jan. 27, 2012), rejecting tribal implications as specified by EPA’s interpretation of the CAA, which SUPPLEMENTARY INFORMATION: Executive Order 13175 (65 FR 67249, had provided the basis for this portion Throughout this document, ‘‘we’’, ‘‘us’’ November 9, 2000), because the SIP is of EPA’s March 1, 2012 final rule. and ‘‘our’’ refer to EPA. not approved to apply in Indian country DATES: Comments must be received on located in the State, and EPA notes that or before October 19, 2012. Table of Contents it will not impose substantial direct ADDRESSES: Submit comments, I. San Joaquin Valley 2004 1-Hour Ozone costs on tribal governments or preempt identified by docket number EPA–R09– Plan tribal law. OAR–2012–0734, by one of the A. Background List of Subjects in 40 CFR Part 52 following methods: B. EPA’s Proposed Action • Federal eRulemaking Portal: II. VMT Emissions Offset Requirement for Environmental protection, Air www.regulations.gov. Follow the on-line 1997 8-Hour Ozone Standard pollution control, Intergovernmental instructions. A. Background relations, Lead, Ozone, Reporting and • Email: [email protected]. B. EPA’s Proposed Action recordkeeping requirements. • Mail or delivery: Frances Wicher, III. Public Comment Authority: 42 U.S.C. 7401 et seq. (AIR–2), U.S. Environmental Protection IV. Statutory and Executive Order Reviews

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I. San Joaquin Valley 2004 1-Hour reductions needed to demonstrate 52.220(c) where EPA’s approval of the Ozone Plan attainment and ROP for the 1-hour Plan is currently codified. See 40 CFR ozone standard in the SJV area. See 75 52.220(c)(317)(i)(B)(1), (c)(339)(i)(B)(1) A. Background FR 10420, 10421 (March 8, 2010). and (ii)(C), (c)(348)(i)(A)(2), and On March 8, 2010, EPA fully These submittals, which we refer to (c)(369)–(371). The District has stated its approved state implementation plan collectively as the ‘‘2004 1-Hour Ozone intent to withdraw the Plan from EPA’s (SIP) revisions submitted by the State of Plan’’ or ‘‘Plan,’’ contained the consideration following EPA’s California to provide for attainment of following required elements of a 1-hour withdrawal of approval, and to submit the 1-hour ozone NAAQS in the San ozone plan for the SJV: (1) A rate of a new 1-hour ozone plan to EPA by June Joaquin Valley (SJV) extreme ozone progress (ROP) demonstration as 30, 2013. See letter dated July 10, 2012, nonattainment area. 75 FR 10420. The required by CAA sections 172(c)(2) and from Seyed Sadredin, Executive California Air Resources Board (CARB) 182(c)(2); (2) ROP contingency measures Director/APCO, SJVUAPCD, to Jared had submitted these SIP revisions to as required by CAA sections 172(c)(9) Blumenfeld, Regional Administrator, satisfy the applicable requirements of and 182(c)(9); (3) an attainment U.S. EPA Region IX, Re: ‘‘San Joaquin part D, title I of the CAA following demonstration as required by CAA Valley 1-hour Ozone Plan.’’ Consistent EPA’s reclassification of the SJV area sections 182(c)(2)(A) and 181(a); (4) with these representations, we from severe to extreme nonattainment attainment contingency measures as understand that California intends to for the 1-hour ozone NAAQS effective required by CAA section 172(c)(9); (5) a promptly withdraw the 2004 1-Hour May 17, 2004. 69 FR 20550 (April 16, reasonably available control measures Ozone Plan from EPA’s consideration if 2004).1 The SIP revisions that EPA (RACM) demonstration as required by EPA finalizes today’s proposal. approved consisted of the following four CAA section 172(c)(1); (6) provisions for Accordingly, EPA is not proposing submissions: (1) The ‘‘Extreme Ozone clean fuels/clean technologies for additional action on the 2004 1-Hour Attainment Demonstration Plan,’’ boilers as required by CAA 182(e)(3); Ozone Plan at this time. adopted by the San Joaquin Valley and (7) vehicle miles traveled (VMT) As a consequence of EPA’s Unified Air Pollution Control District provisions as required by CAA section reclassification of the SJV to extreme (SJVUAPCD or District) in October 2004 182(d)(1)(A), including the requirement nonattainment for the 1-hour ozone and submitted by CARB on November regarding transportation control standard in 2004, California was 15, 2004 (2004 SIP); (2) amendments to strategies and transportation control obligated to submit plan revisions for the 2004 SIP adopted by the District in measures sufficient to offset any growth the SJV area meeting CAA and October 2005 and submitted by CARB in emissions from growth in VMT or regulatory requirements for extreme 1- on March 6, 2006 to, among other numbers of vehicle trips in the SJV area hour ozone nonattainment areas. things, amend the control strategy (2005 (VMT emissions offset requirement). Because California will be in default of Amendments); (3) the ‘‘Clarifications The Sierra Club and several these obligations should it withdraw the Regarding the 2004 Extreme Ozone environmental groups filed a petition Plan from EPA’s consideration, Attainment Demonstration Plan,’’ for review of EPA’s March 8, 2010 following such withdrawal EPA will adopted by the District in August 2008 approval of the 2004 1-Hour Ozone promptly issue a finding of failure to and submitted by CARB on September Plan, arguing, among other things, that submit pursuant to CAA section 5, 2008 to provide updates to the 2004 EPA’s action was arbitrary and 179(a)(1), effective upon publication in SIP related to reasonably available capricious under the Administrative the Federal Register. This finding control technology (RACT) measures Procedure Act (APA) because it did not would trigger mandatory sanctions adopted by the SJVUAPCD, the rate-of- take into account new emissions under CAA section 179 unless the progress (ROP) demonstration, and inventory data that California had deficiency is corrected within 18 contingency measures (2008 submitted subsequent to its submittal of months of such finding and would also Clarifications); and (4) relevant portions the 2004 1-Hour Ozone Plan. On trigger an obligation on EPA to of the ‘‘2003 State and Federal Strategy January 20, 2012, the U.S. Court of promulgate a Federal Implementation for the California State Implementation Appeals for the Ninth Circuit granted Plan (FIP) under CAA section 110(c) Plan,’’ adopted by CARB in October the petition with respect to this issue, unless California submits and we 2003 and submitted to EPA on January holding that EPA’s failure to consider approve SIP revisions that correct the 9, 2004 (2003 State Strategy), which the new emissions data rendered the deficiency within two years of such identify CARB’s regulatory agenda to Agency’s action arbitrary and capricious finding. Should California fail to reduce ozone and particulate matter in under the APA and remanding EPA’s promptly withdraw the 2004 1-Hour California and include statewide control action, in its entirety, for further Ozone Plan upon finalization of today’s measures applicable in the SJV. The proceedings consistent with the proposal, EPA plans to commence a 2003 State Strategy, as modified by decision. See Sierra Club, et. al. v. EPA, new rulemaking addressing the CARB’s resolution adopting it and 671 F.3d 955 (9th Cir. 2012) (Sierra approvability of the 2004 1-Hour Ozone CARB’s resolution adopting the 2004 Club). The court declined to reach the Plan. SIP, also includes State commitments to other issues raised in the petition for If California withdraws the 2004 1- reduce emissions in the SJV area by review. Hour Ozone Plan, the plan elements specified amounts. The 2004 SIP relies under subparts 1 and 2 of part D, title in part on the 2003 State Strategy for the B. EPA’s Proposed Action I of the CAA for which the State will no Consistent with the Sierra Club longer have a valid submission and thus 1 EPA established a new 8-hour ozone standard in court’s remand, EPA is proposing to would be required to submit for the 1- 1997 (62 FR 38856 (July 18, 1997)) and withdraw its March 8, 2010 approval of hour ozone NAAQS for the SJV area are subsequently revoked the 1-hour ozone standard effective June 15, 2005 in the SJV (40 CFR 50.9(b); the 2004 1-Hour Ozone Plan (75 FR as follows: (1) A ROP demonstration 69 FR 23951 (April 30, 2004) and 70 FR 44470 10420) in its entirety. This withdrawal, meeting the requirements of CAA (August 3, 2005)). However, the SJV area remains if finalized, would have the effect of sections 172(c)(2) and 182(c)(2); (2) ROP subject to certain CAA requirements for the 1-hour removing the 2004 1-Hour Ozone Plan contingency measures meeting the ozone standard through the anti-backsliding provisions in EPA’s implementing regulations. See from the applicable California SIP and requirements of CAA sections 172(c)(9) 40 CFR 51.905(a)(1) and 51.900(f). deleting the provisions in 40 CFR and 182(c)(9); (3) an attainment

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demonstration meeting the requirements that both volatile organic compounds B. EPA’s Proposed Action of CAA sections 182(c)(2)(A) and and nitrogen oxides emissions from on- 172(a)(2); (4) attainment contingency road mobile sources declined steadily As noted above, the Ninth Circuit measures meeting the requirements of over the entire period covered by the rejected EPA’s prior interpretation of the CAA sections 172(c)(9); (5) a reasonably plan. 76 FR 57846, 57863 (September VMT emissions offset requirement in available control measures (RACM) 16, 2011) (proposed rule) and 77 FR section 182(d)(1)(A), under which we demonstration meeting the requirements 12652, at 12666 and 12670 (March 1, had allowed states to demonstrate of CAA section 172(c)(1); (6) provisions 2012) (final rule).4 compliance through submittal of satisfying the requirements for clean aggregate motor vehicle emissions As explained in EPA’s proposed and fuels/clean technologies for boilers in estimates showing year-over-year final rules, in Association of Irritated CAA 182(e)(3); and (7) provisions declines in such emissions. This Residents v. EPA, 632 F.3d 584 (9th Cir. satisfying the vehicle miles traveled interpretation formed the basis for 2011) (AIR), the U.S. Court of Appeals (VMT) provisions of CAA section EPA’s determination that the 2007 8- 182(d)(1)(A), including the VMT for the Ninth Circuit held that CAA Hour Ozone Plan satisfied the VMT emissions offset requirement. See 40 section 182(d)(1)(A) requires states to emissions offset requirement. In CFR 51.905(a)(1) and 51.900(f); see also adopt, among other things, response to the court’s ruling in AIR, we 75 FR 10420, 10436–37. transportation control measures and are proposing to withdraw our March 1, strategies whenever, due to growth in 2012 determination that the 2007 8- II. VMT Emissions Offset Requirement VMT, vehicle emissions are projected to for 1997 8-Hour Ozone Standard Hour Ozone SIP satisfies the VMT be higher than they would have been emissions offset requirement in CAA A. Background had VMT not increased, even when section 182(d)(1)(A) because it is aggregate vehicle emissions are actually predicated on an interpretation of On March 1, 2012, EPA fully decreasing. 76 FR 57846, 57863 and 77 approved SIP revisions submitted by section 182(d)(1)(A) that has been FR 12652 at fn. 4. At the time of rejected by the Ninth Circuit. The 2007 California to provide for attainment of signature of the final rule approving the the 1997 8-hour ozone NAAQS in the 8-Hour Ozone Plan fails to identify, 2007 8-Hour Ozone Plan, December 15, SJV extreme ozone nonattainment area compared to a baseline assuming no 2011, the court had not yet issued its (2007 8-Hour Ozone Plan).2 77 FR 12652 VMT growth, the level of increased mandate in the AIR case and EPA had (March 1, 2012). This final rule, which emissions resulting solely from VMT not adopted the court’s interpretation was signed by the Regional growth and to show how such increased Administrator on December 15, 2011, for the reasons set forth in the Agency’s emissions have been offset through included a determination that the 2007 petition for rehearing of the court’s adoption and implementation of 8-Hour Ozone Plan satisfied the VMT ruling on the VMT emissions offset transportation control strategies and emissions offset requirement in CAA requirement, pending a final decision by transportation control measures. This section 182(d)(1)(A).3 77 FR at 12670. the court. Id. Accordingly, withdrawal would be limited to our Although the 2007 8-Hour Ozone Plan notwithstanding adverse comments on conclusion with respect to the VMT does not contain a specific EPA’s proposal with respect to this emissions offset requirement and would demonstration to address the VMT issue, EPA proceeded to fully approve not affect any other element of our emissions offset requirement, EPA the 2007 8-Hour Ozone Plan as March 1, 2012 action on the 2007 8- concluded, based on the Agency’s then- satisfying the VMT emissions offset Hour Ozone SIP. requirement in CAA section current interpretation of CAA section Because EPA’s determination that the 182(d)(1)(A) on the basis of EPA’s then- 182(d)(1)(A), that California was not 2007 8-Hour Ozone SIP satisfied the current interpretation of this required to include additional VMT emissions offset requirement was requirement. On January 27, 2012, the transportation control strategies and made in the absence of any such U.S. Court of Appeals for the Ninth transportation control measures to offset demonstration submitted by the State, Circuit denied EPA’s petition for growth in emissions from growth in California will be in default of its VMT in the SJV area for purposes of the rehearing in AIR and issued an amended obligation to submit a SIP revision 1997 8-hour ozone NAAQS because the opinion. The mandate issued on satisfying this requirement if EPA 2007 8-Hour Ozone Plan demonstrated February 13, 2012. See Association of finalizes the withdrawal of its Irritated Residents, et al., v. EPA, Nos. determination that the obligation has 2 For a more detailed description of this SIP, see 09–71383 and 09–71404 (consolidated), been met. Therefore, simultaneously 76 FR 57846, 57847 (September 16, 2011). 632 F.3d 584 (9th Cir. 2011), reprinted 3 Section 182(d)(1)(A) of the Act states as follows: with a final action to withdraw our as amended on January 27, 2012, 686 previous determination that the 2007 8- Within 2 years after November 15, 1992, the State F.3d 668, further amended February 13, shall submit a revision that identifies and adopts Hour Ozone Plan satisfies the VMT specific enforceable transportation control strategies 2012. emissions offset requirement in CAA and transportation control measures to offset any EPA’s final rule approving the 2007 8- growth in emissions from growth in vehicle miles section 182(d)(1)(A), EPA intends to traveled or numbers of vehicle trips in such area Hour Ozone Plan was published on issue a finding that California has failed and to attain reduction in motor vehicle emissions March 1, 2012 (77 FR 12652). Shortly to submit a SIP revision to address this as necessary, in combination with other emission thereafter, several environmental and requirement, which would be effective reduction requirements of this subpart, to comply with the requirements of subsection (b)(2)(B) and community groups filed a lawsuit in the upon publication in the Federal (c)(2)(B) of this section (pertaining to periodic Ninth Circuit challenging that approval. Register. This finding would trigger emissions reduction requirements). The State shall Committee for a Better Arvin et al. v. mandatory sanctions under CAA section consider measures specified in section 7408(f) of EPA, No. 12–71332. 179 unless the deficiency is corrected this title, and choose from among and implement such measures as necessary to demonstrate within 18 months of such finding and attainment with the national ambient air quality 4 As explained in these rulemakings, EPA has would also trigger an obligation on EPA standards; in considering such measures, the State historically interpreted CAA section 182(d)(1)(A) to to promulgate a Federal Implementation should ensure adequate access to downtown, other allow areas to meet the requirement by Plan (FIP) under CAA section 110(c) commercial, and residential areas and should avoid demonstrating that emissions from motor vehicles measures that increase or related emissions and decline each year through the attainment year. See unless California submits and we congestion rather than reduce them. 57 FR 13498, at 13521–15323 (April 16, 1992). approve a SIP revision that corrects the

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deficiency within two years of such FR 67249; November 9, 2000), because ADDRESSES: Submit your comments, finding. the SIP does not apply in Indian country identified by Docket ID No. EPA–HQ– located in the State, and EPA notes that OAR–2011–0111, by mail to the III. Public Comment it will not impose substantial direct following: ‘‘OAR Docket and We will accept comments from the costs on Tribal governments or preempt Information Center, Environmental public on these proposals for the next Tribal law. Protection Agency, Mailcode 6102T, 30 days. The deadline and instructions 1200 Pennsylvania Ave. NW., List of Subjects in 40 CFR Part 52 for submission of comments are Washington, DC 20460.’’ Comments provided in the ‘‘Date’’ and ‘‘Addresses’’ Environmental protection, Air may also be submitted electronically or sections at the beginning of this pollution control, Intergovernmental through hand delivery/courier by preamble. relations, Nitrogen dioxide, Ozone, following the detailed instructions in IV. Statutory and Executive Order Volatile organic compounds. the ADDRESSES section of the direct final Reviews Authority: 42 U.S.C. 7401 et seq. rule located in the rules section of this Federal Register. To expedite review, a Dated: August 30, 2012. This action merely proposes to second copy of the comments should be withdraw previous EPA actions, or Jared Blumenfeld, sent to Bella Maranion at the address portions thereof, on SIP revisions EPA Regional Administrator, Region 9. listed below under FOR FURTHER submitted by California to provide for [FR Doc. 2012–22971 Filed 9–18–12; 8:45 am] INFORMATION CONTACT. attainment of ozone standards in the BILLING CODE 6560–50–P FOR FURTHER INFORMATION CONTACT: San Joaquin Valley. As such it does not Bella Maranion, Stratospheric propose to impose additional Protection Division, Office of requirements on any entity. For that ENVIRONMENTAL PROTECTION Atmospheric Programs (6205J), reason, this proposed action: AGENCY • Is not a ‘‘significant regulatory Environmental Protection Agency, 1200 action’’ subject to review by the Office 40 CFR Part 82 Pennsylvania Ave. NW., Washington, of Management and Budget under DC 20460; telephone number: (202) [EPA–HQ–OAR–2011–011; FRL–9729–4] Executive Order 12866 (58 FR 51735 343–9749; fax number: (202) 343–2363; email address: [email protected]. (October 4, 1993)); RIN–2060–AQ84 • Does not impose an information The published versions of notices and collection burden under the provisions Protection of Stratospheric Ozone: rulemakings under the SNAP program of the Paperwork Reduction Act (44 Listing of Substitutes for Ozone- are available on EPA’s Stratospheric U.S.C. 3501 et seq.); Depleting Substances—Fire Ozone Web site at http://www.epa.gov/ • Is certified as not having a Suppression and Explosion Protection ozone/snap/regs. significant economic impact on a SUPPLEMENTARY INFORMATION: substantial number of small entities AGENCY: Environmental Protection I. Why is EPA issuing this proposed under the Regulatory Flexibility Act (5 Agency. rule? U.S.C. 601 et seq.); ACTION: Notice of Proposed Rulemaking. • Does not contain any unfunded This document proposes to list under mandate or significantly or uniquely SUMMARY: The U.S. Environmental SNAP certain substitutes for ozone- affect small governments, as described Protection Agency (EPA) is proposing to depleting substances for use in fire in the Unfunded Mandates Reform Act list three substitutes for ozone-depleting suppression applications. We have of 1995 (Pub. L. 104–4); substances in the fire suppression and published a direct final rule listing three • Does not have Federalism explosion protection sector as substitutes for ozone-depleting halons implications as specified in Executive acceptable subject to use restrictions used in the fire suppression and Order 13132 (64 FR 43255 (August 10, under the EPA’s Significant New explosion protection sector as 1999)); Alternatives Policy (SNAP) program. acceptable subject to use restrictions in • Is not an economically significant This program implements section 612 of the ‘‘Rules and Regulations’’ section of regulatory action based on health or the Clean Air Act, as amended in 1990, this Federal Register because we view safety risks subject to Executive Order which requires EPA to evaluate this as a noncontroversial action and 13045 (62 FR 19885 (April 23, 1997)); substitutes for ozone-depleting anticipate no adverse comment. We • Is not a significant regulatory action substances and find them acceptable have explained our reasons for this subject to Executive Order 13211 (66 FR where they pose comparable or lower action in the preamble to the direct final 28355 (May 22, 2001)); overall risk to human health and the rule. • Is not subject to requirements of environment than other available Section 12(d) of the National substitutes. In the ‘‘Rules and II. Does this action apply to me? Technology Transfer and Advancement Regulations’’ section of this Federal This proposed rule would regulate the Act of 1995 (15 U.S.C. 272 note) because Register, we are listing three fire use of Powdered Aerosol F (KSA®) and application of those requirements would suppression substitutes as acceptable Powdered Aerosol G (Dry Sprinkler be inconsistent with the CAA; and subject to use restrictions as a direct Powdered Aerosol (DSPA) Fixed • Does not provide EPA with the final rule without a prior proposed rule. Generators) by finding them acceptable discretionary authority to address, as If we receive no adverse comment, we subject to use conditions as substitutes appropriate, disproportionate human will not take further action on this for halon 1301 for use in total flooding health or environmental effects, using proposed rule; in such case, the final fire suppression systems in normally practicable and legally permissible rule will become effective as provided unoccupied spaces. This action also methods, under Executive Order 12898 in the accompanying direct final rule. proposes to find C7 Fluoroketone (59 FR 7629 (February 16, 1994)). DATES: Comments must be received in acceptable subject narrowed use limits In addition, this proposed action does writing or a request for a public hearing as a substitute for halon 1211 for use as not have Tribal implications as must be made as provided below by a streaming agent in portable fire specified by Executive Order 13175 (65 October 19, 2012. extinguishers in nonresidential

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applications. Halons are chemicals that stratospheric ozone layer. This action distribution, installation and servicing, were once widely used in the fire will provide users that need specialized or use of the fire suppression equipment protection sector but have been banned fire protection applications with more containing the substitutes are listed in from production in the U.S. since 1994 options for alternatives to the use of the table below: because their emissions into the halons. Businesses that may be atmosphere are highly destructive to the regulated, either through manufacturing,

TABLE 1—POTENTIALLY REGULATED ENTITIES, BY NORTH AMERICAN INDUSTRIAL CLASSIFICATION SYSTEM (NAICS) CODE

NAICS Category Code Description of regulated entities

Construction ...... 238210 Alarm system (e.g., fire, burglar), electric, installation only. Manufacturing ...... 325998 Fire extinguisher chemical preparations manufacturing. Manufacturing ...... 332919 Nozzles, fire fighting, manufacturing. Manufacturing ...... 334290 Fire detection and alarm systems manufacturing. Manufacturing ...... 336611 Shipbuilding and repairing. Manufacturing ...... 339999 Fire extinguishers, portable, manufacturing. Manufacturing ...... 336411 Aircraft manufacturing. Manufacturing ...... 336413 Other aircraft parts and auxiliary equipment manufacturing.

This table is not intended to be IV. Statutory and Executive Order business that produces or uses fire exhaustive, but rather a guide regarding Reviews suppressants as total flooding and/or streaming agents with 500 or fewer entities likely to be regulated by this A. Executive Order 12866 action. If you have any questions about employees or total annual receipts of $5 whether this action applies to a OMB notified EPA on May 5, 2011, million or less; (2) a small governmental particular entity, consult the person that it considers this action not a jurisdiction that is a government of a ‘‘significant regulatory action’’ under listed in the FOR FURTHER INFORMATION city, county, town, school district or the terms of Executive Order 12866 (58 CONTACT section. special district with a population of less FR 51735, October 4, 1993) and it is than 50,000; and (3) a small III. What are the procedures for notice therefore not subject to review under organization that is any not-for-profit and comment on this rule? Executive Orders 12866 and 13563 (76 enterprise which is independently FR 3821, January 21, 2011). owned and operated and is not The direct final rule will be effective dominant in its field. on December 18, 2012 without further B. Paperwork Reduction Act After considering the economic notice unless we receive adverse This action does not impose any new impacts of today’s proposed rule on information collection burden. This comment or a request for a public small entities, I certify that this action proposed rule is an Agency hearing by October 19, 2012. If EPA will not have a significant economic determination. It contains no new receives adverse comment or a request impact on a substantial number of small requirements for reporting or for a public hearing, we will publish a entities. This proposed rule will not recordkeeping. However, the Office of timely withdrawal in the Federal impose any requirements on small Management and Budget (OMB) has Register informing the public that all or entities beyond current industry previously approved the information part of this rule will not take effect. If practices. Today’s action effectively collection requirements contained in the a public hearing is requested, EPA will supports the introduction of new existing regulations in subpart G of 40 provide notice in the Federal Register alternatives to the market for fire CFR part 82 under the provisions of the as to the location, date, and time. EPA protection extinguishing systems, thus Paperwork Reduction Act, 44 U.S.C. will address all public comments in a providing additional options for users 3501 et seq. and has assigned OMB subsequent final rule based on this making the transition away from ozone- control numbers 2060–0226 (EPA ICR depleting halons. proposed rule. We will not institute a No. 1596.08). The OMB control numbers second public comment period on this for EPA’s regulations are listed in 40 Use of halon 1301 total flooding action. Any parties interested in CFR part 9 and 48 CFR Chapter 15.C. systems and halon 1211 as a streaming commenting must do so at this time. agent have historically been in specialty C. Regulatory Flexibility Act (RFA) You may claim that information in fire protection applications including your comments is confidential business The RFA generally requires an agency essential electronics, civil aviation, information, as allowed by 40 CFR part to prepare a regulatory flexibility military mobile weapon systems, oil and 2. If you submit comments and include analysis of any rule subject to notice gas and other process industries, and merchant shipping with smaller information that you claim as and comment rulemaking requirements segments of use including libraries, confidential business information, we under the Administrative Procedure Act or any other statutes unless the agency museums, and laboratories. The request that you submit them directly to certifies that the rule will not have a majority of halon system and Bella Maranion in two versions: one significant economic impact on a extinguisher owners continue to clearly marked ‘‘Public’’ to be filed in substantial number of small entities. maintain and refurbish existing systems the public docket, and the other marked Small entities include small businesses, and equipment since halon supplies ‘‘Confidential’’ to be reviewed by small organizations, and small continue to be available in the U.S. authorized government personnel only. governmental jurisdictions. Owners of new facilities and purchasers For further information, please see the For purposes of assessing the impact of new fire suppression equipment ADDRESSES section of this document. of today’s rule on small entities, small make up the market for the new entities are defined as (1) a small alternative agent systems and

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equipment. They may also consider direct effects on the States, on the I. National Technology Transfer and employing other available fire relationship between the national Advancement Act protection options including new, government and the States, or on the Section 12(d) of the National improved technology for early warning distribution of power and Technology Transfer and Advancement and smoke detection. Thus, EPA is responsibilities among the various Act of 1995 (‘‘NTTAA’’), Public Law providing more options to any entity, levels of government, as specified in 104–113, 12(d) (15 U.S.C. 272 note) including small entities, by finding Executive Order 13132. This proposed directs EPA to use voluntary consensus additional substitutes acceptable for rule will provide additional options for standards in its regulatory activities use. The use restrictions imposed on the fire protection subject to safety unless to do so would be inconsistent substitutes in today’s rule are consistent guidelines in industry standards. These with applicable law or otherwise with the applications suggested by the standards are typically already required impractical. Voluntary consensus submitter and with current industry by state or local fire codes, and this rule standards are technical standards (e.g., practices. Therefore, we conclude that does not require state, local, or tribal materials specifications, test methods, the rule does not impose any new cost governments to change their regulations. sampling procedures, and business on businesses. Thus, Executive Order 13132 does not practices) that are developed or adopted Although this proposed rule will not apply to this action. have a significant economic impact on by voluntary consensus standards a substantial number of small entities, F. Executive Order 13175: Consultation bodies. NTTAA directs EPA to provide EPA nonetheless has tried to reduce the and Coordination With Indian Tribal Congress, through OMB, explanations impact of this rule on small entities. By Governments when the Agency decides not to use introducing new substitutes, today’s available and applicable voluntary This action does not have tribal consensus standards. rule gives additional flexibility to small implications, as specified in Executive entities that are concerned with fire This rulemaking does not involve Order 13175. It will not have substantial technical standards. EPA defers to suppression. EPA also has worked direct effects on tribal governments, on closely together with the NFPA, which existing NFPA voluntary consensus the relationship between the Federal standards and Occupational Safety and conducts regular outreach with small government and Indian tribes, or on the entities and involves small state, local, Health Administration (OSHA) distribution of power and regulations that relate to the safe use of and tribal governments in developing responsibilities between the Federal and implementing relevant fire halon substitutes reviewed under SNAP. government and Indian tribes, as EPA refers users to the latest edition of protection standards and codes. We specified in Executive Order 13175. continue to be interested in the NFPA 2010 Standard on Aerosol This proposed rule will provide Extinguishing Systems which provides potential impacts of the proposed rule additional options for fire protection on small entities and welcome for safe use of aerosol extinguishing subject to safety guidelines in industry agents and technologies as well as comments on issues related to such standards. These standards are typically impacts. NFPA 10 Standard for Portable Fire already required by state or local fire Extinguishers. Copies of these standards D. Unfunded Mandates Reform Act codes, and this rule does not require may be obtained by calling the NFPA’s tribal governments to change their This action contains no Federal telephone number for ordering regulations. Thus, Executive Order mandates under the provisions of Title publications at 1–800–344–3555. The 13175 does not apply to this action. II of the Unfunded Mandate Reform Act NFPA 2010 and NFPA 10 standards of 1995 (UMRA), 2 U.S.C. 1531–1538 for G. Executive Order 13045: Protection of meet the objectives of the rule by setting State, local, or tribal governments or the Children From Environmental Health scientifically-based guidelines for safe private sector. This action imposes no Risks and Safety Risks exposure to halocarbon and inert gas enforceable duty on any State, local, or agents and aerosol extinguishing agents tribal governments or the private sector. This action is not subject to EO 13045 as well as guidelines for portable Therefore, this action is not subject to (62 FR 19885, April 23, 1997) because extinguishers, respectively. In addition, the requirements of sections 202 or 205 it is not economically significant as EPA has worked in consultation with of the UMRA. defined in EO 12866, and because the OSHA to encourage development of This action is also not subject to the Agency does not believe the technical standards to be adopted by requirements of section 203 of UMRA environmental health or safety risks voluntary consensus standards bodies. because it contains no regulatory addressed by this action present a disproportionate risk to children. This J. Executive Order 12898: Federal requirements that might significantly or Actions To Address Environmental uniquely affect small governments. By action’s health and risk assessments are contained in section II of the associated Justice in Minority Populations and introducing new fire suppression Low-Income Populations substitutes, today’s rule provides an direct final rule. additional choice and flexibility to The public is invited to submit Executive Order (EO) 12898 (59 FR entities that are concerned with comments or identify peer-reviewed 7629 (Feb. 16, 1994)) establishes federal specialized fire protection applications. studies and data that assess effects of executive policy on environmental This proposed rule will provide early life exposure to Powdered Aerosol justice. Its main provision directs additional options for fire protection F, Powdered Aerosol G (DSPA Fixed federal agencies, to the greatest extent subject to safety guidelines in industry Generators), and C7 Fluoroketone. practicable and permitted by law, to make environmental justice part of their standards. These standards are typically H. Executive Order 13211 (Energy mission by identifying and addressing, already required by state or local fire Effects) codes, so this action will not affect as appropriate, disproportionately high small governments. This action is not subject to Executive and adverse human health or Order 13211 (66 FR 28355 (May 22, environmental effects of their programs, E. Executive Order 13132 (Federalism) 2001)), because it is not a significant policies, and activities on minority This action does not have federalism regulatory action under Executive Order populations and low-income implications. It will not have substantial 12866. populations in the United States.

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EPA has determined that this these species may be warranted. we are required to promptly conduct a proposed rule will not have Therefore, with the publication of this species status review, which we disproportionately high and adverse notice, we are initiating a review of the subsequently summarize in our 12- human health or environmental effects status of the U.S. captive members of month finding. on minority or low-income populations these species to determine if delisting Petition History because it increases the level of the U.S. captive specimens is warranted. environmental protection for all affected Based on the status review, we will On June 29, 2010, we received two populations without having any issue a 12-month finding on these two petitions, one dated June 29, 2010, from disproportionately high and adverse petitions, which will address whether Nancie Marzulla, submitted on behalf of human health or environmental effects the petitioned action is warranted, as the Exotic Wildlife Association (EWA), on any population, including any provided in section 4(b)(3)(B) of the Act. and one dated June 28, 2010, from Anna minority or low-income population. DATES: The findings announced in this M. Seidman submitted on behalf of This rule would provide fire document were made on September 19, Safari Club International and Safari suppression substitutes that have no 2012. Club International Foundation (SCI). The SCI petitioner requested that the ODP and low or no GWP. The avoided ADDRESSES: These findings are available ODS and GWP emissions would assist ‘‘U.S. captive populations’’ of three on the Internet at http:// antelope species, the scimitar-horned in restoring the stratospheric ozone www.regulations.gov at Docket Number layer, avoiding adverse climate impacts, oryx (Oryx dammah), dama gazelle FWS–HQ–ES–2012–0077. Supporting (Gazella dama), and addax (Addax and result in human health and documentation we used in preparing environmental benefits. nasomaculatus), be removed from the these findings is available for public Federal List of Endangered and List of Subjects in 40 CFR Part 82 inspection, by appointment, during Threatened Wildlife (List) under the normal business hours at the U.S. Fish Act. The SCI petitioner also requested Environmental protection, and Wildlife Service, 4401 North Fairfax Administrative practice and procedure, that we ‘‘correct the Endangered Species Drive, Room 420, Arlington, VA 22203. Act listing of scimitar-horned oryx, Air pollution control, Reporting and Please submit any new information, recordkeeping requirements. dama gazelle, and addax to specify that materials, comments, or questions only the populations in the portion of Dated: September 11, 2012. concerning these findings to the above their range outside of the United States Lisa P. Jackson, street address. are classified as endangered.’’ The EWA Administrator. FOR FURTHER INFORMATION CONTACT: petitioner requested that the ‘‘U.S. [FR Doc. 2012–23136 Filed 9–18–12; 8:45 am] Janine Van Norman, Chief, Branch of captive-bred populations’’ of these same BILLING CODE 6560–50–P Foreign Species, Endangered Species three species be removed from the List. Program, U.S. Fish and Wildlife Service, Both petitions indicated that removal or 4401 North Fairfax Drive, Room 420, delisting of the U.S. captive or U.S. DEPARTMENT OF THE INTERIOR Arlington, VA 22203; telephone 703– captive-bred individuals of these 358–2171. If you use a species was warranted pursuant to 50 Fish and Wildlife Service telecommunications device for the deaf CFR 424.11(d)(3) because the Service’s (TDD), call the Federal Information interpretation of the original data that 50 CFR Part 17 Relay Service (FIRS) at 800–877–8339. these species are endangered in their SUPPLEMENTARY INFORMATION: entirety was in error. EWA’s petition [Docket No. FWS–HQ–ES–2012–0077; contained an additional ground for 4500030115] Background recommending delisting of the ‘‘U.S. Endangered and Threatened Wildlife Section 4(b)(3)(A) of the Act (16 captive-bred populations’’ of these and Plants; 90-Day Findings on U.S.C. 1531 et seq.) requires that we species on the basis that these Petitions To Delist U.S. Captive make a finding on whether a petition to ‘‘populations’’ have recovered pursuant Populations of the Scimitar-Horned list, delist, or reclassify a species to 50 CFR 424.11(d)(2). Both petitions Oryx, Dama Gazelle, and Addax presents substantial scientific or clearly identified themselves as such commercial information indicating that and included the requisite identification AGENCY: Fish and Wildlife Service, the petitioned action may be warranted. information for the petitioners, as Interior. We are to base this finding on required by 50 CFR 424.14(a). information provided in the petition, ACTION: Notice of 90-day petition Previous Federal Action(s) findings and initiation of status review. supporting information submitted with the petition, and information otherwise Two subspecies of the dama gazelle, SUMMARY: We, the U.S. Fish and available in our files. To the maximum the Mhorr gazelle (Gazella dama mhorr) Wildlife Service (‘‘Service’’), announce extent practicable, we are to make this and Rio de Oro dama gazelle (G. d. 90-day findings on two petitions to finding within 90 days of our receipt of lozanoi) were listed as endangered in remove the U.S. captive-bred and U.S. the petition, and publish our notice of their entirety, i.e. wherever found, on captive populations of three antelope the finding promptly in the Federal June 2, 1970 (35 FR 8491). On species, the scimitar-horned oryx (Oryx Register. November 5, 1991, we published in the dammah), dama gazelle (Gazella dama), Our standard for substantial scientific Federal Register (56 FR 56491) a and addax (Addax nasomaculatus), or commercial information within the proposed rule to list the scimitar-horned from the List of Endangered and Code of Federal Regulations (CFR) with oryx, addax, and dama gazelle as Threatened Wildlife as determined regard to a 90-day petition finding is endangered in their entireties. We re- under the Endangered Species Act of ‘‘that amount of information that would opened the comment period on the 1973, as amended (Act or ESA). Based lead a reasonable person to believe that proposed rule to request information on our review, we find that the petitions the measure proposed in the petition and comments from the public on June present substantial information may be warranted’’ (50 CFR 424.14(b)). 8, 1992 (57 FR 24220), July 24, 2003 (68 indicating that delisting the U.S. captive If we find that substantial scientific or FR 43706), and again on November 26, animals or U.S. captive-bred members of commercial information was presented, 2003 (68 FR 66395).

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On February 1, 2005 (70 FR 5117), we the regulation at 50 CFR 17.21(h), thus As part of planned reintroduction announced a proposed rule and notice eliminating the exclusion for U.S. projects, captive-bred individuals of the of availability of a draft environmental captive-bred scimitar-horned oryx, three antelope species have been assessment to add new regulations addax, and dama gazelle from certain released into fenced, protected areas in under the Act to govern certain prohibitions under the Act. Under the Tunisia, Morocco, and Senegal. These activities with U.S. captive-bred proposed rule, any person who intended animals may be released into the wild scimitar-horned oryx, addax, and dama to conduct an otherwise prohibited when adequately protected habitat is gazelle, should they become listed as activity with U.S. captive-bred scimitar- available. However, continued habitat endangered. The proposed rule covered horned oryx, addax, or dama gazelle loss and wanton killing have made U.S. captive-bred live animals, would need to qualify for an exemption reintroduction nonviable in most cases including embryos and gametes, and or obtain authorization for such activity (70 FR 52319). sport-hunted trophies, and would under the Act and applicable For more information on the scimitar- authorize, under certain conditions, regulations. On January 5, 2012, we horned oryx, dama gazelle, and addax, certain otherwise prohibited activities published a final rule (77 FR 431) see our final listing rule for these that enhance the propagation or survival removing the regulation at 50 CFR species (70 FR 52319; September 2, of the species. The ‘‘otherwise 17.21(h). 2005). prohibited activities’’ were take; export Species Information Standards for Evaluating Information or re-import; delivery, receipt, carrying, in the Petitions transport, or shipment in interstate or The scimitar-horned oryx, dama foreign commerce, in the course of a gazelle, and addax are each native to Section 4 of the Act (16 U.S.C. 1533) commercial activity; or sale or offering several countries in northern Africa. and its implementing regulations at 50 for sale in interstate or foreign Although previously widespread in the CFR Part 424 set forth the procedures commerce. In the proposed rule, we region, populations have been greatly for adding a species to, or removing a found that the scimitar-horned oryx, reduced primarily as a result of habitat species from, the Federal Lists of addax, and dama gazelle are dependent loss, uncontrolled killing, and the Endangered and Threatened Wildlife on captive breeding and activities inadequacy of regulatory mechanisms and Plants. A species may be associated with captive breeding for (70 FR 52319). Estimated numbers of determined to be an endangered or their conservation, and that activities individuals in the wild are extremely threatened species due to one or more low. The oryx is believed to be associated with captive breeding within of the five factors described in section extirpated in the wild, the addax the United States enhance the 4(a)(1) of the Act: numbers fewer than 300, and the dama propagation or survival of these species. (A) The present or threatened gazelle numbers fewer than 500. All We accepted comments on this destruction, modification, or three species are listed in Appendix I of proposed rule until April 4, 2005. curtailment of its habitat or range; the Convention on International Trade (B) Overutilization for commercial, On September 2, 2005, we published in Endangered Species of Wild Fauna recreational, scientific, or educational a final rule listing the scimitar-horned and Flora (CITES). The International purposes; oryx, addax, and dama gazelle as Union for Conservation of Nature endangered in their entirety (70 FR (IUCN) Red List categorizes the oryx as (C) Disease or predation; 52319). On September 2, 2005, we also ‘‘extinct in the wild,’’ and the dama (D) The inadequacy of existing added a new regulation (70 FR 52310) gazelle and addax as ‘‘critically regulatory mechanisms; or at 50 CFR 17.21(h) that excluded the endangered’’ (IUCN Species Survival (E) Other natural or manmade factors U.S. captive-bred animals of these three Commission (SSC) Antelope Specialist affecting its continued existence. species, as described above, from certain Group 2008; Newby and Wacher 2008 in We must consider these same five prohibitions under the Act. The IUCN Redlist 2012; Newby et al. 2008 in factors in delisting a species as they promulgation of the regulation at 50 IUCN Redlist 2012). All three species relate to the definitions of endangered CFR 17.21(h) was challenged as are listed under the Act as endangered and threatened species. We may delist violating section 10 of the Act and the in their entireties (see 50 CFR 17.11(h)). a species according to 50 CFR 424.11(d) National Environmental Policy Act (42 The Sahara Sahel Interest Group only if the best available scientific and U.S.C. 4321 et seq.), first in both the (SSIG) estimates that there are commercial data indicate that the U.S. District Court for the Northern approximately 4,000 to 5,000 scimitar- species is neither endangered nor District of California and the U.S. horned oryx, 1,500 addax, and 750 threatened for the following reasons: District Court for the District of dama gazelle in captivity worldwide (70 (1) The species is extinct; Columbia, but then transferred and FR 52319). These include at least 1,550 (2) The species has recovered and is consolidated in the U.S. District Court scimitar-horned oryx and 600 addax no longer endangered or threatened; or for the District of Columbia (see Friends held in managed breeding programs in (3) The best scientific or commercial of Animals v. Ken Salazar and Cary v. several countries around the world. We data available at the time the species Gould, 626 F. Supp. 2d 102 (D.D.C. are unaware of information indicating was classified, or the interpretation of 2009)). The Court found that the rule for numbers of dama gazelle currently held such data, were in error. the three antelope species violated in managed breeding programs. In In considering a petition under section 10(c) of the Act by not providing addition to individuals of these species section 4(b)(3) of the Act, we generally the public notice of and an opportunity held in managed breeding programs, evaluate the information presented in to comment on activities being carried captive individuals are held in private the petition, along with information out with U.S. captive specimens of these collections and on private game farms available in our files, on threats to the three antelope species. On June 22, and ranches in the United States and the species. But in this instance, first we 2009, the Court remanded the rule to the Middle East (IUCN SSC Antelope must evaluate whether SCI and EWA Service for action consistent with its Specialist Group 2008; Newby and have submitted valid petitions to add, opinion. To comply with the Court’s Wacher 2008 in IUCN Redlist 2012; remove, or reclassify a ‘‘species’’ as that order, we published a proposed rule on Newby et al. 2008 in IUCN Redlist 2012; term is defined in the Act. Our July 7, 2011 (76 FR 39804), to remove 70 FR 52310). evaluation is presented below.

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Evaluation of the Information in the SCI and captive specimens of the same www.regulations.gov and upon request and EWA Petitions species, a reasonable person could from the Branch of Foreign Species (see As previously mentioned, SCI conclude that the petitioned action may FOR FURTHER INFORMATION CONTACT). be warranted. requests delisting of the ‘‘U.S. captive Author populations’’ of the three antelope Finding The primary authors of this notice are species based on the assertion that the We find that the two petitions contain Service committed ‘‘errors’’ in the the staff of the Branch of Foreign substantial information that the FOR FURTHER INFORMATION interpretation of the best scientific and Species (see petitioned action may be warranted. It is CONTACT). commercial data available at the time of important to note that the ‘‘substantial the 2005 determination to list the information’’ standard for a 90-day Authority scimitar-horned oryx, dama gazelle, and finding is in contrast to the Act’s ‘‘best The authority for this action is the addax as endangered in their entirety. scientific and commercial data’’ Endangered Species Act of 1973, as SCI also requests that we ‘‘correct the standard that applies to a 12-month amended (16 U.S.C. 1531 et seq.). Endangered Species Act listing of finding as to whether a petitioned action Dated: September 12, 2012. scimitar-horned oryx, dama gazelle, and is warranted. A 90-day finding is not a addax to specify that only the status assessment of the species and Daniel M. Ashe, populations in the portion of their range does not constitute a status review Director, U.S. Fish and Wildlife Service. outside of the United States are under the Act. Our final determination [FR Doc. 2012–23019 Filed 9–18–12; 8:45 am] classified as endangered.’’ EWA as to whether a petitioned action is BILLING CODE 4310–55–P requests delisting of the U.S. captive- warranted is not made until we have bred populations of the three antelope completed a thorough status review of species on the basis that the Service’s the captive antelopes covered by these DEPARTMENT OF COMMERCE interpretation of the original data for the petitions, which is conducted following listings was also in error, and in a 90-day finding that a petition presents National Oceanic and Atmospheric addition asserts that captive-bred substantial scientific or commercial Administration animals of the three species that are information indicating that the held in the United States are recovered. petitioned action may be warranted 50 CFR Part 600 Essentially, both petitioners request (‘‘substantial 90-day finding’’). Because [Docket No. 120425420–2420–01] separate designation, or legal status, the Act’s standards for 90-day and 12- under the Act for captive animals held month findings are different, as RIN 0648–BB92 within the United States from that of described above, a substantial 90-day members of the same taxonomic species finding does not necessarily mean that Fisheries of the United States; National located in the wild or held in captivity the 12-month finding will conclude that Standard 1 Guidelines; Reopening of elsewhere around the world. the Service has the discretion to treat Public Comment Period The Service completed its listing such specimens differently, or that the determination for the three antelope petitioned action is warranted. It does, AGENCY: National Marine Fisheries species in 2005. In that rulemaking however, mean that the Service will be Service (NMFS), National Oceanic and process, the Service found that a able to consider this question in more Atmospheric Administration (NOAA), differentiation in the listing status of depth and detail. In addition, the Commerce. captive U.S. specimens of these Service will be able to consider the ACTION: Advance notice of proposed antelopes was not appropriate (70 FR question of the appropriate status of rulemaking; reopening of public 52319). While the Service does not have U.S. captive members of the three comment period. an absolute policy or practice with antelope species at the same time as it SUMMARY: NMFS is reopening the respect to whether it can differentiate considers the status of captive comment period on the Advance Notice the listing status of captive and wild chimpanzees in completing a separate of Proposed Rulemaking (ANPR) specimens of the same species, we 12-month finding on a petition to published on May 3, 2012, on potential generally have included wild and eliminate the separate ESA adjustments to the National Standard 1 captive animals together when listing classification of captive and wild Guidelines, one of 10 national standards species. Nevertheless, petitioners assert chimpanzees. The substantial 90-day for fishery conservation and that the treatment by the Service of finding on the chimpanzee petition was management contained in Section 301 chimpanzees in 1992 warrants similar published September 1, 2011 (76 FR of the Magnuson-Stevens Fishery treatment now for these antelope 54423), and a document to reopen the Conservation and Management Act. The species. In that 1992 rulemaking, the comment period was published current comment period is scheduled to Service uplisted chimpanzees in the November 1, 2011 (76 FR 67401). wild to endangered, while retaining the With this substantial 90-day finding, end on September 15, 2012. Because of prior status of threatened for those in we are initiating a rangewide status the importance of NS1 to U.S. fishery captivity. That 1992 action preceded the review of the captive antelopes covered management and the complexity of the adoption by the Service and the by the petitions, and, once it is issues, NMFS feels reopening the National Marine Fisheries Service of the completed, we will make a finding on comment period will provide for a fuller Distinct Population Segment (DPS) whether delisting the U.S. captive range of public input on the NS1 Policy (61 FR 4722, February 7, 1996) specimens of any of these species is Guideline issues. The comment period and case law that has developed under warranted. This finding fulfills any will close on October 12, 2012. the DPS Policy, such as the decision in obligation under 16 U.S.C. 1533(b)(3)(A) DATES: The comment period for the Alsea Valley v. Evans (161F. Supp. 2d and the regulations at 50 CFR 424.14(b). ANPR was published on May 3, 2012 1154 (D.OR)). Nonetheless, because the (77 FR 26238), and closed on September Service has no absolute policy or References Cited 15, 2012. The comment period will practice as to whether it can A complete list of references cited is reopen on September 16, 2012, and differentiate the listing status of wild available on the Internet at http:// remain open through October 12, 2012.

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ADDRESSES: You may submit comments generally be posted for public viewing could improve provisions of the on the referenced ANPR, identified by on www.regulations.gov without change. National Standard 1 Guidelines. ‘‘NOAA–NMFS–2012–0059’’, by any All personal identifying information The comment period on the ANPR one of the following methods: (e.g., name, address, etc.) submitted was originally scheduled to close on • Electronic Submissions: Submit all voluntarily by the sender will be August 1, 2012. NMFS received a electronic public comments via the publicly accessible. Do not submit request from the Western Pacific Federal eRulemaking Portal: confidential business information or Regional Fishery Management Council www.regulations.gov. To submit otherwise sensitive or protected on behalf of all eight regional councils, comments via the e-Rulemaking Portal, information. NMFS will accept to extend the comment period on the first click the ‘‘submit a comment’’ icon, anonymous comments (enter ‘‘N/A’’ in ANPR to September 15, 2012. On July then enter ‘‘NOAA–NMFS–2012–0059’’ the required fields if you wish to remain 3, 2012, NMFS published a Federal in the keyword search. Locate the anonymous). Attachments to electronic Register notice extending the comment document you wish to comment on comments will be accepted in Microsoft period to September 15, 2012 (77 FR from the resulting list and click on the Word or Excel, WordPerfect, or Adobe 39459). Because of the importance of ‘‘Submit a Comment’’ icon on the right PDF file formats only. NS1 to U.S. fishery management and the of that line. FOR FURTHER INFORMATION CONTACT: complexity of the issues, NMFS feels • Fax: 301–713–1193, Attn: Wesley Wesley Patrick, Fisheries Policy reopening the comment period will Patrick. Analyst, National Marine Fisheries provide for a fuller range of public input • Mail: Wesley Patrick; National Service, 301–427–8566. on the NS1 Guideline issues. NMFS is Marine Fisheries Service, NOAA; 1315 SUPPLEMENTARY INFORMATION: reopening the comment period and East-West Highway, Room 13436; Silver Background establishing a comment period end date Spring, MD 20910. of October 12, 2012. Instructions: Comments must be On May 3, 2012, NMFS published an submitted by one of the above methods ANPR (77 FR 26238) to provide Authority: 16 U.S.C. 1801 et seq. to ensure that the comments are background information and to request Dated: September 14, 2012. received, documented, and considered public comment on potential Alan D. Risenhoover, by NMFS. Comments sent by any other adjustments to the National Standard 1 Director, Office of Sustainable Fisheries, method, to another address or Guidelines. The ANPR provides the performing the functions and duties of the individual, or received after the end of public with a formal opportunity to Deputy Assistant Administrator for the comment period, may not be comment on the specific ideas Regulatory Programs. considered. All comments received are mentioned in the ANPR, as well as any [FR Doc. 2012–23151 Filed 9–14–12; 4:15 pm] part of the public record and will additional ideas and solutions that BILLING CODE 3510–22–P

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Notices Federal Register Vol. 77, No. 182

Wednesday, September 19, 2012

This section of the FEDERAL REGISTER the collection of information unless it Animal and Plant Health Inspection contains documents other than rules or displays a currently valid OMB control Service (APHIS) fruits and vegetables proposed rules that are applicable to the number. regulations allows the importation of public. Notices of hearings and investigations, shelled garden peas from Kenya into the Animal & Plant Health Inspection committee meetings, agency decisions and continental United States while rulings, delegations of authority, filing of Service petitions and applications and agency continuing to protect against the statements of organization and functions are Title: Importation of Live Poultry, introduction of quarantined peas. examples of documents appearing in this Poultry Meat, and Other Poultry Need and Use of the Information: section. Products from Specified Regions. APHIS requires that some plants or OMB Control Number: 0579–0228. plant products be accompanied by a Summary of Collection: The Animal phytosanitary inspection certificate that DEPARTMENT OF AGRICULTURE Health Protection Act (AHPA) of 2002 is is completed by plant health officials in the primary Federal law governing the the originating or transiting country. Submission for OMB Review; protection of animal health. Veterinary APHIS uses the information on the Comment Request Services of the USDA’s Animal and certificate to determine the pest Plant Health Inspection Service (APHIS) September 13, 2012. condition of the shipment at the time of is responsible for administering The Department of Agriculture has inspection in the foreign country. This regulations intended to prevent the submitted the following information information is used as a guide to the introduction of animal diseases into the collection requirement(s) to OMB for intensity of the inspection APHIS United States. The regulations in 9 CFR review and clearance under the conducts when the shipment arrives. Part 94 allow the importation of poultry Paperwork Reduction Act of 1995, Without the information, all shipments meat and products and live poultry from Public Law 104–13. Comments would need to be inspected very regarding (a) whether the collection of Argentina and the Mexican States of thoroughly, thereby requiring information is necessary for the proper Campeche, Quintana Roo, and Yucatan considerably more time. This would performance of the functions of the under certain conditions. APHIS will slow the clearance of international agency, including whether the collect information through the use of a shipments. information will have practical utility; health certification statement that must Description of Respondents: Federal (b) the accuracy of the agency’s estimate be completed by Mexican veterinary Government. of burden including the validity of the authorities prior to export and three Number of Respondents: 1. methodology and assumptions used; (c) APHIS forms VS 17–129, VS 17–29, and Frequency of Responses: Reporting: ways to enhance the quality, utility and VS 17–30. On occasion. clarity of the information to be Need and Use of the Information: The Total Burden Hours: 1. collected; (d) ways to minimize the information collected from the health Title: Importation of Wooden burden of the collection of information certificate and forms will provide Handicrafts from China. on those who are to respond, including APHIS with critical information OMB Control Number: 0579–0357. through the use of appropriate concerning the origin and history of the Summary of Collection: Under the automated, electronic, mechanical, or items destined for importation in the Plant Protection Act (7 U.S.C. 7701 et other technological collection United States. Without the information seq.), the Secretary of Agriculture is techniques or other forms of information APHIS would be unable to establish an authorized to carry out operations or technology should be addressed to: Desk effective defense against the incursion measures to detect, eradicate, suppress, Officer for Agriculture, Office of of HPAI and END from poultry and control, prevent, or retard the spread of Information and Regulatory Affairs, poultry products imported from plant pests new to the United States or Office of Management and Budget Argentina and certain Mexican States. not known to be widely distributed (OMB), Description of Respondents: Federal throughout the United States. APHIS’ [email protected] or Government; Business or other for- regulations provide for the importation fax (202) 395–5806 and to Departmental profit. of wooden handicrafts from China Clearance Office, USDA, OCIO, Mail Number of Respondents: 21. under certain conditions. Trade in these Stop 7602, Washington, DC 20250– Frequency of Responses: Reporting: handicrafts has resumed while 7602. Comments regarding these On occasion. continuing to protect the United States information collections are best assured Total Burden Hours: 212. against the introduction of plant pests. of having their full effect if received Title: Importation of Shelled Peas Need and Use of the Information: within 30 days of this notification. from Kenya. APHIS requires that all wooden Copies of the submission(s) may be OMB Control Number: 0579–0302. handicrafts must be labeled with a obtained by calling (202) 720–8958. Summary of Collection: Under the merchandise tag containing the identity An agency may not conduct or Plant Protection Act (7 U.S.C. 7701 et the product manufacturer. The sponsor a collection of information seq.), the Secretary of Agriculture is identification tag serves as means for unless the collection of information authorized to carry out operations or APHIS to track shipments should a displays a currently valid OMB control measures to detect, eradicate, suppress, recall be required. Failure to collect this number and the agency informs control, prevent, or retard the spread of information would cause foreign potential persons who are to respond to plant pests new to the United States or countries to refuse any shipments from the collection of information that such not known to be widely distributed the United States that contained persons are not required to respond to throughout the United States. The wooden handcrafts.

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Description of Respondents: Business ways to enhance the quality, utility and Option in non-participating but eligible or other for-profit. clarity of the information to be LEAs and schools; To describe the LEAs Number of Respondents: 140. collected; (d) ways to minimize the and schools participating in the CE Frequency of Responses: Reporting: burden of the collection of information Option; To examine the impacts of the On occasion. on those who are to respond, including CE Option on (1) Program integrity, (2) Total Burden Hours: 630. through the use of appropriate availability of School Breakfast program, Title: Importation of Papaya from automated, electronic, mechanical, or (3) nutritional quality of meals, (4) Colombia and Ecuador. other technological collection program participation by students, (5) OMB Control Number: 0579–0358. techniques or other forms of information program administration, (6) foodservice Summary of Collection: Under the technology should be addressed to: Desk revenues and costs; and To provide Plant Protection Act (7 U.S.C. 7701 et Officer for Agriculture, Office of input to FNS deliberations about the key seq.), the Secretary of Agriculture is Information and Regulatory Affairs, parameters for the CE Option: The authorized to carry out operations or Office of Management and Budget multiplier for determining the measures to detect, eradicate, suppress, (OMB), percentage of meals reimbursed at the _ control, prevent, or retard the spread of OIRA [email protected] or free rate and the threshold value of the plant pests new to the United States or fax (202) 395–5806 and to Departmental ISP for determining eligibility to not known to be widely distributed Clearance Office, USDA, OCIO, Mail implement the option. throughout the United States. The Stop 7602, Washington, DC 20250– Description of Respondents: State, Animal and Plant Health Inspection 7602. Comments regarding these Local or Tribal Government; Not-for- Service (APHIS) amended the information collections are best assured profit institutions. regulations to allow, under certain of having their full effect if received Number of Respondents: 3,574. condition, the importation of within 30 days of this notification. Frequency of Responses: Reporting: commercial shipments of fresh papaya Copies of the submission(s) may be Annually. from Colombia and Ecuador in the obtained by calling (202) 720–8958. Total Burden Hours: 2,383. An agency may not conduct or continental United States. sponsor a collection of information Ruth Brown, Need and Use of the Information: unless the collection of information Departmental Information Collection APHIS requires that all consignments of displays a currently valid OMB control Clearance Officer. papaya from Colombia and Ecuador number and the agency informs [FR Doc. 2012–23016 Filed 9–18–12; 8:45 am] would have to be accompanied by a potential persons who are to respond to BILLING CODE 3410–P phytosanitary certificate by the National the collection of information that such Plant Protection Organization of the persons are not required to respond to exporting country stating that the the collection of information unless it DEPARTMENT OF AGRICULTURE papayas were grown, packed, and displays a currently valid OMB control shipped in accordance with the Food Safety and Inspection Service number. proposed requirements. [Docket No. FSIS–2012–0024] Description of Respondents: Federal Food and Nutrition Service Government. Title: Community Eligibility Option Availability of FSIS Salmonella Number of Respondents: 3. Evaluation. Compliance Guidelines for Small and Frequency of Responses: Reporting: OMB Control Number: 0584–NEW. Very Small Meat and Poultry On occasion. Summary of Collection: Section 104(a) Establishments That Produce Ready- Total Burden Hours: 151. of the Healthy, Hunger Free Kids Act of to-Eat Products Ruth Brown, 2010 provides the Community Eligibility Option (the CE Option) for AGENCY: Food Safety and Inspection Departmental Information Collection Service, USDA. Clearance Officer. Local Educational Authorities (LEAs) and schools, as an alternative to ACTION: Notice of availability. [FR Doc. 2012–23000 Filed 9–18–12; 8:45 am] household applications for Free or BILLING CODE 3410–34–P SUMMARY: The Food Safety and Reduced Price meals. Under the CE Inspection Service (FSIS) is announcing Option, families are not required to the availability of a revised compliance DEPARTMENT OF AGRICULTURE submit application for free or reduced- guide for small and very small meat and price meals, and schools are required to poultry establishments on the safe Submission for OMB Review; provide free meals to all students. The production of ready-to-eat (RTE) meat Comment Request potential benefits are that more students and poultry products with respect to participate, meals are more nutritious, September 13, 2012. Salmonella and other pathogens. FSIS and LEAs may experience reductions in has posted this compliance guide on its The Department of Agriculture has administrative burden and errors. In Significant Guidance Documents Web submitted the following information order to understand how the CE Option page (http://www.fsis.usda.gov/ collection requirement(s) to OMB for is implemented, incentives and barriers Significant_Guidance/index.asp). FSIS review and clearance under the for LEAs and schools, as well as the encourages small and very small meat Paperwork Reduction Act of 1995, impacts on LEAs, schools and children, and poultry establishments that Public Law 104–13. Comments Congress has mandated that the Food manufacture these products to avail regarding (a) whether the collection of and Nutrition Service (FNS) conduct an themselves of this guidance document. information is necessary for the proper evaluation of the CE Option. performance of the functions of the Need and Use of the Information: FNS DATES: Effective date: September 19, agency, including whether the will collection information from the 2012. information will have practical utility; study: To estimate the number of ADDRESSES: A downloadable version of (b) the accuracy of the agency’s estimate eligible LEAs and schools that do not the revised compliance guide is of burden including the validity of the choose the CE Options; To assess the available to view and print at http:// methodology and assumptions used; (c) barriers to participation in the CE www.fsis.usda.gov/

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Significant_Guidance/index.asp). No guidelines focused on small and very C. Demonstrating Adequate Support hard copies of the compliance guide small establishments. Comment: One commenter stated that have been published. According to one commenter, small although many of the items in the RTE FOR FURTHER INFORMATION CONTACT: and very small meat processors in the Salmonella Compliance Guidelines are U.S. represent 5 percent of the total Kristina Barlow, U.S. Department of especially useful to industry, a 5-log10 Agriculture, Food Safety and Inspection meat production volume, but 95 percent reduction of Salmonella in finished Service, 1400 Independence Avenue of the total meat processing businesses product will be hard to demonstrate for SW., Mailstop 3782, Washington, DC in the U.S. This commenter suggested a plethora of products, including low- 20250; email: that the guidelines not be limited to temperature fermented products and [email protected]; or phone: small and very small establishments but non-fermented products. The (202) 690–7739. rather should be addressed to the whole commenter said that if small and very industry. small establishments are able to SUPPLEMENTARY INFORMATION: Response: FSIS focused the RTE demonstrate adequate support for using Salmonella Guidelines on small and I. Background a science-based approach, the Agency very small establishments in support of should view the product as In April, 2011, FSIS announced the the Small Business Administration’s scientifically safe and wholesome, availability of a compliance guideline initiative to provide small and very regardless of whether the 5-log for small and very small meat and small establishments with compliance 10 reduction is achieved. The commenter poultry establishments on the safe assistance. It is important that small and encouraged FSIS, in consultation with production of RTE products (76 FR very small establishments have access to ARS, to develop more resources, along 22667). FSIS also solicited comments on a full range of scientific and technical the lines of safe harbors, for small and the guidance at that time. In response to support, and the assistance needed to very small establishments to use as comments received, FSIS has updated establish safe and effective HACCP support for the processing of non-heat the guidance document to provide more systems. Although large establishments options for achieving lethality in RTE treated RTE products. can benefit from the guidance that FSIS Response: FSIS recognizes that a 5- meat and poultry products and to clarify provides, focusing the guidance on the issues. FSIS has also added an appendix log10 reduction of Salmonella in needs of small and very small finished product may be hard to to the document. establishments provides them with The ‘‘FSIS Salmonella Compliance demonstrate for some products. To information that may be otherwise address this difficulty, the guidance Guidelines for Small and Very Small unavailable to them. Meat and Poultry Establishments that provides establishments with alternative Produce Ready-to-Eat Products’’ B. Request for Clarification on lethality approaches within the provides meat and poultry Alternative Processing Options guidelines, including utilizing good manufacturing practices and incoming establishments that manufacture RTE Comment: One commenter stated that, product testing to support the safety of meat and poultry products with in reality, most meat processors lack the lower levels of lethality. In addition, information on regulatory requirements technology to address or monitor FSIS intends to develop further associated with the safe production of specific aspects of Appendix A (64 FR guidance that establishments can use to these products particularly with respect 732; Jan. 6, 1999, at 746) and believes achieve lethality in specific RTE meat to Salmonella and other pathogens. This that the guidance document fails to and poultry products. document also provides information adequately present alternative about the processing and safe handling processing options. USDA Nondiscrimination Statement of RTE products after the lethality step, This commenter requested The U.S. Department of Agriculture so that they are not contaminated with clarification about FSIS’s expectations (USDA) prohibits discrimination in all pathogens such as Salmonella or related to the application of the its programs and activities on the basis Listeria monocytogenes (Lm). Though parameters outlined in Appendix A of race, color, national origin, gender, Agency guidance documents are (specifically, relative humidity and religion, age, disability, political beliefs, recommendations rather than regulatory dwell time) to all RTE products—not sexual orientation, and marital or family requirements and are revised as new just cooked, roasted, and corned beef status. (Not all prohibited bases apply to information becomes available, FSIS products. all programs.) Persons with disabilities encourages meat and poultry In addition, both commenters strongly who require alternative means for establishments to follow this guidance. encouraged FSIS to fund research that communication of program information would update existing Agency resources II. Comments and Responses (Braille, large print, audiotape, etc.) to reflect modern processing practices. should contact USDA’s Target Center at FSIS received two comment letters in Response: Although this comment is 202–720–2600 (voice and TTY). response to the Salmonella Compliance outside the scope of this guidance To file a written complaint of Guidelines for Small and Very Small document, FSIS plans to revise discrimination, write USDA, Office of Meat and Poultry Establishments that Appendices A and B (64 FR 732; Jan. 6, the Assistant Secretary for Civil Rights, Produce RTE Products (RTE Salmonella 1999, at 748) as part of its efforts to 1400 Independence Avenue SW., guidelines). Both letters were from revise guidance materials for RTE Washington, DC 20250–9410 or call national trade associations representing products. The Agency plans to provide 202–720–5964 (voice and TTY). USDA the interests of primarily small and very clarification of its expectations with is an equal opportunity provider and small meat packers and processors. respect to dwell time and humidity as employer. Following is a discussion of these part of this revision. FSIS has also comments and FSIS’s responses. recently issued ‘‘FSIS Compliance Additional Public Notification Guideline for Meat and Poultry Jerky FSIS will announce this notice online A. Agency Focus on Small and Very Products by Small and Very Small through the FSIS Web page located at Small Establishments Establishments,’’ which provides more http://www.fsis.usda.gov/ Comment: Both commenters flexible options for achieving humidity regulations_&_policies/ questioned why the RTE Salmonella in RTE products. Federal_Register_Notices/index.asp.

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FSIS will also make copies of this protocol for N–60 sampling of beef ground beef, E. coli O157:H7 adulterated Federal Register publication available manufacturing trimmings for E. coli all non-intact raw beef product and through the FSIS Constituent Update, O157:H7. This notice also announces intact raw beef product intended for use which is used to provide information changes that FSIS has made to its beef in raw, non-intact beef product (64 FR regarding FSIS policies, procedures, manufacturing trimmings program to 2803; Jan. 19, 1999). regulations, Federal Register notices, increase both the collection rate and the Starting in 2007, FSIS began testing FSIS public meetings, and other types of likelihood that FSIS will find positive beef manufacturing trimmings and other information that could affect or would samples. Finally, this notice raw ground beef components (raw be of interest to constituents and summarizes a 2012 OIG report and the esophagus (weasand) meat, head meat, stakeholders. The Update is actions that FSIS has taken to address cheek meat, beef from advanced meat communicated via Listserv, a free the recommendations in that report. recovery systems, low temperature electronic mail subscription service for DATES: Comments on this notice must be rendered lean finely textured beef, industry, trade groups, consumer submitted on or before November 19, partially defatted chopped beef, interest groups, health professionals, 2012. partially defatted beef fatty tissue, and and other individuals who have asked heart meat) for E. coli O157:H7 at the ADDRESSES: FSIS invites interested to be included. The Update is also originating slaughter establishment. persons to submit comments on this available on the FSIS Web page. In FSIS also began verifying that grinders, notice. Comments may be submitted by addition, FSIS offers an electronic mail fabricators, and supplying slaughter either of the following methods: establishments had effective controls for subscription service which provides • Federal eRulemaking Portal: This E. coli O157:H7. automatic and customized access to Web site provides the ability to type FSIS sampled beef manufacturing selected food safety news and short comments directly into the information. This service is available at trimmings under a simple random comment field on the Web page or sampling plan in which each slaughter http://www.fsis.usda.gov/ attach a file for lengthier comments. Go News_&_Events/Email_Subscription/. establishment had an equal chance of to http://www.regulations.gov. Follow being scheduled for sampling, Options range from recalls to export the online instructions at that site for information to regulations, directives, regardless of production volume or submitting comments. previous history. FSIS collects and notices. • Mail, including floppy disks or CD– Customers can add or delete approximately 1,300 samples per year. ROMs, and hand- or courier-delivered subscriptions themselves, and have the From calendar year 2007 through June items: Send to Docket Clerk, U.S. option to password protect their 2011, FSIS found an average of about Department of Agriculture (USDA), accounts. seven E. coli positives per year, FSIS, OPPD, RIMD, Docket Clearance Done at Washington, DC, on: September resulting in an average E. coli-positive Unit, Patriots Plaza III, 1400 rate of about 0.60% in beef 13, 2012. Independence Avenue SW., 8–163A, Alfred V. Almanza, manufacturing trimmings during this Mailstop 3287, Washington, DC 20024– period. Each slaughter establishment Administrator. 3221. producing beef manufacturing [FR Doc. 2012–23080 Filed 9–18–12; 8:45 am] Instructions: All items submitted by trimmings was sampled about 3.5 times BILLING CODE 3410–DM–P mail or electronic mail must include the per year. Agency name and docket number FSIS– Inspection personnel collect beef 2012–0020. Comments received in trimmings samples for testing using N– DEPARTMENT OF AGRICULTURE response to this docket will be made 60 procedures. Under these procedures, available for public inspection and Food Safety and Inspection Service inspection personnel collect 60 slices of posted without change, including any beef manufacturing trimmings cut to a [Docket No. FSIS–2012–0020] personal information, to http:// specific size and also collect an www.regulations.gov. additional, separate ‘‘grab sample’’ of Risk-Based Sampling of Beef Docket: For access to background smaller pieces of trim from the same Manufacturing Trimmings for documents or comments received, go to production lot. FSIS laboratories use the Escherichia coli (E. coli) O157:H7 and the FSIS Docket Room at the address 60 slices for the first part of the analysis Plans for Beef Baseline listed above between 8:30 a.m. and 4:30 for E. coli O157:H7. If the 60 slices are p.m., Monday through Friday. AGENCY: Food Safety and Inspection confirmed positive, laboratory Service (FSIS), U.S. Department of FOR FURTHER INFORMATION CONTACT: personnel do quantitative (most Agriculture (USDA). Rachel Edelstein, Acting Assistant probable number or MPN) analysis on Administrator for the Office of Policy 1 ACTION: Notice; Request for comments. the ‘‘grab’’ sample. and Program Development, FSIS, USDA, When an FSIS beef manufacturing SUMMARY: FSIS is announcing its Room 351–E, Jamie Whitten Building, trimming sample tests positive, FSIS intention to redesign its E. coli O157:H7 14th and Independence Avenue SW., takes a number of steps including: verification testing program for beef Washington, DC 20250–3700; telephone Collecting follow-up samples at the manufacturing trimmings to make the (202) 720–0399, fax (202) 720–2025; establishment where the positive program more risk-based and to enable [email protected]. sample was found; documenting the Agency to calculate on-going SUPPLEMENTARY INFORMATION: production of adulterated product in a statistical prevalence estimates for E. noncompliance record when coli O157:H7 in raw beef manufacturing Background appropriate; conducting a food safety trimmings. This notice also discusses In 1994, FSIS determined that E. coli assessment (FSA) (a comprehensive FSIS’s plans to perform a beef carcass O157:H7 adulterates raw ground beef review of the establishment’s food safety baseline. FSIS seeks public comment on product within the meaning of the its plans, which have been developed in Federal Meat Inspection Act (FMIA) (21 1 FSIS’s E. coli O157:H7 test results are reported response to a 2011 audit by the U.S. U.S.C. 601(m)(1)). FSIS began testing on the Agency’s Web site at: http:// www.fsis.usda.gov/Science/ Department of Agriculture’s Office of ground beef for E. coli O157:H7 in 1994. Ecoli_Raw_Beef_Testing_Data_YTD/index.asp Inspector General (OIG) of FSIS’s In 1999, FSIS determined that, besides (accessed June 20, 2012).

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system); and verifying that the that they are consistent with the compliance guidance, FSIS will also use establishment accurately executed all sampling designs for ground beef and the baseline survey results to make steps in its Hazard Analysis and Critical beef manufacturing trimmings. Should changes to its sampling, testing, and Control Point (HACCP) plan for the Agency adopt and implement these other verification activities. production of trim and implemented changes, it will endeavor to generate In response to OIG recommendation appropriate corrective actions. statistical prevalence estimates in #2, FSIS decided to revise the N–60 ground beef and beef manufacturing program to provide for more frequent OIG Audit trimmings. Prevalence estimation in sampling at establishments that the OIG audited the efficacy of FSIS bench trim and other components may Agency determines have problems testing for E. coli O157:H7 in beef not be possible because of limited controlling E. coli O157:H7 in beef manufacturing trimmings in 2010 and sampling resources and data concerns. manufacturing trimmings. In changing reported the audit results in February In 2013, FSIS intends to initiate a beef the N–60 program, FSIS considered 2011.2 On the basis of its audit, OIG carcass baseline survey to determine the sanitary dressing verification data, recommended that FSIS: presence and levels of the pathogenic E. product traceback activities, and other (1) Develop a plan to perform baseline coli, including O157:H7 and the six inspection and data collection activities. studies of beef manufacturing trimmings non-O157 Shiga toxin-producing E. coli The paper discussing this analysis is and ground beef to determine the (STEC) most commonly associated with posted with this notice as a related estimated prevalence rate of E. coli illness in the United States; Salmonella document at (http://www.fsis.usda.gov/ O157:H7 for the purpose of redesigning species; and certain indicator PDF/Redesign_Beef_Trim_Sampling_ FSIS’s verification testing program. The organisms. As the Agency does with Methodology.pdf). In the analysis, FSIS report also recommended that the plan other baseline studies, FSIS will make examined E. coli O157:H7 test results as prescribe how often that initial the study design and sampling plans a function of beef manufacturing prevalence estimate should be available on its Web site and will solicit trimmings volume class from calendar reassessed. comments on the study design and year 2007 through June 2011. (2) Re-evaluate sample parameters sampling plans before carrying out the Establishments that produce beef (size and confidence level) to provide a study. In this survey, FSIS plans to manufacturing trimmings are grouped in higher confidence level for FSIS’ ability collect samples from beef carcasses four volume classes: Very small, to detect contaminated product and to immediately after de-hiding and before producing less than 1001 pounds per more effectively verify process controls evisceration in order to identify the type day; small, 1001 to 50,000 pounds per at beef slaughter establishments. and level of contamination before day; medium, 50,001 to 250,000 pounds (3) Document the scientific support antimicrobial interventions are applied per day; and large, more than 250,000 and rationale for the revised verification to the carcass. FSIS may also collect pounds per day. FSIS found that the testing program design, including the samples from carcasses slaughtered that large-volume establishment class (total contamination level that will be same day, pre- and post-chill. volume CY 2007–2011: 13,500,000,000 associated with the new sample As the Agency has done with pounds) has the lowest E. coli O157:H7 parameters, and how the estimated previous baseline surveys, FSIS will percent positive, while the small- prevalence rate has informed the report the results of this survey on its volume class (total volume CY 2007– redesigned verification testing program. Web site and incorporate them into 2011: 1,268,625,000 pounds) has the Publish in the Federal Register FSIS’s compliance guidance for industry to use highest E. coli O157:H7 percent revised beef testing verification program in assessing individual establishment positive. The analysis found that and solicit public comment. performance against the national sampling in the small volume class is (4) Focus E. coli O157:H7 sampling performance. Controls to reduce the risk twice as likely to yield an E. coli and testing resources at establishments of enteric pathogen contamination at O157:H7-positive result as sampling in that are likely to be of higher risk, and slaughter are crucial. Under 9 CFR large volume establishments. FSIS consider the use of specialized sample 310.18(a), establishments must handle found that sampling volume classes in collection teams. beef carcasses, organs, and other parts in proportion to the percent positive in the In response to the first a sanitary manner to prevent volume class is approximately 2 times recommendation, FSIS plans to make contamination with fecal material, as likely to yield an E. coli O157:H7- changes in its E. coli O157:H7 urine, bile, hair, dirt, or foreign matter. positive test result as is sampling under verification testing programs for beef Because these sources of contamination, the simple random sampling program. manufacturing trimmings and ground whether visible or not, may contain FSIS also found that the percent- beef to calculate prevalence of the pathogens, a principal objective of positive rate in the high-prevalence pathogen in these products. FSIS proper sanitary dressing and process season (now considered to be May conducted an evaluation of the Agency’s control procedures is to reduce the through October, rather than April current sampling programs to determine potential for exposure of carcasses and through September, on the basis of FSIS whether they provide sufficient data to parts to any contamination or food data) is about 2 times as high as it is the calculate prevalence estimates for safety hazard during the removal of the rest of the year. Accordingly, the pathogens in FSIS regulated product: hide, feet, head, gastrointestinal tract, analysis concluded that increasing the http://www.fsis.usda.gov/PDF/ and other internal organs. If sampling of beef manufacturing Prevalence_Estimates_Report.pdf. FSIS establishments implement effective trimmings during May through October is also considering implementing controls during sanitary dressing should increase the probability of similar sampling designs in its programs procedures, it is likely that it will detecting E. coli O157:H7 positives. for bench trim and other components, so prevent or reduce contamination FSIS determined that there are about significantly. This survey will be 480 slaughter establishments in the beef 2 U.S. Department of Agriculture, Office of important to the Agency in assessing the manufacturing trimmings sampling Inspector General. February 2011. FSIS Sampling prevalence of the load of pathogens and frame that are eligible for sampling. Protocol for Testing Beef Trim for E. coli O157:H7. Audit Report 24601–9–KC. Washington, DC. See certain indicator organisms on carcasses FSIS selects between 200 and 250 this report at: http://www.usda.gov/oig/webdocs/ throughout the slaughter process. In establishments from the frame every 24601-9-KC.pdf (accessed June 20, 2012). addition to informing the future Agency month for sampling. Annually, FSIS

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distributes approximately 2,600 sample program, however, may increase the OIG recommended that FSIS re- forms to its personnel. However, in FY number of follow-up samples collected evaluate sample parameters (size and 2010, only 1,274 samples were as a consequence of finding more E. coli confidence level). Sample size successfully collected, a response rate of O157:H7-positive samples. FSIS is also calculations were not performed as part about 49 percent. One reason a sample considering changes to its sampling of the statistical assessment in order to request may not result in successful programs for bench trim and other raw stay resource neutral. FSIS intends to sample collection is that a sample may ground beef components. The changes evaluate the allocation of sampling be taken but discarded because of, for are likely to be similar to those resources within the E. coli O157:H7 example, late sample delivery to the discussed above in its beef sampling program to estimate laboratory or container leakage. manufacturing trimmings program. prevalence. Additionally, if establishments were not In its response to OIG, FSIS suggested Additionally, FSIS intends to better producing the product during the 30- that sanitary dressing noncompliances identify establishments likely to have day sample-collection period, FSIS field may be related to E. coli O157:H7- problems with E. coli O157:H7 through personnel were not able to collect the positive results in beef trim because analysis of data collected through sample. To address the low collection carcass contamination is the primary sanitary dressing verification, new rate that results when establishments cause of ground beef component product traceback activities, Public are not producing the product at the adulteration with the pathogen. FSIS Health Information System (PHIS) data time of sample collection, FSIS reviewed and evaluated the sanitary (including any relevant data available increased its sample collection window dressing procedure noncompliance through the Hazard Analysis from 30 days to 60 days and has records for slaughter establishments that Verification procedure and overscheduled sampling to adjust for produce beef manufacturing trimmings establishment profile), and other non-response. The goal of these changes found to have tested positive. The inspection and data collection activities. is to ensure that all 2,600 samples are Agency concluded that it did not appear Because E. coli O157:H7 and the other collected. that the rate of sanitary dressing STECs are enteric pathogens, analysis of Based upon the results of its analysis, FSIS sanitary dressing verification data FSIS has already redesigned its E. coli procedure noncompliances could be used to identify establishments that may help the Agency to identify O157:H7 testing program for beef establishments that should be sampled manufacturing trimmings so that have a higher probability of having an E. coli O157:H7-positive test result. more frequently for the pathogens. PHIS sampling is weighted by production and hazard analysis verification (HAV) volume and volume class-specific risk In November 2011, FSIS revised its procedures will likely allow FSIS to factors. FSIS will ensure that each sanitary dressing verification directive gather more information on slaughter establishment producing beef (FSIS Directive 6410.1) to improve and establishment-specific controls and how manufacturing trimmings is sampled at clarify for FSIS inspectors the effective they are. Again, FSIS hopes to least once per year. FSIS also increased procedures that they are to follow in use this data to identify establishments sampling during the high prevalence verifying sanitary dressing compliance. that should be sampled more frequently season (May through October in the This revision and the expected for these pathogens. United States) by up to 20 percent. improvement in inspector verification of As the Agency announced in the Because of resource constraints, sanitary dressing procedures may result September 11, 2011, notice on non- however, increased sampling during the in a higher correlation between sanitary O157 STEC (76 FR 58157), FSIS is also high-prevalence season will require a dressing noncompliances and E. coli planning to conduct a survey, using its decrease in sampling during the low O157:H7 positives in beef trim. FSIS employees that are assigned to beef prevalence season. intends to perform analyses of slaughter and processing FSIS will take measures to increase verification sampling results to establishments, to gather information on the number of samples that the Agency determine whether the correlations have establishment controls for STECs in successfully collects. As stated above, changed. beef. This survey will be similar to a FSIS has already increased the time As is discussed above, in responding previous ‘‘65–07 Checklist’’ survey.4 during which field personnel may to an Agency E. coli O157:H7-positive The results of the survey will provide collect a sample from 30 days to 60 finding in beef manufacturing FSIS with information regarding days. This increase allows field trimmings, FSIS collects multiple establishment practices that the Agency personnel additional time to collect follow-up samples and conducts may be able to use to further develop samples for testing in establishments verification activities at the originating risk-based sampling in the future. FSIS that infrequently produce slaughter establishment. FSIS intends to plans also to conduct risk analyses, as manufacturing trimmings. FSIS also implement new traceback procedures at appropriate, to determine the relative plans to over-schedule the sampling to beef manufacturing trimming suppliers impact of various establishment factors increase the total number of samples that provided source materials for on the probability of E. coli O157:H7 actually collected. On the basis of the ground product or bench trim (that is, contamination and subsequent illnesses, changes FSIS has made to its N–60 trim derived from beef at an hospitalizations, and deaths. FSIS program to date, FSIS estimates that the establishment other than the originating intends to use the data generated by the probability of obtaining E. coli O157:H7- slaughter establishment) that FSIS finds actions listed above to assess and positive results in beef manufacturing positive.3 When FSIS implements these evaluate its E. coli O157:H7 beef trimmings during FSIS verification new traceback procedures, the Agency manufacturing trimmings sampling testing will increase by a factor of about expects that the data gathered will program and make risk-based changes as 2.5. enable it to better target sampling at appropriate. FSIS does not plan to increase the slaughter establishments. OIG recommended, and FSIS annual statistical sample size but will considered, the use of specialized redistribute the samples on the basis of 3 See the FR notice on traceback (77 FR 26725; an analysis of the Agency’s sampling May 7, 2012) at: http://www.fsis.usda.gov/ 4 Available at http://www.fsis.usda.gov/PDF/ program for beef manufacturing regulations_&_policies/Federal_Register_Notices/ Ecoli_Reassement_&_Checklist.pdf (accessed June trimmings. The changes to the sampling index.asp (accessed June 20, 2012). 20, 2012).

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sample collection teams for collecting OIG also recommended that FSIS re- which is used to provide information N–60 samples in establishments. FSIS evaluate and improve its policies on regarding FSIS policies, procedures, has concluded that the Agency does not inspector collection of trim samples by, regulations, Federal Register notices, have the resources to implement this for example, ensuring that inspectors FSIS public meetings, and other types of recommendation. The use of the randomly select product for sampling, information that could affect or would specialized sample collection teams ensuring that inspectors collect samples be of interest to constituents and would be cost-prohibitive. of proper weight, and ensuring that they stakeholders. The Update is do not take multiple samples from 2012 OIG Audit Report communicated via Listserv, a free single pieces of trim. electronic mail subscription service for In a more recent audit, reported in To ensure that all raw ground beef, industry, trade groups, consumer May 2012, OIG studied the variation of beef manufacturing trimmings, and interest groups, health professionals, the beef industry’s E. coli O157:H7 bench trim samples are the necessary and other individuals who have asked sampling and testing protocols among weight, FSIS recently issued to be included. The Update is also slaughter plants, and how FSIS and the instructions to inspection program available on the FSIS Web page. In beef industry use the test results to personnel on the use of new sample addition, FSIS offers an electronic mail 5 improve food safety. OIG found that collection bags that have fill-lines.6 In subscription service which provides the beef industry was conducting addition, in response to other automatic and customized access to thousands of tests daily and generally recommendations, FSIS will evaluate its selected food safety news and complying with FSIS’s guidance for instructions for sampling and determine information. This service is available at how to perform those tests. what other changes may be needed. http://www.fsis.usda.gov/ OIG made several additional OIG recommended that FSIS improve News_&_Events/Email_Subscription/. recommendations to FSIS, and the communication with industry by Options range from recalls to export Agency has already responded to some issuing guidance to assist information to regulations, directives of them. For example, OIG establishments in selecting laboratories and notices. Customers can add or recommended that FSIS issue guidance according to the laboratories’ testing delete subscriptions themselves, and for industry on sampling and how the capabilities. On March 8, 2012, FSIS have the option to password protect industry might plan for and react to announced the availability of guidance their accounts. high-event periods (HEPs)—when for establishments in the selection of slaughter establishments have a high commercial and private microbiological USDA Nondiscrimination Statement rate of positive test results for E. coli testing laboratories (77 FR 13999). The The U.S. Department of Agriculture O157:H7 or other STEC or virulence guidance includes a checklist for (USDA) prohibits discrimination in all markers in trim samples. industry on the issues to consider and its programs and activities on the basis On May 7, 2012, FSIS announced the also the types of documents that of race, color, national origin, gender, availability of compliance guidance for establishments should maintain to religion, age, disability, political beliefs, establishment sampling and testing for support their testing programs.7 sexual orientation, and marital or family Shiga toxin-producing E. coli (STEC) Establishments can use the guidance status. (Not all prohibited bases apply to organisms or virulence markers (77 FR now. FSIS asked for comments on the all programs.) 26725). This guidance includes criteria guidance and will make any necessary Persons with disabilities who require that establishments can use to changes to it after evaluating the alternative means for communication of determine if they are experiencing an comments. program information (Braille, large HEP. The document explains that OIG further recommended that FSIS print, audiotape, etc.) should contact extensive sampling of trimmings and determine whether to increase sampling USDA’s Target Center at 202–720–2600 careful evaluation of test results can of trim, assess its performance measures (voice and TTY). help establishments identify places in for E. coli O157:H7, clarify current To file a written complaint of their processes where controls are poor, instructions to inspection personnel in discrimination, write USDA, Office of and where they can take corrective its directive on verification of controls the Assistant Secretary for Civil Rights, actions. It recommends that for the pathogen (FSIS Directive 1400 Independence Avenue SW., establishments continually strive to 10,010.1), and assess the quality of Washington, DC 20250–9410 or call reduce the percentage of test results that inspection in Talmadge-Aiken 202–720–5964 (voice and TTY). USDA are positive for E. coli O157:H7 (or establishments. FSIS is evaluating these is an equal opportunity provider and STEC organisms or virulence markers). issues and will respond to these employer. During an HEP, adulteration may be recommendations. more widespread than a positive-testing Done at Washington, DC, on: September lot of product may indicate. By Additional Public Notification 13, 2012. following the guidance and withholding FSIS will announce this notice online Alfred V. Almanza, adulterated product from commerce through the FSIS Web page located at: Administrator. during HEPs, establishments are more http://www.fsis.usda.gov/ [FR Doc. 2012–23078 Filed 9–18–12; 8:45 am] likely to avoid costly recalls. While regulations_&_policies/ BILLING CODE 3410–DM–P establishments can use the guidance Federal_Register_Notices/index.asp. now, FSIS requested comments on it FSIS will also make copies of this and will update it as necessary in Federal Register publication available DEPARTMENT OF AGRICULTURE response to the comments. through the FSIS Constituent Update, Forest Service 5 U.S. Department of Agriculture. Office of 6 The notice is available at: http:// Inspector General. May 2012. Application of FSIS www.fsis.usda.gov/OPPDE/rdad/FSISNotices/35- Central Idaho Resource Advisory Sampling Protocol for Testing Beef Trim for E. coli 12.pdf (accessed June 20, 2012). Committee O157:H7. Audit Report 24601–0001–31. 7 The guidance is available at: http:// Washington, DC This report is posted at: http:// www.fsis.usda.gov/PDF/ AGENCY: Forest Service, USDA. _ _ _ _ www.usda.gov/oig/webdocs/24601-0001-31.pdf Guidance Selecting Micro Testing Lab.pdf ACTION: Notice of meeting. (accessed June 20, 2012). (accessed June 20, 2012).

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SUMMARY: The Central Idaho Resource DEPARTMENT OF AGRICULTURE https://fsplaces.fs.fed.us/fsfiles/unit/wo/ Advisory Committee will meet in secure_rural_schools.nsf. Anyone who Salmon, Idaho. The committee is Forest Service would like to bring related matters to authorized under the Secure Rural the attention of the committee may file White Pine-Nye Resource Advisory Schools and Community Self- written statements with the committee Committee Determination Act (Pub. L. 110–343) staff before or after the meeting. The (the Act) and operates in compliance AGENCY: Forest Service, USDA. agenda will include time for people to make oral statements of three minutes or with the Federal Advisory Committee ACTION: Notice meeting. Act. The purpose of the committee is to less. Individuals wishing to make an improve collaborative relationships and SUMMARY: The White Pine-Nye Resource oral statement should request in writing to provide advice and recommendations Advisory Committee will meet in by October 8, 2012 to be scheduled on to the Forest Service concerning projects Eureka, Nevada. The committee is the agenda. and funding consistent with the title II authorized under the Secure Rural Written comments and requests for of the Act. The meeting is open to the Schools and Community Self- time for oral comments must be sent to public. The purpose of the meeting is to Determination Act (Pub. L. 110–343) Tonopah Ranger District, P.O. Box 3940, review and recommend projects to be (the Act) and operates in compliance Tonopah, Nevada 89049, or by email to [email protected] or via facsimile to funded under Public Law 112–141. with the Federal Advisory Committee Act. The purpose of the committee is to 775–482–3053. DATES: The meeting will be held improve collaborative relationships and Dated: September 12, 2012. September 28, 2012 at 9 a.m. to provide advice and recommendations Jeanne M. Higgins, ADDRESSES: The meeting will be held at to the Forest Service concerning projects Forest Supervisor. and funding consistent with title II of the Public Lands Center, 1206 S. Challis [FR Doc. 2012–23054 Filed 9–18–12; 8:45 am] Street, Salmon, Idaho 83467. the Act. The meetings are open to the public. The purpose of the meeting is to BILLING CODE 3410–11–P All comments, including names and provide updates on projects approved addresses when provided, are placed in for fiscal year 2012. DEPARTMENT OF AGRICULTURE the record and are available for public DATES: The meeting will be held inspection and copying. The public may October 15, 2012, at 9 a.m. Forest Service inspect comments received at Public ADDRESSES: The meeting will be held at Lands Center, 1206 S. Challis Street, Prince of Wales Resource Advisory the Eureka County Annex, 701 S. Main Salmon, Idaho 83467. Please call ahead Committee Street, Eureka, Nevada 89316. Written to 208–756–5100 to facilitate entry into comments may be submitted as the building to view comments. AGENCY: Forest Service, USDA. SUPPLEMENTARY described under ACTION: Notice of meeting. FOR FURTHER INFORMATION CONTACT: INFORMATION. Amy Baumer, Resource Advisory All comments, including names and SUMMARY: The Prince of Wales Resource Committee Coordinator, 208–756–5145 addresses when provided, are placed in Advisory Committee will meet in Craig, (voice) or 208–756–5151 (fax) or email the record and are available for public AK. The committee is authorized under [email protected]. inspection and copying. The public may the Secure Rural Schools and inspect comments received at Tonopah Individuals who use Community Self-Determination Act Ranger District Office, 1400 S. Erie Main (Pub. L. 112–141) (the Act) and operates telecommunication devices for the deaf Street, Tonopah, Nevada. Please call (TDD) may call the Federal Information in compliance with the Federal ahead to 775–482–6286 to facilitate Advisory Committee Act. The purpose Relay Service (FIRS) at 1–800–877–8339 entry into the building to view of the committee is to improve between 8:00 a.m. and 8:00 p.m., comments. collaborative relationships and to Eastern Standard Time, Monday FOR FURTHER INFORMATION CONTACT: provide advice and recommendations to through Friday. Requests for reasonable the Forest Service concerning projects accomodation for access to the facility Steven Williams, RAC Designated Federal Official, Austin Ranger District, and funding consistent with the title II or procedings may be made by of the Act. The meeting is open to the contacting the person listed under FOR 100 Midas Canyon Road, P.O. Box 130, Austin, Nevada 89310, 775–964–2671, public. The purpose of the meeting is to FURTHER INFORMATION. email [email protected]. review and recommend projects SUPPLEMENTARY INFORMATION: The Individuals who use authorized under title II of the Act. following business will be conducted: telecommunication devices for the deaf DATES: The meeting will be held review and recommendation of projects (TDD) may call the Federal Information September 28, 2012 at 10 a.m. to be funded under Public Law 112–141. Relay Service (FIRS) at 1–800–877–8339 ADDRESSES: The meeting will be held at An agenda will be posted at the between 8 a.m. and 8 p.m., Eastern the Craig Ranger District, 504 9th Street, following Web site address in advance Standard Time, Monday through Friday. Craig, Alaska 99921. If you wish to of the meeting date: http:// Requests for reasonable accomodation attend via teleconference please call www.fs.usda.gov/scnf/. A summary of for access to the facility or procedings 907–826–3271 for instructions. the meeting will be posted at http:// may be made by contacting the person Written comments may be submitted www.fs.usda.gov/scnf/within 21 days of listed For Further Information. as described under SUPPLEMENTARY the meeting. SUPPLEMENTARY INFORMATION: The INFORMATION. All comments, including Dated: September 12, 2012. following business will be conducted: names and addresses when provided, Review and approve previous meeting’s are placed in the record and are Stefani Melvin, minutes and business expenses, Review available for public inspection and Acting Forest Supervisor. projects approved and implemented in copying. The public may inspect [FR Doc. 2012–23013 Filed 9–18–12; 8:45 am] fiscal year 2012, and Public Comment. comments received at the Craig Ranger BILLING CODE 3410–11–P More information is available at: District. Please call ahead to 907–826–

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3271 to facilitate entry into the building Environmental Assessment (EA) and to 45 miles of 230 kV electric to view comments. hold public scoping meetings and to transmission line from the existing FOR FURTHER INFORMATION CONTACT: meet its responsibilities under the Douglas 115/230 kV Substation on the Rebecca Sakraida RAC Coordinator at National Environmental Policy Act northwest side of the City of Douglas in 907–826–3271 or by email at (NEPA), the Council on Environmental Coffee County, Georgia, to an existing [email protected]. Quality’s regulations for implementing transmission line corridor north of the Individuals who use NEPA (40 CFR parts 1500–1508), and City of Lakeland in Lanier County, telecommunication devices for the deaf RUS’s Environmental and Policies and Georgia. In general, the project area is (TDD) may call the Federal Information Procedures (7 CFR part 1794) in located in the Coastal Plains of South Relay Service (FIRS) at 1–800–877–8339 connection with potential impacts Georgia, east of Interstate 75 and between 8 a.m. and 8 p.m., Eastern related to a proposal by Georgia northeast of the City of Valdosta. Standard Time, Monday through Friday. Transmission Corporation (GTC). The Proposal activities include acquisition SUPPLEMENTARY INFORMATION: The proposal consists of constructing of a 100 foot easement or right-of-way following business will be conducted: approximately 40 to 45 miles of 230 (ROW) within which the line would be Review of projects submitted for review. kilovolt (kV) transmission line in sited. GTC anticipates using mostly Anyone who would like to bring related portions of Atkinson, Berrien, Clinch, single pole structures. Construction and matters to the attention of the committee Coffee, and Lanier Counties, Georgia. line maintenance activities mostly may file written statements with the GTC is requesting that RUS provide would remain within the transmission committee staff before or after the financial assistance for the proposal. line easement with access to the line meeting. The agenda will include time DATES: RUS will conduct two public from public ROW. Some construction for people to make oral statements of scoping meetings in an open-house activities may require stream and three minutes or less. Individuals format on: Wednesday, September 26, wetland crossings. GTC’s proposal is wishing to make an oral statement 2012, from 3 to 7 p.m. at: the Holiday one piece of the proposed Douglas-Pine should request in writing by September Inn Express Conference Room, 1636 Grove Plan (i.e., the preferred electrical 18, 2012 to be scheduled on the agenda. South Peterson Ave., Douglas, Georgia solution). Four other connected actions, Written comments and requests for time 31534. Thursday, September 27, 2012, which will be constructed by other for oral comments must be sent to from 6 to 8 p.m. at: The Threatte Center, utilities, will be addressed in the Prince of Wales RAC c/o District Ranger 209 South Highway 221, Lakeland, proposed project’s EA. P.O. Box 500 Craig, AK 99921, or by Georgia 31635. Representatives from Among the alternatives that RUS will email to [email protected], or via RUS and GTC will be available at the address in the EA is the No Action facsimile to 907–826–2972. A summary meetings to discuss the environmental alternative, under which the proposal of the meeting will be posted at review process, the proposal, and the would not be undertaken. In the EA, the https://wwwnotes.fs.fed.us/wo/ scope of environmental issues currently effects of the proposal will be compared secure_rural_schools.nsf within 21 days under consideration. Written comments to the existing conditions in the project of the meeting. regarding the proposal may be area. Public health and safety, environmental impacts, and engineering Meeting Accommodations: If you are submitted at the public scoping aspects of the proposal will be a person requiring resonable meetings or by October 29, 2012, to the accomodation, please make requests in considered in the EA. RUS address provided in this Notice. RUS is the lead federal agency, as advance for sign language interpreting, ADDRESSES: To send comments or for defined at 40 CFR 1501.5, for assistive listening devices or other further information, please contact Ms. preparation of the EA. With this Notice, reasonable accomodation for access to Lauren McGee, Environmental Scientist, federally recognized Native American the facility or procedings by contacting USDA Rural Utilities Service, P.O. Box Tribes and Federal agencies with the person listed under FOR FURTHER 776, Haw River, North Carolina 27258– jurisdiction or special expertise are INFORMATION CONTACT. All reasonable 0776, telephone: (202) 695–2540, fax: invited to be cooperating agencies. Such accommodation requests are managed (202) 690–0649, or email: tribes or agencies may make a request to on a case by case basis. [email protected]. RUS to be a cooperating agency by Dated: September 6, 2012. An Alternatives Evaluation and Macro contacting the RUS contact provided in Meave Taylor, Corridor Study, which discusses the this Notice. Designated cooperating Acting District Ranger. purpose and need for the proposal and agencies have certain responsibilities to the alternatives considered in the [FR Doc. 2012–22925 Filed 9–18–12; 8:45 am] support the NEPA process, as specified proposal’s development, is available for BILLING CODE 3410–11–P at 40 CFR 1501.6(b). public review at the following RUS Web As part of its broad environmental site: http://www.rurdev.usda.gov/UWP- review process, RUS must take into DEPARTMENT OF AGRICULTURE EA-DouglasLakelanGA.html; at GTC’s account the effect of the proposal on headquarters office at: 2100 East historic properties in accordance with Rural Utilities Service Exchange Place, Tucker, Georgia 30084; Section 106 of the National Historic and at the following repositories: Preservation Act (Section 106) and its Georgia Transmission Corporation: Douglas/Coffee County Public Library, implementing regulation, ‘‘Protection of Notice of Intent To Prepare an South Madison Ave., Douglas, Georgia Historic Properties’’ (36 CFR part 800). Environmental Assessment and To 31533; Pearson Public Library, 56 East Pursuant to 36 CFR 800.2(d)(3), RUS is Hold Public Scoping Meetings Bullard Ave., Pearson, Georgia 31642; using its procedures for public AGENCY: Rural Utilities Service, USDA. Willacoochee Public Library, 165 East involvement under NEPA to meet its Fleetwood Ave., Willacoochee, Georgia ACTION: Notice of Intent to prepare an responsibilities to solicit and consider 31650; and W.L. Miller Memorial Environmental Assessment and Hold the views of the public during Section Library, 124 South Valdosta Road, Public Scoping Meetings. 106 review. Accordingly, comments Lakeland, Georgia 31635. submitted in response to scoping will SUMMARY: The Rural Utilities Service SUPPLEMENTARY INFORMATION: GTC inform RUS decision-making in its (RUS) intends to prepare an proposes to construct approximately 40 Section 106 review process. Any party

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wishing to participate more directly On page 46730, in the third column, inspection, information that is not with RUS as a ‘‘consulting party’’ in under the heading DATES, the entry desired to be made public, such as an Section 106 review may submit a ‘‘Comments must be received within 45 address or phone number, should not be written request to the RUS contact days after September 20, 2012.’’ should included. provided in this Notice. read ‘‘Comments must be received FOR FURTHER INFORMATION CONTACT: RUS will use input provided by within 45 days after August 6, 2012.’’ Cynthia C. Lynch, Office of the Deputy government agencies, private [FR Doc. C1–2012–19161 Filed 9–18–12; 8:45 am] Commissioner for Trademark organizations, and the public in the BILLING CODE 1505–01–D Examination Policy, at (571) 272–8742. preparation of the EA. The EA will be SUPPLEMENTARY INFORMATION: On August available for review and comment for 30 16, 2012, the USPTO published a notice days. If RUS finds, based on the EA, that DEPARTMENT OF COMMERCE of inquiry to provide the public, the proposal will not have a significant including user groups, with an effect on the quality of the human Patent and Trademark Office opportunity to comment on possible environment, RUS will prepare a [Docket No. PTO–T–2012–0029] adjustments to trademark application Finding of No Significant Impact fees (77 FR 49426 (August 16, 2012)). (FONSI). Notification of the EA and Extension of Comment Period for The notice invited the public to submit FONSI will be published in the Federal Notice of Inquiry Regarding written comments on the possible Register and in newspapers with Adjustment of Fees for Trademark adjustments on or before October 15, circulation in the proposal’s area. If Applications 2012. The USPTO is now extending the substantive comments are received on period for submission of public the EA, RUS may provide an additional AGENCY: United States Patent and comments until October 22, 2012. period (15 days) for public review Trademark Office, Commerce. Dated: September 13, 2012. following the publication of its FONSI. ACTION: Notice of extension of public When appropriate to carry out the comment period. David J. Kappos, purposes of NEPA, RUS may impose, on Under Secretary of Commerce for Intellectual a case-by-case basis, additional SUMMARY: The United States Patent and Property and Director of the United States requirements associated with the Trademark Office (‘‘USPTO’’ or Patent and Trademark Office. preparation of an EA. If at any point in ‘‘Office’’) is extending until October 22, [FR Doc. 2012–23135 Filed 9–18–12; 8:45 am] the preparation of an EA and review of 2012, the period for public comment BILLING CODE 3510–16–P comments, RUS determines that the regarding possible adjustments to proposal will have a significant effect on trademark application filing fees. The DEPARTMENT OF COMMERCE the quality of the human environment, USPTO is considering such adjustments so as to promote efficiency for the the preparation of an Environmental United States Patent and Trademark USPTO and customers by incentivizing Impact Statement will be required. Office Any final action by RUS related to the complete electronic communication. proposal will be subject to, and DATES: Written comments must be [Docket No. PTO–T–2012–0031] contingent upon, compliance with all received on or before October 22, 2012. Extension of Comment Period for relevant executive orders and federal, ADDRESSES: The USPTO prefers that state, and local environmental laws and Request for Comments Regarding comments be submitted via electronic Amending the First Filing Deadline for regulations in addition to the mail message to completion of the environmental review Affidavits or Declarations of Use or [email protected]. Written Excusable Nonuse requirements as prescribed in RUS’s comments may also be submitted by Environmental Policies and Procedures, mail to Commissioner for Trademarks, AGENCY: United States Patent and 7 CFR part 1794, as amended. P.O. Box 1451, Alexandria, VA 22313– Trademark Office, Commerce. Dated: September 6, 2012. 1451, attention Cynthia C. Lynch; by ACTION: Notice of extension of public Jon Melhus, hand delivery to the Trademark comment period. Acting Director, Engineering and Assistance Center, Concourse Level, SUMMARY: The United States Patent and Environmental Staff, USDA, Rural Utilities James Madison Building-East Wing, 600 Service. Dulany Street, Alexandria, Virginia, Trademark Office (‘‘USPTO’’ or ‘‘Office’’) is extending until November [FR Doc. 2012–23018 Filed 9–18–12; 8:45 am] attention Cynthia C. Lynch; or by 5, 2012, the period for public comment BILLING CODE P electronic mail message via the Federal eRulemaking Portal. See the Federal regarding a potential legislative change eRulemaking Portal Web site (http:// to amend the first filing deadline for www.regulations.gov) for additional Affidavits or Declarations of Use or DEPARTMENT OF COMMERCE instructions on providing comments via Excusable Nonuse under Sections 8 and the Federal eRulemaking Portal. All 71 of the Trademark Act. The change National Oceanic and Atmospheric would require Congress to amend the Administration comments submitted directly to the Office or provided on the Federal Trademark Act, and the USPTO is RIN 0648–XC120 eRulemaking Portal should include the interested in receiving public input on docket number (PTO–T–2012–0029). whether and why such an amendment Aquatic Nuisance Species Task Force The comments will be available for is or is not favored. Strategic Plan 2013—2017 public inspection on the USPTO’s Web DATES: Written comments must be site at http://www.uspto.gov, and will received on or before November 5, 2012. Correction also be available at the Office of the ADDRESSES: The USPTO prefers that In notice document 2012–19161, Commissioner for Trademarks, Madison comments be submitted via electronic appearing on pages 46730–46732 in the East, Tenth Floor, 600 Dulany Street, mail message to issue of Monday, August 6, 2012, make Alexandria, Virginia. Because comments [email protected]. Written the following correction: will be made available for public comments may also be submitted by

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mail to Commissioner for Trademarks, CONSUMER PRODUCT SAFETY The Parties P.O. Box 1451, Alexandria, VA 22313– COMMISSION 2. Staff is the staff of the Commission, 1451, attention Cynthia C. Lynch; by an independent federal regulatory hand delivery to the Trademark [CPSC Docket No. 12–C0009] agency established pursuant to, and Assistance Center, Concourse Level, responsible for, the enforcement of the James Madison Building—East Wing, Haier America Trading, LLC, CPSA, 15 U.S.C. 2051–2089. 600 Dulany Street, Alexandria, Virginia, Provisional Acceptance of a 3. Haier America is a limited liability attention Cynthia C. Lynch; or by Settlement Agreement and Order company, organized and existing under electronic mail message via the Federal the laws of the State of New York, with AGENCY: Consumer Product Safety eRulemaking Portal. See the Federal its principal corporate office located at Commission. eRulemaking Portal Web site (http:// 1356 Broadway, New York, NY. ACTION: Notice. www.regulations.gov) for additional Staff Allegations instructions on providing comments via the Federal eRulemaking Portal. All SUMMARY: It is the policy of the 4. Between October 2006 and October comments submitted directly to the Commission to publish settlements 2009, Haier America distributed in Office or provided on the Federal which it provisionally accepts under the commerce, including through Consumer Product Safety Act in the eRulemaking Portal should include the importation and sale to retailers, Federal Register in accordance with the docket number (PTO–T–2012–0031). approximately 53,800 electric blenders terms of 16 CFR 1118.20(e). Published (‘‘Blenders’’). The Blenders were sold at The comments will be available for below is a provisionally-accepted retail stores in the United States for public inspection on the USPTO’s Web Settlement Agreement with Haier between $25 and $60. site at http://www.uspto.gov, and will America Trading, LLC, containing a 5. The Blenders are ‘‘consumer also be available at the Office of the civil penalty of $850,000.00, within products’’ and, at all relevant times, Commissioner for Trademarks, Madison twenty (20) days of service of the Haier America was an ‘‘importer’’ of East, Tenth Floor, 600 Dulany Street, Commission’s final Order accepting the these consumer products, which were Alexandria, Virginia. Because comments Settlement Agreement. ‘‘distributed in commerce,’’ as those will be made available for public DATES: Any interested person may ask terms are defined or used in sections inspection, information that is not the Commission not to accept this 3(a)(5), (8), and (11) of the CPSA, 15 desired to be made public, such as an agreement or otherwise comment on its U.S.C. 2052(a)(5), (8), and (11). address or phone number, should not be contents by filing a written request with 6. The Blenders are defective because included. the Office of the Secretary by October 4, the nut holding the blade assembly can dislodge during use, allowing the blade FOR FURTHER INFORMATION CONTACT: 2012. assembly pieces to break apart, and/or Cynthia C. Lynch, Office of the Deputy ADDRESSES: Persons wishing to crack the Blenders’ glass jar, posing a Commissioner for Trademark comment on this Settlement Agreement laceration hazard to consumers. Examination Policy, at (571) 272–8742. should send written comments to the 7. From January 2007 through SUPPLEMENTARY INFORMATION: On August Comment 12–C0009, Office of the September 2009, Haier America 16, 2012, the USPTO published a Secretary, Consumer Product Safety received approximately 56 incident Commission, 4330 East West Highway, request for comment to provide the reports regarding the Blenders, Room 820, Bethesda, Maryland 20814– public, including user groups, with an including a report of an injury to a 4408. opportunity to comment on a potential consumer’s hand. legislative change to amend the first FOR FURTHER INFORMATION CONTACT: 8. Haier America had obtained filing deadline for Affidavits or Belinda V. Bell, Trial Attorney, Division sufficient information to reasonably Declarations of Use or Excusable of Compliance, Office of the General support the conclusion that the Nonuse under Sections 8 and 71 of the Counsel, Consumer Product Safety Blenders contained a defect which could create a substantial product Trademark Act from between the fifth Commission, 4330 East West Highway, hazard, or that the Blenders created an and sixth years after the registration Bethesda, Maryland 20814–4408; telephone (301) 504–7592. unreasonable risk of serious injury or date, or the six-month grace period that death. Haier America was required to SUPPLEMENTARY INFORMATION: The text of follows, to between the third and fourth inform the Commission immediately of years after the registration date, or the the Agreement and Order appears below. such defect or risk, as required by six-month grace period that follows (77 sections 15(b)(3) and (4) of the CPSA, 15 FR 49425 (August 16, 2012)). Dated: September 13, 2012. U.S.C. 2064(b)(3) and (4). The notice invited the public to Todd A. Stevenson, 9. Despite having information submit written comments on the Secretary. regarding the Blenders’ defect, Haier potential change on or before October Settlement Agreement America did not file its Full Report with 15, 2012. The USPTO is now extending the Commission until October 8, 2009. the period for submission of public 1. In accordance with the Consumer Haier America recalled the Blenders on comments until November 5, 2012. Product Safety Act, 15 U.S.C. 2051– December 2, 2009. 2089 (‘‘CPSA’’) and16 C.F.R. 1118.20, 10. In failing to inform the Dated: September 13, 2012. Haier America Trading, LLC (‘‘Haier Commission about the Blenders David J. Kappos, America’’) and staff of the United States immediately, Haier America knowingly Under Secretary of Commerce for Intellectual Consumer Product Safety Commission violated section 19(a)(4) of the CPSA, 15 Property and Director of the United States (‘‘staff’’ and ‘‘Commission’’) hereby U.S.C. 2068(a)(4), as the term Patent and Trademark Office. enter into this Settlement Agreement ‘‘knowingly’’ is defined in section 20(d) [FR Doc. 2012–23117 Filed 9–18–12; 8:45 am] (‘‘Agreement’’). The Agreement and the of the CPSA, 15 U.S.C. 2069(d). BILLING CODE 3510–16–P incorporated attached Order resolve 11. Pursuant to section 20 of the staff’s allegations set forth below. CPSA, 15 U.S.C. 2069, Haier America is

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subject to civil penalties for its knowing record and published in the Federal lllllllllllllllllllll failure to report, as required under Register in accordance with the Mary Ann G. Lemere, section 15(b) of the CPSA, 15 U.S.C. procedures set forth in 16 C.F.R. VP & General Counsel, Haier America 2064(b). 1118.20(e). If the Commission does not Trading, LLC, 1356 Broadway, New York, NY 10018. receive any written request not to accept Response of Haier America Trading, the Agreement within 15 calendar days, Dated: August 28, 2012. LLC the Agreement shall be deemed finally lllllllllllllllllllll 12. Haier America denies the Staff’s accepted on the 16th calendar day after Eric A. Rubel, Esquire, allegations, including, but not limited the date it is published in the Federal Arnold & Porter, LLP, 555 Twelfth Street to, that the Blenders contain a defect NW., Washington, DC 20004–1206, Counsel Register, in accordance with 16 C.F.R. for Haier America Trading, LLC. that could create a substantial product 1118.20(f). hazard or create an unreasonable risk of U.S. CONSUMER PRODUCT SAFETY 19. Upon the Commission’s final COMMISSION STAFF serious injury or death, and that Haier acceptance of the Agreement and America failed to timely notify the Cheryl A. Falvey, issuance of the final Order, Haier General Counsel. Commission in accordance with Section America knowingly, voluntarily, and Mary B. Murphy, 15(b) of the CPSA, 15 U.S.C. 2064(b). completely waives any rights it may 13. Haier America notified CPSC Assistant General Counsel. have in this matter to the following: (a) Dated: September 4, 2012. upon discovering that a nut securing the an administrative or judicial hearing; (b) lllllllllllllllllllll blade assembly had not been judicial review or other challenge or consistently tightened during Belinda V. Bell, contest of the Commission’s actions; (c) Trial Attorney, Office of the General Counsel. production of certain units of the a determination by the Commission of Blenders. Haier America was (and is) whether Haier America failed to comply Order aware of only one report of a minor cut with the CPSA and the underlying Upon consideration of the Settlement to a consumer’s hand, associated with regulations; (d) a statement of findings Agreement entered into between Haier the reported issue, which did not of fact and conclusions of law; and (e) America Trading, LLC (‘‘Haier America’’), require medical attention. Haier any claims under the Equal Access to and the U.S. Consumer Product Safety America conducted a voluntary recall of Justice Act. Commission (‘‘Commission’’) staff, and the the Blenders to replace the blade Commission having jurisdiction over the 20. The Commission may publicize subject matter and over Haier America, and assembly pursuant to CPSC’s Fast Track the terms of the Agreement and the recall program, acting to reduce the risk it appearing that the Settlement Agreement Order. and the Order are in the public interest, it is of injury, in furtherance of its 21. The Agreement and the Order Ordered that the Settlement Agreement customers’ best interests. shall apply to, and be binding upon, be, and is, hereby, accepted; and it is Agreement of the Parties Haier America and each of its Further ordered, that Haier America successors and/or assigns. shall pay a civil penalty in the amount of 14. Under the CPSA, the Commission 22. The Commission issues the Order $850,000.00 within 20 calendar days of has jurisdiction over this matter and receiving service of the Commission’s final under the provisions of the CPSA, and over Haier America. Order accepting the Settlement Agreement. 15. In settlement of staff’s allegations, a violation of the Order may subject The payment shall be made electronically to Haier America shall pay a civil penalty Haier America and each of its the CPSC via www.pay.gov. Upon the failure in the amount of $850,000.00 within 20 successors and/or assigns to appropriate of Haier America to make the foregoing legal action. payment when due, interest on the unpaid calendar days of receiving service of the amount shall accrue and be paid by Haier Commission’s final Order accepting the 23. The Agreement may be used in interpreting the Order. Understandings, America at the federal legal rate of interest Agreement. The payment shall be made set forth at 28 U.S.C. 1961(a) and (b). electronically to the CPSC via agreements, representations, or interpretations apart from those Provisionally accepted and provisional Order www.pay.gov. issued on the 13th day of September, 2012. contained in the Agreement and the 16. The parties enter into this By Order of the Commission: Agreement for settlement purposes only. Order may not be used to vary or contradict the terms or the Agreement lllllllllllllllllllll The Agreement does not constitute an Todd A. Stevenson, admission by Haier America, nor does it and the Order. The Agreement shall not Secretary, U.S. Consumer Product Safety constitute a determination by the be waived, amended, modified, or Commission Commission, that Haier America otherwise altered without written [FR Doc. 2012–23043 Filed 9–18–12; 8:45 am] violated the CPSA’s reporting agreement thereto, executed by the party requirements. against whom such waiver, amendment, BILLING CODE 6355–01–P 17. In consideration of Haier modification, or alteration is sought to America’s payment, the Commission be enforced. 24. If any provision of the Agreement CONSUMER PRODUCT SAFETY agrees to release Haier America, as well COMMISSION as its current and former directors, or the Order is held to be illegal, officers, employees, agents and invalid, or unenforceable under present [CPSC Docket No. 12–2] representatives from any civil claim that or future laws effective during the terms the Commission has or may have against of the Agreement and the Order, such Notice of Telephonic Prehearing those parties arising out of or relating to provision shall be fully severable. The Conference balance of the Agreement and the Order the recall of the Blenders announced on AGENCY: U.S. Consumer Product Safety shall remain in full force and effect, December 2, 2009, or the Staff’s Commission. unless the Commission and Haier allegations that Haier America failed to ACTION: Notice. report in a timely manner a potential America agree that severing the hazard involving the Blenders. provision materially affects the purpose SUMMARY: Notice of telephonic 18. Upon provisional acceptance of of the Agreement and Order. prehearing conference In the Matter of the Agreement by the Commission, the HAIER AMERICA TRADING, LLC. ZEN MAGNETS, LLC, CPSC Docket No. Agreement shall be placed on the public Dated: August 23,2012. 12–2.

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DATES: September 27, 2012, at 9:00 a.m. third party conferencing center at (303) functions of the agency, including Mountain/10:00 a.m. Central/11:00 a.m. 964–9500. whether the information shall have Eastern. Authority: Consumer Product Safety Act practical utility; (b) the accuracy of the ADDRESSES: Members of the public are 15 U.S.C. 2064. agency’s estimate of the burden of the proposed information collection; (c) welcome to attend the prehearing Dated: September 14, 2012 conference at the Courtroom of Hon. ways to enhance the quality, utility, and Todd A. Stevenson, Dean C. Metry at 601 25th Street, 5th clarity of the information to be Floor Courtroom, Galveston, Texas Secretary. collected; and (d) ways to minimize the 77550. [FR Doc. 2012–23071 Filed 9–18–12; 8:45 am] burden of the information collection on BILLING CODE 6355–01–P respondents, including through the use FOR FURTHER INFORMATION CONTACT: Jan of automated collection techniques or Emig, Paralegal Specialist, U.S. Coast other forms of information technology. Guard ALJ Program, (409) 765–1300. CONSUMER PRODUCT SAFETY DATES: Consideration will be given to all SUPPLEMENTARY INFORMATION: Any or all COMMISSION of the following shall be considered comments received by November 19, during the prehearing conference: Notice of Telephonic Prehearing 2012. (1) Petitions for leave to intervene; Conference; Correction ADDRESSES: You may submit comments, (2) Motions, including motions for identified by docket number and title, AGENCY: U.S. Consumer Product Safety consolidation of proceedings and for Commission. by any of the following methods: certification of class actions; • Federal eRulemaking Portal: http:// (3) Identification, simplification and Correction www.regulations.gov. Follow the clarification of the issues; Federal Register Citation of Previous instructions for submitting comments. • (4) Necessity or desirability of Announcement: Mail: Federal Docket Management amending the pleadings; Vol. 77, No. 179, Friday, September System Office, 4800 Mark Center Drive, (5) Stipulations and admissions of fact 14, 2012, page 56814. East Tower, Suite 02G09, Alexandria, and of the content and authenticity of Notice: Notice of Telephonic VA 22350–3100. documents; Prehearing Conference, CPSC Docket Instructions: All submissions received (6) Oppositions to notices of 12–1. must include the agency name, docket depositions; Correction: The name of the docket number and title for this Federal (7) Motions for protective orders to and respondent is incorrect. The correct Register document. The general policy limit or modify discovery; name of the respondent is Maxfield and for comments and other submissions (8) Issuance of subpoenas to compel Oberton Holdings, LLC. from members of the public is to make the appearance of witnesses and the Contact Person for Additional these submissions available for public production of documents; Information: Todd A. Stevenson, Office viewing on the Internet at http:// (9) Limitation of the number of of the Secretary, 4330 East West www.regulations.gov as they are witnesses, particularly to avoid Highway, Bethesda, MD 20814 (301) received without change, including any duplicate expert witnesses; 504–7923. personal identifiers or contact (10) Matters of which official notice information. should be taken and matters which may Dated: September 14, 2012. be resolved by reliance upon the laws Todd A. Stevenson, FOR FURTHER INFORMATION CONTACT: To administered by the Commission or Secretary. request more information on this upon the Commission’s substantive [FR Doc. 2012–23070 Filed 9–18–12; 8:45 am] proposed information collection or to obtain a copy of the proposal and standards, regulations, and consumer BILLING CODE 6355–01–P product safety rules; associated collection instruments, (11) Disclosure of the names of please write to Mr. Mike Talisnik, Office of the ASD (HA)—TMA, 7700 Arlington witnesses and of documents or other DEPARTMENT OF DEFENSE physical exhibits which are intended to Blvd., Suite 5101, Falls Church, VA be introduced into evidence; Office of the Secretary 22042, (703) 681–8723. (12) Consideration of offers of Title; Associated Form; and OMB settlement; [Docket ID: DoD–2012–HA–0117] Number: TriCase Case Management & Authorization System; OMB Control (13) Establishment of a schedule for Proposed Collection; Comment Number 0720–TBD. the exchange of final witness lists, Request prepared testimony and documents, and Needs and Uses: TriCase (Case for the date, time and place of the AGENCY: Office of the Assistant Management and Authorization System) hearing, with due regard to the Secretary of Defense for Health Affairs, manages cases involving the convenience of the parties; and DoD. coordination of medical care and (14) Such other matters as may aid in ACTION: Notice. medical transportation. The system the efficient presentation or disposition provides International SOS employees of the proceedings. In compliance with Section with a central application to interact Telephonic conferencing 3506(c)(2)(A) of the Paperwork with TRICARE beneficiaries, providers, arrangements to contact the parties will Reduction Act of 1995, the Office of the family members, and government be made by the court. Mary B. Murphy, Assistant Secretary of Defense for representatives to manage healthcare Esq., Jennifer Argabright, Esq., Counsel Health Affairs announces the proposed delivery activities. TriCase is available for the U.S. Consumer Product Safety extension of a public information in four International SOS offices Commission, shall be contacted by a collection and seeks public comment on worldwide and is limited to authorized third party conferencing center at 301/ the provisions thereof. Comments are TRICARE users who meet appropriate 504–7809. David C, Japha, Esq., counsel invited on: (a) Whether the proposed clearance levels. The system has been for ZEN MAGNETSm, LLC collection of information is necessary tailored to support TRICARE (Respondent) shall be contacted by a for the proper performance of the Management Activity (TMA).

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Affected Public: Individuals or performance of the functions of the SNPMIS captures records referral, households. agency, including whether the evaluation, eligibility, and service plan Annual Burden Hours: 28,800. information shall have practical utility; data for children with special needs Number of Respondents: 4,800 per (b) the accuracy of the agency’s estimate who are eligible for MHS services under month. of the burden of the proposed IDEA. Management reports provide Responses per Respondent: 12. information collection; (c) ways to historical analysis to monitor ongoing Average Burden per Response: 30 enhance the quality, utility, and clarity improvements in quality of care minutes. of the information to be collected; and initiatives. It also allows program Frequency: Monthly. (d) ways to minimize the burden of the managers to identify areas where SUPPLEMENTARY INFORMATION: information collection on respondents, additional services are needed. At the including through the use of automated service level, activities of different Summary of Information Collection collection techniques or other forms of programs can be compared to determine Information collected is for TRICARE information technology. best practices that can be implemented beneficiaries requesting health care DATES: Consideration will be given to all throughout the Educational and services outside the 50 United States comments received by November 19, Developmental Intervention Services and District of Columbia. The 2012. (EDIS) clinics. The system’s remote information collected can come in function allows EDIS staff members to ADDRESSES: writing from a Military Treatment You may submit comments, enter a young beneficiary’s data while Facility (MTF), from a TRICARE identified by docket number and title, conducting activities from that child’s by any of the following methods: school or home. beneficiary or from a host nation • provider. The information can also be Federal eRulemaking Portal: http:// Affected Public: Categories of collected telephonically when assisting www.regulations.gov. Follow the individuals in the system include instructions for submitting comments. children of members of the Armed the beneficiary or host nation provider • rendering the care. The system allows Mail: Federal Docket Management Forces and civilians who are entitled to International SOS to document System Office, 4800 Mark Center Drive, receive early intervention and special interaction with the patient (including East Tower, Suite 02G09, Alexandria, education services from the DoD under emails, letters, faxes, and phone VA 22350–3100. the IDEA. conversations). It allows for notes and Instructions: All submissions received Annual Burden Hours: 1775 hours. actions to be documented in the system must include the agency name, docket Number of Respondents: 1065. to allow the ability to track progress of number and title for this Federal Responses per Respondent: 2. all types of cases and authorizations. It Register document. The general policy Average Burden per Response: 50 further allows for validation of for comments and other submissions minutes. enrollment and eligibility for services. from members of the public is to make Frequency: on entry to/exit from This information is used to assign staff these submissions available for public program. viewing on the Internet at http:// with various tasks to manage an SUPPLEMENTARY INFORMATION: incident of care both administratively www.regulations.gov as they are and medically to manage a case. received without change, including any Summary of Information Collection personal identifiers or contact Information is collected from the Dated: September 14, 2012. information. Aaron Siegel, individual to whom the record pertains, FOR FURTHER INFORMATION CONTACT: To OSD Federal Register Liaison Officer, reports from physicians and other Department of Defense. request more information on this medical department personnel, reports proposed information collection or to [FR Doc. 2012–23107 Filed 9–18–12; 8:45 am] and information from other sources obtain a copy of the proposal and including educational institutions, BILLING CODE 5001–06–P associated collection instruments, medical institutions, public and private please write to SNPMIS Project Officer, health, and welfare agencies. Reports DEPARTMENT OF DEFENSE DHSS, 7700 Arlington Boulevard, Falls from physicians and other medical Church, VA 22042–2902 or call 703– department personnel; Reports and Office of the Secretary 681–2236. information from other sources Title; Associated Form; and OMB including educational institutions; [Docket ID: DoD–2012–HA–0116] Number: Special Needs Program Medical institutions; Public and private Management Information System Proposed Collection; Comment health and welfare agencies. (SNPMIS); OMB Control Number 0720– Request Information from the family may be TBD. collected during an intake meeting, a AGENCY: Office of the Assistant Needs and Uses: Special Needs meeting to develop a service plan, as a Secretary of Defense for Health Affairs, Program Management Information result of provision of services, DoD. System (SNPMIS) provides access to a performance of an evaluation, or other ACTION: Notice. comprehensive program of therapy, coordination activities. The EDIS clinic medical support, and social services for or Department of Defense Dependents In compliance with Section young Department of Defense (DoD) School (DoDDS) school must obtain 3506(c)(2)(A) of the Paperwork Military Health System (MHS) permission from the family before Reduction Act of 1995, the Office of the beneficiaries with special needs. information is collected from or Assistant Secretary of Defense for SNPMIS is the Military Health System provided to an external agency, and Health Affairs announces a proposed (MHS) automated information system prior to conducting evaluations or public information collection and seeks designed to ensure the DoD meets the providing services. Before information public comment on the provisions unique information requirements is released to an external agency the thereof. Comments are invited on: (a) associated with implementation of the parents must sign a Health Insurance Whether the proposed collection of Individuals with Disabilities Education Portability and Accountability Act information is necessary for the proper Act (IDEA). (HIPAA) release.

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Personally identifiable information DEPARTMENT OF DEFENSE 0061, Transportation Requirements’’ on (PII) and protected health information your attached document. (PHI) that is collected by the system GENERAL SERVICES • Fax: 202–501–4067. includes: Name, Social Security Number ADMINISTRATION • Mail: General Services (SSN), Family member prefix (FMP), Administration, Regulatory Secretariat Birth Date, Race/Ethnicity, Gender, NATIONAL AERONAUTICS AND (MVCB), 1275 First Street NE., Marital Status, Spouse Information, SPACE ADMINISTRATION Washington, DC 20417. ATTN: Hada Child Information, Disability [OMB Control No. 9000–0061 Docket 2012– Flowers/IC 9000–0061, Transportation Information, Home, Personal Cell, and 0076; Sequence 9] Requirements. Work Phone Numbers—Child and Instructions: Please submit comments Federal Acquisition Regulation; Parents, Emergency Contact, Education only and cite Information Collection Submission for OMB Review; Information: Child’s School Address; 9000–0061, Transportation Transportation Requirements Requirements, in all correspondence Individual educational program plans, related to this collection. All comments Sponsor Name, Sponsor SSN Sponsor AGENCY: Department of Defense (DOD), received will be posted without change General Services Administration (GSA), and Spouse rank or title, Sponsor’s unit, to http://www.regulations.gov, including and National Aeronautics and Space Other child care locations, Provider’s any personal and/or business Administration (NASA). name and title that evaluate and provide confidential information provided. intervention, Medical Information: ACTION: Notice of request for public FOR FURTHER INFORMATION CONTACT: Mr. Clinics and medical summaries, EDIS comments regarding an extension to an existing OMB clearance. Curtis E. Glover, Sr., Procurement process and activities data including Analyst, Office of Governmentwide referral, evaluation, eligibility, and SUMMARY: Under the provisions of the Acquisition Policy, GSA (202) 501–1448 service plans. Paperwork Reduction Act, the or via email @ [email protected]. The Computer Security Act of 1987, Regulatory Secretariat will be SUPPLEMENTARY INFORMATION: which went into effect in September submitting to the Office of Management 1988, requires all U.S. government and Budget (OMB) a request to review I. Purpose employees, contractors, and others who and approve an extension of a FAR Part 47 contains policies and directly affect federal program must previously approved information procedures for applying transportation undergo periodic training in computer collection requirement concerning and traffic management considerations security. All users of systems containing Transportation Requirements. A notice in the acquisition of supplies. The FAR sensitive data must also receive was published in the Federal Register at part also contains policies and computer training corresponding to the 77 FR 24713, on April 25, 2012. One procedures when acquiring sensitivity of the data to which they respondent submitted comments. transportation or transportation-related Public comments are particularly access. All persons who have access to services. Generally, contracts involving invited on: Whether this collection of or who are users of SNPMIS must have transportation require information information is necessary; whether it will an Information Technology Sensitive regarding the nature of the supplies, have practical utility; whether our method of shipment, place and time of (IT) clearance level III or higher. estimate of the public burden of this SNPMIS users are health care providers shipment, applicable charges, marking collection of information is accurate, of shipments, shipping documents and and SNPMIS Technical Support Team. and based on valid assumptions and other related items. Contractors are The health care providers have at least methodology; ways to enhance the required to provide the information in an IT II clearance, which allows them quality, utility, and clarity of the accordance with the following FAR Part access to basic functions of SNPMIS information to be collected; and ways in 47 clauses: 52.247–29 through 52.247– (i.e., data querying, viewing, and which we can minimize the burden of 44, 52.247–48, 52.247–52, and 52.247– printing). SNPMIS Development Team the collection of information on those 64. The information is used to ensure members’ have at least an IT II who are to respond, through the use of that: (1) Acquisitions are made on the clearance. They have access to appropriate technological collection basis most advantageous to the information regarding the creation and techniques or other forms of information Government and; (2) supplies arrive in maintenance of user accounts, testing technology. good order and condition, and on time and system monitoring. They also DATES: Submit comments on or before at the required place. perform SNPMIS audit setup and October 19, 2012. II. Analysis of Public Comments reviews, and set up roles and ADDRESSES: Submit comments responsibilities. All SNPMIS users are identified by Information Collection One respondent submitted public subjected to the new hiring screening 9000–0061, Transportation comments on the extension of the process associated with their position. Requirements, by any of the following previously approved information Contractors, however, are required to methods: collection. The analysis of the public complete a Standard Form 86 from • Regulations.gov: http:// comments is summarized as follows: which a National Agency Check with www.regulations.gov. Comment: The respondent Inquiry’s (NACI) and credit check can Submit comments via the Federal commented that the extension of the be conducted. eRulemaking portal by inputting the information collection would violate the OMB Control number. Select the link fundamental purposes of the Paperwork Dated: September 14, 2012. ‘‘Submit a Comment’’ that corresponds Reduction Act because of the burden it Aaron Siegel, with ‘‘Information Collection 9000– puts on the entity submitting the Alternate OSD Federal Register Liaison 0061, Transportation Requirements’’. information and the agency collecting Officer, Department of Defense. Follow the instructions provided at the the information. [FR Doc. 2012–23085 Filed 9–18–12; 8:45 am] ‘‘Submit a Comment’’ screen. Please Response: In accordance with the BILLING CODE 5001–06–P include your name, company name (if Paperwork Required Act (PRA), any), and ‘‘Information Collection 9000– agencies can request an OMB approval

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of an existing information collection. submitting the information. For Dated: September 13, 2012. The PRA requires that agencies use the example, consideration is given to an William Clark, Federal Register notice and comment entity reviewing instructions; using Acting Director, Federal Acquisition Policy process, to extend the OMB’s approval, technology to collect, process, and Division, Office of Governmentwide at least every three years. This disclose information; adjusting existing Acquisition Policy, Office of Acquisition extension, to a previously approved practices to comply with requirements; Policy, Office of Governmentwide Policy. information collection, pertains to FAR searching data sources; completing and [FR Doc. 2012–23134 Filed 9–18–12; 8:45 am] Part 47, and the clauses 52.247–29 reviewing the response; and BILLING CODE 6820–EP–P through 52.247–44, 52.247–48, 52.247– transmitting or disclosing information. 52, and 52.247–64. The purpose of this The estimated burden hours for a part is to (1) apply transportation and collection are based on an average DEPARTMENT OF DEFENSE traffic management considerations in between the hours that a simple the acquisition of supplies, and (2) to disclosure by a very small business GENERAL SERVICES acquire transportation or transportation- might require and the much higher ADMINISTRATION related services by contract methods numbers that might be required for a other than bills of lading, transportation very complex disclosure by a major NATIONAL AERONAUTICS AND requests, transportation warrants, and corporation. Also, the estimated burden SPACE ADMINISTRATION similar transportation forms. The hours should only include projected Government must ensure that hours for those actions which a [OMB Control No. 9000–0079; Docket 2012– 0076; Sequence 13] instructions to contractors result in the company would not undertake in the most efficient and economical use of normal course of business. Careful Federal Acquisition Regulation; transportation services and equipment. consideration went into assessing the Submission for OMB Review; These clauses are mandatory depending estimated burden hours for this Corporate Aircraft Costs on the method of transportation used, collection, and it was determined that and they provide the Government the an upward adjustment was warranted. AGENCY: Department of Defense (DOD), assurance that it will receive the At any point, members of the public General Services Administration (GSA), supplies in the agreed condition, and at may submit comments for further and National Aeronautics and Space the proper destination. Not granting this consideration, and are encouraged to Administration (NASA). extension would consequently eliminate provide data to support their request for ACTION: Notice of request for public the Government’s ability to receive an adjustment. comments regarding an extension to an supplies in good order and condition, as existing OMB clearance. well as receive the supplies in a timely III. Annual Reporting Burden manner. There is no centralized database SUMMARY: Under the provisions of the Comment: The respondent system that maintains statistics on the Paperwork Reduction Act, the commented that the agency did not information regarding the nature of the Regulatory Secretariat will be accurately estimate the public burden supplies, method of shipments, place submitting to the Office of Management challenging that the agency’s and time of shipment, applicable and Budget (OMB) a request to review methodology for calculating it is charges, marking of shipments, shipping and approve an extension of a insufficient and inadequate and does documents, and other related items; previously approved information not reflect the total burden. For this however, based on input from subject collection requirement concerning reason, the respondent provided that the matter experts within the Federal corporate aircraft costs. A notice was agency should reassess the estimated Government, an upward adjustment is published in the Federal Register at 77 total burden hours and revise the being made to the estimated annual FR 20012, on April 3, 2012. One estimate upwards to be more accurate, reporting burden since the notice respondent submitted comments. as was done in FAR Case 2007–006. The regarding an extension to this clearance Public comments are particularly same respondent also provided that the published in the Federal Register at 74 invited on: Whether this collection of burden of compliance with the FR 23406 on May 19, 2009. The upward information is necessary for the proper information collection requirement adjustment is due to an estimated performance of functions of the Federal greatly exceeds the agency’s estimate increase in the number of responses per Acquisition Regulation (FAR), and and outweighs any potential utility of respondents from 21.32 to 22, and an whether it will have practical utility; the extension. increase in the average hours per whether our estimate of the public Response: Serious consideration is burden of this collection of information given, during the open comment period, response from .048 to .05. is accurate, and based on valid to all comments received and Respondents: 65,000. assumptions and methodology; ways to adjustments are made to the paperwork Responses per Respondent: 22. enhance the quality, utility, and clarity burden estimate based on reasonable Annual Responses: 1,430,000. of the information to be collected; and considerations provided by the public. Hours per Response: .05. ways in which we can minimize the This is evidenced, as the respondent Total Burden Hours: 71,500. burden of the collection of information notes, in FAR Case 2007–006 where an Obtaining Copies of Proposals on those who are to respond, through adjustment was made from the total the use of appropriate technological preparation hours from three to 60. This Requesters may obtain a copy of the collection techniques or other forms of change was made considering information collection documents from information technology. particularly the hours that would be the General Services Administration, required for review within the company, Regulatory Secretariat Division (MVCB), DATES: Submit comments on or before prior to release to the Government. 1275 First Street NE., Washington, DC October 19, 2012. The burden is prepared taking into 20417, telephone (202) 501–4755. Please ADDRESSES: Submit comments consideration the necessary criteria in cite OMB Control No. 9000–0061, identified by Information Collection OMB guidance for estimating the Transportation Requirements, in all 9000–0079, Corporate Aircraft Costs, by paperwork burden put on the entity correspondence. any of the following methods:

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• Regulations.gov: http:// PRA requires that agencies use the reviewing the response; and www.regulations.gov. Submit comments Federal Register notice and comment transmitting or disclosing information. via the Federal eRulemaking portal by process, to extend OMB’s approval, at The estimated burden hours for a searching the OMB control number. least every three years. This extension, collection are based on an average Select the link ‘‘Submit a Comment’’ to a previously approved information between the hours that a simple that corresponds with ‘‘Information collection, pertains to documentation disclosure by a very small business Collection 9000–0079, Corporate requirements under the cost principle at might require and the much higher Aircraft Costs’’. Follow the instructions FAR 31.205–46. This documentation is numbers that might be required for a provided at the ‘‘Submit a Comment’’ necessary to ensure that the cost of very complex disclosure by a major screen. Please include your name, owned, chartered, or leased aircraft are corporation. Also, the estimated burden company name (if any), and properly charged against Government hours should only include projected ‘‘Information Collection 9000–0079, contracts and that directly associated hours for those actions which a Corporate Aircraft Costs’’ on your costs of unallowable activities are not company would not undertake in the attached document. charged to Government contracts. normal course of business. Careful • Fax: 202–501–4067. Documentation regarding (1) date, time, consideration went into assessing the • Mail: General Services and points of departure, (2) destination estimated burden hours for this Administration, Regulatory Secretariat and time of arrival, and (3) name of each collection, and it is determined that an (MVCB), 1275 First Street NE., passenger, is already required under upward adjustment is not required at Washington, DC 20417. ATTN: Hada Federal Aviation Administration this time. The historical estimates Flowers/IC 9000–0079, Corporate regulations. As such, the documentation remain valid. However, at any point, Aircraft Costs. required at FAR 31.205–46 places a members of the public may submit Instructions: Please submit comments small burden on Government comments for further consideration, and only and cite Information Collection contractors. Not granting this extension are encouraged to provide data to 9000–0079, Corporate Aircraft Costs, in may result in improper charges against support their request for an adjustment. Government contracts for flights on all correspondence related to this C. Annual Reporting Burden collection. All comments received will contractor aircraft. be posted without change to http:// Comment: The respondent Number of Respondents: 3,000. Responses Per Respondent: 1. www.regulations.gov, including any commented that the agency did not accurately estimate the public burden Total Responses: 3,000. personal and/or business confidential Average Burden per Response: 6 information provided. challenging that the agency’s methodology for calculating it is hours. FOR FURTHER INFORMATION CONTACT: Mr. insufficient and inadequate and does Total Burden Hours: 18,000. Obtaining Copies of Proposals: Edward N. Chambers, Contract Policy not reflect the total burden. For this Requesters may obtain a copy of the Division, GSA, (202) 501–3221 or via reason, the respondent provided that the information collection documents from email [email protected]. agency should reassess the estimated the General Services Administration, SUPPLEMENTARY INFORMATION: total burden hours and revise the Regulatory Secretariat Division (MVCB), estimate upwards to be more accurate, A. Purpose 1275 First Street NE., Washington, DC as was done in FAR Case 2007–006. The 20417, telephone (202) 501–4755. Please Government contractors that use same respondent also provided that the cite OMB Control No. 9000–0079, company aircraft must maintain logs of burden of compliance with the Corporate Aircraft Costs, in all flights containing specified information information collection requirement correspondence. (e.g., destination, passenger name, greatly exceeds the agency’s estimate purpose of trip, etc.). This information, and outweighs any potential utility of Dated: September 13, 2012. as required by FAR 31.205–46, Travel the extension. William Clark, Costs, is used to ensure that costs of Response: Serious consideration is Acting Director, Federal Acquisition Policy owned, leased, or chartered aircraft are given, during the open comment period, Division, Office of Acquisition Policy, Office properly charged against Government to all comments received and of Governmentwide Policy. contracts and that directly associated adjustments are made to the paperwork [FR Doc. 2012–23139 Filed 9–18–12; 8:45 am] costs of unallowable activities are not burden estimate based on reasonable BILLING CODE 6820–EP–P charged to such contracts. considerations provided by the public. B. Analysis of Public Comments This is evidenced, as the respondent notes, in FAR Case 2007–006 where an DEPARTMENT OF DEFENSE One respondent submitted public adjustment was made from the total comments on the extension of the preparation hours from three to 60. This Office of the Secretary previously approved information change was made considering Availability of the Fiscal Year 2011 collection. The analysis of the public particularly the hours that would be Inventory of Contracts for Services comments is summarized as follows: required for review within the company, Comment: The respondent prior to release to the Government. AGENCY: Department of Defense (DoD). commented that the extension of the The burden is prepared taking into ACTION: Notice of availability. information collection would violate the consideration the necessary criteria in fundamental purposes of the Paperwork OMB guidance for estimating the SUMMARY: DoD announces the Reduction Act because of the burden it paperwork burden put on the entity availability of the Inventory of Contracts puts on the entity submitting the submitting the information. For for Services for Fiscal Year 2011 information and the agency collecting example, consideration is given to an pursuant to section 807 of the National the information. entity reviewing instructions; using Defense Authorization Act of Fiscal Response: In accordance with the technology to collect, process, and Year 2008. Inventory is available to the Paperwork Reduction Act (PRA), disclose information; adjusting existing public. agencies can request OMB approval of practices to comply with requirements; DATES: Comments should be submitted an existing information collection. The searching data sources; completing and by October 10, 2012.

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ADDRESSES: Submit comments to: Office docket number for this Federal Register SYSTEM MANAGER(S) AND ADDRESS: of the Director, Defense Procurement document. The general policy for Delete and replace with ‘‘Chief, and Acquisition Policy, ATTN: OUSD comments and other submissions from Freedom of Information and Privacy (AT&L) DPAP (CPIC), 3060 Defense members of the public is to make these Office, Defense Threat Reduction Pentagon, Washington, DC 20301–3060. submissions available for public Agency, 8725 John J. Kingman Road, Comments also may be submitted by viewing on the Internet at http:// Fort Belvoir, VA 22060–6201.’’ email to [email protected]. www.regulations.gov as they are NOTIFICATION PROCEDURE: FOR FURTHER INFORMATION CONTACT: Jeff received without change, including any Grover, telephone 703–697–9352. personal identifiers or contact Delete and replace with ‘‘Individuals seeking to determine whether SUPPLEMENTARY INFORMATION: In information. information about themselves is accordance with section 2330a of title FOR FURTHER INFORMATION CONTACT: Ms. contained in this system of records 10 United States Code, as amended by Juanita Gaines, Freedom of Information should submit a written request to the section 807 of the National Defense and Privacy Office, Defense Threat Chief, Freedom of Information and Authorization Act for Fiscal Year 2008, Reduction Agency, 8725 John J. Privacy Office, Defense Threat the Office of the Deputy Director, Kingman Road, Fort Belvoir, VA 22060– Reduction Agency, 8725 John J. Defense Procurement and Acquisition 6201 or by phone at (703) 767–1771. Kingman Road, Fort Belvoir, VA 22060– Policy, Contract Policy and SUPPLEMENTARY INFORMATION: The 6201. International Contracting (DPAP/CPIC) Defense Threat Reduction Agency Request should contain individual’s will make available to the public the systems of records notices subject to the name, address, and proof of identity annual inventory of contracts for Privacy Act of 1974 (5 U.S.C. 552a), as (photo identification or must provide a services. The inventory is posted to the amended, have been published in the notarized statement or an unsworn Defense Procurement and Acquisition Federal Register and are available from declaration in accordance with 28 Policy Web site at: http:// the address in FOR FURTHER INFORMATION U.S.C. 1746, in the following format: www.acq.osd.mil/dpap/cpic/cp/ CONTACT. If executed outside the United States: acquisition_of_services_policy.html. The proposed changes to the records ‘I declare (or certify, verify, or state) Manuel Quinones, systems being amended are set forth under penalty of perjury under the laws Editor, Defense Acquisition Regulations below. The proposed amendments are of the United States of America that the System. not within the purview of subsection (r) foregoing is true and correct. Executed [FR Doc. 2012–23050 Filed 9–18–12; 8:45 am] of the Privacy Act of 1974 (5 U.S.C. on (date). (Signature).’ BILLING CODE 5001–06–P 552a), as amended, which requires the If executed within the United States, submission of a new or altered system its territories, possessions, or report. commonwealths: ‘I declare (or certify, DEPARTMENT OF DEFENSE Dated: September 14, 2012. verify, or state) under penalty of perjury that the foregoing is true and correct. Aaron Siegel, Office of the Secretary Executed on (date). (Signature).’ ’’ Alternate OSD Federal Register Liaison [Docket ID: DoD–2012–OS–0115] Officer, Department of Defense. RECORD ACCESS PROCEDURES: Privacy Act of 1974; System of HDTRA 014 Delete and replace with ‘‘Individuals Records seeking to access records about SYSTEM NAME: themselves contained in this system of AGENCY: Defense Threat Reduction Student Records (May 9, 2007, 72 FR records should address written inquiries Agency, DoD. 26343). to the Chief, Freedom of Information ACTION: Notice to amend three Systems and Privacy Office, Defense Threat of Records. CHANGES: Reduction Agency, 8725 John J. * * * * * Kingman Road, Fort Belvoir, VA 22060– SUMMARY: The Defense Threat Reduction 6201. Agency is amending three systems of CONTESTING RECORD PROCEDURES: Request should contain individual’s records notices in its existing inventory Delete and replace with ‘‘The DTRA name, address, and proof of identity of record systems subject to the Privacy rules for accessing records and for (photo identification or must provide a Act of 1974 (5 U.S.C. 552a), as amended. contesting contents and appealing notarized statement or an unsworn DATES: This proposed action will be initial agency determinations are declaration in accordance with 28 effective on October 22, 2012 unless published in DTRA Instruction 5400.11, U.S.C. 1746, in the following format: comments are received which result in DTRA privacy program; 32 CFR 318; or If executed outside the United States: a contrary determination. Comments may be obtained from the Chief, ‘I declare (or certify, verify, or state) will be accepted on or before October Freedom of Information and Privacy under penalty of perjury under the laws 19, 2012. Office, Defense Threat Reduction of the United States of America that the ADDRESSES: You may submit comments, Agency, 8725 John J. Kingman Road, foregoing is true and correct. Executed identified by docket number and title, Fort Belvoir, VA 22060–6201.’’ on (date). (Signature).’ by any of the following methods: * * * * * If executed within the United States, • Federal Rulemaking Portal: http:// its territories, possessions, or www.regulations.gov. Follow the HDTRA 023 commonwealths: ‘I declare (or certify, instructions for submitting comments. verify, or state) under penalty of perjury • Mail: Federal Docket Management SYSTEM NAME: that the foregoing is true and correct. System Office, 4800 Mark Center Drive, Reasonable Accommodation Program Executed on (date). (Signature).’ ’’ East Tower, 2nd Floor, Suite 02G09, (July 9, 2007, 72 FR 37201). Alexandria, VA 22350–3100. CONTESTING RECORD PROCEDURES: Instructions: All submissions received CHANGES: Delete and replace with ‘‘The DTRA must include the agency name and * * * * * rules for accessing records and for

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contesting contents, and appealing RECORD SOURCE CATEGORIES: below. The proposed amendment is not initial agency determinations are Delete and replace with ‘‘The within the purview of subsection (r) of published in DTRA Instruction 5400.11, individual and official personnel office the Privacy Act of 1974, (5 U.S.C. 552a), DTRA privacy program; 32 CFR 318; or documents containing point-of-contact as amended, which requires the may be obtained from the Chief, information.’’ submission of a new or altered system Freedom of Information and Privacy * * * * * report. Office, Defense Threat Reduction [FR Doc. 2012–23068 Filed 9–18–12; 8:45 am] Dated: September 14, 2012. Agency, 8725 John J. Kingman Road, BILLING CODE 5001–06–P Aaron Siegel, Fort Belvoir, VA 22060–6201.’’ Alternate OSD Federal Register Liaison * * * * * Officer, Department of Defense. DEPARTMENT OF DEFENSE HDTRA 024 T5500b Office of the Secretary SYSTEM NAME: SYSTEM NAME: [Docket ID: DoD–2012–OS–0091] Recall Roster (May 9, 2007, 72 FR Garnishment Processing Files (August 26344). Privacy Act of 1974; System of 24, 2005, 70 FR 49589). Records CHANGES: CHANGES: AGENCY: * * * * * Defense Finance and * * * * * Accounting Service, DoD. SYSTEM MANAGER(S) AND ADDRESS: ACTION: Notice to amend two Systems of SYSTEM NAME: Delete and replace with ‘‘Chief, Records. Delete entry and replace with Freedom of Information and Privacy SUMMARY: The Defense Finance and ‘‘Integrated Garnishment System (IGS).’’ Office, Defense Threat Reduction Accounting Service is amending two * * * * * Agency, 8725 John J. Kingman Road, systems of records notices in its existing Fort Belvoir, VA 22060–6201.’’ inventory of record systems subject to NOTIFICATION PROCEDURE: Delete entry and replace with NOTIFICATION PROCEDURE: the Privacy Act of 1974 (5 U.S.C. 552a), as amended. ‘‘Individuals seeking to determine Delete and replace with ‘‘Individuals DATES: This proposed action will be whether information about themselves seeking to determine whether effective on October 22, 2012 unless is contained in this record system information about themselves is comments are received which result in should address written inquiries to the contained in this system of records a contrary determination. Comments Defense Finance and Accounting should submit a written request to the will be accepted on or before October Service, Freedom of Information/ Chief, Freedom of Information and 19, 2012. Privacy Act Program Manager, Privacy Office, Defense Threat ADDRESSES: You may submit comments, Corporate Communications, DFAS– Reduction Agency, 8725 John J. identified by docket number and title, HKC/IN, 8899 E. 56th Street, Kingman Road, Fort Belvoir, VA 22060– by any of the following methods: Indianapolis, IN 46249–0150. 6201. • Federal Rulemaking Portal: http:// Requests should contain individual’s Written requests should contain the www.regulations.gov. Follow the full name, SSN, current address, and individual’s full name and duty instructions for submitting comments. provide a reasonable description of station.’’ • Mail: Federal Docket Management what they are seeking.’’ System Office, 4800 Mark Center Drive, RECORD ACCESS PROCEDURES: East Tower, 2nd Floor, Suite 02G09, RECORD ACCESS PROCEDURES: Delete and replace with ‘‘Individuals Alexandria, VA 22350–3100. Delete entry and replace with seeking to access records about Instructions: All submissions received ‘‘Individuals seeking access to themselves contained in this system of must include the agency name and information about themselves contained records should address written inquiries docket number for this Federal Register in this record system should address to the Chief, Freedom of Information document. The general policy for written inquiries to Defense Finance and Privacy Office, Defense Threat comments and other submissions from and Accounting Service, Freedom of Reduction Agency, 8725 John J. members of the public is to make these Information/Privacy Act Program Kingman Road, Fort Belvoir, VA 22060– submissions available for public Manager, Corporate Communications, 6201. viewing on the Internet at http:// DFAS–HKC/IN, 8899 E. 56th Street, Written requests should contain the www.regulations.gov as they are Indianapolis, IN 46249–0150. individual’s full name and duty received without change, including any Request should contain individual’s station.’’ personal identifiers or contact full name, SSN, current address, and information. telephone number.’’ CONTESTING RECORD PROCEDURES: FOR FURTHER INFORMATION CONTACT: Mr. Delete and replace with ‘‘The DTRA Gregory Outlaw, (317) 510–4591. CONTESTING RECORD PROCEDURES: rules for accessing records and for SUPPLEMENTARY INFORMATION: The Delete entry and replace with ‘‘The contesting contents and appealing Defense Finance and Accounting DFAS rules for accessing records, for initial agency determinations are Service systems of records notices contesting contents and appealing published in DTRA Instruction 5400.11, subject to the Privacy Act of 1974 (5 initial agency determinations are DTRA privacy program; 32 CFR 318; or U.S.C. 552a), as amended, have been published in DFAS Regulation, 32 CFR may be obtained from the Chief, published in the Federal Register and part 324; or may be obtained from the Freedom of Information and Privacy are available from the address in FOR Defense Finance and Accounting Office, Defense Threat Reduction FURTHER INFORMATION CONTACT. Service, Freedom of Information/ Agency, 8725 John J. Kingman Road, The proposed changes to the record Privacy Act Program Manager, Fort Belvoir, VA 22060–6201.’’ systems being amended are set forth Corporate Communications, DFAS–

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HKC/IN, 8899 E. 56th Street, DFAS–HKC/IN, 8899 E. 56th Street, viewing on the Internet at http:// Indianapolis, IN 46249–0150.’’ Indianapolis, IN 46249–0150. www.regulations.gov as they are * * * * * Request should contain individual’s received without change, including any full name, SSN, current address, and personal identifiers or contact EXEMPTIONS CLAIMED FOR THE SYSTEM: telephone number.’’ information None. CONTESTING RECORD PROCEDURES: FOR FURTHER INFORMATION CONTACT: Mr. * * * * * Delete entry and replace with ‘‘The Charles J. Shedrick, Department of the T7290 DFAS rules for accessing records, for Air Force Privacy Office, Air Force contesting contents and appealing Privacy Act Office, Office of Warfighting SYSTEM NAME: initial agency determinations are Integration and Chief Information Nonappropriated Fund Accounts published in DFAS Regulation, 32 CFR officer, ATTN: SAF/CIO A6, 1800 Air Receivable System (September 1, 2005, part 324; or may be obtained from the Force Pentagon, Washington, DC 20330– 70 FR 52079) Defense Finance and Accounting 1800, or by phone at (202) 404–6575. CHANGES: Service, Freedom of Information/ SUPPLEMENTARY INFORMATION: The * * * * * Privacy Act Program Manager, Department of the Air Force’s notices Corporate Communications, DFAS– for systems of records subject to the AUTHORITY FOR MAINTENANCE OF THE SYSTEM: HKC/IN, 8899 E. 56th Street, Privacy Act of 1974 (5 U.S.C. 552a), as Delete entry and replace with ‘‘5 Indianapolis, IN 46249–0150.’’ amended, have been published in the U.S.C. 5514, Installment deduction for * * * * * Federal Register and are available from indebtedness to the United States; 26 the address in FOR FURTHER INFORMATION U.S.C. 6103(m)(2), Confidentiality and EXEMPTIONS CLAIMED FOR THE SYSTEM: CONTACT. disclosure of returns and return None. The proposed systems reports, as information; 31 U.S.C. 3511, Judicial [FR Doc. 2012–23067 Filed 9–18–12; 8:45 am] required by 5 U.S.C. 552a(r) of the review of requests for information; 31 BILLING CODE 5001–06–P Privacy Act, were submitted on August U.S.C. 3512, Executive agency 13, 2012 to the House Committee on accounting and other financial Oversight and Government Reform, the management reports and plans; 31 DEPARTMENT OF DEFENSE Senate Committee on Homeland U.S.C. 3513, Financial reporting and Security and Governmental Affairs, and Department of the Air Force accounting system; 31 U.S.C. 3514, the Office of Management and Budget Responsiveness to Congress; 31 U.S.C. [Docket ID: USAF–2012–0017] (OMB) pursuant to paragraph 4c of 3701, Definitions; 31 U.S.C. 3711, Appendix I to OMB Circular No. A–130, Collection and compromise; 31 U.S.C. Privacy Act of 1974; System of ‘‘Federal Agency Responsibilities for 3716, Administrative offset; 31 U.S.C. Records Maintaining Records About 3720, Powers of Secretary; and E.O. AGENCY: Department of the Air Force, Individuals,’’ dated February 8, 1996, 9397 (SSN), as amended.’’ DoD. (February 20, 1996, 61 FR 6427). * * * * * ACTION: Notice to Alter a System of Dated: September 14, 2012. STORAGE: Records. Aaron Siegel, Delete entry and replace with ‘‘Paper Alternate OSD Federal Register Liaison SUMMARY: The Department of the Air Officer, Department of Defense. records and electronic storage media.’’ Force proposes to alter a system of * * * * * records notice in its existing inventory F036 AFPC P of records systems subject to the Privacy NOTIFICATION PROCEDURE: SYSTEM NAME: Act of 1974 (5 U.S.C. 552a), as amended. Delete entry and replace with Separation Case Files (Officer and DATES: This proposed action will be ‘‘Individuals seeking to determine Airman) (May 9, 2003, 68 FR 24949). whether information about themselves effective on October 22, 2012 unless is contained in this record system comments are received which result in CHANGES: should address written inquiries to the a contrary determination. Comments * * * * * Defense Finance and Accounting will be accepted on or before October Service, Freedom of Information/ 19, 2012. SYSTEM LOCATION: Privacy Act Program Manager, ADDRESSES: You may submit comments, Delete entry and replace with Corporate Communications, DFAS– identified by docket number and title, ‘‘National Personnel Records Center, HKC/IN, 8899 E. 56th Street, by any of the following methods: Military Personnel Records Center, 9700 • Indianapolis, IN 46249–0150. Federal Rulemaking Portal: http:// Page Avenue, St. Louis, MO 63132– Requests should contain individual’s www.regulations.gov. 5100. Air Reserve Personnel Center, full name, SSN, current address, and Follow the instructions for submitting 6760 East Irvington Place, Records provide a reasonable description of comments. Branch, 4450, Denver, CO 80280–4450. • what they are seeking.’’ Mail: Federal Docket Management Air Force Personnel Center, 550 C. System Office, 4800 Mark Center Drive Street West, Suite 21, (Records Branch), RECORD ACCESS PROCEDURES: East Tower, 2nd Floor, Suite 02G09, Randolph AFB, TX 78150–4723.’’ Delete entry and replace with Alexandria, VA 22350–3100. ‘‘Individuals seeking access to Instructions: All submissions received CATEGORIES OF INDIVIDUALS COVERED BY THE information about themselves contained must include the agency name and SYSTEM: in this record system should address docket number for this Federal Register Delete entry and replace with ‘‘Air written inquiries to Defense Finance document. The general policy for Force Active Duty Officer and enlisted and Accounting Service, Freedom of comments and other submissions from personnel, retired Air Force Officer and Information/Privacy Act Program members of the public is to make these enlisted personnel, former Air Force Manager, Corporate Communications, submissions available for public Officer and enlisted personnel.’’

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CATEGORIES OF RECORDS IN THE SYSTEM: Air Force’s compilation of systems of commonwealths: ‘I declare (or certify, Delete entry and replace with records notices apply to this system.’’ verify, or state) under penalty of perjury ‘‘Individual’s Name, Social Security * * * * * that the foregoing is true and correct. Number (SSN), duty location, duty Executed on (date). (Signature)’. phone number, service member’s STORAGE: Individuals may appear in person at voluntary separation application; or Delete entry and replace with the responsible official’s office or memorandum from commander ‘‘Maintained in file folders, binders, and respective repository for records for initiating separation action; discharge electronic storage media.’’ personnel in a particular category. The agency which maintains the permanent board proceedings, finding, and RETRIEVABILITY: recommendation if applicable; record depends on the date of Delete entry and replace with ‘‘Name separation orders.’’ separation from the Air Force and and/or SSN.’’ whether the service member was AUTHORITY FOR MAINTENANCE OF THE SYSTEM: SAFEGUARDS: discharged (no remaining military Delete entry and replace with ‘‘10 Delete entry and replace with service obligation) or whether service U.S.C. 8013, as amended, Department of ‘‘Records are maintained by agencies member was transferred to reserves or the Air Force; Air Force Instruction identified as primary locations reflected guard upon separation from active duty. (AFI) 36–3206, Administrative above under ‘‘System Locations’’. Recommend individuals seeking Discharge Procedures For Access is limited to individuals who information regarding location of their Commissioned Officers; AFI 36–3207, request records for the performance of separation case file first contact the Separating Commissioned Officers; AFI their official duties. Records are stored Chief, Separation Branch, indicated 36–3208, Administrative Separation of in file cabinets in buildings that are above before traveling or appearing in Airmen, Air Force; AFI 36–3202, locked with controlled access entry person to determine location of their Separation Documents, AFI 36–3204, requirements. Electronic files are only records. Official mailing addresses are Procedures for applying as a accessed by authorized personnel with published as an appendix to the Air Conscientious Objector; and E.O. 9397 secure Common Access Card.’’ Force’s compilation of systems of (SSN), as amended.’’ records notices.’’ RETENTION AND DISPOSAL: PURPOSE(S): RECORD ACCESS PROCEDURES: Delete entry and replace with Delete entry and replace with ‘‘Temporary records are maintained for Delete entry and replace with ‘‘Records collected and information 90 days from date of separation, or 90 ‘‘Individuals seeking to access records contained therein are used by Secretary days from date of disapproval then about themselves contained in this of the Air Force or delegated authority destroyed by tearing shredding, or system should address written inquiries to determine whether officer or airman burning. Master records designated as to the Chief, Separations Branch, Air is approved or disapproved for permanent, remain in military Force Military Personnel Center, 550 C separation in accordance with personnel records system and Street West, Suite 3, Randolph Air Force applicable statutes and governing permanently retired with master Base, TX 78150–4713. For verification purposes, individual Department of Defense and Air Force personnel record group.’’ Instructions.’’ should provide full name, SSN, and SYSTEM MANAGER(S) AND ADDRESS: signature. In addition, requester must ROUTINE USES OF RECORDS MAINTAINED IN THE Delete entry and replace with ‘‘Chief, provide notarized statement or unsworn SYSTEM, INCLUDING CATEGORIES OF USERS AND declaration made in accordance with 28 THE PURPOSES OF SUCH USES: Retirements and Separations Branch, 550 C Street West, Suite 3, Randolph U.S.C. 1746, in the following format: Delete entry and replace with ‘‘In Air Force Base, TX 78150–4713.’’ If executed outside the United States: addition to those disclosures generally ‘I declare (or certify, verify, or state) permitted under 5 U.S.C. 552a(b) of the NOTIFICATION PROCEDURES: under penalty of perjury under the laws Privacy Act of the 1974, these records Delete entry and replace with of the United States of America that the contained therein may specifically be ‘‘Individuals seeking to determine foregoing is true and correct. Executed disclosed outside the DoD as a routine whether this system of records contains on (date). (Signature)’. use pursuant to 5 U.S.C. 552a(b)(3) as information on themselves should If executed within the United States, follows: address written inquiries to the Chief, its territories, possessions, or Department of Veterans Affairs (VA) Separations Branch, Air Force Personnel commonwealths: to determine eligibility for VA benefits, Center, 550 C Street West, Suite 3, ‘I declare (or certify, verify, or state) entitlements or medical care. Randolph Air Force Base, TX 78150– under penalty of perjury that the State Unemployment Compensation 4713. foregoing is true and correct. Executed offices for verification of military For verification purposes, individual on (date). (Signature)’. service related information for should provide full name, SSN, and Individuals may also complete a unemployment compensation claims. their signature. In addition, requester Standard Form 180, Request Pertaining Respective local state government must provide notarized statement or to Military Records, to request access to offices for verification of Vietnam ‘State unsworn declaration made in separation case files on themselves. Bonus’ eligibility. accordance with 28 U.S.C. 1746, in the Individuals may appear in person at the Department of Labor for claims of following format: responsible official’s office or respective civilian employees formerly in military If executed outside the United States: repository for records for personnel in a service, verification of service-related ‘I declare (or certify, verify, or state) particular category. Agency which information for unemployment under penalty of perjury under the laws maintains the permanent record compensation claims, investigations of of the United State of America that the depends on date of separation from the possible violations of labor laws and for foregoing is true and correct. Executed Air Force and whether service member pre-employment investigations. on (date). (Signature)’. was discharged (no remaining military The DoD Blanket Routine Uses If executed within the United States, service obligation) or whether service published at the beginning of the its territories, possessions, or member was transferred to the reserves

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or guard upon separation from active Disposal Determination/Approval; OMB initial purchaser. The warranty duty. Recommend individuals seeking Control Number 0704–0246. contained in the DD Form 1639 expires information regarding access to their Type of Request: Extension. by its terms five years from the date of separation case file first contact the Number of Respondents: 16,075. the sale. Chief, Separation Branch, indicated Responses per Respondent: 2.97. Affected Public: Businesses or other above before traveling or appearing in Annual Responses: 47,815. for-profit and not-for-profit institutions. person to determine the location of their Average Burden per Response: 1.01 Frequency: On occasion. records. Official mailing addresses are hours. Respondent’s Obligation: Required to published as an appendix to the Air Annual Burden Hours: 48,423. obtain or maintain benefits. Force’s compilation of system of records Needs and Uses: This requirement OMB Desk Officer: Ms. Jasmeet notices.’’ provides for the collection of Seehra. information related to providing Written comments and CONTESTING RECORD PROCEDURES: Government property to contractors; recommendations on the proposed Delete entry and replace with contractor use and management of information collection should be sent to ‘‘Requests for records or documents Government property; and reporting, Ms. Seehra at the Office of Management contained in this System of Records redistribution, and disposal of and Budget, Desk Officer for DoD, Room should be processed under the contractor inventory. 10236, New Executive Office Building, a. DFARS 245.302(1)(i) requires guidelines outlined in AFI 33–332, Air Washington, DC 20503. contractors to request and obtain Force Privacy Program, and Department You may also submit comments, contracting officer approval before using of Defense (DoD) 5400.7, DoD Freedom identified by docket number and title, Government property on work for of Information Act Program; and Air by the following method: foreign governments and international Force Manual 33–332, Freedom of • Federal eRulemaking Portal: http:// organizations. Information Program.’’ www.regulations.gov. Follow the b. DFARS subpart 245.70, Plant instructions for submitting comments. RECORD SOURCE CATEGORIES: Clearance Forms, prescribes the Delete entry and replace with requirements for the use of the Intructions: All submissions received ‘‘Documents generated by the service following forms: must include the agency name, docket member, supervisor(s), and (1) DD Form 1149, Requisition and number, and title for the Federal commander(s) related to separation or Invoice/Shipping Document (JUL 2006): Register document. The general policy discharge to include separation Prescribed at DFARS 245.7001–2, the for comments and other public application, memorandums, and form is completed by the contractor for submissions from members of the public supporting documentation.’’ transfer and donation of excess is to make these submissions available contractor inventory. for public viewing on the internet at EXEMPTIONS CLAIMED FOR THE SYSTEM: (2) DD Form 1348–1A, DoD Single http://www.regulations.gov as they are None. Line Item Release/Receipt Document: received without change, including any [FR Doc. 2012–23066 Filed 9–18–12; 8:45 am] Prescribed at DFARS 245.7001–3, the personal identifiers or contact information provided. To confirm BILLING CODE 5001–05–P form is used when authorized by the plant clearance officer. receipt of your comment(s), please (3) DD Form 1640, Request for Plant check http://www.regulations.gov DEPARTMENT OF DEFENSE Clearance (JUN 2003): Prescribed at approximately two to three days after DFARS 245.7001–4, the contractor submission to verify posting (except Defense Acquisition Regulation completes this form to request plant allow 30 days for posting of comments System clearance assistance or transfer plant submitted by mail). DoD Clearance Officer: Ms. Patricia [Docket No. DARS–2012–0036–001] clearance. (4) DD Form 1641, Disposal Toppings. Submission for OMB Review; Determination/Approval (APR 2000): Written requests for copies of the Comment Request Prescribed at DFARS 245.7001–5, this information collection proposal should form is used to record rationale for the be sent to Ms. Toppings at WHS/ESD/ ACTION: Notice. following disposal determinations: Information Management Division, 4800 (i) Downgrade useable property to Mark Center Drive, 2nd Floor, East The Defense Acquisition Regulations scrap. Tower, Suite 02G09, Alexandria, VA System has submitted to OMB for (ii) Abandonment or destruction. 22350–3100. clearance, the following proposal for (iii) Noncompetitive sale of surplus Manuel Quinones, collection of information under the property. provisions of the Paperwork Reduction (iv) Other disposal actions. Editor, Defense Acquisition Regulations System. Act (44 U.S.C. chapter 35). c. In addition, the following DD form DATES: Consideration will be given to all is prescribed in the clause at DFARS [FR Doc. 2012–22929 Filed 9–18–12; 8:45 am] comments received by October 19, 2012. 252.245–7004, Reporting, Reutilization, BILLING CODE 6820–ep–P Title, Associated Forms and OMB and Disposal (AUG 2011): Number: Defense Federal Acquisition DD Form 1639, Scrap Warranty: When DEPARTMENT OF DEFENSE Regulation Supplement (DFARS) part scrap is sold by the contractor, after 245, Government Property, and the Government approval, the purchaser of Department of the Navy following related clauses and forms: DD the scrap material(s) may be required to Form 1149, Requisition and Invoice/ certify, by signature on the DD Form Shipping Document; DD Form 1348–1A, 1639, that (i) the purchased material [Docket ID USN–2012–0017] DoD Single Line item Release/Receipt will be used only as scrap and (ii), if Privacy Act of 1974; System of Document; DD Form 1639, Scrap sold by the purchaser, the purchaser Records Warranty; DD Form 1640, Request for will obtain an identical warranty from Plant Clearance; DD Form 1641, the individual buying the scrap from the AGENCY: Department of the Navy, DoD.

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ACTION: Notice to Delete a System of application, and is now covered by Relay Service (FIRS) at 1–800–877– Records. System of Records, NM01500–3, 8339. Advanced Skills Management (ASM) SUMMARY: The Department of the Navy SUPPLEMENTARY INFORMATION: Section System Records (November 12, 2008, 73 3506 of the Paperwork Reduction Act of is deleting a system of records notice in FR 66883). Only convenience copies of its existing inventory of record systems 1995 (44 U.S.C. Chapter 35) requires the PISTOL data are currently retained that Federal agencies provide interested subject to the Privacy Act of 1974 (5 and shall be destroyed in accordance U.S.C. 552a), as amended. parties an early opportunity to comment with the National Archives and Records on information collection requests. The DATES: This proposed action will be Administration disposition schedule. effective on October 22, 2012 unless Director, Information Collection Therefore, NM01070–14, Personnel Clearance Division, Privacy, Information comments are received which result in Information System for Training, a contrary determination. Comments and Records Management Services, Operations, and Logistics (PISTOL) can Office of Management, publishes this will be accepted on or before October be deleted. 19, 2012. notice containing proposed information [FR Doc. 2012–23069 Filed 9–18–12; 8:45 am] collection requests at the beginning of ADDRESSES: You may submit comments, BILLING CODE 5001–06–P the Departmental review of the identified by docket number and title, information collection. The Department by any of the following methods: • Federal Rulemaking Portal: http:// of Education is especially interested in public comment addressing the www.regulations.gov. Follow the DEPARTMENT OF EDUCATION instructions for submitting comments. following issues: (1) Is this collection • necessary to the proper functions of the Mail: Federal Docket Management Notice of Submission for OMB Review; System Office, 4800 Mark Center Drive, Department; (2) will this information be Institute of Education Sciences; processed and used in a timely manner; East Tower, Suite 02G09, Alexandria, NPEFS 2011–2014: Common Core of VA 22350–3100. (3) is the estimate of burden accurate; Data (CCD) National Public Education (4) how might the Department enhance Instructions: All submissions received Financial Survey must include the agency name and the quality, utility, and clarity of the docket number for this Federal Register SUMMARY: The National Public information to be collected; and (5) how document. The general policy for Education Financial Survey (NPEFS) is might the Department minimize the comments and other submissions from an annual collection of state-level burden of this collection on the members of the public is to make these finance data that has been included in respondents, including through the use submissions available for public the National Center of Education of information technology. Please note viewing on the Internet at http:// Statistics’ Common Core of Data since that written comments received in www.regulations.gov as they are FY 1982 (school year 1981–82). NPEFS response to this notice will be received without change, including any provides function expenditures by considered public records. personal identifiers or contact salaries, benefits, purchased services, Title of Collection: NPEFS 2011–2014: information. and supplies, and includes federal, Common Core of Data (CCD) National state, and local revenues by source. Public Education Financial Survey. FOR FURTHER INFORMATION CONTACT: Ms. OMB Control Number: 1850–0067. Robin Patterson, Department of the DATES: Interested persons are invited to Type of Review: Extension. Navy, DNS–36, 2000 Navy Pentagon, submit comments on or before October Total Estimated Number of Annual Washington, DC 20350–2000 or call at 19, 2012. Responses: 56. (202) 685–6545. ADDRESSES: Written comments Total Estimated Number of Annual SUPPLEMENTARY INFORMATION: The regarding burden and/or the collection Burden Hours: 5,264. Department of the Navy systems of activity requirements should be Abstract: The NPEFS collection records notices subject to the Privacy electronically mailed to includes data on all state-run schools Act of 1974 (5 U.S.C. 552a), as amended, [email protected] or mailed to U.S. from the 50 states, the District of have been published in the Federal Department of Education, 400 Maryland Columbia, American Samoa, the Register and are available from the Avenue SW., LBJ, Washington, DC Northern Mariana Islands, Guam, Puerto address in FOR FURTHER INFORMATION 20202–4537. Copies of the proposed Rico, and the Virgin Islands. NPEFS CONTACT. The proposed deletion is not information collection request may be data are used for a wide variety of within the purview of subsection (r) of accessed from http://edicsweb.ed.gov, purposes, including to calculate federal the Privacy Act of 1974 (5 U.S.C. 552a), by selecting the ‘‘Browse Pending program allocations such as states’ as amended, which requires the Collections’’ link and by clicking on ‘‘average per-pupil expenditure’’ (SPPE) submission of a new or altered system link number 04890. When you access for elementary and secondary report. the information collection, click on education, certain formula grant Dated: September 14, 2012. ‘‘Download Attachments’’ to view. programs (e.g. Title I, Part A of the Aaron Siegel, Written requests for information should Elementary and Secondary Education Alternate OSD Federal Register Liaison be addressed to U.S. Department of Act of 1965 (ESEA) as amended, Impact Officer, Department of Defense. Education, 400 Maryland Avenue SW., Aid, and Indian Education programs). LBJ, Washington, DC 20202–4537. Furthermore, other federal programs, Deletion: Requests may also be electronically such as the Educational Technology NM01070–14 mailed to [email protected] or faxed State Grants program (Title II Part D of Personnel Information System for to 202–401–0920. Please specify the the ESEA), the Education for Homeless Training, Operations, and Logistics complete title of the information Children and Youth Program under (PISTOL) (June 8, 2009, 74 FR 27125). collection and OMB Control Number Title VII of the McKinney-Vento when making your request. Homeless Assistance Act, and the REASON: Individuals who use a Teacher Quality State Grants program All data from PISTOL was transferred telecommunications device for the deaf (Title II Part A of the ESEA) make use to the Advanced Skills Management (TDD) may call the Federal Information of SPPE data indirectly because their

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formulas are based, in whole or in part, 1995 (44 U.S.C. Chapter 35) requires The analyses will be conducted on State Title I Part A allocations. No that Federal agencies provide interested internally by IES staff on data that is changes have been made to the NPEFS parties an early opportunity to comment stripped of personally identifiable since its last Office of Management and on information collection requests. The information. The results will be Budget approval in January 2012. This Director, Information Collection summarized in an internal memo. submission is to conduct the annual Clearance Division, Privacy, Information Dated: September 14, 2012. and Records Management Services, collection of state-level finance data for Darrin A. King, FY 2012–2014. Office of Management, publishes this notice containing proposed information Director, Information Collection Clearance Dated: September 14, 2012. Division, Privacy, Information and Records collection requests at the beginning of Darrin A. King, Management Services, Office of Management. the Departmental review of the Director, Information Collection Clearance information collection. The Department [FR Doc. 2012–23095 Filed 9–18–12; 8:45 am] Division, Privacy, Information and Records BILLING CODE 4000–01–P Management Services, Office of Management. of Education is especially interested in public comment addressing the [FR Doc. 2012–23094 Filed 9–18–12; 8:45 am] following issues: (1) is this collection DEPARTMENT OF EDUCATION BILLING CODE 4000–01–P necessary to the proper functions of the Department; (2) will this information be Notice of Submission for OMB Review; processed and used in a timely manner; DEPARTMENT OF EDUCATION Office of Postsecondary Education; (3) is the estimate of burden accurate; Higher Education Act (HEA) Title II Notice of Submission for OMB Review; (4) how might the Department enhance Report Cards on State Teacher Institute of Education Sciences; the quality, utility, and clarity of the Credentialing and Preparation FAFSA Completion Project Evaluation information to be collected; and (5) how might the Department minimize the SUMMARY: The Higher Education SUMMARY: The Institute of Education burden of this collection on the Opportunity Act of 2008 (HEOA) calls Sciences (IES) at the U.S. Department of respondents, including through the use for annual reports from states and Education (ED) is conducting a rigorous of information technology. Please note institutions of higher education (IHEs) study of the Free Application for that written comments received in on the quality of teacher preparation Federal Student Aid (FAFSA) response to this notice will be and state teacher certification and Completion Project. The project will considered public records. licensure (Pub. L. 110–315, sections provide 80 Local Educational Agencies Title of Collection: FAFSA 205–208). The purpose of the reports is or school districts with access to data on Completion Project Evaluation. to provide greater accountability in the whether specific students have OMB Control Number: Pending. preparation of the nation’s teaching completed the FAFSA. Type of Review: New. Total Estimated Number of Annual forces and to provide information and DATES: Interested persons are invited to incentives for its improvement. submit comments on or before October Responses: 200. Total Estimated Number of Annual 19, 2012. DATES: Interested persons are invited to Burden Hours: 1,120. submit comments on or before October ADDRESSES: Written comments Abstract: This information is intended 19, 2012. regarding burden and/or the collection to help schools implement targeted activity requirements should be outreach to seniors and their families ADDRESSES: Written comments electronically mailed to who have not yet submitted a FAFSA, regarding burden and/or the collection [email protected] or mailed to U.S. or who submitted a FAFSA that may be activity requirements should be Department of Education, 400 Maryland incomplete. The evaluation of the electronically mailed to Avenue SW., LBJ, Washington, DC project is being conducted by IES staff [email protected] or mailed to U.S. 20202–4537. Copies of the proposed in the National Center for Education Department of Education, 400 Maryland information collection request may be Evaluation. The study will use a Avenue SW, LBJ, Washington, DC accessed from http://edicsweb.ed.gov, delayed-treatment control group design, 20202–4537. Copies of the proposed by selecting the ‘‘Browse Pending and will examine whether there is an information collection request may be Collections’’ link and by clicking on impact from access to the data on accessed from http://edicsweb.ed.gov, link number 04887. When you access students’ application for and receipt of by selecting the ‘‘Browse Pending the information collection, click on federal student aid and a proxy for Collections’’ link and by clicking on ‘‘Download Attachments’’ to view. college enrollment. The data collection link number 04871. When you access Written requests for information should to address these research questions will the information collection, click on be addressed to U.S. Department of create minimal burden on respondents ‘‘Download Attachments’’ to view. Education, 400 Maryland Avenue SW., and have limited cost to the Written requests for information should LBJ, Washington, DC 20202–4537. government. IES is requesting be addressed to U.S. Department of Requests may also be electronically permission to obtain lists of high Education, 400 Maryland Avenue SW, mailed to [email protected] or faxed schools and student rosters from the LBJ, Washington, DC 20202–4537. to 202–401–0920. Please specify the participating districts or their high Requests may also be electronically complete title of the information schools. Other data for the study— mailed to [email protected] or faxed collection and OMB Control Number completion of a FAFSA, receipt of Pell to 202–401–0920. Please specify the when making your request. Grant, and a proxy for college complete title of the information Individuals who use a enrollment (whether an institution of collection and OMB Control Number telecommunications device for the deaf higher education has drawn down the when making your request. (TDD) may call the Federal Information Pell Grant funds for individual Individuals who use a Relay Service (FIRS) at 1–800–877– students)—will come from existing ED telecommunications device for the deaf 8339. administrative data that will not (TDD) may call the Federal Information SUPPLEMENTARY INFORMATION: Section generate any new burden because they Relay Service (FIRS) at 1–800–877– 3506 of the Paperwork Reduction Act of are already collected for other purposes. 8339.

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SUPPLEMENTARY INFORMATION: Section Dated: September 14, 2012. Land-Use Plan (CLUP), based on 3506 of the Paperwork Reduction Act of Darrin A. King, analyses presented in the Hanford 1995 (44 U.S.C. chapter 35) requires that Director, Information Collection Clearance Comprehensive Land-Use Plan Federal agencies provide interested Division, Privacy, Information and Records Environmental Impact Statement (HCP– parties an early opportunity to comment Management Services, Office of Management. EIS) [DOE/EIS–0222; September 1999; on information collection requests. The [FR Doc. 2012–23097 Filed 9–18–12; 8:45 am] Record of Decision (ROD) (64 FR 61615; Director, Information Collection BILLING CODE 4000–01–P November 12, 1999)]. The HCP–EIS Clearance Division, Privacy, Information recognized the potential for future and Records Management Services, conveyance of some industrial- Office of Management, publishes this DEPARTMENT OF ENERGY designated lands to the local community notice containing proposed information for economic development. The CLUP collection requests at the beginning of Notice of Intent To Prepare an was reaffirmed in a Supplement the Departmental review of the Environmental Assessment (EA) for Analysis to the HCP–EIS (DOE/EIS– information collection. The Department the Proposed Conveyance of Land at 0222–SA–01; June 2008) and amended of Education is especially interested in the Hanford Site, Richland, WA and ROD (73 FR 55824; September 26, public comment addressing the Notice of Potential Floodplain and 2008). following issues: (1) Is this collection Wetland Involvement The EA will analyze the reasonably necessary to the proper functions of the foreseeable environmental effects AGENCY: Department of Energy. Department; (2) will this information be associated with the probable future uses processed and used in a timely manner; ACTION: Notice of Intent to Prepare an of lands in the analysis area, based upon (3) is the estimate of burden accurate; Environmental Assessment. industry targets described in the (4) how might the Department enhance SUMMARY: Pursuant to the National TRIDEC proposal, including the quality, utility, and clarity of the Environmental Policy Act of 1969 warehousing and distribution; research information to be collected; and (5) how (NEPA) and the Council on and development; technology might the Department minimize the Environmental Quality (CEQ) and U.S. manufacturing; food processing and burden of this collection on the Department of Energy (DOE) NEPA agriculture; and ‘‘back office’’ (i.e., respondents, including through the use implementing regulations, DOE is business services). The proposed action of information technology. Please note announcing its intention to prepare an may affect floodplains and wetlands, so that written comments received in Environmental Assessment (EA; DOE/ this Notice of Intent also serves as a response to this notice will be EA–1915) to assess the potential notice of proposed floodplain or considered public records. wetland action in accordance with DOE Title of Collection: Higher Education environmental effects of conveying approximately 1,641 acres of Hanford floodplain and wetland environmental Act (HEA) Title II Report Cards on State review requirements. Teacher Credentialing and Preparation. Site land to a local economic OMB Control Number: 1840–0744. development organization. Conveyance DATES: DOE invites public comment on Type of Review: Revision. of the land could include title transfer, the scope of this Hanford Site Land Total Estimated Number of Annual lease, easement, license, or a Conveyance EA during a 30-day public Responses: 1,780. combination of these realty actions. The scoping period beginning September 19, Total Estimated Number of Annual Tri-City Development Council 2012 and ending on October 19, 2012. Burden Hours: 266,016. (TRIDEC), a DOE designated DOE will consider all comments Abstract: This request is approve Community Reuse Organization (CRO) received or postmarked by the end of revision of the state and institution and and 501(c)(6) nonprofit corporation, the scoping period to define the scope program report cards required by the submitted a proposal to DOE in May of this EA. Comments received or Higher Education Act of 1965, as 2011 (amended October 2011) postmarked after the end date will be amended in 2008 by the HEOA. States requesting the transfer of approximately considered to the extent practicable. A must report annually on criteria and 1,641 acres of land located in the public scoping meeting is scheduled for assessments required for initial teacher southeastern corner of the Hanford Site October 10, 2012. credentials using a State Report Card, near the City of Richland in Benton ADDRESSES: The public scoping meeting and IHEs with teacher preparation County, Washington for economic will be held from 5:30 p.m. to 8:30 p.m. programs (TPP), and TPPs outside of development purposes. DOE anticipates at the Richland Public Library in IHEs, must report on key program that there may be continuing mission Richland, Washington. DOE will issue elements on an Institution and Program needs, such as security and safety buffer stakeholder and media notifications and Report Card. IHEs and TPPs outside of zones on some of the requested lands, publish an additional notice on the date, IHEs report annually to their states on making them less suitable for time and location of the scoping program elements, including program conveyance. Therefore, the lands that meeting in the local newspaper before numbers, type, enrollment figures, will be addressed in the EA analysis the scheduled meeting. DOE will notify demographics, completion rates, goals will include the acreage requested by stakeholders and the media of any and assurances to the state. States, in TRIDEC and approximately 2,772 changes concerning the scoping turn, must report on TPP elements to additional acres adjacent to the meeting. the Secretary of Education in addition to requested lands. The EA will evaluate Scoping comments may be submitted information on assessment pass rates, the potential environmental impacts of by regular mail and addressed as state standards, initial credential types conveying approximately 1,641 acres of follows: Ms. Paula Call, NEPA and requirements, numbers of the total 4,413 acres included in the Document Manager, U.S. Department of credentials issued, TPP classification as analysis area. The acreage being Energy, Richland Operations Office, at-risk or low performing. The considered in the EA analysis is part of P.O. Box 550, MSIN A2–15, Richland, information from states, institutions, approximately 59 square miles of WA 99352. and programs is published annually in Hanford Site lands previously Scoping comments may also be The Secretary’s Report to Congress on designated by DOE for industrial uses submitted by email to Teacher Quality. under the Hanford Comprehensive [email protected].

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FOR FURTHER INFORMATION CONTACT: For 2004, and 2005, TRIDEC commissioned is important to note that at this time, no information on DOE’s proposed action, studies to develop strategies and target specific end users or development contact Ms. Call by mail or email as industries that would be most proposals have been identified or noted above in ADDRESSES, or at 509– appropriate for future economic proposed. In addition to reasonable 376–2048. development. TRIDEC also engaged in alternatives that may be identified For general information concerning marketing and recruitment activities during public scoping, the EA will DOE’s NEPA process, contact: Ms. Carol during this time period. Industries that analyze two alternatives: the No Action M. Borgstrom, Director, Office of NEPA were targeted in these studies and Alternative and the Proposed Action Policy and Compliance (GC–54), U.S. recruitment efforts included Alternative. Under the No Action Department of Energy, 1000 warehousing and distribution; research Alternative, DOE would retain Independence Avenue SW., and development; technology ownership and management of the land. Washington, DC 20585–0119, manufacturing; food processing and Under the Proposed Action Telephone: 202–586–4600, Fax: 202– agriculture; and ‘‘back office’’ (i.e., Alternative, DOE would convey 586–7031, Voice mail message: 1–800– business services). approximately 1,641 acres of 472–2756, Email: [email protected]. In February 2011, the Secretary of undeveloped land in response to the Additional information regarding Energy established a DOE-wide Task CRO’s land transfer request. The CRO DOE’s NEPA activities is available on Force on an Asset Revitalization plans to use, market, lease, sell, or the DOE NEPA Web site at http:// Initiative (ARI), to initiate a otherwise develop the land to conduct energy.gov/nepa. comprehensive review of DOE assets industrial development and commercial SUPPLEMENTARY INFORMATION: and possible disposition paths. DOE activities that are consistent with local submitted its report to Congress on the zoning and comprehensive land use Background progress of this Initiative in August plans. These lands are generally Situated along the Columbia River in 2011 (Asset Revitalization Initiative bounded by Horn Rapids Road and southeastern Washington, DOE’s 586- Report to Congress, Department of Highway 240 to the south; Route 10 to square-mile Hanford Site is undergoing Energy, August 2011). Also in 2011, the west; and Stevens Drive or Route 4 extensive efforts to clean up TRIDEC submitted a request to DOE for South to the east and north, and are contamination resulting from past title transfer of approximately 1,641 located near the northeast boundary of nuclear defense research and acres of undeveloped land located near the City of Richland. The TRIDEC development activities dating back to the southeastern boundary of the request includes two parcels: (1) A World War II. DOE has real property Hanford Site, pursuant to 10 CFR part 1,341-acre parcel located northwest of conveyance authority under a number of 770. TRIDEC’s proposal states its intent the intersection of Horn Rapids Road different laws including the Atomic to work with the City of Richland, the and Stevens Drive, with the west and Energy Act of 1954 (AEA). Section Port of Benton, and Benton County to north boundaries adjacent to the 161(g) of the AEA authorizes DOE to establish the property as an Industrial Hanford Firing Range and an active convey real property by sale or lease to Development and Energy Park. The borrow pit; and (2) a 300-acre parcel another party. proposal states that TRIDEC may located 1⁄2-mile north of the 1,341-acre DOE may hold harmless and subsequently transfer ownership either parcel, separated from the 1,341-acre indemnify a person or entity to whom to a private user or to one of its public parcel by the active borrow pit. DOE real property is conveyed against agency partners, such as the City of anticipates that there may be continuing liability for pre-existing contamination Richland. mission needs, such as security and that may have resulted from DOE (or human health and safety buffer zones, predecessor agency) activities at the site. Purpose and Need for Agency Action on portions of the lands requested by Such indemnification is consistent with TRIDEC, the recognized CRO for the TRIDEC. Therefore, the EA analysis will the Comprehensive Environmental Hanford Site, has requested transfer of consider for conveyance the parcels Response, Compensation, and Liability 1,641 acres of Hanford lands for requested by TRIDEC as well as the Act (CERCLA) Section economic development. Consistent with adjacent 2,772-acre parcel roughly 120(h)(3)(A)(ii)(II); EPA’s ‘‘Policy the Hanford CLUP which designates the bounded by the 1,341-acre parcel to the Towards Landowners and Transferees of subject lands for industrial use, and the south, the Hanford Firing Range to the Federal Facilities’’ (EPA, 1997); and HCP–EIS which recognized the west, the Hanford Railroad and Route 4 DOE regulation 10 Code of Federal potential for future conveyance of South to the east, and a straight line Regulations (CFR) part 770, Transfer of industrial-designated lands to the local extending from the northeastern tip of Real Property at Defense Nuclear community for economic development, the Hanford Firing Range to the Hanford Facilities for Economic Development. DOE will consider the TRIDEC request Railroad to the north. The EA will Significant progress has been made in for the transfer of 1,641 acres of Hanford evaluate whether to convey cleanup of the Hanford Site, particularly lands to support local economic approximately 1,641 acres of the total as a result of the American Recovery development. 4,413 acres included in the analysis and Reinvestment Act (111th Congress: area. American Recovery and Reinvestment Proposed Action and Alternatives Consistent with the CLUP analyses of Act of 2009). Accordingly, there is In response to the TRIDEC proposal, reasonably foreseeable environmental heightened focus in the local DOE proposes to convey approximately effects associated with the probable community on the need to transition 1,641 acres of Hanford land to the CRO future use of the lands, DOE intends to away from an economy focused largely for the purposes of facilitating local base its analyses in the EA on the on DOE and Hanford activities to one economic development and assisting the previous TRIDEC target industry studies based on private sector or other non- local community in the transition away and TRIDEC’s intent to market the land DOE Federal agencies. As the from an economy focused largely on as an Industrial Development and designated CRO for the Hanford Site, DOE and Hanford-related funding. Energy Park including: TRIDEC’s charter is to promote these Conveyance of the land could include (i) Warehousing&Distribution—such economic development goals. Beginning title transfer, lease, easement, license, or as manufactured parts/materials in 1996, and continuing in 2000, 2003, a combination of these realty actions. It distribution, food/agricultural;

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(ii) Research and Development—such mitigation measures that could result in Issued in Richland, WA on September 12, as scientific research, software, data imposing deed restrictions aimed at 2012. security, computation, energy, precluding or minimizing Matt McCormick, environmental, or biotechnology; environmental consequences. Manager, Richland Operations Office. (iii) Technology Manufacturing—such [FR Doc. 2012–23099 Filed 9–18–12; 8:45 am] National Historic Preservation Act as defense manufacturing, sensor BILLING CODE 6450–01–P manufacturing, or medical devices; (iv) Food/Agriculture—such as wine, Section 106 of the National Historic food processing, or agricultural Preservation Act (NHPA) requires DEPARTMENT OF ENERGY products; Federal agencies to take into account the (v) ‘‘Back Office’’ (i.e. business effects of their undertakings on historic Office of Energy Efficiency and services)—such as call centers, properties. Federal agencies are Renewable Energy administrative processing, or data encouraged to coordinate compliance processing. with Section 106 of the NHPA with any SunShot Prize: Race to the Rooftop DOE’s analysis of the Proposed Action steps taken to meet the requirements of AGENCY: Office of Energy Efficiency and Alternative will also assume that future NEPA. In the interest of being Renewable Energy, Department of uses would be developed in accordance comprehensive and less duplicative, Energy. with local zoning and current City of DOE plans to coordinate the NEPA ACTION: Richland (2008) and Benton County Notice; Release of competition review and Section 106 compliance rules and processes to compete. (2006) comprehensive land use plans processes for the preparation of this EA that were developed to comply with the to the greatest extent possible. SUMMARY: This notice announces the Washington State Growth Management release of the SunShot Prize: Race to the Act. In order to identify environmental Scoping Process Rooftop competition. This competition effects that could result from offers $10 million in prizes to those who implementation of the proposed action, DOE has established a 30-day scoping can lower the non-hardware installation DOE intends to use analytical period during which Federal agencies, cost of rooftop solar energy systems. State, Tribal and local governments, assumptions in the EA that would tend DATES: Registration opened on to maximize estimates of reasonably special interest groups, concerned September 12, 2012, and will run foreseeable environmental impacts citizens and any other interested parties through October 31, 2014. Participants associated with footprint, infrastructure, are invited to comment on the scope of can submit Phase I materials through utilities, emissions, construction of the EA, including specific issues that December 31, 2014, and Phase II buildings, projected workforce and should be addressed in the EA. In materials through December 31, 2015. traffic, water usage, and similar keeping with DOE’s plans to coordinate ADDRESSES: Interested persons are requirements. the NEPA and NHPA Section 106 encouraged to learn about the SunShot Preliminary Identification of requirements, DOE also invites Prize: Race to the Rooftop competition Environmental Issues comments regarding the identification rules at eere.energy.gov/solar/sunshot/ of historic properties governed by the Issues tentatively identified for prize.html. Teams that wish to enter the analysis in the EA include the NHPA, and any potential adverse effects competition can register at reasonably foreseeable effects associated that may result from the proposed eere.energy.gov/solar/sunshot/ with: land use; ecological resources; action, along with suggested actions prize.html. Questions about the prize cultural and historic resources; geology DOE might take to mitigate any such competition can be sent to: and soils; water resources; climate and adverse effects. A public meeting will be Email: [email protected]. air quality; noise; transportation; held during the scoping period. At the Mail: Solar Energy Technologies accidents and intentional destructive public meeting, DOE will provide an Program, U.S. Department of Energy, acts; socioeconomics; environmental overview of the proposed action, an 1000 Independence Ave. SW., justice; visual resources; waste informal question-and-answer period to Washington, DC 20585. management; infrastructure; and human clarify the information presented, and FOR FURTHER INFORMATION CONTACT: health and safety. The proposed action an opportunity for individuals to Minh Le, Solar Energy Technologies may affect floodplains and wetlands. provide formal written or oral Program, U.S. Department of Energy, This NOI serves as a notice of proposed statements. DOE will consider all 1000 Independence Ave. SW., floodplain or wetland action in comments received during the scoping Washington, DC 20585. Email: [email protected] accordance with DOE floodplain and period in preparing the draft EA. wetland environmental review SUPPLEMENTARY INFORMATION: The If at any time during preparation of requirements (10 CFR part 1022). The America COMPETES Reauthorization the EA DOE determines that an EA will include an assessment of Act of 2010, Public Law 111–358, environmental impact statement (EIS) is potential impacts to floodplains and enacted January 4, 2011, authorizes, wetlands, and if required, a statement of needed, DOE will issue a revised Notice among other things, Federal agencies to findings following DOE regulations for of Intent (NOI) to prepare an EIS in the issue competitions to stimulate compliance with floodplain and Federal Register. In that case, the innovations in technology, education, wetlands environmental review (10 CFR current scoping process will serve as the and science. The $10 million SunShot part 1022). The analyses will identify scoping process that normally would Prize: Race to the Rooftop competition the environmental effects that are follow an NOI to prepare an EIS. challenges the ingenuity of America’s reasonably foreseeable to the local Accordingly, DOE will consider any businesses and communities to make it region as well as to ongoing DOE comments on the scope of the EA faster, easier, and cheaper to install missions and activities at the Hanford received during this scoping process in rooftop solar energy systems. Successful Site. The analysis will also consider preparing the EIS. competitors will deploy domestically cumulative environmental effects. The and in two phases, at least 6,000 new EA will also explore potential rooftop photovoltaic (PV) installations

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at an average pre-subsidy non-hardware (77 FR 40438, 7/9/2012) requesting OMB Control No.: 1902–0155. cost of $1 per watt. Winners will break public comments. FERC received no Type of Request: Three-year extension this significant price barrier, considered comments on the FERC–546 and is of the FERC–546 information collection to be unachievable a decade ago, and making this notation in its submittal to requirements with no changes to the prove that they can repeatedly achieve OMB. reporting requirements. a $1 per watt non-hardware cost using DATES: Comments on the collection of Abstract: The Commission reviews innovative, verifiable processes and information are due by October 19, the FERC–546 materials to decide business practices. 2012. whether to determine an initial rate As required by the America ADDRESSES: Comments filed with OMB, associated with an application for a COMPETES Reauthorization Act of certificate under NGA Section 7(c). It 2010, the Secretary of Energy has identified by the OMB Control No. 1902–0155, should be sent via email to reviews FERC–546 materials in 4(f) approved this competition. storage applications to evaluate market Today’s notice announces the the Office of Information and Regulatory Affairs: [email protected]. power and decide whether to grant, SunShot Prize and the release of prize deny, or condition market based rate rules. Attention: Federal Energy Regulatory Commission Desk Officer. The Desk authority for the applicant. The Issued in Washington DC, on September Officer may also be reached via Commission uses the FERC–546 12, 2012. telephone at 202–395–4718. information to monitor jurisdictional Rachel Tronstein, A copy of the comments should also transportation, natural gas storage, and Deputy Director, SunShot Initiative, Energy be sent to the Federal Energy Regulatory unbundled sales activities of interstate 1 Efficiency and Renewable Energy . Commission, identified by the Docket natural gas pipelines and Hinshaw [FR Doc. 2012–23098 Filed 9–18–12; 8:45 am] No. IC12–15–000, by either of the pipelines. In addition to fulfilling the BILLING CODE 6450–01–P following methods: Commission’s obligations under the • eFiling at Commission’s Web site: NGA, the FERC–546 enables the http://www.ferc.gov/docs-filing/ Commission to monitor the activities DEPARTMENT OF ENERGY efiling.asp. and evaluate transactions of the natural • Mail/Hand Delivery/Courier: gas industry, ensure competitiveness, Federal Energy Regulatory Federal Energy Regulatory Commission, and improved efficiency of the Commission Secretary of the Commission, 888 First industry’s operations. In summary, the [Docket No. IC12–15–000] Street NE., Washington, DC 20426. Commission uses the FERC–546 Instructions: All submissions must be information to: Commission Information Collection formatted and filed in accordance with • Ensure adequate customer Activities (FERC–546); Comment submission guidelines at: http:// protections under section 4(f) of the Request www.ferc.gov/help/submission- NGA; guide.asp. For user assistance contact • Review rate and tariff changes by AGENCY: Federal Energy Regulatory FERC Online Support by email at natural gas companies for the Commission, DOE. [email protected], or by phone transportation of gas, natural gas storage ACTION: Comment request. at: (866) 208–3676 (toll-free), or (202) services; • SUMMARY: In compliance with the 502–8659 for TTY. Provide general industry oversight; requirements of the Paperwork Docket: Users interested in receiving • And supplement documentation Reduction Act of 1995, the Federal automatic notification of activity in this during its audits process. Energy Regulatory Commission docket or in viewing/downloading Failure to collect this information (Commission or FERC) is submitting the comments and issuances in this docket would prevent the Commission from information collection FERC–546 may do so at http://www.ferc.gov/docs- being able to monitor and evaluate (Certificated Filings: Gas Pipeline Rates) filing/docs-filing.asp. transactions and operations of interstate to the Office of Management and Budget FOR FURTHER INFORMATION CONTACT: pipelines and perform its regulatory (OMB) for review of the information Ellen Brown may be reached by email functions. collection requirements. Any interested at [email protected], by Type of Respondents: Pipeline person may file comments directly with telephone at (202) 502–8663, and by fax companies and storage operators. OMB and should address a copy of at (202) 273–0873. Estimate of Annual Burden: 2 The those comments to the Commission as SUPPLEMENTARY INFORMATION: Commission estimates the total Public explained below. The Commission Title: FERC–546, Certificated Filings: Reporting Burden for this information issued a Notice in the Federal Register Gas Pipeline Rates. collection as:

FERC–546 (IC12–15–000): CERTIFICATED RATE FILINGS (GAS PIPELINE RATES)

Number of Average Number of responses per Total number burden hours Estimated total respondents respondent of responses per response annual burden

(A) (B) (A) × (B) = (C) (D) (C) × (D)

Pipeline Companies ...... 11 1 11 40 440

1 Hinshaw pipelines are those that receive all out- by pertinent state agencies rather than by FERC. generate, maintain, retain, or disclose or provide of-state gas from entities within or at the boundary The Natural Gas Act section 1(c) exempts Hinshaw information to or for a Federal agency. For further of a state if all the natural gas so received is pipelines from FERC jurisdiction. A Hinshaw explanation of what is included in the information ultimately consumed within the state in which it is pipeline, however, may apply for a FERC certificate collection burden, reference 5 Code of Federal to transport gas outside of state lines. received, 15 U.S.C. 717(c). Congress concluded that Regulations 1320.3. Hinshaw pipelines are ‘‘matters primarily of local 2 Burden is defined as the total time, effort, or concern,’’ and so are more appropriately regulated financial resources expended by persons to

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FERC–546 (IC12–15–000): CERTIFICATED RATE FILINGS (GAS PIPELINE RATES)—Continued

Number of Average Number of responses per Total number burden hours Estimated total respondents respondent of responses per response annual burden

(A) (B) (A) × (B) = (C) (D) (C) × (D)

Storage Operators ...... 2 1 2 350 700

Total ...... 13 N/A 13 N/A 1,140

The total estimated annual cost Long-Term Firm Transmission Rights in rights that satisfy each of the burden to respondents is $78,669.97 Organized Electricity Markets. Commission’s guidelines. ÷ 3 [1,140 hours 2,080 hours/year = DATES: Comments on the collection of The FERC–732 regulations require 0.54807 * $143,540/year 4 = $78,669.97]. information are due November 19, 2012. that transmission organizations (that are Comments: Comments are invited on: ADDRESSES: You may submit comments public utilities with one or more (1) Whether the collection of (identified by Docket No. IC12–19–000) organized electricity markets) choose information is necessary for the proper by either of the following methods: one of two ways to file: performance of the functions of the • • eFiling at Commission’s Web site: File tariff sheets making long-term Commission, including whether the http://www.ferc.gov/docs-filing/ firm transmission rights available that information will have practical utility; efiling.asp. are consistent with each of the (2) the accuracy of the agency’s estimate • Mail/Hand Delivery/Courier: guidelines established by FERC. of the burden and cost of the collection • Federal Energy Regulatory Commission, File an explanation describing how of information, including the validity of Secretary of the Commission, 888 First their existing tariffs already provide the methodology and assumptions used; Street NE., Washington, DC 20426. long-term firm transmission rights that (3) ways to enhance the quality, utility Instructions: All submissions must be are consistent with the guidelines. and clarity of the information collection; formatted and filed in accordance with Additionally, the Commission requires and (4) ways to minimize the burden of submission guidelines at: http:// each transmission organization to make the collection of information on those www.ferc.gov/help/submission- its transmission planning and expansion who are to respond, including the use guide.asp. For user assistance contact procedures and plans available to the of automated collection techniques or FERC Online Support by email at public. other forms of information technology. [email protected], or by phone FERC–732 enables the Commission to Dated: September 12, 2012. at: (866) 208–3676 (toll-free), or (202) exercise its wholesale electric rate and Kimberly D. Bose, 502–8659 for TTY. electric power transmission oversight Secretary. Docket: Users interested in receiving and enforcement responsibilities in [FR Doc. 2012–23030 Filed 9–18–12; 8:45 am] automatic notification of activity in this accordance with the FPA, the BILLING CODE 6717–01–P docket or in viewing/downloading Department of Energy Organization Act comments and issuances in this docket (DOE Act), and EPAct 2005. may do so at http://www.ferc.gov/docs- The Commission intends to include DEPARTMENT OF ENERGY filing/docs-filing.asp. the FERC–732 and all of its applicable FOR FURTHER INFORMATION CONTACT: requirements within FERC–516 (OMB Federal Energy Regulatory Ellen Brown may be reached by email Commission Control No. 1902–0096). The at [email protected], telephone Commission will ensure complete [Docket No. Ic12–19–000] at (202) 502–8663, and fax at (202) 273– renewal (to include publishing all 0873. public notifications and receiving Office Commission Information Collection SUPPLEMENTARY INFORMATION: of Management and Budget approval) of Activities (FERC–732); Comment Title: FERC–732 and Electric Rate FERC–732 information collection. After Request; Extension Schedules and Tariffs: Long-Term Firm the collection is renewed, the AGENCY: Federal Energy Regulatory Transmission Rights in Organized Commission will seek to Commission, DOE. Electricity Markets. administratively incorporate FERC–732 ACTION: Notice of information collection OMB Control No.:1902–0245. information collection requirements and request for comments. Type of Request: 18 CFR part 42 into FERC–516. Finally, the provides the reporting requirements of Commission will discontinue the vacant SUMMARY: In compliance with the FERC–732 as they pertain to long-term FERC–732 information collection. requirements of the Paperwork transmission rights. To implement Type of Respondents: Public utility Reduction Act of 1995, the Federal section 1233 1 of the Energy Policy Act with one or more organized electricity Energy Regulatory Commission of 2005 (EPAct 2005),2 the Commission markets. (Commission or FERC) is soliciting requires each transmission organization Estimate of Annual Burden: 3 The public comment on the currently that is a public utility with one or more Commission estimates the total Public approved information collection, organized electricity markets to make Reporting Burden for this information Electric Rate Schedules and Tariffs: available long-term firm transmission collection as:

3 2080 hours/year = 40 hours/week * 52 weeks/ 2 Added new section 217 (16 USC 824Q) to the persons to generate, maintain, retain, or disclose or year Federal Power Act (FPA). provide information to or for a Federal agency. For 4 Average annual salary per employee in 2012. 3 The Commission defines burden as the total further explanation of what is included in the information collection burden, reference 5 CFR 1 16 USC 824 et al. time, effort, or financial resources expended by 1320.3.

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Number of Average Number of responses per Total number burden hours Estimated total respondents respondent of responses per response annual burden

(A) (B) (A) × (B) = (C) (D) (C) × (D)

Public utility with +1 organized electricity markets ...... 1 1 1 1,180 1,180

The total estimated annual cost Tacoma Power, 3628 South 35th Street, areas, and describes the shoreline use burden to respondents is $81,431.68 Tacoma, Washington 98409–3192; evaluation process. [1,180 hours ÷ 2080 hours per year = Phone: (253) 502–8692. l. Locations of the Application: A 0.56731 * 143,540/years = $81,431.68] i. FERC Contact: Patricia A. Grant at copy of the application is available for Comments: Comments are invited on: (312) 596–4435, or email: inspection and reproduction at the (1) Whether the collection of [email protected]. Commission’s Public Reference Room, information is necessary for the proper j. Deadline for filing comments, located at 888 First Street NE., Room performance of the functions of the motions to intervene, and protests: 2A, Washington, DC 20426, or by calling Commission, including whether the October 11, 2012. (202) 502–8371. This filing may also be information will have practical utility; viewed on the Commission’s Web site at (2) the accuracy of the agency’s estimate All documents may be filed http://www.ferc.gov using the of the burden and cost of the collection electronically via the Internet. See 18 ‘‘eLibrary’’ link. Enter the docket of information, including the validity of CFR 385.2001(a)(1)(iii) and the number excluding the last three digits in the methodology and assumptions used; instructions on the Commission’s Web the docket number field to access the (3) ways to enhance the quality, utility site at http://www.ferc.gov/docs-filing/ document (P–460). You may also and clarity of the information collection; efiling.asp. Commenters can submit register online at http://www.ferc.gov/ and (4) ways to minimize the burden of brief comments up to 6,000 characters, docs-filing/esubscription.asp to be the collection of information on those without prior registration, using the notified via email of new filings and who are to respond, including the use eComment system at http:// issuances related to this or other of automated collection techniques or www.ferc.gov/docs-filing/ pending projects. For assistance, call 1– other forms of information technology. ecomment.asp. You must include your 866–208–3676 or email name and contact information at the end [email protected], for TTY, Dated: September 12, 2012. of your comments. For assistance, Kimberly D. Bose, call (202) 502–8659. A copy is also please contact FERC Online Support at available for inspection and Secretary. [email protected] or toll reproduction at the address in [FR Doc. 2012–23022 Filed 9–18–12; 8:45 am] free at 1–866–208–3676, or for TTY, paragraph h. above. BILLING CODE 6717–01–P (202) 502–8659. Although the m. Individuals desiring to be included Commission strongly encourages on the Commission’s mailing list should electronic filing, documents may also be so indicate by writing to the Secretary DEPARTMENT OF ENERGY paper-filed. To paper-file, mail an of the Commission. original and seven copies to: Secretary, n. Comments, Protests, or Motions to Federal Energy Regulatory Federal Energy Regulatory Commission, Commission Intervene: Anyone may submit 888 First Street NE., Washington, DC comments, a protest, or a motion to [Project No. 460–066] 20426. Please include the project intervene in accordance with the number (P–460–066) on any comments, requirements of Rules of Practice and Tacoma Power; Notice of Application motions, or recommendations filed. Procedure, 18 CFR 385.210, .211, .214, for Amendment of License and The Commission’s Rules of Practice respectively. In determining the Soliciting Comments, Motions To and Procedure require all intervenors appropriate action to take, the Intervene, and Protests filing documents with the Commission Commission will consider all protests or Take notice that the following to serve a copy of that document on other comments filed, but only those hydroelectric application has been filed each person whose name appears on the who file a motion to intervene in with the Commission and is available official service list for the project. accordance with the Commission’s for public inspection: Further, if an intervenor files comments Rules may become a party to the a. Application Type: Shoreline or documents with the Commission proceeding. Any comments, protests, or Management Plan. relating to the merits of an issue that motions to intervene must be received b. Project No: 460–066. may affect the responsibilities of a on or before the specified comment date c. Date Filed: July 5, 2012. particular resource agency, they must for the particular application. d. Applicant: Tacoma Power. also serve a copy of the document on o. Filing and Service of Documents: e. Name of Project: Cushman that resource agency. Any filing must (1) bear in all capital Hydroelectric Project. k. Description of Request: As required letters the title ‘‘COMMENTS’’, f. Location: The Cushman by article 424 of the license, Tacoma ‘‘PROTEST’’, or ‘‘MOTION TO Hydroelectric Project is located on the Power requests Commission approval of INTERVENE’’ as applicable; (2) set forth North Fork of the Skokomish River in a proposed shoreline management plan in the heading the name of the applicant Mason County, Washington. (SMP) for the project. The SMP defines and the project number of the g. Filed Pursuant to: Federal Power shoreline management classifications application to which the filing Act, 16 U.S.C. 791a–825r. for the shorelines within the project responds; (3) furnish the name, address, h. Applicant Contact: Paul Hickey, boundary, identifies allowable uses and and telephone number of the person License Implementation Coordinator, prohibited uses within the shoreline commenting, protesting or intervening;

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and (4) otherwise comply with the B. Tobola, Freeport LNG Development, proceeding can ask for court review of requirements of 18 CFR 385.2001 L.P., 333 Clay Street, Suite 5050, Commission orders in the proceeding. through 385.2005. All comments, Houston, Texas 77002, or by calling However, a person does not have to motions to intervene, or protests must (713) 980–2888; or Lisa M. Tonery, intervene in order to have comments set forth their evidentiary basis. Any Fulbright & Jaworski L.L.P., 666 Fifth considered. The second way to filing made by an intervenor must be Avenue, New York, New York 10103, participate is by filing with the accompanied by proof of service on all (212) 318–3009, [email protected]. Secretary of the Commission, as soon as persons listed in the service list On January 5, 2011, the Commission possible, an original and two copies of prepared by the Commission in this staff granted Freeport’s request to use comments in support of or in opposition proceeding, in accordance with 18 CFR the pre-filing process and assigned to this project. The Commission will 385.2010. Docket No. PF11–2–000 to staff consider these comments in activities involving the proposed natural determining the appropriate action to be Dated: September 11, 2012. gas liquefaction and export project. taken, but the filing of a comment alone Kimberly D. Bose, Now, as of the filing of this application will not serve to make the filer a party Secretary. on August 31, 2012, the NEPA Pre- to the proceeding. The Commission’s [FR Doc. 2012–23034 Filed 9–18–12; 8:45 am] Filing Process for this project has ended. rules require that persons filing BILLING CODE 6717–01–P From this time forward, this proceeding comments in opposition to the project will be conducted in Docket No. CP12– provide copies of their protests only to 509–000, as noted in the caption of this the party or parties directly involved in DEPARTMENT OF ENERGY Notice. the protest. Pursuant to Section 157.9 of the Persons who wish to comment only Federal Energy Regulatory Commission’s rules, 18 CFR 157.9, on the environmental review of this Commission within 90 days of this Notice the project should submit an original and [Docket Nos. CP12–509–000; PF11–2–000] Commission staff will either: complete two copies of their comments to the its environmental assessment (EA) and Secretary of the Commission. Freeport LNG Development, L.P., FLNG place it into the Commission’s public Environmental commenters will be Liquefaction, LLC, FLNG Liquefaction record (eLibrary) for this proceeding, or placed on the Commission’s 2, LLC, FLNG Liquefaction 3, LLC; issue a Notice of Schedule for environmental mailing list, will receive Notice of Application Environmental Review. If a Notice of copies of the environmental documents, Schedule for Environmental Review is and will be notified of meetings Take notice that on August 31, 2012, issued, it will indicate, among other associated with the Commission’s Freeport LNG Development, L.P., FLNG milestones, the anticipated date for the environmental review process. Liquefaction, LLC, FLNG Liquefaction 2, Commission staff’s issuance of the final Environmental commenters will not be LLC, and FLNG Liquefaction 3, LLC environmental impact statement (FEIS) required to serve copies of filed (collectively referred to as Freeport) or EA for this proposal. The filing of the documents on all other parties. filed an application pursuant to section EA in the Commission’s public record However, the non-party commenters 3(a) of the Natural Gas Act (NGA) and for this proceeding or the issuance of a will not receive copies of all documents Parts 153 and 380 of the Commission’s Notice of Schedule for Environmental filed by other parties or issued by the regulations, requesting authorization to Review will serve to notify federal and Commission (except for the mailing of site, construct, own, and operate natural state agencies of the timing for the environmental documents issued by the gas liquefaction and export facilities completion of all necessary reviews, and Commission) and will not have the right located on Quintana Island, Brazoria the subsequent need to complete all to seek court review of the County, Texas. This filing may also be federal authorizations within 90 days of Commission’s final order. viewed on the Commission’s Web site at the date of issuance of the Commission Motions to intervene, protests and http://www.ferc.gov using the staff’s FEIS or EA. comments may be filed electronically ‘‘eLibrary’’ link. Enter the docket There are two ways to become via the internet in lieu of paper; see, 18 number, excluding the last three digits, involved in the Commission’s review of CFR 385.2001(a) (1) (iii) and the in the docket number field to access the this project. First, any person wishing to instructions on the Commission’s web document. For assistance, call (866) obtain legal status by becoming a party site under the ‘‘e-Filing’’ link. The 208–3676 or TTY, (202) 502–8659. to the proceedings for this project Commission strongly encourages The proposed natural gas liquefaction should, on or before the comment date electronic filings. and export facilities will be constructed stated below, file with the Federal Comment Date: October 3, 2012 adjacent to the existing Freeport LNG Energy Regulatory Commission, 888 Dated: September 12, 2012. Development, L.P.’s liquefied natural First Street NE., Washington, DC 20426, Kimberly D. Bose, gas (LNG) import terminal on Quintana a motion to intervene in accordance Secretary. Island (Terminal). The main with the requirements of the liquefaction equipment will consist of Commission’s Rules of Practice and [FR Doc. 2012–23029 Filed 9–18–12; 8:45 am] three liquefaction trains, each capable of Procedure (18 CFR 385.214 or 385.211) BILLING CODE 6717–01–P producing a nominal 4.4 million metric and the Regulations under the NGA (18 tons of LNG per annum (mtpa), for a CFR 157.10). A person obtaining party DEPARTMENT OF ENERGY total capacity of 13.2 mtpa. In addition, status will be placed on the service list Freeport also proposes to construct maintained by the Secretary of the Federal Energy Regulatory natural gas pretreatment facilities, Commission and will receive copies of Commission located approximately 2.5 miles north of all documents filed by the applicant and the Terminal, and appurtenant by all other parties. A party must submit [Project No. 460–066] structures to support the natural gas 14 copies of filings made with the Tacoma Power; Errata Notice liquefaction and export operations. Commission and must mail a copy to Any questions regarding this the applicant and to every other party in On September 11, 2012, the application should be directed to John the proceeding. Only parties to the Commission issued a Notice of

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Application for Amendment of License [email protected] and pumping capacity of the pump turbines and Soliciting Comments, Motions to Kathleen Barro`n, Vice President, is 3,500 cfs each for a total powerhouse Intervene, and Protests for the Cushman Federal Regulatory Affairs and pumping capability of 28,000 cfs. Water Hydroelectric Project (FERC No. 460– Wholesale Market Policy, Exelon flowing through the turbines is 066). The notice of application is now Corporation, 101 Constitution Avenue, discharged via the draft tubes into the revised to read as follows: Washington, DC 20001, at (202) 347– Susquehanna River adjacent to the (1.) Paragraph l. is changed to read: 7500 or email at powerhouse. The units are equipped l. Locations of the Application: A copy of [email protected]. with trash racks between the draft tube the application is available for inspection i. FERC Contact: Emily Carter, (202) outlet and the river. 502–6512 or [email protected]. and reproduction at the Commission’s Public Electricity generated at the project is Reference Room, located at 888 First Street j. This application is not ready for NE., Room 2A, Washington, DC 20426, or by environmental analysis at this time. transmitted by two individual 220-kV calling (202) 502–8371. This filing may also k. The Project Description: The transmission lines extending from the be viewed on the Commission’s Web site at Muddy Run Pumped Storage Project project switching station approximately http://www.ferc.gov using the ‘‘eLibrary’’ consists of four dams. The main dam is 4.25 miles to the Peach Bottom Atomic link. Enter the docket number excluding the a rock-filled structure across the Muddy Power Station (PBAPS) North last three digits in the docket number field Run ravine with a central impervious Substation located in York County. to access the document (P–460). You may core, a maximum height of also register online at http://www.ferc.gov/ The Muddy Run Project has an docs-filing/esubscription.asp to be notified approximately 260 feet and a total authorized nameplate generating via email of new filings and issuances related length of 4,800 feet. The east dike is a capacity of 800 MW and generates an to this or other pending projects. For zoned-earth and rock-filled average of 1,610,611 MWh annually. assistance, call 1–866–208–3676 or email embankment with a maximum height of Exelon is not proposing any new or [email protected], for TTY, call approximately 12 feet and a total length upgraded facilities or structural changes (202) 502–8659. A copy is also available for of 800 feet. The recreation pond dike is to the project at this time. Also, Exelon inspection and reproduction at the address in a zoned-earth and rock-filled has engaged interested stakeholders to paragraph h. above. embankment with a maximum height of participate in the development of a Dated: September 11, 2012. approximately 90 feet and a total length comprehensive settlement agreement Kimberly D. Bose, of 750 feet. The canal embankment has based on collaborative negotiation of Secretary. a maximum height of approximately 35 specific terms and conditions for the feet. Total storage in the 900-acre [FR Doc. 2012–23023 Filed 9–18–12; 8:45 am] new Muddy Run license. Muddy Run reservoir (upper reservoir) BILLING CODE 6717–01–P is approximately 60,000 acre-feet and l. Locations of the Application: A the total useable storage is copy of the application is available for review at the Commission in the Public DEPARTMENT OF ENERGY approximately 35,500 acre-feet at the maximum pool elevation of 520 feet. Reference Room or may be viewed on Federal Energy Regulatory The maximum pool elevation is the Commission’s Web site at http:// Commission approximately 411 feet above the www.ferc.gov using the ‘‘eLibrary’’ link. normal elevation of Conowingo pond. Enter the docket number excluding the [Project No. 2355–018] Conowingo pond (lower reservoir) has a last three digits in the docket number surface area of 9,000 acres and design field to access the document. For Exelon Generation Company, LLC; assistance, contact FERC Online Notice of Application Tendered for storage of approximately 310,000 acre- feet at the normal full pool elevation of Support at Filing With the Commission and 109.2 feet. [email protected] or toll- Deadline for Submission of Final The main spillway is a non-gated free at 1–866–208–3676, or for TTY, Amendments concrete ogee-type structure that is 200 (202) 502–8659. A copy is also available Take notice that the following feet long, 20 feet high and with crest for inspection and reproduction at the hydroelectric application has been filed elevation of 521 feet, which is directed address in item (h) above. with the Commission and is available to a vegetated natural ravine. The m. You may also register online at for public inspection. recreation pond spillway is a rock-cut http://www.ferc.gov/docs-filing/ a. Type of Application: New Major channel approximately 140 feet wide esubscription.asp to be notified via License and with a crest elevation of 520 feet. email of new filings and issuances b. Project No.: 2355–018 The power intake facilities consist of related to this or other pending projects. c. Date Filed: August 29, 2012 four cylinder gates with trash racks in For assistance, contact FERC Online d. Applicant: Exelon Generation a cylindrical tower. Each intake Support. Company, LLC supplies two units. Each intake leads to e. Name of Project: Muddy Run a 430-foot-deep vertical shaft then to a n. Procedural Schedule: A Pumped Storage Project horizontal power tunnel, which divides preliminary Hydro Licensing Schedule f. Location: On Muddy Run, a into two sections. The power tunnel will be provided in a subsequent notice. tributary to the Susquehanna River, in sections transition to a penstock that o. Final amendments to the Lancaster and York Counties, leads to one of the eight reversible application must be filed with the Pennsylvania. The project does not pump-turbine units in the powerhouse. Commission no later than 30 days from occupy any federal lands. The power plant is constructed of the issuance date of the notice of ready g. Filed Pursuant to: Federal Power concrete and is 133 feet wide and 600 for environmental analysis. Act, 16 USC 791 (a)–825(r) feet long. It houses eight Francis Dated: September 12, 2012. h. Applicant Contact: Colleen Hicks, turbines each equipped with a 100–MW Manager, Regulatory and Licensing, generator. The powerhouse turbines Kimberly D. Bose, Hydro, Exelon Power, 300 Exelon Way, each have a hydraulic capacity of 4,000 Secretary. Kennett Square, PA 19348, at (610) 765– cfs, for a total discharge capacity from [FR Doc. 2012–23024 Filed 9–18–12; 8:45 am] 6791 or email at the powerhouse of 32,000 cfs. The BILLING CODE 6717–01–P

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DEPARTMENT OF ENERGY DEPARTMENT OF ENERGY Description: Second Supplement to Notification of Change in Status of Federal Energy Regulatory Federal Energy Regulatory Baltimore Gas & Electric Company, et al. Commission Commission Filed Date: 8/1/12. [Project No. 4362–000] Accession Number: 20120801–5137. Combined Notice of Filings #2 Comments Due: 5 p.m. ET 10/2/12. Inman Mills; Notice of Authorization for Take notice that the Commission Docket Numbers: ER12–2217–004. Continued Project Operation Applicants: Power Dave Fund LLC. received the following electric rate Description: Compliance Filing The Riverdale Hydroelectric Project filings: 091212 to be effective 9/12/2012. No. 4362 is located on the Enoree River, Docket Numbers: ER10–2172–007; Filed Date: 9/12/12. in Spartanburg County, South Carolina. ER10–2172–008; ER10–2179–009; ER10– Accession Number: 20120912–5029. The minor license for Project No. 4362 2179–011; ER11–2016–002; ER11–2016– Comments Due: 5 p.m. ET 10/3/12. was issued in September 1982 for a 003; ER10–2184–007; ER10–2184–008; Docket Numbers: ER12–2314–000. period ending August 31, 2012. The ER10–2183–004; ER10–2183–005; ER10– deadline for filing applications for a Applicants: Spinning Spur Wind LLC. 1048–004; ER10–1048–005; ER10–2176– Description: Supplemental subsequent license was August 31, 008; ER10–2176–009; ER10–2192–007; 2010. Inman Mills, the licensee for Information of Spinning Spur Wind, ER10–2192–008; ER11–2056–001; ER11– LLC. Project No. 4362, did not file an 2056–002; ER10–2178–008; ER10–2174– 1 Filed Date: 9/12/12. application for a subsequent license. 007; ER10–2174–008; ER11–2014–004; On August 31, 2010, Lockhart Power Accession Number: 20120912–5100. ER11–2014–005; ER11–2013–005; ER11– Comments Due: 5 p.m. ET 9/26/12. Company filed an application for a 2013–004; ER10–3308–006; ER10–3308– 2 Docket Numbers: ER12–2442–001. subsequent license for the project. 007; ER10–1017–003; ER10–1017–004; Section 15(a)(1) of the FPA, 16 U.S.C. Applicants: PJM Interconnection, ER10–1020–003; ER10–1020–004; ER10– 808(a)(1) (2006), requires the L.L.C. 1145–003; ER10–1145–004; ER10–1144– Commission, at the expiration of a Description: Errata to Original Service 002; ER10–1144–003; ER10–1078–003; license term, to issue from year-to-year Agreement No. 3381—Docket No. ER12– ER10–1078–004; ER10–1079–003; ER10– an annual license to the then licensee 2442–000 to be effective 7/10/2012. 1079–004; ER10–1080–003; ER10–1080– under the terms and conditions of the Filed Date: 9/12/12. 004; ER11–2010–004; ER11–2010–005; prior license until a new license is Accession Number: 20120912–5092. ER10–1081–003; ER10–1081–004; ER10– issued, or the project is otherwise Comments Due: 5 p.m. ET 10/3/12. disposed of as provided in section 15 or 2180–007; ER10–2180–008; ER11–2011– 003; ER11–2011–004; ER11–2009–003; Docket Numbers: ER12–2615–000. any other applicable section of the FPA. Applicants: Midwest Independent If, as is the case here, the project’s prior ER11–2009–004; ER11–3989–002; ER11– 3989–003; ER10–1734–004; ER10–1734– Transmission System Operator, Inc., license waived the applicability of MidAmerican Energy Company. section 15 of the FPA, then, based on 005; ER10–2181–009; ER10–2181–011; ER10–1143–003; ER10–1143–004; ER10– Description: SA 2475 MidAmerican- section 9(b) of the Administrative Modern Hydro WDS to be effective Procedure Act, 5 U.S.C. 558(c) (2006), 2182–009; ER10–2182–011; ER11–2007– 002; ER11–2007–003; ER12–1223–002; 6/26/2012. and as set forth at 18 CFR 16.21(b), if, Filed Date: 9/12/12. as is also the case here, the licensee of ER12–1223–003; ER11–2005–004; ER11– 2005–005; ER10–2178–007. Accession Number: 20120912–5028. such project has not filed an application Comments Due: 5 p.m. ET 10/3/12. for a subsequent license, the licensee Applicants: Constellation Energy may be required to continue to operate Commodities Group, Inc., R.E. Ginna Docket Numbers: ER12–2616–000. the project in accordance with the terms Nuclear Power Plant, LLC, PECO Energy Applicants: PJM Interconnection, and conditions of the license after the Company, Baltimore Gas and Electric L.L.C. minor license expires, until the Company, Wind Capital Holdings, LLC, Description: Ministerial Clean-Up Commission issues someone else a CR Clearing, LLC, Exelon New England Filing re OATT Section 230.3 due to license for the project or otherwise Power Marketing, LP, Exelon Overlapping Filings to be effective orders disposition of the project. Framingham, LLC, Exelon New Boston, 7/18/2012. Notice is hereby given that Inman LLC, Exelon West Medway, LLC, Exelon Filed Date: 9/12/12. Mills is authorized to continue Wyman, LLC, Exelon Generation Accession Number: 20120912–5046. operation of the Riverdale Hydroelectric Company, LLC, Exelon Energy Comments Due: 5 p.m. ET 10/3/12. Project, until such time as the Company, Calvert Cliffs Nuclear Power Docket Numbers: ER12–2616–001. Commission issues someone else a Plant LLC, CER Generation, LLC, Applicants: PJM Interconnection, license for the project or otherwise Commonwealth Edison Company, L.L.C. orders disposition of the project. Constellation NewEnergy, Inc., CER Description: Errata to Transmittal Dated: September 12, 2012. Generation II, LLC, Constellation Energy Letter re Ministerial Clean-Up Filing of Kimberly D. Bose, Commodities Group Maine, LLC, OATT Sec 230.3 to be effective 7/18/2012. Secretary. Handsome Lake Energy, LLC, Nine Mile Filed Date: 9/12/12. [FR Doc. 2012–23025 Filed 9–18–12; 8:45 am] Point Nuclear Station, LLC, Constellation Mystic Power, LLC, Cassia Accession Number: 20120912–5059. BILLING CODE 6717–01–P Gulch Wind Park, LLC, Michigan Wind Comments Due: 5 p.m. ET 10/3/12. 1 In 2006, Commission staff approved transfer of 1, LLC, Harvest Windfarm, LLC, Exelon Docket Numbers: ER12–2617–000. the license from Inman Mills to Riverdale Wind 4, LLC, Criterion Power Partners, Applicants: Midwest Independent Development Venture, LLC. 115 FERC ¶ 62,076 LLC, Cow Branch Wind Power, L.L.C., Transmission System Operator, Inc. (2006). However, the 2006 order was rescinded in Michigan Wind 2, LLC, MXenergy Description: SA 2431 Glacial Ridge- 2008 because the requirements for the transfer were never completed. 122 FERC ¶ 62,204 (2008). Electric Inc., Wildcat Wind, LLC, Tuana GRE G549 GIA to be effective 9/13/2012. 2 The application, docketed Project No. 13590, is Springs Energy, LLC, Constellation Filed Date: 9/12/12. pending before the Commission. Paper Source Generation, Inc. Accession Number: 20120912–5053.

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Comments Due: 5 p.m. ET 10/3/12. Generator Status of Prairie Rose Wind, Applicants: Kansas City Power & Take notice that the Commission LLC. Light Company. received the following electric securities Filed Date: 9/11/12. Description: Kansas City Power & filings: Accession Number: 20120911–5102. Light Company Application for Docket Numbers: ES12–51–000. Comments Due: 5 p.m. ET 10/2/12. Authorization of Issuance of Short-Term Applicants: MidAmerican Energy Docket Numbers: EG12–109–000. Debt Securities Under Section 204 of the Company. Applicants: Prairie Rose Federal Power Act. Description: Amendment to Transmission, LLC. Filed Date: 9/12/12. MidAmerican Energy Company’s Description: Notice of Self- Accession Number: 20120912–5012. Application. certification of Exempt Wholesale Comments Due: 5 p.m. ET 10/3/12. Filed Date: 9/11/12. Generator Status of Prairie Rose The filings are accessible in the Accession Number: 20120911–5000. Transmission, LLC. Commission’s eLibrary system by Comments Due: 5 p.m. ET 9/21/12. Filed Date: 9/11/12. clicking on the links or querying the The filings are accessible in the Accession Number: 20120911–5103. docket number. Commission’s eLibrary system by Comments Due: 5 p.m. ET 10/2/12. Any person desiring to intervene or clicking on the links or querying the Take notice that the Commission protest in any of the above proceedings docket number. received the following electric rate must file in accordance with Rules 211 Any person desiring to intervene or filings: and 214 of the Commission’s protest in any of the above proceedings Regulations (18 CFR 385.211 and Docket Numbers: ER12–2606–002. must file in accordance with Rules 211 385.214) on or before 5 p.m. Eastern Applicants: PJM Interconnection, and 214 of the Commission’s time on the specified comment date. L.L.C. Regulations (18 CFR 385.211 and Description: Compliance Filing per 7/ Protests may be considered, but 385.214) on or before 5:00 p.m. Eastern 11/2012 Order in EL12–50–000 intervention is necessary to become a time on the specified comment date. (sections eff 10/1/2012) to be effective party to the proceeding. Protests may be considered, but eFiling is encouraged. More detailed 10/1/2012. information relating to filing intervention is necessary to become a Filed Date: 9/10/12. requirements, interventions, protests, party to the proceeding. Accession Number: 20120910–5160. eFiling is encouraged. More detailed Comments Due: 5 p.m. ET 10/1/12. service, and qualifying facilities filings information relating to filing can be found at: http://www.ferc.gov/ requirements, interventions, protests, Docket Numbers: ER12–2611–000. docs-filing/efiling/filing-req.pdf. For service, and qualifying facilities filings Applicants: NorthWestern other information, call (866) 208–3676 can be found at: http://www.ferc.gov/ Corporation. (toll free). For TTY, call (202) 502–8659. Description: SA 646—SGIA with NPS docs-filing/efiling/filing-req.pdf. For Dated: September 12, 2012. other information, call (866) 208–3676 re Mammoth Project to be effective 9/ Nathaniel J. Davis, Sr., (toll free). For TTY, call (202) 502–8659. 12/2012. Filed Date: 9/11/12. Deputy Secretary. Dated: September 12, 2012. Accession Number: 20120911–5080. [FR Doc. 2012–23045 Filed 9–18–12; 8:45 am] Nathaniel J. Davis, Sr., Comments Due: 5 p.m. ET 10/2/12. BILLING CODE 6717–01–P Deputy Secretary. Docket Numbers: ER12–2612–000. [FR Doc. 2012–23046 Filed 9–18–12; 8:45 am] Applicants: Nevada Power Company. BILLING CODE 6717–01–P Description: Rate Schedule No. 130 DEPARTMENT OF ENERGY Concurrence in TEP RS No. 321 SRSG Participation Agreement to be effective Federal Energy Regulatory DEPARTMENT OF ENERGY 12/28/2011. Commission Filed Date: 9/11/12. Federal Energy Regulatory Combined Notice of Filings Accession Number: 20120911–5088. Commission Comments Due: 5 p.m. ET 10/2/12. Take notice that the Commission has Combined Notice of Filings #1 Docket Numbers: ER12–2613–000. received the following Natural Gas Applicants: Southern California Pipeline Rate and Refund Report filings: Take notice that the Commission Edison Company. Filings Instituting Proceedings received the following electric corporate Description: Amended SGIA and DSA filings: to 570 E. Mill St San Bernardino Roof Docket Numbers: RP12–1029–000. Docket Numbers: EC12–134–000. Top Solar Project to be effective 9/13/ Applicants: Dogwood Energy LLC, Applicants: NRG Energy, Inc, GenOn 2012. Unified Government of Wyandotte Energy, Inc. Filed Date: 9/12/12. County/K. Description: NRG Energy, Inc et al. Accession Number: 20120912–5001. Description: Request for Temporary submits additional information in Comments Due: 5 p.m. ET 10/3/12. Waiver of Dogwood Energy LLC and support of the application pursuant to Unified Government of Wyandotte Docket Numbers: ER12–2614–000. Section 203(a)(1) et al. County/Kansas City, Kansas. Filed Date: 9/10/12. Applicants: Dynamo Power LLC. Filed Date: 9/7/12. Accession Number: 20120911–0249. Description: Market-Based Rates Tariff Accession Number: 20120907–5145. Comments Due: 5 p.m. ET 10/9/12. to be effective 9/12/2012. Comments Due: 5 p.m. e.t. 9/19/12. Filed Date: 9/12/12. Take notice that the Commission Docket Numbers: RP12–1032–000. Accession Number: 20120912–5002. received the following exempt Applicants: CenterPoint Energy Gas Comments Due: 5 p.m. ET 10/3/12. wholesale generator filings: Transmission Comp. Docket Numbers: EG12–108–000. Take notice that the Commission Description: CEGT LLC—Negotiated Applicants: Prairie Rose Wind, LLC. received the following electric securities Rate Filing—September 2012 to be Description: Notice of Self- filings: effective 9/10/2012. certification of Exempt Wholesale Docket Numbers: ES12–55–000. Filed Date: 9/12/12.

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Accession Number: 20120912–5122. Company, L.L.C. (CIG) in Weld County, • An approximate 7.75 mile 24-inch- Comments Due: 5 p.m. e.t. 9/24/12. Colorado. The Commission will use this diameter lateral pipeline (Lancaster Any person desiring to intervene or EA in its decision-making process to Lateral) connecting natural gas protest in any of the above proceedings determine whether the project is in the production and processing facilities in must file in accordance with Rules 211 public convenience and necessity. the DJ Basin to a connection with its and 214 of the Commission’s This notice announces the opening of existing High Plains System in Weld Regulations (18 CFR 385.211 and the scoping process the Commission County, Colorado; 385.214) on or before 5 p.m. Eastern will use to gather input from the public • An overpressure protection facility time on the specified comment date. and interested agencies on the project. and pigging facilities at the Protests may be considered, but Your input will help the Commission interconnection of the proposed intervention is necessary to become a staff determine what issues they need to Lancaster Lateral and CIG’s High Plains party to the proceeding. evaluate in the EA. Please note that the System; scoping period will close on October 11, • Two new receipt meter stations Filings in Existing Proceedings 2012. used to measure new sources of supply Docket Numbers: RP12–900–001. This notice is being sent to the into the existing High Plains System; Applicants: Sea Robin Pipeline Commission’s current environmental • Modify an existing meter station Company, LLC. mailing list for this project. State and known as the Flying Hawk Meter Description: Compliance with RP12– local government representatives should Station which connects the High Plains 900–000. notify their constituents of this System with the Wyoming Interstate Filed Date: 9/12/12. proposed project and encourage them to Company, L.L.C. System at the Accession Number: 20120912–5027. comment on their areas of concern. Cheyenne Hub to make the meter bi- Comments Due: 5 p.m. e.t. 9/24/12. If you are a landowner receiving this directional; and notice, a pipeline company • Any person desiring to protest in any Modifying an existing block valve representative may contact you about of the above proceedings must file in on the High Plains System by installing the acquisition of an easement to accordance with Rule 211 of the pressure control equipment. construct, operate, and maintain the Commission’s Regulations (18 CFR The general location of the project proposed facilities. The company would 1 385.211) on or before 5 p.m. Eastern facilities is shown in appendix 1. seek to negotiate a mutually acceptable time on the specified comment date. agreement. However, if the Commission Land Requirements for Construction The filings are accessible in the approves the project, that approval Construction of the proposed facilities Commission’s eLibrary system by conveys with it the right of eminent would disturb about 125.7 acres of land clicking on the links or querying the domain. Therefore, if easement for the aboveground facilities and the docket number. negotiations fail to produce an pipeline. Following construction, CIG eFiling is encouraged. More detailed agreement, the pipeline company could would maintain about 57.9 acres for information relating to filing initiate condemnation proceedings permanent operation of the project’s requirements, interventions, protests, where compensation would be facilities; the remaining acreage would and service can be found at: http:// determined in accordance with state be restored and revert to former uses. www.ferc.gov/docs-filing/efiling/filing- law. About 23.2 percent of the proposed req.pdf. For other information, call (866) CIG provided landowners with a fact pipeline route parallels existing 208–3676 (toll free). For TTY, call (202) sheet prepared by the FERC entitled pipeline, utility, or road rights-of-way. 502–8659. ‘‘An Interstate Natural Gas Facility On The EA Process Dated: September 13, 2012. My Land? What Do I Need To Know?’’. Nathaniel J. Davis, Sr. This fact sheet addresses a number of The National Environmental Policy Deputy Secretary. typically-asked questions, including the Act (NEPA) requires the Commission to [FR Doc. 2012–23079 Filed 9–18–12; 8:45 am] use of eminent domain and how to take into account the environmental BILLING CODE 6717–01–P participate in the Commission’s impacts that could result from an action proceedings. It is also available for whenever it considers the issuance of a viewing on the FERC Web site Certificate of Public Convenience and DEPARTMENT OF ENERGY (www.ferc.gov). Necessity. NEPA also requires us 2 to discover and address concerns the Federal Energy Regulatory Summary of the Proposed Project public may have about proposals. This Commission CIG proposes to construct and operate process is referred to as ‘‘scoping.’’ The the High Plains 2013 Expansion Project main goal of the scoping process is to [Docket No. CP12–496–000] in response to demand for additional focus the analysis in the EA on the Colorado Interstate Gas Company, takeaway capacity from the Denver- important environmental issues. By this L.L.C.; Notice of Intent To Prepare an Julesburg (DJ) Basin to the Cheyenne notice, the Commission requests public Environmental Assessment for the Hub located in Weld County, Colorado. comments on the scope of the issues to Proposed High Plains 2013 Expansion The High Plains 2013 Expansion Project address in the EA. We will consider all Project and Request for Comments on would provide initially about 225,000 Environmental Issues dekatherms per day (Dth per day) and 1 The appendices referenced in this notice will over time, may become capable of not appear in the Federal Register. Copies of The staff of the Federal Energy transporting up to 600,000 dekatherms appendices were sent to all those receiving this notice in the mail and are available at www.ferc.gov Regulatory Commission (FERC or per day of natural gas from a new using the link called ‘‘eLibrary’’ or from the Commission) will prepare an natural gas processing plant to an Commission’s Public Reference Room, 888 First environmental assessment (EA) that will interconnect with CIG’s exising High Street NE., Washington, DC 20426, or call (202) discuss the environmental impacts of Plains System. 502–8371. For instructions on connecting to eLibrary, refer to the last page of this notice. the High Plains 2013 Expansion Project The High Plains 2013 Expansion 2 ‘‘We,’’ ‘‘us,’’ and ‘‘our’’ refer to the involving construction and operation of Project would consist of the following environmental staff of the Commission’s Office of facilities by Colorado Interstate Gas facilities: Energy Projects.

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filed comments during the preparation historic properties.4 We will define the Documents and Filings. This is an easy of the EA. project-specific Area of Potential Effects method for interested persons to submit In the EA we will discuss impacts that (APE) in consultation with the SHPO as brief, text-only comments on a project; could occur as a result of the the project develops. On natural gas (2) You can file your comments construction and operation of the facility projects, the APE at a minimum electronically using the eFiling feature proposed project under these general encompasses all areas subject to ground on the Commission’s Web site headings: disturbance (examples include (www.ferc.gov) under the link to • Geology and soils; construction right-of-way, contractor/ Documents and Filings. With eFiling, • Land use; pipe storage yards, compressor stations, you can provide comments in a variety • Water resources, fisheries, and and access roads). Our EA for this of formats by attaching them as a file wetlands; project will document our findings on with your submission. New eFiling users must first create an account by • Cultural resources; the impacts on historic properties and clicking on ‘‘eRegister.’’ You must select • Vegetation and wildlife; summarize the status of consultations • under section 106. the type of filing you are making. If you Air quality and noise; are filing a comment on a particular • Endangered and threatened species; Currently Identified Environmental project, please select ‘‘Comment on a and Issues Filing’’; or • Public safety. We have already identified several (3) You can file a paper copy of your We will also evaluate reasonable issues that we think deserve attention comments by mailing them to the alternatives to the proposed project or based on a preliminary review of the following address: Kimberly D. Bose, portions of the project, and make proposed facilities and the Secretary, Federal Energy Regulatory recommendations on how to lessen or environmental information provided by Commission, 888 First Street NE., Room avoid impacts on the various resource CIG. This preliminary list of issues may 1A, Washington, DC 20426. areas. be changed based on your comments Environmental Mailing List The EA will present our independent and our analysis. analysis of the issues. The EA will be • The project could potentially The environmental mailing list available in the public record through impact federally listed endangered or includes federal, state, and local eLibrary. Depending on the comments threatened species. government representatives and received during the scoping process, we • Several residences along the agencies; elected officials; may also publish and distribute the EA pipeline route may by impacted by environmental and public interest to the public for an allotted comment noise from horizontal directional groups; Native American Tribes; other period. We will consider all comments drilling. interested parties; and local libraries on the EA before making our and newspapers. This list also includes Public Participation recommendations to the Commission. all affected landowners (as defined in To ensure we have the opportunity to You can make a difference by the Commission’s regulations) who are consider and address your comments, providing us with your specific potential right-of-way grantors, whose please carefully follow the instructions comments or concerns about the project. property may be used temporarily for in the Public Participation section Your comments should focus on the project purposes, or who own homes beginning on page 5. potential environmental effects, within certain distances of aboveground With this notice, we are asking reasonable alternatives, and measures to facilities, and anyone who submits agencies with jurisdiction by law and/ avoid or lessen environmental impacts. comments on the project. We will or special expertise with respect to the The more specific your comments, the update the environmental mailing list as environmental issues of this project to more useful they will be. To ensure that the analysis proceeds to ensure that we formally cooperate with us in the your comments are timely and properly send the information related to this preparation of the EA 3. Agencies that recorded, please send your comments so environmental review to all individuals, would like to request cooperating that the Commission receives them in organizations, and government entities agency status should follow the Washington, DC on or before October interested in and/or potentially affected instructions for filing comments 11, 2012. by the proposed project. provided under the Public Participation For your convenience, there are three If we publish and distribute the EA, section of this notice. methods which you can use to submit copies will be sent to the environmental your comments to the Commission. In mailing list for public review and Consultations Under Section 106 of the all instances please reference the project comment. If you would prefer to receive National Historic Preservation Act docket number (CP12–496–000) with a paper copy of the document instead of In accordance with the Advisory your submission. The Commission the CD version or would like to remove Council on Historic Preservation’s encourages electronic filing of your name from the mailing list, please implementing regulations for section comments and has expert staff available return the attached Information Request 106 of the National Historic to assist you at (202) 502–8258 or (appendix 2). Preservation Act, we are using this [email protected]. Becoming an Intervenor notice to initiate consultation with (1) You can file your comments In addition to involvement in the EA applicable State Historic Preservation electronically using the eComment scoping process, you may want to Office (SHPO), and to solicit their views feature on the Commission’s Web site become an ‘‘intervenor’’ which is an and those of other government agencies, (www.ferc.gov) under the link to official party to the Commission’s interested Indian tribes, and the public 4 proceeding. Intervenors play a more on the project’s potential effects on The Advisory Council on Historic Preservation’s regulations are at Title 36, Code of Federal formal role in the process and are able Regulations, Part 800. Those regulations define to file briefs, appear at hearings, and be 3 The Council on Environmental Quality historic properties as any prehistoric or historic heard by the courts if they choose to regulations addressing cooperating agency district, site, building, structure, or object included responsibilities are at Title 40, Code of Federal in or eligible for inclusion in the National Register appeal the Commission’s final ruling. Regulations, Part 1501.6. of Historic Places. An intervenor formally participates in

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the proceeding by filing a request to been transferred to Hardins Resources Persons unable to file electronically intervene. Instructions for becoming an Company. The project is located on the should submit an original and 14 copies intervenor are in the User’s Guide under South Fork, Catawba River in Gaston of the intervention or protest to the the ‘‘e-filing’’ link on the Commission’s County, North Carolina. The transfer of Federal Energy Regulatory Commission, Web site. an exemption does not require 888 First Street NE., Washington, DC Commission approval. Additional Information 20426. 2. Hardins Resources Company, The filings in the above-referenced Additional information about the located at 11800 Henderson Road, project is available from the Clifton, VA 20124 is now the exemptee proceeding(s) are accessible in the Commission’s Office of External Affairs, of the Hardins Hydro-Power Project No. Commission’s eLibrary system by at (866) 208–FERC, or on the FERC Web 6492. clicking on the appropriate link in the site at www.ferc.gov using the above list. They are also available for Dated: September 12, 2012. ‘‘eLibrary’’ link. Click on the eLibrary review in the Commission’s Public link, click on ‘‘General Search’’ and Kimberly D. Bose, Reference Room in Washington, DC. enter the docket number, excluding the Secretary. There is an eSubscription link on the last three digits in the Docket Number [FR Doc. 2012–23026 Filed 9–18–12; 8:45 am] web site that enables subscribers to field (i.e., CP12–496). Be sure you have BILLING CODE 6717–01–P receive email notification when a selected an appropriate date range. For document is added to a subscribed assistance, please contact FERC Online docket(s). For assistance with any FERC DEPARTMENT OF ENERGY Support at [email protected] Online service, please email or toll free at (866) 208–3676, or for Federal Energy Regulatory [email protected]. or call TTY, contact (202) 502–8659. The Commission (866) 208–3676 (toll free). For TTY, call eLibrary link also provides access to the (202) 502–8659. texts of formal documents issued by the [Docket No. ER12–2614–000] Commission, such as orders, notices, Dated: September 13, 2012. and rulemakings. Dynamo Power LLC; Supplemental Nathaniel J. Davis, Sr., In addition, the Commission now Notice That Initial Market-Based Rate Deputy Secretary. Filing Includes Request for Blanket offers a free service called eSubscription [FR Doc. 2012–23044 Filed 9–18–12; 8:45 am] which allows you to keep track of all Section 204 Authorization BILLING CODE 6717–01–P formal issuances and submittals in This is a supplemental notice in the specific dockets. This can reduce the above-referenced proceeding, of amount of time you spend researching Dynamo Power LLC’s application for DEPARTMENT OF ENERGY proceedings by automatically providing market-based rate authority, with an you with notification of these filings, accompanying rate schedule, noting that Federal Energy Regulatory document summaries, and direct links such application includes a request for Commission to the documents. Go to www.ferc.gov/ blanket authorization, under 18 CFR esubscribenow.htm. Finally, public meetings or site visits part 34, of future issuances of securities [Project No. 14436–000] and assumptions of liability. will be posted on the Commission’s Kaweah River Power Authority; Errata calendar located at www.ferc.gov/ Any person desiring to intervene or to Notice EventCalendar/EventsList.aspx along protest should file with the Federal with other related information. Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, On August 22, 2012, the Commission Dated: September 11, 2012. in accordance with Rules 211 and 214 issued a Notice in the above-referenced Kimberly D. Bose, of the Commission’s Rules of Practice proceeding. Notice of Preliminary Secretary. and Procedure (18 CFR 385.211 and Permit Application Accepted For Filing [FR Doc. 2012–23032 Filed 9–18–12; 8:45 am] 385.214). Anyone filing a motion to And Soliciting Comments, Motions To BILLING CODE 6717–01–P intervene or protest must serve a copy Intervene, And Competing Applications, of that document on the Applicant. August 22, 2012. (August 22, 2012). The Notice is hereby given that the county location of the project was DEPARTMENT OF ENERGY deadline for filing protests with regard incorrectly identified as Tulare County, to the applicant’s request for blanket Federal Energy Regulatory Nevada. The correct county location of authorization, under 18 CFR part 34, of the project is Tulare County, California. Commission future issuances of securities and Dated: September 11, 2012. [Project No. 6492–009] assumptions of liability is October 3, 2012. Kimberly D. Bose, Hardins Manufacturing Company, The Commission encourages Secretary. Hardins Resources Company; Notice electronic submission of protests and [FR Doc. 2012–23021 Filed 9–18–12; 8:45 am] of Transfer of Exemption interventions in lieu of paper, using the BILLING CODE 6717–01–P FERC Online links at http:// 1. By email filed April 23, 2012, www.ferc.gov. To facilitate electronic Hardins Manufacturing Company service, persons with Internet access informed the Commission that its who will eFile a document and/or be exemption from licensing for the listed as a contact for an intervenor Hardins Hydro-Power Project No. 6492, must create and validate an originally issued December 8, 1982,1 has eRegistration account using the 1 21 FERC ¶ 62,400, Order Granting Exemption eRegistration link. Select the eFiling From Licensing of a Small Hydroelectric Project of link to log on and submit the 5 Megawatts or Less. intervention or protests.

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DEPARTMENT OF ENERGY ecomment.asp. You must include your filing may also be viewed on the web at name and contact information at the end http://www.ferc.gov using the Federal Energy Regulatory of your comments. For assistance, ‘‘eLibrary’’ link. Enter the docket Commission please contact FERC Online Support at number excluding the last three digits in [Project No. 14374–000] [email protected] or toll the docket number field to access the free at 1–866–208–3676, or for TTY, document. For assistance, contact FERC American River Power, LLC; Notice of (202) 502–8659. Although the at [email protected] or call Preliminary Permit Application Commission strongly encourages toll-free, (866) 208–3676 or TTY, (202) Accepted for Filing and Soliciting electronic filing, documents may also be 502–8659. Comments, Motions To Intervene, and paper-filed. To paper-file, mail an Any questions regarding this Competing Applications original and seven copies to: Kimberly Application should be directed to D. Bose, Secretary, Federal Energy Stephen T. Veatch, Senior Director of On March 20, 2012, American River Regulatory Commission, 888 First Street Certificates and Tariffs, Trunkline Gas Power, LLC filed an application for a NE., Washington, DC 20426. Company, L.L.C., 5051 Westheimer preliminary permit under section 4(f) of More information about this project, Road, Houston, Texas 77056, or call the Federal Power Act proposing to including a copy of the application can (713) 989–2024, or fax (713) 989–1176, study the feasibility of the Brookville be viewed or printed on the ‘‘eLibrary’’ or by email: [email protected]. Hydroelectric Water Power Project No. link of Commission’s Web site at Any person may, within 60 days after 14374, to be located at the existing http://www.ferc.gov/docs-filing/ the issuance of the instant notice by the Brookville Lake Dam on the Whitewater elibrary.asp. Enter the docket number Commission, file pursuant to Rule 214 River, near the town of Brookville in (P–14374) in the docket number field to of the Commission’s Procedural Rules Franklin County, Indiana. The access the document. For assistance, (18 CFR 385.214) a motion to intervene Brookville Lake Dam is owned by the contact FERC Online Support. or notice of intervention. Any person United States government and operated filing to intervene or the Commission’s by the United States Army Corps of Dated: September 12, 2012. staff may, pursuant to section 157.205 of Engineers. Kimberly D. Bose, the Commission’s Regulations under the A preliminary permit does not Secretary. authorize the permit holder to perform NGA (18 CFR 157.205) file a protest to [FR Doc. 2012–23027 Filed 9–18–12; 8:45 am] the request. If no protest is filed within any land-disturbing activities or BILLING CODE 6717–01–P otherwise enter upon lands or waters the time allowed therefore, the proposed owned by others without the owners’ activity shall be deemed to be express permission. DEPARTMENT OF ENERGY authorized effective the day after the The proposed project would consist time allowed for protest. If a protest is of: (1) One new 60-foot-long by 30-foot- Federal Energy Regulatory filed and not withdrawn within 30 days wide by 30-foot-high reinforced Commission after the time allowed for filing a protest, the instant request shall be concrete powerhouse, containing three [Docket No. CP12–506–000] 3-megawatt (MW) turbines for a total treated as an application for authorization pursuant to section 7 of capacity of 9 MW; (2) a new 220-foot- Trunkline Gas Company, L.L.C.; Notice the NGA. long by 9-foot-diameter steel penstock; of Request Under Blanket (3) a new 35-foot-long by 35-foot-wide Authorization Persons who wish to comment only substation; (4) a new 400-foot-long, 12.5 on the environmental review of this to 34.5-kilovolt transmission line; and Take notice that on August 30, 2012, project should submit an original and (5) appurtenant facilities. The project Trunkline Gas Company, L.L.C. two copies of their comments to the would have an estimated annual (Trunkline), P.O. Box 4967, Houston, Secretary of the Commission. generation of 55 gigawatt-hours. Texas, 77210, filed in Docket No. CP12– Environmental commenter’s will be Applicant Contact: Mr. John Henry, 506–000, a Prior Notice request placed on the Commission’s 726 Eldridge Avenue, Collingswood, NJ pursuant to sections 157.205 and environmental mailing list, will receive 08107–1708; (856) 240–0707. 157.216 of the Commission’s copies of the environmental documents, FERC Contact: Tyrone A. Williams, Regulations under the Natural Gas Act and will be notified of meetings (202) 502–6331. for authorization to abandon associated with the Commission’s Deadline for filing comments, motions Trunkline’s existing compressor unit environmental review process. to intervene, and competing located in Jackson County, Texas. Environmental commenter’s will not be applications (without notices of intent), Specifically, Trunkline propose to required to serve copies of filed or notices of intent to file competing abandon, in place, the existing 1,675 documents on all other parties. applications: 60 days from the issuance horsepower compressor unit and related However, the non-party commentary, of this notice. Competing applications auxiliary equipment at the Edna will not receive copies of all documents and notices of intent must meet the Compressor Station. Due to the filed by other parties or issued by the requirements of 18 CFR 4.36. construction of the Eagle Plant Commission (except for the mailing of Comments, motions to intervene, Interconnect and its delivery pressure, environmental documents issued by the notices of intent, and competing Trunkline has determined that the Commission) and will not have the right applications may be filed electronically compression at the Edna Compressor to seek court review of the via the Internet. See 18 CFR Station will no longer be needed. Commission’s final order. 385.2001(a)(1)(iii) and the instructions Trunkline has not operated the Edna The Commission strongly encourages on the Commission’s Web site http:// Compressor Station during the last electronic filings of comments, protests, www.ferc.gov/docs-filing/efiling.asp. twelve months and no service to and interventions via the internet in lieu Commenters can submit brief comments existing customers will be impacted, all of paper. See 18 CFR 385.2001(a)(1)(iii) up to 6,000 characters, without prior as more fully set forth in the application and the instructions on the registration, using the eComment system which is on file with the Commission Commission’s Web site (www.ferc.gov) at http://www.ferc.gov/docs-filing/ and open to public inspection. The under the ‘‘e-Filing’’ link.

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Dated: September 11, 2012. the Commission’s Regulations under the forma tariff records, pursuant to 18 CFR Kimberly D. Bose, NGA (18 CFR 157.205) file a protest to 385.602 (2012) to reduce its base rates Secretary. the request. If no protest is filed within for transportation service and address [FR Doc. 2012–23033 Filed 9–18–12; 8:45 am] the time allowed therefore, the proposed numerous complex issues arising out of BILLING CODE 6717–01–P activity shall be deemed to be recent and anticipated changes in authorized effective the day after the pipeline safety requirements, time allowed for protest. If a protest is Columbia’s dedication to pipeline safety DEPARTMENT OF ENERGY filed and not withdrawn within 30 days and reliability of service, and the aging after the time allowed for filing a nature of Columbia’s system. Federal Energy Regulatory protest, the instant request shall be Columbia states that the settlement Commission treated as an application for provides for the implementation of a [Docket No. CP12–505–000] authorization pursuant to section 7 of new Capital Cost Recovery Mechanism the NGA. (CCRM), which will allow Columbia to Natural Gas Pipeline Company of Persons who wish to comment only recover, through an additive capital America LLC; Notice of Request Under on the environmental review of this demand rate, its revenue requirement Blanket Authorization project should submit an original and for capital investments made under two copies of their comments to the Columbia’s long-term plan to modernize Take notice that on August 30, 2012, Secretary of the Commission. its interstate transmission system. The Natural Gas Pipeline Company of Environmental commenters will be Settlement also establishes: (1) Revised America LLC (Natural), 3250 Lacey placed on the Commission’s transmission depreciation and negative Road, Suite 700, Downers Grove, Illinois environmental mailing list, will receive salvage rates effective January 1, 2012 60515, filed in Docket No. CP12–505– copies of the environmental documents, through December 31, 2024; (2) a 000, a prior notice request, pursuant to and will be notified of meetings revenue sharing mechanism pursuant to sections 157.205, 157.208 and 175.216 associated with the Commission’s which Columbia will share 75% of of the Commission’s Regulations under environmental review process. specified revenues earned in excess of the Natural Gas Act, and Transco’s Environmental commenters will not be an annual threshold; (3) a moratorium blanket certificate issued in Docket No. through January 31, 2018 on changes to CP82–402, for authorization to abandon required to serve copies of filed documents on all other parties. Columbia’s reduced transportation base two injection and withdrawal (I/W) rates pursuant to the Stipulation; (4) a wells, cut, cap, abandon and retire in However, the non-party commentary, will not receive copies of all documents commitment from Columbia that it will place its related laterals, taps and meters file a general Natural Gas Act (NGA) located in Kankakee County, Illinois filed by other parties or issued by the Commission (except for the mailing of Section 4(e) rate application to be and abandon in place a 1,158 foot 12- effective no later than February 1, 2019; inch pipeline along with related meter, environmental documents issued by the Commission) and will not have the right and (5) additional shipper-requested tap and ball valve located in Kankakee terms, all as described more fully in the County, Illinois. In addition, Natural to seek court review of the Commission’s final order. Settlement filing. states that the two I/W wells proposed Columbia states that it has served The Commission strongly encourages to be abandoned are to be subsequently copies of this filing on all affected electronic filings of comments, protests, converted to observation wells, all as customers and interested state and interventions via the internet in lieu more fully set forth in the application, commissions. Columbia respectfully of paper. See 18 CFR 385.2001(a)(1)(iii) which is on file with the Commission requests that the Commission issue an and the instructions on the and open to public inspection. The order approving the settlement no later filing may also be viewed on the web at Commission’s Web site (www.ferc.gov) than December 1, 2012. http://www.ferc.gov using the under the ‘‘e-Filing’’ link. Persons Any person desiring to intervene or to ‘‘eLibrary’’ link. Enter the docket unable to file electronically should protest this filing must file in number excluding the last three digits in submit an original and 14 copies of the accordance with Rules 211 and 214 of the docket number field to access the protest or intervention to the Federal the Commission’s Rules of Practice and document. For assistance, contact FERC Energy Regulatory Commission, 888 Procedure (18 CFR 385.211 and 385.214 at [email protected] or call First Street NE., Washington, DC 20426. (2012)) by the date set forth below. toll-free, (866) 208–3676 or TTY, (202) Dated: September 12, 2012. Protests will be considered by the 502–8659. Kimberly D. Bose, Commission in determining the Any questions regarding this Secretary. appropriate action to be taken, but will Application should be directed to Bruce [FR Doc. 2012–23028 Filed 9–18–12; 8:45 am] not serve to make protestants parties to H. Newsome, Vice President, Regulatory the proceeding. Any person wishing to BILLING CODE 6717–01–P Products and Services, Natural Gas become a party must file a notice of Pipeline Company of America LLC, intervention or motion to intervene, as 3250 Lacey Road, 7th Floor, Downers DEPARTMENT OF ENERGY appropriate. Such notices or motions Grove, Illinois 60515–7918, or via must be filed on or before the dates as telephone at (630) 725–3070, or by Federal Energy Regulatory indicated below. Anyone filing an email bruce_newsome@kindermorgan. Commission intervention or protest must serve a com. copy of that document on the Applicant. Any person may, within 60 days after [Docket No. RP12–1021–000] Anyone filing an intervention or protest the issuance of the instant notice by the Columbia Gas Transmission, LLC; on or before the intervention or protest Commission, file pursuant to Rule 214 Notice of Offer of Settlement date set below need not serve motions of the Commission’s Procedural Rules to intervene or protests on persons other (18 CFR 385.214) a motion to intervene Take notice that on September 4, than the Applicant. Pursuant to Rule or notice of intervention. Any person 2012, Columbia Gas Transmission, LLC 602(f)(2) of the Commission’s Rules of filing to intervene or the Commission’s (Columbia) filed a Stipulation and Practice and Procedure, 18 CFR staff may, pursuant to section 157.205 of Agreement (Settlement), including pro 385.602(f)(2) (2012), initial comments

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on the Settlement are due not later than • www.regulations.gov: Follow the How can I access the docket and/or 20 days after the filing of the Settlement, on-line instructions for submitting submit comments? and reply comments are due not later comments. than 30 days after the filing of the • Email: [email protected]. EPA has established a public docket Settlement. • Mail: EPA Docket Center, for this ICR under Docket ID No. EPA– The Commission encourages Environmental Protection Agency, HQ–SFUND–2012–0104, which is electronic submission interventions and Mailcode: 28221T, 1200 Pennsylvania available for online viewing at comments in lieu of paper using the Ave. NW., Washington, DC 20460. www.regulations.gov, or in person ‘‘eFiling’’ link at http://www.ferc.gov. • Hand Delivery: EPA Docket Center, viewing at the Superfund Docket in the This filing is accessible on-line at http:// Environmental Protection Agency, EPA Docket Center (EPA/DC), EPA www.ferc.gov, using the ‘‘eLibrary’’ link Room 3334, 1301 Constitution Ave. West, Room 3334, 1301 Constitution and is available for review in the NW., Washington, DC. Such deliveries Ave. NW., Washington, DC. The EPA/ Commission’s Public Reference Room in are only accepted during the Docket’s DC Public Reading Room is open from Washington, DC. There is an normal hours of operation, and special 8:30 a.m. to 4:30 p.m., Monday through ‘‘eSubscription’’ link on the web site arrangements should be made for Friday, excluding legal holidays. The that enables subscribers to receive email deliveries of boxed information. telephone number for the Reading Room notification when a document is added Instructions: Direct your comments to is 202–566–1744, and the telephone to a subscribed docket(s). For assistance Docket ID No. EPA–HQ–SFUND–2012– number for the Superfund Docket is with any FERC Online service, please 0104. EPA’s policy is that all comments 202–566–9744. email [email protected], or received will be included in the public Use www.regulations.gov to obtain a call (866) 208–3676 (toll free). For TTY, docket without change and may be copy of the draft collection of call (202) 502–8659. made available online at Interventions and Comments are due www.regulations.gov, including any information, submit or view public by: September 24, 2012. personal information provided, unless comments, access the index listing of Reply Comments are due by: October the comment includes information the contents of the docket, and to access 4, 2012. claimed to be Confidential Business those documents in the public docket Information (CBI) or other information that are available electronically. Once in Dated: September 11, 2012. whose disclosure is restricted by statute. the system, select ‘‘search,’’ then key in Kimberly D. Bose, Do not submit information that you the docket ID number identified in this Secretary. consider to be CBI or otherwise document. [FR Doc. 2012–23031 Filed 9–18–12; 8:45 am] protected through www.regulations.gov What information is EPA particularly BILLING CODE 6717–01–P or email. The www.regulations.gov Web interested in? site is an ‘‘anonymous access’’ system, which means EPA will not know your Pursuant to section 3506(c)(2)(A) of identity or contact information unless ENVIRONMENTAL PROTECTION the PRA, EPA specifically solicits you provide it in the body of your AGENCY comments and information to enable it comment. If you send an email to: comment directly to EPA without going [EPA–HQ–SFUND–2012–0104; FRL–9730–9] through www.regulations.gov your email (i) Evaluate whether the proposed address will be automatically captured collection of information is necessary Agency Information Collection for the proper performance of the Activities; Proposed Collection; and included as part of the comment that is placed in the public docket and functions of the Agency, including Comment Request; EPA ICR No. whether the information will have 2104.04 OMB Control No. 2050–0192 made available on the Internet. If you submit an electronic comment, EPA practical utility; AGENCY: Environmental Protection recommends that you include your (ii) Evaluate the accuracy of the Agency. name and other contact information in Agency’s estimate of the burden of the ACTION: Notice. the body of your comment and with any proposed collection of information, disk or CD–ROM you submit. If EPA including the validity of the SUMMARY: In compliance with the cannot read your comment due to methodology and assumptions used; Paperwork Reduction Act (PRA) (44 technical difficulties and cannot contact U.S.C. 3501 et seq.), this document you for clarification, EPA may not be (iii) Enhance the quality, utility, and announces that EPA is planning to able to consider your comment. clarity of the information to be submit a request to renew an existing Electronic files should avoid the use of collected; and approved Information Collection special characters, any form of (iv) Minimize the burden of the Request (ICR) to the Office of encryption, and be free of any defects or collection of information on those who Management and Budget (OMB). This viruses. For additional information are to respond, including through the ICR is scheduled to expire on July 31, about EPA’s public docket visit the EPA use of appropriate automated electronic, 2012. Before submitting the ICR to OMB Docket Center homepage at http:// mechanical, or other technological for review and approval, EPA is www.epa.gov/epahome/dockets.htm. collection techniques or other forms of soliciting comments on specific aspects FOR FURTHER INFORMATION CONTACT: information technology, e.g., permitting of the proposed information collection Rachel Lentz, Office of Brownfields and electronic submission of responses. In as described below. Land Revitalization, (5105T), particular, EPA is requesting comments DATES: Comments must be submitted on Environmental Protection Agency, 1200 from very small businesses (those that or before November 19, 2012. Pennsylvania Ave. NW., Washington, employ less than 25) on examples of ADDRESSES: Submit your comments, DC 20460; telephone number: (202) specific additional efforts that EPA identified by Docket ID No. EPA–HQ– 566–2745; fax number (202) 566–1476; could make to reduce the paperwork SFUND–2012–0104 by one of the email address: [email protected]. burden for very small businesses following methods: SUPPLEMENTARY INFORMATION: affected by this collection.

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What should I consider when I prepare regulations is consolidated in 40 CFR must establish a public record system my comments for EPA? part 9. during the funding period unless an Abstract: The Small Business Liability You may find the following adequate public record system is Relief and Brownfields Revitalization suggestions helpful for preparing your already established. Act (Pub. L. 107–118) (‘‘the Brownfields Cooperative agreement recipients comments: Amendments’’) was signed into law on (recipients) have general reporting and 1. Explain your views as clearly as January 11, 2002. The Act amends the recordkeeping requirements as a possible and provide specific examples. Comprehensive Environmental condition of their cooperative agreement 2. Describe any assumptions that you Response, Compensation, and Liability that result in burden. A portion of this used. Act (CERCLA), as amended, and reporting and recordkeeping burden is 3. Provide copies of any technical authorizes EPA to award cooperative authorized under 40 CFR Parts 30 and information and/or data you used that agreements to states, tribes, local 31 and identified in the EPA’s general support your views. governments, and other eligible entities grants ICR (OMB Control Number 2030– 4. If you estimate potential burden or to assess and clean up brownfields sites. 0020). EPA requires Brownfields costs, explain how you arrived at the Under the Brownfields Amendments, a program recipients to maintain and estimate that you provide. brownfields site means real property, report additional information to EPA on 5. Offer alternative ways to improve the expansion, redevelopment, or reuse the uses and accomplishments the collection activity. of which may be complicated by the associated with the funded brownfields 6. Make sure to submit your presence or potential presence of a activities. EPA uses several forms to comments by the deadline identified hazardous substance, pollutant, or assist recipients in reporting the under DATES. contaminant. For funding purposes, information and to ensure consistency 7. To ensure proper receipt by EPA, EPA uses the term ‘‘brownfields of the information collected. EPA uses be sure to identify the docket ID number property(ies)’’ synonymously with the this information to meet Federal assigned to this action in the subject term ‘‘brownfields sites.’’ The stewardship responsibilities to manage line on the first page of your response. Brownfields Amendments authorize and track how program funds are being You may also provide the name, date, EPA to award several types of spent, to evaluate the performance of and Federal Register citation. cooperative agreements to eligible the Brownfields Cleanup and What information collection activity or entities on a competitive basis. Redevelopment Program, to meet the ICR does this apply to? Under subtitle A of the Small Agency’s reporting requirements under Business Liability Relief and the Government Performance Results Affected Entities: Entities potentially Brownfields Revitalization Act, States, Act, and to report to Congress and other affected by this action are general tribes, local governments, and other program stakeholders on the status and purpose units of local government; land eligible entities can receive assessment accomplishments of the program. clearance authorities or other quasi- cooperative agreements to inventory, This ICR addresses the burden governmental entities that operate under characterize, assess, and conduct imposed on recipients that are the supervision and control of, or as an planning and community involvement associated with those reporting and agent of, a general purpose unit of local related to brownfields properties; recordkeeping requirements that are government; government entities cleanup cooperative agreements to carry specific to cooperative agreements created by State legislature; regional out cleanup activities at brownfields awarded under the Small Business councils or groups of general purpose properties; cooperative agreements to Liability Relief and Brownfields units of local government; capitalize revolving loan funds and Revitalization Act. This ICR revision redevelopment agencies that are provide subgrants for cleanup activities; modifies the annual reporting and chartered or otherwise sanctioned by and job training cooperative agreements recordkeeping burden under the the State; States; Indian Tribes other to support the creation and previous ICR. The modified burden than in Alaska; Alaska Native Regional implementation of environmental job reflects an increase in the number of Corporations, Alaska Native Village training and placement programs. Under respondents subject to the reporting and Corporations, and Metlakatla Indian subtitle C of the Small Business recordkeeping requirements, lower Communities; and non-profit Liability Relief and Brownfields number of responses based on previous organizations. Revitalization Act, State and tribes can three years of data submissions, and Title: Brownfields Program— receive cooperative agreements to improvements to the reporting forms Accomplishment Reporting (Renewal). establish and enhance their response based on EPA’s experience. By using the ICR numbers: EPA ICR No. 2104.04, programs. The cooperative agreements same form to report information on OMB Control No. 2050–0192. support activities necessary to establish recipient activities, EPA is adopting a ICR Status: This ICR is currently or enhance four elements of state and streamlined approach that avoids scheduled to expire on July 31, 2012. tribal response programs and to meet potential confusion among recipients An Agency may not conduct or sponsor, the public record requirements under and allows the Agency to collect and and a person is not required to respond the statute. The four elements eligible report program information consistently to, a collection of information, unless it for funding include: (a) Timely survey across all brownfields cooperative displays a currently valid OMB control and inventory of brownfield sites in the agreements. EPA is also modifying the number. The OMB control numbers for State or in the tribal land; (b) oversight reporting form to simplify and clarify EPA’s regulations in title 40 of the CFR, and enforcement authorities or other the reporting requirements, which will after appearing in the Federal Register mechanisms and resources; (c) improve the accuracy of information when approved, are listed in 40 CFR mechanisms and resources to provide reported and minimize the burden to part 9, are displayed either by meaningful opportunities for public recipients. publication in the Federal Register or participation; and (d) mechanisms for Burden Statement: The annual public by other appropriate means, such as on approval of a cleanup plan and reporting and recordkeeping burden for the related collection instrument or verification and certification that this collection of information is form, if applicable. The display of OMB cleanup is complete. States and tribes estimated to average 1.25 hours per control numbers in certain EPA that receive funding under subtitle C response for the Property Profile Form

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and 4 hours per response for the Job additional comments to OMB. If you • Hand Delivery: Enforcement and Training Reporting Form. Burden means have any questions about this ICR or the Compliance Docket Information Center the total time, effort, or financial approval process, please contact the in the EPA Docket Center (EPA/DC), resources expended by persons to technical person listed under FOR EPA West, Room B 3334, 1301 generate, maintain, retain, or disclose or FURTHER INFORMATION CONTACT. Constitution Avenue NW., Washington, provide information to or for a Federal Dated: September 12, 2012. DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to agency. This includes the time needed Gail A. Cooper, to review instructions; develop, acquire, 4:30 p.m., Monday through Friday, Acting Director, Office of Brownfields and excluding legal holidays. The telephone install, and utilize technology and Land Revitalization. systems for the purposes of collecting, number for the Reading Room is (202) validating, and verifying information, [FR Doc. 2012–23088 Filed 9–18–12; 8:45 am] 566–1744, and the telephone number for processing and maintaining BILLING CODE 6560–50–P the Enforcement and Compliance information, and disclosing and Docket is (202) 566–1927. Such deliveries are only accepted during the providing information; adjust the ENVIRONMENTAL PROTECTION Docket’s normal hours of operation, and existing ways to comply with any AGENCY previously applicable instructions and special arrangements should be made requirements which have subsequently for deliveries of boxed information. [Docket ID Number EPA–HQ–OECA–2009– Instructions: Direct your comments to changed; train personnel to be able to 0562] respond to a collection of information; Docket ID No. EPA–HQ–OECA–2009– search data sources; complete and Clean Water Act Class II: Proposed 0562. EPA’s policy is that all comments review the collection of information; Administrative Settlement, Penalty received will be included in the public and transmit or otherwise disclose the Assessment and Opportunity To docket without change and may be information. Comment Regarding New Cingular made available online at The ICR provides a detailed Wireless PCS, LLC www.regulations.gov, including any explanation of the Agency’s estimate, personal information provided, unless which is only briefly summarized here: AGENCY: Environmental Protection the comment includes information Estimated total number of potential Agency (EPA). claimed to be Confidential Business respondents: 1007. ACTION: Notice. Information (CBI) or other information Frequency of response: Bi-annual for whose disclosure is restricted by statute. subtitle C recipients; quarterly for SUMMARY: EPA has entered into a Do not submit information that you subtitle A recipients. Consent Agreement with New Cingular consider to be CBI or otherwise Estimated total average number of Wireless PCS, LLC to resolve violations protected through www.regulations.gov. responses for each respondent: 20. of the Clean Water Act (CWA), the The www.regulations.gov Web site is an Estimated total annual burden hours: Emergency Planning and Community ‘‘anonymous access’’ system, which 3,167 hours. Right-to-Know Act (EPCRA), and the means EPA will not know your identity Estimated total annual costs: Clean Air Act (CAA) and their or contact information unless you $308,911. This includes an estimated implementing regulations. provide it in the body of your comment. burden cost of $308,911 and an The Administrator is hereby If you send an email comment directly estimated cost of $0 for capital providing public notice of this Consent to EPA without going through investment or maintenance and Agreement and proposed Final Order www.regulations.gov, your email operational costs. (CAFO), and providing an opportunity address will be automatically captured and included as part of the comment Are there changes in the estimates from for interested persons to comment on that is placed in the public docket and the last approval? the CWA, EPCRA, and CAA portions of this Consent Agreement, pursuant to made available on the Internet. If you There is a decrease of one hour in the CWA section 311(b)(6)(C), 33 U.S.C. submit an electronic comment, EPA total estimated respondent burden 1321(b)(6)(C). recommends that you include your compared with that identified in the ICR name and other contact information in DATES: Comments are due on or before currently approved by OMB. This the body of your comment and with any decrease reflects EPA’s updating of October 19, 2012. disk or CD–ROM you submit. If EPA burden estimates for this collection ADDRESSES: Submit your comments, cannot read your comment due to based on an increase in number of identified by Docket ID No. EPA–HQ– technical difficulties and cannot contact experienced recipients familiar with OECA–2009–0562, by one of the you for clarification, EPA may not be reporting requirements, a lowered following methods: able to consider your comment. number of responses based on previous • www.regulations.gov: Follow the Electronic files should avoid the use of data submission, and improvements in on-line instructions for submitting special characters, any form of the ACRES reporting database. comments. encryption, and be free of any defects or • Email: [email protected], viruses. For additional information What is the next step in the process for Attention Docket ID No. EPA–HQ– about EPA’s public docket, visit the EPA this ICR? OECA–2009–0562. Docket Center homepage at http:// EPA will consider the comments • Fax: (202) 566–9744, Attention www.epa.gov/epahome/dockets.htm. received and amend the ICR as Docket ID No. EPA–HQ–OECA–2009– Docket: All documents in the docket appropriate. The final ICR package will 0562. are listed in the www.regulations.gov then be submitted to OMB for review • Mail: Enforcement and Compliance index. Although listed in the index, and approval pursuant to 5 CFR Docket Information Center, some information is not publicly 1320.12. At that time, EPA will issue Environmental Protection Agency, available, e.g., CBI or other information another Federal Register notice Mailcode: 2822T, 1200 Pennsylvania whose disclosure is restricted by statute. pursuant to 5 CFR 1320.5(a)(1)(iv) to Ave. NW., Washington, DC 20460, Certain other material, such as announce the submission of the ICR to Attention Docket ID No. EPA–HQ– copyrighted material, will be publicly OMB and the opportunity to submit OECA–2009–0562. available only in hard copy. Publicly

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available docket materials are available II. Background $625,000 for Supplemental either electronically at This settlement agreement is the Environmental Projects and will www.regulations.gov or in hard copy at result of an investigation by the Special conduct CAA and SPCC compliance the Enforcement and Compliance Litigation and Projects Division (SLPD) audits at legacy AWS sites. EPA and Docket Information Center in the EPA in the Office of Civil Enforcement of NCW negotiated an administrative Docket Center (EPA/DC), EPA West, AT&T Wireless (AWS) for potential Consent Agreement in accordance with Room B 3334, 1301 Constitution EPCRA Section 311 and 312 reporting the Consolidated Rules of Practice, 40 Avenue NW., Washington, DC. The EPA violations, CWA violations related to CFR 22.13(b) (In Re: New Cingular Docket Center Public Reading Room is Spill Prevention, Control, and Wireless PCS, LLC, Docket Nos. CWA– open from 8:30 a.m. to 4:30 p.m., Countermeasure (SPCC) Plan HQ–2009–8001, CAA–HQ–2009–8001, Monday through Friday, excluding legal requirements and CAA violations EPCRA–HQ–2009–8001). This Consent holidays. The telephone number for the related to the permitting of backup Agreement is subject to public notice Reading Room is (202) 566–1744, and generators under State Implementation and comment under CWA section the telephone number for the Plan (SIP) rules. On October 26, 2004, 311(b)(6)(C), 33 U.S.C. 1321(b)(6)(C). Enforcement and Compliance Docket is AWS was purchased by Cingular CWA (202) 566–1927. Wireless PCS, LLC (CW). CW was subsequently renamed New Cingular NCW violated CWA section 311(j) and FOR FURTHER INFORMATION CONTACT: Wireless PCS, LLC (NCW). The scope of 40 CFR Part 112, because it Michael Calhoun, Special Litigation and this settlement agreement is limited to inadequately prepared and/or failed to Projects Division (2248–A), U.S. legacy AWS-owned facilities that were prepare and implement SPCC plans for Environmental Protection Agency, 1200 subject to SLPD’s investigation from the 14 facilities listed below between Pennsylvania Avenue NW., Washington, 2001 to 2003. 2001 and 2008. As authorized by CWA DC 20460; telephone (202) 564–6031; Pursuant to the settlement agreement, section 311(b)(6), 33 U.S.C. 1321(b)(6), fax: (202) 564–9001; email: NCW will pay a civil penalty of EPA has assessed a civil penalty for [email protected]. $750,000, will expend an additional these violations.

Site Address City State

1. Little Rock ...... 900 S. Shackleford Rd...... Little Rock ...... AR 2. Signal Peak ...... I–80 & Rattlesnake Rd...... Soda Springs ...... CA 3. Paauilo ...... Kukaiau Ranch ...... Paauilo ...... HI 4. Urbandale ...... 4157 109th St...... Urbandale ...... IA 5. Evansville ...... 4510 O’Hara Dr...... Evansville ...... IN 6. St. Rose ...... 160 James Dr...... St. Rose ...... LA 7. Southborough ...... 155 Northborough Dr...... Southborough ...... MA 8. Albany ...... 2 Kross Key Dr...... Albany ...... NY 9. New Hyde Park ...... 198 Armstrong Rd...... New Hyde Park ...... NY 10. Oklahoma City ...... 3201 Quail Springs Parkway ...... Oklahoma City ...... OK 11. Wilkes Barre ...... 485 Lasley Ave...... Wilkes Barre ...... PA 12. Allen ...... 800 Venture Dr...... Allen ...... TX 13. Austin ...... 4400 Staggerbrush Rd...... Austin ...... TX 14. Milwaukee ...... 5825 99th St...... Milwaukee ...... WI

Under CWA section 311(b)(6)(A), 33 proposed final order is October 19, NCW also violated EPCRA section U.S.C. 1321(b)(6)(A), based on the time 2012. All comments will be transferred 312, 42 U.S.C. 11022, and the period in which the violations occurred, to the Environmental Appeals Board regulations found at 40 CFR Part 370.25, any owner, operator, or person in charge (‘‘EAB’’) of EPA for consideration. The when it failed to prepare and submit of a vessel, onshore facility, or offshore powers and duties of the EAB are emergency and chemical inventory facility from which oil is discharged in outlined in 40 CFR 22.4(a). forms to the LEPC, the SERC and/or the violation of CWA section 311(b)(3), 33 Pursuant to CWA section 311(b)(6)(C), fire department with jurisdiction over U.S.C. 1321(b)(3), or who fails or refuses 33 U.S.C. 1321(b)(6)(C), EPA will not 314 facilities listed in Attachment A for to comply with any regulations that issue an order in this proceeding prior varying lengths of time between 2001 have been issued under CWA section to the close of the public comment and 2003. EPA, as authorized by EPCRA 311(j), 33 U.S.C. 1321(j), may be period. section 325, 42 U.S.C. 11045, has assessed an administrative civil penalty EPCRA assessed a civil penalty for these of up to $157,500 by EPA for violations violations. Attachment A to the occurring after March 15, 2004, and up NCW also violated EPCRA section proposed CAFO lists the 325 EPCRA to $137,500 for violations up to and 311, 42 U.S.C. 11021, and the sites in violation of EPCRA sections 311 including that date. Class II proceedings regulations found at 40 CFR 370.21, and 312. under CWA section 311(b)(6) are when it failed to submit a Material conducted in accordance with 40 CFR Under EPCRA section 325, 42 U.S.C. Safety Data Sheet (‘‘MSDS’’) for a 11045, the Administrator may issue an Part 22. hazardous chemical(s) or, in the administrative order assessing a civil The procedures by which the public alternative, a list of such chemicals, at penalty against any person who has may comment on a proposed Class II 51 facilities for varying lengths of time violated applicable emergency planning penalty order, or participate in a CWA between 2001 and 2003. EPA, as Class II penalty proceeding, are set forth authorized by EPCRA section 325, 42 or right to know requirements, or any in 40 CFR 22.45. The deadline for U.S.C. 11045, has assessed a civil other requirement of EPCRA. submitting public comment on this penalty for these violations. Proceedings under EPCRA section 325

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are conducted in accordance with 40 subsequent operation. This provision DC 20460, (202) 566–1697, CFR part 22. was federally approved and became [email protected], or Karen Seeh, U.S. federally enforceable on July 23, 1999 Environmental Protection Agency, CAA (64 Fed. Reg. 39,920). NCW owns or Office of Environmental Information, NCW also violated regulations operates a facility (6855 West Eight Mile Mail Stop 2823T, 1200 Pennsylvania promulgated pursuant to the California Road, Stockton, CA) in the SJVUAPCD Avenue NW., Washington, DC 20460, SIP involving the two facilities that installed two pollution-emitting (202) 566–1175, [email protected]. described in the paragraphs below at diesel-powered electric generating units SUPPLEMENTARY INFORMATION: On varying lengths of time between 2001 without written authorization from October 13, 2005, the final Cross-Media and 2007. Section 110(a)(1) of the CAA, SJVUAPCD in violation of Rule 2010. Electronic Reporting Rule (CROMERR) 42 U.S.C. 7410(a)(2), requires states to NCW violated regulations was published in the Federal Register submit implementation plans to promulgated pursuant to the California (70 FR 59848) and codified as part 3 of implement, maintain, and enforce SIP involving the two facilities title 40 of the CFR. CROMERR ambient air quality standards. Section described in the paragraphs above and establishes electronic reporting as an 110(a)(2)(C) of the CAA, 42 U.S.C. is therefore subject to federal acceptable regulatory alternative to 7410(a)(2), requires states to include in enforcement under CAA section 110(a). paper reporting and establishes their implementation plans regulation of EPA, as authorized by CAA section requirements to assure that electronic the modification and construction of 113(d), 42 U.S.C. 7413(d), has assessed documents are as legally dependable as any stationary source covered by the a civil penalty for these violations. plan. The California State their paper counterparts. Subpart D of Under CAA section 113(d), 42 U.S.C. CROMERR requires that state, tribal or Implementation Plan (SIP) includes 7413(d), the Administrator may issue an requirements from local governments. local government agencies that receive, administrative order assessing a civil or wish to begin receiving, electronic The California SIP, including the penalty against any person who has requirements specific to the local reports under their EPA-authorized violated an applicable requirement of programs must apply to EPA for a governments, was approved by EPA the CAA, including any rule, order, under section 110 of the Act, 42 U.S.C. revision or modification of those waiver, permit or plan. Proceedings programs and obtain EPA approval. 7410. under CAA section 113(d) are The California air quality control Subpart D provides standards for such conducted in accordance with 40 CFR districts’ rules for the jurisdictions set approvals based on consideration of the Part 22. forth below include regulations that electronic document receiving systems EPA will not issue an order in this require construction and/or operating that the state, tribal, or local government proceeding prior to the close of the permits for certain stationary sources of will use to implement the electronic public comment period. air pollution. As detailed below, each of reporting. Additionally, § 3.1000(b) these provisions was incorporated into List of Subjects through (e) of 40 CFR part 3, subpart D provides special procedures for program the California SIP and is therefore Environmental protection. federally enforceable. revisions and modifications to allow In the State of California, NCW Dated: September 10, 2012. electronic reporting, to be used at the operates diesel fuel-powered electric Bernadette Rappold, option of the State, Tribe or local generators that are stationary sources Director, Special Litigation and Projects government in place of procedures within the meaning of CAA section Division, Office of Enforcement and available under existing program- 302(z), 42 U.S.C. 7602(z). Compliance Assurance. specific authorization regulations. An A. Bay Area Air Quality Management [FR Doc. 2012–23090 Filed 9–18–12; 8:45 am] application submitted under the subpart District (BAAQMD)—The California SIP BILLING CODE 6560–50–P D procedures must show that the state, includes a provision, Regulation 2, Rule tribe or local government has sufficient 1 BAAQMD Rules, stating that any legal authority to implement the person installing any equipment, the ENVIRONMENTAL PROTECTION electronic reporting components of the use of which may cause the issuance of AGENCY programs covered by the application air contaminants, must first obtain [FRL–9730–1] and will use electronic document authorization for such construction and receiving systems that meet the subsequent operation. This provision Cross-Media Electronic Reporting: applicable subpart D requirements. was federally approved and became Authorized Program Revision On January 14, 2010, the Mississippi federally enforceable on January 26, Approval, State of Mississippi Department of Environmental Quality 1999 (64 Fed. Reg. 3850). NCW owns or (MDEQ) submitted an application operates a facility (2 miles off Lynch AGENCY: Environmental Protection entitled ‘‘Regulatory Services Portal/ Road, Suisun, CA) in the BAAQMD that Agency (EPA). Hazardous Waste Biennial Reporting’’ installed a pollution-emitting diesel- ACTION: Notice. for revisions/modifications of its EPA- powered electric generating unit authorized programs under title 40 CFR. SUMMARY: without written authorization from This notice announces EPA’s EPA reviewed MDEQ’s request to BAAQMD in violation of Regulation 2, approval of the State of Mississippi’s revise/modify its EPA-authorized Rule 1. request to revise/modify certain of its programs and, based on this review, B. San Joaquin Valley Unified Air EPA-authorized programs to allow EPA determined that the application Pollution Control District electronic reporting. met the standards for approval of (SJVUAPCD)—The California SIP DATES: EPA’s approval is effective on authorized program revisions/ includes a provision, section 3.0 in September 19, 2012. modifications set out in 40 CFR part 3, SJVUAPCD Rule 2010, stating that any FOR FURTHER INFORMATION CONTACT: Evi subpart D. In accordance with 40 CFR person installing any equipment, the Huffer, U.S. Environmental Protection 3.1000(d), this notice of EPA’s decision use of which may cause the issuance of Agency, Office of Environmental to approve Mississippi’s request to air contaminants, must first obtain Information, Mail Stop 2823T, 1200 revise/modify its following EPA- authorization for such construction and Pennsylvania Avenue NW., Washington, authorized programs to allow electronic

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reporting under 40 CFR parts 51, 61, 70, DATES: Any member of the public is limited to, land within the formal 261–262, and 264–265 is being invited to submit written comments Indian Reservations located within or published in the Federal Register: and/or request a public hearing on this abutting the state of Utah, including the Part 52—Requirements for determination by October 19, 2012. Skull Valley, Paiute, Navajo, Goshute, Preparation, Adoption, and Submittal of Please see Supplementary Information, Ute Mountain, and Northwestern Implementation Plans; Item C, for details. Should no timely Shoshoni Indian Reservations; Indian Part 61—National Emissions and appropriate request for a hearing be country lands within the Uintah and Standards for Hazardous Air Pollutants received, and the Regional Ouray Indian Reservation; any land held Subpart M—National Emission Administrator (RA) does not elect to in trust by the United States for an Standard for Asbestos; hold a hearing on his own motion, this Indian tribe, and any other areas which Part 70—State Operating Permit determination shall become effective are ‘‘Indian country’’ within the Programs; and October 19, 2012. If a public hearing is meaning of 18 U.S.C. 1151. Part 272—Approved State Hazardous requested and granted, then this C. Requesting a Hearing Waste Management Programs. determination shall not become Specifically, EPA has approved the effective until such time following the Any request for a public hearing shall state’s revision to its part 272 authorized hearing as the RA issues an order include: (1) The name, address, and program for electronic reporting of affirming or rescinding this action. telephone number of the individual, hazardous waste biennial report organization, or other entity requesting ADDRESSES: Written comments and information under 40 CFR parts 262.41 a hearing; (2) a brief statement of the requests for a public hearing should be and 264.75, for electronic submissions requester’s interest in the RA’s addressed to: James B. Martin, Regional that include a handwritten signature on determination and of information that Administrator, c/o Robert Clement, a separate paper submission report he/she intends to submit at such Drinking Water Unit (8P–W–DW), U.S. instead of an electronic signature. hearing; and (3) the signature of the EPA, Region 8, 1595 Wynkoop Street, MDEQ was notified of EPA’s requester or responsible official, if made Denver, CO 80202–1129. determination to approve its application on behalf of an organization or other All documents relating to this with respect to the authorized programs entity. listed above. determination are available for Notice of any hearing shall be given inspection at the following locations: (1) Dated: September 10, 2012. not less than fifteen (15) days prior to U.S. EPA, Region 8, Drinking Water Andrew Battin, the time scheduled for the hearing and Unit (7th floor), 1595 Wynkoop Street, will be made by the RA in the Federal Director, Office of Information Collection. Denver, CO 80202–1129; (2) Utah [FR Doc. 2012–23089 Filed 9–18–12; 8:45 am] Register and in a newspaper of general Department of Environmental Quality, circulation in the state. A notice will BILLING CODE 6560–50–P Division of Drinking Water, (3rd floor), also be sent to both the person(s) 195 North 1950 West, Salt Lake City, UT requesting the hearing and the state. The 84116. ENVIRONMENTAL PROTECTION hearing notice will include a statement FOR FURTHER INFORMATION CONTACT: AGENCY of purpose, information regarding time Robert Clement, Drinking Water Unit and location, and the address and [FRL–9729–8] (8P–W–DW), U.S. EPA, Region 8, 1595 telephone number where interested Wynkoop Street, Denver, CO 80202– persons may obtain further information. Public Water System Supervision 1129, (303) 312–6653. Program Revision for the State of Utah The RA will issue a final determination SUPPLEMENTARY INFORMATION: The EPA upon review of the hearing record. AGENCY: Environmental Protection approved Utah’s application for Frivolous or insubstantial requests for Agency (EPA). assuming primary enforcement a hearing may be denied by the RA. ACTION: Notice. authority for the PWSS program, However, if a substantial request is pursuant to Section 1413 of the SDWA, made within thirty (30) days after this SUMMARY: In accordance with the 42 U.S.C. 300g–2, and 40 CFR part 142. notice, a public hearing will be held. provisions of Section 1413 of the Safe The Utah Department of Environmental Please bring this notice to the Drinking Water Act (SDWA), 42 U.S.C. Quality, Division of Drinking Water attention of any persons known by you 300g–2, public notice is hereby given administers Utah’s PWSS program. to have an interest in this that the state of Utah has revised its determination. A. Why are revisions to state programs Public Water System Supervision Dated: August 27, 2012. (PWSS) Program by adopting necessary? Howard M. Cantor, regulations for the Lead and Copper States with primary PWSS Acting Regional Administrator, Region 8. Short Term Revisions, Long Term 1 enforcement authority must comply Enhanced Surface Water Treatment with the requirements of 40 CFR part [FR Doc. 2012–23093 Filed 9–18–12; 8:45 am] Rule, the Long Term 2 Enhanced 142 for maintaining primacy. They must BILLING CODE 6560–50–P Surface Water Treatment Rule and the adopt regulations that are at least as Stage 2 Disinfectants and Disinfection stringent as the NPDWRs at 40 CFR ENVIRONMENTAL PROTECTION Byproducts Rule that correspond to the parts 141 and 142, as well as adopt all AGENCY National Primary Drinking Water new and revised NPDWRs in order to Regulations (NPDWR). The EPA has retain primacy (40 CFR 142.12(a)). [FRL–9729–7] completed its review of these revisions in accordance with the SDWA and B. How does today’s action affect Public Water System Supervision proposes to approve them. Indian country (18 U.S.C. 1151) in Program Revision for the State of Today’s approval action does not Utah? Colorado extend to public water systems in Utah is not authorized to carry out its AGENCY: Environmental Protection Indian country as defined in 18 U.S.C. PWSS program in Indian country, as Agency (EPA). 1151. Please see Supplementary that term is defined at 18 U.S.C. 1151. ACTION: Notice. Information, Item B. Indian country includes, but is not

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SUMMARY: In accordance with the assuming primary enforcement made within thirty (30) days after this provisions of Section 1413 of the Safe authority for the PWSS program, notice, a public hearing will be held. Drinking Water Act (SDWA), 42 U.S.C. pursuant to Section 1413 of the SDWA, Please bring this notice to the 300g–2, public notice is hereby given 42 U.S.C. 300g–2, and 40 C.F.R. Part attention of any persons known by you that the state of Colorado has revised its 142. The Colorado Department of Public to have an interest in this Public Water System Supervision Health and Environment administers determination. (PWSS) Program by adopting Colorado’s PWSS program. Dated: August 13, 2012. regulations for the Long Term 2 A. Why are revisions to State programs James B. Martin, Enhanced Surface Water Treatment Rule necessary? and the Stage 2 Disinfectants and Regional Administrator, Region 8. Disinfection Byproducts Rule that States with primary PWSS [FR Doc. 2012–23092 Filed 9–18–12; 8:45 am] correspond to the National Primary enforcement authority must comply BILLING CODE 6560–50–P Drinking Water Regulations (NPDWR). with the requirements of 40 C.F.R. Part The EPA has completed its review of 142 for maintaining primacy. They must this revision in accordance with the adopt regulations that are at least as ENVIRONMENTAL PROTECTION SDWA and proposes to approve stringent as the NPDWRs at 40 CFR AGENCY Colorado’s primacy revision for the Parts 141 and 142, as well as adopt all Long Term 2 Enhanced Surface Water new and revised NPDWRs in order to [FRL–9729–6] Treatment Rule and the Stage 2 retain primacy (40 CFR 142.12(a)). Environmental Financial Advisory Disinfectants and Disinfection B. How does today’s action affect Byproducts Rule. Committee; Request for Nominations Indian country (18 U.S.C. 1151) in of Candidates to the Environmental Today’s approval action does not Colorado? extend to public water systems in Financial Advisory Board Indian country as defined in 18 U.S.C. Colorado is not authorized to carry out its PWSS program in Indian AGENCY: Environmental Protection 1151. Please see Supplementary Agency (EPA). Information, Item B. country, as that term is defined at 18 ACTION: Notice. DATES: Any member of the public is U.S.C. 1151. Indian country includes, invited to submit written comments but is not limited to, land within the formal Indian Reservations located SUMMARY: The United States and/or request a public hearing on this Environmental Protection Agency (EPA) determination by [insert date 30 days within or abutting the state of Colorado, including the Southern Ute Indian invites nominations of qualified after publication in the Federal candidates to be considered for Register]. Please see SUPPLEMENTARY Reservation and the Ute Mountain Ute Indian Reservation, any land held in appointments to fill vacancies on the INFORMATION, Item C, for details. Should Environmental Financial Advisory no timely and appropriate request for a trust by the United States for an Indian Tribe, and any other areas which are Board (the Board or EFAB). The Board hearing be received, and the Regional seeks to maintain diverse representation Administrator (RA) does not elect to ‘‘Indian country’’ within the meaning of 18 U.S.C. 1151. across all workforce sectors and hold a hearing on his own motion, this geographic locations. Nominees should determination shall become effective C. Requesting a Hearing demonstrate experience in any of the October 19, 2012. If a public hearing is Any request for a public hearing shall following areas: Environmental requested and granted, then this include: (1) The name, address, and technology investments; commercial determination shall not become telephone number of the individual, banking, local utility management and effective until such time following the organization, or other entity requesting finance, green infrastructure financing, hearing as the RA issues an order a hearing; (2) a brief statement of the sustainable community partnerships; affirming or rescinding this action. requester’s interest in the RA’s environmental insurance, and water and ADDRESSES: Written comments and determination and of information that wastewater infrastructure and program requests for a public hearing should be he/she intends to submit at such financing. Nominees are encouraged addressed to: James B. Martin, Regional hearing; and (3) the signature of the who live and work in the southeastern, Administrator, c/o Robert Clement, requester or responsible official, if made southwestern, western, and Drinking Water Unit (8P–W–DW), U.S. on behalf of an organization or other northwestern parts of the United States. EPA, Region 8, 1595 Wynkoop Street, entity. EPA values and welcomes diversity. Denver, CO 80202–1129. Notice of any hearing shall be given In an effort to obtain a diverse pool of All documents relating to this not less than fifteen (15) days prior to candidates, EPA encourages determination are available for the time scheduled for the hearing and nominations of women and men of all inspection at the following locations: (1) will be made by the RA in the Federal racial and ethnic groups. In addition to U.S. EPA, Region 8, Drinking Water Register and in a newspaper of general this notice, other sources may be Unit (7th floor), 1595 Wynkoop Street, circulation in the state. A notice will utilized in the solicitation of nominees. Denver, CO 80202–1129; (2) Colorado also be sent to both the person(s) The deadline for receiving nominations Department of Public Health and requesting the hearing and the state. The is Monday, October 15, 2012. Environment (CDPHE), Drinking Water hearing notice will include a statement Appointments will be made by the Section, 4300 Cherry Creek Drive South, of purpose, information regarding time Deputy Administrator of the Denver, CO 80246–1530. and location, and the address and Environmental Protection Agency and FOR FURTHER INFORMATION CONTACT: telephone number where interested will be announced in March 2013. Robert Clement, Drinking Water Unit persons may obtain further information. Nominee qualifications will be assessed (8P–W–DW), U.S. EPA, Region 8, 1595 The RA will issue a final determination under the mandates of the Federal Wynkoop Street, Denver, CO 80202– upon review of the hearing record. Advisory Committee Act, which 1129, (303) 312–6653. Frivolous or insubstantial requests for requires Committees to maintain SUPPLEMENTARY INFORMATION: The EPA a hearing may be denied by the RA. diversity across a broad range of approved Colorado’s application for However, if a substantial request is constituencies, sectors, and groups.

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DATES: Nominations should be possible re-appointment to a second • Federal eRulemaking Portal: http:// submitted in time to arrive no later than term. www.regulations.gov. Follow the online October 15, 2012. Nominations for membership must instructions for submitting comments. Background Information: The include a resume describing the Do not submit electronically any Environmental Financial Advisory professional and educational information you consider to be Board was chartered in 1989 under the qualifications of the nominee as well as Confidential Business Information (CBI) Federal Advisory Committee Act to expertise/experience. Contact details or other information whose disclosure is provide advice and recommendations to should include full name and title, restricted by statute. EPA on the following issues: business mailing address, telephone, • Mail: OPP Docket, Environmental • Reducing the cost of financing fax, and email address. A supporting Protection Agency Docket Center (EPA/ environmental facilities and letter of endorsement is encouraged but DC), (28221T), 1200 Pennsylvania Ave. discouraging polluting behavior; not required. NW., Washington, DC 20460–0001. • Creating incentives to increase Addresses/For Further Information Submit written withdrawal request by private investment in the provision of Contact: Submit nomination materials mail to: Pesticide Re-evaluation environmental services and removing or by postal mail, electronic mail, or fax to: Division (7508P), Office of Pesticide reducing constraints on private Pamela Scott, Membership Coordinator, Programs, Environmental Protection involvement imposed by current Environmental Financial Advisory Agency, 1200 Pennsylvania Ave. NW., regulations; Board, EPA, Office of the Chief Washington, DC 20460–0001. ATTN: • Developing new and innovative Financial Officer, 1200 Pennsylvania Katie Weyrauch. environmental financing approaches Avenue NW. (2731A), Washington, DC • Hand Delivery: To make special and supporting and encouraging the use 20460; or email [email protected]; arrangements for hand delivery or of cost-effective existing approaches; phone 202–564–6368; or fax 202–565– delivery of boxed information, please • Identifying approaches specifically 2587. follow the instructions at http:// targeted to small/disadvantaged Dated: September 11, 2012. www.epa.gov/dockets/contacts.htm. community financing; Additional instructions on • Increasing the capacity of state and Timothy P. McProuty, commenting or visiting the docket, local governments to carry out their Acting Director, Center for Environmental along with more information about respective environmental programs Finance, Office of the Chief Financial Officer. dockets generally, is available at http:// under current Federal tax laws; [FR Doc. 2012–23086 Filed 9–18–12; 8:45 am] www.epa.gov/dockets. • Analyzing how new technologies BILLING CODE 6560–50–P FOR FURTHER INFORMATION CONTACT: can be brought to market expeditiously; • Katie Weyrauch, Pesticide Re-evaluation Increasing the total investment in Division (7508P), Office of Pesticide environmental protection of public, and ENVIRONMENTAL PROTECTION AGENCY Programs, Environmental Protection private environmental resources to help Agency, 1200 Pennsylvania Ave. NW., ease the environmental financing [EPA–HQ–OPP–2009–1017; FRL–9361–1] Washington, DC 20460–0001; telephone challenge facing our nations. number: (703) 308–0166; email address: The Board meets two times each Notice of Receipt of Requests To [email protected]. calendar year (two days per meeting) at Voluntarily Cancel Certain Pesticide SUPPLEMENTARY INFORMATION: different locations within the Registrations continental United States. Board I. General Information members typically contribute AGENCY: Environmental Protection A. Does this action apply to me? approximately 1–3 hours per month to Agency (EPA). the Board’s work. The Board’s ACTION: Notice. This action is directed to the public in general, and may be of interest to a membership services are voluntary and SUMMARY: In accordance with the wide range of stakeholders including the Agency is unable to provide Federal Insecticide, Fungicide, and environmental, human health, and honoraria or compensation, according to Rodenticide Act (FIFRA), EPA is issuing agricultural advocates; the chemical FACA guidelines. However, Board a notice of receipt of requests by industry; pesticide users; and members members may receive travel and per registrants to voluntarily cancel certain of the public interested in the sale, diem allowances, where appropriate pesticide registrations. EPA intends to distribution, or use of pesticides. and in accordance with Federal Travel grant these requests at the close of the Regulations for invitational travelers. comment period for this announcement B. What should I consider as I prepare Evaluation Criteria: The following unless the Agency receives substantive my comments for EPA? criteria will be used to evaluate comments within the comment period nominees: 1. Submitting CBI. Do not submit this that would merit its further review of D Residence in the continental United information to EPA through the requests, or unless the registrants States; regulations.gov or email. Clearly mark D Professional knowledge of, and withdraw its requests. If these requests the part or all of the information that experience with, environmental are granted, any sale, distribution, or you claim to be CBI. For CBI financing activities; use of products listed in this notice will information in a disk or CD-ROM that D Senior level-experience that fills a be permitted after the registration has you mail to EPA, mark the outside of the gap in Board representation, or brings a been cancelled only if such sale, disk or CD-ROM as CBI and then new and relevant dimension to its distribution, or use is consistent with identify electronically within the disk or deliberations; the terms as described in the final order. CD-ROM the specific information that is D Demonstrated ability to work in a DATES: Comments must be received on claimed as CBI. In addition to one consensus-building process with a wide or before October 19, 2012. complete version of the comment that range of representatives from diverse ADDRESSES: Submit your comments, includes information claimed as CBI, a constituencies; and identified by docket identification (ID) copy of the comment that does not D Willingness to serve a two-year term number EPA–HQ–OPP–2009–1017, by contain the information claimed as CBI as an active-contributing member, with one of the following methods: must be submitted for inclusion in the

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public docket. Information so marked iv. Describe any assumptions and II. What action is the agency taking? will not be disclosed except in provide any technical information and/ accordance with procedures set forth in or data that you used. This notice announces receipt by the Agency of requests from registrants to 40 CFR part 2. v. If you estimate potential costs or 2. Tips for preparing your comments. cancel 18 pesticide products registered When submitting comments, remember burdens, explain how you arrived at under FIFRA section 3 or 24(c). These to: your estimate in sufficient detail to registrations are listed in sequence by i. Identify the document by docket ID allow for it to be reproduced. registration number (or company number and other identifying vi. Provide specific examples to number and 24(c) number) in Table 1 of information (subject heading, Federal illustrate your concerns and suggest this unit. Register date and page number). alternatives. ii. Follow directions. The Agency may Unless the Agency determines that ask you to respond to specific questions vii. Explain your views as clearly as there are substantive comments that or organize comments by referencing a possible, avoiding the use of profanity warrant further review of the requests or Code of Federal Regulations (CFR) part or personal threats. the registrants withdraw their requests, or section number. viii. Make sure to submit your EPA intends to issue an order in the iii. Explain why you agree or disagree; comments by the comment period Federal Register canceling all of the suggest alternatives and substitute deadline identified. affected registrations. language for your requested changes.

TABLE 1—REGISTRATIONS WITH PENDING REQUESTS FOR CANCELLATION

Registration No. Product name Chemical name

002724–00622 ...... Speer Py-Perm Aqueous Insect Killer #5 ...... Piperonyl butoxide; Pyrethrins; Permethrin. 002724–00633 ...... Speer Py-Perm Aqueous Insect Killer #9 ...... Piperonyl butoxide; Pyrethrins; Permethrin. 007405–00073 ...... Chemi-cap Flying & Crawling Insecticide II ...... Pyrethrins, Piperonyl butoxide, Permethin. 011678–00072 ...... MCW Technical Diflubenzuron ...... Diflubenzuron. 015300–00011 ...... Chemical Treatment CT–202 ...... Poly(oxy-1,2-ethanediyl(dimethylimino)-1,2- ethanediyl(dimethylimino)-1,2-ethanediyl dichloride). 015300–00022 ...... Chemical Treatment CL–2158 ...... Poly(oxy-1,2-ethanediyl(dimethylimino)-1,2- ethanediyl(dimethylimino)-1,2-ethanediyl dichloride). 015300–00023 ...... Chemical Treatment CL–2159 ...... Poly(oxy-1,2-ethanediyl(dimethylimino)-1,2- ethanediyl(dimethylimino)-1,2-ethanediyl dichloride). 047000–00169 ...... R & M Flea & Tick Shampoo #3 ...... Piperonyl butoxide, Pyrethrins. 052867–00001 ...... Microbiotrol 99W ...... Poly(oxy-1,2-ethanediyl(dimethylimino)-1,2- ethanediyl(dimethylimino)-1,2-ethanediyl dichloride). 066222–00059 ...... Propiconazole Technical ...... Propiconazole. 066330–00371 ...... Tribenuron-methyl Technical ...... Tribenuron-methyl. 070908–00003 ...... NAC 20 ...... Boric acid. 073049–00441 ...... Dinotefuran 0.5% Cockroach Gel Bait Professional ...... Dinotefuran. 073049–00442 ...... Dinotefuran 0.5% Roach Bait Stations ...... Dinotefuran. 073049–00443 ...... Dinotefuran 0.2% Roach Bait Station ...... Dinotefuran. 073049–00446 ...... Shuriken Cockroach Gel ...... Dinotefuran. 081343–00001 ...... Mykrostat A–100 ...... 10,10’-Oxybisphenoxarsine. CA010023 ...... Goal 2XL Herbicide ...... Oxyfluorfen.

Table 2 of this unit includes the TABLE 2—REGISTRANTS REQUESTING TABLE 2—REGISTRANTS REQUESTING names and addresses of record for all VOLUNTARY CANCELLATION—Con- VOLUNTARY CANCELLATION—Con- registrants of the products in Table 1 of tinued tinued this unit, in sequence by EPA company number. This number corresponds to EPA EPA the first part of the EPA registration Company Company name and address Company Company name and address numbers of the products listed in this No. No. unit. 11678 ...... Makhteshim Chemical Works 66330 ...... Arysta Life Science North Amer- Ltd, 3120 Highwoods Blvd., ica, LLC, 15401 Weston Park- TABLE 2—REGISTRANTS REQUESTING Suite 100, Raleigh, NC 27604. way, Suite 150, Cary, NC VOLUNTARY CANCELLATION 15300 ...... Chemtreat, Inc, 5640 Cox Rd., 27513. Glen Allen, VA 23060. 70908 ...... Grow More, Inc, Agent: EPA 47000 ...... Chem-Tech, LTD, 4515 Fleur RegWest Company, LLC , Company Company name and address Dr. #303, Des Moines, IA 8203 West 20th St., Suite A, No. 50321. Greeley, CO 80634–4696. 52867 ...... Chemical Equipment Labs, P.O. 73049 ...... Valent BioSciences Corporation, 2724 ...... Wellmark International, 1501 E. Box A, Havertown, PA 19083. Environmental Science Divi- Woodfield Rd., Suite 200 66222 ...... Makhteshim Agan of North sion, 870 Technology Way, West, Schaumburg, IL 60173. America, Inc., 3120 Libertyville, IL 60048–6316. 7405 ...... CPC Aeroscience, Inc., P.O. Highwoods Blvd., Suite 100, 81343 ...... MyTech, Inc, 751 Queen Ann Box 667770, Pompano Beach, Raleigh, NC 27604. St., Burlington, NC 27217. FL 33066–7770.

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TABLE 2—REGISTRANTS REQUESTING these pesticide products, upon number EPA–HQ–OPP–2010–0014, by VOLUNTARY CANCELLATION—Con- cancellation of the products identified one of the following methods: • tinued in Table 1 of Unit II., EPA anticipates Federal eRulemaking Portal: http:// allowing registrants to sell and www.regulations.gov. Follow the online EPA distribute existing stocks of these instructions for submitting comments. Company Company name and address products for 1 year after publication of Do not submit electronically any No. the Cancellation Order in the Federal information you consider to be Register. Thereafter, registrants will be Confidential Business Information (CBI) CA010023 Dow AgroSciences LLC, 9330 or other information whose disclosure is Zionsville Rd., 308/2E, Indian- prohibited from selling or distributing apolis, IN 46268–1054. the pesticides identified in Table 1 of restricted by statute. Unit II., except for export consistent • Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/ III. What is the agency’s authority for with FIFRA section 17 or for proper DC), (28221T), 1200 Pennsylvania Ave. taking this action? disposal. Persons other than registrants will generally be allowed to sell, NW., Washington, DC 20460–0001. Section 6(f)(1) of FIFRA provides that distribute, or use existing stocks until Submit written withdrawal request by a registrant of a pesticide product may such stocks are exhausted, provided that mail to: Pesticide Re-evaluation at any time request that any of its such sale, distribution, or use is Division (7508P), Office of Pesticide pesticide registrations be cancelled. consistent with the terms of the Programs, Environmental Protection FIFRA further provides that, before previously approved labeling on, or that Agency, 1200 Pennsylvania Ave. NW., acting on the request, EPA must publish accompanied, the cancelled products. Washington, DC 20460–0001. ATTN: a notice of receipt of any such request Katie Weyrauch. in the Federal Register. List of Subjects • Hand Delivery: To make special Section 6(f)(1)(B) of FIFRA requires Environmental protection, Pesticides arrangements for hand delivery or that before acting on a request for and pests. delivery of boxed information, please voluntary cancellation, EPA must follow the instructions at http:// Dated: September 11, 2012. provide a 30-day public comment www.epa.gov/dockets/contacts.htm. period on the request for voluntary Richard P. Keigwin, Jr., Additional instructions on commenting cancellation or use termination. In Director, Pesticide Re-evaluation Division, or visiting the docket, along with more addition, FIFRA section 6(f)(1)(C) Office of Pesticide Programs. information about dockets generally, is requires that EPA provide a 180-day [FR Doc. 2012–22966 Filed 9–18–12; 8:45 am] available at http://www.epa.gov/ comment period on a request for BILLING CODE 6560–50–P dockets. voluntary cancellation or termination of FOR FURTHER INFORMATION CONTACT: any minor agricultural use before Katie Weyrauch, Pesticide Re-evaluation granting the request, unless: ENVIRONMENTAL PROTECTION AGENCY Division (7508P), Office of Pesticide 1. The registrants request a waiver of Programs, Environmental Protection the comment period, or Agency, 1200 Pennsylvania Ave. NW., 2. The EPA Administrator determines [EPA–HQ–OPP–2010–0014; FRL–9361–2] Washington, DC 20460–0001; telephone that continued use of the pesticide number: (703) 308–0166; email address: would pose an unreasonable adverse Notice of Receipt of Requests To [email protected]. effect on the environment. Voluntarily Cancel Certain Pesticide The registrants in Table 2 of Unit II, Registrations SUPPLEMENTARY INFORMATION: have requested that EPA waive the 180- AGENCY: Environmental Protection I. General Information day comment period. Accordingly, EPA Agency (EPA). will provide a 30-day comment period A. Does this action apply to me? on the proposed requests. ACTION: Notice. This action is directed to the public SUMMARY: In accordance with the in general, and may be of interest to a IV. Procedures for Withdrawal of wide range of stakeholders including Request Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA is issuing environmental, human health, and Registrants who choose to withdraw a a notice of receipt of requests by agricultural advocates; the chemical request for cancellation should submit registrants to voluntarily cancel certain industry; pesticide users; and members such withdrawal in writing to the pesticide registrations. EPA intends to of the public interested in the sale, person listed under FOR FURTHER grant these requests at the close of the distribution, or use of pesticides. INFORMATION CONTACT. If the products comment period for this announcement have been subject to a previous B. What should I consider as I prepare unless the Agency receives substantive cancellation action, the effective date of my comments for EPA? comments within the comment period cancellation and all other provisions of 1. Submitting CBI. Do not submit this that would merit its further review of any earlier cancellation action are information to EPA through the requests, or unless the registrants controlling. regulations.gov or email. Clearly mark withdraw its requests. If these requests the part or all of the information that V. Provisions for Disposition of Existing are granted, any sale, distribution, or you claim to be CBI. For CBI in a disk Stocks use of products listed in this notice will or CD–ROM that you mail to EPA, mark Existing stocks are those stocks of be permitted after the registration has the outside of the disk or CD–ROM as registered pesticide products that are been cancelled only if such sale, CBI and then identify electronically currently in the United States and that distribution, or use is consistent with within the disk or CD–ROM the specific were packaged, labeled, and released for the terms as described in the final order. information that is claimed as CBI. In shipment prior to the effective date of DATES: Comments must be received on addition to one complete version of the the cancellation action. Because the or before March 18, 2013. comment that includes information Agency has identified no significant ADDRESSES: Submit your comments, claimed as CBI, a copy of the comment potential risk concerns associated with identified by docket identification (ID) that does not contain the information

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claimed as CBI must be submitted for iii. Explain why you agree or disagree; II. What action is the Agency taking? inclusion in the public docket. suggest alternatives and substitute Information so marked will not be language for your requested changes. This notice announces receipt by the disclosed except in accordance with iv. Describe any assumptions and Agency of requests from registrants to procedures set forth in 40 CFR part 2. provide any technical information and/ cancel 51 pesticide products registered or data that you used. under FIFRA section 3 or 24(c). These 2. Tips for preparing your comments. v. If you estimate potential costs or registrations are listed in sequence by When submitting comments, remember burdens, explain how you arrived at registration number (or company to: your estimate in sufficient detail to number and 24(c) number) in Table 1 of i. Identify the document by docket ID allow for it to be reproduced. this unit. number and other identifying vi. Provide specific examples to illustrate your concerns and suggest Unless the Agency determines that information (subject heading, Federal there are substantive comments that Register date and page number). alternatives. vii. Explain your views as clearly as warrant further review of the requests or ii. Follow directions. The Agency may possible, avoiding the use of profanity the registrants withdraw their requests, ask you to respond to specific questions or personal threats. EPA intends to issue an order in the or organize comments by referencing a viii. Make sure to submit your Federal Register canceling all of the Code of Federal Regulations (CFR) part comments by the comment period affected registrations. or section number. deadline identified.

TABLE 1—REGISTRATIONS WITH PENDING REQUESTS FOR CANCELLATION

Registration No. Product name Chemical name

000100–00990 ...... Demon WP Insecticide ...... Cypermethrin 000264–00778 ...... Stratego ...... Propiconazole, Trifloxystrobin 000432–00867 ...... Delta GC Insecticide Granule ...... Deltamethrin 000432–01240 ...... DeltaGard GC Granular Insecticide Deltamethrin 000432–01241 ...... DeltaGard T & O Granular Insecti- Deltamethrin cide. 000432–01242 ...... DeltaGard GC Granular Insecticide Deltamethrin 000432–01243 ...... DeltaGard T & O Granular Insecti- Deltamethrin cide. 000432–01307 ...... Tempo 20 WP T & O Insecticide Cyfluthrin in Water Soluble Packets (120G). 000432–01325 ...... Tempo 0.02 Ornamental Insecti- Cyfluthrin cide. 000432–01337 ...... Tempo 2 Golf Course Insecticide .. Cyfluthrin 000432–01359 ...... Tempo 2 Greenhouse and Nursery Cyfluthrin Insecticide. 000675–00019 ...... Bulk Amphyl Brand Disinfectant .... 2-Benzyl-4-chlorophenol; o-Phenylphenol 001043–00115 ...... Process Vesphene II ST ...... 4-tert Amylphenol o-Phenylphenol 001448–00092 ...... Busan 1024 ...... 3,5,7-Triaza-1-azoniatricyclo(3.3.1.1 (superscript3,7)) decane, 1-meth- yl-, chloride 002829–00090 ...... Durotex 7603 ...... 10,10′-Oxybisphenoxarsine 002829–00096 ...... Vinyzene BP 5–2 ...... 10,10′-Oxybisphenoxarsine 002829–00105 ...... Vinyzene BP–5 SIL3 ...... 10,10′-Oxybisphenoxarsine 002829–00109 ...... Vinyzene BP–5–2MS ...... 10,10′-Oxybisphenoxarsine 002829–00110 ...... Vinyzene BP 5–2 MEK ...... 10,10′-Oxybisphenoxarsine 002829–00115 ...... Vinyzene SB–1 ...... 10,10′-Oxybisphenoxarsine 002829–00120 ...... OBPA ...... 10,10′-Oxybisphenoxarsine 002829–00125 ...... Vinyzene BP–5–5 DIDP ...... 10,10′-Oxybisphenoxarsine 002829–00132 ...... Vinyzene SB–2 ...... 10,10′-Oxybisphenoxarsine 002829–00144 ...... Vinyzene IT 4081 DIDP ...... 10,10′-Oxybisphenoxarsine 003377–00020 ...... Bromine Chloride Disinfectant ...... Bromine chloride 009688–00134 ...... Chemico Insect Bait A ...... Sulfluramid 009688–00199 ...... Chemico Insect Bait SS ...... Sulfluramid 009688–00209 ...... Chemico Insect Bait REP ...... Sulfluramid 010292–00020 ...... Unitab ...... Phosphoric acid 1-Decanaminium, N-decyl-N,N-dimethyl-, chloride 010772–00005 ...... Sno Bol Toilet Bowl Cleaner ...... Hydrochloric acid; 1-Decanaminium, N,N-dimethyl-N-octyl-, chloride; Alkyl*dimethyl benzyl ammonium chloride *(50%C14, 40%C12, 10%C16); 1-Decanaminium, N-decyl-N,N-dimethyl-, chloride; 1- Octanaminium, N,N-dimethyl-N-octyl-, chloride 048520–00016 ...... Poly-50 Algaecide ...... Poly(oxy-1,2-ethanediyl(dimethylimino)-1,2-ethanediyl(dimethylimino)- 1,2-ethanediyl dichloride) 062719–00418 ...... RH–0611 ...... Mancozeb Myclobutanil 062719–00584 ...... GF 1948 ...... Propiconazole 066330–00337 ...... Micro Flo Permethrin 3.2 AG ...... Permethrin 066330–00376 ...... Thifensulfuron-methyl Technical .... Thifensulfuron

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TABLE 1—REGISTRATIONS WITH PENDING REQUESTS FOR CANCELLATION—Continued

Registration No. Product name Chemical name

074655–00027 ...... Olin 3204 ...... Poly(oxy-1,2-ethanediyl(dimethylimino)-1,2-ethanediyl(dimethyllimino)- 1,2-ethanediyl dichloride AL020006 ...... Propiconazole EC ...... Propiconazole AR020003 ...... Propiconazole EC ...... Propiconazole CA090003 ...... Agri-Mek 0.15 EC Miticide/Insecti- Abamectin cide. FL100007 ...... Gramoxone Inteon ...... Paraquat dichloride KY050001 ...... Propimax EC ...... Propiconazole ME090004 ...... Ethrel Brand Ethephon Plant Reg- Ethephon ulator. MI040003 ...... Propiconazole EC ...... Propiconazole MI110003 ...... Gramoxone Inteon ...... Paraquat dichloride MN030003 ...... Propiconazole EC ...... Propiconazole MS030003 ...... Propiconazole EC ...... Propiconazole ND020003 ...... Propiconazole EC ...... Propiconazole NV000005 ...... WIN–FLO 4F ...... Pentachloronitrobenzene NY050002 ...... Propimax EC ...... Propiconazole OH030003 ...... Propiconazole EC ...... Propiconazole WA000014 ...... Daconil SDG ...... Chlorothalonil

The following table includes the TABLE 2—REGISTRANTS REQUESTING III. What is the Agency’s authority for names and addresses of record for all VOLUNTARY CANCELLATION—Con- taking this action? registrants of the products in Table 1 of tinued Section 6(f)(1) of FIFRA provides that this unit, in sequence by EPA company a registrant of a pesticide product may number. This number corresponds to EPA company at any time request that any of its No. Company name and address the first part of the EPA registration pesticide registrations be cancelled. numbers of the products listed in this 10292 ...... Venus Laboratories, Inc., FIFRA further provides that, before unit. 111 South Rohlwing Rd., acting on the request, EPA must publish Addison, IL 60101. a notice of receipt of any such request TABLE 2—REGISTRANTS REQUESTING 10772 ...... Church & Dwight Co., Inc., in the Federal Register. VOLUNTARY CANCELLATION 469 North Harrison St., Section 6(f)(1)(B) of FIFRA requires Princeton, NJ 08543– that before acting on a request for 5297. EPA company Company name and address voluntary cancellation, EPA must No. 48520 ...... Phoenix Products Company, provide a 30-day public comment 5 Roger Ave., Milford, CT 100; Syngenta Crop Protection, 06460–6436. period on the request for voluntary CA090003; LLC., 410 Swing Rd., PO 62719; Dow AgroSciences LLC, cancellation or use termination. In FL100007; Box 18300, Greensboro, AL020006; 9330 Zionsville Rd., Indi- addition, FIFRA section 6(f)(1)(C) MI110003. NC 27419–8300. AR020003; anapolis, IN 46268–1054. requires that EPA provide a 180-day 264; Bayer CropScience LP, 2 KY050001; comment period on a request for ME090004. T.W. Alexander Dr., P.O. MI040003; voluntary cancellation or termination of Box 12014, Research Tri- MN030003; any minor agricultural use before angle Park, NC 27709. MS030003; granting the request, unless: 432 ...... Bayer Environmental ND020003; 1. The registrants request a waiver of Science, 2 T.W. Alexander NY050002; Dr., P.O. Box 12014, Re- OH030003. the comment period, or search Triangle Park, NC 66330 ...... Arysta Life Science North 2. The EPA Administrator determines 27709. America, LLC, 15401 that continued use of the pesticide 675 ...... Reckitt Benckiser LLC, 399 Weston Parkway, Suite would pose an unreasonable adverse Interpace Parkway, Par- 150, Cary, NC 27513. effect on the environment. sippany, NJ 07054–0225. 74655 ...... Hercules Incorporated, A The registrants in Table 2 of Unit II. 1043 ...... Steris Corporation, P.O. Box Wholly Owned Subsidiary have not requested that EPA waive the 147, St. Louis, MO of Ashland, Inc., 7910 180-day comment period. Accordingly, 63166–0147. Baymeadows Way, Suite 100, Jacksonville, FL EPA will provide a 180-day comment 1448 ...... Buckman Laboratories Inc., period on the proposed requests. 1256 North McLean Blvd., 32256. Memphis, TN 38108. NV000005 ...... AMVAC Chemical Corpora- IV. Procedures for Withdrawal of 2829 ...... Rohm and Haas Company, tion, 4695 MacArthur Request 100 Independence Mall Court, Suite 1200, New- West, Suite 1A, Philadel- port Beach, CA 92660– Registrants who choose to withdraw a phia, PA 19106–2399. 1706. request for cancellation should submit 3377 ...... Albemarle Corporation, 451 WA000014 ..... GB Biosciences Corporation, such withdrawal in writing to the Florida St., Baton Rouge, 410 Swing Rd., P.O. Box person listed under FOR FURTHER LA 70801–1765. 18300, Greensboro, NC INFORMATION CONTACT. If the products 9688 ...... Chemisco, P.O. Box 142642, 27419–5458. have been subject to a previous St. Louis, MO 63114– cancellation action, the effective date of 0642. cancellation and all other provisions of

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any earlier cancellation action are financial guarantee in excess of $100 EXPORT-IMPORT BANK OF THE controlling. million (as calculated in accordance UNITED STATES with Section 3(c)(10) of the Charter). V. Provisions for Disposition of Existing [Public Notice 2012–0502] Stocks Comments received within the comment period specified below will be Application for Final Commitment for a Existing stocks are those stocks of presented to the Ex-Im Bank Board of Long-Term Loan or Financial registered pesticide products that are Directors prior to final action on this Guarantee in Excess of $100 Million; currently in the United States and that Transaction. 25 Day Comment Period were packaged, labeled, and released for Reference: AP087328XX and shipment prior to the effective date of AGENCY: AP087328XA. Export-Import Bank of the the cancellation action. Because the United States. Purpose and Use: Brief description of Agency has identified no significant ACTION: Notice of 25 day comment the purpose of the transaction: To potential risk concerns associated with period regarding an application for final support the export of U.S. manufactured these pesticide products, upon commitment for a long-term loan or aircraft under operating lease from the cancellation of the products identified financial guarantee in excess of $100 United States to the United Arab in Table 1 of Unit II., EPA anticipates million. allowing registrants to sell and Emirates. distribute existing stocks of these Brief non-proprietary description of Reason for Notice: This Notice is to products for 1 year after publication of the anticipated use of the items being inform the public, in accordance with the Cancellation Order in the Federal exported: To provide airline service Section 3(c)(10) of the Charter of the Register. Thereafter, registrants will be between the United Arab Emirates and Export-Import Bank of the United States prohibited from selling or distributing other countries. (‘‘Ex-Im Bank’’), that Ex-Im Bank has the pesticides identified in Table 1 of To the extent that Ex-Im Bank is received an application for final Unit II., except for export consistent reasonably aware, the item(s) being commitment for a long-term loan or with FIFRA section 17 or for proper exported may be used to produce financial guarantee in excess of $100 disposal. Persons other than registrants exports or provide services in million (as calculated in accordance will generally be allowed to sell, competition with the exportation of with Section 3(c)(10) of the Charter). distribute, or use existing stocks until goods or provision of services by a Comments received within the comment such stocks are exhausted, provided that United States industry. period specified below will be such sale, distribution, or use is presented to the Ex-Im Bank Board of consistent with the terms of the Parties: Directors prior to final action on this previously approved labeling on, or that Principal Supplier: The Boeing Transaction. accompanied, the cancelled products. Company. Reference: AP087110XX. List of Subjects Obligor: International Lease Finance Purpose and Use: Brief description of Corporation. the purpose of the transaction: Environmental protection, Pesticides To support the export of commercial and pests. Guarantor(s): N/A. aircraft to Poland. Dated: September 11, 2012. Description of Items Being Exported: Brief non-proprietary description of Richard P. Keigwin, Jr. Boeing 777 aircraft. the anticipated use of the items being Director, Pesticide Re-evaluation Division, Information on Decision: Information exported: Office of Pesticide Programs. on the final decision for this transaction To be used for long-haul passenger air [FR Doc. 2012–22970 Filed 9–18–12; 8:45 am] will be available in the ‘‘Summary service between Poland and North BILLING CODE 6560–50–P Minutes of Meetings of Board of America and between Poland and Asia. Directors’’ on http://www.exim.gov/ To the extent that Ex-Im Bank is articles.cfm/board%20minute reasonably aware, the item(s) being exported are not expected to produce EXPORT-IMPORT BANK Confidential Information: Please note exports or provide services in that this notice does not include [Public Notice 2012–0501] competition with the exportation of confidential or proprietary business goods or provision of services by a information; information which, if Application for Final Commitment for a United States industry. disclosed, would violate the Trade Long-Term Loan or Financial Parties: Secrets Act; or information which Guarantee in Excess of $100 Million; Principal Supplier: The Boeing would jeopardize jobs in the United 25 Day Comment Period Company. States by supplying information that Obligor: Polskie Linie Lotnicze LOT AGENCY: Export-Import Bank of the competitors could use to compete with S.A. United States. companies in the United States. Guarantor(s): N/A. ACTION: Notice of 25 day comment DATES: Comments must be received on period regarding an application for final Description of Items Being Exported: or before October 15, 2012 to be assured commitment for a long-term loan or Boeing 787 aircraft. of consideration before final financial guarantee in excess of $100 Information on Decision: Information consideration of the transaction by the million. on the final decision for this transaction Board of Directors of Ex-Im Bank. will be available in the ‘‘Summary Reason for Notice: This Notice is to ADDRESSES: Comments may be Minutes of Meetings of Board of inform the public, in accordance with submitted through www.regulations.gov. Directors’’ on http://www.exim.gov/ Section 3(c)(10) of the Charter of the articles.cfm/board%20minute. Export-Import Bank of the United States Kathryn Hoff-Patrinos, Confidential Information: Please note (‘‘Ex-Im Bank’’), that Ex-Im Bank has Deputy General Counsel. that this notice does not include received an application for final [FR Doc. 2012–23060 Filed 9–18–12; 8:45 am] confidential or proprietary business commitment for a long-term loan or BILLING CODE 6690–01–P information; information which, if

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disclosed, would violate the Trade How To Attend and Observe an ASC Dated: September 14, 2012. Secrets Act; or information which meeting James R. Park, would jeopardize jobs in the United Email your name, organization and Executive Director. States by supplying information that contact information to [FR Doc. 2012–23059 Filed 9–18–12; 8:45 am] competitors could use to compete with [email protected]. BILLING CODE P companies in the United States. You may also send a written request DATES: Comments must be received on via U.S. Mail, fax or commercial carrier or before October 15, 2012 to be assured to the Executive Director of the ASC, FEDERAL MARITIME COMMISSION of consideration before final 1401 H Street NW., Ste 760, consideration of the transaction by the Notice of Agreements Filed Washington, DC 20005. The fax number Board of Directors of Ex-Im Bank. is 202–289–4101. Your request must be The Commission hereby gives notice ADDRESSES: Comments may be received no later than 4:30 p.m., ET, on of the filing of the following agreements submitted through www.regulations.gov. the Monday prior to the meeting. under the Shipping Act of 1984. Kathryn Hoff-Patrinos, Attendees must have a valid Interested parties may submit comments Deputy General Counsel. government-issued photo ID and must on the agreements to the Secretary, agree to submit to reasonable security [FR Doc. 2012–23061 Filed 9–18–12; 8:45 am] Federal Maritime Commission, measures. The meeting space is Washington, DC 20573, within ten days BILLING CODE 6690–01–P intended to accommodate public of the date this notice appears in the attendees. However, if the space will not Federal Register. Copies of the accommodate all requests, the ASC may agreements are available through the FEDERAL FINANCIAL INSTITUTIONS refuse attendance on that reasonable Commission’s Web site (www.fmc.gov) EXAMINATION COUNCIL basis. The use of any video or audio or by contacting the Office of tape recording device, photographing Agreements at (202)–523–5793 or device, or any other electronic or [email protected]. [Docket No. AS12–17] mechanical device designed for similar Agreement No.: 011075–076. Title: Central America Discussion Appraisal Subcommittee Notice of purposes is prohibited at ASC meetings. Agreement. Meeting Dated: September 14, 2012. Parties: Crowley Latin America James R. Park, AGENCY: Services, LLC.; Dole Ocean Cargo Appraisal Subcommittee of the Executive Director. Federal Financial Institutions Express; Great White Fleet Liner Service Examination Council. [FR Doc. 2012–23056 Filed 9–18–12; 8:45 am] Ltd; King Ocean Services Limited; and BILLING CODE P ACTION: Notice of meeting. Seaboard Marine, Ltd. Filing Party: Wayne R. Rohde, Esq.; Description: In accordance with Cozen O’Connor; 1627 I Street NW., FEDERAL FINANCIAL INSTITUTIONS Suite 1100; Washington, DC 20006– Section 1104 (b) of Title XI of the EXAMINATION COUNCIL Financial Institutions Reform, Recovery, 4007. and Enforcement Act of 1989, as Synopsis: The amendment corrects amended, notice is hereby given that the [Docket No. AS12–18] the address of Great White Fleet Liner Appraisal Subcommittee (ASC) will Service Ltd. Appraisal Subcommittee Notice of meet in open session for its regular Agreement No.: 012037–004. Meeting meeting: Title: Maersk Line/CMA CGM TA3 Space Charter Agreement. Location: FDIC—550 17th Street NW., AGENCY: Appraisal Subcommittee of the Room MB–5085, Washington, DC 20429. Parties: A.P. Moeller-Maersk A/S and Federal Financial Institutions CMA CGM S.A. Date: September 27, 2012. Examination Council. Time: 1:30 p.m. Filing Party: Wayne R. Rohde, Esq.; ACTION: Notice of meeting. Status: Open. Cozen O’Connor; 1627 I Street NW., Suite 1100; Washington, DC 20006– Matters To Be Considered Description: In accordance with 4007. Section 1104(b) of Title XI of the Synopsis: The amendment would Summary Agenda Financial Institutions Reform, Recovery, increase the amount of space being August 8, 2012 minutes—Open and Enforcement Act of 1989, as chartered to CMA CGM by Maersk Line Session. amended, notice is hereby given that the under the agreement. (No substantive discussion of the Appraisal Subcommittee (ASC) will Agreement No.: 012067–008. above items is anticipated. These meet in closed session: Title: U.S. Supplemental Agreement matters will be resolved with a single Location: FDIC—550 17th Street NW., to HLC Agreement. vote unless a member of the ASC Room MB–5085, Washington, DC 20429. Parties: BBC Chartering & Logistics requests that an item be moved to the Date: September 27, 2012. GmbH & Co. KG; Beluga Chartering discussion agenda.) Time: Immediately following the ASC GmbH; Chipolbrok; Clipper Project Ltd.; Hyndai Merchant Marine Co., Ltd.; Discussion Agenda open session. Industrial Maritime Carriers, L.L.C.; Appraisal Foundation FY13 Grant Status: Closed. Nordana Line A/S; and Rickmers-Linie Proposal Matters To Be Considered GmbH & Cie. KG. ASC FY13 Operating Plan Filing Party: Wade S. Hooker, Esq.; ASC FY13 Proposed Budget July 11, 2012 minutes—Closed Session. 211 Central Park W; New York, NY Appraisal Foundation June 2012 Grant August 8, 2012 minutes—Closed 10024. Reimbursement Request Session. Synopsis: The amendment would add ASC Policy for Monitoring Appraisal Preliminary discussion of State Hanssy Shipping Pte. Ltd. as a party to Requirements Compliance Reviews. the U.S. Agreement and to the

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worldwide Agreement of the Heavy Lift Synopsis: The amendment allows for Board of Governors of the Federal Reserve Club. a rent supplement to pay for the fender System, September 14, 2012. Agreement No.: 012103–002. improvements to Berth #1. Robert deV. Frierson, Title: CMA CGM/CSAV Victory By Order of the Federal Maritime Secretary of the Board. Bridge Vessel Sharing Agreement. Commission. [FR Doc. 2012–23096 Filed 9–18–12; 8:45 am] Parties: CMA CGM, S.A. and Dated: September 14, 2012. BILLING CODE 6210–01–P Compania Sud American de Vapores Karen V. Gregory, S.A. Secretary. Filing Party: Draughn Arbona, Esq.; FEDERAL RETIREMENT THRIFT [FR Doc. 2012–23145 Filed 9–18–12; 8:45 am] Associate Counsel & Environmental INVESTMENT BOARD Officer; CMA CGM (America) LLC; 5701 BILLING CODE P Lake Wright Drive; Norfolk, VA 23502. Sunshine Act; Notice of Meeting Synopsis: The amendment increases CMA CGM’s slot allocation via TIME AND DATE: 11 a.m. (Eastern Time) implementing a structural purchase. FEDERAL RESERVE SYSTEM September 24, 2012. Agreement No.: 012118–002. PLACE: 10th Floor Board Room, 77 K Title: CMA CGM/OOCL Victory Change in Bank Control Notices; Street NE., Washington, DC 20002. Acquisitions of Shares of a Bank or Bridge Space Charter Agreement. STATUS: Parts will be open to the public Bank Holding Company Parties: CMA CGM S.A. and Orient and a part will be closed to the public. Overseas Container Line Limited. The notificants listed below have MATTERS TO BE CONSIDERED: Filing Party: Draughn Arbona, Esq.; applied under the Change in Bank Associate Counsel & Environmental Parts Open to the Public Control Act (12 U.S.C. 1817(j)) and Officer; CMA CGM (America) LLC; 5701 § 225.41 of the Board’s Regulation Y (12 1. Approval of the Minutes of the Lake Wright Drive; Norfolk, VA 23502. CFR 225.41) to acquire shares of a bank August 27, 2012 Board Member Synopsis: The amendment decreases or bank holding company. The factors Meeting the amount of space purchased by that are considered in acting on the 2. Thrift Savings Plan activity report by OOCL from CMA CGM. notices are set forth in paragraph 7 of the Executive Director Agreement No.: 012182. (a) Monthly Participant Activity the Act (12 U.S.C. 1817(j)(7)). Title: Hyundai Glovis/Eukor Car Report Carriers Inc. Space Charter Agreement. The notices are available for (b) Monthly Investment Performance Parties: Hyundai Glovis Co. Ltd. and immediate inspection at the Federal Report Eukor Car Carriers Inc. Reserve Bank indicated. The notices (c) Legislative Report Filing Party: Sungu Kim; Lee, Hong, also will be available for inspection at 3. Annual Budget Report Degerman, Kang & Waimey; 1920 Main the offices of the Board of Governors. (a) Fiscal Year 2012 Results Street, Suite 900; Irvine, California Interested persons may express their (b) Fiscal Year 2013 Budget 92614. views in writing to the Reserve Bank (c) Fiscal Year 2014 Estimate indicated for that notice or to the offices Synopsis: The agreement authorizes Part Closed to the Public Hyundai Glovis and Eukor to charter of the Board of Governors. Comments space to each other in the trade between must be received not later than October 1. Procurement South Korea and the U.S. East and West 2, 2012. CONTACT PERSON FOR MORE INFORMATION: Coasts. A. Federal Reserve Bank of Chicago Kimberly Weaver, Director, Office of Agreement No.: 012183 (Colette A. Fried, Assistant Vice External Affairs, (202) 942–1640. Title: CSAV/SC Line Space Charter President) 230 South LaSalle Street, Dated: September 14, 2012. Agreement. Chicago, Illinois 60690–1414: James B. Petrick, Parties: Compania Sud Americana de 1. The Garst Family (Elizabeth Garst, Secretary, Federal Retirement Thrift Vapores S.A. and SC Line S.A. Edward Garst and Rachel Garst of Coon Investment Board. Filing Party: Walter H. Lion, Rapids, Iowa; Jennifer Garst, Ames, [FR Doc. 2012–23183 Filed 9–17–12; 11:15 am] McLaughlin & Stern, LLP; 260 Madison Iowa; Kate Garst Revocable Trust, Des BILLING CODE 6760–01–P Avenue, New York, NY 10016. Moines, Iowa, Kate Garst Trustee; Sarah Synopsis: The agreement authorizes Garst, West Des Moines, Iowa), as a CSAV and SC Line to charter space to group acting in concert and individually GENERAL SERVICES each other on an ad hoc basis in the by Elizabeth Garst, Sarah Garst, and ADMINISTRATION trade between Jacksonville and Port Sally Garst Haerr, Fairfield, Iowa, to Everglades, FL, on the one hand, and [OMB Control No. 3090–0274; Docket 2012– increase control to more than 25 percent 0001; Sequence 16] Colombia, Ecuador, Peru, and Chile, on of Perry Investment Company, Perry, the other hand. Iowa, and thereby indirectly control Public Buildings Service; Information Agreement No.: 201112–004. Raccoon Valley Bank, Perry, Iowa. Collection; Art-in-Architecture Title: Lease and Operating Agreement Program National Artist Registry (GSA between Philadelphia Regional Port B. Federal Reserve Bank of St. Louis Form 7437) Authority and Kinder Morgan Liquids (Glenda Wilson, Community Affairs Officer) P.O. Box 442, St. Louis, Terminals LLC. AGENCY: Public Buildings Service Missouri 63166–2034: Parties: Philadelphia Regional Port (GSA). Authority and Kinder Morgan Liquids 2. Clayton B. Patrick, Frankfort, ACTION: Notice of request for comments Terminals, LLC. Kentucky; to acquire share of American regarding an extension to an existing Filing Party: Paul D. Coleman, Esq.; Founders Bancorp, Inc., Lexington, OMB clearance. Hoppel, Mayer & Coleman; 1050 Kentucky, and thereby acquire shares of Connecticut Ave. NW., 10th Floor; American Founders Bancorp, Inc., SUMMARY: Under the provisions of the Washington, DC 20036. Lexington, KY. Paperwork Reduction Act, the

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Regulatory Secretariat will be Registry (GSA Form 7437)’’ on your DEPARTMENT OF HEALTH AND submitting to the Office of Management attached document. HUMAN SERVICES and Budget (OMB) a request to review • Fax: 202–501–4067. and approve an extension of a Centers for Disease Control and • previously approved information Mail: General Services Prevention Administration, Regulatory Secretariat collection requirement regarding Art-in [30Day–12–0607] Architecture Program National Artist (MVCB), 1275 First Street NE., Registry (GSA Form 7437). Washington, DC 20417. ATTN: Hada Agency Forms Undergoing Paperwork The Art-in-Architecture Program is Flowers/IC 3090–0274, Art-in- Reduction Act Review the result of a policy decision made in Architecture Program National Artist January 1963 by GSA Administrator Registry (GSA Form 7437). The Centers for Disease Control and Prevention (CDC) publishes a list of Bernard L. Boudin who had served on Instructions: Please submit comments the Ad Hoc Committee on Federal information collection requests under only and cite Information Collection review by the Office of Management and Office Space in 1961–1962. 3090–0274, Art-in-Architecture Program The program has been modified over Budget (OMB) in compliance with the National Artist Registry (GSA Form the years, most recently in 2009 when Paperwork Reduction Act (44 U.S.C. 7437), in all correspondence related to a requirement was instituted that all Chapter 35). To request a copy of these this collection. All comments received artists who want to be considered for requests, call the CDC Reports Clearance any potential GSA commission must be will be posted without change to http:// Officer at (404) 639–7570 or send an included on the National Artists www.regulations.gov, including any email to [email protected]. Send written Registry, which serves as the qualified personal and/or business confidential comments to CDC Desk Officer, Office of list of eligible artists. The program information provided. Management and Budget, Washington, DC or by fax to (202) 395–5806. Written continues to commission works of art SUPPLEMENTARY INFORMATION: from living American artists. One-half of comments should be received within 30 one percent of the estimated A. Purpose days of this notice. construction cost of new or substantially The Art-in-Architecture Program Proposed Project renovated Federal buildings and U.S. courthouses is allocated for actively seeks to commission works The National Violent Death Reporting commissioning works of art. from the full spectrum of American System (NVDRS)—[OMB#0920–0607, Public comments are particularly artists and strives to promote new media Expiration 11/30/2012]—Revision— invited on: whether this collection of and inventive solutions for public art. National Center for Injury Prevention information is necessary and whether it The GSA Form 7437, Art-in- and Control (NCIPC), Centers for will have practical utility; whether our Architecture Program National Artist Disease Control and Prevention (CDC). estimate of the public burden of this Registry, will be used to collect Background and Brief Description information from artists across the collection of information is accurate, Violence is an important public country to participate and to be and based on valid assumptions and health problem. In the United States, considered for commissions. methodology; ways to enhance the homicide and suicide are the second quality, utility, and clarity of the B. Annual Reporting Burden and third leading causes of death, information to be collected. respectively, in the 1–34 year old age DATES: Submit comments on or before: Respondents: 300. group. Unfortunately, public health November 19, 2012. Responses per Respondent: 1. agencies do not know much more about FOR FURTHER INFORMATION CONTACT: Ms. the problem other than the statistics and Total Responses: .25. Jennifer Gibson, Office of the Chief the sex, race, and age of the victims; all Architect, Art-in-Architecture & Fine Hours per Response: .25. information obtainable from the Arts Division (PCAC), 1800 F Street Total Burden Hours: 75. standard death certificate. Death NW., Room 3305, Washington, DC Obtaining Copies of Proposals: certificates, however, carry no 20405, at telephone(202) 501–0930 or information about key facts necessary Requesters may obtain a copy of the via email to [email protected]. for prevention such as the relationship information collection documents from ADDRESSES: Submit comments between the victim and suspect and the the General Services Administration, identified by Information Collection circumstances of the deaths, thereby 3090–0274, Art-in-Architecture Program Regulatory Secretariat (MVCB), 1275 making it only possible to discern the National Artist Registry (GSA Form First Street NE., Washington, DC 20417, gross contours of the problem. 7437), by any of the following methods: telephone (202) 501–4755. Please cite Furthermore, death certificates are • Regulations.gov: http:// OMB Control No. 3090–0274, Art-in- typically available 20 months after the www.regulations.gov. Architecture Program National Artist completion of a single calendar year. Submit comments via the Federal Registry (GSA Form 7437), in all Official publications of national violent eRulemaking portal by searching the correspondence. death rates, e.g. those in Morbidity and OMB control number. Select the link Dated:September 6, 2012. Mortality Weekly Report, rarely use data ‘‘Submit a Comment’’ that corresponds Casey Coleman, that is less than two years old. Public with ‘‘Information Collection 3090– health interventions aimed at a moving 0274, Art-in-Architecture Program Chief Information Officer. target last seen two years ago may well National Artist Registry (GSA Form [FR Doc. 2012–23084 Filed 9–18–12; 8:45 am] miss the mark. 7437)’’. Follow the instructions BILLING CODE 6820–34–P Local and Federal criminal justice provided at the ‘‘Submit a Comment’’ agencies such as the Federal Bureau of screen. Please include your name, Investigation (FBI) provide slightly more company name (if any), and information about homicides, but they ‘‘Information Collection 3090–0274, Art- do not routinely collect standardized in-Architecture Program National Artist data about suicides, which are in fact

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much more common than homicides. detailed and timely information. It taps collection. This is the time required to The FBI´s Supplemental Homicide into the case records held by medical identify the deaths from death Report system (SHRs) collects basic examiners/coroners, police, and crime certificates, contact police and medical information about the victim-suspect labs. Data is collected centrally by each examiners to get copies of or to view the relationship and circumstances, state in the system, stripped of relevant records and enter the however it does not link violent deaths identifiers, and then sent to the CDC. information into the database. Public that are part of one incident such as Information is collected from these agencies working with NVDRS states homicide-suicides. It also is a voluntary records about the characteristics of the incur an average of 0.5 hours per death system in which some 10–20 percent of victims and suspects, the circumstances to retrieve and then refile records. police departments nationwide do not of the deaths, and the weapons participate. The FBI´s National Incident involved. States use standardized data This revision provides updates to the Based Reporting System (NIBRS) elements and software designed by CDC. coding manual which reflects improved addresses some of these deficiencies, Ultimately, this information will guide guidance to system users for coding but it covers less of the country than states in designing programs that reduce information to be entered into the SHRs, includes only homicides, and multiple forms of violence. system. The improved coding guidance collects only police information. Also, Neither victim families nor suspects in the manual ensures that data is the Bureau of Justice Statistics Reports are contacted to collect this information. consistently entered across users. do not use data that is less than two All data comes from existing records There are no costs to the respondents years old. and is collected by state health other than their time. The total CDC therefore proposes to continue a department staff or their subcontractors. estimated annual burden hours are state-based surveillance system for Health departments incur an average of 67,500. violent deaths that will provide more 2.0 hours per death to complete data

ESTIMATED ANNUALIZED BURDEN HOURS

Number of re- Average burden Type of respondents Form name Number of re- sponses per per response spondents respondent (in hours)

State Health Departments ...... Completion of case abstraction ...... 27 1,000 2 .0 Public Agencies ...... Retrieving and refile records ...... 27 1,000 30/60

Dated: September 13, 2012. First, the meeting will provide an Deadline for Requests for Special Ron A. Otten, opportunity for public comment on Accommodation: Special Director, Office of Scientific Integrity, Office progress made by Federal agencies in accommodation requests must be of the Associate Director for Science, Office accomplishing activities outlined in ‘‘A submitted by 12 p.m. EDT, Thursday, of the Director, Centers for Disease Control Public Health Action Plan to Combat October 25, 2012. and Prevention. Antimicrobial Resistance (Action ADDRESSES: The public meeting will be [FR Doc. 2012–23047 Filed 9–18–12; 8:45 am] Plan)’’. Secondly, the meeting will held at the Department of Health and BILLING CODE 4163–18–P solicit input from the public regarding Human Services, Hubert H. Humphrey the Interagency Task Force on Building, Room 800, 200 Independence Antimicrobial Resistance (ITFAR) Avenue, SW., Washington, DC 20201. DEPARTMENT OF HEALTH AND activities including the Annual Progress http://www.hhs.gov/about/ HUMAN SERVICES Report and the Action Plan. The hhhmap.html. Telephone: 1–877–696– meeting will take place at the Hubert H. 6775. Centers for Disease Control and Humphrey Building in Washington, DC, Prevention Participants should be aware that the on Thursday, November 15, 2012, from meeting location is a Federal [Docket No. CDC–2012–0011] 1:00 p.m. to 3:30 p.m. After welcome government building; therefore, Federal and introductory remarks, the meeting security measures are applicable. Please Interagency Task Force on will be open for comments from the see Building and Security Guidelines for Antimicrobial Resistance (ITFAR): An public. The agenda is subject to change additional information on security Update of A Public Health Action Plan without notice. Persons wishing to requirements. to Combat Antimicrobial Resistance participate, including those who wish to You may submit comments, identified AGENCY: Centers for Disease Control and make an oral presentation, must register by Docket No. CDC–2012–0011 by any Prevention (CDC), Department of Health in advance and provide a copy of their of the following methods: and Human Services (HHS). presentations by 12:00 p.m. EDT, • Federal eRulemaking Portal: http:// Thursday, October 25, 2012. ACTION: Notice of public meeting and www.regulations.gov. Follow the request for comments. DATES: The public meeting will be held instructions for submitting comments. on Thursday, November 15, 2012 in • Mail: Marsha Jones, Office of SUMMARY: The Centers for Disease Washington, DC. The meeting will begin Antimicrobial Resistance, Centers for Control and Prevention (CDC), Food and at 1 p.m. and end no later than 3:30 p.m. Disease Control and Prevention, 1600 Drug Administration (FDA), and Written public comment will be Clifton Road, NE., Mailstop C–12, National Institutes of Health (NIH), all accepted through 5 p.m. EST, November Atlanta, GA 30333. located within the Department of Health 5, 2012. Instructions: All submissions received and Human Services, announce a public Deadline for Registration for all must include the agency name and meeting and opening of a docket Attendees: All attendees must register docket number. All relevant comments concerning antimicrobial resistance. by 12:00 p.m. EDT, Thursday, October received will be posted without change The purpose of the meeting is twofold. 25, 2012. to http://regulations.gov, including any

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personal information provided. For 2. Public Comment and Meeting Independence Avenue SW., access to the docket to read background The public meeting process provides Washington, DC 20201. The Humphrey documents or comments received, go to an opportunity for the public to Building is served by Metrorail and http://www.regulations.gov. comment on the activities of the ITFAR Metrobus. The closest Metrorail station FOR FURTHER INFORMATION CONTACT: to date. In addition, the ITFAR invites is the Federal Center SW station, which Marsha A. Jones, Office of Antimicrobial written comments or oral presentations is served by the Blue and Orange lines. Resistance, Centers for Disease Control by interested persons on the Annual The meeting is being held in a Federal and Prevention, 1600 Clifton Road, NE., Report as well as the four focus areas of government building; therefore, Federal Mailstop C–12, Atlanta, GA 30333; the Action Plan: Surveillance, security measures are applicable. In telephone 404–639–4111; Email Prevention and Control, Research, and planning your arrival, please take [email protected]. Product Development. Written account of the need to clear security. All Registration and Special comments should be submitted visitors must enter through the HHS Accommodations: Persons wishing to following the instructions provided in Hubert H. Humphrey Building main participate or who need special ADDRESSES. entrance and present government-issued accommodations or both must register at Comments and suggestions from the photo identification (e.g., a valid [email protected] or by public on the Annual Report or any of Federal identification badge, state contacting Marsha Jones at the focus areas of the Action Plan will driver’s license, state non-driver’s [email protected]. See Registration to be reviewed and carefully considered by license, or passport). Attend or Participate in the Public the ITFAR. The public should be aware All persons entering the building Meeting for instructions on how to that this meeting agenda does not must pass through a metal detector. submit electronic notices of include development of consensus Visitors are issued a visitor’s ID participation. positions, guidelines, interrogatories, or wristband in the main lobby and are discussions or endorsement of specific escorted in groups of five to the meeting SUPPLEMENTARY INFORMATION: commercial products. room. All items brought to HHS are subject to inspection. 1. Background 3. Registration To Attend or Participate Dated: September 13, 2012. The Interagency Task Force on in the Public Meeting Tanja Popovic, Antimicrobial Resistance (ITFAR) was Participants are asked to preregister to created in 1999 in recognition of the Deputy Associate Director for Science, ensure sufficient space. Seating capacity Centers for Disease Control and Prevention. increasing importance of antimicrobial is limited to 200 persons. Those wishing [FR Doc. 2012–23041 Filed 9–18–12; 8:45 am] resistance (AR) as a public health threat. to make an oral presentation during the BILLING CODE 4163–18–P The ITFAR coordinates the activities of open public comment period of the federal agencies in addressing hearing should state your intention to antimicrobial resistance (AR) and is co- present on your registration submission. DEPARTMENT OF HEALTH AND chaired by HHS/CDC, HHS/FDA, and To register, please send an electronic HUMAN SERVICES HHS/NIH. Other HHS Task Force mail message to members include the Agency for [email protected] by 12 p.m. National Institutes of Health Healthcare Research and Quality EDT, Thursday, October 25, 2012. Your (AHRQ), the Centers for Medicare and email should include your name, email Center for Scientific Review; Notice of Medicaid Services (CMS), the Health address, and a written statement Closed Meetings Resources and Services Administration identifying each focus area you wish to Pursuant to section 10(d) of the (HRSA), and the HHS Office of the address and the approximate time Federal Advisory Committee Act, as Assistant Secretary of Health (HHS/ requested to make your presentation. amended (5 U.S.C. App.), notice is OASH). Non-HHS Task Force members Organizations should provide this hereby given of the following meetings. include the Department of Agriculture information as well as the names and (USDA), the Department of Defense email addresses of all participants. The meetings will be closed to the (DoD), the Department of Veterans Because of time restrictions, the number public in accordance with the Affairs (VA), and the Environmental of presenters will be limited to the first provisions set forth in sections Protection Agency (EPA). 12 to 15 registrants submitting requests 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., In 2001, the ITFAR developed an to make presentations. The final number as amended. The grant applications and initial Action Plan to combat AR. This of presenters will be determined by the the discussions could disclose Plan, titled ‘‘A Public Health Action approximate time requested by each confidential trade secrets or commercial Plan to Combat Antimicrobial presenter. If the number and time property such as patentable material, Resistance’’, outlined specific goals, requested for presentations exceed the and personal information concerning actions, and implementation steps time allotted for public comment, the individuals associated with the grant important for addressing the problem of length of presentations may be limited; applications, the disclosure of which antimicrobial resistance. Action items registered presenters will be notified of would constitute a clearly unwarranted were organized into four focus areas: the approximate time scheduled for invasion of personal privacy. Surveillance, Prevention and Control, their presentation prior to the meeting. Name of Committee: Center for Scientific Research, and Product Development. All other comments may be submitted Review Special Emphasis Panel; PAR11–145: The Action Plan and Annual Report are in writing following the instructions International Research in Infectious Diseases including AIDS (IRIDA). available at www.regulations.gov docket listed in ADDRESSES. number CDC–2012–0011. In 2012, a Date: October 10, 2012. 4. Building and Security Guidelines Time: 8 a.m. to 7 p.m. revised version of the Action Plan Agenda: To review and evaluate grant addressing the evolving threat of The Hubert H. Humphrey Building is applications. antimicrobial resistance was published. the headquarters of the U.S. Department Place: Embassy Suites DC Convention These background documents are also of Health and Human Services and is Center, 900 10th Street NW., Washington, DC included in the docket. located at the foot of Capitol Hill at 200 20001.

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Contact Person: Soheyla Saadi, Ph.D., Agenda: To review and evaluate grant Room 3184, MSC 7848, Bethesda, MD 20892, Scientific Review Officer, Center for applications. (301) 435–4445, [email protected]. Scientific Review, National Institutes of Place: National Institutes of Health, 6701 (Catalogue of Federal Domestic Assistance Health, 6701 Rockledge Drive, Room 3211, Rockledge Drive, Bethesda, MD 20892 Program Nos. 93.306, Comparative Medicine; MSC 7808, Bethesda, MD 20892, 301–435– (Virtual Meeting). 93.333, Clinical Research, 93.306, 93.333, 0903 [email protected]. Contact Person: Sergei Ruvinov, Ph.D., 93.337, 93.393–93.396, 93.837–93.844, Name of Committee: Oncology 2— Scientific Review Officer, Center for 93.846–93.878, 93.892, 93.893, National Translational Clinical Integrated Review Scientific Review, National Institutes of Institutes of Health, HHS) Group; Cancer Biomarkers Study Section. Health, 6701 Rockledge Drive, Room 4158, Dated: September 13, 2012. Date: October 15–16, 2012. MSC 7806, Bethesda, MD 20892, 301–435– Time: 8 a.m. to 5 p.m. 1180, [email protected]. Carolyn A. Baum, Agenda: To review and evaluate grant Name of Committee: Center for Scientific Program Analyst, Office of Federal Advisory applications. Review Special Emphasis Panel; Member Committee Policy. Place: Sheraton Delfina Santa Monica Conflict: T Cell Activation & Regulation of [FR Doc. 2012–23131 Filed 9–18–12; 8:45 am] Hotel, 530 West Pico Boulevard, Santa Programmed Necrosis by Caspase-8. BILLING CODE 4140–01–P Monica, CA 90405. Date: October 18, 2012. Contact Person: Lawrence Ka-Yun Ng, Time: 1 p.m. to 2:30 p.m. Ph.D., Scientific Review Officer, Center for Agenda: To review and evaluate grant Scientific Review, National Institutes of applications. DEPARTMENT OF HEALTH AND Health, 6701 Rockledge Drive, Room 6152, Place: National Institutes of Health, 6701 HUMAN SERVICES MSC 7804, Bethesda, MD 20892, 301–357– Rockledge Drive, Bethesda, MD 20892, 9318, [email protected]. (Telephone Conference Call). National Institutes of Health Name of Committee: Center for Scientific Contact Person: Bahiru Gametchu, DVM, Review Special Emphasis Panel; Cancer Ph.D., Scientific Review Officer, Center for Office of the Director, National Therapeutics AREA Grant Applications. Scientific Review, National Institutes of Institutes of Health Notice of Meeting Date: October 15, 2012. Health, 6701 Rockledge Drive, Room 4204, Time: 8:30 a.m. to 5 p.m. MSC 7812, Bethesda, MD 20892, 301–435– Pursuant to section 10(a) of the Agenda: To review and evaluate grant 1225, [email protected]. Federal Advisory Committee Act, as applications. Name of Committee: Healthcare Delivery amended (5 U.S.C. App.), notice is Place: Hilton Garden Inn Bethesda, 7301 and Methodologies Integrated Review Group; hereby given of a meeting of the Waverly Street, Bethesda, MD 20814. Biostatistical Methods and Research Design Advisory Committee on Research on Contact Person: Denise R Shaw, Ph.D., Study Section. Women’s Health. Scientific Review Officer, Center for Date: October 19, 2012. The meeting will be open to the Scientific Review, National Institutes of Time: 8 a.m. to 5 p.m. public, with attendance limited to space Health, 6701 Rockledge Drive, Room 6158, Agenda: To review and evaluate grant available. Individuals who plan to MSC 7804, Bethesda, MD 20892, 301–435– applications. 0198, [email protected]. attend and need special assistance, such Place: Holiday Inn Inner Harbor, 301 W. as sign language interpretation or other Name of Committee: Center for Scientific Lombard St., Baltimore, MD 21201. Review Special Emphasis Panel; Special Contact Person: Tomas Drgon, Ph.D., reasonable accommodations, should Topics: Topics in Bacterial Pathogenesis. Scientific Review Officer, Center for notify the Contact Person listed below Date: October 18–19, 2012. Scientific Review, National Institutes of in advance of the meeting. Time: 8 a.m. to 5 p.m. Health, 6701 Rockledge Drive, Room 3152, Name of Committee: Advisory Committee Agenda: To review and evaluate grant MSC 7770, Bethesda, MD 20892, 301–435– on Research on Women’s Health. applications. 1017, [email protected]. Date: October 15–16, 2012. Place: Sheraton Delfina Santa Monica Name of Committee: Center for Scientific Time: 1 p.m. to 5 p.m. Hotel, 530 West Pico Boulevard, Santa Review Special Emphasis Panel; RFA Panel: Agenda: The purpose of the meeting will Monica, CA 90405. Molecular Probes. be for the Committee to provide advice to the Contact Person: Rolf Menzel, Ph.D., Date: October 19, 2012. Office of Research on Women’s Health Scientific Review Officer, Center for Time: 10 a.m. to 5 p.m. (ORWH) on appropriate research activities Scientific Review, National Institutes of Agenda: To review and evaluate grant with respect to women’s health and related Health, 6701 Rockledge Drive, Room 3196, applications. studies to be undertaken by the national MSC 7808, Bethesda, MD 20892, 301–435– Place: Melrose Hotel, 2430 Pennsylvania research institutes; to provide 0952, [email protected]. Ave. NW., Washington, DC 20037. recommendations regarding ORWH Name of Committee: Molecular, Cellular Contact Person: Mary Custer, Ph.D., activities; to meet the mandates of the office; and Developmental Neuroscience Integrated Scientific Review Officer, Center for and for discussion of scientific issues. Review Group; Drug Discovery for the Scientific Review, National Institutes of Place: National Institutes of Health, Nervous System Study Section. Health, 6701 Rockledge Drive, Room 4148, Building 31, 31 Center Drive, Conference Date: October 18–19, 2012. MSC 7850, Bethesda, MD 20892, (301) 435– Room 10, Bethesda, MD 20892. Time: 8 a.m. to 10 a.m. 1164, [email protected]. Contact Person: Joyce Rudick, Director, Agenda: To review and evaluate grant Name of Committee: Center for Scientific Programs & Management, Office of Research applications. Review Special Emphasis Panel; PAR 11– on Women’s Health, Office of the Director, Place: Melrose Hotel, 2430 Pennsylvania 045: Outcome Measures For Use In National Institutes of Health, Building 1, Avenue NW., Washington, DC 20037. Treatment Trials For Individuals with Room 201, Bethesda, MD 20892, 301/402– Contact Person: Mary Custer, Ph.D., Intellectual and Developmental Disabilities 1770. Scientific Review Officer, Center for (R01). Information is also available on the Scientific Review, National Institutes of Date: October 19, 2012. Meeting registration Web site: http:// Health, 6701 Rockledge Drive, Room 4148, Time: 3 p.m. to 4 p.m. palladianpartners.cvent.com/ MSC 7850, Bethesda, MD 20892, (301) 435– Agenda: To review and evaluate grant ACRWHFall2012 where any additional 1164, [email protected]. applications. information for the meeting will be posted Name of Committee: Center for Scientific Place: Courtyard Chicago Downtown/River when available. Review Special Emphasis Panel; Program North, 30 East Hubbard, Chicago, IL 60611. Any interested person may file written Project: Mechanisms of Cilium-Based Contact Person: Jane A Doussard- comments with the committee by forwarding Signaling. Roosevelt, Ph.D., Scientific Review Officer, the statement to the Contact Person listed on Date: October 18–19, 2012. Center for Scientific Review, National this notice. The statement should include the Time: 11 a.m. to 5 p.m. Institutes of Health, 6701 Rockledge Drive, name, address, telephone number and when

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applicable, the business or professional Contact Person: Bukhtiar H Shah, Ph.D., Date: October 19, 2012. affiliation of the interested person. DVM, Scientific Review Officer, Center for Time: 8 a.m. to 6 p.m. In the interest of security, NIH has Scientific Review, National Institutes of Agenda: To review and evaluate grant instituted stringent procedures for entrance Health, 6701 Rockledge Drive, Room 4120, applications. onto the NIH campus. All visitor vehicles, MSC 7802, Bethesda, MD 20892, (301) 435– Place: Hilton Alexandria Mark Center, including taxicabs, hotel, and airport shuttles 1233, [email protected]. 5000 Seminary Road, Alexandria, VA 22311. will be inspected before being allowed on Name of Committee: Center for Scientific Contact Person: Dominique Lorang-Leins, campus. Visitors will be asked to show one Review Special Emphasis Panel; RFA Panel: Ph.D., Scientific Review Officer, National form of identification (for example, a System Science and Health in the Behavioral Institutes of Health, Center for Scientific government-issued photo ID, driver’s license, and Social Sciences. Review, 6701 Rockledge Drive, Room 5108, or passport) and to state the purpose of their Date: October 16–17, 2012. MSC 7766, Bethesda, MD 20892, visit. Time: 12 p.m. to 5 p.m. 301.326.9721, [email protected]. Information is also available on the Agenda: To review and evaluate grant Name of Committee: Center for Scientific Institute’s/Center’s home page: applications. Review Special Emphasis Panel; Health www4.od.nih.gov/orwh/, where an agenda Place: National Institutes of Health, 6701 Services Organization and Delivery and any additional information for the Rockledge Drive, Bethesda, MD 20892 Overflow. meeting will be posted when available. (Virtual Meeting). Date: October 19, 2012. (Catalogue of Federal Domestic Assistance Contact Person: Tomas Drgon, Ph.D., Time: 8 a.m. to 5 p.m. Program Nos. 93.14, Intramural Research Scientific Review Officer, Center for Agenda: To review and evaluate grant Training Award; 93.22, Clinical Research Scientific Review, National Institutes of applications. Loan Repayment Program for Individuals Health, 6701 Rockledge Drive, Room 3152, Place: Embassy Suites at the Chevy Chase from Disadvantaged Backgrounds; 93.232, MSC 7770, Bethesda, MD 20892, 301–435– Pavilion, 4300 Military Road NW., Loan Repayment Program for Research 1017, [email protected]. Washington, DC 20015. Generally; 93.39, Academic Research Contact Person: Jacinta Bronte-Tinkew, Name of Committee: Brain Disorders and Enhancement Award; 93.936, NIH Acquired Ph.D., Scientific Review Officer, Center for Clinical Neuroscience Integrated Review Immunodeficiency Syndrome Research Loan Scientific Review, National Institutes of Group; Diseases and Pathophysiology of the Repayment Program; 93.187, Undergraduate Health, 6701 Rockledge Drive, Room 3164, Visual System Study Section. Scholarship Program for Individuals from MSC 7770, Bethesda, MD 20892, (301) 806– Date: October 18–19, 2012. Disadvantaged Backgrounds, National 0009, [email protected]. Time: 8 a.m. to 5 p.m. Institutes of Health, HHS) Agenda: To review and evaluate grant Name of Committee: Center for Scientific Dated: September 13, 2012. applications. Review Special Emphasis Panel; Member Carolyn Baum, Place: Embassy Suites DC Convention Conflict: CMIP and MEDI. Center, 900 10th Street NW., Washington, DC Date: October 19, 2012. Program Analyst, Office of Federal Advisory Time: 1 p.m. to 4:30 p.m. Committee Policy. 20001. Contact Person: Nataliya Gordiyenko, Agenda: To review and evaluate grant [FR Doc. 2012–23132 Filed 9–18–12; 8:45 am] Ph.D., Scientific Review Officer, Center for applications. BILLING CODE 4140–01–P Scientific Review, National Institutes of Place: National Institutes of Health, 6701 Health, 6701 Rockledge Drive, Room 5202, Rockledge Drive, Bethesda, MD 20892 MSC 7846, Bethesda, MD 20892, (Virtual Meeting). DEPARTMENT OF HEALTH AND 301.435.1265, [email protected]. Contact Person: Guo Feng Xu, Ph.D., HUMAN SERVICES Scientific Review Officer, Center for Name of Committee: Center for Scientific Scientific Review, National Institutes of Review Special Emphasis Panel; Small National Institutes of Health Health, 6701 Rockledge Drive, Room 5122, Business: Medical Imaging. MSC 7854, Bethesda, MD 20892, 301–237– Date: October 18–19, 2012. 9870, [email protected]. Center for Scientific Review; Notice of Time: 8 a.m. to 5 p.m. Closed Meetings Agenda: To review and evaluate grant (Catalogue of Federal Domestic Assistance Program Nos. 93.306, Comparative Medicine; Pursuant to section 10(d) of the applications. Place: Hyatt Regency Bethesda, One 93.333, Clinical Research, 93.306, 93.333, Federal Advisory Committee Act, as Bethesda Metro Center, 7400 Wisconsin 93.337, 93.393–93.396, 93.837–93.844, 93.846–93.878, 93.892, 93.893, National amended (5 U.S.C. App.), notice is Avenue, Bethesda, MD 20814. Institutes of Health, HHS). hereby given of the following meetings. Contact Person: Leonid V Tsap, Ph.D., The meetings will be closed to the Scientific Review Officer, Center for Dated: September 14, 2012. public in accordance with the Scientific Review, National Institutes of Anna Snouffer, provisions set forth in sections Health, 6701 Rockledge Drive, Room 5128, Deputy Director, Office of Federal Advisory 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., MSC 7854, Bethesda, MD 20892, (301) 435– Committee Policy. 2507, [email protected]. as amended. The grant applications and [FR Doc. 2012–23130 Filed 9–18–12; 8:45 am] the discussions could disclose Name of Committee: Center for Scientific BILLING CODE 4140–01–P confidential trade secrets or commercial Review Special Emphasis Panel; Gene property such as patentable material, Expression and Regulation Area Review. and personal information concerning Date: October 18, 2012. Time: 12 p.m. to 4 p.m. DEPARTMENT OF HEALTH AND individuals associated with the grant Agenda: To review and evaluate grant HUMAN SERVICES applications, the disclosure of which applications. would constitute a clearly unwarranted Place: National Institutes of Health, 6701 National Institutes of Health invasion of personal privacy. Rockledge Drive, Bethesda, MD 20892 National Institute of Biomedical Name of Committee: Vascular and (Virtual Meeting). Hematology Integrated Review Group; Contact Person: Richard A Currie, Ph.D., Imaging and Bioengineering; Notice of Hemostasis and Thrombosis Study Section. Scientific Review Officer, Center for Closed Meeting Scientific Review, National Institutes of Date: October 16, 2012. Pursuant to section 10(d) of the Time: 8 a.m. to 5 p.m. Health, 6701 Rockledge Drive, Room 1108, Agenda: To review and evaluate grant MSC 7890, Bethesda, MD 20892, (301) 435– Federal Advisory Committee Act, as applications. 1219, [email protected]. amended (5 U.S.C. App.), notice is Place: Doubletree Hotel Bethesda Name of Committee: Center for Scientific hereby given of the following meeting. (Formerly Holiday Inn Select), 8120 Review Special Emphasis Panel; Fellowship: The meeting will be closed to the Wisconsin Avenue, Bethesda, MD 20814. Genes, Genomes, and Genetics. public in accordance with the

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provisions set forth in sections ADDRESSES: You may submit comments regulatory programs pursuant to 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., by any of the following methods: SMCRA, and upon approval of as amended. The grant applications and • Electronic mail: Send your regulatory programs, to assume the discussions could disclose comments to [email protected]. regulatory primacy and act as the confidential trade secrets or commercial • Mail, hand-delivery, or courier: regulatory authority, and to administer property such as patentable material, Send your comments to Office of and enforce their respective approved and personal information concerning Surface Mining Reclamation and SMCRA regulatory programs. Our individuals associated with the grant Enforcement, Administrative Record, regulations at 30 CFR Chapter VII applications, the disclosure of which Room 252–SIB, 1951 Constitution implement the provisions of SMCRA. Avenue NW., Washington, DC 20240. would constitute a clearly unwarranted Dated: August 27, 2012. FOR FURTHER INFORMATION CONTACT: Mr. invasion of personal privacy. Joseph Pizarchik, Name of Committee: National Institute of Jay Bautista, Office of Surface Mining Reclamation and Enforcement, 1951 Director, Office of Surface Mining Biomedical Imaging and Bioengineering Reclamation and Enforcement. Constitution Ave. NW., MS 124–SIB, Special Emphasis Panel; Scientific [FR Doc. 2012–22845 Filed 9–18–12; 8:45 am] Conference Award Meeting (R13) 2013/01. Washington, DC 20240; Telephone (202) Date: October 26, 2012. 208–7411. BILLING CODE 4310–05–M Time: 11 a.m. to 4 p.m. SUPPLEMENTARY INFORMATION: Agenda: To review and evaluate grant applications. Grant Notification INTERNATIONAL TRADE Place: National Institutes of Health, Two We are notifying the public that we COMMISSION Democracy Plaza, 6707 Democracy intend to grant funds to eligible [Investigation No. 337–TA–791/826] Boulevard, Bethesda, MD 20892, (Telephone applicants for purposes authorized Conference Call). Contact Person: John K. Hayes, Ph.D., under the Abandoned Mine Land (AML) Certain Electronic Fireplaces, Scientific Review Officer, National Institute Reclamation Program. Additionally we Components Thereof, Manuals for of Biomedical Imaging and Bioengineering, are notifying the public that we intend Same, Certain Processes for National Institutes of Health, 6707 to grant funds to eligible applicants for Manufacturing or Relating to Same and Democracy Boulevard, Room 959, Bethesda, regulating coal mining within their Certain Products Containing Same; MD 20892, 301–451–3398, jurisdictional borders. We will award Determination To Review in Part ALJ [email protected]. these grants after October 1, 2012. Initial Determination; Request for Dated: September 14, 2012. Eligible applicants are those states and Written Submissions David Clary, tribes with a regulatory program or reclamation plan approved under the AGENCY: U.S. International Trade Program Analyst, Office of Federal Advisory Commission. Committee Policy. Surface Mining Control and ACTION: Notice. [FR Doc. 2012–23126 Filed 9–19–12; 8:45 am] Reclamation Act of 1977 (SMCRA), 30 U.S.C. 1201 et seq., and the State of BILLING CODE 4140–01–P SUMMARY: Notice is hereby given that Tennessee. Under Executive Order the U.S. International Trade (E.O.) 12372, we must provide state and Commission has determined to review- tribal officials the opportunity to review DEPARTMENT OF THE INTERIOR in-part the final initial determination and comment on proposed federal (‘‘ID’’) (Order No. 20) of the presiding financial assistance activities. Of the Office of Surface Mining Reclamation administrative law judge (‘‘LJ’’) finding eligible applicants, twenty states and and Enforcement the remaining respondents, Shenzhen tribes do not have single points-of- Reliap Industrial Co. (‘‘Reliap’’) and Yue contact under the E.O. 12372 review Action Subject to Intergovernmental Qiu Sheng (‘‘Yue’’), both of Shenzhen, process; therefore, we are required to Review China, in default and in violation of publish this notice as an alternate section 337. The Commission has also AGENCY: Office of Surface Mining means of notification. Reclamation and Enforcement, Interior. determined to review the ALJ’s Order ACTION: Notice. Description of the AML Program No. 19 denying respondents’ motion for SMCRA established the Abandoned summary determination that SUMMARY: We, the Office of Surface Mine Reclamation Fund to receive the complainants’ breach of contract Mining Reclamation and Enforcement, AML fees used to finance reclamation of allegation is outside the scope of the are notifying the public that we intend AML coal mine sites. Grants to eligible investigation. The Commission is also to grant funds to eligible applicants for states and tribes are funded from requesting briefing on the issue on purposes authorized under the permanent (mandatory) appropriations. review and on remedy, the public Abandoned Mine Land (AML) Recipients use these funds to reclaim interest, and bonding. Reclamation Program. Additionally we the highest priority AML coal mine sites FOR FURTHER INFORMATION CONTACT: are notifying the public that we intend that were left abandoned prior to the Clint Gerdine, Esq., Office of the to grant funds to eligible applicants for enactment of SMCRA in 1977, eligible General Counsel, U.S. International regulating coal mining within their non-coal sites, and for non-reclamation Trade Commission, 500 E Street SW., jurisdictional borders. We will award projects. Washington, DC 20436, telephone (202) these grants after October 1, 2012, 708–2310. Copies of non-confidential because our award authority Description of the Regulatory Program documents filed in connection with this commences at the beginning of the fiscal Title VII of SMCRA authorizes us to investigation are or will be available for year. provide grants to states and Indian inspection during official business DATES: A state single point of contact tribes to develop, administer, and hours (8:45 a.m. to 5:15 p.m.) in the and other interested state or local enforce State regulatory programs Office of the Secretary, U.S. entities may submit written comments addressing surface coal mining International Trade Commission, 500 E regarding AML and regulatory funding operations. Title V and Title VII Street SW., Washington, DC 20436, by December 31, 2012. authorize states and tribes to develop telephone (202) 205–2000. General

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information concerning the Commission CFR 210.17 because they did not affecting it or likely to do so. For may also be obtained by accessing its participate in the investigation background, see Certain Devices for Internet server at http://www.usitc.gov. following withdrawal of their counsel Connecting Computers via Telephone The public record for this investigation on March 12, 2012. The ID also Lines, Inv. No. 337–TA–360, USITC may be viewed on the Commission’s contained the ALJ’s recommended Pub. No. 2843, Comm’n Op. at 7–10 electronic docket (EDIS) at http:// determination on remedy. Specifically, (December 1994) (Commission edis.usitc.gov. Hearing-impaired the ALJ recommended issuance of a Opinion). persons are advised that information on limited exclusion order with respect to When the Commission contemplates this matter can be obtained by the defaulting respondents. some form of remedy, it must consider contacting the Commission’s TDD Also on July 13, 2012, the ALJ issued the effects of that remedy upon the terminal on (202) 205–1810. Order No. 19, denying a motion filed by public interest. The factors the SUPPLEMENTARY INFORMATION: The Yue on December 11, 2011, for summary Commission will consider include the Commission instituted Investigation No. determination that Twin-Star’s breach of effect that an exclusion order and/or 337–TA–791 (‘‘the 791 investigation’’) contract claim is outside the scope of cease and desist orders would have on on July 20, 2011, based on a complaint the investigation. On July 20, 2012, the (1) the public health and welfare, (2) filed by Twin-Star International, Inc. of Commission investigative attorney competitive conditions in the U.S. Delray Beach, Florida and TS petitioned for review of Order No. 19 economy, (3) U.S. production of articles that are like or directly competitive with Investment Holding Corp. of Miami, and the ALJ’s final ID. Twin-Star filed a response in opposition on July 30, those that are subject to investigation, Florida (collectively, ‘‘Twin-Star’’). 76 2012. and (4) U.S. consumers. The FR 43345–46 (July 20, 2011). The Having examined the record of this Commission is therefore interested in Commission instituted Investigation No. investigation, including the ALJ’s ID, receiving written submissions that 337–TA–826 on January 19, 2012 based Order No. 19, and the parties’ briefing, address the aforementioned public on another complaint filed by Twin- the Commission has determined to interest factors in the context of this Star, and consolidated it with the 791 review Order No. 19 and to review the investigation. investigation. 77 FR 2757–58 (Jan. 19, final ID in part to the extent that it finds When the Commission orders some 2012). The complaints allege a violation a violation of section 337 based on the form of remedy, the U.S. Trade of section 337 of the Tariff Act of 1930, breach of contract allegations. The Representative, as delegated by the as amended, 19 U.S.C. 1337, in the Commission has determined not to President, has 60 days to approve or importation into the United States, the review the remainder of the ID. disapprove the Commission’s action. sale for importation, and the sale within On review, the parties, interested See Presidential Memorandum of July the United States after importation of government agencies, and any other 21, 2005, 70 FR 43251 (July 26, 2005). certain electric fireplaces, components interested persons are requested to During this period, the subject articles thereof, manuals for same, certain submit briefing on the issue under would be entitled to enter the United processes for manufacturing or relating review and to address in particular the States under bond, in an amount to same and certain products containing following: determined by the Commission and same by reason of infringement of U.S. (1) What support exists for the notion prescribed by the Secretary of the Copyright Nos. TX0007350474; that unfair acts or unfair methods of Treasury. The Commission is therefore TX0007350476; VA0001772660; and competition under section 337(a)(1)(A), interested in receiving submissions VA0001772661; and by reason of 19 U.S.C. 1337(a)(1)(A), are limited to concerning the amount of the bond that misappropriation of trade secrets, ‘‘public wrongs’’ as opposed to ‘‘private should be imposed if a remedy is breach of contract, and tortious wrongs.’’ Please discuss statutory ordered. inference with contract, the threat or language, any relevant legislative Written Submissions: The parties to effect of which is to destroy or history, and legal precedent, the investigation, interested government substantially injure an industry in the particularly Tianrui Group Co. v. U.S. agencies, and any other interested United States. Int’l Trade Comm’n, 661 F.3d 1322 persons are encouraged to file written The Commission’s notice of (Fed. Cir. 2011). submissions on the issues of remedy, investigation named Reliap, Yue, and (2) Please explain whether a breach of the public interest, and bonding. Whalen Furniture Manufacturing, Inc. contract claim can give rise to a Complainant is requested to state the (‘‘Whalen’’) of San Diego, California as violation of 19 U.S.C. 1337(a)(1)(A), and issue under review and the dates that respondents. On July 3, 2012, the discuss any relevant statutory language, the copyrights at issue expire and the Commission issued notice of its legislative history, and legal precedent. HTSUS numbers under which the determination not to review the ALJ’s ID In connection with the final accused products are imported. The terminating the investigation as to disposition of this investigation, the written submissions must be filed no Whalen based on a consent order and Commission may issue an order that later than close of business on October settlement agreement. results in the exclusion of the subject 12, 2012. Reply submissions must be On June 20, 2012, Twin-Star moved articles from entry into the United filed no later than the close of business for an ID finding the remaining States. See 19 U.S.C. 1337(d). on November 9, 2012. No further respondents, Reliap and Yue, in default Accordingly, the Commission is submissions on these issues will be and in violation of section 337 pursuant interested in receiving written permitted unless otherwise ordered by to Commission Rule 210.17, 19 CFR submissions that address the form of the Commission. 210.17. The Commission investigative remedy, if any, that should be ordered. Persons filing written submissions attorney filed a response in support of If a party seeks exclusion of an article must file the original document the motion. from entry into the United States for electronically on or before the deadlines On July 13, 2012, the ALJ granted purposes other than entry for stated above and submit 8 true paper Twin-Star’s motion and issued the final consumption, the party should so copies to the Office of the Secretary by ID in this investigation finding the indicate and provide information noon the next day pursuant to remaining respondents in default and in establishing that activities involving Commission rule 210.4(f), 19 CFR violation of section 337 pursuant to 19 other types of entry either are adversely 210.4(f). Submissions should refer to the

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investigation number (‘‘Inv. No. 337– information in connection with the 2013 The initial notice of institution of this TA–791/826’’) in a prominent place on report. investigation was published in the the cover page and/or the first page. (See DATES: October 25, 2012: Deadline for Federal Register on September 8, 1993 Handbook for Electronic Filing filing written submissions. July 11, (58 FR 47287) and provided for what is Procedures, http://www.usitc.gov/ now the report on merchandise trade. _ _ 2013: Anticipated date for publishing secretary/fed reg notices/rules/ the report. The Commission expanded the scope of handbook_on_electronic_filing.pdf). the investigation to cover services trade Any person desiring to submit a ADDRESSES: All Commission offices are in a separate report, which it announced document (or portion thereof) to the located in the United States in a notice published in the Federal Commission in confidence must request International Trade Commission Register on December 28, 1994 (59 FR confidential treatment unless the Building, 500 E Street SW., Washington, 66974). The separate report on services information has already been granted DC. All written submissions should be trade has been published annually since such treatment during the proceedings. addressed to the Secretary, United 1996, except in 2005. As in past years, All such requests should be directed to States International Trade Commission, the report will summarize trade in the Secretary of the Commission and 500 E Street SW., Washington, DC services in the aggregate and provide must include a full statement of the 20436. The public record for this analyses of trends and developments in reasons why the Commission should investigation may be viewed on the selected services industries during the grant such treatment. See 19 CFR 210.6. Commission’s electronic docket latest period for which data are Documents for which confidential information system (EDIS) at https:// published by the U.S. Department of treatment by the Commission is sought edis.usitc.gov/edis3-internal/app. Commerce, Bureau of Economic will be treated accordingly. All FOR FURTHER INFORMATION CONTACT: Analysis. As indicated above, the 2013 nonconfidential written submissions Project Leader George Serletis (202– report will focus on cross-border trade will be available for public inspection at 205–3315 or [email protected]) in professional services (education, the Office of the Secretary. or Services Division Chief Richard health, and legal services). The authority for the Commission’s Brown (202–205–3438 or Written Submissions: Interested determination is contained in section [email protected]) for parties are invited to submit written 337 of the Tariff Act of 1930, as information specific to this statements and other information amended (19 U.S.C. 1337), and in investigation. For information on the concerning the matters to be addressed sections 210.17, 42–43, 45–46 and 50 of legal aspects of these investigations, by the Commission in its report on this the Commission’s Rules of Practice and contact William Gearhart of the investigation. For the upcoming 2013 Procedure (19 CFR 210.17, 210.42–43, Commission’s Office of the General annual report, the Commission is 210.45–46, and 210.50). Counsel (202–205–3091 or particularly interested in receiving [email protected]). The media information relating to cross-border By order of the Commission. trade in professional services should contact Margaret O’Laughlin, Issued: September 13, 2012. (education, health, and legal services). Office of External Relations (202–205– Lisa R. Barton, Submissions should be addressed to the 1819 or [email protected]). Acting Secretary to the Commission. Secretary. To be assured of Hearing-impaired individuals may consideration by the Commission, [FR Doc. 2012–23035 Filed 9–18–12; 8:45 am] obtain information on this matter by written submissions related to the BILLING CODE 7020–02–P contacting the Commission’s TDD Commission’s report should be terminal at 202–205–1810. General submitted at the earliest practical date information concerning the Commission INTERNATIONAL TRADE and should be received not later than may also be obtained by accessing its COMMISSION 5:15 p.m., October 25, 2012. All written Internet server (http://www.usitc.gov). submissions must conform with the [Investigation No. 332–345] Persons with mobility impairments who provisions of section 201.8 of the will need special assistance in gaining Commission’s Rules of Practice and Recent Trends in U.S. Services Trade, access to the Commission should 2013 Annual Report Procedure (19 CFR 201.8). Section 201.8 contact the Office of the Secretary at and the Commission’s Handbook on AGENCY: United States International 202–205–2000. Filing Procedures require that interested Trade Commission. Background: The 2013 annual parties file documents electronically on ACTION: Schedule for 2013 report and services trade report will provide or before the filing deadline and submit opportunity to submit information. aggregate data on cross-border trade in eight (8) true paper copies by 12:00 p.m. services and more specific data and eastern time on the next business day. SUMMARY: The Commission has information on cross-border trade in In the event that confidential treatment prepared and published annual reports professional services (education, health, of a document is requested, interested in this series under investigation No. and legal services). Under Commission parties must file, at the same time as the 332–345 since 1996. The 2013 report, investigation No. 332–345, the eight paper copies, at least four (4) which the Commission plans to publish Commission publishes two annual additional true paper copies in which in July 2013, will provide aggregate data reports, one on services trade (Recent the confidential information must be on cross-border trade in services and Trends in U.S. Services Trade), and a deleted (see the following paragraph for more specific data and information on second on merchandise trade (Shifts in further information regarding cross-border trade in professional U.S. Merchandise Trade). The confidential business information). services (education, health, and legal Commission’s 2012 annual report in the Persons with questions regarding services) for the period ending in 2011, series of reports on Recent Trends in electronic filing should contact the and transactions by affiliates based U.S. Services Trade is now available Secretary (202–205–2000). outside the country of their parent firm online at http://www.usitc.gov; it is also Any submissions that contain for the period ending in 2010. The available in CD and printed form from confidential business information (CBI) Commission is inviting interested the Office of the Secretary at 202–205– must also conform with the members of the public to furnish 2000 or by fax at 202–205–2104. requirements in section 201.6 of the

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Commission’s Rules of Practice and Chapter 44. He has delegated that Federal Register notice of such action, Procedure (19 CFR 201.6). Section 201.6 responsibility to the Director of ATF, together with the reasons therefor.’’ of the rules requires that the cover of the subject to the direction of the Attorney Regulations implementing the document and the individual pages be General and the Deputy Attorney provisions of section 925(c) are set forth clearly marked as to whether they are General. 28 CFR 0.130(a). ATF has in 27 CFR 478.144. the ‘‘confidential’’ or ‘‘non-confidential’’ promulgated regulations that implement Since 1992, Congress has eliminated version, and that the confidential the provisions of the GCA in 27 CFR funding for ATF to investigate or act business information be clearly Part 478. upon applications for relief from federal identified by means of brackets. All Section 922(g) of the GCA prohibits firearms disabilities. However, since written submissions, except for certain persons from shipping or 1993 Congress has authorized funding confidential business information, will transporting any firearm in interstate or for ATF to investigate and act upon be made available for inspection by foreign commerce, or receiving any applications filed by corporations for interested parties. The Commission firearm which has been shipped or relief from Federal firearms disabilities. intends to prepare only a public report transported in interstate or foreign An application to ATF for relief from in this investigation. The report that the commerce, or possessing any firearm in Federal firearms disabilities under 18 Commission makes available to the or affecting commerce. These U.S.C. 925(c) was submitted for public will not contain confidential prohibitions apply to any person who— NGGECI. In the matter under review, business information. Any confidential (1) Has been convicted in any court of NGGECI, a subsidiary of NGC, had been business information received by the a crime punishable by imprisonment for convicted in United States District Court Commission in this investigation and a term exceeding one year; for violations of 18 U.S.C. 2, 287, 1001, used in preparing the report will not be (2) Is a fugitive from justice; and 1341 in 1986 and, in 1994, for published in a manner that would (3) Is an unlawful user of or addicted violations of 18 U.S.C. 2, 371, 641, and reveal the operations of the firm to any controlled substance; 1343. supplying the information. (4) Has been adjudicated as a mental Pursuant to 18 U.S.C. 925(c), NGGECI, defective or committed to a mental By order of the Commission. a wholly-owned subsidiary of Northrop institution; Grumman Systems Corporation (NGSC) Issued: September 14, 2012. (5) Is an alien illegally or unlawfully (which is a wholly-owned subsidiary of Lisa R. Barton, in the United States; NGC), is granted relief from the Acting Secretary to the Commission. (6) Has been discharged from the disabilities imposed by Federal laws [FR Doc. 2012–23112 Filed 9–18–12; 8:45 am] Armed Forces under dishonorable with respect to the acquisition, transfer, BILLING CODE 7020–02–P conditions; receipt, shipment, or possession of (7) Having been a citizen of the firearms as a result of these convictions. United States, has renounced U.S. It has been established to my DEPARTMENT OF JUSTICE citizenship; satisfaction that the circumstances (8) Is subject to a court order that regarding NGGECI’s disabilities and its Bureau of Alcohol, Tobacco, Firearms, restrains the person from harassing, record and reputation are such that the and Explosives stalking, or threatening an intimate NGGECI will not be likely to act in a partner or child of such intimate [Docket No. ATF 48N] manner dangerous to public safety, and partner; or that the granting of the relief would not Granting of Relief; Federal Firearms (9) Has been convicted in any court of be contrary to the public interest. Privileges (2011R–13T) a misdemeanor crime of domestic violence. B. Todd Jones, AGENCY: Bureau of Alcohol, Tobacco, The term ‘‘person’’ is defined in Acting Director. Firearms and Explosives (ATF), section 921(a)(1) as including ‘‘any [FR Doc. 2012–22858 Filed 9–18–12; 8:45 am] Department of Justice. individual, corporation, company, BILLING CODE 4410–FY–P ACTION: Notice of granting of restoration association, firm, partnership, society, of Federal firearms privileges. or joint stock company.’’ Section 925(c) of the GCA provides DEPARTMENT OF JUSTICE SUMMARY: Northrop Grumman Guidance that a person who is prohibited from and Electronics Company, Inc. possessing, shipping, transporting, or Drug Enforcement Administration (NGGECI) (formerly Litton Systems, receiving firearms or ammunition may [Docket No. 11–28] Inc.), a subsidiary of Northrop make application to the Attorney Grumman Corporation (NGC), has been General to lift the firearms disability Rene Casanova, M.D.; Decision and granted relief from the disabilities imposed under section 922(g) ‘‘if it is Order imposed by Federal laws by the Director established to his satisfaction that the of ATF with respect to the acquisition, circumstances regarding the disability, On September 29, 2011, transfer, receipt, shipment, or and the applicant’s record and Administrative Law Judge Timothy D. possession of firearms. reputation, are such that the applicant Wing issued the attached recommended FOR FURTHER INFORMATION CONTACT: John will not be likely to act in a manner decision.1 Neither party filed exceptions D. Aiken, Enforcement Programs and dangerous to public safety and that the to the decision.2 Services, Bureau of Alcohol, Tobacco, granting of the relief would not be Firearms, and Explosives, U.S. contrary to the public interest.’’ The 1 All citations to the ALJ’s decision are to the slip Department of Justice, 99 New York opinion as originally issued. Attorney General has delegated the 2 On October 21, 2011, Respondent moved for a Avenue NE., Washington, DC 20226, authority to grant relief from firearms ten-day extension of the deadline for filing his telephone (202) 648–8499. disabilities to the Director of ATF. exceptions, stating that he had ‘‘been in trial in a SUPPLEMENTARY INFORMATION: The Section 925(c) further provides that state court proceeding this week and has not had ‘‘[w]henever the Attorney General grants sufficient time to properly draft exceptions to the Attorney General is responsible for Recommended Order’’; the Government consented enforcing the provisions of the Gun relief to any person pursuant to this to the motion. Consent Mot. to Extend Deadline for Control Act of 1968 (GCA), 18 U.S.C. section he shall promptly publish in the Filing Exceptions to Recommended Order, at 1.

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Having considered the entire record, I purpose and acted outside of the usual conduct was inconsistent with the then- have decided to adopt the ALJ’s findings course of professional practice in existing referral standard. See ALJ at 61. of fact and conclusions of law except as issuing controlled substance There is, however, substantial discussed below.3 While I agree with prescriptions to three undercover evidence to support the finding that the ALJ that substantial evidence officers, ALJ 62–64, I find some of his Respondent acted outside of the usual supports the conclusion that reasoning unsupported by substantial course of professional practice and Respondent lacked a legitimate medical evidence. lacked a legitimate medical purpose More specifically, with respect to the when he prescribed controlled Noting that the exceptions were due the same day undercover officer who posed as patient substances to J.S. (as well as the two that Respondent filed his motion, the ALJ denied other undercover officers). With respect the motion finding that he had not demonstrated J.S., the ALJ, citing the evidence that she good cause for the extension. Ruling on Consent had a negative drug screen, used slang to all three patients, the Government’s Mot., at 1. As the First Circuit has explained, the to refer to oxycodone and admitted that Expert testified that Respondent did not claim that one’s ‘‘attorney was preoccupied with ‘‘she had not seen a doctor for the take an appropriate history or perform other matters * * * has been tried before, and an appropriate physical examination. regularly has been found wanting.’’ De la Torre v. controlled substances she admitted Continental Ins. Co., 15 F.3d 12, 15 (1st Cir. 1994) taking,’’ concluded that J.S.’s ‘‘ ‘risk for Tr. 335. While each of the undercovers (citing Mendez v. Banco Popular de Puerto Rico, medication misuse or diversion’ was provided an MRI, the Government 900 F.2d 4, 7 (1st Cir. 1990)). See also De la Torre, Expert explained that an MRI is ‘‘simply 15 F.3d at 15 (quoting Pinero Schroeder v. FNMA, patent.’’ ALJ at 56. The ALJ then 574 F.2d 1117, 1118 (1st Cir. 1978)) (‘‘ ‘Most concluded that because ‘‘Respondent a diagnostic tool’’ and that ‘‘finding [a] attorneys are busy most of the time and they must conceded that he did not refer [J.S.] to pathology on an MRI does not entitle organize their work so as to be able to meet the time a specialist,’’ and did not ‘‘otherwise any practitioner to prescribe controlled requirements of matters they are handling or suffer substances,’’ id. at 336, because a the consequences.’ ’’); McLaughlin v. City of display[] ‘special attention’ to her LaGrange, 662 F.2d 1385, 1387 (11th Cir. 1981) heightened risk of diversion,’’ his ‘‘pathology of an MRI in no way (‘‘[t]he fact that counsel has a busy practice does not conduct was ‘‘inconsistent with’’ Fla. indicates that there is any painful establish ‘excusable neglect’ ’’); see also Kamir Admin. Code Ann. r. 64B8–9.013(e). Id. condition’’ and must be correlated with Garces-Mejias, 72 FR 54931, 54932 (2007). the patient’s history and physical 3 I do not adopt the ALJ’s conclusion ‘‘that the at 56–57. According to this provision, reference in 21 U.S.C. 823(f)(5) to ‘other conduct which has since been superceded: examination findings. Id. at 365. The Government further testified that which may threaten the public health and safety’ the physician should be willing to refer the would as a matter of statutory interpretation patient as necessary for additional evaluation Respondent’s documentation was logically encompass the factors listed in § 824(a).’’ ‘‘substandard’’ and ‘‘very sketchy,’’ id. ALJ at 32–33 & n 62. See Kwan Bo Jin, 77 FR 35021, and treatment in order to achieve treatment 35021 n.2 (2012). objectives. Special attention should be given at 337, and that he did not ‘‘support the Nor do I adopt the ALJ’s finding that to those pain patients who are at risk for need for the controlled substances with ‘‘Respondent’s biennial inventory did not go back misusing their medications and those whose appropriate documentation establishing a full two years from the date of the audit.’’ ALJ at living arrangements pose a risk for a valid medical need and treatment 36 (citing Tr. 200). Whether a biennial inventory medication misuse or diversion. The 4 has been timely completed is based on either the plan.’’ Id. at 339. Finally, the management of pain in patients with a Government’s Expert testified that ‘‘[i]n date that a ‘‘registrant first engages in the history of substance abuse or with a manufacture, distribution, or dispensing of all of the cases, the [Respondent] comorbid psychiatric disorder requires extra controlled substances,’’ or on the date of a prescribed controlled substances subsequent biennial inventory. 21 U.S.C. 827(a); see care, monitoring, and documentation, and also 21 CFR 1304.11(c) (‘‘After the initial inventory may require consultation with or referral to outside the usual course of professional is taken, the registrant shall take a new inventory an expert in the management of such practice or for other than a legitimate of all stocks of control substances on hand at least patients. medical purpose.’’ Id. every two years. The biennial inventory may be Under Agency precedent, these taken on any date which is within two years of the Fla. Admin. Code Ann. r. 64B8– findings establish a prima facie case that previous biennial inventory date.’’). In short, a 9.013(e). registrant’s compliance with this requirement is not Respondent ‘‘has committed such as measured from the date of an audit. Of significance, no authority (i.e., acts as would render his registration The ALJ also made various factual findings such as a decision of either the Florida * * * inconsistent with the public related to the manner in which the clinic Board of Medicine or Florida courts), is interest.’’ 21 U.S.C. 824(a)(4). I further administered urine tests. See ALJ at 42–44 (crediting testimony of Agent that no one monitored cited to establish that this provision has agree with the ALJ’s conclusion that his urine test, that one patient had said that he had been interpreted as imposing a Respondent has failed to accept simply scooped urine and water from the toilet and mandatory obligation of consultation or responsibility for his misconduct in used that as his sample, and one patient had referral. Moreover, at no point did the prescribing controlled substances to the another person provide his urine sample for him); see also ALJ at 50 (‘‘there was no supervision while Government’s Expert testify that given undercover officers and that he has also [a second S/A] provided a urine specimen’’). Based the presentation of J.S. as a patient, the failed ‘‘to demonstrate that he will not on this evidence, the ALJ concluded that ‘‘[t]he accepted standard of medical practice engage in future misconduct.’’ Id. at 72. emerging image of [the clinic] on February 16, 2010, required that Respondent refer her to Accordingly, I will adopt the ALJ’s is that of a clinic in which patients collude with one another and with staff members to fabricate another physician. recommendation that Respondent’s urinalysis results and thereby obtain controlled It is true that the Government’s expert registration be revoked. substances outside the usual course of professional criticized Respondent ‘‘for failing to practice or for other than a legitimate medical Order purpose. Although not for the most part directly inquire whether the patient had a attributable to Respondent, this misconduct calls substance abuse history or history of Pursuant to the authority vested in me into question the legitimacy of APM as a whole.’’ addiction.’’ ALJ at 61. While this by 21 U.S.C. 823(f) and 824(a), as well ALJ at 44. appears to be a violation of the standard as 28 CFR 0.100(b), I order that DEA There is, however, no evidence that Respondent governing the ‘‘evaluation of the Certificate of Registration BC8677746, was aware of this misconduct. It is further noted issued to Rene Casanova, M.D., be, and that while the Government elicited testimony from patient,’’ and the Government’s Expert an Expert on prescribing controlled substances to testified as to the importance of it hereby is, revoked. I further order that treat pain, the Expert did not offer any testimony determining whether a patient has a regarding what the standards of professional 4 The Government’s Expert also testified that it is practice require with respect to the monitoring/ substance abuse and addiction history, incumbent on a physician to outline a treatment supervision of urine tests. I thus do not place any Tr. 372–73, it is not clear why the plan at the time he writes a prescription. See Tr. weight on this evidence. failure to do so establishes that his 345–46, 382, 386.

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any pending application of Rene oxycodone 30 mg tablets and 60 alprazolam 5. On March 1, 2011, Respondent Casanova, M.D., to renew or modify the 2 mg tablets to an undercover law surrendered for cause DEA CORs FC1777260 above registration, be, and it hereby is, enforcement officer (UC1) at the request of and FC1881211 (ALJ Ex. 4 at 6); and UC1 after conducting little or no physical 6. Within minutes of one another, denied. This Order is effective October Respondent issued nearly identical 19, 2012. examination and without providing any diagnosis warranting the prescriptions. prescriptions for controlled substances to two Dated: August 31, 2012. Additionally, the OSC alleged that in patients 2 from Kentucky, who traveled Michele M. Leonhart, February 2010, Respondent distributed 120 together to see Respondent (ALJ Ex. 7 at 2). Following prehearing procedures, a Administrator. hydrocodone 7.5 mg tablets to a second undercover law enforcement officer (UC2) hearing was held in Miami, Florida between Dedra S. Curteman, Esq., for the Government after conducting little or no physical June 14, 2011, and June 15, 2011, with the Bradford Beilly, Esq., for the Respondent examination and without providing any Government and Respondent each represented by counsel. Both parties called Recommended Ruling, Findings of Fact, diagnosis warranting the prescription. The OSC alleged that Respondent distributed witnesses to testify and introduced Conclusions of Law and Decision of the documentary evidence. After the hearing, controlled substances to UC2 after UC2 Administrative Law Judge both parties filed proposed findings of fact, informed Respondent that UC2 had obtained conclusions of law and argument. All of the I. Introduction hydrocodone tablets from his girlfriend, evidence and post-hearing submissions have A. The Order to Show Cause without a legitimate prescription. been considered, and to the extent the In addition to the OSC, the Government Timothy D. Wing, Administrative Law parties’ proposed findings have been also noticed and alleged additional Judge. This proceeding is an adjudication adopted, they are substantively incorporated information in its initial and supplemental pursuant to the Administrative Procedure into those set forth below. prehearing statements. In addition to noticing Act (APA), 5 U.S.C. § 551 et seq., to II. Issue determine whether the Drug Enforcement in greater detail its allegations related to the Administration (DEA, Agency or visits by UC1 and UC2 (e.g., ALJ Ex. 4 at 6– Whether the record establishes that Government) should revoke a physician’s 16; ALJ Ex. 7 at 4–5), the Government further Respondent’s DEA COR as a practitioner DEA Certificate of Registration (COR) as a alleged that: BC8677746 3 should be revoked and any practitioner pursuant to 21 U.S.C. § 824(a)(4) 1. Vincent Colangelo, the owner/operator pending applications for renewal or and deny, pursuant to 21 U.S.C. § 823(f), any of several pain clinics in the Broward County modification, and any applications for a new pending applications for renewal or area, including All Pain Management registration, should be denied on the grounds modification and any applications for a new (APM),1 where Respondent practiced, was that Respondent’s continued registration COR. Without this registration, Rene involved in an illicit multi-level distribution would be inconsistent with the public Casanova, M.D. (Respondent), of the State of enterprise of pharmaceutical controlled interest as that term is used in 21 U.S.C. Florida, would be unable to lawfully substances, to include, but not limited to, §§ 824(a)(4) and 823(f). prescribe, dispense or otherwise handle oxycodone (ALJ Ex. 4 at 4); III. Evidence and Incorporated Findings of controlled substances in the course of his 2. Mr. Colangelo controlled the issuing, Fact 4 practice. ordering and dispensing of controlled The DEA Deputy Assistant Administrator substances for APM, to include among other I find, by a preponderance of the evidence, issued an Order to Show Cause (OSC) things a requirement that physicians the following facts: relating to CORs BC8677746, FC1777260 and prescribe the highest quantity of oxycodone A. Stipulated Facts 5 FC1881211, dated February 22, 2011, and and hydrocodone possible (ALJ Ex. 4 at 4– 1. Respondent is registered with the DEA served on Respondent. The OSC provided 5); as a practitioner in Schedules II–V under notice to Respondent of an opportunity to 3. Respondent ordered Schedule III–IV DEA COR BC8677746 at 750 South Federal show cause as to why the DEA should not controlled substances at his registered Highway, Deerfield Beach, Florida 33441. revoke Respondent’s DEA CORs BC8677746, location at 750 South Federal Highway, 2. Respondent is licensed by the Florida FC1777260 and FC1881211, pursuant to 21 Deerfield Beach, Florida 33441, but did not Department of Health as a medical doctor U.S.C. § 824(a)(4), and deny any pending maintain a current biennial inventory as of and has been licensed to practice medicine applications for renewal or modification, and February 23, 2011 (ALJ Ex. 4 at 6); in Florida since August 12, 1999. any applications for any other DEA 4. A March 29, 2011 on-site inspection and 3. Respondent has never been disciplined registration, pursuant to 21 U.S.C. § 823(f), audit of Respondent’s registered location for by the Florida Department of Health.6 alleging that Respondent’s continued a period from November 16, 2009, through 4. Respondent was registered with DEA as registration would be inconsistent with the March 29, 2011, revealed that: a practitioner in Schedules II–V under DEA public interest as that term is defined in 21 a. Discrepancies existed in Respondent’s COR FC1777260. He surrendered registration U.S.C. § 823(f). accounting for four controlled substances, FC1777260 on March 1, 2011. The OSC alleged that Respondent is constituting a failure to maintain complete 5. Respondent was registered with DEA as registered with DEA as a practitioner in a practitioner in Schedules II–V under DEA Schedules II–V under DEA COR BC8677746 and accurate records of controlled substances as required by 21 C.F.R. §§ 1304.21(a) and COR FC1881211. He surrendered registration at 750 South Federal Highway, Deerfield FC1881211 on March 1, 2011. Beach, Florida, 33441, under DEA COR 1304.22(c) (see ALJ Ex. 7 at 2); FC1777260 at 1655 E. Oakland Park b. Respondent failed to note whether 2 The Government’s Supplemental Prehearing Boulevard, Oakland Park, Florida 33334 and required inventory was taken at the open or close of the business day as required by 21 Statement referenced three customers and related under DEA COR FC1881211 at 640 East prescriptions. (ALJ Ex. 7 at 2.) C.F.R. § 1304.11(a) (see ALJ Ex. 7 at 3); Ocean Avenue, Suites 18 and 19, Boynton 3 As noted above, the OSC in this case identified Beach, Florida 33435, with expiration dates c. Respondent failed to properly document three CORs. (ALJ Ex. 1.) On March 1, 2011, of August 31, 2012. The OSC further alleged the date received on twenty of thirty-seven Respondent surrendered CORs FC1777260 and that Respondent distributed controlled receiving invoices, as required by 21 C.F.R. FC1881211. (Gov’t Exs. 3 & 4; see also Jt. Stips. 4 substances including oxycodone (a Schedule §§ 1304.21(a) and 1304.22(c) (see ALJ Ex. 7 & 5.) Respondent concedes that he surrendered the II controlled substance), hydrocodone (a at 3); CORs but denies having done so for cause. (E.g., Schedule III controlled substance) and d. Respondent failed to maintain two ALJ Ex. 5 at 2–3.) 4 alprazolam (a Schedule IV controlled receiving invoices or packing slips In addition to the evidence discussed in this Section, additional evidence and findings of fact are substance) ‘‘by issuing ‘prescriptions’ to documenting the receipt of controlled substances from Stat Rx as required by 21 discussed in later Sections of this Recommended undercover law enforcement officers for Decision. C.F.R. § 1304.21(a) (see ALJ Ex. 7 at 3); other than a legitimate medical purpose or 5 See ALJ Ex. 9; see also Tr. 5–6, 301. outside the usual course of professional 6 See Tr. 448–49. At hearing, Respondent testified practice.’’ (ALJ Ex. 1 at 2.) 1 The testimony at hearing reflected that APM is that his drug inventory has been audited annually In particular, the OSC alleged that in located at 3300 Griffin Road, Dania Beach, Florida. by the Florida Department of Health with no February 2010, Respondent distributed 180 (Tr. 209.) negative results. (See Tr. 449.)

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6. On February 16, 2010, Respondent saw C. Evidence 2. MEC and treated an individual who identified 1. Background (a) Background himself as ‘‘Eugene O’Neal’’ at APM Urgent Care, 3300 Griffin Road, Dania Beach, (a) Witnesses Respondent testified that his current Florida. Respondent wrote the prescriptions practice is located at 750 and 762 Federal The Government’s evidence included Highway, consisting of ‘‘two offices that are listed as Government Exhibit 9 for this testimony from eight witnesses, including individual. The patient file for ‘‘Eugene centrally based that are adjoined through a Respondent and a pain management expert, door * * * one of them is urgent care and O’Neal’’ as produced by the Government is David M. Glener, M.D. (Dr. Glener). Two listed as Government Exhibit 10. one of them is primary care * * * .’’ (Tr. witnesses were undercover law enforcement 414–15.) Respondent’s DEA registration is for 7. On February 16, 2010, Respondent saw officers who posed as patients and received and treated an individual who identified 750 South Federal Highway. (Jt. Stip. 1; Tr. treatment from Respondent at APM: DEA 463.) Respondent explained that the primary himself as ‘‘Alfredo Mondego’’ at APM Special Agent (SA) Gene George Grafenstein, care practice ‘‘is more of a practice where Urgent Care, 3300 Griffin Road, Dania Beach, 10 Jr. (SA Grafenstein) and SA Alfred Cortes patients are scheduled to be seen and so forth Florida. Respondent wrote the prescriptions (SA Cortes). In addition, the evidence where they have regularly scheduled visits. listed as Government Exhibit 13 for this included testimony from SA Joe Gill (SA * * * They’re patients who you know who individual. The patient file for ‘‘Alfredo Gill) ‘‘case agent’’ for the investigation of you’ve developed a rapport with, who you Mondego’’ as produced by the Government is APM, as well as Group Supervisor (GS) have developed a treatment plan over an listed as Government Exhibit 14. Susan Langston (GS Langston), Diversion extensive period of time * * * .’’ (Tr. 415.) 8. On March 10, 2010, Respondent saw and Investigator (DI) William Stockmann (DI In the urgent care practice, by contrast, treated an individual who identified herself Stockmann) and DI James Graumlich (DI ‘‘usually patients come in for an acute issue as ‘‘Julia Sanchez’’ at Coast to Coast Graumlich), all of whom played a role in that has to be dealt with’’ urgently, to include Healthcare Management (CCHM), 328 East investigations relating to Respondent. patients suffering from acute pain. (See Tr. Hillsboro Boulevard, Deerfield Beach, Florida The Government’s evidence also included 415.) Respondent explained that ‘‘there is no 33441. Respondent wrote the prescriptions various audio and video recordings of dispensing of any narcotics at 762’’ South listed as Government Exhibit 17 for this undercover meetings that occurred at APM Federal Highway and no controlled individual. The patient file for ‘‘Julia and CCHM, along with transcripts of portions substances are kept on hand in that portion Sanchez’’ as produced by the Government is of the recordings. (Gov’t Exs. 8–18.) of the facility. (Tr. 464.) listed as Government Exhibit 18. Respondent’s evidence included testimony Consistent with Respondent’s testimony, from one witness, Respondent. Respondent B. Introduction DI Stockmann testified that 750 and 762 testified regarding his education and South Federal Highway are storefronts. (Tr. Respondent is licensed to practice professional background, as well as his 115.) One is a primary care center and the medicine in Florida and Massachusetts. (Jt. prescribing practices. Respondent’s evidence other is an urgent care center, at different Stips. 2, 3; Tr. 412–13.) He possesses a also included a handwritten Biennial ends of the same building. (Tr. 115.) medical degree from Tufts University and Medication Inventory dated November 16, 11 Although each address had a separate currently practices in Deerfield Beach, 2009. (See Resp’t Ex. 1.) entrance, 762 and 750 are physically Florida at MinorEmergi Center—Primary With the exception of Respondent, I find connected. (Tr. 141.) When inside one office, Care, 762 South Federal Highway, Deerfield all of the witnesses at hearing to be fully it is possible to get to the other office via credible in that the testimony was generally Beach, Florida, and at MinorEmergi Center— interior access.13 (Tr. 142–43.) Urgent Care & Walk-In Medicine, 750 South internally consistent and evidenced a (b) Dispensing at MEC Federal Highway, Deerfield Beach, Florida reasonable level of memory for past events. (collectively ‘‘MEC’’).7 (See Tr. 17; Gov’t Ex. Each witness presented testimony in a Respondent dispenses medication at MEC 5.) He has been at MEC for five to six years. professional manner and the material in conjunction with a company called (Tr. 22.) portions of the testimony were consistent InstyMeds.14 (Tr. 17, 416.) InstyMeds Respondent testified that he previously with other credible evidence of record. practiced in Miami at the emergency room of Respondent’s testimony was generally in the final decision.’’ U.S. Dept. of Justice, Westchester Hospital and also at another presented in a professional and serious Attorney General’s Manual on the Administrative manner, but, in certain instances discussed office in the Miami area. (Tr. 22; see Tr. 412.) Procedure Act 80 (1947) (Wm. W. Gaunt & Sons, below, I find Respondent not credible to the In addition, he previously worked at a Level Inc., Reprint 1979). In accordance with the APA extent his statements are contradicted by the and DEA’s regulations, Respondent is ‘‘entitled on Two Trauma Center in Boston, timely request, to an opportunity to show to the 8 weight of the objective evidence of record. Massachusetts. (Tr. 35, 411–12.) He contrary.’’ 5 U.S.C. § 556(e); 21 C.F.R. § 1316.59(e) possesses no board certifications and is not (b) Identified Controlled Substances (2011); see, e.g., R & M Sales Co., 75 Fed. Reg. employed as a faculty member of a medical Uncontradicted testimony at hearing 78,734, 78,736 n.7 (DEA 2010). Respondent can school. (Tr. 454.) indicated that Lortab and Vicodin are brand dispute the facts of which I take official notice by Respondent also worked as a physician at names for hydrocodone, a Schedule III filing a properly supported motion for APM one day per week from December 2009 controlled substance. (Tr. 126, 137, 499.) reconsideration within twenty days of service of this Recommended Decision, which shall begin on to February 2010 (Tr. 22–24, 28; see Gov’t Ex. Guaifenesin Ac is a controlled substance the date it is mailed. See, e.g., Joseph Gaudio, M.D., 9 20) and at CCHM from March to April 2010. because it contains codeine. (Tr. 179.) 74 Fed. Reg. 10,083, 10,088 (DEA 2009) (granting (Tr. 22–23.) Ambien is a brand of zolpidem. (See Tr. 199.) respondent opportunity to dispute officially noticed The gravamen of the Government’s In addition, I take official notice that Zolvit facts within fifteen days of service). allegations relate to Respondent’s is hydrocodone, a narcotic and Schedule III 13 DI Stockmann elaborated that on February 23, recordkeeping at MEC and prescribing controlled substance; Percocet and 2011, he collected a copy of the clinic’s prescription practices at APM and CCHM. Roxicodone are oxycodone, narcotics and dispensing summary report and two MEC business Schedule II controlled substances; and Xanax cards, one of which lists Respondent as Medical is alprazolam, a benzodiazepine and Director. (See Tr. 109, 136; Gov’t Ex. 5.) DI 7 The evidence at hearing tended to show that Schedule IV controlled substance.12 Stockmann testified that the business cards reflect these two addresses are physically connected and addresses of ‘‘Minor Emergency Center, Primary are part of a unified practice, as discussed below. Care, with Dr. Casanova’s name on it, with an 8 Respondent also completed an internship in 10 Spellings in the transcript vary between address of 762 South Federal Highway, Deerfield general surgery at St. Elizabeth’s Hospital in Boston, ‘‘Cortes’’ and ‘‘Cortez.’’ Because the Government’s Beach, Florida. * * * [T]he second card displays Massachusetts for one year and a residency in ear, exhibits reflect the spelling ‘‘Cortes’’ (e.g., Gov’t Ex. Dr. Casanova’s name and also Minor Emergency nose and throat surgery at Tufts Medical School 12), that spelling is adopted in this Recommended Center, Urgent Care and Walk-In Medical Center, New England Medical Center. (Tr. 410.) Decision. with an address of 750 South Federal Highway, 9 Respondent testified that he dispensed Schedule 11 Respondent Exhibit 1 appears to be Deerfield Beach, Florida.’’ (Tr. 109; see Gov’t Ex. 5.) III and IV controlled substances at these clinics, to substantially the same as Government Exhibit 19 at 14 MEC previously worked with a company called include hydrocodone, Roxicodone, Valium and 2. Linear Solutions, but ended the relationship Xanax, as well as muscle relaxants and anti- 12 Under the APA, an agency ‘‘may take official approximately two months before the hearing. (Tr. inflammatories. (Tr. 23.) notice of facts at any stage in a proceeding—even 18.)

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supplied MEC with a machine located in the ‘‘no evidence of a biennial inventory for that practice. (Tr. 128.) His statement to corner of the waiting room that dispenses a registered location of the controlled Respondent that he could not locate a copy variety of medications to patients, to include substances on hand.’’ (Tr. 108.) He testified of a biennial inventory was his sole critique. antibiotics and Schedule III and IV controlled that Respondent acknowledged this was a (Tr. 128.) substances. (See Tr. 19–20.) DI Graumlich violation of federal regulations. (Tr. 108.) (d) March 29, 2011 Audit of MEC described it as a ‘‘vending machine where Additionally, DI Stockmann recounted 19 people can get their prescriptions filled after Respondent’s surrender of two of his DEA DI Graumlich testified that he conducted they’ve been written by the doctor.’’ 15 (Tr. CORs on March 1, 2011. (Tr. 111; see Gov’t an inspection and audit of MEC on March 29, 165.) Medications are stored in racks and Exs. 3, 4.) Because Respondent was not 2011. (See Tr. 148.) Respondent consented when patients enter an access code ‘‘it operating at those locations, DI Stockmann and cooperated, giving agents full access to provides them the medication.’’ (Tr. 18–19; asked Respondent if he would surrender everything they needed, although he was not see Tr. 165–66.) those certificates. (Tr. 130.) At Respondent’s required to do so. (Tr. 152, 184; Gov’t Ex. The machine, which is loaded by request, DI Stockmann called Respondent’s 19(a).) DI Graumlich’s audit covered a time frame Respondent’s staff, provides medication only counsel and explained he was asking from November 16, 2009, through March 29, while the office is open, and only after Respondent to surrender licenses for 2011. (Tr. 149.) The audit occurred on-site 20 patients have received ‘‘all the paperwork facilities that were not being operated. (Tr. and reflected a physical hand count verified from the prescribing provider.’’ (Tr. 19, 36– 130.) He did not explain which box he by members of Respondent’s staff of dosage 37.) The technology has been available for intended to check on the surrender form. units present (Tr. 171, 174, 196–97), to ten to fifteen years in hospitals and other (Compare Tr. 130, with Gov’t Ex. 3 at 1; Gov’t include two different strengths of local facilities. (Tr. 19, 21.) The InstyMeds Ex. 4 at 1.) DI Stockmann explained to hydrocodone, Guaifenesin with codeine, machine is provided for ease or convenience. Respondent that he had found violations of Zolvit and zolpidem. (Tr. 150.) (Tr. 21.) Respondent believes using federal and state law at those locations, to DI Graumlich requested that Respondent InstyMeds is compliant and assists with all include recordkeeping violations. (Tr. 133.) provide any inventory records MEC had ordering, stocking, dispensing, reporting and DI Stockmann further testified that the taken within the past two years, specifically, recording requirements related to controlled surrender forms were ‘‘presented to him and 16 the biennial inventory and Respondent’s substances. (Tr. 36–37; see Tr. 450.) MEC [they were] explained to him. And I actually distribution and receiving records. (Tr. 158– makes a small profit from using InstyMeds to read the top section and he was asked to 59, 174.) Respondent’s staff provided a dispense controlled substances. (Tr. 21.) make sure he read it and understood it.’’ (Tr. binder containing copies of receiving (c) February 23, 2011 Interview with 139.) The Government’s evidence reflects invoices and pedigree information for drugs Respondent that boxes are checked on the surrender purchased, ranging from November 2009 to forms next to text indicating that the DI Stockmann 17 participated in an March 29, 2011. (Tr. 174.) DI Graumlich then surrender would be made: ‘‘In view of my investigation of Respondent by serving the calculated the total amount of controlled alleged failure to comply with the Federal OSC and a notice of inspection upon substances for which Respondent was requirements pertaining to controlled Respondent and interviewing him on accountable, as compared to the total amount substances, and as an indication of my good February 23, 2011, at MEC. (See Tr. 105–06.) Respondent had records of distributing or faith in desiring to remedy any incorrect or DI Stockmann testified that at this interview transferring. (See Tr. 174–77; Gov’t Ex. 19(e).) unlawful practices on my part * * *.’’ (Gov’t Respondent identified MEC’s hours of At hearing, DI Graumlich testified that Joy Exs. 3, 4.) Respondent signed at the bottom operation as Monday to Friday, 9:00 a.m. to Egan, Respondent’s office manager (Tr. 26, of the page. (Tr. 139.) 7:00 p.m., and weekends from 9:00 a.m. to 153, 202), identified Danny McBride as the DI Stockmann testified that a ‘‘pill mill’’ is 3:00 p.m. (See Tr. 106.) Respondent also representative from Linear Solutions. (Tr. an operation containing ‘‘a doctor and a stated that he employed four to five 153–54.) MEC’s records indicated that Mr. pharmacy, located basically in the same physician attendants and that his weekly McBride physically counted all the pills building, and the doctor sees the patients and hours were Monday, Wednesday and Friday, located at the clinic on November 16, 2009, then he dispenses’’ hydrocodone or 9:00 a.m. to 5:00 p.m., and Tuesdays and but it is unclear whether this count occurred oxycodone. (Tr. 117.) Pill mills are marked Thursdays 9:00 a.m. to 1:00 p.m. (Tr. 106– ‘‘at the beginning or end of the business day, by ‘‘[t]ons of patients in the patient room, 07.) Respondent saw approximately fourteen so we didn’t know whether to give them they’ve got patients lined up outside, they’ve or fifteen thousand patients each year, or credit for the prescriptions that were written got people that are, for lack of a better term, approximately fifty patients per day. (Tr. that day.’’ (Tr. 154, 164; Gov’t Ex. 19(b).) DI obsessing about getting in to see physicians.’’ 107.) Respondent acknowledged ordering Graumlich testified that the failure to (Tr. 118.) DI Stockmann testified that MEC is Schedule III and IV controlled substances for indicate whether the biennial inventory was not a pill mill.18 (See Tr. 118, 127–28.) MEC. (Tr. 107–08.) taken at the opening or closing of the Respondent fully and completely DI Stockmann further testified that he business day constituted a violation of cooperated in the inspection of MEC on inspected MEC on February 22, 2011, finding federal regulations. (Tr. 164, 181, 199.) He February 23, 2011, to include granting access stated that Respondent’s biennial inventory 15 to records and inventory. (Tr. 114–15, 119– Respondent described the machine as a large was also noncompliant because it did not go 20.) Without Respondent’s consent, the box, approximately six feet tall and three or four back a full two years from the date of the feet wide. (Tr. 19.) He called it a ‘‘vehicle to allow Government would have needed to acquire audit. (Tr. 200.) the patients [sic] to get medications after the patient search warrants. (Tr. 113–14.) Based on the audit, DI Graumlich found has been seen, treated, examined and determined In summary, DI Stockmann saw nothing that Respondent was accountable for thirty- that the patient needs medications for their [sic] that was outside the scope of normal medical diagnosis.’’ (Tr. 18.) five bottles of Guaifenesin Ac but could only 16 According to DI Graumlich, ‘‘[t]he benefit of the account for twenty-seven bottles, resulting in InstyMeds machine * * * was that the computer 18 DI Stockmann testified that the non-controlled a shortage of eight bottles, a 22.86 percent system tracks what is in the machine and what has substance medications listed in MEC’s difference. (Tr. 177, 198–99; Gov’t Ex. 19(e).) been dispensed, and therefore they can tell which ‘‘Prescriptions Dispensed Summary Report’’ were of drugs they are running low on to place orders for.’’ the sort that would typically be dispensed in a (Tr. 170.) general medical practice. (Tr. 122; see Gov’t Ex. 6; 19 DI Graumlich has worked as a DEA DI for 17 DI Stockmann testified to having been a DEA see also Tr. 389–90 (concurrence in this assessment twenty-two years and holds a bachelor’s degree. (Tr. DI for the past eight years. (Tr. 104–05.) In this role of Government’s expert witness, Dr. Glener).) He 147–48.) His duties include ensuring compliance he investigates and inspects registered locations, also testified that the six prescriptions of the with the regulations under the Controlled seeking to prevent the diversion of controlled controlled substance Guaifenesin AC Syrup 100 mg Substances Act (CSA). (Tr. 147.) Consistent with substances from legal distribution channels into the recorded as having been dispensed over a two-year these duties, DI Graumlich has conducted over 100 illicit market. (Tr. 104.) DI Stockmann previously period (Gov’t Ex. 6 at 15) was not an inordinate accountability audits. (Tr. 149.) An accountability worked for twelve years as a St. Louis City amount. (Tr. 125.) He also opined that 145 audit ensures certain records are being kept and Metropolitan Police Officer, for the last three of prescriptions for hydrocodone dispensed over a that rules are being followed. (Tr. 148–49.) which as a DEA Task Force Officer. (Tr. 105.) His two-year period (Gov’t Ex. 6 at 17) was not 20 As DI Graumlich explained, ‘‘[w]e didn’t total law enforcement experience is twenty years, consistent with pill mill dispensing. (Tr. 125.) actually remove hard documents. We copied and he has a bachelor’s degree in criminology and Additionally, the clinic did not buy medication in documents on site at the location and left the criminal justice. (Tr. 105.) bulk and then repackage it. (Tr. 126.) original documents with the registrant.’’ (Tr. 189.)

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Moreover, with respect to Hydrocodone (e) Respondent’s Position on the MEC Audit ‘‘formula’’ of 240/90/90, meaning 240 Apap 5/500 30-count bottles, the audit Respondent credibly testified that oxycodone 30 mg dosage units, 90 oxycodone 21 revealed an overage of one bottle, thirty regarding recordkeeping, 15mg dosage units, and 90 Xanax 2 mg dosage units or 0.89 percent. (Tr. 177–78, dosage units. (Tr. 48.) The formula was not [t]he bottom line is that I ultimately am 197–98.) With respect to Hydrocodone Apap something doctors started with initially and responsible and was held accountable and I 7.5/500 30-count bottles, the audit revealed not every patient received it. (Tr. 67, 69.) SA wasn’t aware of the fact that he had not a shortage 22 of five bottles, 150 dosage units Gill explained that ‘‘[o]n the first visit, for gotten the rest of the information. Maybe or four percent. (Tr. 178–79, 198.) As for someone to get 240/90/90, they would die there was a misunderstanding in regards to zolpidem, the audit revealed a shortage of * * *. So the doctor builds up to that.’’ 27 the pedigree paperwork and so forth. I am three bottles, 180 dosage units or twenty-five (Tr. 69.) Respondent’s prescriptions 28 at fully aware of that and irrespective of the APM did not appear to comply with the 240/ percent. (Tr. 180, 199.) results of these hearings, I plan to provide all DI Graumlich explained that DEA 90/90 rule.29 (Tr. 67.) the appropriate information that is required SA Gill testified that the investigation of registrants are ‘‘required to maintain records and necessary. of all controlled drugs received, distributed Mr. Colangelo led to an indictment and or otherwise dispensed. And if we have (Tr. 449–50; see also Resp’t Br. at 8.) Upon superseding indictment against Mr. records of all the drugs received or inquiry from his attorney, Respondent Colangelo. (Tr. 62.) Respondent is not distributed, the account should zero out.’’ testified that he ‘‘fully understand[s]’’ that mentioned in either document, and SA Gill (Tr. 180–81.) He testified that the fact that audit results need to zero out, and that he is aware of no evidence that Respondent Respondent’s records of controlled ‘‘[o]ne hundred percent’’ intends to ensure knew Mr. Colangelo, was in contact with him substances did not zero out constituted a future deliveries are properly documented. or knew he owned an interest in APM. (See failure to maintain complete and accurate (Tr. 450.) Tr. 63, 82.) SA Gill does not know who hired records, in violation of federal regulations.23 3. All Pain Management (APM) Respondent. (Tr. 64.) Moreover, SA Gill is (Tr. 181, 203–04.) aware of no evidence that Mr. Colangelo had (a) Background of Investigation of APM and In addition, DI Graumlich noted that anything to do with Respondent’s treatment its Owners approximately twenty of MEC’s receiving of patients, or what patients he saw or turned invoices did not reflect the date received, SA Gill 25 testified to being the ‘‘case away. (Tr. 64–65.) constituting a failure to maintain complete agent’’ for an investigation of APM (Tr. 84), Similarly, Respondent testified that he had and accurate records. (Tr. 181.) MEC and that Respondent was a physician there. no knowledge of Mr. Colangelo’s ownership 30 ‘‘provided me with copies of pedigree (Tr. 43.) In approximately September 2009, of APM. (Tr. 462.) He testified that APM documents, rather than invoices. * * * They SA Gill received information that a Mr. was owned by a married couple named Maite said they * * * had been moved to storage Vincent Colangelo owned several pain clinics and Joel, who also ran the facility. (Tr. 24– and that they would get those for me. They in South Florida. (Tr. 43.) He opened an 25, 38, 458. But see Tr. 84.) Respondent never did get those for me.’’ 24 (Tr. 193.) After investigation on Mr. Colangelo and testified that Maite and Joel hired him after Respondent’s office provided pedigree discovered that APM was one of the clinics he interviewed with Maite. (Tr. 39.) Maite records, DI Graumlich gave the clinic several in which Mr. Colangelo owned an interest in told him at his employment interview that opportunities to provide missing records, to approximately October or November of 2009. she was the owner of APM. (Tr. 39.) He did include emailing Ms. Egan after the (Tr. 43–44.) The investigation also revealed not look up the ownership records of APM 31 inspection. (Tr. 202.) He again requested that Mr. Colangelo operated a number of on a Florida government Web site. (Tr. 39.) invoices, but ‘‘we were never provided with clinics without possessing a DEA COR. (Tr. (b) Respondent’s Employment and Practice at any other documents. According to Ms. Egan, 44.) Joel Ortega and Maite del Rey were two APM other co-owners of APM but Mr. Colangelo I believe they could not find the other Respondent testified that he worked as an was the primary owner, although he was not binder.’’ (Tr. 194.) independent contractor at APM for six to there on a daily basis.26 (Tr. 44, 46–47.) The audit further revealed ‘‘two receiving eight weeks from December 2009 to February SA Gill testified that based on his invoices that they did not have a record of’’ 2010. (Tr. 22–23; see Tr. 416, 454–55.) He based on ‘‘a printout of their receipts from investigation, Mr. Colangelo was responsible Stat Rx, their distributor * * *.’’ (Tr. 182.) for finding, interviewing and hiring ‘‘doctors 27 SA Gill elaborated that ‘‘if you were an existing The audit also reflected MEC’s change from that would write scripts and see the number of patients that he wanted to be seen, patient at another clinic and went in and told the using Linear Solutions to InstyMeds. (See Tr. doctor that you were currently getting 240/90/90, 156–57; Gov’t Ex. 19(e).) The audit of the basically.’’ (Tr. 46.) SA Gill testified that Mr. chances are you would get the maximum or close InstyMeds machine reflected no Colangelo would collect the clinic’s money to it. If you were a new patient and didn’t have any discrepancies. or it would be delivered to him at the end prior medical records from the pain clinic then the There were, moreover, no discrepancies in of the night or several times per week. (Tr. doctors would start you out lower and build you the audit of Zolvit oral solution, although 46–47.) up to that level.’’ (Tr. 85–86.) ‘‘they originally didn’t have any records for Based on information from a confidential 28 SA Gill testified that the Government obtained that but we had them get copies of their source, SA Gill testified that Mr. Colangelo patient files after executing a search warrant on only employed doctors ‘‘that would follow March 1, 2011, at a storage unit owned by Mr. records from their vendor.’’ (Tr. 197.) Colangelo. (Tr. 52.) The Government obtained Although I credit DI Graumlich’s his rules and there weren’t specific quantities or types that doctors had to write, but if they undercover patient files for SA Grafenstein, SA uncontested testimony as to his audit’s Cortes and SA Saenz in this manner. (Tr. 56–58.) weren’t writing high enough scripts they factual findings, I grant no weight to his 29 For instance, SA Grafenstein received a opinions as to the legality of the findings would be fired.’’ (Tr. 47.) Mr. Colangelo prescription for 180 oxycodone 30 mg tablets and because these opinions speak to the ultimate initially had a mandatory prescription 60 Xanax 2 mg tablets, SA Cortes received a issues in the case. A later section of this prescription for 120 hydrocodone 7.5 mg tablets Recommended Decision addresses the legal 25 SA Gill testified in substance to having eight and SA Saenz received a prescription for 90 ramifications of the March 29, 2011 audit. years of experience working for the DEA. (Tr. 41.) hydrocodone 5 mg tablets, 90 Motrin 800 mg tablets He has worked for two years in a tactical diversion and a pack of Medrol. (Tr. 67–69; Gov’t Ex. 9; Gov’t squad, a working group that focuses on pain clinics, Ex. 10 at 3–4; Gov’t Ex. 13; Gov’t Ex. 17.) 21 An overage occurs ‘‘when they account for doctors and pharmaceuticals. (Tr. 41.) Prior to 30 In light of the evidence, I agree with distributing more drugs than they can account for joining DEA he worked for three-and-one-half years Respondent that ‘‘the Government has failed to offer purchasing.’’ (Tr. 178.) at a police department in New Jersey and as a crime any evidence that Dr. Casanova was somehow part 22 Shortages can occur for various reasons, to analyst and statistician. (Tr. 42.) He holds a of or even aware of Vincent Colangelo’s alleged include recordkeeping issues, theft or loss. (Tr. bachelor’s and a master’s degree in criminal justice. criminal activity and his alleged hidden ownership 180.) (Tr. 43.) of All Pain and Coast to Coast.’’ (Resp’t Br. 29.) 23 He conceded, however, that regulated audits of 26 SA Gill testified that Mr. Ortega and Ms. del 31 SA Gill testified that www.sunbiz.org, the manufacturers and distributors of controlled Rey were the original owners of APM. (Tr. 83.) The Florida Web site that provides public information substances do not always zero out. (Tr. 187.) business was not doing well, and Mr. Colangelo as to the form of a business entity, does not provide 24 DI Graumlich testified that DEA does not offered to become part owner in exchange for information as to who owns a corporation. (Tr. 80.) require that physicians maintain pedigree records. providing patients. (Tr. 83–84.) Mr. Ortega and Ms. For instance, with respect to APM, Mr. Colangelo’s (Tr. 194.) del Rey oversaw daily operations. (Tr. 84.) name is not reflected on the Web site. (Tr. 81.)

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started working at APM based on a referral requirements and so forth and that I was approximately six hours after the agent from a friend of a friend and intended to looking to try to provide care on a multi- arrived at APM. (See Tr. 220, 241–44, 247.) conduct clinical research there. (Tr. 455–58.) disciplinary level with a variety of different SA Grafenstein indicated he was in ‘‘[a] lot He testified that he approached patients specialties and so forth and as I proceeded of pain. My upper [back] is bother [sic] me, about possibly participating in clinical to go on, some of these things were not a little sore. My lower, nothing that’s * * * research, but acknowledged that he did not coming to fruition so I decided to part ways. like excruciating * * * sometimes I can’t ask either SA Grafenstein or SA Cortes. (See (Tr. 455.) move my neck.’’ (Gov’t Ex. 8 at 33.) He Tr. 459.) indicated his pain without medication was a (c) Undercover Patient Visits to APM Respondent further testified that he was two and with medication was a zero, on a not APM’s medical director and that his (i) SA Grafenstein February 16, 2010 scale of one to ten. (See Tr. 242.) After duties included evaluating patients, Undercover Visit to APM reviewing the patient’s MRI report, conducting an appropriate examination and SA Grafenstein 35 visited APM in an Respondent said ‘‘I can’t tell you anything providing appropriate care. (Tr. 416–17.) undercover capacity on February 16, 2010, about your neck ‘cause you don’t have an Respondent did not schedule appointments posing as a patient.36 Aside from noting that MRI.’’ (Gov’t Ex. 8 at 34; see Tr. 241.) ‘‘The but believes APM accepted walk-in APM staff measured his vital signs and did one you have there tells me that you have patients.32 (See Tr. 417.) Respondent not supervise him while he submitted a urine some problems in your low back * * * It explained that most patients came to APM as sample (see Tr. 240), SA Grafenstein’s tells me nothing about your neck.’’ (Gov’t Ex. referrals from other physicians and patients, testimony related primarily to conversations 8 at 35.) But Respondent did not order an and from Internet marketing.33 (Tr. 29–30.) he overheard in the waiting area and his visit MRI of the patient’s neck. (Tr. 244.) He testified that APM did not dispense with Respondent. Respondent directed SA Grafenstein to controlled substances. (Tr. 24.) He worked Among approximately fifteen people in the raise his hands and inhale and listened to his one day per week and maintained a separate waiting area, SA Grafenstein conversed with breathing. (Tr. 242; Gov’t Ex. 8 at 37, 39.) He practice elsewhere. (Tr. 28, 455.) patient [M.B.],37 who indicated that existing also felt along SA Grafenstein’s back and Respondent testified that APM patients patients were always seen before new neck while asking him to bend over, and paid a fee of approximately $250 to see him, patients (Tr. 228) and recommended that SA performed reflex tests. (Tr. 242–43; Gov’t Ex. but those transactions were handled at the Grafenstein avoid the pharmacy Generic Drug 8 at 40.) front desk. (Tr. 25–26, 456.) APM accepted Depot, because it was ‘‘very hot right now SA Grafenstein had written in his patient insurance but most of the patients were and there were cops all over the place and paperwork that he was currently taking 180 private pay. (Tr. 29.) As compensation, that there were people standing outside oxycodone 30 mg tablets. (Gov’t Ex. 10 at 3, Respondent received fifty dollars per patient trying to buy pills off the people who came, 4.) Respondent asked whether the medication he saw and did not receive bonuses. (Tr. 27– who just got their prescriptions filled there.’’ was working (Gov’t Ex. 8 at 42), to which SA 28; see Tr. 456.) Initially he saw between ten (Tr. 228–29.) [M.B.] also asked SA Grafenstein responded in the affirmative and and fifteen patients per week, and later Grafenstein to provide a urine sample for orally requested Xanax. (Gov’t Ex. 8 at 42; Tr. between twenty and thirty. (Tr. 28.) [M.B.]’s drug test, and SA Grafenstein 243.) Respondent inquired ‘‘how much Respondent estimated that he saw complied. (Tr. 231–32.) APM staff left the Xanax are you taking? ‘Cause it didn’t get put approximately four or five patients per hour restroom unsupervised and [M.B.] later left on there, but I’ll, I’ll get it for you.’’ (Gov’t and worked from 2:00 p.m. to 9:00 p.m. (Tr. the clinic carrying more than one Ex. 8 at 42.) SA Grafenstein responded that 28.) prescription. (Tr. 232.) he was taking about sixty. (Gov’t Ex. 8 at 42.) Respondent testified that patients who Another patient recounted submitting Respondent issued SA Grafenstein came to APM brought medical records, to urine mixed with water from a toilet for a prescriptions for 180 Roxicodone 30 mg include MRI reports, to the best of their drug screen. (Tr. 235.) SA Grafenstein also tablets and 60 Xanax 2 mg tablets, reflecting ability. (Tr. 31, 33.) Respondent required an testified that patient [M.I.] was carrying a the medications SA Grafenstein had MRI report from every patient. (Tr. 31.) Maite Gatorade bottle containing urine of a person indicated on his patient intake form and was responsible for verifying the validity of who had driven [M.I.] to the clinic ‘‘because requested orally. (Tr. 216, 243; Gov’t Ex. 9; each MRI report. (Tr. 31–32.) the individual who was seeing the doctor Gov’t Ex. 10 at 3, 4.) The patient’s urine drug Respondent testified that he performed a told him that he would give him half of physical examination and ‘‘made a diagnosis screen, contained in the patient file, reflected whatever he was prescribed for driving him that SA Grafenstein tested negative for both and we talked about how we’re going to down there.’’ (Tr. 239.) [M.I.] stated that ‘‘two progress and provide care’’ for each patient oxycodone and alprazolam. (Tr. 427–28, hours prior to that specific time he had gone 477.) he saw. (Tr. 32.) Respondent further testified home and did cocaine, not knowing that he’d that paperwork provided to each patient have to take a drug test. And after he learned (ii) SA Cortes February 16, 2010 Undercover addressed the risks and benefits associated that, he ingested bleach to attempt to detoxify Visit to APM with a course of treatment. (Tr. 32–33.) In it so that he would be able to beat the drug SA Cortes 38 visited APM in an undercover addition, Respondent testified that a test.’’ (Tr. 237.) SA Grafenstein testified that capacity on February 16, 2010, posing as a ‘‘treatment plan was formulated either in Respondent later issued a prescription to patient.39 (See generally Jt. Stip. 7.) Aside terms of the documentation on the [M.I.] (Tr. 239.) SA Grafenstein also related from noting that office staff measured his paperwork or mentally in terms of the overhearing that ‘‘if you failed the drug test vital signs, that he was not supervised while documentation and a plan and a process.’’ for marijuana, you could pay $50 * * * and submitting a urine sample and that he (Tr. 33–34.) the administrator would make your hot, or overheard a staff member discussing different Respondent testified to being familiar with your failed test, clean.’’ (Tr. 237.) methods to inject heroin (Tr. 273–75), SA the term ‘‘track marks,’’ which he said SA Grafenstein also testified to his Cortes’s testimony related primarily to his referred to people making injections on their interactions with Respondent, which began visit with Respondent. arms. (Tr. 34.) He testified that he checked 34 Respondent called SA Cortes into his office his patients for track marks. (Tr. 34–35.) 35 SA Grafenstein has worked as a DEA SA for after a wait of more than five hours. (Tr. 273, Respondent ended his relationship with approximately two years. (Tr. 206.) He previously 275.) SA Cortes stated that he was ‘‘not really worked for approximately eight and one-half years APM because after a period of time, I was hurt, doc. Um * * * what I’m experiencing told or I explained that I had certain as an officer with U.S. Customs and Border Protection and as a park ranger in Arlington County, Virginia. (Tr. 207.) He holds a bachelor’s 38 SA Cortes has worked as a DEA SA for 32 Respondent equivocated on this point, also degree in criminal justice. (Tr. 207.) approximately three years, following approximately testifying that the clinic at one point accepted only 36 The following summary of SA Grafenstein’s ten years as a state trooper and local police officer. scheduled appointments and did not accept walk- undercover visit to APM is supplemented in a later (Tr. 257.) He holds a bachelor’s degree in criminal ins. (Tr. 28–29.) section of this Recommended Decision by justice. (Tr. 257.) 33 Respondent never saw the Internet marketing, additional findings of fact, and by conclusions of 39 The following summary of SA Cortes’s but the owners told him about it. (Tr. 29.) law. undercover visit to APM is supplemented in a later 34 In addition, the refund policy at APM indicates 37 To protect patient privacy, initials are used in section of this Recommended Decision by that refunds will not be granted for ‘‘signs of IV this Recommended Decision to refer to non- additional findings of fact, and by conclusions of drug use (track marks).’’ (Gov’t Ex. 10 at 5.) undercover patients. law.

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is * * * more and more stiffness [in the dated March 31, 2010, for patient [C.G.] of Ex. 16 at 7; see also Gov’t Ex. 18 at 1.) shoulders and waist] * * * after each Essie, Kentucky (Tr. 91–92, 96); and 100 Respondent testified that he didn’t ask SA practice,’’ elaborating that he had been Roxicodone 15 mg tablets and 210 Saenz how she had obtained the oxycodone studying martial arts. (Gov’t Ex. 12 at 2–3; Tr. Roxicodone 30 mg tablets dated March 31, and Xanax she had indicated taking. (See Tr. 276.) Upon inquiry from Respondent, SA 2010, for patient [R.C.] of Helton, Kentucky 495.) At the patient interview, SA Saenz Cortes stated that he worked at a warehouse (Tr. 92, 97; Gov’t Ex. 20 at 5). repeatedly told Respondent that the pain did and that lifting made his discomfort worse. GS Langston testified that in light of her not interfere with her work or daily activities. (Gov’t Ex. 12 at 6–7.) He rated his pain as a background, training and experience the (Gov’t Ex. 16 at 6.) When Respondent asked three or four while on medication, and an prescriptions to patients [C.G.] and [R.C.] SA Saenz whether she had ever taken eight without medication, on a scale from ‘‘raised red flags to me because they are both narcotics before, she responded in the one to ten. (See Gov’t Ex. 12 at 6; Tr. 277– prescribed by Dr. Casanova to patients in negative. (Gov’t Ex. 16 at 13.) Respondent 78.) Kentucky that * * * apparently traveled found it ‘‘somewhat confusing that she did SA Cortes told Respondent that he had from Kentucky to see Dr. Casanova at Coast state just on tomes and domes and didn’t been taking Tylenol and one or two tablets to Coast in Deerfield Beach and then dr[o]ve state anything about an anxiolytic with this of his girlfriend’s hydrocodone per day. to Margate to have their prescriptions filled.’’ piece of information and her drug screen was (Gov’t Ex. 12 at 3–4; Tr. 276.) He stated that (Tr. 98.) As additional ‘‘red flags,’’ GS negative.’’ (Tr. 446.) the hydrocodone hadn’t been prescribed to Langston noted that the prescriptions to SA Saenz indicated that her pain was him, to which Respondent stated ‘‘I [C.G.] and [R.C.] were for the same amounts about a three while on ibuprofen and a five understand.’’ (Gov’t Ex. 12 at 9; see Tr. 278.) of drugs (Tr. 98); the prescriptions were filled or six without, on a scale from one to ten. SA Cortes’s urine drug screen, however, on the same day at close to the same time at (See Gov’t Ex. 16 at 7; see also Gov’t Ex. 18 the same pharmacy (Tr. 98); and the cities of tested negative for hydrocodone. (See Tr. at 1.) She stated that she drank on occasion Essie, Kentucky and Helton, Kentucky are 482; see also Gov’t Ex. 14 at 1.) Moreover, SA (Gov’t Ex. 16 at 7–8) and indicated that she located close to each other, and Cortes did not indicate he was taking any suffered from insomnia and depression. approximately 900 to 1000 miles and fifteen medication on his Pain Assessment Form. (Gov’t Ex. 18 at 6.) to sixteen hours away from Respondent’s (Gov’t Ex. 14 at 2.) Respondent directed SA Saenz to take a Respondent directed SA Cortes to sit on an office in Deerfield Beach, Florida. (Tr. 99.) GS Langston testified that based on the deep breath, bend forward and indicate examination table and inhale, listened to his where she had pain. (Gov’t Ex. 16 at 9.) She breathing and tested his reflexes. (Tr. 278.) foregoing factors it appeared that patients [C.G.] and [R.C.] traveled together from indicated pain on her left side and sensitivity Respondent inquired whether SA Cortes was Kentucky to see Respondent. (Tr. 99.) GS in her neck. (Gov’t Ex. 16 at 9.) Respondent taking three or four hydrocodone pills per Langston testified that although she had not demonstrated a stretching exercise and day, to which SA Cortes agreed, even though seen the patients’ medical files, the recommended an Icy Hot patch. (Gov’t Ex. 16 he had previously indicated taking only one pharmacist should have regarded the at 10.) He then prescribed 90 Motrin 800 mg or two per day. (Compare Gov’t Ex. 12 at 9, prescriptions as suspicious. (Tr. 101.) She tablets, 90 Vicodin oral 5 mg—500 mg tablets with Gov’t Ex. 12 at 3–4.) Respondent issued did concede, however, that without seeing and one pack containing twenty-one Medrol SA Cortes a prescription for 120 the patients’ medical files, she could not 4 mg tablets. (Gov’t Ex. 17.) The portions of hydrocodone 7.5 mg tablets. (Gov’t Ex. 13; Tr. determine whether the prescriptions were her Consent for Chronic Opioid Therapy 277, 288.) No diagnosis is listed on SA medically necessary. (Tr. 103.) (Consent Form) indicating a diagnosis and Cortes’s Consent for Chronic Opioid Therapy alternative treatment options are blank. (Tr. (a) SA Saenz March 10, 2010 Undercover form, nor are alternative treatments listed. 494; Gov’t Ex. 18 at 15.) Visit to CCHM (Tr. 398; see Gov’t Ex. 14 at 8.) Near the end of the meeting, Respondent 4. Coast to Coast Healthcare Management SA Julia Saenz (SA Saenz) visited CCHM asked SA Saenz ‘‘Why, for this kind of thing, (CCHM) in an undercover capacity on March 10, you go to a pain management clinic? Why not 2010.42 (E.g., Jt. Stip. 8; Gov’t Ex. 18 at 1; Tr. go see a doctor?’’ (Gov’t Ex. 16 at 13.) She Respondent worked at CCHM in Deerfield 442; Gov’t Ex. 18 at 2, 4–6, 8–11, 13–15, 17.) replied that she didn’t have a doctor, and Beach, Florida as an independent contractor Although the Government listed SA Saenz as Respondent suggested she visit Respondent’s for six to eight weeks in March to April 2010, a witness in its prehearing statement (ALJ Ex. Urgent Care Center. (Gov’t Ex. 16 at 13–14.) approximately two weeks after he stopped 4 at 3, 14–16), the Government did not offer working at APM. (See Tr. 22–23, 448, 456, her testimony at hearing. (Tr. 11.) The 5. Government’s Expert Testimony and 460; Gov’t Ex. 20.) He testified that he was undercover recording of SA Saenz’s visit, her Report told there would be a possibility of patient file and prescriptions Respondent The Government presented the testimony conducting clinical research at CCHM.40 (Tr. issued to her were admitted without of David M. Glener, M.D., along with a 459.) But ‘‘one thing was said and then what objection. (Tr. 84–85, 404; see Gov’t Ex. 16, written report he prepared based on his happened was actually a different thing and 17, 18.) review of patient files, audio recordings and that’s why we decided to part on amicable Respondent met with SA Saenz, first transcripts associated with Respondent’s terms.’’ (Tr. 460; see Tr. 462.) asking her age and how she hurt herself. treatment of three undercover agents posing GS Langston 41 testified to participating in (Gov’t Ex. 16 at 4.) She stated she was thirty- as patients on February 16, 2010, and March an investigation of Respondent by obtaining four and that she injured herself a week 10, 2010. (See Tr. 321–22, 353–54.) from Wood’s Pharmacy in Margate, Florida earlier by lifting children at a daycare center (a) Dr. Glener’s Background prescriptions written by Respondent at where she worked. (See Gov’t Ex. 16 at 4; CCHM. (Tr. 89–90; see Gov’t Ex. 20.) GS Gov’t Ex. 18 at 1.) SA Saenz indicated she Dr. Glener, a physician, has practiced in St. Langston recovered the following was taking ‘‘Tones, Dones’’ (Gov’t Ex. 16 at Lucie, Florida since April 2002. (Tr. 306, prescriptions: 90 Percocet 10 mg tablets and 7), which Respondent identified at hearing as 308–09.) He has practiced medicine for 220 Roxicodone 30 mg tablets, dated April 6, slang for oxycodone. (Tr. 445.) Similarly, SA twenty-two years and pain medicine since 2010, for patient [C.C.] of Wallingford, Saenz’s patient paperwork indicates that she 1993, and presently treats between six Kentucky (Tr. 90, 95); 100 Roxicodone 15 mg was taking Roxicodone 40 mg tablets eight hundred and one thousand patients. (Tr. tablets and 210 Roxicodone 30 mg tablets times per day, oxycodone 15 mg tablets three 309.) Dr. Glener has been board certified by times per day and 2 mg Xanax tablets twice the American Board of Anesthesiology since per day. (Gov’t Ex. 18 at 8.) Her urine drug 40 Respondent did not ask SA Saenz if she would April 1995 and the American Board of Pain 43 participate in a clinical research project when she screen, however, was negative for oxycodone. Medicine since February 2005. (Tr. 307– visited him at CCHM, posing as a patient. (Tr. 461.) (Gov’t Ex. 18 at 18; Tr. 446.) 41 GS Langston testified to serving as a diversion SA Saenz also told Respondent that she 43 Dr. Glener itemized the prerequisites of group supervisor for the DEA for two years, where had not seen any doctor for medicines. (Gov’t certification from the American Board of she manages a group of DIs in Palm Beach County, Anesthesiology to include graduating from an Broward County and five other counties. (Tr. 88.) 42 The following summary of SA Saenz’s accredited medical school, possessing an She previously worked for approximately thirteen undercover visit to CCHM is supplemented in a unrestricted medical license, completing an years as a DI and has worked for the DEA for later section of this Recommended Decision by internship in one of five categories, accumulating approximately sixteen years. (Tr. 88–89.) additional findings of fact and conclusions of law. Continued

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08.) After graduating from New York Medical opinion. In fact, I could tell you with attempts to obtain the patients’ prior medical College in 1989, Dr. Glener completed an certainty it would not change my opinion.45 records in the interim. (Tr. 314–15.) internship in general surgery and a residency (Tr. 344.) Dr. Glener testified that except in ‘‘extraordinary circumstances,’’ he would not in anesthesiology. (Tr. 309–10; see Gov’t Ex. In partial mitigation, Dr. Glener explained likely prescribe controlled substances to a 21.) He later worked at two anesthesiology that the existence of a treatment plan in a file patient who had not provided medical practices. (Tr. 309.) In addition to being a associated with a patient’s subsequent visit records. (Tr. 315.) Dr. Glener further testified member of the American Society of would not alter his findings regarding that he would inquire what other physicians Interventional Pain Physicians and its Respondent’s conduct ‘‘because at the time the patient has seen, and would consult the subsidiary Florida Society of Pain the prescription was made, it is incumbent assembled medical records, which he noted Physicians, Dr. Glener is a clinic assistant upon the physician to outline a treatment professor at Florida State University School ‘‘sometimes have very little clinical value’’ if plan * * * I don’t get that out of guidelines. they are irrelevant to the pain complaint. (Tr. of Medicine and an associate professor at the That’s called being a physician and those of University of Central Florida School of 316–17.) us who are qualified to practice know that.’’ Dr. Glener testified that in his practice ‘‘I Medicine. (Tr. 311.) He stays apprised of (Tr. 345.) Although this statement reflects a developments in the field of pain take a history. * * * I ask [patients] to show legitimate basis for concluding that me where they’re having their pain and I ask management by reviewing journals, speaking subsequent medical records would be with colleagues, attending meetings of the them what’s the quality of the pain, and I irrelevant to evaluating whether help them along with a few adjectives if Florida Society of Interventional Pain Respondent’s previous documentation Physicians and completing continuing they’re at a loss for words.’’ (Tr. 317.) He tries practices were adequate, Dr. Glener’s tone to ‘‘ascertain what increases the pain, what medical education courses. (Tr. 311–12.) and demeanor at hearing corresponding to Upon the Government’s unopposed motion, decreases the pain, what other therapies they his comment about ‘‘those of us who are may have had * * * what medications have I qualified Dr. Glener as an expert witness in qualified to practice’’ did not reflect the the area of pain management. (Tr. 312–13.) been tried and failed.’’ (Tr. 317.) Dr. Glener completely dispassionate observations of an further explained that ‘‘I can’t say, well, the (b) Weight of Dr. Glener’s Testimony objective reviewer.46 patient uttered the word ‘pain,’ therefore, I’m At hearing and in his post-hearing filings, In light of the evidence that Dr. Glener entitled and I should be prescribing a Respondent raised the issue of whether Dr. displayed a degree of prejudice or bias controlled substance.’’ (Tr. 396.) Glener possessed bias or prejudice against against Respondent, an initial issue is what After taking a patient history, Dr. Glener Respondent. (E.g., Resp’t Br. 13–14, 27.) weight to give Dr. Glener’s testimony against completes a physical examination, to include Respondent argues that Dr. Glener displayed Respondent, of whom Dr. Glener was examination of the body system relevant to ‘‘textbook bias and prejudice[,] which unfailingly critical.47 Having considered all the patient’s pain complaint.50 (Tr. 316.) He substantially diminished the credibility of the evidence, and as further discussed below, also records ‘‘a complete medical history, Dr. Gleaner [sic] and the weight to be given I find Dr. Glener’s testimony to be generally current medications, previous medical his testimony.’’ (Resp’t Br. 27.) credible notwithstanding any prejudice or problems, previous surgeries [and] allergies.’’ A review of the record reveals some bias, because it is wholly consistent with and (Tr. 316.) Additionally, Dr. Glener records ‘‘a evidence of bias on the part of Dr. Glener. For is supported by the objective evidence of complete history of present illness which is instance, when asked on cross-examination record.48 really the who, what, where, when and why whether he would ‘‘render an opinion [about (c) Dr. Glener’s Practice and Testimony of their pain.’’ (Tr. 316.) Respondent] before looking at the materials’’ Regarding the Florida Standard of Care Following these steps, Dr. Glener forms a differential diagnosis and orders appropriate relating to Respondent, such as patient files Dr. Glener testified that sixty percent of his diagnostic studies, if necessary, and and undercover recordings (Tr. 342), Dr. patients are of retirement or Medicare age, recommends a treatment plan. (Tr. 318.) He Glener responded as follows: and that he sees all different pain complaints. It’s not that I would leap to conclusions, but ‘‘discuss[es] the most common side effects (Tr. 313.) The majority of his patients are and adverse events that can occur as well as with all of these cases that I’ve reviewed in referred to him by other physicians, who totality for both the state and a couple for the the benefit’’ from proposed medications, provide Dr. Glener with patients’ medical although he ‘‘do[es]n’t go through every federal government now, I’ve seen a pattern records.49 (Tr. 313–14.) With the exception of emerge and there have been problems every possible side effect right down to one or two existing patients under emergency percent incidents * * * .’’ (Tr. 318.) single time I’ve reviewed them. So while I circumstances, Dr. Glener never sees walk-in Dr. Glener emphasized that it is extremely couldn’t say with certainty or testify to that patients. (Tr. 314.) Instead, new walk-in important to document a patient’s medical fact, I would say there would be a very high patients are scheduled for future history, physical exam, diagnosis, treatment likelihood there’d be something appointments and Dr. Glener’s office plan and discussion of risks and benefits,51 inappropriate going on with Respondent’s adding that it is the standard of care, ‘‘the prescribing practices.44 45 Moreover, when asked if it was important to law and it’s appropriate medical practice.’’ 52 (Tr. 343.) Dr. Glener ultimately testified that review the complete medical files of the patients he (Tr. 318–319.) Dr. Glener allowed that the based on his review of Respondent’s medical was asked to analyze, Dr. Glener answered in the medical record need not appear like a files, Respondent was incompetent as a negative. (Tr. 343.) transcript from a court proceeding, but 46 physician. (See Tr. 357.) After opining that Respondent’s behavior was should be a ‘‘useful tool’’ reflecting ‘‘a cogent In addition, when asked if he knew consistent with that of a pill-mill physician (Tr. record of what has transpired, what the whether his expert review of Respondent’s 352), Dr. Glener was asked on cross-examination ‘‘Would it also be fair to say that you don’t like physician was thinking at the time.’’ (Tr. medical files was based on complete records, what you call pill mill doctors?’’ (Tr. 353.) Dr. 319.) In case the patient later moves to a Dr. Glener stated: Glener responded: ‘‘I don’t like what they do, I I can’t say with certainty if the file is don’t like what they represent, I don’t like the 50 ‘‘If there was a question to their overall health,’’ complete or not. I asked for materials; damage they inflict on society and individuals in Dr. Glener testified, ‘‘then I’d probably listen to materials were provided. Other medical the practice of medicine as a whole, but other than their heart, maybe their lungs.’’ (Tr. 316.) records to these people or files may exist but that, I’m sure they’re great people.’’ (Tr. 353.) 51 Dr. Glener finds it more effective to conduct an 47 I would strongly doubt it would change my Dr. Glener testified at one point that ‘‘I was just oral discussion of risks and benefits of opioid trying to illustrate that the doctor’s incompetent, therapy, but conceded that not all doctors rely on not that he—whether he was or—treating pain. verbal consent. (Tr. 399.) If he were to use a written three years of training in anesthesiology and * * * [H]e’s clearly incompetent.’’ (Tr. 357.) consent form, however, he testified that he would passing written and oral examinations. (Tr. 307.) 48 For instance, as discussed below, Dr. Glener’s ensure its completeness. (Tr. 399.) The certification process for the American Board of observations about missing documentation are fully 52 Dr. Glener testified that taking the patient’s Pain Medicine is slightly different, in ways not supported by the objective evidence of record, to medical history, performing a physical exam, pertinent to the instant proceeding. (See Tr. 308.) include patient files and undercover recordings. formulating a diagnosis and treatment plan and 44 Dr. Glener conceded that he was unfamiliar 49 Dr. Glener explained that he obtains patients’ discussing risks and benefits of a treatment plan is with Respondent before the Government asked him prior medical records if they have not already been essential whether or not treating a patient with to testify. (Tr. 321). provided. (Tr. 313.) controlled substances. (Tr. 319.)

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different physician, ‘‘it’s incumbent upon diagnostic, therapeutic or laboratory results (Tr. 467.) He elaborated that ‘‘a treatment [the physician] to document [the physician’s] (Tr. 377–78), Dr. Glener called Respondent’s objective begins the treatment plan and that thought process * * *.’’ (Tr. 319.) histories and physical examinations develops over time.’’ (Tr. 467.) Dr. Glener does not treat all his patients ‘‘perfunctory.’’ (Gov’t Ex. 22 at 2.) He further In addition, Respondent testified that he no with controlled substances. (Tr. 319–20.) He testified that Respondent ‘‘did not by longer works at any pain management recognizes, however, that ‘‘[t]he Florida professional standards perform a proper facilities other than MEC, and that ‘‘I don’t Board of Medicine considers prescribing or evaluation as has been defined by my have any plans to ever do that again.’’ (Tr. dispensing controlled substances for pain to medical training and experience.’’ (Tr. 378.) 448.) He testified that he would be willing to be for a legitimate medical purpose if based In addition, Dr. Glener testified that every enter into an agreement with the Government on accepted scientific knowledge of the time a physician prescribes an opioid, there that he would never work in a pain clinic treatment of pain or if based on sound should be a treatment plan. (Tr. 382.) Dr. and that he would never prescribe Schedule clinical grounds.’’ (Gov’t Ex. 22 at 2.) As Glener testified that with respect to all three II opioid narcotic controlled substances.58 alternative therapies to controlled undercover patients, Respondent did not (Tr. 452–53.) substances, Dr. Glener recommends discuss the risks and benefits of medications Finally, Respondent testified that while stretching, over-the-counter drugs, physical he prescribed; did not take the appropriate working at APM and CCHM, he turned away therapy, chiropractic and massage therapy, history; did not perform an appropriate interventional pain procedures,53 nerve a large number of patients ‘‘that I thought physical examination; did not document a blocks and referral to the appropriate medical might have issues with medications, issues specialist.54 (Tr. 320.) treatment plan other than the prescription of potentially with the injection of medications controlled substances; 56 and did not indicate and so forth,’’ to include patients presenting (d) Dr. Glener’s Review of Respondent’s a rationale for treatment. (Tr. 334–35, 379.) with track marks. (Tr. 500.) Patient Files, Generally Dr. Glener concluded that ‘‘[a]fter IV. Discussion Dr. Glener reviewed patient files, audio reviewing the totality of the above three recordings and transcripts reflecting patient encounters, Dr. Casanova has A. The Applicable Statutory and Regulatory consultations with Respondent by DEA established a pattern of behavior that Provisions Special Agents using the undercover names indicates he regularly prescribes controlled The CSA provides that any person who Julia Sanchez, Eugene O’Neil, and Alfredo substances outside the usual course of dispenses (including prescribing) a 55 Mondego. (See Tr. 321, 353–54; Gov’t Ex. professional practice or for other than a controlled substance must obtain a 14.) His review of the patient files pertained legitimate medical purpose.’’ (Gov’t Ex. 22 at registration issued by the DEA in accordance to the adequacy of Respondent’s performance 2.) As to all three patients, Dr. Glener with applicable rules and regulations.59 ‘‘A across elements such as history of present testified that ‘‘the treatment definitely prescription for a controlled substance to be illness, physical examination, medical and deviated from the standard of care, was not effective must be issued for a legitimate surgical history, family history, social history appropriate in all cases and the focus of medical purpose by an individual and possibly a review of systems, with treatment appeared to be the prescription of practitioner acting in the usual course of his reference to the Florida Standards for the Use controlled substances.’’ 57 (Tr. 324–25.) professional practice. The responsibility for of Controlled Substances for the Treatment of the proper prescribing and dispensing of Pain (Florida Standards), Fla. Admin. Code 6. Additional Aspects of Respondent’s Professional History and Outlook controlled substances is upon the prescribing Ann. r. 64B8–9.013 (2003). (Tr. 322–23; Gov’t practitioner’’ with a corresponding Ex. 22 at 2; see Gov’t Ex. 23.) Based on his In addition to his employment history as responsibility on the pharmacist who fills the review, Dr. Glener prepared a report (see summarized previously, Respondent testified prescription.60 It is unlawful for any person Gov’t Ex. 22) and concluded that ‘‘[i]n all of that he gained experience dealing with acute to possess a controlled substance unless that the cases, the doctor prescribed controlled and chronic pain patients and treating them substance was obtained pursuant to a valid substances outside the usual course of with opioids while working at Westchester prescription from a practitioner acting in the professional practice or for other than a Hospital in Florida. (Tr. 414.) During this course of his professional practice.61 Federal legitimate medical purpose.’’ (Tr. 338–39.) time he familiarized himself with the Florida law also provides a detailed framework for Dr. Glener called the level of Standards. (Tr. 414.) With respect to the three keeping records of controlled substances a documentation in Respondent’s patient files undercover patients at CCHM and APM, practitioner orders, receives and dispenses. ‘‘substandard,’’ ‘‘cookie cutter’’ and ‘‘very Respondent testified that he executed a E.g., 21 C.F.R. §§ 1304.11, 1304.21, 1304.22. sketchy.’’ (Tr. 337.) He opined that with treatment objective, not a treatment plan: respect to each patient, Respondent ‘‘did not In addition, I conclude that the reference in Q: And you’ve testified that you executed a support the need for controlled substances 21 U.S.C. § 823(f)(5) to ‘‘other conduct which treatment plan, isn’t that true? with appropriate documentation establishing may threaten the public health and safety’’ A: The treatment objective. a valid medical need and treatment plan.’’ would as a matter of statutory interpretation Q: You executed a treatment objective? (Gov’t Ex. 22 at 2.) He criticized Respondent logically encompass the factors listed in A: Correct. 62 for prescribing controlled substances ‘‘rather § 824(a). Q: And why didn’t you execute a treatment than refer[ring] to [a] physician with the B. The Public Interest Standard plan? appropriate expertise’’ to include a physical A: Because as I’ve mentioned previously, a The CSA, at 21 U.S.C. § 824(a)(4), provides, therapist, orthopedic surgeon, physiatrist, treatment plan is something in my insofar as pertinent to this proceeding, that neurologist, neurosurgeon or interventional the Administrator may revoke a COR if she pain specialist’’ (Gov’t Ex. 22 at 2) and opinion that differs from other physicians. I believe that a treatment finds that the registrant’s continued testified that there was no record that registration would be inconsistent with the Respondent made any such referrals. (Tr. plan doesn’t happen over one visit, it happens over time when you garner all public interest as that term is used in 21 336–37.) Although acknowledging that the U.S.C. § 823(f). In determining the public patient files contained medical histories and the information and collect all the data and put it together and slowly but surely interest, the Administrator is required to consider the following factors pursuant to 53 whittle things down and put everything An interventional pain procedure is ‘‘where I together. Section 823(f): actually do a procedure to make the patient better instead of giving [her] a medication or a 58 noninvasive therapy * * *. It involves the spine 56 The only exception Dr. Glener noted was that Respondent also testified that he ‘‘could and at least a three and a half-inch needle, but it’s Respondent prescribed ‘‘an inappropriate consider’’ agreeing not to prescribe Schedule III not exclusive to that.’’ (Tr. 320.) combination of high doses of nonsteroidals and controlled substances, and that he would be willing 54 Dr. Glener testified that the appropriate steroidal medications * * * with a to agree not to prescribe Schedule II–III medications medical specialist is often an orthopedic surgeon, recommendation for an Icy Hot patch’’ to SA Saenz. for a limited period of years. (Tr. 499, 502.) neurologist, neurosurgeon, physiatrist, internist or (Tr. 335.) 59 21 U.S.C. § 822(a)(2); 21 U.S.C. § 802(10). infectious disease specialist. (Tr. 320.) 57 Dr. Glener provided additional and specific 60 21 C.F.R. § 1306.04(a). 55 These materials reflect undercover visits to see analysis of Respondent’s prescribing practices with 61 21 U.S.C. § 844(a). Respondent by SA Saenz, SA Grafenstein and SA respect to each patient. This analysis is discussed 62 See Kuen H. Chen, M.D., 58 Fed. Reg. 65,401, Cortes. in a later section of this Recommended Decision. 65,402 (DEA 1993).

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(1) The recommendation of the appropriate Reg. at 15,230, weighs against a finding that inventory as of February 22, 2011, constitutes state licensing board or professional Respondent’s continued registration would a violation of these requirements. See 21 disciplinary authority. be inconsistent with the public interest. C.F.R. § 1304.11(a). (2) The applicant’s experience in Factors 2 and 4: Respondent’s Experience in (b) March 29, 2011 Discovery of McBride dispensing or conducting research with Handling Controlled Substances and Biennial Inventory respect to controlled substances. Compliance with Applicable State, Federal or Federal Regulations require that DEA (3) The applicant’s conviction record under Local Laws Relating to Controlled Substances federal or state laws relating to the registrants ‘‘take a new inventory * * * at manufacture, distribution or dispensing of As Respondent correctly argues, the record least every two years.’’ 21 C.F.R. § 1304.11(c); controlled substances. reflects that Respondent ‘‘has significant see also 21 C.F.R. § 1304.04(a) (‘‘every (4) Compliance with applicable state, experience in prescribing controlled inventory * * * must be kept by the federal or local laws relating to controlled substances. Dr. Casanova has practiced registrant and be available * * * for at least substances. medicine for approximately [twenty] years two years from the date of such inventory 66 (5) Such other conduct which may threaten and, in that time, has treated both chronic * * *’’). ‘‘The inventory may be taken the public health and safety. and acute pain and has prescribed controlled either as of opening of business or as of the As a threshold matter, the factors specified substances for the treatment of pain.’’ (Resp’t close of business on the inventory date and in Section 823(f) are to be considered in the Br. 30–31.) But the record also contains it shall be indicated on the inventory.’’ 21 disjunctive: the Administrator may properly substantial evidence that on multiple recent C.F.R. § 1304.11(a). The record reflects that rely on any one or a combination of those occasions, Respondent failed to comply with DI Graumlich conducted an accountability factors, and give each factor the weight she applicable federal and state law relating to audit of MEC on March 29, 2011, covering a deems appropriate, in determining whether a keeping records of and prescribing controlled period from November 16, 2009, to March 29, registration should be revoked or an substances. 2011. (E.g., Tr. 148, 149.) At this audit, application for registration denied. See David 1. Respondent’s Recordkeeping Practices Respondent’s staff produced a biennial inventory completed by Mr. McBride of H. Gillis, M.D., 58 Fed. Reg. 37,507, 37,508 Pursuant to federal regulations such as 21 (DEA 1993); see also D & S Sales, 71 Fed. Linear Solutions, dated November 16, C.F.R. §§ 1304.03, 1304.11(a), 1304.21(a), 2009.67 (Tr. 153–54, 163; Gov’t Ex. 19(b).) DI Reg. 37,607, 37,610 (DEA 2006); Joy’s Ideas, 1304.22(a)(2)(iv), 1304.22(a)(2)(ix), and 70 Fed. Reg. 33,195, 33,197 (DEA 2005); Graumlich testified, and the document 1304.22(c), a registered individual reflects, that the inventory does not indicate Henry J. Schwarz, Jr., M.D., 54 Fed. Reg. practitioner is required to maintain records of 16,422, 16,424 (DEA 1989). Application of whether it was taken at the opening or controlled substances in Schedules II–V that closing of the business day, in violation of 21 the public interest factors requires an are dispensed and received, including the C.F.R. § 1304.11(a). (Tr. 164, 181, 199.) The individualized determination and assessment number of dosage units, the date of receipt evidence also reflected that Respondent’s of prescribing and recordkeeping practices or disposal, and the name, address and biennial inventory did not go back a full two that are ‘‘tethered securely to state law . . . registration number of the distributor. It is years from the date of the audit. (Tr. 200.) and federal regulations.’’ Volkman v. DEA, unlawful to fail to make, keep or furnish Respondent ‘‘has not disputed the results of 567 F.3d 215, 223 (6th Cir. 2009). required records.65 Under longstanding the audit and inspection, but instead has Additionally, in an action to revoke a Agency precedent, ‘‘the failure to comply acknowledged that he will take steps to cure registrant’s COR, the DEA has the burden of with record keeping requirements is a basis the violations * * *.’’ (Resp’t Br. at 30.) proving that the requirements for revocation for revoking a registration.’’ Alexander Drug 63 Consistent with the consensus reached by the are satisfied. The burden of proof shifts to Co., 66 Fed. Reg. 18,299, 18,303 (DEA 2001) the respondent once the Government has (citing Singer-Andreini Pharmacy, Inc., 63 parties, I find that Respondent has violated 64 made a prima facie case. Fed. Reg. 4,668 (DEA 1998); Arthur Sklar, d/ 21 C.F.R. § 1304.04(a) in failing to keep a C. The Factors To Be Considered b/a King Pharmacy, 54 Fed. Reg. 34,623 (DEA biennial inventory covering a full two years 1989); Summer Grove Pharmacy, 54 Fed. of activity. Factors 1 and 3: The Recommendation of the Reg. 28,522 (DEA 1989); and The Boro (c) March 29, 2011 Audit Results Indicating Appropriate State Licensing Board or Pharmacy and Bell Apothecary, 53 Fed. Reg. Shortage and Overage Professional Disciplinary Authority and 15,151 (DEA 1988)). The CSA’s emphasis on The March 29, 2011 audit of Respondent’s Conviction Record Under Federal or State recordkeeping constitutes ‘‘‘an attempt to Laws Relating to the Manufacture, controlled substances and records covering a regulate closely the distribution of certain period from November 16, 2009, to March 29, Distribution or Dispensing of Controlled substances determined by Congress to pose Substances 2011, revealed a number of irregularities. DI dangers, if freely available, to the public at Graumlich found that Respondent was In this case, regarding Factor One, it is large.’’’ United States v. Poulin, 926 F. Supp. accountable for thirty-five bottles of undisputed that Respondent currently holds 246, 250 (D. Mass. 1996) (quoting United Guaifenesin Ac but could only account for a valid unrestricted medical license in States v. Averi, 715 F. Supp. 1508, 1510 twenty-seven, resulting in a shortage of eight Florida and has never been disciplined by (M.D. Ala. 1989)). The evidence offered at bottles or 22.86 percent. (Tr. 177, 198–99; the Florida Department of Health. (E.g., Jt. hearing reflected a number of recordkeeping Gov’t Ex. 19(e).) Moreover, with respect to Stips. 2, 3; Tr. 448–49.) Although not violations by Respondent. Hydrocodone Apap 5/500 30-count bottle, dispositive, Respondent’s possession of a (a) February 22, 2011 Absence of Biennial the audit revealed an overage of one bottle, valid unrestricted medical license in Florida Inventory at MEC thirty dosage units or 0.89 percent. (Tr. 177– weighs against a finding that Respondent’s DEA registrants are required to maintain ‘‘a 78, 197–98.) Regarding Hydrocodone Apap continued registration would be inconsistent 7.5/500 30-count bottles, the audit revealed with the public interest. See Robert A. Leslie, complete and accurate record of all M.D., 68 Fed. Reg. 15,227, 15,230 (DEA 2003) controlled substances on hand * * *.’’ 21 66 Although the Government’s prehearing (identifying state licensure as necessary but C.F.R. § 1304.11(a). They must ‘‘take a new inventory * * * at least every two years.’’ 21 statements did not explicitly cite 21 C.F.R. not sufficient condition for registration). § 1304.04, the Government did allege violations of Regarding Factor Three, there is no C.F.R. § 1304.11(c). The inventory ‘‘must be recordkeeping regulations, to include failure to evidence that Respondent has ever been kept by the registrant and be available[] for maintain complete and accurate records (see ALJ convicted under any federal or state law at least 2 years’’ from the date of its creation. Ex. 7 at 2), as well as failure to comply with relating to the manufacture, distribution or 21 C.F.R. § 1304.04(a). As noted above, the requirements for biennial inventories (see ALJ Ex. dispensing of controlled substances. (See Tr. record reflects that DI Stockmann conducted 7 at 3). In the absence of an objection by 502.) I therefore find that Factor Three, an inspection of MEC on February 22, 2011, Respondent, there is no basis to depart from the conclusion that Respondent was fairly apprised although not dispositive, see Leslie, 68 Fed. and he found ‘‘no evidence of a biennial inventory for that registered location of the ‘‘that this allegation would be litigated.’’ CBS Wholesale Distribs., 74 Fed. Reg. 36,746, 36,749 63 See 21 CFR § 1301.44(e) (2011). controlled substances on hand.’’ (Tr. 108, (DEA 2009). 64 See Medicine Shoppe—Jonesborough, 73 Fed. 128, 137.) The absence of a biennial 67 The record is unclear as to why this report was Reg. 364, 380 (DEA 2008); see also Thomas E. not made available to DI Stockmann on February Johnston, 45 Fed. Reg. 72,311, 72,311 (DEA 1980). 65 21 U.S.C. § 842(a)(5). 22, 2011.

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a shortage of five bottles, 150 dosage units or discrepancies.68 (Tr. 195.) There were no law to determine ‘whether a doctor and four percent. (Tr. 178–79, 198.) With respect discrepancies in the audit of Zolvit oral patient have established a bona fide patient to Zolpidem, the audit revealed a shortage of solution, although Respondent’s staff relationship.’’’ Id.; see also Kamir Garces- three bottles, 180 dosage units or twenty-five ‘‘originally didn’t have any records for that Mejias, M.D., 72 Fed. Reg. 54,931, 54,935 percent. (Tr. 180, 199.) but we had them get copies of their records (DEA 2007); United Prescription Services, Although various factors can contribute to from their vendor.’’ (Tr. 197.) Inc., 72 Fed. Reg. 50,397, 50,407 (DEA 2007). audit results indicating a shortage, to include (f) Conclusion With Respect to As for the principles of Florida law recordkeeping issues, theft or loss (Tr. 180), Recordkeeping applicable to this case, the Florida Standards DEA registrants are nevertheless ‘‘required to constitute, as Respondent correctly argues, The record reveals multiple violations of maintain records of all controlled drugs the ‘‘guiding law as to prescribing controlled federal recordkeeping regulations.69 This received, distributed or otherwise dispensed. substances.’’ 70 (Resp’t Br. 24, 31.) The conclusion weighs in favor of a finding under And if we have records of all the drugs Florida Standards emphasize the importance received or distributed, the account should Factors Two and Four that Respondent’s continued registration would be inconsistent of ‘‘prescribing, dispensing, [and] zero out.’’ (Tr. 180–81.) See 21 C.F.R. administering controlled substances §§ 1304.11(a) (‘‘Each inventory shall contain with the public interest. including opioid analgesics[] for a legitimate a complete and accurate record of all 2. Respondent’s Prescribing Practices at APM medical purpose[] that is supported by controlled substances on hand * * *.’’), and CCHM appropriate documentation establishing a 1304.21(a) (registrants required to keep ‘‘a complete and accurate record of each such The evidence at hearing centered in valid medical need and treatment plan.’’ Fla. substance * * * received, sold, delivered substantial part on office visits by three Admin. Code Ann. r. 64B8–9.013(1)(b) * * * or otherwise disposed of * * *.’’), undercover agents posing as patients in (2003). The Florida Standards further provide 1304.22(c) (‘‘records shall be maintained of February and March 2010. In addition to the that ‘‘[p]hysicians should be diligent in the number of units * * * dispensed testimony of two of the agents and records preventing the diversion of drugs for * * *.’’). The evidence of two shortages in associated with all three agents, the illegitimate purposes,’’ and that ‘‘prescribing Respondent’s controlled substances records, Government presented the testimony of a must be based on clear documentation of one by more than twenty percent, and one medical expert witness, Dr. Glener. Dr. unrelieved pain * * * .’’ Id. at r. 64B8– overage, is inconsistent with the requirement Glener provided a written report and testified 9.013(1)(d)–(e). In support of these to maintain accurate and complete records. as to his review of the three patient files and principles, the Florida Board of Medicine has See 21 C.F.R. §§ 1304.04(a), 1304.22(c). associated undercover recordings and adopted a list of standards for the use of medical records, opining whether controlled substances for pain control. See (d) Twenty Undated Receiving Invoices and Respondent prescribed controlled substances Two Missing Stat Rx Invoices id. at r. 64B8–9.013(3). Pertinent obligations for a legitimate medical purpose in the usual include the following: In addition to the foregoing issues, DI course of professional practice. Respondent (a) Evaluation of the Patient. A complete Graumlich testified that approximately also testified as to his standard of care and twenty of the receiving invoices provided by treatment for each of the three patients, along medical history and physical examination Respondent did not reflect the date received. with his past experience. must be conducted and documented in the (Tr. 181.) DI Graumlich gave the clinic Evaluation of Respondent’s prescribing medical record. The medical record should ‘‘several’’ opportunities to provide missing conduct in this case is governed by federal document the nature and intensity of the records, including emailing MEC’s office and state law. The applicable standard under pain, current and past treatments for pain, manager Ms. Egan after the inspection and federal law is whether Respondent’s underlying or coexisting diseases or asking whether the clinic had located the prescriptions for controlled substances were conditions, the effect of the pain on physical missing documents. (Tr. 202.) He again ‘‘issued for a legitimate medical purpose by and psychological function, and history of requested invoices, ‘‘and we were never an individual practitioner acting in the usual substance abuse. The medical record should provided with any other documents. course of his professional practice.’’ 21 C.F.R. also document the presence of one or more According to Ms. Egan, I believe they could § 1306.04(a) (2011). This standard of care recognized medical indications for the use of not find the other binder.’’ (Tr. 194.) DI refers to that generally recognized and a controlled substance. Graumlich further testified that the March 29, accepted in the medical community rather (b) Treatment Plan. The written treatment 2011 audit revealed ‘‘two receiving invoices than a standard unique to the practitioner. plan should state objectives that will be used that they did not have a record of and we Robert L. Dougherty, M.D., 76 Fed. Reg. to determine treatment success, such as pain found that out when we got a printout of 16,823, 16,832 n.11 (DEA 2011) (citing Brown relief and improved physical and their receipts from Stat Rx, their distributor v. Colm, 11 Cal.3d 639, 642–43 (1974)). psychosocial function, and should indicate if * * *.’’ (Tr. 182.) Although state law is a relevant factor in any further diagnostic evaluations or other Federal regulations require that determining whether a practitioner is acting treatments are planned * * * . practitioners ‘‘shall maintain on a current in the ‘‘usual course of professional (c) Informed Consent and Agreement for basis a complete and accurate record of practice,’’ it is appropriate in the context of Treatment. The physician should discuss the [controlled substances] received * * *, ’’ 21 an inquiry under federal law to also consider risks and benefits of the use of controlled C.F.R. § 1304.21(a), further providing that ‘‘generally recognized and accepted medical substances with the patient * * * . ‘‘[i]n recording dates of receipt * * * the practices’’ in the United States. Bienvenido * * * * * date on which the controlled substances are Tan, M.D., 76 Fed. Reg. 17,673, 17,681 (DEA actually received * * * shall be used as the (e) Consultation. The physician should be 2011). Moreover, ‘‘[u]nder the CSA, it is willing to refer the patient as necessary for date of receipt or distribution of any fundamental that a practitioner must documents of transfer (e.g., invoices or additional evaluation and treatment * * * . establish a bona fide doctor-patient packing slips).’’ Id. at § 1304.21(d). Special attention should be given to those relationship in order to act ‘in the usual Respondent’s failure to indicate the date pain patients who are at risk for misusing course of * * * professional practice’ and to received on approximately twenty receiving their medications and those whose living issue a prescription for a ‘legitimate medical invoices constitutes a violation of 21 C.F.R. arrangements pose a risk for medication § 1304.21. Moreover, the evidence that purpose’ as required by 21 C.F.R. misuse or diversion * * * . Respondent had no records of two receiving § 1306.04(a).’’ Gilbert Eugene Johnson, M.D., (f) Medical Records. The physician is invoices from Stat Rx reveals a violation of 75 Fed. Reg. 65,663, 65,666 (DEA 2010) required to keep accurate and complete the requirement to keep a current, ‘‘complete (citing Patrick W. Stodola, M.D., 74 Fed. Reg. records to include, but not be limited to: and accurate record of each such substance 20,727, 20,731 (DEA 2009) (citing United States v. Moore, 423 U.S. 122, 135, 143 * * * received, sold, delivered * * * or 70 (1975))). ‘‘The CSA generally looks to state Due to the effective dates of the applicable state otherwise disposed of * * *.’’ Id. at regulation, Florida Administrative Code Rule 64B8– § 1304.21(a). 9.013 (2003) applies to conduct between October 68 The audit reflected Respondent’s office’s (e) Evidence of Compliant Records 19, 2003, and October 16, 2010; Rule 64B8–9.013 change from using Linear Solutions to InstyMeds. (2010) applies to conduct thereafter. See generally The results of the audit with respect to the (See Tr. 156; Gov’t Ex. 19(e).) https://www.flrules.org/gateway/ InstyMeds machine reflected no 69 E.g., 21 C.F.R. §§ 1304.04(a), 1304.11(a) & (c). ruleNo.asp?id=64B8–9.013.

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1. The medical history and physical guard * * * came up to me and said that I Grafenstein testified that he did not recall examination, including history of drug abuse couldn’t talk in front of the building, but I Respondent checking him for track marks. and dependence, as appropriate; could go to the side or to the rear of the (Tr. 236. But see Tr. 34–35.) 2. Diagnostic, therapeutic, and laboratory building and continue my phone call.’’ (Tr. Another individual in the waiting area results; 230.) ‘‘mentioned that the new doctor that would 3. Evaluations and consultations; Upon returning to the waiting area, [M.B.] be coming in has a valid DEA registration so 4. Treatment objectives; approached SA Grafenstein and asked him to that whoever was seen by that doctor would 5. [D]iscussion of risks and benefits; provide a urine sample for [M.B.]’s drug test. be able to get their prescriptions filled that 6. Treatments; (Tr. 231–32.) SA Grafenstein followed [M.B.] day.’’ (Tr. 236–37.) Respondent arrived at the 7. Medications (including date, type, to the restroom, entering and partially closing clinic at approximately 4:30 or 5:00 p.m. (Tr. dosage, and quantity prescribed); the door. (Tr. 232.) [M.B.] gave SA 246.) 8. Instructions and agreements; and Grafenstein [M.B.]’s cup, and SA Grafenstein SA Grafenstein further testified that he 9. Periodic Reviews * * * . urinated into it, closed it, placed it on the overheard [M.I.] state that two hours earlier Fla. Admin. Code Ann. r. 64B8–9.013(3) sink and left. (Tr. 232.) [M.B.] then entered ‘‘he had gone home and did cocaine, not (2003). ‘‘Each case of prescribing for pain the restroom and picked up the cup and knowing that he’d have to take a drug test. will be evaluated on an individual basis.’’ submitted it as [M.B.]’s own. (Tr. 232.) No And after he learned that he ingested bleach Fla. Admin. Code Ann. r. 64B8–9.013(1)(f). staff members supervised or watched the * * * to beat the drug test.’’ 74 (Tr. 237.) restroom during this interchange. (Tr. 232.) Turning to the evidence in the instant case, Respondent later issued a prescription to SA Grafenstein later saw [M.B.] leaving the 75 the record reveals violations of federal and [M.I.] (Tr. 239–40.) clinic carrying more than one prescription. state law relating to Respondent’s prescribing SA Grafenstein also related that ‘‘[a]nother (Tr. 232.) of controlled substances to undercover agents individual in the group stated that if you SA Grafenstein also recounted that a posing as patients at APM and CCHM. failed the drug test for marijuana, you could person in the waiting area ‘‘was informing pay $50 to the drug test administrator and the (a) SA Grafenstein February 16, 2010 the group as a whole that when he had to administrator would make your hot, or your Undercover Visit to APM take his urine test * * * he had the cup in failed test, clean.’’ (Tr. 237.) The record reflects that SA Grafenstein his hand but he forgot to go to the bathroom SA Grafenstein was eventually called to visited APM in an undercover capacity on in it, so once he realized it after he was done, have his vitals taken and submit a urine February 16, 2010. (Tr. 208.) He arrived at he scooped into the toilet and just grabbed sample. (See Tr. 240.) Security did not watch approximately 1:45 p.m. and provided the a bunch of urine and water and submitted it as SA Grafenstein provided a urine sample. receptionist with a Florida driver’s license, as his drug sample.’’ (Tr. 235.) Moreover, SA (Tr. 240.) $250 and a copy of a legitimate MRI report Grafenstein testified that an unidentified The foregoing evidence regarding patient of another person’s body labeled with SA individual, who was waiting but did not conversations in the APM waiting area and Grafenstein’s undercover name. (Tr. 208, intend to see a doctor, urinated into a the lack of supervision and fabrication of 221.) He filled out patient intake forms, Gatorade bottle carried by patient [M.I.] ‘‘and drug tests, although partially based upon including forms that asked about his pain, on then they both came back together and [M.I.] hearsay, is internally consistent, contains which he indicated occasional aching and informed us all what had happened but also indicia of reliability and is generally that he was taking 180 oxycodone 30 mg showed us the Gatorade bottle full of urine, consistent with other evidence of record. The tablets. (Tr. 222; see Gov’t Ex. 10 at 3.) After which he kept in his pocket.’’ (Tr. 238.) The emerging image of APM on February 16, submitting the forms to the receptionist, SA individual who urinated in the Gatorade 2010, is that of a clinic in which patients Grafenstein sat down in the waiting area. (Tr. bottle said that he drove a patient ‘‘down to collude with one another and with staff 222.) the clinic * * * because the individual who members to fabricate desirable urinalysis Approximately fifteen people were in the was seeing the doctor told him that he would results and thereby obtain controlled waiting area when SA Grafenstein first give him half of whatever he was prescribed substances outside the usual course of arrived. (Tr. 223.) He conversed with a for driving him down [t]here.’’ (Tr. 239.) SA professional practice or for other than a patient named [M.B.]71 (Tr. 226.) SA Grafenstein testified that this behavior legitimate medical purpose. Although not for Grafenstein testified that [M.B.] remarked indicated that ‘‘the patients ran the clinic. the most part directly attributable to that it was [M.B.]’s second visit to the clinic * * * [I]f I could go in and urinate in the cup Respondent, this misconduct calls into and * * * pass it off as somebody else’s, you and that at the first visit, he waited question the legitimacy of APM as a whole. know, the patients were the ones that ran the approximately five hours before a doctor saw Approximately six hours after SA show there.’’ (Tr. 238.) him. (Tr. 227–28.) [M.B.] further indicated Grafenstein arrived at APM, Respondent After [M.B.] left, SA Grafenstein asked the that follow-up patients were always seen called SA Grafenstein into his office. (Tr. receptionist how much longer the wait would before new patients, regardless of the order 241; 247; see Gov’t Ex. 8 at 33.) SA be. (Tr. 232.) She responded that the doctor they arrived. (Tr. 228.) [M.B.] also advised Grafenstein sat approximately three feet from on the premises was only seeing follow-up SA Grafenstein to go to Rise and Shine Respondent, on the other side of a desk. (Tr. patients, but that in approximately one hour 241.) Respondent asked SA Grafenstein’s age Pharmacy in Pembroke Pines, Florida, or one-and-one-half hours, another doctor and how he hurt himself. (Gov’t Ex. 8 at 33.) because ‘‘he said that it was cheap and that would arrive.72 (Tr. 232–33.) SA Grafenstein responded ‘‘[b]asically * * * you can get whatever you wanted to get SA Grafenstein returned to the waiting kind of, sort of, maybe just from work stuff. there.’’ (Tr. 228.) [M.B.] also said to ‘‘stay area. A ‘‘female in the group stated that the So I ache in the upper and lower * * * .’’ away from a pharmacy called Generic Drug doctor that was currently there did not have (Gov’t Ex. 8 at 33.) Respondent inquired Depot, because it was very hot right now and a valid DEA registration so that anyone that whether he was in a car accident or fell, to there were cops all over the place and that had received a script from this doctor would which SA Grafenstein responded ‘‘[m]ore there were people standing outside trying to not get their prescriptions filled that day.’’ * * * like a lot of lifting, monotonous daily buy pills off the people who came, who just (Tr. 234.) He overheard someone ‘‘inquire[] to [stuff].’’ (Gov’t Ex. 8 at 34.) At hearing, SA got their prescriptions filled there.’’ (Tr. 228– the female how strict the doctor was. To Grafenstein testified that he informed 29.) Based on his training and experience, SA which she replied, not very. He also asked Respondent that he was not in any pain but Grafenstein believed [M.B.]’s remarks the female if the doctor checked for had ‘‘mainly tightness, soreness and achiness indicated that some APM patients engaged in trackmarks, and she said he had not.’’ 73 (Tr. illegal activity. (Tr. 229.) 235.) Although not dispositive, SA While waiting to be called by a doctor, SA 74 SA Grafenstein believed [M.I.] actually ingested Grafenstein stepped outside to the front of bleach. (Tr. 248.) At hearing, Respondent testified 72 SA Grafenstein testified that the initial doctor that ‘‘if you were to swallow bleach, you would get the clinic to make a phone call. (Tr. 230.) was Dr. [S.B.], who left when Respondent arrived. a severe esophagitis—You would have to require an ‘‘[W]hile I was on the phone * * * a security (Tr. 233.) immediate endoscopy and you would be acutely 73 SA Grafenstein testified that the term ‘‘track ill.’’ (Tr. 501–02.) 71 SA Grafenstein later looked up the patient’s marks’’ refers to indications of extensive 75 SA Grafenstein did not actually see the name in the Florida driver’s license database and intravenous needle usage consistent with drug prescription, but the patient said ‘‘the doctor had identified the patient by photo. (Tr. 226.) addiction. (Tr. 235–36.) hooked him up.’’ (Tr. 249.)

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[due] to a tight lower back, upper back and his patient forms and requested orally.79 (Tr. Respondent’s conduct by Respondent and by neck area.’’ 76 (Tr. at 241.) Respondent 216, 243; Gov’t Ex. 9; Gov’t Ex. 10 at 3, 4.) Dr. Glener, I find by substantial evidence that marked in SA Grafenstein’s record that his Dr. Glener opined that of the files he Respondent’s prescriptions to SA Grafenstein pain was a ten on a scale of one to ten (Gov’t reviewed associated with Respondent’s were outside the usual course of professional Ex. 18 at 18), and conceded at hearing that patients, ‘‘the most egregious is [SA practice or for other than a legitimate medical SA Grafenstein never gave him that number Grafenstein], where [Respondent] purpose, in violation of state and federal law. (Tr. 475). prescribe[d] a potentially fatal combination See 21 C.F.R. § 1306.04(a); Fla. Admin. Code Respondent told SA Grafenstein that ‘‘the of oxycodone and alprazolam 80 without any Ann. r. 64B8–9.013(1)(b). issue is that I can’t tell you anything about justification whatsoever.’’ 81 (Gov’t Ex. 22 at The record further reflects that although he your neck ‘cause you don’t have an MRI.’’ 2; see Tr. 329–30.) knew the MRI report focused on the wrong (Gov’t Ex. 8 at 34; see Tr. 241.) ‘‘The one you In response, Respondent testified that he area of SA Grafenstein’s body (see Gov’t Ex. have there tells me that you have some prescribed Xanax based on the patient’s 8 at 33; Tr. 241), Respondent did not order problems in your low back * * * It tells me representation that he was taking the a new MRI, nor did he discuss a treatment nothing about your neck.’’ (Gov’t Ex. 8 at 35.) medication, despite being aware that the plan or the risks and benefits of the patient had tested negative for both Respondent asked SA Grafenstein how bad medication he provided. (Tr. 244.) On cross- oxycodone and alprazolam.82 (Tr. 427–28, the pain was with and without medicines, on examination, SA Grafenstein conceded that 476.) Respondent also testified that he a scale of one to ten. (Gov’t Ex. 8 at 36.) At he had received and signed a Consent Form, performed an appropriate and complete hearing, SA Grafenstein testified that ‘‘I said containing a discussion of risks and benefits. history and physical examination on SA (Tr. 245; see Gov’t Ex. 10 at 9–10; see also that my tightness and soreness with Grafenstein, made findings and developed a medication was zero and without medication Tr. 429–30.) The Consent Form, however, treatment objective, and that his treatment of reflects an empty space next to the line it was a [two].’’ 77 (Tr. 242.) SA Grafenstein SA Grafenstein with controlled substances reading ‘‘Dr. Rene Casanova is prescribing testified that Respondent wrote two or three was based on sound clinical grounds, to opioid medicine * * * for a diagnosis of:’’,84 in the patient chart. (Tr. 242; see Gov’t Ex. 83 include an MRI report. (Tr. 418, 433.) I (Gov’t Ex. 10 at 9; Tr. 253) and SA 10 at 18. See generally Tr. 220.) reject Respondent’s testimony in this regard Grafenstein testified that Respondent did not Upon inquiry from Respondent, SA as not credible and inconsistent with the provide him with a diagnosis. (Tr. 253.) Dr. Grafenstein stated that standing, bending or weight of the evidence. Although Respondent Glener opined that the Consent Form is sitting made his pain worse; that he did not may have been concerned that the patient incomplete because the diagnosis is not use drugs, alcohol or cigarettes; and that he would experience withdrawal symptoms listed, but the box is checked, and because had not had surgery and had no allergies or without Xanax, Respondent conceded at no alternative treatments were listed, but that medical problems. (Gov’t Ex. 8 at 36.) hearing that he did not ask the patient when box is checked as well. (Tr. 398; see Gov’t Ex. At approximately 8:00 p.m., Respondent he had last taken the Schedule IV controlled 10 at 9.) In addition, the patient’s signature directed SA Grafenstein to sit on an substance. (See Tr. 476–77.) Moreover, is not witnessed. (Tr. 399.) The foregoing examination table. (Tr. 242, 247.) Respondent although the existence of an MRI report evidence is inconsistent with the Florida told SA Grafenstein to raise his hands (see evincing ‘‘an abutment of the nerve * * * Standards, which provide that ‘‘[t]he Gov’t Ex. 8 at 37) and inhale deeply (Gov’t that can lead to pain * * * .’’ (Tr. 419) physician is required to keep accurate and Ex. 8 at 39) while Respondent listened with suggests some medical basis for prescribing complete records * * * .’’ Fla. Admin. Code a stethoscope (Tr. 242). Respondent also an opioid analgesic, Dr. Glener credibly Ann. r. 64B8–9.013(3)(f). asked SA Grafenstein to bend over and felt testified that the combination of oxycodone Dr. Glener further opined that ‘‘[SA along SA Grafenstein’s back and neck with and alprazolam was both ‘‘egregious’’ and Grafenstein] stated his pain without his hand. (Tr. 242; Gov’t Ex. 8 at 40.) He ‘‘potentially fatal.’’ (Tr. 329; Gov’t Ex. 22 at medication was 2/10, a complaint of minimal 2.) Upon consideration of all the evidence, to asked where the pain was and performed pain, and a huge dosage of oxycodone was include the competing evaluations of reflex tests. (Tr. 242–43.) prescribed. Alprazolam 2 mg twice daily was Respondent asked SA Grafenstein whether then prescribed without documenting any he was taking medication six times a day and 79 SA Grafenstein testified that following his anxiety. Prescription of other psychotropic whether ‘‘that seems to work out good for meeting he checked out with the receptionist, who medication or referral to a mental health you?’’ (Gov’t Ex. 8 at 42.) SA Grafenstein gave him prescriptions and scheduled a follow-up appointment for March 16, 2010. (Tr. 244.) There professional was not considered.’’ (Gov’t Ex. responded in the affirmative 78 and stated 22 at 2; see also Tr. 333.) Respondent further that he was also taking Xanax. (Gov’t Ex. 8 is no indication that SA Grafenstein kept the appointment. conceded that he did not refer SA at 42; Tr. 243.) Respondent inquired ‘‘how 85 80 Regarding his comment as to the dangers of Grafenstein to a specialist. (Tr. 476.) much Xanax are you taking? ‘Cause it didn’t prescribing alprazolam 2 mg tablets with oxycodone Respondent’s conduct is inconsistent with get put on there, but I’ll, I’ll get it for you.’’ 30 mg tablets six times daily, Dr. Glener remarked Florida Administrative Code Rule 64B8– (Gov’t Ex. 8 at 42.) SA Grafenstein responded that ‘‘[t]he potential for disaster is very high * * * 9.013(3)(e), which provides that ‘‘[t]he that he was taking about sixty. Id. .’’ (Tr. 332.) He explained that ‘‘most people would physician should be willing to refer the Respondent issued SA Grafenstein be rendered unconscious and very many of those patient as necessary for additional evaluation prescriptions for 180 Roxicodone 30 mg people would die from using the medications as prescribed so they are almost certainly being and treatment * * * .’’ Fla. Admin. Code tablets and 60 Xanax 2 mg tablets, reflecting Ann. r. 64B8–9.013(3)(e). the medications SA Grafenstein indicated on diverted on that basis.’’ (Tr. 330.) In Dr. Glener’s opinion, a dosage of .25 or possibly .5 milligrams The record reflects additional irregularities of alprazolam would be more appropriate because in Respondent’s treatment of SA Grafenstein. 76 A transcript of the undercover recording ‘‘there is really little indication for the ongoing Consistent with his report, Dr. Glener reflects that SA Grafenstein described his pain as prescription of large doses of a short-acting testified at hearing that he found it ‘‘[a] lot of pain. My upper is bother me [sic], a little benzodiazepine * * * . Most physicians will use a interesting that SA Grafenstein stated that his sore. My lower, nothing that’s * * * like long-acting benzodiazepine if they even feel one is pain was two out of ten, ‘‘which is extremely necessary.’’ (See Tr. 330–31.) excruciating * * * .’’ (Gov’t Ex. 8 at 34.) The audio mild pain’’ and ‘‘the very definition of recording of the conversation is inconsistent with 81 Dr. Glener further explained: ‘‘Dr. Casanova the transcript with regard to SA Grafenstein’s makes no notation that the patient is experiencing tenderness.’’ (Tr. 328–29; see also Tr. 393 reference to ‘‘[a] lot of pain’’, and is consistent with anxiety in his Review of Systems, the only reason (describing difference between pain and SA Grafenstein’s testimony that he did not use the to prescribe this medication.’’ (Gov’t Ex. 22 at 2.) word pain. (Gov’t Ex. 7, UC Audio Pt 2.002 at 82 In mitigation, Respondent explained that 84 The Consent Form also reflects an empty space 19:51:43–19:52:00. alprazolam has a short half-life and can quickly next to the line reading ‘‘[t]he other alternatives 77 In fact, the record of the undercover visit vanish from a person’s system, meaning that discussed include acupuncture, massage’’ (Gov’t Ex. reflects that Respondent asked SA Grafenstein to patients ‘‘can potentially experience some 10 at 9), and Respondent did not discuss ‘‘[g]ive me a number’’ to which SA Grafenstein withdrawal’’ to include a risk of seizure. (Tr. 428.) acupuncture, massage or any other alternative responded ‘‘Two.’’ (Gov’t Ex. 8 at 36.) 83 For instance, he identified findings in the MRI treatments with SA Grafenstein. (Tr. 253–54.) 78 Consistent with the transcript of the visit, SA report evincing ‘‘an abutment of the nerve * * * 85 Respondent explained that he intended to Grafenstein completed a patient form indicating he that can lead to pain * * * .’’ (Tr. 419.) He ‘‘make some decisions relative to consultations or was currently taking 180 oxycodone 30 mg tablets. concluded that the patient was suffering from low- referrals’’ at a follow-up visit. (Tr. 476.) There was (Gov’t Ex. 10 at 3 & 4.) back pain and occasional neck pain. (Tr. 422–23.) no follow-up visit.

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tenderness).) Dr. Glener wrote that Substantial evidence supports a finding that it’s getting * * * worse.’’ (Gov’t Ex. 12 at 2– Respondent ‘‘found lower lumbar tenderness Respondent’s prescription of controlled 3.) on physical examination, also noting ‘pain substances to SA Grafenstein lacked a Although there had not yet been any with palpation,’ indicating that he does not ‘‘legitimate medical purpose * * * that is discussion of medication and SA Cortes did understand that this is the definition of supported by appropriate documentation not indicate he was taking any medication on tenderness.’’ (Gov’t Ex. 22 at 1.) At hearing, establishing a valid medical need and his Pain Assessment Form (Gov’t Ex. 14 at 2), Dr. Glener elaborated that ‘‘I was just trying treatment plan,’’ in violation of Florida Respondent asked how long SA Cortes had to show that even a medical student knows Administrative Code Rule 64B8–9.013(1)(b) been taking ‘‘these medications’’ and then what that means and what kind of expertise (2003), and was outside the usual course of asked ‘‘Are you taking? You didn’t write could this doctor have if he doesn’t even professional practice, in violation of 21 anything.’’ (Gov’t Ex. 12 at 3.) SA Cortes know something a first-year medical student C.F.R. § 1306.04(a). asked if his responses were confidential, to which Respondent answered in the would know.’’ (Tr. 394–95.) He also wrote (b) SA Cortes February 16, 2010 Undercover affirmative. (Gov’t Ex. 12 at 3.) SA Cortes that Respondent ‘‘[w]ould not evaluate [SA Visit to APM Grafenstein]’s neck because he had no MRI explained that he had been taking Tylenol report, consistent with a common belief SA Cortes visited APM in an undercover and his girlfriend’s hydrocodone left over among ‘pill mill’ doctors that having capacity on February 16, 2010, and wore a from her gallstone surgery.91 (Gov’t Ex. 12 at pathology on an MRI report somehow functioning concealed audio recording 3–4; Tr. 276.) Respondent asked how the justifies the prescription of controlled device. (Tr. 257–58, 263.) He submitted new medication worked for him and how many substances.’’ 86 (Gov’t Ex. 22 at 2.) patient paperwork, provided a fictitious MRI he was taking per day. (Gov’t Ex. 12 at 4.) SA 88 At hearing, Respondent asserted that SA report and undercover Florida driver’s Cortes responded in the affirmative and Grafenstein’s medical file contains a physical license and picked up a business card for indicated ‘‘only about one (1) or two (2) a examination, history of drug abuse and Simfa Rose pharmacy. (Tr. 272–73; see Tr. day.’’ (Gov’t Ex. 12 at 4.) Respondent dependence and diagnostic, therapeutic and 268–69.) He intentionally left blank the attempted to identify the strength of the laboratory results as required by the Florida section of the paperwork inquiring about dosage, and SA Cortes identified the Standards. (Tr. 423.) He argued that it is current medications. (Tr. 265.) He also medication as a white oval tablet. (Gov’t Ex. difficult to develop a treatment plan over the checked a box indicating that he was not in 12 at 5; Tr. 277.) Respondent asked if he course of a single visit and instead, a pain. (Tr. 266; see Gov’t Ex. 14 at 3.) After experienced any side effects and SA Cortes treatment plan slowly progresses over time. paying for the visit, SA Cortes waited in the said he felt woozy for a couple of days but (Tr. 425–26.) Although I accept Respondent’s waiting area for approximately five-and-one- the wooziness wore off. (Gov’t Ex. 12 at 5.) 89 testimony that a treatment plan progresses half hours. (Tr. 265, 273.) Contrary to SA Cortes’s statements to over time, Respondent was still bound to During his wait, a staff member named Respondent that he had been taking his document a treatment plan compliant with Jeremiah Flowers conducted triage girlfriend’s hydrocodone, SA Cortes’s urine the Florida Standards 87 before issuing a procedures to include measuring blood drug screen tested negative for that prescription for controlled substances. See pressure and weight and performing a controlled substance. (See Tr. 482; see also Robert L. Dougherty, M.D., 76 Fed. Reg. urinalysis. (Tr. 273–74.) There was no Gov’t Ex. 14 at 1.) Moreover, Dr. Glener 16,823, 16,832 n.11 (DEA 2011) supervision while SA Cortes provided a testified that ‘‘when someone admits to (practitioner’s standard of care refers to that urine specimen. (Tr. 274.) Mr. Flowers felonious behavior in my office, that certainly generally recognized in medical community, evaluated the urine drug test in SA Cortes’s would prompt a follow-up.’’ (Tr. 396.) By rather than standard personal to practitioner). presence, stating that the test was negative, contrast, Respondent offered that he did not Respondent also explained that he had meaning no opioids or controlled substances ask SA Cortes when he had last taken his girlfriend’s hydrocodone because ‘‘based on inadvertently transposed numbers on SA were detected. (Tr. 274–75.) SA Cortes’s the information from the drug screen, given Grafenstein’s history and physical testimony regarding the absence of the half-life of the medicine and so forth, you examination form, erroneously indicating supervision during his urine drug screen is can sort of backtrack that information.’’ 92 that SA Grafenstein’s pain while on consistent with, and tends to corroborate, (See Tr. 482.) Nor did he inquire whether SA medication was a ten and his pain without other evidence of record indicating that APM Cortes had obtained a prescription for medication was a two or three, on a scale of did not carefully supervise urine drug 90 hydrocodone from another doctor. (Tr. 482.) one to ten. (See Tr. 474; see also Gov’t Ex. screens, among other deficiencies. Respondent testified that the information SA 10 at 18.) Although apparently inadvertent, After SA Cortes had waited more than five Cortes gave him was privileged 93 and that Respondent’s inaccurate notation in SA hours, Respondent called him into his office. Grafenstein’s patient file is inconsistent with (Tr. 273, 275.) Respondent directed him to sit 91 the Florida Standards. See Fla. Admin. Code across from him at a desk, approximately SA Cortes acknowledged on cross-examination Ann. r. 64B8–9.013(3)(f) (‘‘[t]he physician is three feet away. (Tr. 275.) Respondent asked that his statement to Respondent that he was taking opioids was false and was part of the undercover required to keep accurate and complete SA Cortes how old he was and how he hurt himself. (Gov’t Ex. 12 at 2.) SA Cortes operation. (Tr. 283.) records * * * .’’); see also Tr. 319 (expert 92 At the interview, SA Cortes remarked that the testimony that ‘‘it’s incumbent upon [the responded ‘‘Uh * * * not really hurt, doc. Um * * * what I’m experiencing is * * * hydrocodone prescription had run out without physician] to document [the physician’s] being renewed (Gov’t Ex. 12 at 4), but Respondent thought process * * * .’’). more and more stiffness * * * after each did not address this point at hearing. In summary, the record reveals numerous practice.’’ (Gov’t Ex. 12 at 2; Tr. 275–76.) 93 Consistent with his testimony at hearing, violations of standards and regulations Respondent asked where, and SA Cortes Respondent argues that SA Cortes’s statement that concerning Respondent’s prescribing of indicated his shoulders and lower waist. he was using his girlfriend’s hydrocodone was controlled substances in the context of SA (Gov’t Ex. 12 at 2.) Respondent asked how it privileged. (Resp’t Br. 18.) But ‘‘privileges can be Grafenstein’s undercover visit to APM. happened, to which SA Cortes responded waived if the parties affirmatively do something to that he was studying martial arts and that destroy the privilege * * * .’’ Harley v. Health ‘‘lately, more and more, after each practice, Center of Coconut Creek, Inc., 469 F. Supp. 2d 86 Dr. Glener explained that ‘‘it’s very prevalent 1212, 1212 (S.D. Fla. 2006). Therefore, assuming, * * * that physicians who are engaged in this sort arguendo, that SA Cortes held a privilege in the of practice demand an MRI in order to use that as 88 SA Cortes testified that he didn’t know contents of his communications with Respondent, what I like to call the golden ticket to prescribe anything specific about the MRI report he provided, SA Cortes waived that privilege by testifying at opioid analgesics. * * * An MRI is nothing other than that it listed his undercover name and hearing. E.g., Matter of Certain Complaints Under magical. It’s simply a diagnostic tool. Finding birth date and that it contained information about Investig. by an Investig. Cmtee. of the Judicial pathology on an MRI does not entitle any the spine or back area. (Tr. 281–82.) Council of the Eleventh Circuit, 783 F.2d 1488, 1523 practitioner to prescribe a controlled substance. 89 SA Cortes testified that he spent approximately n.32 (11th Cir. 1986) (‘‘the holder of a privilege can You need to connect the dots.’’ (Tr. 336; see also eight-and-one-half hours at APM on February 16, also waive it by permitting a breach of the privilege Tr. 364–66, 373–74.) 2010. (Tr. 273.) in his presence’’), superseded by statute on other 87 See Fla. Admin. Code Ann. r. 64B8–9.013(3)(b) 90 SA Cortes also testified that he overheard a grounds as stated in In re McBryde, 120 F.3d 519 (‘‘The written treatment plan should state objectives conversation between Mr. Flowers and an unknown (5th Cir. 1997). More importantly, Respondent that will be used to determine treatment success individual discussing different methods to inject failed to ‘‘refer the patient as necessary for * * * ’’ as well as other elements). heroin. (Tr. 275.) additional evaluation and treatment’’ or give

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because SA Cortes indicated his girlfriend’s hydrocodone pills per day (Gov’t Ex. 12 at 4; In addition, Dr. Glener testified that hydrocodone was ‘‘providing some sort of Tr. 279), Respondent said: Respondent’s prescription of hydrocodone to relief * * * my thought process was to bring CASANOVA: You said you were taking about SA Cortes was ‘‘entirely inappropriate’’ him into a plan under physician supervision three (3) or four (4) a day? because ‘‘[o]nce the patient emphasized that to provide him appropriate treatment for his S/A: Yes. [PAUSE: 00:09:02–00:09:31] [he was] having stiffness and not pain, there’s medical ailments.’’ (Tr. 435.) Having CASANOVA: Correct? * * * I’m going to no indication for treatment with an opioid carefully considered all the evidence, I find give you four (4) * * * a day. Alright? analgesic.’’ (Tr. 327.) Dr. Glener elaborated that Respondent’s reaction to SA Cortes’s S/A: Okay. that opioid analgesics are indicated for pain, confessed diversion of controlled substances CASANOVA: Alright? and that the patient’s comments suggested and his failure to follow up in the face of S/A: Hopefully that works. the existence of a muscular problem for contradictory information were inconsistent (Gov’t Ex. 12 at 9.) Respondent explained which referral to a physical therapist would with the Florida Standards, which state that that SA Cortes was to take one tablet four be appropriate. (Tr. 327.) Respondent ‘‘[p]hysicians should be diligent in conceded that he did not refer SA Cortes to times per day, and that ‘‘I gave you, uh, the 97 preventing the diversion of drugs for higher dose: the seven point five (7.5) a specialist, (Tr. 476) notwithstanding the illegitimate purposes.’’ Fla. Admin. Code milligrams.’’ (Gov’t Ex. 12 at 10; Tr. 279.) Florida standard stating that ‘‘[t]he physician Ann. r. 64B8–9.013(1)(d). Respondent issued SA Cortes a prescription should be willing to refer the patient as Respondent asked SA Cortes how bad his for 120 hydrocodone 7.5 mg tablets on necessary for additional evaluation and pain was with and without medication, on a February 16, 2010. (Gov’t Ex. 13; Tr. 277, treatment in order to achieve treatment scale from one to ten. (Gov’t Ex. 12 at 5.) SA 288.) objectives.’’ Fla. Admin. Code Ann. r. 64B8– Cortes replied that the pain was three or four At hearing, Respondent conceded that he 9.013(3)(e). while on medication. (Gov’t Ex. 12 at 6.) did not discuss the risks and benefits of the In summary, the record reveals numerous CASANOVA: With the medicines? medication because ‘‘[t]he information was violations of standards and regulations S/A: Right. provided in the documentation that is here concerning Respondent’s prescribing of controlled substances in the context of SA CASANOVA: And without? that a patient checked off and signed off.’’ 94 Cortes’s undercover visit to APM. Substantial S/A: And without * * * um * * * worse (Tr. 483.) But SA Cortes’s Consent Form evidence supports a finding that than that. I mean, I [unintelligible] reflects an empty space next to the line CASANOVA: Eight (8) or a nine (9)? reading ‘‘Dr. Rene Casanova is prescribing Respondent’s prescription of controlled S/A: Yeah * * * eight (8) or * * * opioid medicine * * * for a diagnosis of:’’ substances to SA Cortes lacked a ‘‘legitimate (Gov’t Ex. 12 at 6; Tr. 277–78.) Respondent (Gov’t Ex. 14 at 8; Tr. 267.) In addition, medical purpose * * * that is supported by asked whether SA Cortes’s pain radiated, to Respondent did not discuss a diagnosis or appropriate documentation establishing a which SA Cortes replied in the negative. (Tr. treatment plan with SA Cortes, nor did he valid medical need and treatment plan,’’ in 279.) Respondent asked SA Cortes where he document a treatment plan in the patient violation of Florida Administrative Code worked, and SA Cortes responded that he file.95 (Tr. 279–80, 486–87.) Moreover, the Rule 64B8–9.013(1)(b) (2003), and was worked the midnight shift at a warehouse, Consent Form reflects an empty space next outside the usual course of professional loading trucks. (Gov’t Ex. 12 at 6.) He stated to the line reading ‘‘[t]he other alternatives practice, in violation of 21 C.F.R. that lifting made his discomfort worse. (Gov’t discussed include acupuncture, massage § 1306.04(a). Ex. 12 at 7.) [and]:’’ (Gov’t Ex. 14 at 8), and Respondent (c) SA Saenz March 10, 2010 Undercover Respondent asked whether SA Cortes failed to discuss acupuncture, massage or any Visit to CCHM smoked, used drugs or alcohol or had any other alternative treatments with SA Cortes. The transcript of SA Saenz’s March 10, surgery, allergies or medical problems, to (See generally Gov’t Ex. 12.) As Dr. Glener 2010 undercover visit to CCHM reflects that which SA Cortes replied in the negative, observed, the Consent Form in SA Cortes’s when Respondent met with SA Saenz, he indicating only that he was allergic to patient file is incomplete because the first asked her age and how she hurt herself. aspirin. (Gov’t Ex. 12 at 7.) Respondent diagnosis is not listed, but the box is (Gov’t Ex. 16 at 4.) She stated she was thirty- directed SA Cortes to sit on an examination checked, and because no alternative four years old and that she thought she table and to inhale while Respondent treatments were listed, but that box is injured herself by lifting children at a listened to his respiration with a stethoscope checked. (Tr. 398; see Gov’t Ex. 14 at 8.) daycare center where she worked. (See Gov’t and tested his reflexes. (Tr. 278.) Respondent In light of the foregoing, I find that Ex. 16 at 4; Gov’t Ex. 18 at 1.) Respondent inquired again whether SA Cortes was taking Respondent failed to comply with the Florida stated that he assumed SA Saenz had lower hydrocodone. (Gov’t Ex. 12 at 8; Tr. 278.) SA Standards requiring that physicians maintain back pain, to which she responded ‘‘Uh-um, Cortes responded in the affirmative and that accurate and complete records, see Fla. sometimes * * * about a week’’ and it wasn’t prescribed to him, and Respondent Admin. Code Ann. r. 64B8–9.013(3)(f) (‘‘The indicated that she had hurt herself one week stated ‘‘I understand.’’ (Gov’t Ex. 12 at 9; see physician is required to keep accurate and earlier. (Gov’t Ex. 16 at 5, 8–9.) Tr. 278.) Dr. Glener testified that in complete records * * * .’’), discuss the risks SA Saenz’s patient file includes an MRI Respondent’s interaction with SA Cortes and benefits of the use of controlled report dated March 8, 2010.98 (Gov’t Ex. 18 ‘‘there really was no significant physical substances, see Fla. Admin. Code Ann. r. at 19–20.) Respondent asked if she obtained examination pertaining to the appropriate 64B8–9.013(3)(c) (‘‘The physician should the MRI two days ago, to which she organ systems * * * .’’ (Tr. 327.) Respondent discuss the risks and benefits of the use of responded in the affirmative. (Gov’t Ex. 16 at testified to the contrary (see Tr. 434), but I controlled substances with the patient find the objective evidence of record * * * .’’) and document a written treatment plan,96 see Fla. Admin. Code Ann. r. 64B8– documentation for medical records under the supports Dr. Glener’s conclusion and also Florida regulations, to include medical history, find that Respondent’s conduct was contrary 9.013(3)(f). diagnostic tests, evaluation, treatment objective and to Florida Administrative Code Rule 64B8– discussion of risks and benefits, albeit not orally 9.013(3)(f)(1), which provides that a 94 Similarly, on cross-examination, SA Cortes (Tr. 439); that the treatment plan ‘‘is formulated ‘‘physician is required to keep accurate and acknowledged that the Consent Form discusses over time with numerous visits to gather more complete records to include, but not be risks and benefits of taking opioids. (Tr. 284.) information, get all the appropriate documentation limited to * * * [t]he medical history and 95 Respondent conceded that the Florida and so forth and review all the data’’ (Tr. 439); and physical examination * * *.’’ Fla. Admin. Standards required a written treatment plan. (Tr. that his prescription of controlled substances to SA Cortes was based on accepted scientific knowledge Code Ann. r. 64B8–9.013(3)(f)(1). 486–87.) See also Fla. Admin. Code Ann. r. 64B8– 9.013(3)(f). of the treatment of pain and based on sound clinical Despite SA Cortes’s previous indication 96 I accordingly reject Respondent’s contention at grounds. (Tr. 441.) that he had been taking only one or two hearing that his treatment of SA Cortes was, on the 97 Respondent explained that he intended to whole, proper. Respondent’s assertion in this regard ‘‘make some decisions relative to consultations or ‘‘[s]pecial attention * * * to those pain patients consisted of a number of claims, some referrals’’ at a follow-up visit. (Tr. 476.) There was who are at risk for misusing their medications and demonstrably false. For instance, Respondent no follow-up visit. those who * * * pose a risk for medication misuse asserted that he formulated a treatment objective 98 Respondent had not ordered the MRI; SA Saenz or diversion.’’ Fla. Admin. Code Ann. r. 64B8– and on that basis treated the patient (Tr. 434); that brought it with her on her own accord. (See Tr. 9.013(3)(e). the medical file contains the complete required 443.)

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5.) At hearing, Respondent testified that the conduct in this regard is inconsistent with UC: I suck it up. MRI report was consistent with her Florida Administrative Code Rule 64B8– CASANOVA: So then, but that’s, those are complaints of pain. (Tr. 444.) 9.013(3)(e). two (2) different answers. At the patient interview, Respondent asked In partial mitigation, SA Saenz did confirm UC: Oh. SA Saenz ‘‘[a]re you taking any medicines for to Respondent that the medication was CASANOVA: Yes or no? this? I assume not, ‘cause it’s just a week. helping with her pain. (Gov’t Ex. 16 at 7.) UC: Uh-um, no. Right?’’ (Gov’t Ex. 16 at 5.) SA Saenz Moreover, Respondent explained at hearing CASANOVA: Does it interfere with your responded that she was taking ‘‘[i]buprofen that because SA Saenz’s urine drug screen activities? and stuff.’’ (Gov’t Ex. 16 at 5.) Respondent was negative, he was concerned she might UC: No. asked if she was taking anything else, to suffer from withdrawal symptoms. (Tr. 446.) CASANOVA: Does it interfere would mean which she responded ‘‘Uh * * * what did I But Respondent’s statement in this regard is * * * function or your ability to work. had [sic] * * * Tones, Dones’’ (Gov’t Ex. 16 not credible, as neither the transcript of UC: Not enough. at 7), which Respondent identified at hearing Respondent’s interview with SA Saenz nor (Gov’t Ex. 16 at 6.) This interchange reveals as slang for ‘‘[o]xycodone, some kind of a handwritten notes in the patient file contain Respondent’s persistence in inquiring narcotic pain medication.’’ (Tr. 445–46.) any reference to withdrawal,101 and whether SA Saenz’s pain interfered with her Consistent with this interpretation, patient physicians are required to document their ability to work, repeatedly pressing her even paperwork that SA Saenz completed thought processes in the medical record. E.g., after she indicated that the pain did not indicates she was taking Roxicodone 40 mg Tr. 319. See generally Fla. Admin. Code Ann. interfere with her lifestyle. At hearing, tablets eight times per day, oxycodone 15 mg r. 64B8–9.013(3)(f) (‘‘The physician is Respondent denied that his treatment tablets three times per day and 2 mg Xanax required to keep accurate and complete objective was to get SA Saenz back to work tablets two times per day, a not records * * * .’’). I do credit, however, and noted that SA Saenz presented as ‘‘stoic’’ inconsequential quantity of controlled Respondent’s statement that ‘‘this was with respect to her pain from an acute injury. substances. (See Gov’t Ex. 18 at 8.) An somewhat confusing that she did state just on (Tr. 443, 447.) A note in SA Saenz’s patient examination note in her patient file also tomes and domes and didn’t state anything file contains circles around the word ‘‘no’’ reflects the notion ‘‘dones.’’ (Gov’t Ex. 18 at about an anxiolytic with this piece of associated with questions whether the pain 1.) Her urine drug screen, however, was information and her drug screen was interferes with daily activities and whether negative for oxycodone. (Gov’t Ex. 18 at 18; negative.’’ (Tr. 446.) I also find that the patient needs medication to function or Tr. 446.) And, notably, SA Saenz told Respondent’s conduct is inconsistent with a work. (Gov’t Ex. 18 at 1.) Respondent that she had not seen any doctor physician’s duty to ‘‘be diligent in preventing When Respondent inquired into the for medicines (Gov’t Ex. 16 at 7; see also the diversion of drugs for illegitimate intensity of SA Saenz’s pain (Gov’t Ex. 16 at Gov’t Ex. 18 at 1), raising the questions of purposes.’’ Fla. Admin. Code Ann. r. 64B8– 7), she indicated that when she took Motrin how she obtained them and whether she was 9.013(1)(d). I moreover reject Respondent’s using them, and suggesting that she had the pain was about a three on a scale from argument that he ‘‘had no reasons to believe one to ten and without Motrin her pain was participated in the diversion or abuse of that the undercover agents were lying or controlled substances.99 about a five or a six. (Gov’t Ex. 16 at 7; see otherwise falsifying information to illegally also Gov’t Ex. 18 at 1.) Respondent inquired If Respondent had any concerns about SA obtain medication.’’ (Resp’t Br. 28.) To the Saenz’s apparent diversion or abuse of whether SA Saenz had any surgeries or contrary, by prescribing controlled allergies or had gotten any medicines from controlled substances, or irregularities in her substances (Gov’t Ex. 17) in the face of a drug statements and medical file, there is no other doctors, to which SA Saenz responded screen revealing negative results for the very in the negative. (Gov’t Ex. 16 at 7.) evidence that he voiced them. Indeed, controlled substances the patient claimed she Respondent testified at hearing that he did Respondent asked if she used drugs or was taking without a prescription, alcohol, to which she replied that she drank not ask SA Saenz how she had obtained Respondent failed to give ‘‘[s]pecial attention oxycodone and Xanax. (See Tr. 495.) This socially on occasion. (Gov’t Ex. 16 at 7–8.) He * * * to those pain patients who are at risk omission reflects a degree of willful asked about her parents’ health, and she for misusing their medications and * * * blindness by Respondent to issues of responded that her parents both had high [who] pose a risk for medication misuse or diversion, especially given that he proceeded blood pressure and her father had high diversion * * * .’’ Fla. Admin. Code Ann. r. to prescribe controlled substances to SA cholesterol. (Gov’t Ex. 16 at 8.) 64B8–9.013(3)(e). Saenz. (Gov’t Ex. 17.) Moreover, under the In addition, upon inquiry by Respondent, The record reflects that during the patient Florida Standards, ‘‘[t]he physician should be SA Saenz stated that she did not have any meeting, Respondent asked SA Saenz to willing to refer the patient as necessary for other medical problems. (Gov’t Ex. 16 at 8.) describe her pain. (Gov’t Ex. 16 at 5.) She additional evaluation and treatment in order SA Saenz’s statement in this regard to achieve treatment objectives. Special responded that the pain was dull and contradicted notations she made on her attention should be given to those pain throbbing, but was not constant, and that it medical history indicating she suffered from patients who are at risk for misusing their bothered her mostly in the morning. (Gov’t insomnia and depression. (Gov’t Ex. 18 at 6.) medications and [who] * * * pose a risk for Ex. 16 at 5–6.) At hearing, Respondent Respondent made no attempt to clarify this medication misuse or diversion.’’ Fla. testified that SA Saenz had circled a number disparity, and the record reveals no evidence Admin. Code Ann. r. 64B8–9.013(3)(e) of adjectives to describe her pain on her Pain that he was even aware of it. The Florida (emphasis supplied). In light of her negative Assessment Form (Tr. 444), to include words Standards recognize that ‘‘[t]he management drug screen, her use of slang to refer to such as ‘‘sharp,’’ ‘‘aching,’’ ‘‘tender,’’ of pain in patients with a history of substance oxycodone and her statement that she had ‘‘shooting,’’ ‘‘numb,’’ ‘‘throbbing’’ and abuse or with a comorbid psychiatric not seen a doctor for the controlled ‘‘unbearable’’ (Gov’t Ex. 18 at 8). disorder requires extra care, monitoring, and substances she admitted taking, SA Saenz’s Respondent also asked SA Saenz whether documentation, and may require consultation ‘‘risk for medication misuse or diversion’’ the pain interfered with her ‘‘daily activities, with or referral to an expert in the was patent. But at hearing, Respondent your ability to function at work.’’ (Gov’t Ex. management of such patients.’’ Fla. Admin. conceded that he did not refer SA Saenz to 16 at 6.) SA Saenz responded in the negative, Code Ann. r. 64B8–9.013(3)(e). Respondent’s a specialist (Tr. 476), and there is no simply stating ‘‘No.’’ (Gov’t Ex. 16 at 6.) failure to notice the disparity between SA indication that Respondent otherwise CASANOVA: It doesn’t? Saenz’s written and oral statements, let alone displayed ‘‘special attention’’ to her perform ‘‘extra care, monitoring and 100 heightened risk of diversion. Respondent’s 101 Gov’t Ex. 18. Respondent similarly suggested documentation,’’ is facially inconsistent with at hearing that he prescribed Xanax to SA the Florida Standards. 99 In an additional inconsistency, a medical Grafenstein out of a concern that SA Grafenstein Respondent next conducted a physical history form completed by SA Saenz indicated she would experience withdrawal symptoms without examination of SA Saenz, asking her to was not currently taking any medication. (Gov’t Ex. such a prescription. (Tr. 476–77.) Respondent uncross her legs, take a deep breath, bend 18 at 7.) conceded, however, that he never asked SA forward and indicate where she had pain. 100 Respondent explained that he intended to Grafenstein when he had last taken Xanax. (Tr. ‘‘make some decisions relative to consultations or 477.) In any event, Respondent did not adequately (Gov’t Ex. 16 at 9.) She indicated pain on her referrals’’ at a follow-up visit. (Tr. 476.) There was address the heightened risk of diversion in either left side and sensitivity in her neck. (Gov’t no follow-up visit. situation. Ex. 16 at 9.) Respondent demonstrated a

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stretching exercise and recommended an Icy fully supported by the record, I find ‘‘appropriate documentation’’); Fla. Admin. Hot patch. (Gov’t Ex. 16 at 10.) Respondent Respondent’s conduct inconsistent with Code Ann. r. 64B8–9.013(3)(b) stated he would prescribe high dose Motrin Florida Administrative Code Rule 64B8– (contemplating a ‘‘written treatment plan’’). 800 mg, an anti-inflammatory ‘‘and then I’m 9.013(3)(e), which states that a physician On the weight of the record evincing gonna write you for some narcotic pain should ‘‘refer the patient as necessary for numerous violations of laws and regulations medicine.’’ (Gov’t Ex. 16 at 11.) Respondent additional evaluation and treatment in order relating to Respondent’s prescription of prescribed 90 Motrin 800 mg tablets, 90 to achieve treatment objectives.’’ Fla. Admin. controlled substances to SA Saenz, I afford Vicodin oral 5 mg—500 mg tablets and one Code Ann. r. 648–9.013(3)(e). little weight to Respondent’s assertion that pack containing twenty-one Medrol 4 mg After Respondent had already voiced his his treatment was based on accepted tablets. (Gov’t Ex. 17.) At hearing, decision to prescribe controlled substances, scientific knowledge of the treatment of pain Respondent explained that he prescribed a he asked SA Saenz whether she had ever and was supported by sound clinical steroid to ‘‘balance[] the effects of the taken narcotics before, to which she grounds. (Tr. 447.) medications.’’ (Tr. 446.) responded in the negative. (Gov’t Ex. 16 at In summary, the record reveals numerous The record reflects that Respondent 13.) That Respondent’s inquiry into SA violations of standards and regulations documented in the patient file conversations Saenz’s history with narcotics occurred only concerning Respondent’s prescribing of that did not occur. In particular, SA Saenz’s after he had already decided to prescribe controlled substances in the context of SA patient file includes a document entitled controlled substances is striking. Saenz’s undercover visit to CCHM. ‘‘Plan’’ with handwritten check marks Additionally, SA Saenz’s statement that she Substantial evidence supports a finding that through boxes corresponding to the following had never before taken narcotics is flatly Respondent’s prescription of controlled text: contradicted by her notations in her medical substances to SA Saenz lacked a ‘‘legitimate • Discussed anti-inflammatory diet, file and her statements to Respondent that medical purpose . . . that is supported by handout given to patient she was presently taking oxycodone. (Gov’t appropriate documentation establishing a • Patient has been counseled on risks/ Ex. 16 at 7; see Gov’t Ex. 18 at 8.) valid medical need and treatment plan,’’ in benefits of medications above; Pt. Will Near the end of the meeting, Respondent violation of Florida Administrative Code take exactly as prescribed stated: ‘‘I, let me . . . let me ask you a Rule 64B8–9.013(1)(b) (2003), and was • Fish Oil/Omega-3 recommended at 3–6 question, you seem like a smart young lady. outside the usual course of professional grams per day Why, for this kind of thing, you go to a pain practice, in violation of 21 C.F.R. • Glucosamine + Chondroitin Sulfate management clinic? Why not go see a § 1306.04(a). doctor?’’ (Gov’t Ex. 16 at 13.) She replied that recommended (d) Evaluation of Expert Testimony • Strict avoidance of alcohol has been she didn’t have a doctor, and Respondent suggested she visit Respondent’s Urgent Care As discussed above, the evidence at discussed at length hearing included opinions from Dr. Glener • Recommended avoidance of soda Center on Federal Highway. (Gov’t Ex. 16 at • 13–14.) He explained that seeing him at the and Respondent regarding Respondent’s Goal is to wean off all medications has prescribing practices. Expert testimony been explained to patient CCHM pain clinic would cost $400 or more, but she could see him for free and possibly regarding a physician’s prescribing practices (Gov’t Ex. 18 at 4.) But the transcript of SA get referred to an orthopedist or physical is an important but not indispensable part of Saenz’s undercover visit with Respondent therapist if she filed for worker’s evaluating whether a practitioner is acting for contains no record of a discussion of an anti- compensation and saw him at his Urgent a ‘‘legitimate medical purpose’’ in the ‘‘usual inflammatory diet, the risks and benefits of Care Center.102 (See Gov’t Ex. 16 at 15; see course of his professional practice.’’ 103 The medications, fish oil, Omega-3 or chondroitin also id. at 11–12.) Agency has previously held that ‘‘[w]here, for sulfate. (See Gov’t Ex. 16.) And as Dr. Glener testified that Respondent’s example, the Government produces evidence Respondent conceded on cross-examination, treatment of SA Saenz ‘‘deviated from the of undercover visits showing that a physician he did not have a conversation with SA standard of care and prescription of knowingly engaged in outright drug deals, Saenz regarding risk and benefits of the controlled substances were [sic] expert testimony adds little to the proof medications he gave her, and the portions of inappropriate.’’ (Tr. 333.) Based on necessary to establish a violation of federal her Consent Form indicating a diagnosis and Respondent’s comment ‘‘Why not go see a law.’’ Cynthia M. Cadet, M.D., 76 Fed. Reg. alternative treatment options are blank. (Tr. doctor?’’ (Gov’t Ex. 16 at 13), Dr. Glener 19,450, 19,450 (DEA 2011). 496; Gov’t Ex. 18 at 15.) This conduct is opined that Respondent ‘‘admits that he is As for the opinion of a treating physician, inconsistent with Florida Standards. See Fla. functioning other than as a doctor * * * ’’ in the context of a DEA administrative Admin. Code Ann. r. 64B8–9.013(3)(c) (‘‘The while at CCHM. (Gov’t Ex. 22 at 2; Tr. 334.) hearing a treating physician’s opinion should physician should discuss the risks and Respondent testified at hearing that SA not automatically be given greater weight benefits of the use of controlled substances Saenz’s patient file contained all the items than the opinion of a non-examining with the patient.* * *’’ ) required by Section 3(f) of the Florida physician. ‘‘Despite a certain degree of Moreover, the notation in the chart that Standards. (Tr. 447.) But in light of lingering confusion among the courts of ‘‘[s]trict avoidance of alcohol has been Respondent’s concession on cross- appeals, it has become overwhelmingly discussed at length’’ is patently false, given examination that he did not document a evident that the testimony of the ‘treating that Respondent merely asked whether SA treatment plan or treatment objectives in SA physician’ receives no additional weight.’’ Saenz drank, and when she answered in the Saenz’s medical record (Tr. 490–92), the fact Eastover Mining Co. v. Williams, 338 F.3d affirmative, he asked whether she drank that the ‘‘History and Physical Examination’’ 501, 509 (6th Cir. 2003). Unlike a Social socially. (Gov’t Ex. 16 at 7–8.) There is no form describing objects of treatment and the Security benefit determination that is suggestion in the record that Respondent portions of her Consent Form describing the governed by a regulation giving deference to counseled her ‘‘at length’’ to ‘‘strictly’’ avoid diagnosis and alternative treatments are a treating physician, no such regulation alcohol. Finally, there is no support in the completely blank (Gov’t Ex. 18 at 5, 15) and pertains to a DEA administrative hearing.104 record for the assertion that Respondent the lack of a history of substance abuse or Accordingly, I have not given Respondent’s recommended that SA Saenz avoid soda or addiction as noted above, I reject this testimony greater weight simply because of that he counseled her that a goal of treatment testimony as not credible. Moreover, his status as a treating physician, particularly included weaning her off all medications. Respondent’s admission that ‘‘[t]here is no given the short duration of his treatment of (Tr. 372–73.) By substantial evidence, I find specific treatment plan . * * * ’’ (Tr. 492; see each undercover patient.105 that Respondent failed to keep accurate also Tr. 493) is inconsistent. with the Florida medical records in violation of Florida Standards. See, e.g., Fla. Admin. Code Ann. 103 Administrative Code Rule 64B8–9.013(3)(f) 21 C.F.R. § 1306.04(a). r. 64B8–9.013(1)(b) (describing parameters of 104 (‘‘The physician is required to keep accurate See 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). 105 and complete records. * * *’’ ) Moreover, in I accordingly reject Respondent’s argument 102 Respondent also asked SA Saenz to call him that ‘‘Dr. Casanova’s testimony as to his compliance light of Dr. Glener’s critique of Respondent in a week to assess how she was feeling. (Gov’t Ex. with Rule 64B8–9.013, Florida Administrative Code for failing to inquire whether the patient had 16 at 11.) He offered to write her a note for work must be given great weight’’ (Resp’t Br. 25) and a substance abuse history or history of ‘‘[b]ecause you shouldn’t be lifting kids at work’’ or instead give Respondent’s testimony weight where addiction (Tr. 372–73), a critique which is do certain kinds of bending. (Gov’t Ex. 16 at 11, 16.) credible.

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As noted above, based on his review of the of a finding under Factors Two and Four of The record further reflects that on March undercover patient files, Dr. Glener found 21 U.S.C. § 823(f) that Respondent’s 31, 2010, Respondent issued identical that ‘‘[i]n all of the cases, the doctor continued registration would be inconsistent prescriptions of 100 Roxicodone 15 mg prescribed controlled substances outside the with the public interest. tablets and 210 Roxicodone 30 mg tablets to usual course of professional practice or for Respondent’s argument in mitigation that patient [C.G], age fifty, of Essie, Kentucky, other than a legitimate medical purpose.’’ he ‘‘complied with many aspects of the law’’ and patient [R.C.], age forty-eight, of Helton, (Tr. 338–39.) After an extensive review of the (Resp’t Br. 25; see also id. at 26) is misplaced; Kentucky. (Tr. 91–92, 96–97; Gov’t Ex. 20 at record, I find Dr. Glener’s opinion to be in DEA registration proceedings compliance 3, 5.) supported and corroborated by objective with one provision of law does not generally On the same day, at Wood’s Pharmacy in evidence. Therefore, although as noted above excuse the failure to comply with another. Cf. Margate, Florida (Tr. 90), [C.G.] filled [C.G.]’s the record supports a finding that Dr. Glener Michael J. Aruta, M.D., 76 Fed. Reg. 19,420, prescriptions at 4:07 p.m. and [R.C.] filled demonstrated some bias against Respondent, 19,420 n.3 (DEA 2011) (holding that even [R.C.]’s prescriptions at 4:01 p.m. and 4:11 Dr. Glener’s conclusions as to Respondent’s ‘‘evidence that a practitioner has treated p.m. (Gov’t Ex. 20 at 4 & 6.) conduct discussed in this Recommended thousands of patients’’ in circumstances that The record therefore reflects that Decision are fully supported by the record.106 do not constitute diversion ‘‘does not negate Respondent issued identical prescriptions on Moreover, the discussions above relating to a prima facie showing that the practitioner the same day to two Kentucky patients of each undercover patient visit reveal multiple has committed acts inconsistent with the similar age; that the prescriptions were filled instances in which expert testimony is not public interest’’ (citing Jayam Krishna-Iyer, at the same Florida pharmacy within a single required to make findings under 21 U.S.C. 74 Fed. Reg. 459, 463 (DEA 2009))); Medicine ten-minute window; and that the cities of § 823(f) because the conduct is plainly and Shoppe-Jonesborough, 73 Fed. Reg. 364, 386 Essie, Kentucky and Helton, Kentucky are facially inconsistent with straightforward & n.56 (DEA 2008) (noting that pharmacy located close to each other but approximately provisions of law. See generally Cadet, 76 ‘‘had 17,000 patients,’’ but that ‘‘[n]o amount 900 to 1000 miles and fifteen to sixteen hours Fed. Reg. at 19,450. I therefore reject as not of legitimate dispensing[] can render * * * away from Respondent’s office in Deerfield credible and unfounded Respondent’s flagrant violations ‘consistent with the public Beach, Florida (Tr. 98–99). testimony and argument that he complied interest’’’), aff’d, Medicine Shoppe— Respondent argues that ‘‘the Government’s with Florida Administrative Code Rule Jonesborough v. DEA, 300 Fed. Appx. 409 Exhibit 20 and [GS] Langston’s testimony do 64B8–9.013. (E.g., Resp’t Br. 24–25.) As (6th Cir. 2008). ‘‘While such evidence may be not provide any indication whatsoever that detailed above, the record reveals numerous [entitled to] some weight in assessing Dr. Casanova improperly wrote prescriptions instances in which Respondent failed to whether a practitioner has credibly shown or otherwise violated any law.’’ 109 (Resp’t Br. maintain complete and accurate records or that [he] has reformed his practices,’’ it is 29–30.) Although these circumstances may document a treatment plan consistent with entitled to no weight where a practitioner be suspicious (see Tr. 98–99), there is no fails to acknowledge his the Florida Administrative Code, among indication that the prescriptions were other wrongdoing.108 Krishna-Iyer, 74 Fed. Reg. at other deficiencies. than for a legitimate medical purpose or 463. ‘‘Put another way, even where the pursuant to the usual course of professional (e) Summary of Undercover Patients Government proves only a few instances of practice, because the patient files are not in illegal prescribing in the ‘entire corpus’ of a After reviewing the entire record, I find evidence and were not discussed at hearing. practitioner’s experience, the Government that substantial evidence that is both (See Tr. 101–03.) Accordingly, I do not find objective and otherwise reliable supports Dr. has nonetheless made out a prima facie case and thus shifted the burden to the registrant the evidence of record with regard to the Glener’s conclusion that Respondent’s three Kentucky patients sufficient to treatment of three undercover agents posing to show why he should be entrusted with a new registration.’’ Id. at 464. constitute substantial evidence that as patients ‘‘deviated from the standard of Respondent’s prescriptions and conduct care, was not appropriate in all cases and the (f) Respondent’s Prescribing to Kentucky violated any applicable law or regulation. focus of treatment appeared to be the Patients at CCHM prescription of controlled substances.’’ (Tr. (g) Respondent’s Positive Experience in The testimony adduced at hearing reflects Dispensing Controlled Substances 324–25.) I further find by substantial that three Kentucky patients visited evidence that Respondent issued three sets of Respondent at CCHM. On April 6, 2010, Respondent offered testimony and pointed controlled substance prescriptions for other Respondent prescribed 90 Percocet 10 mg to evidence of his past positive experience in than a legitimate medical purpose and tablets and 220 Roxicodone 30 mg tablets to dispensing controlled substances, including outside the usual course of professional patient [C.C.] of Wallingford, Kentucky. (Tr. his experience at MEC. Additionally, DI practice, in violation of federal and state 90, 95; Gov’t Ex. 20 at 1–2.) Neither party Stockmann testified that MEC is not a pill law.107 This finding weighs heavily in favor offered additional evidence relating to mill, and that aside from the absence of a patient [C.C.], and there is no basis to biennial inventory on February 23, 2011, 106 Respondent argues that ‘‘to Dr. Gleaner [sic], conclude that Respondent’s prescription to MEC appeared to be within the scope of a the only acceptable method of practicing medicine [C.C.] was improper. normal medical practice. (See Tr. 118, 127– or treating pain would be his way and his way 28, 137.) Additionally, Respondent offered only.’’ (Resp’t Br. 26.) This statement is not Code Ann. r. 64B8–9.013(1)(d) (physician’s duty to testimony that he gained experience dealing supported by the record. Dr. Glener’s testimony as ‘‘be diligent in preventing the diversion of drugs for with acute and chronic pain patients and to standard of care refers to ‘‘the law . . . and illegitimate purposes’’); Fla. Admin. Code Ann. r. treating them with opioids, and familiarized appropriate medical practice’’ as well as the 64B8–9.013(3)(b) (‘‘The written treatment plan himself with the Florida Standards, while expectations of other physicians. (Tr. 318–19.) should state objectives that will be used to Additionally, his testimony as to the requirements working at Westchester Hospital in Florida. determine treatment success * * *’’ as well as (Tr. 414.) Finally, Respondent testified that of Florida law is internally consistent and other elements); Fla. Admin. Code Ann. r. 64B8– corroborated by general and specific statements 9.013(3)(c) (‘‘The physician should discuss the risks while working at APM and CCHM, he turned contained in the Florida Administrative Code. and benefits of the use of controlled substances away a large number of patients ‘‘that I Compare Tr. 319 (emphasizing importance of with the patient * * *’’); Fla. Admin. Code Ann. thought might have issues with medications, discussion of risks and benefits, performing a r. 64B8–9.013(3)(e) (‘‘[t]he physician should be issues potentially with the injection of physical examination and formulating a diagnosis willing to refer the patient as necessary for medications and so forth,’’ to include and treatment plan), with Fla. Admin. Code Ann. additional evaluation and treatment* * * Special patients presenting with track marks. (Tr. rr. 64B8–9.013(3)(c), (3)(a), (3)(f)(1) & (3)(b). attention should be given to those pain patients 107 See, e.g., 21 C.F.R. § 1306.04(a) (controlled who are at risk for misusing their medications and 500.) substances prescription must be ‘‘issued for a [who] * * * pose a risk for medication misuse or legitimate medical purpose by an individual diversion.’’); Fla. Admin. Code Ann. r. 64B8– 109 Making a finding that Respondent’s practitioner acting in the usual course of his 9.013(3)(f) (‘‘The physician is required to keep prescribing in these instances was improper would professional practice.’’); Fla. Admin. Code Ann. r. accurate and complete records to include, but not require engaging in pure speculation. ‘‘Speculation 64B8–9.013(1)(b) (controlled substances be limited to .* * * [t]he medical history and is, of course, no substitute for evidence, and a prescription must be for a ‘‘legitimate medical physical examination * * *’’). decision based on speculation is not supported by purpose * * * that is supported by appropriate 108 As discussed below, I find that Respondent substantial evidence.’’ White ex rel. Smith v. Apfel, documentation establishing a valid medical need has failed to accept responsibility for his 167 F.3d 369, 375 (7th Cir. 1999) (citing Erhardt v. and treatment plan’’); see also, e.g., Fla. Admin. prescribing-related misconduct. Sec’y, DHS, 969 F.2d 534, 538 (7th Cir. 1992)).

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Agency precedent has held that such Respondent argues generally that the violations, however, Respondent in evidence is entitled to some evidentiary Government has failed to establish by a numerous instances declined to accept weight only in cases where a practitioner preponderance of evidence that Respondent’s responsibility for his prescribing-related credibly demonstrates an acceptance of continued registration would be inconsistent misconduct. For instance, Respondent responsibility and reform of past practices. with the public interest. (Resp’t Br. 23.) To unapologetically stated at hearing that he [E]vidence that a practitioner has treated the contrary, after balancing the foregoing adheres to a standard of conduct that is thousands of patients does not negate a prima public interest factors, I find that the different than that of other doctors. (See Tr. facie showing that the practitioner has Government has established by substantial 446–47.) Under the Florida Administrative committed acts inconsistent with the public evidence a prima facie case in support of Code, a treatment plan is one of the standards interest. While such evidence may be of some revoking Respondent’s registration.112 for the use of controlled substances for pain evidentiary weight in assessing whether a Once DEA has made a prima facie case for control. See Fla. Admin. Code Ann. r. 64B8– practitioner has credibly shown that she has revocation or denial, the burden shifts to the 9.013(3). ‘‘The written treatment plan should reformed her practices, where a practitioner respondent to show that, given the totality of state objectives that will be used to determine commits intentional acts of diversion and the facts and circumstances in the record, treatment success, such as pain relief and insists she did nothing wrong, such evidence revoking or denying the registration would improved physical and psychosocial function is entitled to no weight. not be appropriate. See Morall v. DEA, 412 and should indicate if any further diagnostic evaluations or other treatments are planned Jayam Krishna-Iyer, M.D., 74 Fed. Reg. 459, F.3d 165, 174 (DC Cir. 2005); Humphreys v. * *.’’ Fla. Admin. Code Ann. r. 64B8– 463 (DEA 2009). DEA, 96 F.3d 658, 661 (3d Cir. 1996); Shatz v. United States Dep’t of Justice, 873 F.2d 9.013(3)(b). But when asked whether his own Although I have carefully considered the 1089, 1091 (8th Cir. 1989); Thomas E. approach complied with the Florida evidence of Respondent’s past positive Johnston, 45 Fed. Reg. 72, 311 (DEA 1980). Standards, Respondent became evasive and experiences in dispensing controlled testified that ‘‘a treatment plan is something substances, to include his present practice at Respondent argues that if the Government has ‘‘met its burden and made a prima facie [that] in my opinion differs from the other MEC, I find those experiences are physicians. I believe that a treatment plan considerably outweighed by the substantial case for the revocation of Dr. Casanova’s license, Dr. Casanova has put forth sufficient doesn’t happen over one visit, * * *.’’ (Tr. evidence of Respondent’s repeated 467.) Respondent’s belief that he is entitled misconduct in issuing controlled substance mitigating evidence to assure the DEA Deputy Administrator that he can be to follow standards that depart from those prescriptions to undercover law enforcement promulgated by the Florida Department of officers for other than a legitimate medical entrusted with a Certificate of Registration.’’ (Resp’t Br. at 23.) Health is not consistent with accepting purpose and outside the usual course of responsibility and showing evidence of likely professional practice, in violation of federal In fact, Respondent’s testimony pertaining to whether he accepted responsibility for his future compliance.113 and state law. The weight of Respondent’s The following colloquy is illustrative: prior positive experiences is further past misconduct is ambivalent. To his credit, diminished by Respondent’s failure on the Respondent testified that regarding his Q: Wouldn’t you agree that the Florida whole to admit or accept responsibility for recordkeeping violations, guidelines require that you execute a any wrongdoing with regard to his [t]he bottom line is that I ultimately am treatment plan for every patient prescribing-related misconduct at APM and responsible and was held accountable and I according to these guidelines, [Fla. CCHM.110 wasn’t aware of the fact that he had not Admin. Code Ann. r. 64B8–9.013(3)(b)], gotten the rest of the information. Maybe page two? Factor 5: Such Other Conduct Which May A: I would agree that I have done the—I have Threaten the Public Health and Safety there was a misunderstanding in regards to the pedigree paperwork and so forth. I am taken the proper steps to start a Under Factor Five, the Administrator is fully aware of that and irrespective of the treatment objective and a treatment plan authorized to consider ‘‘other conduct which results of these hearings, I plan to provide all and that with only one visit that I had may threaten the public health and safety.’’ the appropriate information that is required for the patient, I did everything that was 5 U.S.C. § 823(f)(5). The Agency has and necessary. necessary based on the information that accordingly held that ‘‘where a registrant has (Tr. 449.) Upon inquiry from his attorney on I had in front of me. committed acts inconsistent with the public direct examination, Respondent testified that (Tr. 468.) Respondent further testified that interest, the registrant must accept he ‘‘fully understand[s]’’ that audit results ‘‘[n]ot everything is down on paper. Just responsibility for his or her actions and need to zero out, and that he ‘‘[o]ne hundred because it’s [not] down on paper, it’s not demonstrate that he or she will not engage in percent’’ intends to take all steps necessary something that didn’t happen.’’ 114 (Tr. 470.) future misconduct. Patrick W. Stodola, 74 This comment is flatly inconsistent with the 111 to make sure that any future deliveries are Fed. Reg. 20,727, 20,734 (DEA 2009). Florida Standards, which contemplate a ‘‘[A]n applicant/registrant is required not properly documented. (Tr. 450.) In addition, it is undisputed that Respondent fully and ‘‘written treatment plan,’’ see Fla. Admin. only to accept responsibility for [his] Code Ann. r. 64B8–9.013(3)(b) (emphasis misconduct, but also to demonstrate what completely cooperated in the inspection of his registered location on February 23, 2011, supplied), and written records generally. corrective measures [he] has undertaken to While I find credible Respondent’s testimony prevent the re-occurrence of similar acts.’’ to include access to records and inventory. (Tr. 114–15, 119–20.) Moreover, Respondent that just ‘‘[b]ecause it’s not written down on Jeri Hassman, M.D., 75 Fed. Reg. 8,194, 8,236 paper doesn’t mean that there wasn’t a (DEA 2010) (quoting Jayam Krishna-Iyer, consented to a March 29, 2011 inspection of M.D., 74 Fed. Reg. 459, 464 n.8 (DEA 2009)). his registered location and cooperated, giving agents full access to everything they needed, 113 Respondent proposes that ‘‘it was not possible A ‘‘[r]espondent’s lack of candor and to develop a proper treatment plan as treatment inconsistent explanations’’ may serve as a although he was not required to do so. (Tr. 152, 184; Gov’t Ex. 19(a).) Respondent’s plans develop over time based on further basis for denial of a registration. John information and physical examinations.’’ (Resp’t Br. Stanford Noell, M.D., 59 Fed. Reg. 47,359, expression of remorse for his recordkeeping 16 (internal citations omitted).) But before 47,361 (DEA 1994). Additionally, violations, his cooperation with authorities prescribing controlled substances, Respondent was ‘‘[c]onsideration of the deterrent effect of a throughout the inspection and audit process nevertheless required to document a treatment plan potential sanction is supported by the CSA’s and his promise of future compliance all and other elements ‘‘not intended * * * [as] purpose of protecting the public interest.’’ reflect favorably on Respondent and weigh in complete or best practice[s], but rather * * * what Joseph Gaudio, M.D., 74 Fed. Reg. 10,083, favor of a finding that Respondent’s the Board considers to be within the boundaries of professional practice.’’ Fla. Admin. Code Ann. r. 10,094 (DEA 2009). continued registration would be consistent with the public interest. 64B8–9.013(1)(g). Conduct falling below the minimal requirements of the Florida Standards is 110 The extent, vel non, of Respondent’s In stark contrast to his acceptance of therefore outside the usual course of professional acceptance of responsibility for his misconduct is responsibility regarding his recordkeeping practice. discussed below. 114 Respondent also testified that a ‘‘treatment 111 See also Hoxie v. DEA, 419 F.3d 477, 484 (6th 112 I base this conclusion on Factors Two and plan was formulated either in terms of the Cir. 2005) (decision to revoke registration Four of 21 U.S.C. § 823(f) for the reasons described documentation in the paperwork or mentally in ‘‘consistent with the DEA’s view of the importance above, and on Factor Five for reasons discussed in terms of the documentation and a plan and a of physician candor and cooperation.’’) this Section. process.’’ (Tr. 33–34.)

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thought process * * *.’’ (Tr. 486), the Florida and benefits of the controlled substances he DEPARTMENT OF LABOR Standards are unequivocal in their demand provided to SA Cortes (Tr. 482–83; see Gov’t for records documenting the thought process, Ex. 14 at 8), in violation of Florida Mine Safety and Health Administration ‘‘maintained in an accessible manner and Administrative Code Rule 64B8–9.013(3)(c). [OMB Control No. 1219–0054] readily available for review.’’ Fla. Admin. His testimony suggested that he did not Code Ann. r. 64B8–9.013(3)(f)(9) (‘‘Periodic engage in such a discussion during SA reviews.’’) (emphasis supplied). The standard Proposed Renewal of Existing of care against which Respondent’s conduct Cortes’s initial visit, but that he might on a Information Collection; Fire Protection is measured is not his own personal subsequent visit. (See Tr. 483.) When asked (Underground Coal Mines) standard, but is instead a standard generally if the Florida Standards contained an accepted and recognized in the medical exception for the first visit, Respondent AGENCY: Mine Safety and Health community. Robert L. Dougherty, M.D., 76 testified ‘‘[i]t could be a matter of style or Administration, Labor. Fed. Reg. 16,823, 16,832 n.11 (DEA 2011). what have you in terms of how you do things ACTION: Request for public comments. Moreover, when repeatedly asked to with the initial visits and follow-up visits identify the location of his treatment plan in and so forth.’’ (Tr. 484.) Yet Respondent later SUMMARY: The Department of Labor, as SA Grafenstein’s patient file, Respondent acknowledged that ‘‘[t]here’s no particular part of its continuing effort to reduce conceded that both the treatment plan and exemptions here for the first visit.’’ (Tr. 484.) paperwork and respondent burden, the treatment objective for SA Grafenstein Respondent barely acknowledges that he conducts a pre-clearance consultation consisted solely of the medications listed in program to provide the general public the patient’s discharge summary.115 (See Tr. violated the informed consent provision of 470–72; see also Gov’t Ex. 10 at 1.) A plain the Florida Standards, much less accepts and Federal agencies with an reading of the Florida Standards, however, responsibility for the violation and promises opportunity to comment on proposed reveals that a medication alone cannot future compliance. and continuing collections of constitute a treatment plan. Instead, the Similarly, Respondent acknowledged on information in accordance with the Florida Standards provide that a treatment cross-examination that he failed to document Paperwork Reduction Act of 1995. This plan should a treatment plan in SA Saenz’s patient record program helps to assure that requested state objectives that will be used to determine (Tr. 490–91, 492), but also stated: ‘‘I think data can be provided in the desired treatment success, such as pain relief and you keep on using and harping on treatment format, reporting burden (time and improved physical and psychosocial function financial resources) is minimized, and should indicate if any further diagnostic plan in regards to being an issue. An evaluations or other treatments are appropriate treatment care [sic] was collection instruments are clearly planned* * * . [T]reatment modalities or a delivered for this acute injury without understood, and the impact of collection rehabilitation program may be necessary question.’’ (Tr. 491.) Respondent’s statement requirements on respondents can be depending on the etiology of the pain and the is not consistent with accepting properly assessed. Currently, the Mine extent to which the pain is associated with responsibility for his violation of Florida Safety and Health Administration is physical and psychosocial impairment. Administrative Code Rule 64B8–9.013(1)(b) soliciting comments concerning the Fla. Admin. Code Ann. r. 64B8–9.013(3)(b). (describing parameters of ‘‘appropriate extension of the information collection At a minimum, Respondent’s treatment plan documentation’’ to include a treatment plan); for 30 CFR 75.1100–3, 75.1103– for SA Grafenstein lacks: (1) ‘‘objectives that and Rule 64B8–9.013(3)(b) (contemplating a 5(a)(2)(ii), 75.1103–8(b) and (c), will be used to determine treatment success’’ ‘‘written treatment plan’’). To the contrary, 75.1103–11, 75.1501(a)(3), and and (2) ‘‘indicat[ions of whether] any further Respondent’s testimony reflects an attempt to 75.1502(a) and (b). OMB last approved diagnostic evaluations * * * are planned.’’ trivialize his noncompliance. Id. Respondent’s refusal to acknowledge this information collection request on Additional examples of Respondent’s these deficiencies is incompatible with a January 8, 2010. The package expires on finding that Respondent has accepted failure to accept responsibility for past January 31, 2013. responsibility for his past misconduct. misconduct exist but further elaboration is DATES: All comments must be In addition, regarding his prescribing of unnecessary. In summary, Respondent’s postmarked or received by midnight Xanax to SA Grafenstein without first testimony reflected an overall lack of Eastern Time on November 19, 2012. inquiring when SA Grafenstein had last taken admission of his past misconduct with ADDRESSES: Comments concerning the that controlled substance, Respondent stated respect to his prescribing practices, let alone information collection requirements of that ‘‘I don’t agree that by me not doing that acceptance of responsibility. In light of the this notice must be clearly identified that was [not] preventing the diversion of foregoing, Respondent’s evidence as a whole controlled substances.’’ (Tr. 481.) fails to sustain his burden to accept with ‘‘OMB 1219–0054’’ and sent to Respondent’s comment indicates that in responsibility for his misconduct and to both the Office of Management and similar circumstances involving real patients demonstrate that he will not engage in future Budget (OMB) and the Mine Safety and exhibiting warning signs of abuse or misconduct. I find that Factor Five weighs in Health Administration (MSHA). diversion, Respondent would likely repeat Comments to MSHA may be sent by any the same course of conduct in the future. favor of a finding that Respondent’s continued registration would be inconsistent of the methods listed below. Respondent’s evidence fails to overcome the • Federal E-Rulemaking Portal: rebuttable presumption that ‘‘past with the public interest. performance is the best predictor of future http://www.regulations.gov. Follow the V. Conclusion and Recommendation performance * * *.’’ Medicine Shoppe— on-line instructions for submitting Jonesborough, 73 Fed. Reg. at 387 (citing Under Factors Two, Four and Five of 21 comments. • ALRA Labs, Inc. v. DEA, 54 F.3d 450, 452 U.S.C. § 823(f), I recommend that Facsimile: 202–693–9441, include (7th Cir. 1995)). Respondent’s DEA COR BC8677746 be ‘‘OMB 1219–0054’’ in the subject line of Respondent’s testimony at hearing revoked on the grounds that Respondent’s the message. • provided additional indications that he continued registration would be inconsistent Regular Mail or Hand Delivery: believes the Florida Standards do not with the public interest as that term is used MSHA, Office of Standards, necessarily apply to him and that he might in 21 U.S.C. §§ 824(a)(4) and 823(f). Regulations, and Variances, 1100 not comply with them in the future. As noted Dated: September 29, 2011 Wilson Boulevard, Room 2350, above, Respondent failed to discuss the risks Arlington, VA 22209–3939. For hand Timothy D. Wing delivery, sign in at the receptionist’s 115 Respondent also stated that the treatment plan Administrative Law Judge ‘‘begins with the diagnosis and * * * includes the desk on the 21st floor. [FR Doc. 2012–23058 Filed 9–18–12; 8:45 am] medications * * * and that is the initial process of Comments to OMB may be sent by the treatment plan * * *.’’ (Tr. 469.) BILLING CODE 4410–09–P mail addressed to the Office of

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Information and Regulatory Affairs, date of the examination be recorded on kept for a period of one year. These last Office of Management and Budget, New a permanent tag attached to the two provisions are added to this Executive Office Building, 725 17th extinguisher. information collection from 1219–0145. Street NW., Washington, DC 20503, 30 CFR 75.1103–5(a)(2)(ii) requires 30 CFR 75.1103–11 requires that each Attn: Desk Officer for MSHA. that a map or schematic be updated fire hydrant and hose be tested at least FOR FURTHER INFORMATION CONTACT: Greg within 24 hours of any change in the once a year and the records of those Moxness, Chief, Economic Analysis locations of automatic fire warning tests be maintained at an appropriate Division, Office of Standards, sensors and the intended air flow location. direction at these locations. This map or Regulations, and Variances, MSHA, at 30 CFR 75.1501(a)(3) requires the schematic would be kept at a manned [email protected] (email); 202– operator to certify that each responsible surface location where personnel have 693–9440 (voice); or 202–693–9441 person is trained and that the an assigned post of duty. This provision (facsimile). certification is maintained at the mine is added to this information collection for at least one year. SUPPLEMENTARY INFORMATION: from 1219–0145. 30 CFR 75.1103–8(a) requires that a 30 CFR 75.1502 requires each mine I. Background qualified person examine the automatic operator to adopt and follow a mine Fire protection standards for fire sensor and warning device systems evacuation and firefighting program of underground coal mines are based on on a weekly basis and conduct a instruction that addresses all mine section 311(a) of the Federal Mine functional test of the complete system at emergencies created as a result of a fire, Safety and Health Act of 1977 (Mine least once every seven days. Section an explosion, or a gas or water Act). 30 CFR 75.1100 requires that each 75.1103–8(b) requires that a record of inundation. In addition, this section coal mine be provided with suitable the weekly automatic fire sensor requires mine operators to submit this firefighting equipment adapted for the functional tests be maintained by the program of instruction, and any size and conditions of the mine, and mine operator and kept for a period of revisions, to MSHA for its approval and that the Secretary of Labor shall one year. 30 CFR 75.1103–8(c) requires to train miners regarding the use of the establish minimum requirements of the that sensors be calibrated in accordance program of instruction, and any type, quality, and quantity of such with the manufacturer’s calibration revisions to such program of instruction, equipment. 30 CFR 75.1100–3 requires instructions at intervals not to exceed 31 after it is approved by MSHA. that chemical fire extinguishers be days. Records of the sensor calibrations This information collection addresses examined every 6 months and that the must be maintained by the operator and the recordkeeping associated with:

75.1100–3 ...... Condition and examination of fire fighting equipment. 75.1103–5(a)(2)(ii) ...... Automatic fire warning devices; actions and response. 75.1103–8(b) & (c) ...... Automatic fire sensor and warning device systems; examination and test requirements. 75.1103–11 ...... Tests of fire hydrants and fire hose; record of tests. 75.1501(a)(3) ...... Emergency evacuations. 75.1502(a) & (b) ...... Mine emergency evacuation and firefighting program of instruction.

II. Desired Focus of Comments information on those who are to the FOR FURTHER INFORMATION CONTACT respond. section of this notice. The Mine Safety and Health Administration (MSHA) is soliciting The public may examine publicly III. Current Actions comments concerning the proposed available documents, including the The information obtained from mine extension of the information collection public comment version of the operators is used by MSHA during related to this safety standard on records supporting statement, at MSHA, Office inspections to determine compliance of fire protection in underground coal of Standards, Regulations, and with safety and health standards. MSHA mines. MSHA is particularly interested Variances, 1100 Wilson Boulevard, has updated the data with respect to the in comments that: Room 2350, Arlington, VA 22209–3939. number of respondents and responses, • Evaluate whether the collection of OMB clearance requests are available on as well as the total burden hours and information is necessary for the proper MSHA’s Web site at http:// burden costs supporting this performance of the functions of the www.msha.gov under ‘‘Rules & Regs’’ on information collection extension agency, including whether the the right side of the screen by selecting request. information has practical utility; Information Collections Requests, Summary • Evaluate the accuracy of the Paperwork Reduction Act Supporting MSHA’s estimate of the burden of the Statements. The document will be Type of Review: Extension. collection of information, including the available on MSHA’s Web site for 60 Agency: Mine Safety and Health validity of the methodology and days after the publication date of this Administration. assumptions used; notice. Comments submitted in writing Title: Fire Protection (Underground Coal Mines). • Suggest methods to enhance the or in electronic form will be made OMB Number: 1219–0054. available for public inspection. Because quality, utility, and clarity of the Affected Public: Business or other for- information to be collected; and comments will not be edited to remove profit. • Address the use of appropriate any identifying or contact information, Cite/Reference/Form/etc: 30 CFR automated, electronic, mechanical, or MSHA cautions the commenter against 75.1100–3, 75.1103–5(a)(2)(ii), 75.1103– other technological collection including any information in the 8(b) and (c), 75.1103–11, 75.1501(a)(3), techniques or other forms of information submission that should not be publicly and 75.1502(a) and (b). technology (e.g., permitting electronic disclosed. Questions about the Total Number of Respondents: 549. submissions of responses) to minimize information collection requirements Frequency: Various. the burden of the collection of may be directed to the person listed in Total Number of Responses: 294,618.

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Total Burden Hours: 54,809 hours. • Federal E-Rulemaking Portal: sinking employees. The record is Total Annual Cost Burden: $693. http://www.regulations.gov. Follow the maintained at the mine site for the Comments submitted in response to on-line instructions for submitting duration of the operation. this notice will be summarized and comments. This information collection addresses included in the request for Office of • Facsimile: 202–693–9441, include the recordkeeping associated with: Management and Budget approval of the ‘‘OMB 1219–0082’’ in the subject line of information collection request; they will the message. § 77.1901 Records of preshift and onshift also become a matter of public record. • Regular Mail or Hand Delivery: inspections. Authority: 44 U.S.C. 3506(c)(2)(A). MSHA, Office of Standards, II. Desired Focus of Comments Regulations, and Variances, 1100 Dated: September 13, 2012. The Mine Safety and Health Wilson Boulevard, Room 2350, George F. Triebsch, Administration (MSHA) is soliciting Arlington, VA 22209–3939. For hand comments concerning the proposed Certifying Officer. delivery, sign in at the receptionist’s [FR Doc. 2012–23010 Filed 9–18–12; 8:45 am] extension of the information collection desk on the 21st floor. related to this safety standard on records BILLING CODE 4510–43–P Comments to OMB may be sent by of preshift and onshift inspections of mail addressed to the Office of slope and shaft areas of slope and shaft Information and Regulatory Affairs, sinking operations at coal mines. MSHA DEPARTMENT OF LABOR Office of Management and Budget, New is particularly interested in comments Executive Office Building, 725 17th Mine Safety and Health Administration that: Street NW., Washington, DC 20503, • Evaluate whether the collection of [OMB Control No. 1219–0082] Attn: Desk Officer for MSHA. information is necessary for the proper FOR FURTHER INFORMATION CONTACT: Greg Proposed Renewal of Existing performance of the functions of the Moxness, Chief, Economic Analysis agency, including whether the Information Collection; Records of Division, Office of Standards, Preshift and Onshift Inspections of information has practical utility; Regulations, and Variances, MSHA, at • Evaluate the accuracy of the Slope and Shaft Areas of Slope and [email protected] (email); 202– Shaft Sinking Operations at Coal Mines MSHA’s estimate of the burden of the 693–9440 (voice); or 202–693–9441 collection of information, including the AGENCY: Mine Safety and Health (facsimile). validity of the methodology and Administration, Labor. SUPPLEMENTARY INFORMATION: assumptions used; ACTION: Request for public comments. • Suggest methods to enhance the I. Background quality, utility, and clarity of the SUMMARY: The Department of Labor, as Section 103(h) of the Federal Mine information to be collected; and part of its continuing effort to reduce Safety and Health Act of 1977 (Mine • Address the use of appropriate paperwork and respondent burden, Act), 30 U.S.C. 813(h), authorizes automated, electronic, mechanical, or conducts a pre-clearance consultation MSHA to collect information necessary other technological collection program to provide the general public to carry out its duty in protecting the techniques or other forms of information and Federal agencies with an safety and health of miners. The sinking technology (e.g., permitting electronic opportunity to comment on proposed of slopes and shafts is a particularly submissions of responses) to minimize and continuing collections of hazardous operation where conditions the burden of the collection of information in accordance with the change drastically in short periods of information on those who are to Paperwork Reduction Act of 1995. This time. Explosive methane and other respond. program helps to assure that requested harmful gases can be expected to The public may examine publicly data can be provided in the desired infiltrate the work environment at any available documents, including the format, reporting burden (time and time. The working environment is public comment version of the financial resources) is minimized, typically a confined area in close supporting statement, at MSHA, Office collection instruments are clearly proximity to moving equipment. of Standards, Regulations, and understood, and the impact of collection Accordingly, 30 CFR 77.1901 requires Variances, 1100 Wilson Boulevard, requirements on respondents can be operators to conduct examinations of Room 2350, Arlington, VA 22209–3939. properly assessed. Currently, the Mine slope and shaft areas for hazardous OMB clearance requests are available on Safety and Health Administration is conditions, including tests for methane MSHA’s Web site at http:// soliciting comments concerning the and oxygen deficiency, within 90 www.msha.gov under ‘‘Rules & Regs’’ on extension of the information collection minutes before each shift, once during the right side of the screen by selecting for 30 CFR 77.1901. OMB last approved each shift, and before and after blasting. Information Collections Requests, this information collection request on The surface area surrounding each slope Paperwork Reduction Act Supporting January 8, 2010. The package expires on and shaft is also required to be Statements. The document will be January 31, 2013. inspected for hazards. available on MSHA’s Web site for 60 DATES: All comments must be The standard also requires that a days after the publication date of this postmarked or received by midnight record be kept of the results of the notice. Comments submitted in writing Eastern Time on November 19, 2012. inspections. The record includes a or in electronic form will be made ADDRESSES: Comments concerning the description of any hazardous condition available for public inspection. Because information collection requirements of found and the corrective action taken to comments will not be edited to remove this notice must be clearly identified abate it. The record is necessary to any identifying or contact information, with ‘‘OMB 1219–0082’’ and sent to ensure that the inspections and tests are MSHA cautions the commenter against both the Office of Management and conducted in a timely fashion and that including any information in the Budget (OMB) and the Mine Safety and corrective action is taken when submission that should not be publicly Health Administration (MSHA). hazardous conditions are identified, disclosed. Questions about the Comments to MSHA may be sent by any thereby ensuring a safe working information collection requirements of the methods listed below. environment for the slope and shaft may be directed to the person listed in

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the FOR FURTHER INFORMATION CONTACT and continuing collections of mine operators of Class III metal or section of this notice. information in accordance with the nonmetal mines to notify MSHA in Paperwork Reduction Act of 1995. This writing prior to their use of non- III. Current Actions program helps to assure that requested approved explosive materials and The information obtained from mine data can be provided in the desired blasting units. MSHA then evaluates the operators is used by MSHA during format, reporting burden (time and non-approved explosive materials and inspections to determine compliance financial resources) is minimized, determines whether they are safe for use with safety and health standards. MSHA collection instruments are clearly in a gassy environment. has updated the data in respect to the understood, and the impact of collection II. Desired Focus of Comments number of respondents and responses, requirements on respondents can be as well as the total burden hours and properly assessed. Currently, the Mine The Mine Safety and Health burden costs supporting this Safety and Health Administration is Administration (MSHA) is soliciting information collection extension soliciting comments concerning the comments concerning the proposed request. extension of the information collection extension of the information collection Summary for requirements under 30 CFR related to Explosive Materials and 57.22606(a). OMB last approved this Blasting Units when used in metal and Type of Review: Extension. information collection request (ICR) on nonmetal underground mines deemed Agency: Mine Safety and Health February 1, 2010. to be gassy. MSHA is particularly Administration. DATES: All comments must be interested in comments that: Title: Records of Preshift and Onshift postmarked or received by midnight • Evaluate whether the collection of Inspections of Slope and Shaft Areas of Eastern Standard Time on November 19, information is necessary for the proper Slope and Shaft Sinking Operations at 2012. performance of the functions of the Coal Mines. ADDRESSES: Comments concerning the agency, including whether the OMB Number: 1219–0082. information has practical utility; Affected Public: Business or other for- information collection requirements of • Evaluate the accuracy of the profit. this notice must be clearly identified Cite/Reference/Form/etc: 30 CFR with ‘‘OMB 1219–0095’’ and sent to the MSHA’s estimate of the burden of the 77.1901. Mine Safety and Health Administration collection of information, including the Total Number of Respondents: 27. (MSHA). Comments may be sent by any validity of the methodology and Frequency: Various. of the methods listed below. assumptions used; Total Number of Responses: 11,880 • Federal E-Rulemaking Portal: • Suggest methods to enhance the Total Burden Hours: 14,850 hours. http://www.regulations.gov. Follow the quality, utility, and clarity of the Total Other Annual Cost Burden: $0. on-line instructions for submitting information to be collected; and Comments submitted in response to comments. • Address the use of appropriate this notice will be summarized and • Facsimile: 202–693–9441, include automated, electronic, mechanical, or included in the request for Office of ‘‘OMB 1219–0095’’ in the subject line of other technological collection Management and Budget approval of the the message. techniques or other forms of information information collection request; they will • Regular Mail or Hand Delivery: technology (e.g., permitting electronic also become a matter of public record. MSHA, Office of Standards, submissions of responses), to minimize Authority: 44 U.S.C. 3506(c)(2)(A). Regulations, and Variances, 1100 the burden of the collection of Wilson Boulevard, Room 2350, Dated: September 13, 2012. information on those who are to Arlington, VA 22209–3939. For hand respond. George F. Triebsch, delivery, sign in at the receptionist’s The public may examine publicly Certifying Officer. desk on the 21st floor. available documents, including the [FR Doc. 2012–23012 Filed 9–18–12; 8:45 am] FOR FURTHER INFORMATION CONTACT: Greg public comment version of the BILLING CODE 4510–43–P Moxness, Chief, Economic Analysis supporting statement, at MSHA, Office Division, Office of Standards, of Standards, Regulations, and Regulations, and Variances, MSHA, at Variances, 1100 Wilson Boulevard, DEPARTMENT OF LABOR [email protected] (email); 202– Room 2350, Arlington, VA 22209–3939. 693–9440 (voice); or 202–693–9441 Mine Safety and Health Administration OMB clearance requests are available on (facsimile). MSHA’s Web site at http:// [OMB Control No. 1219–0095] SUPPLEMENTARY INFORMATION: www.msha.gov under ‘‘Rules & Regs’’ on the right side of the screen by selecting Proposed Extension of Existing I. Background Information Collections Requests, Information Collection; Explosive Under Title 30 U.S. Code of Federal Paperwork Reduction Act Supporting Materials and Blasting Units (Pertains Regulations (30 CFR) Parts 7 and 15, the Statements. The document will be to Metal and Nonmetal Underground Mine Safety and Health Administration available on MSHA’s Web site for 60 Mines Deemed To Be Gassy (MSHA) evaluates and approves days after the publication date of this AGENCY: Mine Safety and Health explosive materials and blasting units as notice. Comments submitted in writing Administration, Labor. permissible for use in the mining or in electronic form will be made ACTION: Request for public comments. industry. However, since there are no available for public inspection. Because permissible explosives or blasting units comments will not be edited to remove SUMMARY: The Department of Labor, as available that have adequate blasting any identifying or contact information, part of its continuing effort to reduce capacity for some metal and nonmetal MSHA cautions the commenter against paperwork and respondent burden, gassy mines, 30 CFR 57.22606(a) including any information in the conducts a pre-clearance consultation outlines the procedures for mine submission that should not be publicly program to provide the general public operators to follow when using non- disclosed. Questions about the and Federal agencies with an approved explosive materials and information collection requirements opportunity to comment on proposed blasting units. The standard requires may be directed to the person listed in

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the FOR FURTHER INFORMATION CONTACT DEPARTMENT OF LABOR may submit requests for special section of this notice. accommodations by telephone, email, or Occupational Safety and Health hard copy to Ms. Veneta Chatmon, III. Current Actions Administration OSHA Office of Communications, Room N–3647, U.S. Department of Labor, 200 The information obtained from mine [Docket No. OSHA–2012–0006] operators is used by MSHA during Constitution Avenue NW., Washington, inspections to determine compliance Federal Advisory Council on DC 20210; telephone (202) 693–1999; email [email protected]. with safety and health standards. MSHA Occupational Safety and Health Instructions: All submissions must has updated the data in respect to the (FACOSH) include the agency name and docket number of respondents and responses, AGENCY: Occupational Safety and Health number for this Federal Register notice as well as the total burden hours and Administration (OSHA), Labor. (Docket No. OSHA–2012–0006). burden costs supporting this ACTION: Announcement of FACOSH Because of security-related procedures, information collection extension meeting. submissions by regular mail may result request. in a significant delay in their receipt. MSHA does not intend to publish the SUMMARY: The Federal Advisory Council Please contact the OSHA Docket Office results from this information collection on Occupational Safety and Health for information about security and is not seeking approval to either (FACOSH) will meet October 18, 2012, procedures for making submissions by display or not display the expiration in Washington, DC. hand delivery, express delivery, and date for the OMB approval of this DATES: messenger or courier service. information collection. FACOSH meeting: FACOSH will meet For additional information on from 1 to 4:30 p.m., e.t., Thursday, submitting comments, requests to speak, There are no certification exceptions October 18, 2012. and speaker presentations, see the identified with this information Submission of comments, requests to SUPPLEMENTARY INFORMATION section collection and the collection of this speak, speaker presentations, and below. information does not employ statistical requests for special accommodations: OSHA will post comments, requests methods. You must submit (postmark, send, to speak, and speaker presentations, Summary transmit) comments, requests to speak at including any personal information the FACOSH meeting, speaker provided, without change at http:// Type of Review: Extension. presentations, and requests for special www.regulations.gov. Therefore, OSHA Agency: Mine Safety and Health accommodations to attend the meeting cautions interested parties about submitting certain personal information, Administration. by October 10, 2012. ADDRESSES: such as Social Security numbers and Title: Explosive Materials and FACOSH meeting: FACOSH will meet birthdates. Blasting Units (pertains to metal and in Room N–4437 A–D, U.S. Department FOR FURTHER INFORMATION CONTACT: nonmetal underground mines deemed of Labor, 200 Constitution Avenue NW., For press inquiries: Mr. Frank to be gassy). Washington, DC 20210. Meilinger, Director, OSHA Office of OMB Number: 1219–0095. Submission of comments, requests to Communications, U.S. Department of Affected Public: Business or other for- speak, and speaker presentations: You Labor, Room N–3647, 200 Constitution profit. may submit comments, requests to Avenue NW., Washington, DC 20210; speak at the FACOSH meeting, and telephone (202) 693–1999; email Cite/Reference/Form/etc: 30 CFR speaker presentations using one of the [email protected]. 57.22606(a). following methods: For general information: Mr. Francis Total Number of Respondents: 1. Electronically: You may submit Yebesi, OSHA, Office of Federal Agency Frequency: 1. materials, including attachments, Programs, U.S. Department of Labor, electronically at http:// Room N–3622, 200 Constitution Avenue Total Number of Responses: 1. www.regulations.gov, the federal NW., Washington, DC 20210; telephone Total Burden Hours: 1 hour. eRulemaking Portal. Follow the online (202) 693–2122; email [email protected]. Total Other Annual Cost Burden: $6. instructions for making submissions; SUPPLEMENTARY INFORMATION: Facsimile: If your submission, Comments submitted in response to including attachments, does not exceed FACOSH Meeting this notice will be summarized and 10 pages, you may fax it to the OSHA FACOSH will meet October 18, 2012, included in the request for Office of Docket Office at (202) 693–1648; or in Washington, DC. FACOSH meetings Management and Budget approval of the Mail, express delivery, hand delivery, are open to the public. information collection request; they will and messenger or courier service: You The tentative agenda for the FACOSH also become a matter of public record. may submit materials to the OSHA meeting includes: Authority: 44 U.S.C. 3506(c)(2)(A). Docket Office, Docket No. OSHA–2012– • FACOSH subcommittee updates; 0006, Room N–2625, U.S. Department of • Revitalization of field federal safety Dated: September 13, 2012. Labor, 200 Constitution Avenue NW., and health councils; George F. Triebsch, Washington, DC 20210; telephone (202) • FACOSH nominations; and, Certifying Officer. 693–2350 (TTY (877) 889–5627). • Secretary of Labor’s Report to the [FR Doc. 2012–23011 Filed 9–18–12; 8:45 am] Deliveries (hand, express mail, President on Federal Department and BILLING CODE 4510–43–P messenger/courier service) are accepted Agency Occupational Safety and Health during the Department’s and the OSHA Program Activity. Docket Office’s normal business hours, FACOSH is authorized by 5 U.S.C. 8:15 a.m.–4:45 p.m., e.t. 7902, section 19 of the Occupational Requests for special accommodations Safety and Health Act of 1970 (OSH to attend the FACOSH meeting: You Act) (29 U.S.C. 668), and Executive

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Order 11612, as amended, to advise the Office using the instructions in the Authority and Signature Secretary of Labor on all matters relating ADDRESSES section. The additional David Michaels, Ph.D., MPH, to the occupational safety and health of materials must clearly identify your Assistant Secretary of Labor for federal employees. This includes electronic submission by name, date, Occupational Safety and Health, providing advice on how to reduce and and docket number. directed the preparation of this notice keep to a minimum the number of Because of security-related under the authority granted by section injuries and illnesses in the federal procedures, submitting comments, 19 of the Occupational Safety and workforce and how to encourage each requests to speak, and speaker Health Act of 1970 (29 U.S.C. 668), 5 federal Executive Branch department presentations by regular mail may cause U.S.C. 7902, the Federal Advisory and agency to establish and maintain a significant delay in their receipt. For Committee Act (FACA) (5 U.S.C. App. effective occupational safety and health information about security procedures 2), 41 CFR part 102–3, section 1–5 of programs. concerning submissions by hand, Executive Order 12196 (45 CFR 12729 OSHA transcribes and prepares express delivery, and messenger/courier (7/27/1980)), and Secretary of Labor’s detailed minutes of FACOSH meetings. service, please contact the OSHA Docket Order No. 1–2012 (77 FR 3912 (1/25/ The Agency puts transcripts, minutes, Office (see ADDRESSES section). OSHA 2012)). subcommittee reports, and other will provide copies of your submissions materials presented at the meeting in Signed at Washington, DC, on September to FACOSH members prior to the the public record of the FACOSH 14, 2012. meeting, which is posted at http:// meeting. David Michaels, www.regulations.gov. Access to submissions and public Assistant Secretary of Labor for Occupational record. OSHA places comments, Safety and Health. Public Participation, Submissions, and requests to speak, and speaker [FR Doc. 2012–23106 Filed 9–18–12; 8:45 am] Access to Public Record presentations, including any personal BILLING CODE 4510–26–P FACOSH meetings: FACOSH information you provide, in the meetings are open to the public. FACOSH public docket without change Individuals attending meetings at the and those documents may be available LIBRARY OF CONGRESS U.S. Department of Labor must enter the online at http://www.regulations.gov. building at the Visitors’ Entrance, 3rd Therefore, OSHA cautions interested Copyright Office and C Streets NW., and pass through parties about submitting certain building security. Attendees must have personal information, such as Social [Docket No. 2012–10] valid government-issued photo Security numbers and birthdates. Resale Royalty Right identification to enter the building. For OSHA also puts meeting transcripts, additional information about building minutes, work group reports, and AGENCY: Copyright Office, Library of security measures for attending the documents presented at the FACOSH Congress. FACOSH meeting, please contact Ms. meeting in the public record of the ACTION: Notice of Inquiry. Chatmon (see ADDRESSES section). FACOSH meeting. Please submit your request for special SUMMARY: The U.S. Copyright Office is accommodations to attend the FACOSH To read or download documents in undertaking an inquiry at the request of meeting to Ms. Chatmon. the public record, go to Docket No. Congress to review how current Submission of requests to speak and OSHA–2012–0006, at http:// copyright law affects and supports speaker presentations. You may submit www.regulations.gov. Although all visual artists; and how a federal resale a request to speak to FACOSH about the meeting documents are listed in the royalty right for visual artists would topics of the meeting and speaker http://www.regulations.gov index, some affect current and future practices of presentations by one of the methods documents (e.g., copyrighted material) groups or individuals involved in the listed in the ADDRESSES section. Your are not publicly available to read or creation, licensing, sale, exhibition, request must include: download through that Web page. All dissemination, and preservation of • The amount of time you request to meeting documents, including works of visual art. The Office thus speak; copyrighted material, are available for seeks comments from the public on the • The interest you represent (e.g., inspection and copying at the OSHA means by which visual artists exploit organization name), if any; and, Docket Office. their works under existing law as well • A brief outline of your presentation. Information on using the http:// as the issues and obstacles that may be PowerPoint speaker presentations and www.regulations.gov to make encountered when considering a federal other electronic materials must be submissions and to access the public resale royalty right in the United States. compatible with PowerPoint 2010 and record of the FACOSH meeting is other Microsoft Office 2010 formats. DATES: Comments must be received no The FACOSH Chair may grant available at that Web page. Please later than 5 p.m. Eastern Daylight Time requests to address FACOSH at his contact the OSHA Docket Office for (EDT) on November 5, 2012. discretion, and as time and information about materials not ADDRESSES: To submit comments, circumstances permit. available through that Web page and for please visit http://www.copyright.gov/ Submission of written comments. You assistance for making submissions and docs/resaleroyalty. The Web site also may submit written comments, obtaining documents in the public interface requires submitters to including data and other information, record. complete a form specifying name and using any of the methods listed in the Electronic copies of this Federal organization, as applicable, and to ADDRESSES section. You may Register notice are available at http:// upload comments as an attachment via supplement electronic submissions by www.regulations.gov. This notice, as a browser button. To meet accessibility uploading documents electronically. If well as news releases and other relevant standards, submitters must upload you wish to submit hard copies of information about FACOSH, is available comments in a single file not to exceed supplementary documents instead, you at OSHA’s Web page at http:// six megabytes (MB) in one of the must submit them to the OSHA Docket www.osha.gov. following formats: The Adobe Portable

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Document File (PDF) format that publisher, or sell the right to create a To be clear, any artist may by contract contains searchable, accessible text (not screenplay to a writer, or sell the right attempt to negotiate a partial interest in an image); Microsoft Word; to create a motion picture from that his work with a buyer, thereby reserving WordPerfect; Rich Text Format (RTF); or screenplay. At each point in the life for him or herself a financial interest in ASCII text file format (not a scanned cycle of that novel, numerous its future value. However, this is by no document). The form and face of the opportunities arise for the author to earn means a common practice for comments must include both the name income from the original novel without transactions of fine art, even for of the submitter and organization. The having to write another book or restrict accomplished artists, and it seems Office will post all comments publicly the number of books available for unlikely for one who is just starting out. on the Office’s Web site exactly as they purchase in the marketplace. Indeed, a There are also some accommodations are received, along with names and novelist and his publisher may offer available to visual artists in the broader organizations. If electronic submission millions of copies of the same book to marketplace. For example, some artists of comments is not feasible, please buyers, a filmmaker may distribute may exploit their works in other ways, contact the Office at 202–707–8380 for millions of DVDs of his film, and a such as through reproductions or the special instructions. songwriter may authorize millions of creation of derivative works. For some, FOR FURTHER INFORMATION CONTACT: downloads. In each case, every this may be lucrative; however, for Jason Okai, Counsel, Office of Policy purchaser receives the same work and others the very nature of their visual art and International Affairs, by telephone for the same value as the original. may limit the ability to create such at 202–707–9444 or by electronic mail at By contrast, in the case of certain derivative markets. In general, although [email protected]. visual artworks, there can only be one visual art may be reproduced or adapted sale at a time, and only the initial sale in the form of prints, postcards, SUPPLEMENTARY INFORMATION: will inure to the benefit of the actual miniature models of sculptures or even I. Background creator. A sculptor or painter may spend refrigerator magnets, the income An artist resale royalty, or droit de months or years creating one work of art realized from the sales of these items is suite as it is often called in Europe, and when that work is completed it is not likely to approach the income that provides artists with an opportunity to a unique and singular representation of the original artwork will bring if it benefit from the increased value of their the artist’s intent. Unlike books, DVDs increases in value and is sold and resold works over time by granting them a or songs, the value of the work is based at auction, in private galleries or through private sales. percentage of the proceeds from the on its originality and scarcity. This resale of their original works of art. The means that over time, it may be a A. Previous Inquiry collector or other downstream entity royalty originated in France in the 1920s In 1991, Congress requested the and is in general practice throughout that will derive the most financial benefit. Copyright Office to conduct a study on Europe, but is not part of current United the feasibility of legislation that would States copyright law.1 Under the The Office recognizes that buyers of artworks, including collectors, galleries require purchasers of works of art, Copyright Act (the ‘‘Act’’), 17 U.S.C. 101 subsequent to the initial sale of the et seq., artists, like other authors, are and auction houses, frequently purchase artworks as investments. These persons work, to pay the artist or the artist’s provided a bundle of exclusive rights, heirs a percentage of the sale price. including rights to reproduce, distribute may act as important catalysts over time, helping to increase the value of Published in December 1992, the and create adaptations of the works. Copyright Office report concluded that Federal copyright law, however, does certain artworks through exhibitions and additional sales, or by supporting there was insufficient economic and not generally grant artists or authors copyright policy justification for rights to control the subsequent use of the careers of artists through payment or promotion. The question thus becomes enacting resale royalty right or droit de the original work.2 Rather, the first sale suite legislation in the United States.5 doctrine, codified in 17 U.S.C. 109, one of perceived fairness under the law. Should these agents and investors The Office expressed concern that generally permits the lawful owner of a implementing a resale royalty right copyrighted work to display, sell or benefit exclusively, or should they be compelled to provide some additional might be harmful to visual artists who dispose of the work without the lack a viable resale market because authorization of the creator under most compensation to the artists who made the buyers’ profits possible? Indeed, primary market prices might decline as circumstances. a result of factoring in the future royalty. California purportedly developed its For many authors of works such as The Office further explained that state law on resale royalties in part as books, musical works and sound imposing a federal resale royalty on a result of the indignation felt by many recordings, the copyright system sales transactions may conflict with the within the artistic community when provides substantial economic benefits traditional United States concept of free Robert Rauschenberg’s 1958 painting and incentives through subsequent uses alienability of property. The Office ‘‘Thaw,’’ which was originally sold for or performances of those works by way proposed alternatives to a resale royalty $900, was resold at auction fifteen years of licensing or contractual right, including compulsory licenses, later for $85,000 without compensation arrangements. For example, an author broader display rights, rental rights and to the artist.3 According to some may sell rights in his or her novel to a federal grants for public works of art. sources, certain fine art can appreciate 4 The Office also identified eight areas to 1 Resale royalty rights are optional under by more than 10% in value per year. be considered if legislation were to be applicable international treaties. See Berne proposed: Oversight, types of sales, Convention for the Protection of Literary and 3 See Patricia Cohen, Artists File Lawsuits Seeking Artistic Works, art. 14ter, Jul. 24, 1971, 25 U.S.T. Royalties, New York Times, Nov. 1, 2011, available threshold amount, term, foreign authors, 1341, 8282 U.N.T.S. 221 (as amended Sep. 28, at http://www.nytimes.com/2011/11/02/arts/design/ 1979). artists-file-suit-against-sothebys-christies-and- how-to-outsmart-the-billionaires-wholl-bid-80- 2 Visual artists are granted very limited rights to ebay.html?pagewanted=all. million-for-the-scream/. prevent certain modifications to their works under 4 See Joshua Rogers, How to Outsmart the 5 See United States Copyright Office, Droit De the Visual Artists Rights Act (VARA), 17 U.S.C. Billionaires Who’ll Bid $80 Million for ‘‘The Suite: The Artist’s Resale Royalty 2 (1992) 106A. VARA does not provide additional economic Scream,’’ Forbes, Apr. 4, 2012, available at http:// (‘‘Report’’), available at http://www.copyright.gov/ benefits. www.forbes.com/sites/joshuarogers/2012/04/04/ history/droit_de_suite.pdf.

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alienability, types of works and C. State Law 50% of net royalty into an escrow retroactivity. Congress did not enact To date, the only resale royalty account to support U.S. nonprofit legislation creating a resale royalty right legislation in the United States has been museums in their future purchases of at the federal level and there has been at the state level in California, where it visual art created by living artists no formal congressional deliberation on has operated with mixed success. The domiciled in the United States. Failure this topic since the 1992 report. In its California Resale Royalty Act was to remit the royalty to the collecting report, the Copyright Office also enacted in 1976 and imposes several society is copyright infringement subject suggested that Congress may wish to conditions prior to payment of the to statutory damages. The EVAA also review the issue if the European royalty: The artist must be a U.S. citizen directs the Register of Copyrights to Community extended royalty rights to or a California resident of at least two issue regulations governing the all of its Member States. years; the seller must reside in designation and oversight of visual artists’ collecting societies. B. International Developments California or the sale executed in California; the artwork must be ‘‘fine In a letter dated May 17, 2012, Since the Office published its study in art,’’ (i.e., an original sculpture, Senator Kohl and Representative Nadler 1992, the legal landscape in foreign painting, drawing, or work in glass); and requested that the Copyright Office jurisdictions with respect to resale the work must be sold for more money ‘‘assess how existing law affects and royalty treatment has changed. In 1992, than was paid for it and for at least supports visual artists, and how a thirty-six countries had resale royalty $1,000.9 The seller or seller’s agent is federal resale royalty provision would legislation; today, that number has required to pay the 5% royalty directly affect copyright law, visual artists and increased to more than sixty.6 In 2001, to the artist or the artist agent. If the those involved in the sale of art work.’’ the European Union adopted a Directive The Office therefore seeks comments latter cannot be found, the seller or generally requiring Member States to from interested parties on how visual seller’s agent must pay the royalty to the implement harmonized resale royalty artists exploit their works under existing California Arts Council, which legislation by 2006.7 The Directive law, including any limitations due to continues the search for the beneficiary requires Member States to establish a the nature of visual art, and the effect, artist. The California Arts Council does royalty for all resales involving an art not charge an administrative fee for this if any, a resale royalty right would have market professional, including auctions, service. on the promotion, dissemination and private dealers and galleries. Member Notably, after thirty-five years on the sale of works of visual art. States have some flexibility to books, a federal district in California II. Discussion determine what threshold resale price recently declared the California Resale Ö There are a variety of factors to would trigger the royalty below 3,000 Royalty Act unconstitutional under the consider when examining how visual (euros), and to provide for compulsory Commerce Clause. The court concluded art is treated under the Copyright Act or optional collective management of that the state statute impinged on the and whether a federal resale royalty the royalty. The Directive caps the federal government’s authority to Ö right would foster the goals of the royalty at 12,500, regardless of the control commerce among the states resale price. As a result of the Directive, copyright system. Among the issues are: because it regulated sales occurring Current Copyright Law Implications: droit de suite is now a component of wholly outside of California.10 An The first sale doctrine (17 U.S.C. 109) is national laws across the European appeal is pending in the United States a fundamental tenet of U.S. law. It helps community. The United Kingdom, Court of Appeals for the Ninth Circuit. which is one of the largest art markets to maintain the copyright system’s in the world, implemented its resale D. Proposed Legislation balance between incentives for authors royalty legislation in 2006. Artists also On December 15, 2011, Senator Kohl and the public’s interest in widespread receive resale royalties in many of Wisconsin and Representative Nadler dissemination of copyrighted works. countries outside of the European of New York introduced bills in the How a federal resale royalty right would Union, including Algeria, Australia, 112th Congress titled, Equity for Visual affect the first sale doctrine is therefore Bolivia, Brazil, Bulgaria, Burkina Faso, Artists Act of 2011 (EVAA), S.2000 and of paramount interest to the Office, as is Chile, Congo, Columbia, Costa Rica, H.R. 3688 respectively. The EVAA the interaction with any other Croatia, Ecuador, Guatemala, Guinea, requires a resale royalty right, under exceptions and limitations that support Hondorus, Iraq, Ivory Coast, Laos, certain circumstances, to be collected the dissemination of works of art to the Madagascar, Mali, Mexico, Monaco, from the seller. The proposed royalty public. Morocco, Nicaragua, Paragua, Panama, would be triggered when a work of Promoting Production of Creative Peru, Peru, Philippines, Romania, visual art is sold at auction for at least Works: Copyright law furthers the Russian Federation, Senegal, Serbia and $10,000 by someone other than the creation and/or distribution of new Montenegro, Tunisia, Turkey, Uruguay authoring artist. Following the sale, the works and provides authors (and those 8 and Venezuela. entity receiving the proceeds pays a who invest in the works of authors) with royalty of 7% to a qualifying visual certain incentives and protections under 6 See id. at 8; see also The Artist’s Resale Right artists’ collecting society. The collecting the law. Therefore, whether the Regulations, 2006 S.I. 346 (U.K.), at art. 2, schedule adoption of a federal resale royalty 2; Liste de Pays Dont le Ressotissants Beneficiant society is required to distribute 50% of du Droit de Suite a Juin 2007 (‘‘List of Countries’’) the net royalty to the artists or successor regime would further incentivize and [List of Countries whose Citizens Benefit from the as copyright owner and place the other protect the authors of certain visual Resale Royalty Right as of June 2007], Societe des artworks is also of paramount interest to Auteurs dans les Arts Graphiques et Plastiques, the Office. available at http://www.adagp.fr/ENG/ Countries whose Citizens Benefit from the Resale Liste_pays_droit_de_suite.pdf. Royalty Right as of June 2007], Societe des Auteurs Fostering the Art Marketplace: The 7 Council Directive 2001/84/EC of the European dans les Arts Graphiques et Plastiques, available at effect of a resale royalty on current or Parliament and of the Council of 27 September 2001 http://www.adagp.fr/ENG/ future markets is a related, important _ _ _ _ on the Resale for the Benefit of the Author of an Liste pays droit de suite.pdf. question, though that is not to say that Original Work of Art, art 1, 2001 O.J. (L 272) 32– 9 CAL. CIV. CODE § 986 (West 2012). 36. 10 See Estate of Graham v. Sotheby’s Inc., 11–CV– the law must or should protect all 8 See Liste de Pays Dont le Ressotissants 08604, 2012 WL 1765445 at *1–2 (C.D. Cal. May 17, existing business models. Is it possible, Beneficiant du Droit de Suite a Juin 2007 [List of 2012). however, that a resale royalty right

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might add to the costs of those who buy resell works to private or corporate how the different thresholds may and invest in artworks and, if so, are clients. Other transactions occur in well support the goals behind the royalty. such costs acceptable from a policy publicized auctions, private auctions, Payment and Enforcement: It is perspective? In this regard, the art online or even through direct internet possible that under a resale royalty market should be broadly defined, sales. The laws in California, United scheme, the artist and the subsequent including emerging artists, heirs, Kingdom, France and Australia appear seller may have no contractual investors and collectors. to cover a broad range of transactions relationship and therefore the only Scope and Applicability of a Royalty: involving art market professionals, obligation on the payer of the royalty A threshold question is what categories including those through online sales, would likely be statutory. Therefore, of works should be covered under a private galleries and auctions. Given the any statute would likely include resale royalty right. For example, the variety of ways in which works of art provisions to enforce the payment of the California resale royalty provision are sold or transferred in the U.S. and royalty and remedies to both the artist governs works of ‘‘fine art, ‘‘while the across borders, a significant factor for and the collective management European Directive covers all ‘‘original the Office to consider is to what extent organization should such an works of art.’’ The EVAA would cover a resale royalty should apply or be organization be utilized. One may also works of ‘‘visual art’’ as defined in managed in the numerous commercial envision a situation in which the artists Section 101 of the U.S. Copyright Act. channels, or whether the resale royalty or his or her heirs are unable to be The Office is aware that some artists should apply to some types of located. The seller may not know how today work in series, producing limited transactions and not others. or have the means to locate the artist or numbers of identical works and some Duration of Term: One of the heirs, and may be under obligation to works that may have been sold as rationales for having a copyright term pay the royalty indefinitely. Calculating a Royalty: The basis for unique creations in the past are now extending post mortem of the author is calculating a resale royalty could be set sold in copies including, for example, to provide income and benefits to the in different ways, for example, based on so-called Internet Art. Moreover, some heirs of the artist or author. This the present sale price of the art work, or artists, though certainly not most, are rationale may not apply in the same way its appreciated value (i.e., the difference moving from a business model where to a federal resale royalty. Many between the initial sale price and works are sold to one where access is countries, however, simply follow their present sale price). Each formula for licensed. Such issues may inform the general copyright term (such as life of calculating a royalty rate could have appropriate scope of fine art, original art the author plus seventy years), while the or the like. different consequences for the artist and California state law uses a term of life Contractual Considerations: For any seller and would need to be considered of the author plus twenty years. Thus, number of reasons, an artist or his or her as part of the royalty mechanisms in heirs may not wish to participate in the consideration should be given to the place. resale royalty right process through a appropriate duration of such a right and Royalty Rate: The amount of the collecting society, and may wish instead how the specific duration or term of a royalty could affect the market and to pursue payment of a royalty directly right would support the goals of the artists in different ways and should be from the seller; or an artist or his or her copyright system. assessed, including reviewing the heirs may wish to waive or Threshold Values: Not every artist’s experience of other jurisdictions. The contractually discharge his or her right works sell for tens of thousands or even EVAA would set a royalty rate of 7%, to receive the royalty. For example, an millions of dollars. Many works may be while California and Australia set a artist may wish to waive the right to resold by collectors for hundreds or royalty of 5%. The European Directive receive the royalty in return for a higher thousands of dollars at local auctions, adopts a sliding scale based on the initial sale price rather than wait the charity events, or perhaps even some amount of the transaction, from 5% for years or decades for a work to sell at larger sales events. Any such resulting transactions involving sales of Ö50,000 auction, or an artist may wish to royalty from these smaller payments to a royalty of only 0.25% for contract privately with the initial seller may be outweighed by the costs transactions over Ö500,000. The to provide for a payment of a percentage incurred by making the payment. Also, European Directive also caps the of any future sales, although the if an artwork is sold at a charity event, maximum royalty at Ö12,500. The Office enforceability of this type of contractual the proceeds are not realized by the seeks information about what factors term has been questioned. In each seller, but by the charity. Under a should be considered in setting an instance, however, it is the artist setting traditional rubric, it appears that the appropriate royalty rate and how the their individual terms of sale and charity would be responsible for royalty rate might affect artists and the determining individual contractual payment of the royalty, which lessens art market. obligations with each initial seller, not the amount it may redirect toward its Administration of a Royalty: a statute. Alternatively, an artist may charitable efforts. The Office would find Additionally, if the royalty payments prefer to receive a lesser royalty in it helpful to explore the issue of are collectively managed, administrative return for a third party to administer whether a minimum amount of money costs born by the collecting society are and distribute payments due. realized from a sale must be attained in usually deducted from the final Perspective on the issue of how to order for the requirement of a royalty payment to the artist rather than added address the contractual issues payment to be made, and if so, what to the cost of the royalty paid by the associated with a resale royalty right, standards would be appropriate. For seller. The final amount paid to the including whether the right should be example, the California resale royalty artist or his or her heirs will transferable or waivable, is helpful to applies to sales of $1,000 or more, while undoubtedly be less than the amount the Office in exploring the practical the European directive sets a maximum collected and may not be fully known effect of a resale royalty. threshold of Ö3,000. The EVAA would until payment is made. In addition, a Types of Transactions: Art is bought impose a $10,000 threshold on certain level of transparency in such a and sold through myriad channels and transactions subject to the royalty. It collecting society would be required in venues. Many artists are affiliated with would be helpful to receive information order to provide the artists and his or galleries that buy, consign, sell and even about these varying approaches and her heirs with a sufficiently clear

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accounting of payments in relation to NATIONAL ARCHIVES AND RECORDS 1. Previously restricted textual the administrative costs associated with ADMINISTRATION materials. Volume: 91 documents operating as the collecting society. It consisting of approximately 1,000 pages. would be helpful to understand whether Nixon Presidential Historical Materials: A number of textual materials collective management of royalty Opening of Materials previously withheld from public access have been reviewed for release and/or payments should be proposed, and if so, AGENCY: National Archives and Records what type of entity should be authorized Administration declassified under the systematic declassification review provisions of (e.g., government or private) and what ACTION: Notice of opening of additional standards should apply. Executive Order 13526, the Freedom of materials Information Act (5 U.S.C. 552), or in Experience in other Jurisdictions: As SUMMARY: This notice announces the accordance with 36 CFR 1275.56 (Public noted above, a resale royalty currently opening of additional Nixon Access regulations). The materials are applies under state law in California, as Presidential Historical Materials by the from integral file segments for the well as in many European and Latin Richard Nixon Presidential Library and National Security Council Institutional American countries. These jurisdictions Museum, a division of the National Files; and the Henry A. Kissinger (HAK) have taken different approaches to the Archives and Records Administration. Office Files. issues identified above (i.e., transactions Notice is hereby given that, in Dated: September 7, 2012. covered, thresholds, royalty rates and accordance with section 104 of Title I of David Ferriero, administration). It would be helpful for the Presidential Recordings and Archivist of the United States. the Copyright Office to receive Materials Preservation Act (PRMPA, 44 [FR Doc. 2012–22993 Filed 9–18–12; 8:45 am] information on the practical experience U.S.C. 2111 note) and 1275.42(b) of the BILLING CODE 7515–01–P of those jurisdictions, any obstacles that PRMPA Regulations implementing the may have been encountered, and data Act (36 CFR Part 1275), the Agency has on the effect of the right on those identified, inventoried, and prepared for NATIONAL ARCHIVES AND RECORDS markets. public access additional textual ADMINISTRATION materials with certain information Changes Since the Last Report: The redacted as required by law, including Records Schedules; Availability and Copyright Office last reviewed the resale the PRMPA. Request for Comments royalty in 1992. It is therefore interested DATES: The Richard Nixon Presidential AGENCY: National Archives and Records in any information addressing whether Library and Museum intends to make Administration (NARA). there have been significant policy or the materials described in this notice economic changes that should be available to the public on Tuesday, ACTION: Notice of availability of considered when assessing the current October 23, 2012, at the Richard Nixon proposed records schedules; request for feasibility of a resale royalty. Library and Museum’s primary location comments. Alternatives to a Resale Royalty: As in Yorba Linda, CA, beginning at 10:00 SUMMARY: The National Archives and the Copyright Office acknowledged in a.m. PDT/1:00 p.m. EDT. In accordance Records Administration (NARA) its 1992 report, there may be with 36 CFR 1275.44, any person who publishes notice at least once monthly alternatives to a resale royalty that believes it necessary to file a claim of of certain Federal agency requests for would further the goals of promoting legal right or privilege concerning records disposition authority (records creativity and the public dissemination access to these materials must notify the schedules). Once approved by NARA, of visual art. Archivist of the United States in writing records schedules provide mandatory of the claimed right, privilege, or instructions on what happens to records IV. Subject of Inquiry and Conclusion defense within 30 days of the when no longer needed for current publication of this notice. Government business. They authorize The Office hereby seeks comment ADDRESSES: The Richard Nixon the preservation of records of from the public on factual and policy Presidential Library and Museum, a continuing value in the National matters addressed above, including the division of the National Archives, is Archives of the United States and the potential effect of a resale royalty on located at 18001 Yorba Linda Blvd., destruction, after a specified period, of visual artists, current copyright law and Yorba Linda, CA. Researchers must have records lacking administrative, legal, practical implications for commerce. If a NARA researcher card, which they research, or other value. Notice is there are any pertinent issues not may obtain when they arrive at the published for records schedules in discussed above, the Office encourages Library. Selections from these materials which agencies propose to destroy interested parties to raise those matters will be available at records not previously authorized for in their comments. The Office may also www.nixonlibrary.gov. Petitions disposal or reduce the retention period publish a further Notice of Inquiry asserting a legal or constitutional right of records already authorized for posing specific questions and possibly or privilege that would prevent or limit disposal. NARA invites public exploring additional alternatives public access to the materials must be comments on such records schedules, as following the receipt of comments in sent to the Archivist of the United required by 44 U.S.C. 3303a(a). response to this Notice. States, National Archives at College DATES: Requests for copies must be Park, 8601 Adelphi Rd., College Park, Dated: September 13, 2012. received in writing on or before October Maryland 20740–6001. 19, 2012. Once the appraisal of the Karyn Temple Claggett, FOR FURTHER INFORMATION CONTACT: Paul records is completed, NARA will send Senior Counsel for Policy and International Wormser, Acting Director, Richard a copy of the schedule. NARA staff Affairs. Nixon Presidential Library and usually prepare appraisal [FR Doc. 2012–23076 Filed 9–18–12; 8:45 am] Museum, 714–983–9119. memorandums that contain additional BILLING CODE 1410–30–P SUPPLEMENTARY INFORMATION: The information concerning the records following materials will be made covered by a proposed schedule. These, available in accordance with this notice: too, may be requested and will be

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provided once the appraisal is thorough consideration of their include corporations’ income tax forms, completed. Requesters will be given 30 administrative use by the agency of schedules, and related records used to days to submit comments. origin, the rights of the Government and report income, deductions, and tax ADDRESSES: You may request a copy of of private persons directly affected by liabilities. any records schedule identified in this the Government’s activities, and 6. Department of Treasury, Internal notice by contacting Records whether or not they have historical or Revenue Service (N1–58–12–6, 1 item, 1 Management Services (ACNR) using one other value. temporary item). Master files of an of the following means: Besides identifying the Federal electronic information system used to Mail: NARA (ACNR), 8601 Adelphi agencies and any subdivisions validate public access for online Road, College Park, MD 20740–6001. requesting disposition authority, this services. Email: [email protected]. public notice lists the organizational 7. Department of Treasury, Internal FAX: 301–837–3698. unit(s) accumulating the records or Revenue Service (N1–58–12–16, 6 Requesters must cite the control indicates agency-wide applicability in items, 6 temporary items). Inputs, number, which appears in parentheses the case of schedules that cover records outputs, master files, and system after the name of the agency which that may be accumulated throughout an documentation of electronic information submitted the schedule, and must agency. This notice provides the control systems used to monitor organizational provide a mailing address. Those who number assigned to each schedule, the and business performance and to desire appraisal reports should so total number of schedule items, and the evaluate customer service and employee indicate in their request. number of temporary items (the records training activities. 8. Congressional Budget Office, FOR FURTHER INFORMATION CONTACT: proposed for destruction). It also Agency-wide (N1–520–12–1, 14 items, 6 Margaret Hawkins, Director, National includes a brief description of the temporary items). Comprehensive Records Management Program (ACNR), temporary records. The records schedule covering all agency records, National Archives and Records schedule itself contains a full including general working files, Administration, 8601 Adelphi Road, description of the records at the file unit background information, drafts, College Park, MD 20740–6001. level as well as their disposition. If administrative files, and non-significant Telephone: 301–837–1799. Email: NARA staff has prepared an appraisal correspondence. Proposed for [email protected]. memorandum for the schedule, it too includes information about the records. permanent retention are final products SUPPLEMENTARY INFORMATION: Each year Further information about the distributed to the public and to Federal agencies create billions of disposition process is available on Congress, essential models and analytic records on paper, film, magnetic tape, request. files, significant correspondence, and other media. To control this product files for senior agency officials accumulation, agency records managers Schedules Pending and panels of advisers, and official prepare schedules proposing retention 1. Department of Health and Human policies and manuals. periods for records and submit these Services, Centers for Medicare & 9. Environmental Protection Agency, schedules for NARA’s approval, using Medicaid Services (DAA–0440–2012– Agency-wide (DAA–0412–2012–0002, 2 the Standard Form (SF) 115, Request for 0011, 1 item, 1 temporary item). Master items, 2 temporary items). Records Records Disposition Authority. These files of an electronic information system related to health and safety, including schedules provide for the timely transfer containing records related to allegations property safety inspections into the National Archives of of fraud, waste, and abuse received by 10. Environmental Protection Agency, historically valuable records and the Office of Inspector General. Agency-wide (DAA–0412–2012–0004, 3 authorize the disposal of all other 2. Department of Health and Human items, 3 temporary items). Records records after the agency no longer needs Services, Immediate Office of the relating to the acquisition and them to conduct its business. Some Secretary (DAA–0468–2011–0006, 3 management of facilities, including schedules are comprehensive and cover items, 1 temporary item). Background design, layout, construction, lease, and all the records of an agency or one of its materials, working files, drafts, and ownership agreements. major subdivisions. Most schedules, notes of the Secretary’s correspondence. 11. Environmental Protection Agency, however, cover records of only one Proposed for permanent retention are Agency-wide (DAA–0412–2012–0007, 3 office or program or a few series of official correspondence, master files of items, 3 temporary items). Records records. Many of these update an electronic information system related to activities associated with previously approved schedules, and containing scanned correspondence, planning, preparing, and monitoring some include records proposed as significant working files, and drafts. business-related travel. permanent. 3. Department of Justice, U.S. Trustee 12. Federal Communications The schedules listed in this notice are Program (DAA–0060–2012–0004, 2 Commission, International Bureau (N1– media neutral unless specified items, 2 temporary items). Inputs and 173–11–6, 3 items, 3 temporary items). otherwise. An item in a schedule is master files of an electronic information Circuit status reports filed annually by media neutral when the disposition system which tracks final bankruptcy common carriers providing instructions may be applied to records trustee reports. international telecommunications regardless of the medium in which the 4. Department of Labor, Office of the service, the instruction manual used to records are created and maintained. Secretary (N1–386–12–1, 3 items, 1 file reports, and annual statistical Items included in schedules submitted permanent item). Records of the compilations of all received reports. to NARA on or after December 17, 2007, Employees’ Compensation Appeals 13. National Aeronautics and Space are media neutral unless the item is Board, including records relating to Administration, Agency-wide (DAA– limited to a specific medium. (See 36 docket files and general files. Proposed 0255–2012–0002, 4 items, 4 temporary CFR 1225.12(e).) for permanent retention are decisions items). Records relating to mobile and No Federal records are authorized for and orders. stationary lifting equipment. Included destruction without the approval of the 5. Department of Treasury, Internal are design files, inspection reports, Archivist of the United States. This Revenue Service (N1–58–12–1, 12 servicing documents, and operator approval is granted only after a items, 12 temporary items). Records inspection records.

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Dated: September 10, 2012. document is referenced. The Smith An NRC administrative review, Paul M. Wester, Jr., Ranch Highland Uranium Project documented in a letter to PRI dated July Chief Records Officer for the U.S. license renewal request is available 5, 2012, found the application Government. electronically in ADAMS: Accession acceptable to begin a technical review [FR Doc. 2012–22995 Filed 9–18–12; 8:45 am] No. ML12234A537 (Smith Ranch (ADAMS Accession No. ML12159A511). BILLING CODE 7515–01–P Technical Report); Accession No. Prior to approving the renewal request, ML12234A539 (Smith Ranch the NRC will need to make the findings Environmental Report). In addition to required by the Atomic Energy Act of NUCLEAR REGULATORY the technical report and environmental 1954, as amended (the Act), and the COMMISSION report, PRI submitted copies of its NRC’s regulations. The NRC’s findings Wyoming Department of Environmental will be documented in a safety [Docket No. 04008964, NRC–2012–0214] Quality (WDEQ) reports. These are evaluation report and an environmental available in ADAMS under Accession review report (Environmental Power Resources, Inc., Smith Ranch No. ML12234A545 (Smith Ranch WDEQ Assessment or an Environmental Impact Highland Uranium Project; License Permit); Accession No. ML12234A547 Statement). The environmental review Renewal Request, Opportunity To (North Butte WDEQ Permit); Accession report will be the subject of a Request a Hearing and To Petition for No. ML12234A548 (Gas Hills WDEQ subsequent notice in the Federal Leave To Intervene, and Commission Permit); Accession No. ML12234A554 Register. Order Imposing Procedures for (Ruth WDEQ Permit). Documents Document Access II. Opportunity To Request a Hearing related to the application can be found The NRC hereby provides notice that AGENCY: U.S. Nuclear Regulatory in ADAMS under Docket No. 04008964. this is a proceeding on a renewal to Commission. • NRC’s PDR: The public may Source Material License SUA–1548 to ACTION: Notice of license renewal examine and have copied for a fee continue operation of the Smith Ranch request; opportunity to request a hearing publicly available documents at the Highland Uranium Project. and to petition for leave to intervene, NRC’s PDR, Room O1 F21, One White Requirements for hearing requests and and Commission order. Flint North, 11555 Rockville Pike, petitions for leave to intervene are Rockville, Maryland 20852. found in 10 CFR 2.309, ‘‘Hearing DATES: Requests for a hearing or leave to FOR FURTHER INFORMATION CONTACT: requests, petitions to intervene, intervene must be filed by November 19, Douglas T. Mandeville, Senior Project requirements for standing, and 2012. Any potential party as defined in Manager, Uranium Recovery Licensing contentions.’’ Interested persons should 10 CFR 2.4 who believes access to Branch, Division of Waste Management consult 10 CFR Part 2, section 2.309, Sensitive Unclassified Non-Safeguards and Environmental Protection, Office of which is available at the NRC’s PDR, Information and/or Safeguards Federal and State Materials and located at O1 F21, One White Flint Information is necessary to respond to Environmental Management Programs, North, 11555 Rockville Pike, Rockville, this notice must request document U.S. Nuclear Regulatory Commission, MD 20852 (or call the PDR at 800–397– access by October 1, 2012. Washington, DC 20555–0001. 4209 or 301–415–4737). The NRC’s ADDRESSES: Please refer to Docket ID Telephone: 301–415–0724; fax number: regulations are also accessible online in NRC–2012–0214 when contacting the 301–415–5369; email: the NRC’s Library at http:// NRC about the availability of [email protected]. www.nrc.gov/reading-rm/doc- information regarding this document. collections/cfr/. You may access information related to SUPPLEMENTARY INFORMATION: III. Petitions for Leave To Intervene this document, which the NRC I. Introduction possesses and is publicly available, Any person whose interest may be using any of the following methods: By letter dated February 1, 2012, affected by this proceeding and who • Federal Rulemaking Web site: Go to Power Resources Inc. (PRI) submitted a wishes to participate as a party in the http://www.regulations.gov and search request to renew Source Material proceeding must file a written petition for documents filed under Docket ID License SUA–1548 to the U.S. Nuclear for leave to intervene. As required by 10 NRC–2012–0214. Address questions Regulatory Commission (NRC). License CFR 2.309, a petition for leave to about NRC dockets to Carol Gallagher SUA–1548 authorizes uranium in-situ intervene shall set forth with 301–492–3668; email recovery (ISR) operations at the Smith particularity the interest of the [email protected]. Ranch Highland Uranium Project and its petitioner in the proceeding and how • NRC’s Agencywide Documents related satellite facilities at Gas Hills, that interest may be affected by the Access and Management System Ruth, and North Butte. The Smith results of the proceeding. The petition (ADAMS): You may access publicly Ranch Highland Uranium Project is must provide the name, address, and available documents online in the NRC located in Converse County, Wyoming. telephone number of the petitioner and Library at http://www.nrc.gov/reading- The Gas Hills satellite facility is located specifically explain the reasons why rm/adams.html. To begin the search, in Fremont and Natrona Counties, intervention should be permitted with select ‘‘ADAMS Public Documents’’ and Wyoming. The Ruth satellite is located particular reference to the following then select ‘‘Begin Web-based ADAMS in Johnson County, Wyoming. The factors: (1) The nature of the petitioner’s Search.’’ For problems with ADAMS, North Butte satellite is located in right under the Act to be made a party please contact the NRC’s Public Campbell County, Wyoming. PRI has to the proceeding; (2) the nature and Document Room (PDR) reference staff at requested that License SUA–1548 be extent of the petitioner’s property, 1–800–397–4209, 301–415–4737, or by renewed as a performance-based license financial, or other interest in the email to [email protected]. The for an additional 10-year period. The proceeding; and (3) the possible effect of ADAMS accession number for each renewal, if granted, would allow for any order that may be entered in the document referenced in this notice (if continued operations and the recovery proceeding on the petitioner’s interest. that document is available in ADAMS) of uranium using ISR techniques as A petition for leave to intervene must is provided the first time that a previously licensed by the NRC. also include a specification of the

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contentions that the petitioner seeks to (iii) the filing has been submitted in a [email protected], or by telephone have litigated in the hearing. For each timely fashion based on the availability at 301–415–1677, to request (1) a digital contention, the petitioner must provide of the subsequent information. ID certificate, which allows the a specific statement of the issue of law A State, local governmental body, participant (or its counsel or or fact to be raised or controverted, as Federally-recognized Indian Tribe, or representative) to digitally sign well as a brief explanation of the basis agency thereof may submit a petition to documents and access the E-Submittal for the contention. Additionally, the the Commission to participate as a party server for any proceeding in which it is petitioner must demonstrate that the under 10 CFR 2.309(h)(1) and (2). The participating; and (2) advise the issue raised by each contention is petition should state the nature and Secretary that the participant will be within the scope of the proceeding and extent of the petitioner’s interest in the submitting a request or petition for is material to the findings the NRC must proceeding. The petition should be hearing (even in instances in which the make to support the granting of a license submitted to the Commission by participant, or its counsel or amendment in response to the November 19, 2012. The petition must representative, already holds an NRC- application. The petition must also be filed in accordance with the filing issued digital ID certificate). Based upon include a concise statement of the instructions in section IV of this this information, the Secretary will alleged facts or expert opinions which document, and should meet the establish an electronic docket for the support the position of the petitioner requirements for petitions for leave to hearing in this proceeding if the and on which the petitioner intends to intervene set forth in this section, Secretary has not already established an rely at hearing, together with references except that under 2.309(h)(2) a State, electronic docket. to the specific sources and documents local governmental body, or Federally- Information about applying for a on which the petitioner intends to rely. recognized Indian tribe does not need to digital ID certificate is available on Finally, the petition must provide address the standing requirements in 10 NRC’s public Web site at http:// sufficient information to show that a CFR 2.309(d) if the facility is located www.nrc.gov/site-help/e-submittals/ genuine dispute exists with the within its boundaries. A State, local apply-certificates.html. System applicant on a material issue of law or governmental body, Federally- requirements for accessing the E- fact, including references to specific recognized Indian Tribe, or agency Submittal server are detailed in NRC’s portions of the application for thereof may also have the opportunity to ‘‘Guidance for Electronic Submission,’’ amendment that the petitioner disputes participate under 10 CFR 2.315(c). which is available on the agency’s and the supporting reasons for each If a hearing is granted, any person public Web site at http://www.nrc.gov/ dispute, or, if the petitioner believes who does not wish to become a party to site-help/e-submittals.html. Participants that the application for amendment fails the proceeding may, in the discretion of may attempt to use other software not to contain information on a relevant the presiding officer, be permitted to listed on the Web site, but should note matter as required by law, the make a limited appearance under 10 that the NRC’s E-Filing system does not identification of each failure and the CFR 2.315(a), by making an oral or support unlisted software, and the NRC supporting reasons for the petitioner’s written statement of his or her position Meta System Help Desk will not be able belief. Each contention must be one on the issues at any session of the to offer assistance in using unlisted that, if proven, would entitle the hearing or at any pre-hearing software. petitioner to relief. conference, within the limits and If a participant is electronically Those permitted to intervene become conditions fixed by the presiding submitting a document to the NRC in parties to the proceeding, subject to any officer. However, that person may not accordance with the E-Filing rule, the limitations in the order granting leave to otherwise participate in the proceeding. participant must file the document using the NRC’s online, Web-based intervene, and have the opportunity to IV. Electronic Submissions (E-Filing) participate fully in the conduct of the submission form. In order to serve hearing with respect to resolution of All documents filed in NRC documents through EIE, users will be that person’s admitted contentions, adjudicatory proceedings, including a required to install a Web browser plug- including the opportunity to present request for hearing, a petition for leave in from the NRC Web site. Further evidence and to submit a cross- to intervene, any motion or other information on the Web-based examination plan for cross-examination document filed in the proceeding prior submission form, including the of witnesses, consistent with NRC to the submission of a request for installation of the Web browser plug-in, regulations, policies, and procedures. hearing or petition to intervene, and is available on the NRC’s public Web The Atomic Safety and Licensing Board documents filed by interested site at http://www.nrc.gov/site-help/e- will set the time and place for any governmental entities participating submittals.html. prehearing conferences and evidentiary under 10 CFR 2.315(c), must be filed in Once a participant has obtained a hearings, and the appropriate notices accordance with the NRC E-Filing rule digital ID certificate and a docket has will be provided. (72 FR 49139, August 28, 2007). The E- been created, the participant can then Requests for hearing, petitions for Filing process requires participants to submit a request for hearing or petition leave to intervene, and motions for leave submit and serve all adjudicatory for leave to intervene. Submissions to file contentions that are filed after the documents over the internet, or in some should be in Portable Document Format deadline in 10 CFR 2.309(b) will not be cases to mail copies on electronic (PDF) in accordance with NRC guidance entertained absent a determination by storage media. Participants may not available on the NRC public Web site at the presiding officer that the new or submit paper copies of their filings http://www.nrc.gov/site-help/e- amended filing demonstrates good cause unless they seek an exemption in submittals.html. A filing is considered by satisfying the following three factors accordance with the procedures complete at the time the documents are in 10 CFR 2.309(c)(1): (i) The described below. submitted through the NRC’s E-Filing information upon which the filing is To comply with the procedural system. To be timely, an electronic based was not previously available; (ii) requirements of E-Filing, at least ten filing must be submitted to the E-Filing the information upon which the filing is (10) days prior to the filing deadline, the system no later than 11:59 p.m. Eastern based is materially different from participant should contact the Office of Time on the due date. Upon receipt of information previously available; and the Secretary by email at a transmission, the E-Filing system

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time-stamps the document and sends Documents submitted in adjudicatory [email protected], respectively.1 the submitter an email notice proceedings will appear in NRC’s The request must include the following confirming receipt of the document. The electronic hearing docket which is information: E-Filing system also distributes an email available to the public at http:// (1) A description of the licensing notice that provides access to the ehd1.nrc.gov/EHD/, unless excluded action with a citation to this Federal document to the NRC Office of the pursuant to an order of the Commission, Register notice; General Counsel and any others who or the presiding officer. Participants are (2) The name and address of the have advised the Office of the Secretary requested not to include personal potential party and a description of the that they wish to participate in the privacy information, such as social potential party’s particularized interest proceeding, so that the filer need not security numbers, home addresses, or that could be harmed by the action serve the documents on those home phone numbers in their filings, identified in C.(1); (3) The identity of the individual or participants separately. Therefore, unless an NRC regulation or other law entity requesting access to SUNSI and applicants and other participants (or requires submission of such the requester’s basis for the need for the their counsel or representative) must information. With respect to information in order to meaningfully apply for and receive a digital ID copyrighted works, except for limited participate in this adjudicatory certificate before a hearing request/ excerpts that serve the purpose of the petition to intervene is filed so that they proceeding. In particular, the request adjudicatory filings and would can obtain access to the document via must explain why publicly-available constitute a Fair Use application, the E-Filing system. versions of the information requested A person filing electronically using participants are requested not to include would not be sufficient to provide the the agency’s adjudicatory E-Filing copyrighted materials in their basis and specificity for a proffered system may seek assistance by submission. contention; contacting the NRC Meta System Help Order Imposing Procedures for Access D. Based on an evaluation of the Desk through the ‘‘Contact Us’’ link to Sensitive Unclassified Non- information submitted under paragraph located on the NRC Web site at http:// Safeguards Information for Contention C.(3) the NRC staff will determine www.nrc.gov/site-help/e- Preparation within 10 days of receipt of the request submittals.html, by email at whether: [email protected], or by a toll- A. This Order contains instructions (1) There is a reasonable basis to free call at 866–672–7640. The NRC regarding how potential parties to this believe the petitioner is likely to Meta System Help Desk is available proceeding may request access to establish standing to participate in this between 8 a.m. and 8 p.m., Eastern documents containing Sensitive NRC proceeding; and Time, Monday through Friday, Unclassified Non-Safeguards (2) The requestor has established a excluding government holidays. Information (SUNSI). legitimate need for access to SUNSI. Participants who believe that they E. If the NRC staff determines that the have a good cause for not submitting B. Within 10 days after publication of requestor satisfies both D.(1) and D.(2) documents electronically must file an this notice of hearing and opportunity to above, the NRC staff will notify the exemption request, in accordance with petition for leave to intervene, any requestor in writing that access to 10 CFR 2.302(g), with their initial paper potential party who believes access to SUNSI has been granted. The written filing requesting authorization to SUNSI is necessary to respond to this notification will contain instructions on continue to submit documents in paper notice may request such access. A how the requestor may obtain copies of format. Such filings must be submitted ‘‘potential party’’ is any person who the requested documents, and any other by: (1) First class mail addressed to the intends to participate as a party by conditions that may apply to access to Office of the Secretary of the demonstrating standing and filing an those documents. These conditions may Commission, U.S. Nuclear Regulatory admissible contention under 10 CFR include, but are not limited to, the Commission, Washington, DC 20555– 2.309. Requests for access to SUNSI signing of a Non-Disclosure Agreement 0001, Attention: Rulemaking and submitted later than 10 days after or Affidavit, or Protective Order 2 setting Adjudications Staff; or (2) courier, publication will not be considered forth terms and conditions to prevent express mail, or expedited delivery absent a showing of good cause for the the unauthorized or inadvertent service to the Office of the Secretary, late filing, addressing why the request disclosure of SUNSI by each individual Sixteenth Floor, One White Flint North, could not have been filed earlier. who will be granted access to SUNSI. 11555 Rockville Pike, Rockville, C. The requester shall submit a letter F. Filing of Contentions. Any Maryland, 20852, Attention: contentions in these proceedings that requesting permission to access SUNSI Rulemaking and Adjudications Staff. are based upon the information received to the Office of the Secretary, U.S. Participants filing a document in this as a result of the request made for Nuclear Regulatory Commission, manner are responsible for serving the SUNSI must be filed by the requestor no Washington, DC 20555–0001, Attention: document on all other participants. later than 25 days after the requestor is Rulemakings and Adjudications Staff, Filing is considered complete by first- granted access to that information. and provide a copy to the Associate class mail as of the time of deposit in However, if more than 25 days remain the mail, or by courier, express mail, or General Counsel for Hearings, Enforcement and Administration, Office expedited delivery service upon 1 While a request for hearing or petition to depositing the document with the of the General Counsel, Washington, DC intervene in this proceeding must comply with the provider of the service. A presiding 20555–0001. The expedited delivery or filing requirements of the NRC’s ‘‘E-Filing Rule,’’ courier mail address for both offices is: the initial request to access SUNSI under these officer, having granted an exemption procedures should be submitted as described in this request from using E-Filing, may require U.S. Nuclear Regulatory Commission, paragraph. a participant or party to use E-Filing if 11555 Rockville Pike, Rockville, 2 Any motion for Protective Order or draft Non- the presiding officer subsequently Maryland 20852. The email address for Disclosure Affidavit or Agreement for SUNSI must determines that the reason for granting the Office of the Secretary and the be filed with the presiding officer or the Chief Office of the General Counsel are Administrative Judge if the presiding officer has not the exemption from use of E-Filing no yet been designated, within 30 days of the deadline longer exists. [email protected] and for the receipt of the written access request.

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between the date the petitioner is unavailable, another administrative granting or denying access) is governed granted access to the information and judge, or an administrative law judge by 10 CFR 2.311.3 the deadline for filing all other with jurisdiction pursuant to 10 CFR I. The Commission expects that the contentions (as established in the notice 2.318(a); or (c) if another officer has NRC staff and presiding officers (and of hearing or opportunity for hearing), been designated to rule on information any other reviewing officers) will the petitioner may file its SUNSI access issues, with that officer. consider and resolve requests for access contentions by that later deadline. H. Review of Grants of Access. A to SUNSI, and motions for protective G. Review of Denials of Access. party other than the requestor may orders, in a timely fashion in order to (1) If the request for access to SUNSI challenge an NRC staff determination minimize any unnecessary delays in is denied by the NRC staff either after granting access to SUNSI whose release identifying those petitioners who have a determination on standing and need would harm that party’s interest standing and who have propounded for access, or after a determination on independent of the proceeding. Such a contentions meeting the specificity and trustworthiness and reliability, the NRC challenge must be filed with the Chief basis requirements in 10 CFR Part 2. staff shall immediately notify the Administrative Judge within 5 days of Attachment 1 to this Order summarizes requestor in writing, briefly stating the the notification by the NRC staff of its the general target schedule for reason or reasons for the denial. grant of access. processing and resolving requests under (2) The requestor may challenge the If challenges to the NRC staff these procedures. NRC staff’s adverse determination by determinations are filed, these It is so ordered. filing a challenge within 5 days of procedures give way to the normal receipt of that determination with: (a) process for litigating disputes Dated at Rockville, Maryland, this 13th day The presiding officer designated in this concerning access to information. The of September 2012. proceeding; (b) if no presiding officer availability of interlocutory review by For the Commission. has been appointed, the Chief the Commission of orders ruling on Annette L. Vietti-Cook, Administrative Judge, or if he or she is such NRC staff determinations (whether Secretary of the Commission.

ATTACHMENT 1—GENERAL TARGET SCHEDULE FOR PROCESSING AND RESOLVING REQUESTS FOR ACCESS TO SENSITIVE UNCLASSIFIED NON-SAFEGUARDS INFORMATION IN THIS PROCEEDING

Day Event/activity

0 ...... Publication of Federal Register notice of hearing and opportunity to petition for leave to intervene, including order with in- structions for access requests. 10 ...... Deadline for submitting requests for access to Sensitive Unclassified Non-Safeguards Information (SUNSI) with information: supporting the standing of a potential party identified by name and address; describing the need for the information in order for the potential party to participate meaningfully in an adjudicatory proceeding. 60 ...... Deadline for submitting petition for intervention containing: (i) Demonstration of standing; (ii) all contentions whose formula- tion does not require access to SUNSI (+25 Answers to petition for intervention; +7 petitioner/requestor reply). 20 ...... Nuclear Regulatory Commission (NRC) staff informs the requester of the staff’s determination whether the request for access provides a reasonable basis to believe standing can be established and shows need for SUNSI. (NRC staff also informs any party to the proceeding whose interest independent of the proceeding would be harmed by the release of the informa- tion.) If NRC staff makes the finding of need for SUNSI and likelihood of standing, NRC staff begins document processing (preparation of redactions or review of redacted documents). 25 ...... If NRC staff finds no ‘‘need’’ or no likelihood of standing, the deadline for petitioner/requestor to file a motion seeking a ruling to reverse the NRC staff’s denial of access; NRC staff files copy of access determination with the presiding officer (or Chief Administrative Judge or other designated officer, as appropriate). If NRC staff finds ‘‘need’’ for SUNSI, the deadline for any party to the proceeding whose interest independent of the proceeding would be harmed by the release of the information to file a motion seeking a ruling to reverse the NRC staff’s grant of access. 30 ...... Deadline for NRC staff reply to motions to reverse NRC staff determination(s). 40 ...... (Receipt +30) If NRC staff finds standing and need for SUNSI, deadline for NRC staff to complete information processing and file motion for Protective Order and draft Non-Disclosure Affidavit. Deadline for applicant/licensee to file Non-Disclosure Agreement for SUNSI. A ...... If access granted: Issuance of presiding officer or other designated officer decision on motion for protective order for access to sensitive information (including schedule for providing access and submission of contentions) or decision reversing a final adverse determination by the NRC staff. A + 3 ...... Deadline for filing executed Non-Disclosure Affidavits. Access provided to SUNSI consistent with decision issuing the protec- tive order. A + 28 ...... Deadline for submission of contentions whose development depends upon access to SUNSI. However, if more than 25 days remain between the petitioner’s receipt of (or access to) the information and the deadline for filing all other contentions (as established in the notice of hearing or opportunity for hearing), the petitioner may file its SUNSI contentions by that later deadline. A + 53 ...... (Contention receipt +25) Answers to contentions whose development depends upon access to SUNSI. A + 60 ...... (Answer receipt +7) Petitioner/Intervenor reply to answers. >A + 60 ...... Decision on contention admission.

3 Requesters should note that the filing staff determinations (because they must be served applicable), but not to the initial SUNSI request requirements of the NRC’s E-Filing Rule (72 FR on a presiding officer or the Commission, as submitted to the NRC staff under these procedures. 49139; August 28, 2007) apply to appeals of NRC

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[FR Doc. 2012–23064 Filed 9–18–12; 8:45 am] contact the Office of the Secretary, was filed in accordance with 39 CFR BILLING CODE 7590–01–P Washington, DC 20555 (301–415–1969), 3015.5. Notice at 1. or send an email to Background. Customers for GEPS [email protected]. contracts are small- or medium-size NUCLEAR REGULATORY Dated: September 14, 2012. businesses that mail products directly to COMMISSION foreign destinations using Express Mail Richard J. Laufer, International, Priority Mail Sunshine Act Meeting Technical Coordinator, Office of the International, or both. Id. at 4. Secretary. Governors’ Decision No. 08–7 (as GEPS AGENCY HOLDING THE MEETINGS: Nuclear [FR Doc. 2012–23198 Filed 9–17–12; 11:15 am] 1) established prices and classifications Regulatory Commission, [NRC–2012– BILLING CODE 7590–01–P not of general applicability for GEPS 0002]. contracts. Id. at 1. A grouping for GEPS DATES: Week of September 24, 2012. 3 contracts was later added to the PLACE: Commissioners’ Conference POSTAL REGULATORY COMMISSION competitive product list as an outcome Room, 11555 Rockville Pike, Rockville, [Docket No. CP2012–56; Order No. 1464] of Docket Nos. MC2010–28 and Maryland. CP2010–71. The contract filed in Docket STATUS: Public and Closed. New Postal Product No. CP2010–71 is the baseline ADDITIONAL ITEMS TO BE CONSIDERED: agreement for purposes of establishing AGENCY: Postal Regulatory Commission. whether subsequent agreements Week of September 24, 2012—Tentative ACTION: Notice. proposed for inclusion within the GEPS Tuesday, September 25, 2012 3 grouping are functionally equivalent. SUMMARY: The Commission is noticing a Id. at 1–2. 9:25 a.m.—Affirmation Session (Public recently-filed Postal Service request to Contents of filing. The filing includes Meeting) (Tentative) add a Global Expedited Package a Notice, along with the following a. Virginia Electric and Power Services contract to the competitive attachments: Company d/b/a Dominion Virginia product list. This notice addresses • Attachment 1–redacted copy of the Power and Old Dominion Electric procedural steps associated with the instant contract; Cooperative (North Anna Power filing. • Attachment 2–the redacted Station, Unit 3); Blue Ridge DATES: Comments are due: September certification required under 39 CFR Environmental Defense League’s 21, 2012. 3015.5(c)(2); (BREDL) Petition for Review of CLI– • Attachment 3–redacted copy of ADDRESSES: Submit comments 12–14 (Tentative) Governors’ Decision No. 08–7 electronically by accessing the ‘‘Filing This meeting will be webcast live at (including attachments thereto); and Online’’ link in the banner at the top of • Attachment 4–application for non- the Web address—www.nrc.gov. the Commission’s Web site (http:// * * * * * public treatment of the materials filed www.prc.gov) or by directly accessing under seal. *The schedule for Commission the Commission’s Filing Online system meetings is subject to change on short It also includes material filed under at https://www.prc.gov/pre-pages/filing- seal (consisting of the contract and notice. To verify the status of meetings, online/login.aspx. Commenters who call (recording) (301) 415–1292. Contact supporting documents); and Excel cannot submit their views electronically spreadsheets as to supporting financial person for more information: Rochelle should contact the person identified in Bavol, (301) 415–1651. data and information. the FOR FURTHER INFORMATION CONTACT In the Notice, the Postal Service * * * * * section as the source for case-related asserts that the instant contract and the The NRC Commission Meeting information for advice on alternatives to baseline contract are functionally Schedule can be found on the Internet electronic filing. equivalent because they share similar at: www.nrc.gov/about-nrc/policy- FOR FURTHER INFORMATION CONTACT: cost and market characteristics. Id. at 3. making/schedule.html. Stephen L. Sharfman, General Counsel, It notes that the pricing formula and * * * * * at 202–789–6820 (case-related classification established in the The NRC provides reasonable information) or [email protected] Governors’ Decision No. 08–7 ensure accommodation to individuals with (for electronic filing assistance). that each GEPS contract meets the disabilities where appropriate. If you SUPPLEMENTARY INFORMATION: criteria of 39 U.S.C. 3633 and related need a reasonable accommodation to regulations. Id. The Postal Service participate in these public meetings, or Table of Contents identifies differences between the need this meeting notice or the I. Introduction instant contract and the baseline transcript or other information from the II. Commission Action contract, but asserts that the differences public meetings in another format (e.g. III. Ordering Paragraphs do not affect either the fundamental braille, large print), please notify Bill service being offered or the fundamental Dosch, Chief, Work Life and Benefits I. Introduction structure of the contract. Id. at 3–6. The Branch, at 301–415–6200, TDD: 301– Notice of filing. On September 11, Postal Service also addresses pertinent 415–2100, or by email at 2012, the Postal Service filed a notice Mail Classification Schedule matters. Id. [email protected]. Determinations announcing that it is entering into an at 3. It states that, based on the on requests for reasonable additional Global Expedited Package discussion in its Notice and the accommodation will be made on a case- Services (GEPS) 3 contract.1 The Notice financial data provided under seal, the by-case basis. instant GEPS 3 contract is in * * * * * 1 Notice of United States Postal Service of Filing compliance with the requirements of 39 This notice is distributed a Functionally Equivalent Global Expedited U.S.C. 3633 and is functionally Package Services 3 Negotiated Service Agreement electronically to subscribers. If you no and Application for Non-Public Treatment of equivalent to the baseline contract, and longer wish to receive it, or would like Materials Filed Under Seal, September 11, 2012 therefore should be added to the GEPS to be added to the distribution, please (Notice). 3 product grouping.

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Expiration. The agreement is set to FOR FURTHER INFORMATION CONTACT: Management and Budget (OMB). Our expire 1 year after the Postal Service Elizabeth A. Reed, 202–268–3179. ICR describes the information we seek notifies the customer that all necessary SUPPLEMENTARY INFORMATION: The to collect from the public. Review and approvals and reviews of the agreement United States Postal Service® hereby approval by OIRA ensures that we have been obtained, including a gives notice that, pursuant to 39 U.S.C. impose appropriate paperwork burdens. favorable conclusion by the 3642 and 3632(b)(3), on September 13, The RRB invites comments on the Commission. Id. 2012, it filed with the Postal Regulatory proposed collections of information to determine (1) the practical utility of the II. Commission Action Commission a Request of the United States Postal Service to Add Priority collections; (2) the accuracy of the The Commission establishes Docket Mail Contract 43 to Competitive Product estimated burden of the collections; (3) No. CP2012–56 for consideration of List. Documents are available at ways to enhance the quality, utility, and matters raised in the Notice. Interested www.prc.gov, Docket Nos. MC2012–48, clarity of the information that is the persons may submit comments on CP2012–58. subject of collection; and (4) ways to whether the Postal Service’s contract is minimize the burden of collections on consistent with the policies of 39 U.S.C. Stanley F. Mires, respondents, including the use of 3632 and 3633. Comments are due no Attorney, Legal Policy & Legislative Advice. automated collection techniques or later than September 21, 2012. The [FR Doc. 2012–23081 Filed 9–18–12; 8:45 am] other forms of information technology. public portions of the Postal Service’s BILLING CODE 7710–12–P Comments to the RRB or OIRA must filing can be accessed via the contain the OMB control number of the Commission’s Web site at http:// ICR. For proper consideration of your www.prc.gov. POSTAL SERVICE comments, it is best if the RRB and The Commission appoints James F. OIRA receive them within 30 days of Product Change—Priority Mail Callow to represent the interest of the the publication date. Negotiated Service Agreement general public (Public Representative) 1. Title and purpose of information in this case. AGENCY: Postal ServiceTM. collection: Employee Representative’s III. Ordering Paragraphs ACTION: Notice. Status and Compensation Reports; OMB 3220–0014. It is ordered: SUMMARY: The Postal Service gives Under Section 1(b)(1) of the Railroad 1. The Commission establishes Docket notice of filing a request with the Postal Retirement Act (RRA), the term No. CP2012–56 for consideration of Regulatory Commission to add a ‘‘employee’’ includes an individual who matters raised in the Postal Service’s domestic shipping services contract to is an employee representative. As September 11, 2012 Notice. the list of Negotiated Service defined in Section 1(c) of the RRA, an 2. Pursuant to 39 U.S.C. 505, the Agreements in the Mail Classification employee representative is an officer or Commission designates James F. Callow Schedule’s Competitive Products List. official representative of a railway labor to serve as an officer of the Commission DATES: Effective date: September 19, organization other than a labor (Public Representative) to represent the 2012. organization included in the term interests of the general public in this ‘‘employer,’’ as defined in the RRA, who case. FOR FURTHER INFORMATION CONTACT: before or after August 29, 1935, was in 3. Comments by interested persons Elizabeth A. Reed, 202–268–3179. the service of an employer under the are due no later than September 21, SUPPLEMENTARY INFORMATION: The RRA and who is duly authorized and ® 2012. United States Postal Service hereby designated to represent employees in 4. The Secretary shall arrange for gives notice that, pursuant to 39 U.S.C. accordance with the Railway Labor Act, publication of this order in the Federal 3642 and 3632(b)(3), on September 13, or, any individual who is regularly Register. 2012, it filed with the Postal Regulatory assigned to or regularly employed by By the Commission. Commission a Request of the United such officer or official representative in Ruth Ann Abrams, States Postal Service to Add Priority connection with the duties of his or her Acting Secretary. Mail Contract 42 to Competitive Product office. The requirements relating to the List. Documents are available at [FR Doc. 2012–23110 Filed 9–18–12; 8:45 am] application for employee representative www.prc.gov, Docket Nos. MC2012–47, BILLING CODE 7710–FW–P status and the periodic reporting of the CP2012–57. compensation resulting from such status Stanley F. Mires, is contained in 20 CFR part 209.10. The RRB utilizes Forms DC–2a, POSTAL SERVICE Attorney, Legal Policy & Legislative Advice. Employee Representative’s Status [FR Doc. 2012–23082 Filed 9–18–12; 8:45 am] Report, and DC–2, Employee Product Change—Priority Mail BILLING CODE 7710–12–P Negotiated Service Agreement Representative’s Report of Compensation, to obtain the AGENCY: Postal ServiceTM information needed to determine RAILROAD RETIREMENT BOARD ACTION: Notice. employee representative status and to Agency Forms Submitted for OMB maintain a record of creditable service SUMMARY: The Postal Service gives Review, Request for Comments and compensation resulting from such notice of filing a request with the Postal status. Completion is required to obtain Regulatory Commission to add a SUMMARY: In accordance with the or retain a benefit. One response is domestic shipping services contract to Paperwork Reduction Act of 1995 (44 requested of each respondent. the list of Negotiated Service U.S.C. Chapter 35), the Railroad Previous Requests for Comments: The Agreements in the Mail Classification Retirement Board (RRB) is forwarding RRB has already published the initial Schedule’s Competitive Products List. three Information Collection Requests 60-day notice (77 FR 40657 on July 10, DATES: Effective date: September 19, (ICR) to the Office of Information and 2012) required by 44 U.S.C. 3506(c)(2). 2012. Regulatory Affairs (OIRA), Office of That request elicited no comments.

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Information Collection Request (ICR) Affected public: Private Sector; information regarding the status of such Title: Employee Representative’s Businesses or other for-profits. individuals and their compensation. Status and Compensation Reports. Abstract: Benefits are provided under Changes proposed: The RRB proposes OMB Control Number: 3220–0014. the Railroad Retirement Act (RRA) for a minor editorial change to both Forms Form(s) submitted: DC–2 and DC–2a. individuals who are employee DC–2 and DC–2a. Type of request: Revision of a representatives as defined in section 1 The burden estimate for the ICR is as currently approved collection of of the RRA. The collection obtains information. follows:

Annual Time Burden Form No. responses (minutes) (hours)

DC–2a ...... 3 15 1 DC–2 ...... 65 30 33

Total ...... 68 34

2. Title and Purpose of information tax withholding, the Railroad Information Collection Request (ICR) collection: Nonresident Questionnaire; Retirement Board (RRB) needs to know Title: Nonresident Questionnaire. OMB 3220–0145. Under Public Laws a nonresident’s citizenship and legal OMB Control Number: 3220–0145. 98–21 and 98–76, benefits under the residence status. Form(s) submitted: RRB–1001. Railroad Retirement Act payable to To secure the required information, Type of request: Extension without annuitants living outside the United the RRB utilizes Form RRB–1001, change of a currently approved States may be subject to taxation under Nonresident Questionnaire, as a collection. United States income tax laws. Whether supplement to an application as part of Affected public: Individuals or the social security equivalent and non- the initial application process, and as an Households. social security equivalent portions of independent vehicle for obtaining the Abstract: Under the Railroad Tier I, Tier II, vested dual benefit, or needed information when an Retirement Act, the benefits payable to supplemental annuity payments are annuitant’s residence or tax treaty status an annuitant living outside the United subject to tax withholding, and whether changes. Completion is voluntary. One States may be subject to withholding the same or different rates are applied response is requested of each under Public Laws 98–21 and 98–76. to each payment, depends on a respondent. The form obtains the information beneficiary’s citizenship and legal needed to determine the amount to be residence status, and whether Previous Requests for Comments: The withheld. exemption under a tax treaty between RRB has already published the initial Changes proposed: The RRB proposes the United States and the country in 60-day notice (77 FR 40658 on July 10, no changes to Form RRB–1001. which the beneficiary is a legal resident 2012) required by 44 U.S.C. 3506(c)(2). The burden estimate for the ICR is as has been claimed. To effect the required That request elicited no comments. follows:

Annual Time Burden Form No. responses (minutes) (hours)

RRB–1001 ...... 1,300 30 650

3. Title and Purpose of information non-railroad employment, an Previous Requests for Comments: The collection: Statement of Claimant or applicant’s request for reconsideration RRB has already published the initial Other Person; OMB 3220–0183. of an unfavorable RRB eligibility 60-day notice (77 FR 40658 on July 10, To support an application for an determination for an annuity or various 2012) required by 44 U.S.C. 3506(c)(2). annuity under Section 2 of the Railroad other matters. The statements may also That request elicited no comments. Retirement Act (RRA) or for be used by the RRB to secure a variety Information Collection Request (ICR) of information needed to determine unemployment benefits under Section 2 Title: Statement of Claimant or Other of the Railroad Unemployment eligibility to unemployment and sickness benefits. Procedures related to Person. Insurance Act (RUIA), pertinent OMB Control Number: 3220–0183. information and proofs must be providing information needed for RRA annuity or RUIA benefit eligibility Form(s) submitted: G–93. furnished for the RRB to determine Type of request: Extension without determinations are prescribed in 20 CFR benefit entitlement. Circumstances may change of a currently approved parts 217 and 320 respectively. require an applicant or other person(s) collection. having knowledge of facts relevant to The RRB utilizes Form G–93, Affected public: Individuals or the applicant’s eligibility for an annuity Statement of Claimant or Other Person, Households. or benefits to provide written statements to obtain from applicants or other Abstract: Under Section 2 of the supplementing or changing statements persons, the supplemental or corrective Railroad Retirement Act and the previously provided by the applicant. information needed to determine Railroad Unemployment Insurance Act, Under the railroad retirement program applicant eligibility for an RRA annuity pertinent information and proofs must these statements may relate to a change or RUIA benefits. Completion is be submitted by an applicant so that the in an annuity beginning date(s), date of voluntary. One response is requested of Railroad Retirement Board can marriage(s), birth(s), prior railroad or each respondent. determine his or her entitlement to

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benefits. The collection obtains information previously provided by an The burden estimate for the ICR is as information supplementing or changing applicant. follows: Changes proposed: The RRB proposes no revisions to Form G–93.

Annual re- Time Burden Form No. sponses (minutes) (hours)

G–93 ...... 900 15 225

Additional Information or Comments: I. Self-Regulatory Organization’s trading on the Exchange. The text of the Copies of the forms and supporting Statement of the Terms of Substance of proposed Rule 6.46 is identical to that documents can be obtained from Dana the Proposed Rule Change of Chicago Board Options Exchange, Hickman at (312) 751–4981 or C2 proposes to adopt a rule requiring Incorporated (‘‘CBOE’’) Rule 6.20(e) [email protected]. Trading Permit Holder (‘‘TPH’’) (with the exclusion of a sentence in Comments regarding the information education and corresponding fine CBOE Rule 6.20(e) regarding Floor collection should be addressed to structure. The text of the proposed rule Officials, which is inapplicable to C2, as Charles Mierzwa, Railroad Retirement change is available on the Exchange’s C2 is an all-electronic exchange that 3 Board, 844 North Rush Street, Chicago, Web site (http://www.c2exchange.com/ does not have a trading floor). Illinois 60611–2092 or Legal/), at the Commission’s Web site To correspond with the adoption of [email protected] and to the (http://www.sec.gov), at the Exchange’s proposed Rule 6.46, the Exchange also OMB Desk Officer for the RRB, Fax: Office of the Secretary, and at the proposes to amend its Rule 17.50— 202–395–6974, Email address: Commission’s Public Reference Room. Imposition of Fines for Minor Rule [email protected]. II. Self-Regulatory Organization’s Violations. CBOE Chapter 17— Discipline (which includes Rule 17.50— Charles Mierzwa, Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Imposition of Fines for Minor Rule Chief of Information Resources Management. Change Violations) is incorporated into the C2 [FR Doc. 2012–22991 Filed 9–18–12; 8:45 am] rules by reference as C2 Chapter 17.4 In its filing with the Commission, the BILLING CODE 7905–01–P CBOE Rule 17.50(g)(6)—Violations of Exchange included statements Trading Conduct and Decorum concerning the purpose of and basis for Policies—imposes fines for violations of the proposed rule change and discussed trading conduct and decorum policies. any comments it received on the SECURITIES AND EXCHANGE Because C2 (an all-electronic exchange) proposed rule change. The text of these COMMISSION statements may be examined at the does not have a trading floor, the places specified in Item IV below. The majority of the violations for which [Release No. 34–67848; File No. SR–C2– Exchange has prepared summaries, set fines can be imposed under CBOE Rule 2012–032] forth in sections A, B, and C below, of 17.50(g)(6) (such as not complying with the most significant aspects of such the trading floor dress code, bringing Self-Regulatory Organizations; C2 statements. impermissible food or drink onto the Options Exchange, Incorporated; trading floor, and running on the trading Notice of Filing and Immediate A. Self-Regulatory Organization’s floor) could not take place on C2. Effectiveness of a Proposed Rule Statement of the Purpose of, and the However, there is one exception: CBOE Change To Adopt a Rule Regarding Statutory Basis for, the Proposed Rule Rule 17.50(g)(6) allows for the Mandatory Trading Permit Holder Change imposition of fines for the failure to Education and Corresponding Set of 1. Purpose attend CBOE-mandated educational Fines training.5 Therefore, instead of simply The Exchange proposes to adopt stating that, with respect to applicability proposed Rule 6.46 stating that TPHs September 13, 2012. to C2 only, CBOE Rule 17.50(g)(6) shall and persons associated with TPHs not apply to C2, the Exchange instead Pursuant to Section 19(b)(1) of the (‘‘Associated Persons’’) are required to proposes to state that, notwithstanding Securities Exchange Act of 1934 (the attend such educational classes as the 1 2 ‘‘Act’’), and Rule 19b–4 thereunder, Exchange may require from time to the remainder of C2 Chapter 17, with notice is hereby given that on time. Failure to attend Exchange- respect to its applicability to C2 only, September 4, 2012, C2 Options mandated continuing educational CBOE Rule 17.50(g)(6)—Violations of Exchange, Incorporated (the ‘‘Exchange’’ classes may subject TPHs and Trading Conduct and Decorum or ‘‘C2’’) filed with the Securities and Associated Persons to sanctions Policies—will be replaced in its entirety Exchange Commission (the pursuant to the Exchange’s Minor Rule with the following: A fine may be ‘‘Commission’’) the proposed rule Violation Plan provided in Exchange imposed upon a Trading Permit Holder change as described in Items I and II, Rule 17.50. The Exchange believes that or persons associated with Trading below, which Items have been prepared it is important and necessary from time Permit Holders in accordance with the by the Exchange. The Commission is to time to require mandatory fine schedule set forth below for failure publishing this notice to solicit participation in certain educational comments on the proposed rule change training classes by its TPHs and 3 See CBOE Rule 6.20(e). from interested persons. Associated Persons for a variety of 4 See Securities Exchange Act Release No. 62323 (June 17, 2010), 75 FR 36144 (June 24, 2012) (SR– reasons, including to explain the C2–2010–002). 1 15 U.S.C. 78s(b)(1). operation of new technology and new 5 See CBOE Regulatory Circular RG09–92 (August 2 17 CFR 240.19b–4. rules, procedures and policies regarding 28, 2009).

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to attend Exchange-mandated circulars, thereby removing Paper Comments educational training (per Rule 6.46). impediments to and perfecting the • mechanism for a free and open market. Send paper comments in triplicate Number of offenses in any to Elizabeth M. Murphy, Secretary, rolling twenty-four month Fine amount B. Self-Regulatory Organization’s Securities and Exchange Commission, period Statement on Burden on Competition 100 F Street NE., Washington, DC 1st Offense ...... $1,000 C2 does not believe that the proposed 20549–1090. rule change will impose any burden on 2nd Offense ...... 2,500 All submissions should refer to File No. Subsequent Offenses ...... 5,000 competition that is not necessary or appropriate in furtherance of the SR–C2–2012–032. This file number In making this change, C2 cleans up purposes of the Act. should be included on the subject line its rules and establishes that the aspects if email is used. To help the C. Self-Regulatory Organization’s Commission process and review your of CBOE Rule 17.50(g)(6) that are not Statement on Comments on the relevant to C2 (due to C2’s status as an comments more efficiently, please use Proposed Rule Change Received From only one method. The Commission will all-electronic exchange without a Members, Participants, or Others trading floor) do not apply to C2 while post all comments on the Commission’s still retaining the ability to levy fines for The Exchange neither solicited nor Web site (http://www.sec.gov/rules/ failure to attend C2-mandated received comments on the proposed sro.shtml). Copies of the submission, all educational training (per the proposed rule change. subsequent amendments, all written Rule 6.46). The amounts of the proposed III. Date of Effectiveness of the statements with respect to the proposed fines are identical to those that can be Proposed Rule Change and Timing for rule change that are filed with the currently assessed on CBOE for a failure Commission Action Commission, and all written to attend CBOE-mandated educational communications relating to the 6 Because the foregoing proposed rule training. change does not: (i) Significantly affect proposed rule change between the 2. Statutory Basis the protection of investors or the public Commission and any person, other than interest; (ii) impose any significant those that may be withheld from the The Exchange believes the proposed public in accordance with the rule change is consistent with the Act burden on competition; and (iii) become provisions of 5 U.S.C. 552, will be and the rules and regulations operative for 30 days after the date of available for Web site viewing and thereunder applicable to the Exchange the filing, or such shorter time as the printing in the Commission’s Public and, in particular, the requirements of Commission may designate, it has Section 6(b) of the Act.7 Specifically, become effective pursuant to 19(b)(3)(A) Reference Room, 100 F Street NE., 9 10 the Exchange believes the proposed rule of the Act and Rule 19b–4(f)(6) Washington, DC 20549, on official change is consistent with the Section thereunder. business days between the hours of At any time within 60 days of the 6(b)(5)8 requirements that the rules of an 10:00 a.m. and 3:00 p.m. Copies of such filing of the proposed rule change, the exchange be designed to promote just filing also will be available for Commission summarily may and equitable principles of trade, to inspection and copying at the principal temporarily suspend such rule change if prevent fraudulent and manipulative office of C2. All comments received will it appears to the Commission that such acts and practices, to remove be posted without change; the action is necessary or appropriate in the impediments to and to perfect the Commission does not edit personal public interest, for the protection of mechanism for a free and open market identifying information from investors, or otherwise in furtherance of and a national market system, and, in submissions. You should submit only the purposes of the Act. general, to protect investors and the information that you wish to make public interest. Establishing both a rule IV. Solicitation of Comments available publicly. All submissions requiring TPHs and Associated Persons Interested persons are invited to should refer to File No. SR–C2–2012– to attend such educational classes as the submit written data, views, and 032 and should be submitted on or Exchange may require from time to time arguments concerning the foregoing, before October 10, 2012. and a corresponding guideline for fines including whether the proposed rule For the Commission, by the Division of for the failure to attend such change is consistent with the Act. educational classes helps ensure that Trading and Markets, pursuant to delegated Comments may be submitted by any of authority.11 TPHs and Associated Persons are the following methods: educated and knowledgeable as Kevin M. O’Neill, necessary regarding relevant Electronic Comments Deputy Secretary. technologies, rules, procedures and • Use the Commission’s Internet [FR Doc. 2012–23036 Filed 9–18–12; 8:45 am] policies. This removes impediments to comment form (http://www.sec.gov/ BILLING CODE 8011–01–P and to perfects the mechanism for a free rules/sro.shtml); or and open market and a national market • Send an email to rule- system, and, in general, protects [email protected]. Please include File investors and the public interest. No. SR–C2–2012–032 on the subject By removing inapplicable sections line. violations within Rule 17.50(g)(6) that relate to floor trading, the Exchange 9 15 U.S.C. 78s(b)(3)(A). eliminates confusion that could arise 10 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– from reading Exchange rules and 4(f)(6) requires a self-regulatory organization to give the Commission written notice of its intent to file the proposed rule change at least five business days 6 See CBOE Regulatory Circular RG09–92 (August prior to the date of filing of the proposed rule 28, 2009). change, or such shorter time as designated by the 7 15 U.S.C. 78f(b). Commission. The Exchange has satisfied this 8 15 U.S.C. 78f(b)(5). requirement. 11 17 CFR 200.30–3(a)(12).

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SECURITIES AND EXCHANGE A. Self-Regulatory Organization’s transparency and improving investor COMMISSION Statement of the Purpose of, and the protection. Statutory Basis for, the Proposed Rule Participants in the ISP are required to [Release No. 34–67849; File No. SR– Change designate specific NASDAQ order entry ports for use under the ISP and to meet NASDAQ–2012–103] 1. Purpose specified criteria focused on market Self-Regulatory Organizations; The NASDAQ is proposing (i) to modify participation, liquidity provision, and NASDAQ Stock Market LLC; Notice of the ISP under Rule 7014, and (ii) to high rates of order execution. Currently, Filing and Immediate Effectiveness of amend NASDAQ’s schedule of a member that participates in the ISP Proposed Rule Change To Modify the execution fees and rebates under Rule receives a credit of $0.00005, $0.000275, Investor Support Program Under Rule 7018(a). As a general matter, the or $0.000375 per share with respect to 7014 and To Amend NASDAQ’s changes are designed to reflect the the number of shares of displayed Schedule of Execution Fees and persistent reduction in trading volumes liquidity provided by the member that 5 Rebates Under Rule 7018 in the U.S. capital markets through a execute at $1 or more per share. The range of changes that will both increase precise credit rate is determined by September 13, 2012. incentives for market participation and factors designed to measure the degree enhance revenue. of the member’s participation in the Pursuant to Section 19(b)(1) of the Nasdaq Market Center and the Securities Exchange Act of 1934 Investor Support Program 1 2 percentage of orders that it enters that (‘‘Act’’), and Rule 19b–4 thereunder, The ISP enables NASDAQ members to execute—its ‘‘ISP Execution Ratio’’— notice is hereby given that on August earn a monthly fee credit for providing which is seen as indicative of retail or 31, 2012, The NASDAQ Stock Market additional liquidity to NASDAQ and institutional participation. Without LLC (‘‘NASDAQ’’ or the ‘‘Exchange’’) increasing the NASDAQ-traded volume making any other modifications to the filed with the Securities and Exchange of what are generally considered to be program, NASDAQ will reduce the Commission (‘‘Commission’’) a retail and institutional investor orders credit paid to market participants that proposed rule change as described in in exchange-traded securities (‘‘targeted currently qualify for a $0.000275 per Items I, II and III below, which Items liquidity’’). The goal of the ISP is to share credit to $0.0001 per share. The have been prepared by the Exchange. incentivize members to provide such specific requirements for qualifying for The Commission is publishing this targeted liquidity to the NASDAQ the $0.0001 credit are described below. notice to solicit comments on the Market Center.3 The Exchange noted in As provided in Rule 7014(c)(2), proposed rule change from interested its original filing to institute the ISP 4 NASDAQ will pay a credit of $0.0001 persons. that maintaining and increasing the per share 6 with respect to shares of proportion of orders in exchange-listed displayed liquidity executed at a price I. Self-Regulatory Organization’s securities executed on a registered of $1 or more and entered through ISP- Statement of the Terms of Substance of exchange (rather than relying on any of designated ports, and $0.00005 per the Proposed Rule Change the available off-exchange execution share with respect to all other shares of NASDAQ proposes to modify the methods) would help raise investors’ displayed liquidity executed at a price Investor Support Program under Rule confidence in the fairness of their of $1 or more, if the following 7014, and to amend NASDAQ’s transactions and would benefit all conditions are met: 7 schedule of execution fees and rebates investors by deepening NASDAQ’s (1) The member’s Participation Ratio under Rule 7018. NASDAQ will liquidity pool, supporting the quality of for the month exceeds its Baseline price discovery, promoting market Participation Ratio 8 by at least 0.43%. implement the proposed change on September 4, 2012. The text of the 3 The Commission has expressed its concern that 5 A participant in the ISP must designate specific proposed rule change is available at a significant percentage of the orders of individual order-entry ports for use in tabulating certain nasdaq.cchwallstreet.com, at investors are executed at over the counter (‘‘OTC’’) requirements under the program. NASDAQ’s principal office, and at the markets, that is, at off-exchange markets; and that 6 A reduction from $0.000275 per share. Commission’s Public Reference Room. a significant percentage of the orders of institutional 7 ‘‘Participation Ratio’’ is defined as follows: investors are executed in dark pools. Securities ‘‘[F]or a given member in a given month, the ratio II. Self-Regulatory Organization’s Exchange Act Release No. 61358 (January 14, 2010), of (A) the number of shares of liquidity provided 75 FR 3594 (January 21, 2010) (Concept Release on in orders entered by the member through any of its Statement of the Purpose of, and Equity Market Structure, ‘‘Concept Release’’). In the Nasdaq ports and executed in the Nasdaq Market Statutory Basis for, the Proposed Rule Concept Release, the Commission has recognized Center during such month to (B) the Consolidated Change the strong policy preference under the Act in favor Volume.’’ ‘‘Consolidated Volume’’ is defined as of price transparency and displayed markets. The follows: ‘‘[F]or a given member in a given month, In its filing with the Commission, the Commission published the Concept Release to the consolidated volume of shares of System invite public comment on a wide range of market Securities in executed orders reported to all self-regulatory organization included structure issues, including high frequency trading consolidated transaction reporting plans by all statements concerning the purpose of, and un-displayed, or ‘‘dark,’’ liquidity. See also exchanges and trade reporting facilities during such and basis for, the proposed rule change Mary L. Schapiro, Strengthening Our Equity Market month.’’ ‘‘System Securities’’ means all securities and discussed any comments it received Structure (Speech at the Economic Club of New listed on NASDAQ and all securities subject to the York, Sept. 7, 2010) (‘‘Schapiro Speech,’’ available Consolidated Tape Association Plan and the on the proposed rule change. The text on the Commission Web site) (comments of Consolidated Quotation Plan. of those statements may be examined at Commission Chairman on what she viewed as a 8 ‘‘Baseline Participation Ratio’’ is defined as the places specified in Item IV below. troubling trend of reduced participation in the follows: ‘‘[W]ith respect to a member, the lower of The Exchange has prepared summaries, equity markets by individual investors, and that such member’s Participation Ratio for the month of nearly 30 percent of volume in U.S.-listed equities August 2010 or the month of August 2011, provided set forth in sections A, B, and C below, is executed in venues that do not display their that in calculating such Participation Ratios, the of the most significant parts of such liquidity or make it generally available to the numerator shall be increased by the amount (if any) statements. public). of the member’s Indirect Order Flow for such 4 Securities Exchange Act Release No. 63270 month, and provided further that if the result is (November 8, 2010), 75 FR 69489 (November 12, zero for either month, the Baseline Participation 1 15 U.S.C. 78s(b)(1). 2010) (NASDAQ–2010–141) (notice of filing and Ratio shall be deemed to be 0.485% (when rounded 2 17 CFR 240.19b–4. immediate effectiveness). to three decimal places).’’ ‘‘Indirect Order Flow’’ is

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The requirement reflects the expectation executed at a price of $1 or more, if the increase the requirement to 0.50% of that in order to earn a higher rebate following conditions are met: Consolidated Volume. under the program, a member (1) The member’s Participation Ratio • Similarly, NASDAQ currently pays participating in the program must for the month exceeds its Baseline a credit of $0.0029 per share executed increase its participation in NASDAQ as Participation Ratio by at least 0.30%. with respect to displayed quotes/orders compared with an historical baseline. (2) The member’s ‘‘ISP Execution for a member with shares of liquidity (2) The member’s ‘‘ISP Execution Ratio’’ for the month is less than 10. accessed in all securities through one or Ratio’’ for the month must be less than (3) The shares of liquidity provided more of its MPIDs that represent more 10. The ISP Execution Ratio is defined through ISP-designated ports during the than 0.65% of Consolidated Volume as ‘‘the ratio of (A) the total number of month are equal to or greater than 0.2% during the month, and that provides a liquidity-providing orders entered by a of Consolidated Volume during the daily average of at least 2 million shares member through its ISP-designated month. of liquidity in all securities through one ports during the specified time period to (4) At least 80% of the liquidity or more of its NASDAQ Market Center (B) the number of liquidity-providing provided by the member during the MPIDs during the month. NASDAQ is orders entered by such member through month is provided through ISP- proposing to eliminate this rebate tier.12 • its ISP-designated ports and executed designated ports. Currently, NASDAQ pays a credit of (in full or partially) in the Nasdaq (5) The member has an average daily $0.0027 per share executed with respect Market Center during such time period; volume during the month of more than to displayed quotes/orders for a member provided that: (i) No order shall be 100,000 contracts of liquidity provided with an average daily volume in all counted as executed more than once; through one or more of its Nasdaq securities of more than 25 million and (ii) no Pegged Orders, odd-lot Options Market market participant shares of liquidity provided through one orders, or MIOC or SIOC orders shall be identifiers (‘‘MPIDs’’), provided that or more of its NASDAQ Market Center included in the tabulation.’’ 9 Thus, the such liquidity is provided through MPIDs during the month. The definition requires a ratio between the Public Customer Orders, as defined in requirement for this tier is being total number of orders that post to the Chapter I, Section 1 of the Nasdaq modified to require that the member NASDAQ book and the number of such Options Market Rules; and provide liquidity representing more (6) The ratio between shares of orders that actually execute that is low, than 0.30% of Consolidated Volume. liquidity provided through ISP- a characteristic that NASDAQ believes NASDAQ believes that given the designated ports and total shares to be reflective of retail and institutional volume levels that have recently accessed, provided, or routed through order flow. prevailed in the market, the change will ISP-designated ports during the month make it slightly easier for members to (3) The shares of liquidity provided is at least 0.70. qualify for this pricing tier. through ISP-designated ports during the • Similarly, NASDAQ pays a credit of month are equal to or greater than 0.2% Execution Fees and Rebates $0.0025 per share executed with respect of Consolidated Volume during the NASDAQ is making a number of to displayed quotes/orders for a member month, reflecting the ISP’s goals of changes to its general schedule of fees with an average daily volume in all encouraging higher levels of liquidity and rebates for order execution. Overall, securities of more than 20 million provision. the changes are designed to (i) raise shares of liquidity provided through one (4) At least 40% of the liquidity additional revenue to offset reductions or more of its NASDAQ Market Center provided by the member during the caused by a sustained decrease in MPIDs during the month. The month is provided through ISP- trading volumes in the U.S. capital requirement for this tier is being designated ports. This requirement is markets, (ii) continue the process of modified to require that the member designed to mitigate ‘‘gaming’’ of the replacing volume-based pricing tiers provide liquidity representing more program by firms that do not generally measured by share volume with tiers than 0.10% of Consolidated Volume. represent retail or institutional order measured by a market participant’s Again, NASDAQ believes that this flow but that nevertheless are able to percentage of ‘‘Consolidated change will make it easier for members channel a portion of their orders that Volume,’’ 11 and (iii) enhance market to qualify for this pricing tier. they intend to execute through ISP- participation incentives by broadening • NASDAQ currently pays a credit of designated ports and thereby receive a the eligibility for several rebate tiers. $0.0025 per share executed with respect credit with respect to those orders. Specifically, NASDAQ is proposing to to displayed quotes/orders for a member Alternatively, as provided in Rule make the following changes to Rule with shares of liquidity accessed in all 7014(c)(3), NASDAQ will pay a credit of 7018(a), which governs execution and securities through one or more of its 10 $0.0001 per share with respect to routing of order for securities priced at MPIDs that represent 0.20% or more of shares of displayed liquidity executed at $1 or more per share: Consolidated Volume during the month, a price of $1 or more and entered • Currently, NASDAQ pays a credit of and with shares of liquidity provided in through ISP-designated ports, and $0.0029 per share executed with respect all securities during the month $0.00005 per share with respect to all to displayed quotes/orders for a member representing 0.10% or more of other shares of displayed liquidity with shares of liquidity provided in all Consolidated Volume during the month. securities through one or more of its NASDAQ is proposing to eliminate this defined as follows: ‘‘[F]or a given member in a NASDAQ Market Center MPIDs that rebate tier.13 given month, the number of shares of liquidity represent more than 0.45% of • NASDAQ currently pays a credit of provided in orders entered into the Nasdaq Market Center at the member’s direction by another Consolidated Volume during the month. $0.0025 per share executed with respect member with minimal substantive intermediation NASDAQ is modifying this rebate tier to by such other member and executed in the Nasdaq 12 Other rebate tiers under which members may Market Center during such month.’’ 11 See Securities Exchange Act Release No. 64453 be eligible to receive rebates of $0.00295 or $0.0029 9 These terms have the meanings assigned to them (May 10, 2011), 76 FR 28252 (May 16, 2011) (SR– per share will remain unchanged. in Rule 4751. MIOC and SIOC orders are forms of NASDAQ–2011–062). ‘‘Consolidated Volume’’ is 13 Other rebate tiers under which members may ‘‘immediate or cancel’’ orders and therefore cannot defined as the total consolidated volume reported be eligible to receive rebates of $0.0025 per share be liquidity-providing orders. to all consolidated transaction reporting plans by all will remain unchanged or will have their associated 10 A reduction from $0.000275 per share. exchanges and trade reporting facilities. rebate increased.

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to displayed quotes/orders for a member provisions of Section 6 of the Act,14 in with respect to execution of orders for with shares of liquidity provided in all general, and with Sections 6(b)(4) and Tape B Securities. securities through one or more of its 6(b)(5) of the Act,15 in particular, in that NASDAQ further believes that the NASDAQ Market Center MPIDs it provides for the equitable allocation proposed changes to rebate tiers are representing more than 0.10% of of reasonable dues, fees and other reasonable, because they are not Consolidated Volume during the month, charges among members and issuers and expected to result in significant rebate and with an average daily volume other persons using any facility or reductions for market participants. This during the month of more than 100,000 system which NASDAQ operates or is the case because members that no contracts of liquidity accessed or controls, and is not designed to permit longer qualify for rebate tiers whose provided through one or more of its unfair discrimination between criteria are being restricted will likely NASDAQ Options Market MPIDs. customers, issuers, brokers, or dealers. qualify for other tiers that pay an NASDAQ is proposing to increase the enhanced rebate, while other market Changes to the ISP rebate for this tier to $0.0027 per share participants are likely to qualify for tiers executed. The ISP encourages members to add that they have not qualified for in the • NASDAQ currently pays a credit of targeted liquidity that is executed in the past. Thus, although some market $0.0029 per share executed with respect Nasdaq Market Center. NASDAQ participants may see reduced rebates, to displayed quotes/orders for a member believes that the reduction in the rebates NASDAQ does not believe that the with shares of liquidity provided in all paid under the ISP from $0.000275 to reductions will be significant. NASDAQ securities through one or more of its $0.0001 with respect to certain tiers of further believes that the changes are NASDAQ Market Center MPIDs the ISP is reasonable, because it consistent with an equitable allocation representing more than 0.15% of provides a means for NASDAQ to of fees because the modified rebate Consolidated Volume during the month, reduce costs during a period of schedule will continue to provide the and with an average daily volume persistently low trading volumes, while incentives for provision of displayed during the month of more than 100,000 maintaining the overall structure of the liquidity that NASDAQ believes benefit all market participants by dampening contracts of liquidity accessed or ISP for the purpose of providing price volatility and promoting price provided through one or more of its incentives for retail and institutional discovery. Finally, NASDAQ believes NASDAQ Options Market MPIDs. investors to provide targeted liquidity at that the changes are not unreasonably NASDAQ is proposing to increase the NASDAQ. The change is consistent with discriminatory because opportunities Consolidated Volume requirement for an equitable allocation of fees: although for enhanced rebates to liquidity this tier to 0.25%. the change maintains the ISP’s purpose providers will continue to exist under For securities listed on an exchange of paying higher rebates to certain other than NASDAQ or the New York the modified schedule. Specifically: market participants in order to • The change to one of the rebate tiers Stock Exchange (‘‘Tape B Securities’’), encourage them to benefit all NASDAQ through which members may earn a NASDAQ currently charges a members through the submission of $0.029 [sic] per share executed rebate by discounted order execution fee of targeted liquidity, the change reduces requiring liquidity representing 0.50% $0.0027 per share executed with respect the disparity between rebates paid to of Consolidated Volume (rather than to an order entered through a NASDAQ ISP participants and other members for 0.45% of Consolidated Volume), as well Market Center MPID through which a providing liquidity. Similarly, although as the elimination of another $0.0029 member (i) accesses shares of liquidity NASDAQ believes that the price per share rebate tier that requires shares in Tape B Securities that represent more differentiation inherent in the ISP is of liquidity accessed that represent more than 1.5% of Consolidated Volume in fair, because it is designed to benefit all than 0.65% of Consolidated Volume Tape B Securities during the month, and market participants by drawing targeted during the month and provision of a (ii) provides shares of liquidity in Tape liquidity to the Exchange, the change daily average of at least 2 million shares B Securities that represent more than reduces the level of differentiation of liquidity, are reasonable because 0.5% of Consolidated Volume in Tape B between the rebates paid to ISP members may continue to receive a Securities during the month. Similarly, participants and those paid to other rebate of $0.0029 per share through NASDAQ currently charges a liquidity providers. several alternative tiers, or may qualify discounted order execution fee of Changes to Fees and Other Rebates for slightly lower rebates of $0.0027 per $0.0028 per share executed with respect share or $0.0025 per share through a to an order entered through a NASDAQ NASDAQ believes that the proposed range of alternative tiers. In addition, Market Center MPID through which a change to the fee to access liquidity in the changes are consistent with an member (i) accesses shares of liquidity Tape B Securities is reasonable because equitable allocation of fees because after in Tape B Securities that represent more NASDAQ already charges the same fee the change, the rebate schedule will than 0.5% of Consolidated Volume in with respect to other securities, and continue to reflect an allocation of Tape B Securities during the month, and because the fee is consistent with the rebates to liquidity providers designed (ii) provides shares of liquidity in Tape requirements of SEC Rule 610.16 The to encourage beneficial market activity, B Securities that represent more than change is consistent with an equitable with affected market participants still 0.25% of Consolidated Volume in Tape allocation of fees because it will result able to earn comparable or slightly B Securities during the month. in uniform access fees for all market lower rebates through alternative means. NASDAQ is eliminating both of these participants and all securities. Finally, the changes are not discounted fees, such that the uniform Similarly, the change is not unreasonably discriminatory because access fee will be $0.0030 per share unreasonably discriminatory because it although they affect only those market executed for all securities priced above will eliminate existing price participants currently qualifying for the $1. differentials among market participants tiers in question, they serve the 2. Statutory Basis reasonable purposes of reducing costs 14 15 U.S.C. 78f. while continuing to provide reasonable NASDAQ believes that the proposed 15 15 U.S.C. 78f(b)(4) and (5). rebate opportunities to those rule change is consistent with the 16 17 CFR 242.610. participants.

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• The changes to express the Center participants have alternative interest, for the protection of investors, requirements for certain $0.0027 and means of early rebates of $0.0027 or or otherwise in furtherance of the $0.0025 per share tiers in terms of $0.0029 per share rebates that do not purposes of the Act. If the Commission percentage of Consolidated Volume require participation in the NASDAQ takes such action, the Commission shall rather than share amounts is reasonable Options Market. institute proceedings to determine because at currently prevailing volume Finally, NASDAQ notes that it whether the proposed rule should be levels, the changes will make it easier operates in a highly competitive market approved or disapproved. for market participants to qualify for in which market participants can IV. Solicitation of Comments these tiers. The changes are consistent readily favor competing venues if they with an equitable allocation of fees deem fee levels at a particular venue to Interested persons are invited to because they encourage liquidity be excessive, or rebate opportunities submit written data, views, and provision and help to ensure that available at other venues to be more arguments concerning the foregoing, market participants affected by changes favorable. In such an environment, including whether the proposed rule that restrict eligibility for other rebate NASDAQ must continually adjust its change is consistent with the Act. tiers will continue to have alternative fees to remain competitive with other Comments may be submitted by any of means to earn a favorable rebate. exchanges and with alternative trading the following methods: Finally, the changes are not systems that have been exempted from Electronic Comments unreasonably discriminatory because compliance with the statutory standards • they broaden the eligibility of members applicable to exchanges. These Use the Commission’s Internet to receive rebates at these levels. competitive forces help to ensure that comment form (http://www.sec.gov/ • The elimination of the $0.0025 per rules/sro.shtml); or NASDAQ’s fees are reasonable, • share tier requiring liquidity accessing equitably allocated, and not unfairly Send an email to rule- equal or greater to 0.20% of discriminatory since market participants [email protected]. Please include File Consolidated Volume and liquidity can largely avoid fees to which they Number SR–NASDAQ–2012–103 on the provision of 0.10% or more of object by changing their trading subject line. Consolidation Volume is reasonable behavior. Paper Comments because affected members will continue • to qualify for the modified tier requiring B. Self-Regulatory Organization’s Send paper comments in triplicate comparable liquidity provision in order Statement on Burden on Competition to Elizabeth M. Murphy, Secretary, to earn a $0.0025 per share rebate. Thus, NASDAQ does not believe that the Securities and Exchange Commission, the change is also consistent with an proposed rule change will result in any 100 F Street NE., Washington, DC equitable allocation of fees, and is not burden on competition that is not 20549–1090. unreasonably discriminatory, because it necessary or appropriate in furtherance All submissions should refer to File will not deprive market participants of of the purposes of the Act, as amended. Number SR–NASDAQ–2012–103. This the rebate opportunity in question. Because the market for order execution file number should be included on the The increase in the rebate paid with is extremely competitive, members may subject line if email is used. To help the respect to market participants providing readily opt to disfavor NASDAQ’s Commission process and review your liquidity representing 0.10% of execution services if they believe that comments more efficiently, please use Consolidated Volume and active in the alternatives offer them better value. For only one method. The Commission will NASDAQ Options Market, as well as the this reason and the reasons discussed in post all comments on the Commission’s tightening of the requirements for a connection with the statutory basis for Internet Web site (http://www.sec.gov/ $0.0029 per share credit paid to market the proposed rule change, NASDAQ rules/sro.shtml). Copies of the participants active in both the NASDAQ does not believe that the proposed submission, all subsequent Market Center and the NASDAQ changes will impair the ability of amendments, all written statements Options Market, are reasonable because members or competing order execution with respect to the proposed rule they provide an increased rebate to venues to maintain their competitive change that are filed with the members currently in the lower tier standing in the financial markets. Commission, and all written while ensuring that members no longer communications relating to the qualifying for the higher tier can C. Self-Regulatory Organization’s proposed rule change between the nevertheless receive the new higher Statement on Comments on the Commission and any person, other than rebate for the lower tier. The changes Proposed Rule Change Received From those that may be withheld from the are consistent with an equitable Members, Participants, or Others public in accordance with the allocation of fees because the modified Written comments were neither provisions of 5 U.S.C. 552, will be rebates continue to be responsive to the solicited nor received. available for Web site viewing and convergence of trading in which printing in the Commission’s Public members simultaneously trade different III. Date of Effectiveness of the Reference Room, 100 F Street NE., asset classes within a single strategy. Proposed Rule Change and Timing for Washington, DC 20549, on official NASDAQ also notes that cash equities Commission Action business days between the hours of and options markets are linked, with The foregoing rule change has become 10:00 a.m. and 3:00 p.m. Copies of the liquidity and trading patterns on one effective pursuant to Section filing also will be available for market affecting those on the other. 19(b)(3)(A)(ii) of the Act.17 At any time inspection and copying at the principal Accordingly, pricing incentives that within 60 days of the filing of the office of the Exchange. All comments encourage market participant activity in proposed rule change, the Commission received will be posted without change; both markets recognize that activity in summarily may temporarily suspend the Commission does not edit personal the options markets also supports price such rule change if it appears to the identifying information from discovery and liquidity provision in the Commission that such action is submissions. You should submit only NASDAQ Market Center. Finally, the necessary or appropriate in the public information that you wish to make changes are not unreasonably available publicly. All submissions discriminatory, since NASDAQ Market 17 15 U.S.C. 78s(b)(3)(a)(ii). should refer to File Number SR–

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NASDAQ–2012–103 and should be The self-regulatory organization has clearing members. Accordingly, OCC submitted on or before October 10, prepared summaries, set forth in proposes to replace references to the 2012. sections (A), (B), and (C) below, of the ‘‘JRFQR’’ within its By-Laws and Rules For the Commission, by the Division of most significant aspects of such with references to ‘‘Form 1.’’ Trading and Markets, pursuant to delegated statements. The IIROC also altered how its authority.18 regulated entities report capital (A) Self-Regulatory Organization’s withdrawals. IIROC previously required Kevin M. O’Neill, Statement of the Purpose of, and Deputy Secretary. capital withdrawals to be reported on Statutory Basis for, the Proposed Rule monthly financial reports; however, [FR Doc. 2012–23037 Filed 9–18–12; 8:45 am] Change IIROC amended its standards and now BILLING CODE 8011–01–P The purpose of this proposed rule requires firms to obtain approval for change is to make technical withdrawals of capital following notice SECURITIES AND EXCHANGE ‘‘housekeeping’’ changes to OCC’s By- thereof. OCC had, when applicable, COMMISSION Laws and Rules relating to financial adjusted Canadian clearing member’s reporting by Canadian clearing members reported capital levels in light of [Release No. 34–67851; File No. SR–OCC– to reflect the Investment Industry withdrawals reflected in financial 2012–15] Regulatory Organization of Canada’s reports in order to determine if the firm’s capital falls within OCC’s Self-Regulatory Organizations; The (‘‘IIROC’’) adoption of the International standards. With the change Options Clearing Corporation; Notice Financial Reporting Standards. OCC Rule 310, through cross- implemented by IIROC, that information of Filing of Proposed Rule Change references to interpretive provisions of is no longer available to OCC via Relating to Financial Reporting by OCC Rule 306—Financial Reports and monthly financial reports submitted by Canadian Clearing Members OCC Rule 308-Audits, allows Canadian Canadian clearing members. To ensure September 13, 2012. clearing members to elect to file their it is aware of such capital withdrawals, Pursuant to Section 19(b)(1) of the Joint Regulatory Financial OCC proposes to add an Interpretation Securities Exchange Act of 1934 Questionnaire and Reports (‘‘JRFQR’’) and Policy to Rule 304 which would (‘‘Act’’) 1 and Rule 19b–4 thereunder 2 with OCC, instead of filing SEC Form require Canadian clearing members to notice is hereby given that on X–17A–5, to discharge their financial submit capital withdrawal notifications September 5, 2012, The Options reporting requirements to OCC. In to OCC when such requests are Clearing Corporation (‘‘OCC’’) filed with addition, other provisions of OCC’s submitted to IIROC. the Securities and Exchange rules (Rules 301, 302, 303, 304, 306 and OCC believes that the proposed rule Commission (‘‘Commission’’) the 308) reference information Canadian change is consistent with Section 17A of proposed rule change as described in clearing members report on their JRFQR. the Securities Exchange Act of 1934, as Items I, II and III below, which Items IIROC, the primary regulator of Canada’s amended (the ‘‘Act’’), because it have been prepared primarily by OCC. securities industry, replaced the JRFQR promotes the prompt and accurate The Commission is publishing this with ‘‘Form 1’’ of the International clearance and settlement of securities notice to solicit comments on the Financial Reporting Standards. OCC transactions, and protects investors and proposed rule change from interested proposes to replace references to the the public interest by allowing OCC to persons. JRFQR within its By-Laws and Rules efficiently monitor the financial health with references to ‘‘Form 1.’’ 3 OCC also of its clearing members. The change is I. Self-Regulatory Organization’s proposes to add an Interpretation and intended to facilitate Canadian clearing Statement of the Terms of Substance of Policy to Rule 304 in response to a members’ compliance with OCC’s By- the Proposed Rule Change change in how IIROC requires regulated Laws and Rules by aligning OCC’s The proposed rule would make entities to report capital withdrawals. financial reporting requirements, as they technical ‘‘housekeeping’’ changes to OCC, as part of its financial pertain to Canadian clearing members, OCC’s By-Laws and Rules relating to surveillance program, requires Canadian with those of the IIROC. It is also financial reporting by Canadian clearing clearing members to submit their intended to ensure OCC has appropriate members to reflect the Investment JRFQR, a financial report similar to SEC information about Canadian clearing Industry Regulatory Organization of Form X–17A–5, to OCC at the end of members’ capital withdrawals, which Canada’s (‘‘IIROC’’) adoption of the each month. OCC also monitors the will no longer be reported to OCC on a International Financial Reporting financial health of such clearing monthly basis. The proposed rule Standards. members using the capital levels change is not inconsistent with any reported on their JRFQRs. In 2011, rules of OCC, including any other rules II. Self-Regulatory Organization’s IIROC replaced the JRFQR with Form 1. proposed to be amended. Statement of the Purpose of, and Among other things, Form 1 aligns the Statutory Basis for, the Proposed Rule (B) Self-Regulatory Organization’s reporting of certain financial liabilities Change Statement on Burden on Competition to U.S. Generally Accepted Accounting In its filing with the Commission, the Principles. Canadian clearing members OCC does not believe that the self-regulatory organization included that use Form 1 report the same, and in proposed rule change would impose any statements concerning the purpose of some cases more conservative, amounts burden on competition not necessary or and basis for the proposed rule change of regulatory capital to OCC as they had appropriate in furtherance of the and discussed any comments it received using the JRFQR. Moreover, OCC purposes of the Act. on the proposed rule change. The text believes that the change does not impair (C) Self-Regulatory Organization’s of these statements may be examined at OCC’s ability to conduct diligent Statement on Comments on the the places specified in Item IV below. financial surveillance of Canadian Proposed Rule Change Received From Members, Participants or Others 18 17 CFR 200.30–3(a)(12). 3 OCC does not propose to amend Rule 310 since 1 15 U.S.C. 78s(b)(1). it does not specifically use the term, ‘‘Joint Written comments were not and are 2 17 CFR 240.19b–4. Regulatory Financial Questionnaire and Reports.’’ not intended to be solicited with respect

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to the proposed rule change and none business days between the hours of I. Self-Regulatory Organization’s have been received. 10:00 a.m. and 3:00 p.m. Copies of such Statement of the Terms of the Substance filings will also be available for of the Proposed Rule Change III. Date of Effectiveness of the inspection and copying at the principal Proposed Rule Change and Timing for The Exchange proposes to amend the office of OCC and on OCC’s Web site at Commission Action fee schedule applicable to Members 5 http://www.optionsclearing.com/ Within 45 days of the date of and non-members of the Exchange components/docs/legal/ pursuant to BATS Rules 15.1(a) and (c). publication of this notice in the Federal rules_and_bylaws/sr_occ_12_15.pdf. Register or within such longer period While changes to the fee schedule All comments received will be posted pursuant to this proposal will be up to 90 days (i) as the Commission may without change; the Commission does designate if it finds such longer period effective upon filing, the changes will not edit personal identifying become operative on September 4, 2012. to be appropriate and publishes its information from submissions. You reasons for so finding or (ii) as to which The text of the proposed rule change should submit only information that is available at the Exchange’s Web site the self-regulatory organization you wish to make available publicly. All consents, the Commission will: at http://www.batstrading.com, at the submissions should refer to File principal office of the Exchange, and at (A) By order approve or disapprove Number SR–OCC–2012–15 and should the proposed rule change or the Commission’s Public Reference be submitted on or before October 10, Room. (B) Institute proceedings to determine 2012. whether the proposed rule change II. Self-Regulatory Organization’s should be disapproved. For the Commission by the Division of Trading and Markets, pursuant to delegated Statement of the Purpose of, and IV. Solicitation of Comments authority.4 Statutory Basis for, the Proposed Rule Change Interested persons are invited to Kevin M. O’Neill, submit written data, views, and Deputy Secretary. In its filing with the Commission, the arguments concerning the foregoing, [FR Doc. 2012–23039 Filed 9–18–12; 8:45 am] Exchange included statements including whether the proposed rule BILLING CODE 8011–01–P concerning the purpose of and basis for change is consistent with the Act. the proposed rule change and discussed Comments may be submitted by any of any comments it received on the the following methods: SECURITIES AND EXCHANGE proposed rule change. The text of these COMMISSION statements may be examined at the Electronic Comments places specified in Item IV below. The • Use the Commissions Internet [Release No. 34–67855; File No. SR–BATS– Exchange has prepared summaries, set comment form (http://www.sec.gov/ 2012–037] forth in Sections A, B, and C below, of rules/sro.shtml) or Send an email to the most significant parts of such Self-Regulatory Organizations; BATS [email protected]. Please include statements. Exchange, Inc.; Notice of Filing and File Number SR–OCC–2012–15 on the Immediate Effectiveness of Proposed A. Self-Regulatory Organization’s subject line. Rule Change Related to Fees for Use Statement of the Purpose of, and Paper Comments of BATS Exchange, Inc. Statutory Basis for, the Proposed Rule • Change Send paper comments in triplicate September 13, 2012. to Elizabeth M. Murphy, Secretary, Pursuant to Section 19(b)(1) of the 1. Purpose Securities and Exchange Commission, Securities Exchange Act of 1934 (the The Exchange proposes to modify the 100 F Street NE., Washington, DC ‘‘Act’’),1 and Rule 19b–4 thereunder,2 20549–1090. ‘‘Equities Pricing’’ section of its fee notice is hereby given that on August schedule effective September 4, 2012, in All submissions should refer to File 31, 2012, BATS Exchange, Inc. (the order to modify pricing related to Number SR–OCC–2012–15. This file ‘‘Exchange’’ or ‘‘BATS’’) filed with the executions that occur on EDGA number should be included on the Securities and Exchange Commission EXCHANGE, Inc. (‘‘EDGA’’) through the subject line if email is used. To help the (‘‘Commission’’) the proposed rule Exchange’s TRIM routing strategies.6 Commission process and review your change as described in Items I, II, and EDGA is implementing certain pricing comments more efficiently, please use III below, which Items have been changes effective September 4, 2012, only one method. The Commission will prepared by the Exchange. The including modification from a fee to post all comments on the Commission’s Exchange has designated the proposed remove liquidity of $0.0007 per share to Internet Web site (http://www.sec.gov/ rule change as one establishing or a rebate of $0.0004 per share when rules/sro.shtml). Copies of the changing a member due, fee, or other removing liquidity. To maintain a direct submission, all subsequent charge imposed by the Exchange under pass through of the applicable amendments, all written statements 3 Section 19(b)(3)(A)(ii) of the Act and economics for executions at EDGA, the with respect to the proposed rule 4 Rule 19b–4(f)(2) thereunder, which Exchange proposes to rebate $0.0004 per change that are filed with the renders the proposed rule change share for an order routed through its Commission, and all written effective upon filing with the TRIM routing strategies and executed on communications relating to the Commission. The Commission is EDGA. proposed rule change between the publishing this notice to solicit Commission and any person, other than comments on the proposed rule change 2. Statutory Basis those that may be withheld from the from interested persons. The Exchange believes that the public in accordance with the proposed rule change is consistent with provisions of 5 U.S.C. 552, will be 4 17 CFR 200.30–3(a)(12). the requirements of the Act and the available for Web site viewing and 1 15 U.S.C. 78s(b)(1). printing in the Commission’s Public 2 17 CFR 240.19b–4. 5 A Member is any registered broker or dealer that Reference Section, 100 F Street NE., 3 15 U.S.C. 78s(b)(3)(A)(ii). has been admitted to membership in the Exchange. Washington, DC 20549, on official 4 17 CFR 240.19b–4(f)(2). 6 As defined in BATS Rule 11.13(a)(3)(G).

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rules and regulations thereunder that or changing a due, fee, or other charge received will be posted without change; are applicable to a national securities applicable to the Exchange’s Members the Commission does not edit personal exchange, and, in particular, with the and non-members, which renders the identifying information from requirements of Section 6 of the Act.7 proposed rule change effective upon submissions. You should submit only Specifically, the Exchange believes that filing. information that you wish to make the proposed rule change is consistent At any time within 60 days of the available publicly. All submissions with Section 6(b)(4) of the Act,8 in that filing of the proposed rule change, the should refer to File Number SR–BATS– it provides for the equitable allocation Commission summarily may 2012–037 and should be submitted on of reasonable dues, fees and other temporarily suspend such rule change if or before October 10, 2012. it appears to the Commission that such charges among members and other For the Commission, by the Division of persons using any facility or system action is necessary or appropriate in the Trading and Markets, pursuant to delegated which the Exchange operates or public interest, for the protection of authority.11 controls. The Exchange notes that it investors, or otherwise in furtherance of Kevin M. O’Neill, the purposes of the Act. operates in a highly competitive market Deputy Secretary. in which market participants can IV. Solicitation of Comments [FR Doc. 2012–23103 Filed 9–18–12; 8:45 am] readily direct order flow to competing BILLING CODE 8011–01–P venues if they deem fee levels at a Interested persons are invited to particular venue to be excessive. The submit written data, views and Exchange believes that the proposed arguments concerning the foregoing, including whether the proposed rule SECURITIES AND EXCHANGE changes to certain of the Exchange’s COMMISSION non-standard routing fees and strategies change is consistent with the Act. are equitably allocated, fair and Comments may be submitted by any of [Release No. 34–67853; File No. SR–BYX– reasonable, and non-discriminatory in the following methods: 2012–020] that they are equally applicable to all Electronic Comments Self-Regulatory Organizations; BATS Members and are designed to mirror the • Use the Commission’s Internet Y-Exchange, Inc.; Notice of Filing and rebate applicable to the execution if comment form (http://www.sec.gov/ Immediate Effectiveness of Proposed such routed orders were executed rules/sro.shtml); or Rule Change Related to Fees for Use directly by the Member at EDGA • Send an email to rule- of BATS Y-Exchange, Inc. Exchange. [email protected]. Please include File B. Self-Regulatory Organization’s Number SR–BATS–2012–037 on the September 13, 2012. Statement on Burden on Competition subject line. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the The Exchange does not believe that Paper Comments ‘‘Act’’),1 and Rule 19b–4 thereunder,2 the proposed rule change will result in • Send paper comments in triplicate notice is hereby given that on August any burden on competition that is not to Elizabeth M. Murphy, Secretary, 31, 2012, BATS Y-Exchange, Inc. (the necessary or appropriate in furtherance Securities and Exchange Commission, ‘‘Exchange’’ or ‘‘BYX’’) filed with the of the purposes of the Act, as amended. 100 F Street NE., Washington, DC Securities and Exchange Commission Because the market for order execution 20549. (‘‘Commission’’) the proposed rule is extremely competitive, Members may All submissions should refer to File change as described in Items I, II, and readily opt to disfavor the Exchange’s Number SR–BATS–2012–037. This file III below, which Items have been routing services if they believe that number should be included on the prepared by the Exchange. The alternatives offer them better value. For subject line if email is used. To help the Exchange has designated the proposed orders routed through the Exchange and Commission process and review your rule change as one establishing or executed at EDGA Exchange, the comments more efficiently, please use changing a member due, fee, or other proposed fee change is designed to only one method. The Commission will charge imposed by the Exchange under equal the rebate that a Member would post all comments on the Commission’s Section 19(b)(3)(A)(ii) of the Act 3 and have received if such routed orders Internet Web site (http://www.sec.gov/ Rule 19b–4(f)(2) thereunder,4 which would have been executed directly by a rules/sro.shtml). Copies of the renders the proposed rule change Member at EDGA Exchange. submission, all subsequent effective upon filing with the C. Self-Regulatory Organization’s amendments, all written statements Commission. The Commission is Statement on Comments on the with respect to the proposed rule publishing this notice to solicit Proposed Rule Change Received From change that are filed with the comments on the proposed rule change Members, Participants, or Others Commission, and all written from interested persons. communications relating to the No written comments were solicited I. Self-Regulatory Organization’s proposed rule change between the or received. Statement of the Terms of the Substance Commission and any person, other than of the Proposed Rule Change III. Date of Effectiveness of the those that may be withheld from the Proposed Rule Change and Timing for public in accordance with the The Exchange proposes to amend the Commission Action provisions of 5 U.S.C. 552, will be fee schedule applicable to Members 5 available for Web site viewing and and non-members of the Exchange Pursuant to Section 19(b)(3)(A)(ii) of pursuant to BYX Rules 15.1(a) and (c). the Act 9 and Rule 19b–4(f)(2) printing in the Commission’s Public thereunder,10 the Exchange has Reference Room, 100 F Street NE., Washington, DC 20549, on official 11 17 CFR 200.30–3(a)(12). designated this proposal as establishing 1 business days between the hours of 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 7 15 U.S.C. 78f. 10:00 a.m. and 3:00 p.m. Copies of such 3 15 U.S.C. 78s(b)(3)(A)(ii). 8 15 U.S.C. 78f(b)(4). filing also will be available for 4 17 CFR 240.19b–4(f)(2). 9 15 U.S.C. 78s(b)(3)(A)(ii). inspection and copying at the principal 5 A Member is any registered broker or dealer that 10 17 CFR 240.19b–4(f)(2). office of the Exchange. All comments has been admitted to membership in the Exchange.

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While changes to the fee schedule apply to securities priced below $1.00. C. Self-Regulatory Organization’s pursuant to this proposal will be In addition, the Exchange will maintain Statement on Comments on the effective upon filing, the changes will the pricing currently charged by the Proposed Rule Change Received From become operative on September 4, 2012. Exchange for all other Destination Members, Participants, or Others The text of the proposed rule change Specific Orders. No written comments were solicited is available at the Exchange’s Web site or received. at http://www.batstrading.com, at the 2. Statutory Basis principal office of the Exchange, and at III. Date of Effectiveness of the the Commission’s Public Reference The Exchange believes that the Proposed Rule Change and Timing for Room. proposed rule change is consistent with Commission Action the requirements of the Act and the Pursuant to Section 19(b)(3)(A)(ii) of II. Self-Regulatory Organization’s rules and regulations thereunder that the Act 10 and Rule 19b–4(f)(2) Statement of the Purpose of, and are applicable to a national securities Statutory Basis for, the Proposed Rule thereunder,11 the Exchange has exchange, and, in particular, with the designated this proposal as establishing Change 8 requirements of Section 6 of the Act. or changing a due, fee, or other charge In its filing with the Commission, the Specifically, the Exchange believes that applicable to the Exchange’s Members Exchange included statements the proposed rule change is consistent and non-members, which renders the concerning the purpose of and basis for with Section 6(b)(4) of the Act,9 in that proposed rule change effective upon the proposed rule change and discussed it provides for the equitable allocation filing. any comments it received on the of reasonable dues, fees and other At any time within 60 days of the proposed rule change. The text of these charges among members and other filing of the proposed rule change, the statements may be examined at the persons using any facility or system Commission summarily may places specified in Item IV below. The which the Exchange operates or temporarily suspend such rule change if Exchange has prepared summaries, set controls. The Exchange notes that it it appears to the Commission that such forth in Sections A, B, and C below, of operates in a highly competitive market action is necessary or appropriate in the the most significant parts of such public interest, for the protection of statements. in which market participants can readily direct order flow to competing investors, or otherwise in furtherance of A. Self-Regulatory Organization’s venues if they deem fee levels at a the purposes of the Act. Statement of the Purpose of, and particular venue to be excessive. The IV. Solicitation of Comments Statutory Basis for, the Proposed Rule Exchange believes that the proposed Change Interested persons are invited to changes to certain of the Exchange’s submit written data, views and 1. Purpose non-standard routing fees and strategies arguments concerning the foregoing, The Exchange proposes to modify its are equitably allocated, fair and including whether the proposed rule fee schedule applicable to use of the reasonable, and non-discriminatory in change is consistent with the Act. Exchange effective September 4, 2012, that they are equally applicable to all Comments may be submitted by any of in order to modify pricing related to Members and are designed to mirror or the following methods: executions that occur on EDGA provide an improvement over the rebate Electronic Comments EXCHANGE, Inc. (‘‘EDGA’’) through applicable to the execution if such either a BYX + EDGA Destination routed orders were executed directly by • Use the Commission’s Internet Specific Order 6 or through the the Member at EDGA Exchange. comment form (http://www.sec.gov/ Exchange’s TRIM routing strategies.7 rules/sro.shtml); or • EDGA is implementing certain pricing B. Self-Regulatory Organization’s Send an email to rule- changes effective September 4, 2012, Statement on Burden on Competition [email protected]. Please include File Number SR–BYX–2012–020 on the including modification from a fee to The Exchange does not believe that remove liquidity of $0.0007 per share to subject line. the proposed rule change will result in a rebate of $0.0004 per share when any burden on competition that is not Paper Comments removing liquidity. To maintain a direct • pass through of the applicable necessary or appropriate in furtherance Send paper comments in triplicate economics for executions at EDGA, the of the purposes of the Act, as amended. to Elizabeth M. Murphy, Secretary, Exchange proposes to rebate $0.0004 per Because the market for order execution Securities and Exchange Commission, share for an order routed through its is extremely competitive, Members may 100 F Street NE., Washington, DC TRIM routing strategies and executed on readily opt to disfavor the Exchange’s 20549. EDGA. Similarly, because EDGA is part routing services if they believe that All submissions should refer to File of the Exchange’s ‘‘One Under/Better’’ alternatives offer them better value. For Number SR–BYX–2012–020. This file pricing program for Destination Specific orders routed through the Exchange and number should be included on the Orders, the Exchange intends to rebate executed at EDGA Exchange, the subject line if email is used. To help the $0.0001 per share more than if a proposed fee change is designed to Commission process and review your Member executed an order directly on equal or exceed the rebate that a comments more efficiently, please use EDGA. Accordingly, the Exchange Member would have received if such only one method. The Commission will proposes to rebate $0.0005 per share for routed orders would have been executed post all comments on the Commission’s an order routed as a Destination Specific directly by a Member at EDGA Internet Web site (http://www.sec.gov/ Order to EDGA and executed on EDGA, Exchange. rules/sro.shtml). Copies of the which is $0.0001 per share more than submission, all subsequent EDGA rebates directly. The Exchange’s amendments, all written statements ‘‘One Under/Better’’ pricing does not with respect to the proposed rule

6 As defined in BYX Rule 11.9(c)(12). 8 15 U.S.C. 78f. 10 15 U.S.C. 78s(b)(3)(A)(ii). 7 As defined in BYX Rule 11.13(a)(3)(G). 9 15 U.S.C. 78f(b)(4). 11 17 CFR 240.19b–4(f)(2).

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change that are filed with the 19(b)(3)(A)(ii) of the Act 3 and Rule 19b– financial incentives for the Competitive Commission, and all written 4(f)(2) thereunder,4 which renders the Liquidity Provider Program.7 These communications relating to the proposed rule change effective upon incentives include daily rebates to CLPs proposed rule change between the filing with the Commission. The awarded based on competitive quoting Commission and any person, other than Commission is publishing this notice to activity and the waiver of applicable those that may be withheld from the solicit comments on the proposed rule execution fees in Exchange auctions of public in accordance with the change from interested persons. Exchange-listed securities. The Exchange proposes to eliminate the provisions of 5 U.S.C. 552, will be I. Self-Regulatory Organization’s waiver of fees for executions in available for Web site viewing and Statement of the Terms of the Substance Exchange auctions by CLPs, as further printing in the Commission’s Public of the Proposed Rule Change Reference Room, 100 F Street NE., described below. The Exchange also Washington, DC 20549, on official The Exchange proposes to institute a proposes to correct a typographical error business days between the hours of fee change in connection with an in its rules relating to the numbering of 10:00 a.m. and 3:00 p.m. Copies of such incentive program for Exchange- the financial incentives for the CLP filing also will be available for registered market makers (‘‘Market Program. Specifically, when the CLP inspection and copying at the principal Makers’’) in securities listed on the Program was originally proposed, the office of the Exchange. All comments Exchange. Changes to the Exchange’s Exchange numbered the section received will be posted without change; fees pursuant to this proposal will be applicable to financial incentives as the Commission does not edit personal effective upon filing. The text of the section (k), and reserved that section for identifying information from proposed rule change is available at the later.8 However, when such financial submissions. You should submit only Exchange’s Web site at http:// incentives were adopted, they were information that you wish to make www.batstrading.com, at the principal adopted as section (j).9 Accordingly, the available publicly. All submissions office of the Exchange, and at the Exchange proposes re-numbering the should refer to File Number SR–BYX– Commission’s Public Reference Room. financial incentives section as (k), as 2012–020 and should be submitted on II. Self-Regulatory Organization’s was originally intended, and or before October 10, 2012. Statement of the Purpose of, and eliminating the reference to ‘‘Reserved.’’ In order to incentivize Members to For the Commission, by the Division of Statutory Basis for, the Proposed Rule Change participate in the CLP Program, the Trading and Markets, pursuant to delegated Exchange currently waives applicable authority.12 In its filing with the Commission, the execution fees in Exchange auctions for Kevin M. O’Neill, Exchange included statements any CLP that receives a daily rebate for Deputy Secretary. concerning the purpose of and basis for a specific Exchange-listed security on at [FR Doc. 2012–23102 Filed 9–18–12; 8:45 am] the proposed rule change and discussed least two (2) trading days during a BILLING CODE 8011–01–P any comments it received on the calendar month. Based on the proposed rule change. The text of these Exchange’s experience in operating the statements may be examined at the CLP Program, the Exchange proposes to SECURITIES AND EXCHANGE places specified in Item IV below. The eliminate the waiver of applicable COMMISSION Exchange has prepared summaries, set execution fees for CLPs. This financial forth in Sections A, B, and C below, of incentive has very rarely been [Release No. 34–67854; File No. SR–BATS– the most significant parts of such 2012–036] applicable, as the majority of the orders statements. entered to date by CLPs that have Self-Regulatory Organizations; BATS A. Self-Regulatory Organization’s participated in Exchange auctions have Exchange, Inc.; Notice of Filing and Statement of the Purpose of, and been order types that are not subject to Immediate Effectiveness of Proposed Statutory Basis for, the Proposed Rule a charge when entered by any Member Rule Change Related to Fees Change (certain orders, including orders entered Applicable to the Exchange’s into the Exchange’s order book not Competitive Liquidity Provider 1. Purpose explicitly designated for the auction Program. On August 30, 2011, the Exchange process, are exempt from fees). In light received approval of rules applicable to of this fact, the burden upon the September 13, 2012. the qualification, listing and delisting of Exchange in administering the fee Pursuant to Section 19(b)(1) of the securities of issuers on the Exchange.5 waiver exceeds the benefit provided to Securities Exchange Act of 1934 (the More recently, the Exchange received CLPs pursuant to the current pricing ‘‘Act’’),1 and Rule 19b–4 thereunder,2 approval to operate a program that is structure, particularly in light of the fact notice is hereby given that on August designed to incentivize certain market that all other financial incentives to 31, 2012, BATS Exchange, Inc. (the makers registered with the Exchange as CLPs will remain unchanged. ‘‘Exchange’’ or ‘‘BATS’’) filed with the Competitive Liquidity Providers 2. Statutory Basis Securities and Exchange Commission (‘‘CLPs’’) to enhance liquidity on the (‘‘Commission’’) the proposed rule Exchange in Exchange-listed securities The Exchange believes that the change as described in Items I, II, and (‘‘Competitive Liquidity Provider proposed rule change is consistent with III below, which Items have been Program’’ or ‘‘CLP Program’’).6 The the requirements of the Act and the prepared by the Exchange. The Exchange subsequently adopted rules and regulations thereunder that Exchange has designated the proposed are applicable to a national securities rule change as one establishing or 3 15 U.S.C. 78s(b)(3)(A)(ii). changing a due, fee, or other charge 4 17 CFR 240.19b–4(f)(2). 7 See Securities Exchange Act Release No. 66427 imposed by the Exchange under Section 5 See Securities Exchange Act Release No. 65225 (February 21, 2012), 77 FR 11608 (February 27, (August 30, 2011), 76 FR 55148 (September 6, 2011) 2012) (SR–BATS–2012–011) (‘‘CLP Financial (SR–BATS–2011–018). Incentives Filing’’). 12 17 CFR 200.30–3(a)(12). 6 See Securities Exchange Act Release No. 66307 8 See CLP Program Approval, supra note 6. 1 15 U.S.C. 78s(b)(1). (February 2, 2012), 77 FR 6608 (February 8, 2012) 9 See CLP Financial Incentives Filing, supra note 2 17 CFR 240.19b–4. (SR–BATS–2011–051) (‘‘CLP Program Approval’’). 7.

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exchange, and, in particular, with the arguments concerning the foregoing, For the Commission, by the Division of requirements of Section 6 of the Act.10 including whether the proposed rule Trading and Markets, pursuant to delegated 14 Specifically, the Exchange believes that change is consistent with the Act. authority. the proposed rule change is consistent Comments may be submitted by any of Kevin M. O’Neill, with Sections 6(b)(4) and (b)(5) of the the following methods: Deputy Secretary. Act,11 in that it provides for the [FR Doc. 2012–23101 Filed 9–18–12; 8:45 am] equitable allocation of reasonable dues, Electronic Comments BILLING CODE 8011–01–P fees and other charges among members • Use the Commission’s Internet and issuers, and it does not unfairly comment form (http://www.sec.gov/ discriminate between customers, SECURITIES AND EXCHANGE rules/sro.shtml); or issuers, brokers or dealers. COMMISSION The Exchange believes that the • Send an email to rule- elimination of the waiver of auction fees [email protected]. Please include File [Release No. 34–67852; File No. SR– is equitable and not unreasonably Number SR–BATS–2012–036 on the NASDAQ–2012–105] discriminatory because it will equally subject line. affect all CLPs and because CLPs will be Self-Regulatory Organizations; The charged the same rates for auction Paper Comments NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of executions as are charged to all other • Send paper comments in triplicate Proposed Rule Change To Delete Members. The Exchange believes that to Elizabeth M. Murphy, Secretary, NASDAQ Rule 7032 the elimination of the waiver of auction Securities and Exchange Commission, fees is reasonable because the waiver 100 F Street NE., Washington, DC September 13, 2012. has not resulted in significant savings to 20549. CLPs nor has it provided the intended Pursuant to Section 19(b)(1) of the incentive to participate in the CLP All submissions should refer to File Securities Exchange Act of 1934 Program. Number SR–BATS–2012–036. This file (‘‘Act’’),1 and Rule 19b–4 thereunder,2 number should be included on the notice is hereby given that on B. Self-Regulatory Organization’s September 12, 2012, the NASDAQ Stock Statement on Burden on Competition subject line if email is used. To help the Commission process and review your Market LLC (‘‘NASDAQ’’ or The Exchange does not believe that comments more efficiently, please use ‘‘Exchange’’), filed with the Securities the proposed rule change imposes any only one method. The Commission will and Exchange Commission burden on competition. post all comments on the Commission’s (‘‘Commission’’) the proposed rule change as described in Items I, II, and C. Self-Regulatory Organization’s Internet Web site (http://www.sec.gov/ III below, which Items have been Statement on Comments on the rules/sro.shtml). Copies of the prepared by the Exchange. The Proposed Rule Change Received From submission, all subsequent Commission is publishing this notice to Members, Participants, or Others amendments, all written statements solicit comments on the proposed rule No written comments were solicited with respect to the proposed rule change from interested persons. or received. change that are filed with the Commission, and all written I. Self-Regulatory Organization’s III. Date of Effectiveness of the communications relating to the Statement of the Terms of the Substance Proposed Rule Change and Timing for proposed rule change between the of the Proposed Rule Change Commission Action Commission and any person, other than The Exchange proposes to delete Pursuant to Section 19(b)(3)(A)(ii) of those that may be withheld from the NASDAQ Rule 7032. The text of the 12 the Act and Rule 19b–4(f)(2) public in accordance with the proposed rule change is available at 13 thereunder, the Exchange has provisions of 5 U.S.C. 552, will be http://nasdaq.cchwallstreet.com, at designated this proposal as establishing available for Web site viewing and NASDAQ’s principal office, and at the or changing a due, fee, or other charge printing in the Commission’s Public Commission’s Public Reference Room. applicable to the Exchange’s Members Reference Room, 100 F Street NE., and non-members, which renders the Washington, DC 20549, on official II. Self-Regulatory Organization’s proposed rule change effective upon business days between the hours of Statement of the Purpose of, and filing. 10:00 a.m. and 3:00 p.m. Copies of such Statutory Basis for, the Proposed Rule Change At any time within 60 days of the filing also will be available for filing of the proposed rule change, the inspection and copying at the principal In its filing with the Commission, the Commission summarily may office of the Exchange. All comments temporarily suspend such rule change if Exchange included statements received will be posted without change; it appears to the Commission that such concerning the purpose of and basis for the Commission does not edit personal action is necessary or appropriate in the the proposed rule change and discussed public interest, for the protection of identifying information from any comments it received on the investors, or otherwise in furtherance of submissions. You should submit only proposed rule change. The text of these the purposes of the Act. information that you wish to make statements may be examined at the available publicly. All submissions places specified in Item IV below. The IV. Solicitation of Comments should refer to File Number SR–BATS– Exchange has prepared summaries, set Interested persons are invited to 2012–036 and should be submitted on forth in Sections A, B, and C below, of submit written data, views and or before October 10, 2012. the most significant aspects of such statements. 10 15 U.S.C. 78f. 11 15 U.S.C. 78f(b)(4) and (b)(5). 14 17 CFR 200.30–3(a)(12). 12 15 U.S.C. 78s(b)(3)(A)(ii). 1 15 U.S.C. 78s(b)(1). 13 17 CFR 240.19b–4(f)(2). 2 17 CFR 240.19b–4.

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A. Self-Regulatory Organization’s III. Date of Effectiveness of the All submissions should refer to File Statement of the Purpose of, and Proposed Rule Change and Timing for Number SR–NASDAQ–2012–105. This Statutory Basis for, the Proposed Rule Commission Action file number should be included on the Change The proposed rule change is effective subject line if email is used. 1. Purpose upon filing pursuant to Section To help the Commission process and 19(b)(3)(A) of the Act 5 and paragraph review your comments more efficiently, 6 NASDAQ is proposing to delete Rule (f)(6) of Rule 19b–4 thereunder, in that please use only one method. The 7032, Late Fees. This rule is identical to the proposed rule change: (i) does not Commission will post all comments on former NASD Rule 7080, which was significantly affect the protection of the Commission’s Internet Web site applicable to charges imposed by the investors or the public interest; (ii) does (http://www.sec.gov/rules/sro.shtml). not impose any significant burden on Nasdaq Market Center prior to Copies of the submission, all subsequent competition; and (iii) does not become NASDAQ’s exchange registration and amendments, all written statements operative for 30 days after the date of separation from FINRA (then NASD) in with respect to the proposed rule 2006. Prior to 2006, the business the filing, or such shorter time as the Commission may designate if consistent change that are filed with the decision was made not to assess late Commission, and all written fees under NASD Rule 7080; however, with the protection of investors and the public interest; provided the self- communications relating to the the rule inadvertently was not deleted proposed rule change between the from the rulebook and subsequently was regulatory organization has given the Commission written notice of its intent Commission and any person, other than included in the NASDAQ rules. Because to file the proposed rule change, along those that may be withheld from the members historically have not been with a brief description and text of the public in accordance with the assessed late fees under this Rule, and proposed rule change, at least five provisions of 5 U.S.C. 552, will be NASDAQ has determined not to do so business days prior to the date of filing available for Web site viewing and in the future, NASDAQ is proposing to of the proposed rule change, or such printing in the Commission’s Public delete Rule 7032. shorter time as designated by the Reference Room on official business 2. Statutory Basis Commission. NASDAQ provided such days between the hours of 10:00 a.m. notice on August 16, 2012. and 3:00 p.m. Copies of such filing also NASDAQ believes that the proposed At any time within 60 days of the will be available for inspection and rule change is consistent with the filing of the proposed rule change, the copying at the principal offices of the provisions of Section 6 of the Act,3 in Commission summarily may Exchange. All comments received will general, and with Sections 6(b)(4) and temporarily suspend such rule change if be posted without change; the (5) of the Act,4 in particular, in that it it appears to the Commission that such Commission does not edit personal provides for the equitable allocation of action is necessary or appropriate in the identifying information from reasonable dues, fees and other charges public interest, for the protection of submissions. You should submit only among members and issuers and other investors, or otherwise in furtherance of information that you wish to make persons using any facility or system the purposes of the Act. If the available publicly. All submissions which NASDAQ operates or controls, Commission takes such action, the should refer to File Number SR– Commission shall institute proceedings and is not designed to permit unfair NASDAQ–2012–105, and should be to determine whether the proposed rule discrimination between customers, submitted on or before October 10, should be approved or disapproved. issuers, brokers or dealers. NASDAQ 2012. believes that the proposed rule change IV. Solicitation of Comments For the Commission, by the Division of is reasonable, equitable and non- Interested persons are invited to Trading and Markets, pursuant to delegated discriminatory in that it is eliminating submit written data, views, and authority.7 a fee provision that NASDAQ has arguments concerning the foregoing, Kevin M. O’Neill, determined is not necessary and the including whether the proposed rule Deputy Secretary. change applies to all NASDAQ change, as amended, is consistent with [FR Doc. 2012–23040 Filed 9–18–12; 8:45 am] members. the Act. Comments may be submitted by BILLING CODE 8011–01–P B. Self-Regulatory Organization’s any of the following methods: Statement on Burden on Competition Electronic Comments • The Exchange does not believe that Use the Commission’s Internet the proposed rule change will result in comment form (http://www.sec.gov/ any burden on competition that is not rules/sro.shtml); or • necessary or appropriate in furtherance Send an email to rule- of the purposes of the Act, as amended. [email protected]. Please include File Number SR–NASDAQ–2012–105 on the C. Self-Regulatory Organization’s subject line. Statement on Comments on the Paper Comments Proposed Rule Change Received From Members, Participants, or Others • Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Written comments were neither Securities and Exchange Commission, solicited nor received. 100 F Street NE., Washington, DC 20549–1090.

3 15 U.S.C. 78f. 5 15 U.S.C. 78s(b)(3)(A). 4 15 U.S.C. 78f(b)(4) and (5). 6 17 CFR 240.19b–4(f)(6). 7 17 CFR 200.30–3(a)(12).

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SECURITIES AND EXCHANGE and (C) below, of the most significant This file also contains a cash balancing COMMISSION aspects of such statements. component, which is an estimation of accrued dividends, cash-in-lieu of (A) Self-Regulatory Organization’s securities and any necessary balancing [Release No. 34–67850; File No. SR–NSCC– Statement of the Purpose of, and 2012–07] amount.6 The portfolio information Statutory Basis for, the Proposed Rule contained in this file is used for Change Self-Regulatory Organizations; creation/redemption processing the next National Securities Clearing NSCC reports on, clears and settles day, or Trade Date (T). On T, by such Corporation; Notice of Filing and domestic index receipts (i.e. shares in time as established by NSCC, the index Immediate Effectiveness of Proposed exchange-traded funds (‘‘ETFs’’)) and receipt agent, on behalf of each Member Rule Change Which: (i) Eliminates the their underlying component securities placing an index receipt order, will Practice of Netting of Creations and through a creation/redemption process, report to NSCC the number of index Redemptions of Index Receipts Prior which is initiated by a Member. As receipts created and redeemed that day. to Their Entering NSCC’s Accounting more fully described below, the Such transactions constitute locked-in Operation, and (ii) Effects Certain purposes of the proposed rule change transactions between the index receipt Other Technical Changes are to: (a) Discontinue the current agent and the relevant Members. The practice of netting of ETF transactions index receipt agent also will report the September 13, 2012. prior to entering the Corporation’s final cash amount and a transaction Pursuant to Section 19(b)(1) of the Accounting Operation in order to: (1) amount which represents the Securities Exchange Act of 1934 Harmonize ETF processing with that for transaction fee. On the night of T, NSCC 1 (‘‘Act’’), notice is hereby given that on other transaction types and (2) better transmits an index receipt instruction September 4, 2012, National Securities facilitate Members’ internal detail report to Members who had Clearing Corporation (‘‘NSCC’’) filed reconciliation processes, and (b) make activity on T. The report serves as the with the Securities and Exchange certain technical corrections and contract for the creation/redemption Commission (‘‘Commission’’) the clarifications to the Rules text with activity and lists the number of proposed rule change as described in respect to current ETF processing. component shares, on a netted basis, Items I and II below, which Items have NSCC’s index receipt processing associated with particular creations and been prepared primarily by NSCC. supports: (a) The establishment of index redemptions executed on T. Prior to NSCC filed the proposal pursuant to receipt units (creation), whereby a entering the Corporation’s Accounting Section 19(b)(3)(A)(iii) of the Act,2 and Member will deliver the underlying Operation, each index share instruction Rule 19b–4(f)(4) 3 thereunder so that the component securities or cash to the is separated into its underlying stock proposal was effective upon filing with index receipt agent and receive index components, and incorporated into the the Commission. The Commission is receipts, and (b) the redemption of normal equity clearance and settlement publishing this notice to solicit index receipt units whereby a Member process. Unsettled positions in index comments on the proposed rule change will deliver the index receipts and receipts and their component securities from interested persons. receive the underlying components or are risk managed as ordinary activity cash. NSCC facilitates the processing of I. Self-Regulatory Organization’s and guaranteed pursuant to the these transactions as set forth below.4 provisions of Addendum K. Statement of the Terms of Substance of NSCC’s process for handling of index the Proposed Rule Change Pursuant to the proposed Rule receipt transactions is set forth in change, creation/redemption index The proposed rule change: (i) Procedure II, Section G. On the day receipt activity will no longer be netted Eliminates the practice of netting of before trade date (T–1), an index receipt prior to the general netting associated creations and redemptions of index agent transmits files to NSCC which with NSCC’s Accounting Operation, and receipts prior to their entering NSCC’s contain information regarding the thus will not appear on the Index Accounting Operation, and (ii) effects underlying composition of index Receipt Detail Report as netted, but will certain other technical changes. Details receipts for creates and redeems be reported in gross. The are set forth in Exhibit 5 to NSCC’s rule occurring the next business day. That discontinuation of this ‘‘pre-netting’’ filing, which can be found on NSCC’s evening, NSCC compiles the practice will harmonize NSCC’s Web site (http://www.dtcc.com/ information and provides the respective processing for ETFs with the processing downloads/legal/rule_filings/2012/nscc/ Members with a portfolio composition of other transactions that enter the SR–NSCC–2012–07.pdf). report/file that lists the composition of Accounting Operation which are not index receipts eligible for processing. netted prior to entering the Accounting II. Self-Regulatory Organization’s The file displays the proportionate Operation. In addition, the reporting of Statement of the Purpose of, and amount of underlying components or the underlying components for creations Statutory Basis for, the Proposed Rule 5 cash that comprise each index receipt. and redemptions in gross will better Change facilitate Members’ internal In its filing with the Commission, 4 For the NSCC rule filing which implemented ETF processing, see Securities Exchange Act 6 The balancing amount is designed to NSCC included statements concerning Release No. 31601 (December 16, 1992), [File No. the purpose of and basis for the compensate for any difference between the net asset SR–NSCC–92–08]. value of the index receipt and the value of the proposed rule change and discussed any 5 In 2008, NSCC expanded its index receipt underlying index. Among other reasons, a comments it received on the proposed processing to allow for creates and redeems using difference in value could result from the fact that rule change. The text of these statements cash as the sole underlying component. This allows an index receipt cannot contain fractional shares of Members and their agent banks to create and may be examined at the places specified a security. Separately, from time to time, an Index redeem index receipts whose underlying Receipt Agent may use cash-in-lieu as part of the in Item IV below. NSCC has prepared components are not currently eligible for processing cash balancing amount which means it would summaries, set forth in sections (A), (B) at NSCC (for example, commodity index receipts). substitute the cash value of a component security The index receipt agent would use the cash to for a security in the portfolio. For instance, such a purchase the components, the settlement of which substitution may be made due to difficulty in 1 15 U.S.C. 78s(b)(1). would occur outside of NSCC. See Securities obtaining a particular security. The cash-in-lieu 2 15 U.S.C. 78s(b)(3)(A)(iii). Exchange Act Release No. 58694 (September 30, designation is not used where cash is the sole 3 17 CFR 240.19b–4(f)(4). 2008), [File No. SR–NSCC–2008–07]. underlying component of a creation or redemption.

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reconciliation processes by providing a harmonizing the processing of creates Paper Comments comprehensive view of their activity and redeems of index receipts with • prior to it entering the net. The other NSCC activity and enhancing Send paper comments in triplicate proposed change will not have a Members’ abilities to reconcile such to Elizabeth M. Murphy, Secretary, substantive impact on Members or the activity, as described above; and is Securities and Exchange Commission, Corporation, either operationally or therefore consistent with the 100 F Street NE., Washington, DC from a risk perspective, as a Member’s requirements of the Act and the rules 20549–1090. and regulations thereunder applicable to overall positions are mathematically the All submissions should refer to File NSCC. The proposed rule change is same, and margined equally, regardless Number SR–NSCC–2012–07. This file of the whether a Member’s create/ consistent with the Principles for number should be included on the redeem positions are separately netted Financial Market Infrastructures as it subject line if email is used. To help the prior to processing in the Accounting promotes clarity in the Rules with Operation. (Note: Included in NSCC’s respect to the reporting of contracts and Commission process and review your fee schedule, as set forth in Addendum input into the Corporation’s Accounting comments more efficiently, please use A to the Rules, is an ‘‘into the net’’ Operation. only one method. The Commission will charge which is volume based in terms post all comments on the Commission’s (B) Self-Regulatory Organization’s Internet Web site (http://www.sec.gov/ of the dollar value of the transactions Statement on Burden on Competition entering the Corporation’s Accounting rules/sro.shtml). Copies of the Operation. In this regard, the proposed NSCC does not believe that the submission, all subsequent change may have an impact on Member proposed rule change will have any amendments, all written statements billing in that a gross rather than net impact, or impose any burden, on with respect to the proposed rule transaction value for creations and competition. change that are filed with the redemptions will be fed into the (C) Self-Regulatory Organization’s Commission, and all written Accounting Operation.) Statement on Comments on the communications relating to the In addition, NSCC proposes certain Proposed Rule Change Received From proposed rule change between the technical corrections and clarifications Members, Participants or Others Commission and any person, other than to the Section G of Procedure II, Written comments relating to the those that may be withheld from the including to: proposed rule change have not yet been public in accordance with the (a) Highlight the distinction between solicited or received. NSCC will notify provisions of 5 U.S.C. 552, will be cash used as the sole underlying the Commission of any written available for Web site viewing and component versus as a partial comments received by NSCC. printing in the Commission’s Public replacement for underlying Reference Section, 100 F Street NE., III. Date of Effectiveness of the components, Washington, DC 20549, on official (b) Indicate, consistent with the Proposed Rule Change and Timing for business days between the hours of change to eliminate the ‘‘pre-net’’ of Commission Action 10:00 a.m. and 3:00 p.m. Copies of such index receipts, that the Index Receipt The foregoing rule change has become filings will also be available for Detail Report will report securities effective upon filing pursuant to Section inspection and copying at the principal components for a given index receipt 19(b)(3)(A)(iii) 8 of the Act and Rule office of NSCC and on NSCC’s Web site transaction in gross, 19b–4(f)(4) 9 thereunder. At any time (c) Make a correction to reflect that (http://www.dtcc.com/downloads/legal/ within 60 days of the filing of the _ the Corporation reports to Members on proposed rule change, the Commission rule filings/2012/nscc/SR–NSCC–2012– the Index Receipt Detail Report the summarily may temporarily suspend 07.pdf). details of the creations and redemptions such rule change if it appears to the All comments received will be posted submitted on T rather than T+1, Commission that such action is without change; the Commission does (d) Clarify that the Index Receipt necessary or appropriate in the public not edit personal identifying Detail Report also shows the quantity of interest, for the protection of investors, information from submissions. You index receipt shares associated with the or otherwise in furtherance of the should submit only information that current creation and redemption purposes of the Act. you wish to make available publicly. All activity, and IV. Solicitation of Comments submissions should refer to File (e) Delete an incorrect reference that Number SR–NSCC–2012–07 and should the Index Receipt Detail Report provides Interested persons are invited to be submitted on or before October 10, the total quantity of securities to be submit written data, views, and 2012. delivered and received on Settlement arguments concerning the foregoing, Date.7 including whether the proposed rule For the Commission, by the Division of Implementation timeframe: change is consistent with the Act. Trading and Markets, pursuant to delegated NSCC proposes to implement the Comments may be submitted by any of authority.10 changes set forth in this filing in the the following methods: Kevin M. O’Neill, third quarter of 2012. Members will be Electronic Comments Deputy Secretary. advised of the implementation date • [FR Doc. 2012–23038 Filed 9–18–12; 8:45 am] through the issuance of an NSCC Use the Commission’s Internet BILLING CODE 8011–01–P Important Notice. comment form (http://www.sec.gov/ rules/sro.shtml) or The proposed rule change facilitates • the prompt and accurate clearance and Send an email to rule- settlement of securities transactions by [email protected]. Please include File Number SR–NSCC–2012–07 on the 7 Quantities of all securities to be delivered and subject line. received by a Member on Settlement Date (not only with respect to index receipts) are reported to 8 15 U.S.C. 78s(b)(3)(A)(iii). Members on the Consolidated Trade Summary. 9 17 CFR 240.19b-4(f)(4). 10 17 CFR 200.30–3(a)(12).

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SECURITIES AND EXCHANGE Questions have arisen concerning the By the Commission. COMMISSION adequacy and accuracy of press releases Elizabeth M. Murphy, concerning the company’s operations. [File No. 500–1] Secretary. 8. Mike the Pike Productions Inc. is a [FR Doc. 2012–23195 Filed 9–17–12; 4:15 pm] Wyoming corporation based in Indiana AER Energy Resources, Inc.; Alto BILLING CODE 8011–01–P Group Holdings, Inc.; Bizrocket.Com and California. Questions have arisen Inc.; Fox Petroleum, Inc.; Geopulse concerning the adequacy and accuracy Explorations Inc.; Global Technologies of press releases concerning the SECURITIES AND EXCHANGE Group Inc.; KMA Global Solutions company’s operations and the accuracy COMMISSION of its financial statements. International, Inc.; Mike The Pike [File No. 500–1] Productions Inc.; Mobile Star Corp.; 9. Mobile Star Corp. is a Delaware SavWatt USA Inc.; Scorpex Inc.; Silver corporation based in California. Freedom Environmental Services, Inc.; Dragon Resources Inc.; Strategic Questions have arisen concerning the Order of Suspension of Trading Mining Corp.; Surgline International adequacy and accuracy of press releases Inc.; Thrive World Wide Inc.; Zamage concerning the company’s operations. September 17, 2012. Digital Art Imaging Inc.; Order of 10. SavWatt USA, Inc. is a Delaware It appears to the Securities and Suspension of Trading corporation based in Maryland. Exchange Commission that there is a Questions have arisen concerning the lack of current and accurate information September 17, 2012. adequacy and accuracy of press releases concerning the securities of Freedom It appears to the Securities and concerning the company’s operations. Environmental Services, Inc. Exchange Commission that there is a 11. Scorpex, Inc. is a Nevada (‘‘Freedom’’) because of questions lack of current and accurate information corporation based in Nevada. Questions regarding the adequacy and accuracy of concerning the securities of the issuers have arisen concerning the adequacy publicly disseminated information by listed below. As set forth below for each and accuracy of press releases Freedom, and by others, in press issuer, questions have arisen regarding concerning the company’s operations. releases to investors and in filings with the accuracy of publicly disseminated 12. Silver Dragon Resources Inc. is a the Commission concerning, among information, concerning, among other Delaware corporation based in Ontario, other things: (1) The identity of the things: (1) The company’s business Canada. Questions have arisen persons in control of the company’s operations, (2) the company’s current concerning the adequacy and accuracy operations and management; (2) the financial condition; and/or (3) issuances of publicly available information about company’s current financial condition; of shares in company stock. the company’s operations. and (3) the misappropriation of 1. AER Energy Resources, Inc. is a 13. Strategic Mining Corp. is a corporate funds. Nevada corporation based in Arizona. Wyoming corporation based in Ontario, The Commission is of the opinion that Questions have arisen concerning the Canada. Questions have arisen the public interest and the protection of adequacy and accuracy of press releases concerning the adequacy and accuracy investors require a suspension of trading concerning the company’s operations. of press releases concerning the in the securities of the above-listed 2. Alto Group Holdings, Inc. is a company’s operations. company. Nevada corporation based in Therefore, it is ordered, pursuant to 14. Surgline International Inc. is a Washington State. Questions have Section 12(k) of the Securities Exchange Nevada corporation based in Florida. arisen concerning the adequacy and Act of 1934, that trading in the Questions have arisen concerning the accuracy of publicly available securities of the above-listed company is adequacy and accuracy of press releases information about the company’s suspended for the period from 9:30 a.m. and public filings concerning the operations, and concerning issuances of EDT, on September 17, 2012 through company’s operations. shares in the company’s stock. 11:59 p.m. EDT, on September 28, 2012. 15. Thrive World Wide, Inc. is a 3. Bizrocket.com Inc. is a Nevada By the Commission. corporation based in Florida. Questions Nevada corporation based in Wisconsin. have arisen concerning the adequacy Questions have arisen concerning the Jill M. Peterson, and accuracy of press releases adequacy and accuracy of press releases Assistant Secretary. concerning the company’s revenues. concerning the company’s operations. [FR Doc. 2012–23196 Filed 9–17–12; 4:15 pm] 4. Fox Petroleum, Inc. is a Nevada 16. Zamage Digital Art Imaging, Inc. is BILLING CODE 8011–01–P corporation based in New York. a Nevada corporation. Questions have Questions have arisen concerning the arisen concerning the adequacy and adequacy and accuracy of press releases accuracy of press releases concerning DEPARTMENT OF STATE concerning the company’s operations. the company’s operations and the 5. Geopulse Explorations Inc. is a accuracy of its financial statements. [Public Notice 8032] The Commission is of the opinion that Nevada corporation based in New In the Matter of the Designation of the the public interest and the protection of Mexico. Questions have arisen Haqqani Network Also Known as HQN investors require a suspension of trading concerning the adequacy and accuracy as a Foreign Terrorist Organization in the securities of the above-listed of press releases concerning the Pursuant to Section 219 of the companies. company’s operations. Immigration and Nationality Act, as 6. Global Technologies Group Inc. is Therefore, it is ordered, pursuant to Amended a Florida corporation based in Florida. Section 12(k) of the Securities Exchange Questions have arisen concerning the Act of 1934, that trading in the Based upon a review of the adequacy of publicly available securities of the above-listed companies Administrative Record assembled in information about the company. is suspended for the period from 9:30 this matter and in consultation with the 7. KMA Global Solutions a.m. EDT, on September 17, 2012 Attorney General and the Secretary of International Inc. is a Nevada through 11:59 p.m. EDT, on September the Treasury, I conclude that there is a corporation based in Ontario, Canada. 28, 2012. sufficient factual basis to find that the

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relevant circumstances described in Washington who represent the broad improved to take into consideration the section 219 of the Immigration and range fishing and conservation interests evolving needs of users on Lakes Nationality Act, as amended (hereinafter in anadromous and ecologically related Superior, Huron, Michigan and Erie. ‘‘INA’’) (8 U.S.C. 1189), exist with species in the North Pacific. Certain The Commission is considering respect to the Haqqani Network, also members also represent relevant state proposed changes to its Orders of known as HQN. and regional authorities. The panel was Approval for the outflows of Lake Therefore, I hereby designate the established in 1992 to advise the U.S. Superior at the St. Marys River that have aforementioned organization and its Section of the NPAFC on research needs been recommended by the Study. The aliases as a Foreign Terrorist and priorities for anadromous species, Study report also examines the potential Organization pursuant to section 219 of such as salmon, and ecologically related future impacts of climate change, a the INA. This determination shall be species occurring in the high seas of the management strategy to better anticipate published in the Federal Register. North Pacific Ocean. and respond to future extreme water Dated: September 7, 2012. The upcoming Panel meeting will levels, the feasibility and implications Hillary Rodham Clinton, focus on two major topics: (1) Review of of restoring water levels in lakes the agenda for the 2012 annual meeting Secretary of State. Michigan-Huron and multi-lake of the NPAFC (October 7–12; St. [FR Doc. 2012–23119 Filed 9–18–12; 8:45 am] regulation and its impacts throughout Petersburg, Russia); and (2) logistics for the Great Lakes-St. Lawrence system. BILLING CODE 4710–10–P the U.S. Section at the NPAFC meeting. The study report and a presentation on Background material is available from the study findings, as well as the the point of contact noted above and by DEPARTMENT OF STATE supporting documents and peer review visiting www.npafc.org. are available online at the following [Public Notice 8035] This announcement might appear in Web site: http://www.iugls.org. the Federal Register less than 15 days Notice of Public Meeting prior to the meeting. The Department of Participants may join the State finds that there is an exceptional teleconference on either of the following SUMMARY: The U.S. Department of State, circumstance for such publication, in lines and are encouraged to dial in 10 Bureau of Oceans and International minutes before the 7 p.m. (EDT) start Environmental and Scientific Affairs that this advisory committee meeting must be held on October 1st in order to time: (OES), Office of Marine Conservation • announces that the Advisory Panel to prepare for the international NPAFC to English speaking line: Telephone the U.S. Section of the North Pacific be convened on October 7th. 877–413–4814, PIN 7297456 Anadromous Fish Commission will Dated: September 13, 2012. • French speaking line: Telephone meet on October 1, 2012. William Gibbons-Fly, 877–413–4814, PIN 2641187 DATES: The meeting will take place via Director, Office of Marine Conservation, Written comments may also be teleconference on October 1st, 2012, Department of State. submitted to the IJC for receipt by from 1 p.m. to 3 p.m. Eastern time. [FR Doc. 2012–23115 Filed 9–18–12; 8:45 am] September 30, 2012 via the Upper Great Meeting Details: The teleconference BILLING CODE 4710–09–P Lakes Public Hearings Web site http:// call-in number is toll-free 1–877–336– www.ijc.org/iuglsreport/ or to either 1831, access code 6472335, and will address below: have a limited number of lines for DEPARTMENT OF STATE U.S. Section Secretary, International members of the public to access from [Public Notice 8034] anywhere in the United States. Callers Joint Commission, 2000 L Street NW., will hear instructions for using the International Joint Commission Invites Suite 615, Washington, DC 20440, access code and joining the call after Public Comment on Upper Great Lakes Fax: 202–632–2006, dialing the toll-free number noted. Report via Teleconference and [email protected]. Members of the public wishing to Extends Public Comment Period Canadian Section Secretary, participate in the teleconference must International Joint Commission, 234 contact the OES officer in charge as The International Joint Commission Laurier Avenue West, 22nd Floor, noted in the FOR FURTHER INFORMATION (IJC) announced that it is holding a Ottawa, ON K1P 6K6, Fax: 613–993– CONTACT section below no later than teleconference to invite public comment 5583, [email protected]. close of business on Friday, September on the final report of its International 28, 2012. Upper Great Lakes Study Board, Lake The International Joint Commission Superior Regulation: Addressing was established under the Boundary FOR FURTHER INFORMATION CONTACT: Uncertainty in Upper Great Lakes Water Waters Treaty of 1909 to help the Robert Jones, Office of Marine Levels. United States and Canada prevent and Conservation, OES, Room 2758, U.S. The teleconference will be held at 7 resolve disputes over the use of the Department of State, 2201 C Street NW., p.m. (EDT) on September 19, 2012 and waters the two countries share. Its Washington, DC 20520. Telephone (202) will provide an opportunity to be heard responsibilities include considering 647–3464, fax (202) 736–7350, email for those who were not able to attend applications for projects that affect the [email protected]. one of the 13 public hearings that the natural levels and flows of boundary SUPPLEMENTARY INFORMATION: In IJC conducted in upper Great Lakes waters. For more information, visit the accordance with the requirements of the communities during July 2012. The Commission’s Web site at www.ijc.org. Federal Advisory Committee Act, notice deadline for comments has also been Dated: September 13, 2012. is given that the Advisory Panel to the extended to September 30, 2012. U.S. Section of the North Pacific The Study examines whether the Charles A. Lawson, Anadromous Fish Commission (NPAFC) regulation of outflows from Lake Secretary, U.S. Section, International Joint will meet on the date and time noted Superior through the compensating Commission, Department of State. above. The panel consists of members works and power dams on the St. Marys [FR Doc. 2012–23116 Filed 9–18–12; 8:45 am] from the states of Alaska and River at Sault Ste. Marie might be BILLING CODE 4710–14–P

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DEPARTMENT OF STATE the benefits of the African Growth and unlawful transshipment of such articles, Opportunity Act (the AGOA). The if he determines that the country meets [Public Notice 8033] Subcommittee will consider these the eligibility criteria set forth in: (1) In the Matter of the Designation of the comments in developing Section 104 of the AGOA (19 U.S.C. Haqqani Network Also Known as HQN recommendations on AGOA country 3703); and (2) section 502 of the 1974 as a Specially Designated Global eligibility for calendar year 2013 for the Act (19 U.S.C. 2462). Terrorist Pursuant to Executive Order President. Comments received related to Section 104 of the AGOA includes 13224, as Amended the child labor criteria may also be requirements that the country has considered by the Secretary of Labor in established or is making substantial Acting under the authority of and in the preparation of the Department of progress toward establishing, inter alia: accordance with section 1(b) of Labor’s report on child labor as required A market-based economy; the rule of Executive Order 13224 of September 23, under section 412(c) of the Trade and law, political pluralism, and the right to 2001, as amended by Executive Order Development Act of 2000. This notice due process; the elimination of barriers 13268 of July 2, 2002, and Executive identifies the eligibility criteria that to U.S. trade and investment; economic Order 13284 of January 23, 2003, I must be considered under the AGOA, policies to reduce poverty; a system to hereby determine that the organization and lists those sub-Saharan African combat corruption and bribery; and known as the Haqqani Network, also countries that are currently eligible for protection of internationally recognized known as HQN, committed, or poses a the benefits of the AGOA and those that worker rights. In addition, the country significant risk of committing, acts of were ineligible for such benefits in may not engage in activities that terrorism that threaten the security of 2012. undermine U.S. national security or U.S. nationals or the national security, DATES: To ensure consideration, public foreign policy interests or engage in foreign policy, or economy of the United comments must be submitted to the gross violations of internationally States. Office of the U.S. Trade Representative recognized human rights. Please see Consistent with the determination in (USTR) by October 12, 2012. section 104 of the AGOA and section section 10 of Executive Order 13224 that 502 of the 1974 Act for a complete list ‘‘prior notice to persons determined to ADDRESSES: USTR strongly prefers of the AGOA eligibility criteria. be subject to the Order who might have electronic submissions made at http:// Section 506A of the 1974 Act requires a constitutional presence in the United www.regulations.gov, docket number that, if the President determines that a States would render ineffectual the USTR–2012–0026 See ‘‘Requirements beneficiary sub-Saharan African country blocking and other measures authorized for Submission,’’ below. If you are is not making continual progress in in the Order because of the ability to unable to make a submission at meeting the eligibility requirements, he transfer funds instantaneously,’’ I www.regulations.gov, please contact must terminate the designation of the determine that no prior notice needs to Don Eiss, Trade Policy Staff Committee, country as a beneficiary sub-Saharan be provided to any person subject to this at (202) 395–3475 to make other African country. For 2012, 40 countries determination who might have a arrangements. have been designated as beneficiary sub- constitutional presence in the United FOR FURTHER INFORMATION CONTACT: For Saharan African countries. These States, because to do so would render procedural questions, please contact countries, as well as the countries ineffectual the measures authorized in Don Eiss, Office of the U.S. Trade currently designated as ineligible, are the Order. Representative, 600 17th Street NW., listed below. Section 506A of the 1974 This notice shall be published in the Room F516, Washington, DC 20508, at Act provides that the President shall Federal Register. (202) 395–3475. All other questions monitor and review annually the Dated: September 7, 2012. should be directed to Constance progress of each sub-Saharan African Hillary Rodham Clinton, Hamilton, Deputy Assistant U.S. Trade country in meeting the foregoing Representative for Africa, Office of the eligibility criteria in order to determine Secretary of State. U.S. Trade Representative, at (202) 395– whether each beneficiary sub-Saharan [FR Doc. 2012–23124 Filed 9–18–12; 8:45 am] 9514. African country should continue to be BILLING CODE 4710–10–P SUPPLEMENTARY INFORMATION: The eligible, and whether each sub-Saharan AGOA (Title I of the Trade and African country that is currently not a Development Act of 2000, Public Law beneficiary sub-Saharan African OFFICE OF THE UNITED STATES 106–200) (19 U.S.C. 3721 et seq.), as country, should be designated as such a TRADE REPRESENTATIVE amended, authorizes the President to country. designate sub-Saharan African countries The Subcommittee is seeking public Request for Public Comments on comments in connection with the Annual Review of Country Eligibility as beneficiary sub-Saharan African countries eligible for duty-free treatment annual review of the eligibility of for Benefits Under the African Growth beneficiary sub-Saharan African and Opportunity Act for certain additional products under the Generalized System of Preferences countries for the AGOA’s benefits. The AGENCY: Office of the United States (GSP) (Title V of the Trade Act of 1974 Subcommittee will consider any such Trade Representative. (19 U.S.C. 2461 et seq.) (the ‘‘1974 comments in developing recommendations on country eligibility ACTION: Notice and request for Act’’)), as well as for the preferential for the President. Comments related to comments. treatment the AGOA provides for certain textile and apparel articles. the child labor criteria may also be SUMMARY: The African Growth and The President may designate a considered by the Secretary of Labor in Opportunity Act Implementation country as a beneficiary sub-Saharan making the findings required under Subcommittee of the Trade Policy Staff African country eligible for both the section 504 of the 1974 Act. The Committee (the ‘‘Subcommittee’’) is additional GSP benefits and the textile following sub-Saharan African countries requesting written public comments for and apparel benefits of the AGOA for were designated as beneficiary sub- the annual review of the eligibility of countries meeting certain statutory Saharan African countries in 2012: sub-Saharan African countries to receive requirements intended to prevent Angola

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Republic of Benin on the link entitled ‘‘Submit a ACTION: Notice and request for Republic of Botswana Comment.’’ (For further information on comments. Burkina Faso using the http://www.regulations,gov Burundi Web site, please consult the resources SUMMARY: In accordance with the Republic of Cape Verde provided on the Web site by clicking on Paperwork Reduction Act of 1995, FAA Republic of Cameroon ‘‘Help’’ at the top of the home page.) invites public comments about our Republic of Chad The http://www.regulations.gov Web intention to request the Office of Federal Islamic Republic of Comoros site provides the option of making Management and Budget (OMB) Republic of Congo submissions by filling in a ‘‘Type approval to renew an information Republic of Cote d’Ivoire Comment’’ field, or by attaching a collection. The Federal Register Notice Republic of Djibouti document. USTR prefers comments to with a 60-day comment period soliciting Ethiopia be submitted as attachments. When comments on the following collection of Gabonese Republic doing this, it is sufficient to type ‘‘See information was published on July 9, The Gambia attached’’ in the ‘‘Type Comment’’ field. 2012, vol. 77, no. 131, page 40404. 14 Republic of Ghana Submissions in Microsoft Word (.doc) or CFR part 135 prescribes requirement for Republic of Guinea Adobe Acrobat (pdf) are preferred. Air Carrier/Commercial Operators. The Republic of Guinea-Bissau Persons wishing to file comments info collected shows compliance and Republic of Kenya containing business confidential applicant eligibility. Kingdom of Lesotho information must submit both a DATES: Written comments should be Republic of Liberia business confidential version and a submitted by October 19, 2012. Republic of Malawi public version. Persons submitting FOR FURTHER INFORMATION CONTACT: Republic of Mali business confidential information Kathy DePaepe at (405) 954–9362, or by Islamic Republic of Mauritania should write ‘‘See attached BC email at: [email protected]. Republic of Mauritius comments’’ in the ‘‘Type Comment’’ SUPPLEMENTARY INFORMATION: Republic of Mozambique field. Any page containing business confidential information must be clearly OMB Control Number: 2120–0039. Republic of Namibia Title: Operating Requirements: Republic of Niger marked ‘‘BUSINESS CONFIDENTIAL’’ on the top of that page. Persons Commuter and On Demand Operations. Federal Republic of Nigeria Form Numbers: FAA form 8070–1. Republic of Rwanda submitting a business confidential comment must also submit a separate Type of Review: Renewal of an Sao Tome & Principe information collection. Republic of Senegal public version of that comment with the business confidential information Background: Title 49 U.S.C., Section Republic of Seychelles 44702 authorizes issuance of air carrier Republic of Sierra Leone deleted. Persons should write ‘‘See attached public version’’ in the ‘‘Type operating certificates. 14 CFR part 135 Republic of South Africa prescribes requirement for Air Carrier/ Kingdom of Swaziland Comment’’ field of the public submission. Submissions should not Commercial Operators. Each operator United Republic of Tanzania which seeks to obtain, or is in Republic of Togo attach separate cover letters; rather, possession of, an air carrier or FAA Republic of Uganda information that might appear in the operating certificate must comply with Republic of Zambia cover letter should be included in the the requirements of 14 CFR part 135 in The following sub-Saharan African comments you submit. Similarly, to the extent possible, please include any order to maintain data which is used to countries that were not designated as determine if the carrier is operating in beneficiary sub-Saharan African exhibits, annexes, or other attachments to a submission in the same file as the accordance with minimum safety countries in 2012 that are up for review standards. Air carrier and commercial are: submission itself and not as separate files. operator certification is completed in Central African Republic Public versions of all documents accordance with 14 CFR part 119. Part Democratic Republic of Congo relating to this review will be available 135 contains operations and Republic of Equatorial Guinea for review no later than two weeks after maintenance requirements. State of Eritrea the due date at www.regulations.gov, Respondents: 2,426 operators. Republic of Madagascar docket number USTR–2012–0026. Frequency: Information is collected Somalia on occasion. Republic of South Sudan William Shpiece, Estimated Average Burden per Republic of Sudan Acting Chair, Trade Policy Staff Committee. Response: Approximately 7.7 minutes. Republic of Zimbabwe [FR Doc. 2012–23144 Filed 9–18–12; 8:45 am] Estimated Total Annual Burden: Requirements for Submissions: BILLING CODE 3290–F2–P 1,154,674 hours. Comments must be submitted in ADDRESSES: Interested persons are English. To ensure the most timely and invited to submit written comments on expeditious receipt and consideration of DEPARTMENT OF TRANSPORTATION the proposed information collection to petitions, USTR has arranged to accept the Office of Information and Regulatory on-line submissions via http:// Federal Aviation Administration Affairs, Office of Management and www.regulations.gov. To submit Agency Information Collection Budget. Comments should be addressed petitions via this site, enter docket Activities: Requests for Comments; to the attention of the Desk Officer, number USTR–2012–0026 on the home Clearance of Renewed Approval of Department of Transportation/FAA, and page and click ‘‘search.’’ The site will sent via electronic mail to Information Collection: Operating _ provide a search-results page listing all Requirements: Commuter and On oira [email protected], or faxed documents associated with this docket. Demand Operations to (202) 395–6974, or mailed to the Find a reference to this notice by Office of Information and Regulatory selecting ‘‘notice’’ under ‘‘Document AGENCY: Federal Aviation Affairs, Office of Management and Type’’ on search-results page and click Administration (FAA), DOT. Budget, Docket Library, Room 10102,

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725 17th Street NW., Washington, DC Title: FAA Acquisition Management Issued in Washington, DC on September 20503. System (FAAAMS). 13, 2012. Public Comments Invited: You are Form Numbers: 85 forms available at Albert R. Spence, asked to comment on any aspect of this http://fast.faa.gov/ FAA Assistant Information Collection information collection, including (a) Clearance Officer, IT Enterprises Business ProcurementToolboxForms.cfm. Whether the proposed collection of Services Division, AES–200. information is necessary for FAA’s Type of Review: Renewal of an [FR Doc. 2012–22996 Filed 9–18–12; 8:45 am] performance; (b) the accuracy of the information collection. BILLING CODE 4910–13–P estimated burden; (c) ways for FAA to Background: Section 348 of Public enhance the quality, utility and clarity Law 104–50 directed FAA to establish of the information collection; and (d) an acquisition system. The information DEPARTMENT OF TRANSPORTATION ways that the burden could be collection is carried out as an integral Federal Aviation Administration minimized without reducing the quality part of FAA’s acquisition process. of the collected information. The agency Various portions of the AMS describe Agency Information Collection will summarize and/or include your information needed from vendors Activities: Requests for Comments; comments in the request for OMB’s seeking or already doing business with Clearance of Renewed Approval of clearance of this information collection. FAA. FAA contracting offices collect the Information Collection: Changes in Issued in Washington, DC, on September information to plan, solicit, award, Permissible Stage 2 Airplane 13, 2012. administer and close individual Operations Albert R. Spence, contracts. The FAA small business AGENCY: Federal Aviation FAA Assistant Information Collection office collects information to promote Clearance Officer, IT Enterprises Business Administration (FAA), DOT. and increase small business Services Division, AES–200. ACTION: Notice and request for participation in FAA contracts. [FR Doc. 2012–22997 Filed 9–18–12; 8:45 am] comments. BILLING CODE 4910–13–P Respondents: Approximately 15,298 vendors. SUMMARY: In accordance with the Paperwork Reduction Act of 1995, FAA Frequency: Data is collected on DEPARTMENT OF TRANSPORTATION invites public comments about our occasion. intention to request the Office of Federal Aviation Administration Estimated Average Burden per Management and Budget (OMB) Response: 7.5 hours. approval to renew an information Agency Information Collection Estimated Total Annual Burden: collection. The Federal Register Notice Activities: Requests for Comments; 2,000,719 hours. with a 60-day comment period soliciting Clearance of Renewed Approval of comments on the following collection of Information Collection: FAA ADDRESSES: Interested persons are information was published on July 9, Acquisition Management System invited to submit written comments on 2012, vol. 77, no. 131, page 40405. This (FAAAMS) the proposed information collection to information is used to issue special AGENCY: Federal Aviation the Office of Information and Regulatory flight authorizations for non-revenue Administration (FAA), DOT. Affairs, Office of Management and transports and non-transport jet Budget. Comments should be addressed operations of Stage 2 airplanes at U.S. ACTION: Notice and request for comments. to the attention of the Desk Officer, airports. A minimal amount of data is Department of Transportation/FAA, and requested to identify the affected parties SUMMARY: In accordance with the sent via electronic mail to and determine whether the purpose for Paperwork Reduction Act of 1995, FAA [email protected], or faxed the flight is one enumerated by law. invites public comments about our to (202) 395–6974, or mailed to the DATES: Written comments should be intention to request the Office of Office of Information and Regulatory submitted by October 19, 2012. Management and Budget (OMB) Affairs, Office of Management and FOR FURTHER INFORMATION CONTACT: approval to renew an information Budget, Docket Library, Room 10102, Kathy DePaepe at (405) 954–9362, or by collection. The Federal Register Notice 725 17th Street NW., Washington, DC email at: [email protected]. with a 60-day comment period soliciting 20503. SUPPLEMENTARY INFORMATION: comments on the following collection of OMB Control Number: 2120–0652. information was published on July 9, Public Comments Invited: You are asked to comment on any aspect of this Title: Changes in Permissible Stage 2 2012, vol. 77, no. 131, page 40403. The Airplane Operations. FAA Acquisition Management System information collection, including (a) Whether the proposed collection of Form Numbers: There are no FAA establishes policies and internal forms associated with this collection. information is necessary for FAA’s procedures for FAA acquisition. The Type of Review: Renewal of an performance; (b) the accuracy of the information collection is necessary to information collection. solicit, award, and administer contracts estimated burden; (c) ways for FAA to Background: This collection is for supplies, equipment, services, enhance the quality, utility and clarity required under the Airport Noise and facilities, and real property to fulfill of the information collection; and (d) Capacity Act of 1990 (as amended by FAA’s mission. ways that the burden could be Pub. L. 106–113) and the FAA DATES: Written comments should be minimized without reducing the quality Modernization and Reform Act of 2012. submitted by October 19, 2012. of the collected information. The agency The information is used by the FAA to FOR FURTHER INFORMATION CONTACT: will summarize and/or include your issue special flight authorizations for Kathy DePaepe at (405) 954–9362, or by comments in the request for OMB’s nonrevenue operations of transports and email at: [email protected]. clearance of this information collection. non-transport jet Stage 2 airplanes at SUPPLEMENTARY INFORMATION: U.S. airports. A minimal amount of data OMB Control Number: 2120–0595. is requested to identify the affected

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parties and determine whether the Private Partnerships Authority for the Individuals wishing to address the purpose for the flight is enumerated in participation of Luis Mun˜ oz Marı´n Federal panel are limited to a five the law. International Airport, San Juan, Puerto minute presentation. Those individuals Respondents: 50 applicants. Rico (SJU) in the Airport Privatization needing more time can put their Frequency: Information is collected Pilot Program and has determined that additional comments in writing and on occasion. the final application is substantially submit to the FAA the day of the Estimated Average Burden per complete and accepted for review. The listening session or submit at a later Response: 15 minutes. FAA is seeking information and time to the below named addresses. Estimated Total Annual Burden: 12.5 comments from interested parties on the Advance Registration hours. final application. In furtherance of this ADDRESSES: Interested persons are effort, the Department of Transportation Individuals wanting to address the invited to submit written comments on (DOT), the Federal Aviation Federal panel are strongly encouraged to the proposed information collection to Administration and the Transportation pre-register by emailing their name, the Office of Information and Regulatory Security Administration will conduct a affiliation and applicable group category Affairs, Office of Management and public meeting on Friday, September to [email protected]. Budget. Comments should be addressed 28, 2012, in San Juan, Puerto Rico. Advance registration will close to the attention of the Desk Officer, Title 49 U.S.C. Section 47134 Wednesday, September 26 at 5.p.m. Department of Transportation/FAA, and establishes an airport privatization pilot On-Site Registration sent via electronic mail to program and authorizes the Department _ oira [email protected], or faxed of Transportation to grant exemptions On-site registration will begin 7:30 to (202) 395–6974, or mailed to the from certain Federal statutory and a.m. and close at 12 noon. All testimony Office of Information and Regulatory regulatory requirement for up to five will be completed no later than 6 p.m. Affairs, Office of Management and airport privatization projects. The FAA Budget, Docket Library, Room 10102, Modernization and Reform Act of 2012 Comments 725 17th Street NW., Washington, DC expanded the pilot program from five to You may also send written comments 20503. ten airports. The application procedures by any of the following methods. Public Comments Invited: You are require the FAA to publish a notice of • asked to comment on any aspect of this Federal eRulemaking Portal: Go to receipt of the final application in the http://www.regulations.gov and follow information collection, including (a) Federal Register and accept public Whether the proposed collection of the instructions for sending your comment on the final application for a comments electronically. Docket information is necessary for FAA’s period of 60 days. performance; (b) the accuracy of the Number: FAA 2009–1144. DATES: estimated burden; (c) ways for FAA to Comments must be received by • Mail: Docket Management Facility, enhance the quality, utility and clarity November 19, 2012. Comments that are U.S. Department of Transportation, 1200 of the information collection; and (d) received after that date will be New Jersey Avenue SE., West Building ways that the burden could be considered only to the extent possible. Ground Floor, Room W12–140, minimized without reducing the quality Comments Invited Washington DC 20590–0001. of the collected information. The agency • On Friday, September 28, 2012, Hand Delivery: Deliver to mail will summarize and/or include your beginning at 8 a.m., the Department of address above between 9 a.m. and 5 comments in the request for OMB’s Transportation, Federal Aviation p.m. EST, Monday through Friday, clearance of this information collection. Administration will conduct a public except Federal holidays. • Issued in Washington, DC on September meeting to receive oral comments about Fax: (202) 493–2251 13, 2012. the Luis Mun˜ oz Marı´n International Identify all transmission with ‘‘Docket Albert R. Spence, Airport final application; the Number FAA 2009–1144’’ at the FAA Assistant Information Collection Transportation Security Administration beginning of the document. Clearance Officer, IT Enterprises Business will also participate. Services Division, AES–200. Examining the Application ADDRESSES: The meeting will be held at: [FR Doc. 2012–22994 Filed 9–18–12; 8:45 am] Verdanza Hotel, 8020 Tartak Street, Isla The final application has been filed BILLING CODE 4910–13–P Verde, Puerto Rico 00979, 1–787–253– under Docket Number FAA–2009–1144. 9000. You may examine the final application on the Internet at: http:// DEPARTMENT OF TRANSPORTATION The purpose of the public meeting is to receive comments from airport users www.regulations.gov or on the FAA’s Federal Aviation Administration and employees, airlines, aviation Web site www.faa.gov or in person at businesses and airport tenants, elected the Docket Operations office between 9 [Docket No. 2009–1144] officials and community residents about a.m. and 5 p.m. EST, Monday through Friday, except Federal holidays. The Airport Privatization Pilot Program the concerns, advantages or disadvantages of transferring the airport Docket Operations Office (800–647– AGENCY: Federal Aviation to a private operator. The Federal panel 5527) is located at the U.S. Department Administration (FAA), DOT. will begin accepting comments at: of Transportation, 1200 New Jersey ACTION: Notice of receipt of application: Avenue SE., West Building Ground Commencement of public review and Schedule Group category Floor, Room W12–140, Washington DC comment period; notice of public 20590–0001. The Docket contains the 0800–0900 ...... Airport Officials meeting. preliminary and final application, the 0900–1000 ...... Government Officials agreements, any comments received and SUMMARY: The Federal Aviation 1000–1100 ...... Airport Employees other information. The Puerto Rico Ports Administration (FAA) received the final 1100–1200 ...... Airport Businesses Authority (PRPA) has also made copies 1:30 p.m.–3 p.m ...... General Aviation application from the Puerto Rico Ports 3 p.m.–5 p.m ...... General Public of the final application available at the Authority and Puerto Rico Public- following location:

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English Translation 2009, the filing date of the preliminary Issued in Washington, DC, on September 11, 2012. Puerto Rico Department of State, One- application. On December 22, 2009, the Stop Service Center, Corner of San Jose´ Federal Aviation Administration Randall Fiertz, Street and San Francisco Street, advised the Puerto Rico Ports Authority Director, Office of Airport Compliance and Diputacion Provincial Building, Old San and Puerto Rico Public-Private Management Analysis. Juan, Puerto Rico. Partnerships Authority that the agency [FR Doc. 2012–22980 Filed 9–17–12; 4:15 pm] accepted the application for review and BILLING CODE 4910–13–P Spanish Translation that they may select a private operator, Department de Estado de Puerto Rico, negotiate an agreement and submit a Centro U´ nico de Servicio, Edificio final application. The preliminary DEPARTMENT OF TRANSPORTATION Diputacio´n Provincial, Viejo San Juan, application is posted on http:// Puerto Rico. www.regulations.gov in Docket Number Federal Aviation Administration FOR FURTHER INFORMATION CONTACT: FAA 2009–1144 and is available for Fourth Meeting: RTCA Special Carlee Cellar, Airport Compliance public review. Committee 226, Audio Systems and Specialist, Airport Compliance Division, On September 10, 2012, the Puerto Equipment ACO–100, Office of Airport Compliance Rico Ports Authority and Puerto Rico and Management Analysis, Federal Public-Private Partnerships Authority AGENCY: Federal Aviation Aviation Administration, 800 filed its final application. The Puerto Administration (FAA), U.S. Department Independence Ave. SW., Washington, Rico Ports Authority and Puerto Rico of Transportation (DOT). DC 20591. Telephone 202–267–3187. Public-Private Partnerships Authority ACTION: Meeting notice of RTCA Special SUPPLEMENTARY INFORMATION: Title 49 of selected Aerostar Airport Holdings, Committee 226, Audio Systems and the U.S. Code 47134 authorizes the LLC, (AEROSTAR) to operate the Equipment. Secretary of Transportation, and Airport under a 40-year lease. The SUMMARY: through delegation, the FAA The FAA is issuing this notice Puerto Rico Ports Authority will receive to advise the public of the fourth Administrator, to exempt a sponsor of a $615 million upon signing the lease and public use airport that has received meeting of the RTCA Special Committee annual revenue payments over the life 226, Audio Systems and Equipment. Federal assistance, from certain Federal of the lease. In the final application, the DATES: The meeting will be held requirements in connection with the Puerto Rico Ports Authority requested October 16–18, 2012 from 9 a.m.–5 p.m. privatization of the airport by sale or an exemption under 49 U.S.C. lease to a private party. Specifically, the 47134(b)(1) to permit the Puerto Rico ADDRESSES: The meeting will be held at Administrator may exempt the sponsor Ports Authority to use revenue from the RTCA, Inc., 1150 18th Street NW., Suite from all or part of the requirements to lease of airport property for non-airport 910, Washington, DC, 20036. use airport revenues for airport-related purposes and under 49 U.S.C. FOR FURTHER INFORMATION CONTACT: The purposes, to pay back a portion of 47134(b)(2) to forego the repayment of RTCA Secretariat, 1150 18th Street NW., Federal grants upon the sale of an Federal grants; and AEROSTAR asked Suite 910, Washington, DC, 20036, or by airport, and to return airport property for an exemption under 49 U.S.C. telephone at (202) 330–0652/(202) 833– deeded by the Federal Government 47134(b)(3) to permit them to earn 9339, fax at (202) 833–9434, or Web site upon transfer of the airport. The compensation from the operation of the at http://www.rtca.org. Administrator is also authorized to airport. SUPPLEMENTARY INFORMATION: Pursuant exempt the private purchaser or lessee The purpose of the public meeting to section 10(a)(2) of the Federal from the requirements to use all airport scheduled for September 28, 2012, is to Advisory Committee Act (Pub. L. 92– revenues for airport-related purposes, to accept oral comments on the Luis 463, 5 U.S.C., App.), notice is hereby the extent necessary to permit the Mun˜ oz Marı´n International Airport final given for a meeting of Special purchaser or lessee to earn application, for inclusion in Docket Committee 226. The agenda will include compensation from the operations of the Number FAA 2009–1144. The meeting the following: airport. • Welcome and Administrative On September 16, 1997, the Federal will be recorded by a court reporter. A transcript of the meeting and any Remarks Aviation Administration issued a notice • material accepted by the panel during Introductions of procedures to be used in applications • Agenda Overview for exemption under Airport the meeting will be included in the • public docket posted on http:// Review previous action items Privatization Pilot Program (Notice of • Solicit proposals for further changes final application procedures for the www.regulations.gov. The Federal panel will not be able to discuss the to DO–214 Airport Privatization Pilot program: • Initiate discussion on TSO–C99A Application Procedures, 62 Federal application or the pending agency decision because the final application is (Oxygen Mask Communication) Register 48693–48708 (September 16, • Continue discussion on the following: presently before the agency for a 1997) (Notice) (as modified, 62 FR • Risks of usage of adaptive decision. Spanish/English translation 63211, Nov. 26, 1997). A request for technology during test will be made available at the meeting. participation in the Pilot Program must • Proposed committee letter to invite Sign and oral interpretation can be be initiated by the filing of either a additional headsets, MIC’s and CVR made available at the meeting, if preliminary or final application for manufacturers exemption with the Federal Aviation requested 10 calendar days before the • Addition of noise test requirement Administration. meeting. to the vibration test variable nature The Puerto Rico Ports Authority and As part of its review of the final of Oxygen Mask Puerto Rico Public-Private Partnerships application, the FAA will consider all • Microphone and Hand Microphone Authority submitted a preliminary comments, written and oral, that are performance in the marketplace application to the Airport Privatization submitted by interested parties during • Review of proposal to remove CVR Pilot Program for Luis Mun˜ oz Marı´n the 60-day comment period for this Area Microphone requirements International Airport on December 1, notice. from standard in lieu of ED–112

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• Discussion on ANR white paper 463, 5 U.S.C., App.), notice is hereby Issued in Washington, DC, on September • Sensitivity versus output power as given for a meeting of Special 13, 2012. they correlate with its specified Committee 206. The agenda will include David Sicard, ratings the following: Manager, Business Operations Group, Federal • Continue review of DO–214 and draft Aviation Administration. Monday, October 22 updates/changes [FR Doc. 2012–23113 Filed 9–18–12; 8:45 am] • Draft language for noise test 9 a.m. Opening Plenary BILLING CODE 4910–13–P requirement to combine with the • Chairmen’s remarks and host’s vibration test comments • Other Business • DEPARTMENT OF TRANSPORTATION • Attendees’ Introductions Establish agenda for next meeting • Approval of previous meeting • Federal Aviation Administration Adjourn minutes Attendance is open to the interested • Review and approve meeting [Summary Notice No. PE–2012–36] public but limited to space availability. agenda With the approval of the chairman, • Action item review Petition for Exemption; Summary of members of the public may present oral • Sub-Group (SG1—Wake OSED, Petition Received statements at the meeting. Persons SG3—Architecture, SG4—DO–252 AGENCY: Federal Aviation wishing to present statements or obtain revision, SG5/6—MOPS/MAPS) status Administration (FAA), DOT. information should contact the person and week’s plan listed in the FOR FURTHER INFORMATION • ACTION: Notice of petition for exemption Industry Presentations: received. CONTACT section. Members of the public • VDB Data Link may present a written statement to the • System Architecture(s) SUMMARY: This notice contains a committee at any time. • AAtS Implementation Guidance summary of a petition seeking relief Issued in Washington, DC, on September Document from specified requirements of 14 CFR. 11, 2012. • New Capabilities in Flight The purpose of this notice is to improve David Sicard, Services the public’s awareness of, and Manager, Business Operations Group, Federal 1 p.m. Opening Plenary (continue after participation in, this aspect of FAA’s Aviation Administration. lunch) regulatory activities. Neither publication of this notice nor the inclusion or [FR Doc. 2012–22992 Filed 9–18–12; 8:45 am] • FAA Presentations: omission of information in the summary BILLING CODE 4910–13–P • Category 1 End-to-End is intended to affect the legal status of Performance Metrics paper • the petition or its final disposition. DEPARTMENT OF TRANSPORTATION Human Factors Product Evaluation paper DATES: Comments on this petition must identify the petition docket number and Federal Aviation Administration • Data Link Services Quality Sampling paper must be received on or before October 31st Meeting: RTCA Special Committee • Product Compendium 9, 2012. 206, Aeronautical Information and • DQR Working paper ADDRESSES: You may send comments identified by Docket Number FAA– Meteorological Data Link Services 3:45 p.m. SG1/3, SG4, SG5, and SG6 2012–0707 using any of the following meetings AGENCY: Federal Aviation methods: Administration (FAA), U.S. Department October 23–25: Tuesday–Thursday • Government-wide rulemaking Web of Transportation (DOT). site: Go to http://www.regulations.gov 8:30 a.m. SG1/3, SG4, SG5, and SG6 and follow the instructions for sending ACTION: Meeting notice of RTCA Special meetings Committee 206, Aeronautical your comments electronically. Information and Meteorological Data 26 October 23—Friday • Mail: Send comments to the Docket Management Facility; U.S. Department Link Services. 8:30 a.m. Closing Plenary of Transportation, 1200 New Jersey • SUMMARY: The FAA is issuing this notice Sub-Group reports (SG1/3, 4, 5 & 6) Avenue SE., West Building Ground • to advise the public of the thirty-first Industry Presentations: Floor, Room W12–140, Washington, DC • meeting of the RTCA Special Committee ARINC Project Papers 830/839 20590. 206, Aeronautical Information and • RTCA SC–223 AeroMACS • Fax: Fax comments to the Docket Meteorological Data Link Services. • Industry Coordination Management Facility at 202–493–2251. • • DATES: Action item review Hand Delivery: Bring comments to The meeting will be held • October 22–26, 2012 from 8:30 a.m.–5 Future meeting plans and dates the Docket Management Facility in • p.m. Other business Room W12–140 of the West Building • 1 p.m. Adjourn (no lunch break) Ground Floor at 1200 New Jersey ADDRESSES: The meeting will be held at Welcome and Administrative Remarks Avenue SE., Washington, DC, between 9 RTCA, Inc., 1150 18th Street NW., Suite Attendance is open to the interested a.m. and 5 p.m., Monday through 910, Washington, DC 20036. public but limited to space availability. Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: The With the approval of the chairman, Privacy: We will post all comments RTCA Secretariat, 1150 18th Street NW., members of the public may present oral we receive, without change, to http:// Suite 910, Washington, DC 20036, or by statements at the meeting. Persons www.regulations.gov, including any telephone at (202) 330–0652/(202) 833– wishing to present statements or obtain personal information you provide. 9339, fax at (202) 833–9434, or Web site information should contact the person Using the search function of our docket at http://www.rtca.org. listed in the FOR FURTHER INFORMATION Web site, anyone can find and read the SUPPLEMENTARY INFORMATION: Pursuant CONTACT section. Members of the public comments received into any of our to section 10(a)(2) of the Federal may present a written statement to the dockets, including the name of the Advisory Committee Act (Pub. L. 92– committee at any time. individual sending the comment (or

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signing the comment for an association, Railroad Administration (FRA) for a name of the individual submitting the business, labor union, etc.). You may waiver of compliance from certain comment (or signing the comment, if review DOT’s complete Privacy Act provisions of the Federal hours of submitted on behalf of an association, Statement in the Federal Register service laws contained at 49 U.S.C. business, labor union, etc.). You may published on April 11, 2000 (65 FR 21103(a)(4). FRA assigned the petition review DOT’s complete Privacy Act 19477–78). Docket Number FRA–2012–0068. Statement in the Federal Register Docket: To read background In its petition, HRRC seeks relief from published on April 11, 2000 (Volume documents or comments received, go to 49 U.S.C. 21103(a)(4), which (in part) 65, Number 70; Pages 19477–78), or http://www.regulations.gov at any time requires a train employee to receive 48 online at http://www.dot.gov/ or to the Docket Management Facility in hours off duty after initiating an on-duty privacy.html. Room W12–140 of the West Building period for 6 consecutive days. Issued in Washington, DC, on September Ground Floor at 1200 New Jersey Specifically, HRRC seeks a waiver to 12, 2012. Avenue SE., Washington, DC, between 9 allow a train employee to initiate an on- Ron Hynes, duty period for 6 consecutive days a.m. and 5 p.m., Monday through Director, Office of Safety Assurance and Friday, except Federal holidays. followed by 24 hours off duty. In Compliance. support of the request, HRRC submitted FOR FURTHER INFORMATION CONTACT: [FR Doc. 2012–23114 Filed 9–18–12; 8:45 am] documents demonstrating employee Mark Forseth, ANM–113, (425) 227– BILLING CODE 4910–06–P 2796, Federal Aviation Administration, support and a description of employee 1601 Lind Avenue SW., Renton, WA work schedules. A copy of the petition, as well as any 98057–3356, or: Frances Shaver, ARM– DEPARTMENT OF TRANSPORTATION 207, (202) 267–4059, Federal Aviation written communications concerning the Administration, Office of Rulemaking, petition, is available for review online at Federal Railroad Administration 800 Independence Ave. SW., www.regulations.gov and in person at Washington, DC 20591. the U.S. Department of Transportation’s [Docket Number FRA–2001–10948] (DOT) Docket Operations Facility, 1200 This notice is published pursuant to Petition for Waiver of Compliance 14 CFR 11.85. New Jersey Ave. SE., W12–140, Washington, DC 20590. The Docket In accordance with Part 211 of Title Issued in Washington, DC, on September 7, Operations Facility is open from 9 a.m. 2012. 49 Code of Federal Regulations (CFR), to 5 p.m., Monday through Friday, this document provides the public Lirio Liu, except Federal holidays. Acting Director, Office of Rulemaking. notice that by a document dated July 23, Interested parties are invited to 2012, Central Montana Rail, Inc. (CMR) Petition for Exemption participate in these proceedings by has petitioned the Federal Railroad submitting written views, data, or Docket No.: FAA–2012–0707. Administration (FRA) for an extension comments. FRA does not anticipate of its waiver of compliance from a Petitioner: L–3 Communications scheduling a public hearing in Integrated Systems, L.P. Sections of 14 provision of the Federal hours of service connection with these proceedings since laws contained at 49 U.S.C. 21103(a), as CFR Affected: §§ 25.785(h)(2), 25.785(j), the facts do not appear to warrant a 25.791(a), 25.795, 25.813(e), 25.815, and provided by 49 U.S.C. 21102(b). FRA hearing. If any interested party desires assigned the petition Docket Number 25.853(d) an opportunity for oral comment, they Description of Relief Sought: Relief FRA–2001–10948. should notify FRA, in writing, before In their petition, CMR seeks relief from the requirements of flight- the end of the comment period and attendant direct view, firm handholds in from 49 U.S.C. 21103(a)(2), which specify the basis for their request. prohibits a train employee from the passenger compartment, no-smoking All communications concerning these remaining or going on duty for a period placards, security considerations, proceedings should identify the in excess of 12 consecutive hours. Title interior doors between passenger appropriate docket number and may be 49 U.S.C. 21102(b) allows railroads with compartments (some electrically submitted by any of the following 15 or fewer employees to petition for powered), aisle width, and maximum methods: heat-release and smoke-emissions • Web site: http:// exemption from the restriction outlined flammability requirements for large www.regulations.gov. Follow the online at 49 U.S.C. 21103(a)(2), but the interior panels, for executive interiors instructions for submitting comments. exemption may not authorize a carrier on Boeing Model 747–8 airplanes • Fax: 202–493–2251. to require or allow its employees to be designated for private use. • Mail: Docket Operations Facility, on duty more than a total of 16 hours in a 24-hour period. In support of its [FR Doc. 2012–23100 Filed 9–18–12; 8:45 am] U.S. Department of Transportation, 1200 request, CMR explained that the BILLING CODE 4910–13–P New Jersey Avenue SE., W12–140, Washington, DC 20590. allowance for train crews to accumulate • Hand Delivery: 1200 New Jersey up to 16 hours of time on duty has not DEPARTMENT OF TRANSPORTATION Avenue SE., Room W12–140, impacted safety negatively, and that this Washington, DC 20590, between 9 a.m. allowance is only used occasionally. Federal Railroad Administration and 5 p.m., Monday through Friday, A copy of the petition, as well as any written communications concerning the [Docket Number FRA–2012–0068] except Federal holidays. Communications received by petition, is available for review online at Petition for Waiver of Compliance November 5, 2012 will be considered by www.regulations.gov and in person at FRA before final action is taken. the U.S. Department of Transportation’s In accordance with Part 211 of Title Comments received after that date will (DOT) Docket Operations Facility, 1200 49 Code of Federal Regulations (CFR), be considered as far as practicable. New Jersey Avenue SE., W12–140, this document provides the public Anyone is able to search the Washington, DC 20590. The Docket notice that by a document dated July 18, electronic form of any written Operations Facility is open from 9 a.m. 2012, Housatonic Railroad Company, communications and comments to 5 p.m., Monday through Friday, Inc. (HRRC) has petitioned the Federal received into any of our dockets by the except Federal Holidays.

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Interested parties are invited to DEPARTMENT OF TRANSPORTATION The complete application is given in participate in these proceedings by DOT docket MARAD–2012–0094 at submitting written views, data, or Maritime Administration http://www.regulations.gov. Interested comments. FRA does not anticipate parties may comment on the effect this [Docket No. MARAD 2012 0094] scheduling a public hearing in action may have on U.S. vessel builders connection with these proceedings since Requested Administrative Waiver of or businesses in the U.S. that use U.S.- the facts do not appear to warrant a the Coastwise Trade Laws: Vessel flag vessels. If MARAD determines, in hearing. If any interested party desires DEFIANCE; Invitation for Public accordance with 46 U.S.C. 12121 and an opportunity for oral comment, they Comments. MARAD’s regulations at 46 CFR part should notify FRA, in writing, before 388, that the issuance of the waiver will the end of the comment period and AGENCY: Maritime Administration, have an unduly adverse effect on a U.S.- specify the basis for their request. Department of Transportation. vessel builder or a business that uses ACTION: Notice. U.S.-flag vessels in that business, a All communications concerning these waiver will not be granted. Comments proceedings should identify the SUMMARY: As authorized by 46 U.S.C. should refer to the docket number of appropriate docket number and may be 12121, the Secretary of Transportation, this notice and the vessel name in order submitted by any of the following as represented by the Maritime for MARAD to properly consider the methods: Administration (MARAD), is authorized comments. Comments should also state • Web site: http:// to grant waivers of the U.S.-build the commenter’s interest in the waiver www.regulations.gov. Follow the online requirement of the coastwise laws under application, and address the waiver instructions for submitting comments. certain circumstances. A request for criteria given in 388.4 of MARAD’s • such a waiver has been received by regulations at 46 CFR part 388. Fax: 202–493–2251. MARAD. The vessel, and a brief Privacy Act • Mail: Docket Operations Facility, description of the proposed service, is U.S. Department of Transportation, 1200 listed below. Anyone is able to search the New Jersey Avenue SE., W12–140, DATES: Submit comments on or before electronic form of all comments Washington, DC 20590. October 19, 2012. received into any of our dockets by the name of the individual submitting the • Hand Delivery: 1200 New Jersey ADDRESSES: Comments should refer to comment (or signing the comment, if Avenue SE., Room W12–140, docket number MARAD–2012–0094. submitted on behalf of an association, Washington, DC 20590, between 9 a.m. Written comments may be submitted by hand or by mail to the Docket Clerk, business, labor union, etc.). You may and 5 p.m., Monday through Friday, review DOT’s complete Privacy Act except Federal Holidays. U.S. Department of Transportation, Docket Operations, M–30, West Statement in the Federal Register Communications received by Building Ground Floor, Room W12–140, published on April 11, 2000 (Volume November 5, 2012 will be considered by 1200 New Jersey Avenue SE., 65, Number 70; Pages 19477–78). FRA before final action is taken. Washington, DC 20590. You may also By Order of the Maritime Administrator. Comments received after that date will send comments electronically via the Dated: September 13, 2012. be considered as far as practicable. Internet at http://www.regulations.gov. Julie P. Agarwal, Anyone is able to search the All comments will become part of this Secretary, Maritime Administration. electronic form of any written docket and will be available for [FR Doc. 2012–23108 Filed 9–18–12; 8:45 am] communications and comments inspection and copying at the above BILLING CODE 4910–81–P received into any of our dockets by the address between 10 a.m. and 5 p.m., name of the individual submitting the E.T., Monday through Friday, except comment (or signing the comment, if federal holidays. An electronic version DEPARTMENT OF TRANSPORTATION submitted on behalf of an association, of this document and all documents business, labor union, etc.). You may entered into this docket is available on Maritime Administration review DOT’s complete Privacy Act the World Wide Web at http:// Statement in the Federal Register www.regulations.gov. [Docket No. MARAD–2012 0093] published on April 11, 2000 (Volume FOR FURTHER INFORMATION CONTACT: 65, Number 70; Pages 19477–78,) or Linda Williams, U.S. Department of Requested Administrative Waiver of online at http://www.dot.gov/ Transportation, Maritime the Coastwise Trade Laws: Vessel RIVA; Invitation for Public Comments privacy.html. Administration, 1200 New Jersey Avenue SE., Room W23–453, Issued in Washington, DC, on September AGENCY: Maritime Administration, Washington, DC 20590. Telephone 202– 12, 2012. Department of Transportation. 366–0903, Email Ron Hynes, [email protected]. ACTION: Notice. Director, Office of Safety Assurance and Compliance. SUPPLEMENTARY INFORMATION: As SUMMARY: As authorized by 46 U.S.C. described by the applicant the intended 12121, the Secretary of Transportation, [FR Doc. 2012–23122 Filed 9–18–12; 8:45 am] service of the vessel DEFIANCE is: as represented by the Maritime BILLING CODE 4910–06–P Intended Commercial Use of Vessel: Administration (MARAD), is authorized ‘‘Charter on the US East Coast & to grant waivers of the U.S.-build Bahamas.’’ requirement of the coastwise laws under Geographic Region: ‘‘Florida, South certain circumstances. A request for Carolina, Maryland, New York, New such a waiver has been received by Jersey, Connecticut, Rhode Island, MARAD. The vessel, and a brief Massachusetts, New Hampshire, description of the proposed service, is Maine.’’ listed below.

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DATES: Submit comments on or before review DOT’s complete Privacy Act SUPPLEMENTARY INFORMATION: As October 19, 2012. Statement in the Federal Register described by the applicant the intended ADDRESSES: Comments should refer to published on April 11, 2000 (Volume service of the vessel ISLAND WATERS docket number MARAD–2012–0093. 65, Number 70; Pages 19477–78). is: Written comments may be submitted by By Order of the Maritime Administrator. Intended Commercial Use of Vessel: hand or by mail to the Docket Clerk, Dated: September 13, 2012. ‘‘Charter to individuals in coastal waters.’’ U.S. Department of Transportation, Julie P. Agarwal, Docket Operations, M–30, West Geographic Region: California, Secretary, Maritime Administration. Building Ground Floor, Room W12–140, Oregon, and Washington. The complete 1200 New Jersey Avenue SE., [FR Doc. 2012–23109 Filed 9–18–12; 8:45 am] application is given in DOT docket Washington, DC 20590. You may also BILLING CODE 4910–81–P MARAD–2012–0095 at http:// send comments electronically via the www.regulations.gov. Interested parties may comment on the effect this action Internet at http://www.regulations.gov. DEPARTMENT OF TRANSPORTATION All comments will become part of this may have on U.S. vessel builders or docket and will be available for Maritime Administration businesses in the U.S. that use U.S.-flag inspection and copying at the above vessels. If MARAD determines, in address between 10 a.m. and 5 p.m., e.t., [Docket No. MARAD 2012 0095] accordance with 46 U.S.C. 12121 and Monday through Friday, except federal MARAD’s regulations at 46 CFR Part Requested Administrative Waiver of 388, that the issuance of the waiver will holidays. An electronic version of this the Coastwise Trade Laws: Vessel document and all documents entered have an unduly adverse effect on a U.S.- ISLAND WATERS; Invitation for Public vessel builder or a business that uses into this docket is available on the Comments World Wide Web at http:// U.S.-flag vessels in that business, a www.regulations.gov. AGENCY: Maritime Administration, waiver will not be granted. Comments should refer to the docket number of FOR FURTHER INFORMATION CONTACT: Department of Transportation. this notice and the vessel name in order Linda Williams, U.S. Department of ACTION: Notice. for MARAD to properly consider the Transportation, Maritime SUMMARY: As authorized by 46 U.S.C. comments. Comments should also state Administration, 1200 New Jersey 12121, the Secretary of Transportation, the commenter’s interest in the waiver Avenue SE., Room W23–453, as represented by the Maritime application, and address the waiver Washington, DC 20590. Telephone 202– Administration (MARAD), is authorized criteria given in 388.4 of MARAD’s 366–0903, Email to grant waivers of the U.S.-build regulations at 46 CFR Part 388. [email protected]. requirement of the coastwise laws under SUPPLEMENTARY INFORMATION: As certain circumstances. A request for Privacy Act described by the applicant the intended such a waiver has been received by Anyone is able to search the service of the vessel RIVA is: MARAD. The vessel, and a brief electronic form of all comments Intended Commercial Use of Vessel: description of the proposed service, is received into any of our dockets by the ‘‘Daysailing.’’ listed below. name of the individual submitting the Geographic Region: Hawaii. DATES: Submit comments on or before comment (or signing the comment, if The complete application is given in October 19, 2012. submitted on behalf of an association, DOT docket MARAD–2012–0093 at ADDRESSES: Comments should refer to business, labor union, etc.). You may http://www.regulations.gov. Interested docket number MARAD–2012–0095. review DOT’s complete Privacy Act parties may comment on the effect this Written comments may be submitted by Statement in the Federal Register action may have on U.S. vessel builders hand or by mail to the Docket Clerk, published on April 11, 2000 (Volume or businesses in the U.S. that use U.S.- U.S. Department of Transportation, 65, Number 70; Pages 19477–78). flag vessels. If MARAD determines, in Docket Operations, M–30, West accordance with 46 U.S.C. 12121 and By Order of the Maritime Administrator. Building Ground Floor, Room W12–140, MARAD’s regulations at 46 CFR part Dated: September 13, 2012. 1200 New Jersey Avenue SE., 388, that the issuance of the waiver will Julie P. Agarwal, Washington, DC 20590. You may also have an unduly adverse effect on a U.S.- Secretary, Maritime Administration. send comments electronically via the vessel builder or a business that uses [FR Doc. 2012–23111 Filed 9–18–12; 8:45 am] Internet at http://www.regulations.gov. U.S.-flag vessels in that business, a BILLING CODE 4910–81–P All comments will become part of this waiver will not be granted. Comments docket and will be available for should refer to the docket number of inspection and copying at the above this notice and the vessel name in order DEPARTMENT OF TRANSPORTATION address between 10 a.m. and 5 p.m., e.t., for MARAD to properly consider the Monday through Friday, except federal comments. Comments should also state Pipeline and Hazardous Materials holidays. An electronic version of this the commenter’s interest in the waiver Safety Administration document and all documents entered application, and address the waiver into this docket is available on the Actions on Special Permit Applications criteria given in 388.4 of MARAD’s World Wide Web at http:// regulations at 46 CFR Part 388. AGENCY: Pipeline and Hazardous www.regulations.gov. Materials Safety Administration Privacy Act FOR FURTHER INFORMATION CONTACT: (PHMSA), DOT. Anyone is able to search the Linda Williams, U.S. Department of ACTION: Notice of actions on Special electronic form of all comments Transportation, Maritime Permit Applications. received into any of our dockets by the Administration, 1200 New Jersey name of the individual submitting the Avenue SE., Room W23–453, SUMMARY: In accordance with the comment (or signing the comment, if Washington, DC 20590. Telephone 202– procedures governing the application submitted on behalf of an association, 366–0903, Email for, and the processing of, special business, labor union, etc.). You may [email protected]. permits from the Department of

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Transportation’s Hazardous Material as follows: 1—Motor vehicle, 2—Rail time certain special permits were Regulations (49 CFR Part 107, Subpart freight, 3—Cargo vessel, 4—Cargo issued. B), notice is hereby given of the actions aircraft only, 5—Passenger-carrying Issued in Washington, DC, on September on special permits applications in aircraft. Application numbers prefixed 10, 2012. (August to August 2012). The mode of by the letters EE represent applications transportation involved are identified by for Emergency Special Permits. It Donald Burger, a number in the ‘‘Nature of should be noted that some of the Chief, Special Permits and Approvals Branch. Application’’ portion of the table below sections cited were those in effect at the

S.P. No. Applicant Regulation(s) Nature of special permit thereof

Modification Special Permit Granted

14298–M ...... Air Products and Chemicals, 49 CFR 180.209(a) and (b) .... To modify the special permit to authorize an additional Divi- Inc., Allentown, PA. sion 2.1 hazardous material, to increase maximum accept- ance flaw size used on UE requalification and other mis- cellaneous revisions. 12516–M ...... Poly-Coat Systems, Inc., Liver- 49 CFR 107.503(b)(c); To modify the special permit that authorizes the manufacture, pool, TX. 172.102(c)(3) B15 and 823; mark, sale and use of non-DOT specification cargo tanks 173.241; 173.242; 178.345– constructed of fiberglass reinforced plastic by increasing 1; –2; –3; –4; –7; –14; –15; the volumetric capacity. 178.347–1; –2; 178.348–1; 178.348–2; 180.405; 180.413(d).

New Special Permit Granted

15610–N ...... WavesinSolids LLC, State Col- 49 CFR 180.209, 180.209(a), To authorize the transportation in commerce of certain gases lege, PA. 180.205(c)(f)(g) (i), in DOT 3A, 3AA, 3AX, 3AAX and 3T cylinders. The cyl- 173.302a (b)(2)(3)(4)(5), inders (tubes) are retested by acoustic emission and ultra- 180.213, 180.519(a), sonic examination (AE/UE) described in paragraph 7 below 180.519(b)(c). in place of the internal visual inspection and the hydrostatic retest required in § 180.205. (modes 1, 2, 3) 15568–N ...... ATK Launch Systems Corinne, 49 CFR 172.101(b) ...... To authorize the transportation in commerce soils containing UT. solid explosive compounds (not greater than 3%) in bulk. (mode 1) 15577–N ...... Olin Corporation Oxford, MS .. 49 CFR 172.101 column 8, To authorize the tansportation in commerce of certain Divi- 173.62(b), 173.60(b)(8), sion 1.4 in non-DOT specification packagings without labels 172.300(d). and markings to a distance not to exceed 200 yards by motor vehicle, subject to the limitations and special require- ments specified herein. (modes 1, 2) 15623–N ...... Ledwell & Son Enterprises, 49 CFR 173.202, 173.203, To authorize the manufacture, marking, sale and use of mul- Inc., Texarkana, TX. 173.241, 173.242. tiple non-DOT specification containers, manifolded together within a frame and securely mounted on a truck chassis, for the transportation in commerce of the materials author- ized by this special permit. (mode 1) 15654–N ...... T. SCOTT DUNN CON- 49 CFR 172.101 Column (9B), To authorize the transportation in commerce of certain haz- STRUCTION, INC. DBA, 172.204(c)(3), 173.27(b)(2), ardous materials by cargo only aircraft and 14 CFR Part Heli-Dunn, Phoenix, OR. 172.200, 172.300, Part 173, 133 Rotorcraft External Load Operations transporting haz- 175.30(a) (1) and 175.75. ardous materials attached to or suspended from an aircraft, in remote areas of the US only, without being subject to hazard communication requirements, quantity limitations and certain loading and stowage requirements. (mode 4) 15636–N ...... Ward Air, Inc., Juneau, AK ..... 49 CFR 172.101 Column (9B) To authorize the transportation in commerce of certain Class 1 explosive materials which are forbidden for transportation by air, to be transported by cargo aircraft within the State of Alaska when other means of transportation are impracti- cable or not available. (mode 4) 15631–N ...... Atlas Air, Inc. Miami, FL ...... 49 CFR 172.101 Column (9B), To authorize the transportation in commerce of Division 1.1 172.204(c)(3), explosives, which are forbidden, by cargo-only aircraft. 173.27(b)(2)(3). (mode 4)

Emergency Special Permit Granted

15647–N ...... Thunderbird Cylinder, Inc., 49 CFR 179.7 and 180.505 .... To authorize retesting of certain DOT Specification and non- Phoenix, AZ. DOT Specification multi unit tank car tanks. (modes 1, 2). 15637–N ...... Textron Inc., Wilmington, MA .. 49 CFR 172.101 Column (9B), To authorize the transportation in commerce of Division 1.1 172.204(c)(3), explosives, which are forbidden, by cargo-only aircraft. 173.27(b)(2)(3). (mode 4) 15664–N ...... Pollux Aviation Ltd., Wasilla, 49 CFR 172.101 Column (9B); To authorize the transportation in commerce of liquefied pe- AK. 175.30(a)(1). troleum gas in amounts that exceed the quantity limitations for transportation by 14 CFR Part 133 Rotorcraft External Load Operations transporting hazardous materials attached to or suspended from an aircraft only in the State of Alas- ka. (mode 4)

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S.P. No. Applicant Regulation(s) Nature of special permit thereof

15677–N ...... Arkema, Inc., King of Prussia, 49 CFR 173.304(b) ...... To authorize the transportation in PA commerce of DOT PA. Specification 39 thirty pound cylinders by highway, which have the potential to react during transportation. (mode 1) 15689–N ...... AVL Test Systems Inc., Plym- 49 CFR 172.200, 177.834 ...... To authorize the discharge of a Division 2.1 material from an outh, MI. authorized DOT specification cylinder without removing the cylinder from the vehicle on which it is transported. (mode 1) 15685–N ...... National Air Cargo Group, Inc. 49 CFR 172.101 Column (9B); To authorize the transportation in commerce by cargo only dba, National Airlines, Ypsi- 172.204(c)(3); aircraft of Class 1 explosives which are forbidden or ex- lanti, MI. 173.27(b)(2)(3); 175.30. ceed quantities presently authorized. (mode 4) 15696–N ...... Lantis Fireworks and Lasers, 49 CFR 172.300, 172.400 and To authorize the one-time, one-way transportation in com- Draper, UT. 173.56. merce of 2142 kg of unapproved fireworks from Carson, CA to the Lantis Fireworks & Lasers facility in Fairfield, UT for destruction by motor vehicle. (mode 1)

Emergency Special Permit Withdrawn

15670–N ...... Volga-Dnepr Airlines, 49 CFR 172.101 Column (9B), To authorize the one-time transportation in commerce of cer- Ulyanovsk. 172.204(c)(3), 173.27, and tain Division 1.2 explosives that are forbidden for transpor- 175.30(a)(1). tation by cargo only aircraft. (mode 4) 15682–N ...... Kalitta Air, LLC, Ypsilanti, MI .. 49 CFR 172.101 Column (9B); To authorize the one-time transportation in commerce of cer- 172.204(c)(3); tain explosives that are forbidden for transportation by 173.27(b)(2)(3); 175.30(a)(1). cargo only aircraft.

Denied

15080–N ...... Request by Alaska Airlines Seattle, WA August 27, 2012. To authorize the transportation in commerce of cylinders containing oxidizing gases without rigid outer packagings without outer packaging capable of passing the Flame Penetration and Re- sistance Test and the Thermal Resistance Test when no other practical means of transportation exist.

Denied

10964–M ...... Request by Kidde Aerospace & Defense Wilson, NC August 1, 2012. To modify the permit to authorize a rework procedure to allow fire extinguishers which were ‘‘steel stamped’’ to be returned to within original specifications.

[FR Doc. 2012–22783 Filed 9–18–12; 8:45 am] Transportation’s Hazardous Material triplicate. If confirmation of receipt of BILLING CODE 4909–60–M Regulations (49 CFR Part 107, Subpart comments is desired, include a self- B), notice is hereby given that the Office addressed stamped postcard showing of Hazardous Materials Safety has the special permit number. DEPARTMENT OF TRANSPORTATION received the application described herein. Each mode of transportation for FOR FURTHER INFORMATION CONTACT: Pipeline and Hazardous Materials which a particular special permit is Copies of the applications are available Safety Administration requested is indicated by a number in for inspection in the Records Center, the ‘‘Nature of Application’’ portion of East Building, PHH–30, 1200 New Notice of Application for Special the table below as follows: 1—Motor Jersey Avenue Southeast, Washington, Permits vehicle, 2—Rail freight, 3—Cargo vessel, DC or at http://regulations.gov. AGENCY: Pipeline and Hazardous 4—Cargo aircraft only, 5—Passenger- This notice of receipt of applications Materials Safety Administration carrying aircraft. for special permit is published in (PHMSA), DOT. DATES: Comments must be received on accordance with Part 107 of the Federal ACTION: List of Applications for Special or before October 19, 2012. hazardous materials transportation law Permits. ADDRESS COMMENTS TO: Record Center, (49 U.S.C. 5117(b); 49 CFR 1.53(b)). Pipeline and Hazardous Materials Safety SUMMARY: In accordance with the Administration, U.S. Department of Issued in Washington, DC, on September procedures governing the application Transportation, Washington, DC 20590. 06, 2012. for, and the processing of, special Comments should refer to the Donald Burger, permits from the Department of application number and be submitted in Chief, General Approvals and Permits.

NEW SPECIAL PERMITS

Docket Application number number Applicant Regulation(s) affected Nature of special permit thereof

15681–N ...... Micronesian Aviation Cor- 49 CFR 172.101 Column To authorize the transportation in com- poration dba Americopters, (9B); 172.204(c)(3); merce of certain hazardous materials by Saipan, MP. 173.27(b)(2); 175.30(a)(1); Part 133 Rotorcraft External Load Oper- 172.200; 172.301(c); ations, attached to or suspended from 175.75. an aircraft, in remote areas of the U.S. without meeting certain hazard commu- nication and stowage requirements. (mode 4)

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NEW SPECIAL PERMITS—Continued

Docket Application number number Applicant Regulation(s) affected Nature of special permit thereof

15690–N ...... Duke Energy Corp. Charlotte, 49 CFR 171.8; 172.300; To authorize the transportation in com- NC. 172.400; 172.500; 173.6; merce of test kits containing minor 177.817; Part 178. amounts of alkali metal dispersed in mineral oil. (mode 1) 15693–N ...... Croman Corporation, White 49 CFR 172.101 Column To authorize the transportation in com- City, OR. (9B); 172.204(c)(3); merce of certain hazardous materials by 173.27(b)(2); 175.30(a)(1); Part 133 Rotorcraft External Load Oper- 172.200; 172.301(c); ations, attached to or suspended from 175.75. an aircraft, without meeting certain haz- ard communication and stowage re- quirements. (mode 4) 15698–N ...... Timberline Helicopters, Inc., 49 CFR 172.101 Column To authorize the transportation in com- Sandpoint, ID. (9B); 172.204(c)(3); merce of certain hazardous materials by 173.27(b)(2); 175.30(a)(1); Part 133 Rotorcraft External Load Oper- 172.200; 172.301(c); ations, attached to or suspended from 175.75. an aircraft, in remote areas of the U.S. without meeting certain hazard commu- nication and stowage requirements. (mode 4) 15699–N ...... Flight Express Incorporated, 49 CFR 172.203(a); To authorize the transportation in com- Orlando, FL. 175.700(b)(2)(ii); 75.702(b). merce of radioactive material on cargo only aircraft when the combined trans- port index exceeds 50.0 and/or the sep- aration criteria cannot be met. (modes 4, 5) 15706–N ...... Viking Packing Specialist, 49 CFR 106, 107, 171–180; To authorize the manufacture, mark and Collinsville, OK. 173.13(a); 173.13(b); sale of specially designed combination 173.13(c)(1)(ii); type packaging for transporting certain 173.13(c)(1)(iv); hazardous materials in limited quantities 173.13(c)(2)(iii). without required labelling and placarding. (modes 1, 2, 4, 5) 15707–N ...... Air Products and Chemicals, 49 CFR 173.240; 173.242; To authorize the transportation in com- Inc., Allentown, PA. 176.83. merce of a gas purification apparatus containing bulk quantities of certain Di- vision 4.2 (spontaneously combustible) solids in non-DOT specification stain- less steel pressure vessels. (modes 1, 2, 3) 15709–N ...... Praxair Distribution, Inc., 49 CFR 173.23(a)(4); To authorize the transportation in com- Danbury, CT. 173.23(a)(5). merce of foreign manufactured cylinders that are not equipped with pressure re- lief devices. (mode 3)

[FR Doc. 2012–22782 Filed 9–18–12; 8:45 am] received the applications described Department of Transportation, BILLING CODE 4910–60–M herein. This notice is abbreviated to Washington, DC 20590. expedite docketing and public notice. Comments should refer to the Because the sections affected, modes of application number and be submitted in DEPARTMENT OF TRANSPORTATION transportation, and the nature of triplicate. If confirmation of receipt of application have been shown in earlier comments is desired, include a self- Pipeline and Hazardous Materials Federal Register publications, they are addressed stamped postcard showing Safety Administration not repeated here. Requests for the special permit number. Notice of Applications for Modification modification of special permits (e.g. to FOR FURTHER INFORMATION CONTACT: of Special Permit provide for additional hazardous Copies of the applications are available materials, packaging design changes, for inspection in the Records Center, AGENCY: Pipeline and Hazardous additional mode of transportation, etc.) East Building, PHH–30, 1200 New Materials Safety Administration are described in footnotes to the Jersey Avenue Southeast, Washington, (PHMSA), DOT. application number. Application DC or at http://regulations.gov. ACTION: List of Applications for numbers with the suffix ‘‘M’’ denote a This notice of receipt of applications Modification of Special Permits modification request. These for modification of special permit is applications have been separated from published in accordance with Part 107 SUMMARY: In accordance with the the new application for special permits of the Federal hazardous materials procedures governing the application to facilitate processing. for, and the processing of, special transportation law (49 U.S.C. 5117(b); permits from the Department of DATES: Comments must be received on 49 CFR 1.53(b)). Transportation’s Hazardous Material or before October 4, 2012. Issued in Washington, DC, on September Regulations (49 CFR Part 107, Subpart Address Comments To: Record 10, 2012 B), notice is hereby given that the Office Center, Pipeline and Hazardous Donald Burger, of Hazardous Materials Safety has Materials Safety Administration, U.S. Chief, General Approval and Permits.

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MODIFICATION SPECIAL PERMITS

Docket Application number number Applicant Regulation(s) affected Nature of special permit thereof

11470–M ...... Veolia ES Technical Solu- 49 CFR 172.301(a)(2) ...... To modify the special permit to authorize tions, L.L.C., Flanders, NJ. revising the marking requirements. 12396–M ...... National Aeronautics & 49 CFR 173.34(d); To modify the special permit to authorize Space Administration, 173.302(a); 175.3. rail freight, cargo vessel, and passenger Washington, DC. aircraft as additional modes of oper- ation. 13998–M ...... 3AL Testing Corp., Centen- 49 CFR 172.203(a); To modify the special permit to authorize nial, CO. 172.302a(b)(2), (4)(5); the ultrasonic examination of ISO 9809– 180.205(f)(g); 180.209(a), 2 cylinders, and the removal of Gulf (b)(1)(iv). Coast Hydrostatic Tests as an agent. 14227–M ...... Aluminum Tank Industries, 49 CFR 177.834(h), 178.700 To modify the special permit to authorize Inc., Winter Haven, FL. pumps and hoses attached to discharge outlets during transportation if certain requirements are met. 14562–M ...... The Lite Cylinder Company, 49 CFR 173.304a(a)(1) ...... To modify the special permit to authorize Franklin, TN. the maximum service pressure be raised to 400 psi, for nonflammable re- frigerant gases only, for their smallest unit. 14656–M ...... PurePak Technology Cor- 49 CFR 173.158(f)(3) ...... To modify the special permit to authorize poration, Chandler, AZ. a 2.6 liter capacity square plastic bottle and to allow use of a 500 ml round plastic bottle. 14808–M ...... Amtro Alfa Metalomecanica 49 CFR 178.51(b), (f)(1) and To modify the special permit to authorize SA, Portugal. (2) and (g). an additional 2.1 material. 15468–M ...... Prism Helicopters Inc., 49 CFR 172.101 Column To modify the special permit to authorize Wasilla, AK. (9B). the transportation beyond the state of Alaska.

[FR Doc. 2012–22781 Filed 9–18–12; 8:45 am] of special permit applications that have 2. Extensive public comment under BILLING CODE 4909–60–M been in process for 180 days or more. review The reason(s) for delay and the expected 3. Application is technically complex completion date for action on each and is of significant impact or DEPARTMENT OF TRANSPORTATION application is provided in association precedent-setting and requires with each identified application. extensive analysis Pipeline and Hazardous Materials 4. Staff review delayed by other priority Safety Administration FOR FURTHER INFORMATION CONTACT: issues or volume of special permit Ryan Paquet, Director, Office of applications Notice of Delays in Processing of Hazardous Materials Special Permits Special Permits Applications and Approvals, Pipeline and Hazardous Meaning of Application Number Suffixes AGENCY: Pipeline and Hazardous Materials Safety Administration, U.S. Materials Safety Administration Department of Transportation, East N—New application (PHMSA), DOT. Building, PHH–30, 1200 New Jersey M—Modification request Avenue Southeast, Washington, DC R—Renewal Request ACTION: List of Applications Delayed 20590–0001, (202) 366–4535 P—Party To Exemption Request more than 180 days. Key to ‘‘Reason for Delay’’ Issued in Washington, DC, on September SUMMARY: In accordance with the 10, 2012. requirements of 49 U.S.C. 5117(c), 1. Awaiting additional information from Donald Burger, PHMSA is publishing the following list applicant Chief, General Approval and Permits.

Estimated date of Application No. Applicant Reason for delay completion

Modification to Special Permits

14372–M ...... Kidde Aerospace and Defense, Wilson, NC ...... 3 10–31–2012

New Special Permit Applications

15334–N ...... Floating Pipeline Company Incorporated, Halifax, Nova Scotia ...... 3 09–30–2012

15558–N ...... 3M Company St. Paul, MN ...... 4 10–31–2012 15569–N ...... Vexxel Composites, LLC, Brigham City, UT ...... 4 09–30–2012 15669–N ...... U.S. Department of Defense, Scott Air Force Base, IL ...... 4 09–30–2012 15552–N ...... POLY–COAT SYSTEMS, INC. Liverpool, TX ...... 4 10–31–2012

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Estimated date of Application No. Applicant Reason for delay completion

Party to Special Permits Application

14372–P ...... L’Hotellier France ...... 3 10–31–2012 13548–P ...... Interstate Battery System of The Redwoods Eureka, CA ...... 4 10–31–2012

[FR Doc. 2012–22780 Filed 9–18–12; 8:45 am] Abandonment Portion Goshen Branch BNSF has filed a combined BILLING CODE 4910–60–M Between Firth & Ammon, in Bingham & environmental and historic report that Bonneville Counties, Idaho, 360 I.C.C. addresses the effects, if any, of the 91 (1979). To address whether this abandonment on the environment and DEPARTMENT OF TRANSPORTATION condition adequately protects affected historic resources. OEA will issue an employees, a petition for partial environmental assessment (EA) on Surface Transportation Board revocation under 49 U.S.C. 10502(d) September 24, 2012. Interested persons [Docket No. AB 6 (Sub-No. 485X)] must be filed. may obtain a copy of the EA by writing Provided no formal expression of to OEA (Room 1100, Surface BNSF Railway Company— intent to file an offer of financial Transportation Board, Washington, DC Abandonment Exemption—in McKinley assistance (OFA) has been received, 20423–0001) or by calling OEA at (202) County, N.M. these exemptions will be effective on 245–0305. Assistance for the hearing October 19, 2012, unless stayed pending impaired is available through the BNSF Railway Company (BNSF) has reconsideration. Petitions to stay that do filed a verified notice of exemption Federal Information Relay Service not involve environmental issues,1 (FIRS) at 1 (800) 877–3339. Comments under 49 CFR part 1152 subpart F— formal expressions of intent to file an Exempt Abandonments to abandon 5.11 on environmental and historic OFA under 49 CFR 1152.27(c)(2),2 and preservation matters must be filed miles of rail line located between trail use/rail banking requests under 49 milepost 14.50 and milepost 19.61, within 15 days after the EA becomes CFR 1152.29 must be filed by October available to the public. north of Defiance, in McKinley County, 1, 2012. Petitions to reopen or requests N.M. (the Line). The Line traverses for public use conditions under 49 CFR Environmental, historic preservation, United States Postal Service Zip Code 1152.28 must be filed by October 9, public use, or trail use/rail banking 87319. 2012, with the Surface Transportation conditions will be imposed, where BNSF has certified that: (1) No local Board, 395 E Street SW., Washington, appropriate, in a subsequent decision. traffic has moved over the line for at DC 20423–0001. Pursuant to the provisions of 49 CFR least two years; (2) no overhead traffic A copy of any petition filed with the 1152.29(e)(2), BNSF shall file a notice of has moved over the line for at least two Board should be sent to applicant’s consummation with the Board to signify years; (3) no formal complaint filed by representative: Karl Morell, Ball Janik that it has exercised the authority a user of rail service on the line (or by LLP, Suite 225, 655 Fifteenth St. NW., granted and fully abandoned the line. If a state or local government entity acting Washington, DC 20005. consummation has not been effected by on behalf of such user) regarding If the verified notice contains false or filing of a notice of consummation by cessation of service over the line either misleading information, the exemption September 19, 2013, and there are no is pending with the Surface is void ab initio. legal or regulatory barriers to Transportation Board (Board) or with consummation, the authority to any U.S. District Court or has been 1 The Board will grant a stay if an informed abandon will automatically expire. decided in favor of a complainant decision on environmental issues (whether raised within the 2-year period; and (4) the by a party or by the Board’s Office of Environmental Board decisions and notices are Analysis (OEA) in its independent investigation) available on our Web site at requirements at 49 CFR 1105.7(c) cannot be made before the exemption’s effective (environmental report), 49 CFR 1105.11 date. See Exemption of Out-of-Serv. Rail Lines, 5 www.stb.dot.gov. (transmittal letter), 49 CFR 1105.12 I.C.C. 2d 377 (1989). Any request for a stay should Decided: September 14, 2012. be filed as soon as possible so that the Board may (newspaper publication), and 49 CFR take appropriate action before the exemption’s By the Board, Rachel D. Campbell, 1152.50(d)(1) (notice to governmental effective date. Director, Office of Proceedings. agencies) have been met. 2 Each OFA must be accompanied by the filing Derrick A. Gardner, As a condition to this exemption, any fee, which is currently set at $1,600. See employee adversely affected by the Regulations Governing Fees for Servs. Performed in Clearance Clerk. Connection with Licensing and Related Servs.— [FR Doc. 2012–23104 Filed 9–18–12; 8:45 am] abandonment shall be protected under 2012 Update, EP 542 (Sub-No. 20) (STB served July Oregon Short Line Railroad— 27, 2012). BILLING CODE 4915–01–P

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Part II

Environmental Protection Agency

40 CFR Part 63 National Emission Standards for Hazardous Air Pollutant Emissions: Hard and Decorative Chromium Electroplating and Chromium Anodizing Tanks; and Steel Pickling—HCl Process Facilities and Hydrochloric Acid Regeneration Plants; Final Rules

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ENVIRONMENTAL PROTECTION sulfonic acid (PFOS) based fume copyrighted material, is not placed on AGENCY suppressants. These requirements will the Internet, and will be publicly provide greater protection for public available only in hard copy form. 40 CFR Part 63 health and the environment by reducing Publicly available docket materials are [EPA–HQ–OAR–2010–0600; FRL–9709–9] emissions of hexavalent chromium (a available either electronically through known human carcinogen). In addition, http://www.regulations.gov, or in hard RIN 2060–AQ60 as part of the October 2010 proposal, we copy at the EPA Docket Center, EPA proposed certain actions pursuant to West Building, Room Number 3334, National Emission Standards for CAA section 112(d)(2) and (3) for hard 1301 Constitution Ave. NW., Hazardous Air Pollutant Emissions: and decorative chromium electroplating Washington, DC. The Public Reading Hard and Decorative Chromium and chromium anodizing tanks. For Room hours of operation are 8:30 a.m. Electroplating and Chromium these sources, we are modifying and to 4:30 p.m. Eastern Standard Time Anodizing Tanks; and Steel Pickling— adding testing and monitoring, (EST), Monday through Friday. The HCl Process Facilities and recordkeeping, and reporting telephone number for the Public Hydrochloric Acid Regeneration Plants requirements; and revisions to the Reading Room is (202) 566–1744, and AGENCY: Environmental Protection regulatory provisions related to the telephone number for the Air and Agency (EPA). emissions during periods of Radiation Docket and Information malfunction. For steel pickling ACTION: Final rule. Center is (202) 566–1742. hydrochloric acid regeneration plants, FOR FURTHER INFORMATION CONTACT: For SUMMARY: This action finalizes the we are finalizing our proposal to remove questions about this final rule, contact residual risk and technology review the alternative compliance method Mr. Phil Mulrine, Sector Policies and conducted for the following source because we believe it is inconsistent Programs Division (D243–02), Office of categories regulated under two national with the requirements of CAA section Air Quality Planning and Standards, emission standards for hazardous air 112(d)(2) and (3). This amendment will U.S. Environmental Protection Agency, pollutants (NESHAP): hard and achieve reductions in chlorine Research Triangle Park, NC 27711, decorative chromium electroplating and emissions. Additionally, we are adding telephone (919) 541–5289; fax number: chromium anodizing tanks, and steel provisions to the Steel Pickling (919) 541–3207; and email address: pickling—HCl process facilities and Facilities NESHAP requiring that the [email protected]. For specific hydrochloric acid regeneration plants. emission limits of the rule apply at all information regarding the risk modeling On October 21, 2010, EPA proposed times, including during periods of methodology, contact Mr. Mark Morris, amendments to these NESHAP under startup, shutdown and malfunction. Health and Environmental Impacts section 112(d)(6) and (f)(2) of the Clean DATES: This final action is effective on Division (C539–02), Office of Air Air Act. On February 8, 2012, EPA September 19, 2012. Quality Planning and Standards, U.S. published a supplemental proposal with ADDRESSES: The EPA has established a Environmental Protection Agency, new analyses and results. For hard and docket for this action under Docket ID Research Triangle Park, NC 27711; decorative chromium electroplating and No. EPA–HQ–OAR–2010–0600. All telephone number: (919) 541–5416; fax chromium anodizing tanks these final documents in the docket are listed on number: (919) 541–0840; and email amendments addressing Clean Air Act the http://www.regulations.gov Web address: [email protected]. (CAA) sections 112(d)(6) and (f)(2) site. Although listed in the index, some include revisions to the emissions limits information is not publicly available, SUPPLEMENTARY INFORMATION: For for total chromium; addition of e.g., confidential business information information about the applicability of housekeeping requirements to minimize (CBI) or other information whose these NESHAP to a particular entity, fugitive emissions; and a requirement to disclosure is restricted by statute. contact the appropriate person listed in phase-out the use of perfluorooctane Certain other material, such as Table 1 to this preamble.

TABLE 1—LIST OF EPA CONTACTS FOR THE NESHAP ADDRESSED IN THIS ACTION

NESHAP for: OECA Contact a OAQPS Contact b

Hard and Decorative Chromium Electroplating and Chromium Anod- Sara Ayres, (202) 564–5391, Phil Mulrine, (919) 541–5289, izing Tanks; and Steel Pickling—HCl Process Facilities and Hydro- [email protected]. [email protected]. chloric Acid Regeneration Plants. a EPA’s Office of Enforcement and Compliance Assurance. b EPA’s Office of Air Quality Planning and Standards.

Organization of this Document. The B. Summary of the Proposed Amendments and Chromium Anodizing source information in this preamble is to the Chromium Electroplating and category amendments? organized as follows: Chromium Anodizing Source Categories C. What are the final rule amendments for C. Overview of the Steel Pickling Source the Steel Pickling source category? I. General Information Category D. What are the effective and compliance A. Executive Summary D. Summary of the Proposed Amendments dates for the Steel Pickling source B. Does this action apply to me? to the Steel Pickling Source Category category amendments? C. Where can I get a copy of this document IV. Summary of Significant Comments and III. Summary of the Final Rule and other related information? Responses A. What are the final rule amendments for D. Judicial Review A. Comments and Responses Associated II. Background Information the Chromium Electroplating and With the Chromium Electroplating and A. Overview of the Chromium Chromium Anodizing source categories? Chromium Anodizing Source Categories Electroplating and Chromium Anodizing B. What are the effective and compliance B. Comments and Responses Associated Source Categories dates for the Chromium Electroplating With the Steel Pickling Source Category

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V. Summary of Cost, Environmental and developments in practices, processes, electroplating, decorative chromium Economic Impacts and control technologies) no less electroplating, and chromium anodizing A. What are the affected sources? frequently than every 8 years. Section sources. These amendments will reduce B. What are the emission reductions? 112(f)(2) of the CAA requires EPA to chromium emissions (a known human C. What are the cost impacts? D. What are the economic impacts? assess the remaining risks due to carcinogen) and the risk associated with E. What are the benefits? emissions of hazardous air pollutants those emissions. This action also VI. Statutory and Executive Order Reviews (HAP) from these source categories and includes housekeeping requirements to A. Executive Order 12866: Regulatory determine whether the emissions minimize fugitive emissions from Planning and Review and Executive standards provide an ample margin of affected sources. In addition, this action Order 13563: Improving Regulation and safety to protect public health within 8 eliminates the use of fume suppressants Regulatory Review years of promulgation of the original that contain perfluorooctane sulfonic B. Paperwork Reduction Act standards. The two regulations acid (PFOS), which has been shown to C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act addressed in this action are the be persistent, bioaccumulative and E. Executive Order 13132: Federalism following: National Emissions toxic. Finally, this action amends the F. Executive Order 13175: Consultation Standards for Chromium Emissions requirements for testing, monitoring, and Coordination With Indian Tribal from Hard and Decorative Chromium reporting, and recordkeeping for Governments Electroplating and Chromium consistency with the other requirements G. Executive Order 13045: Protection of Anodizing Tanks; and National of the NESHAP. Children From Environmental Health Emissions Standards for Hazardous Air With regard to the National Emissions Risks and Safety Risks Pollutants for Steel Pickling—HCl H. Executive Order 13211: Actions Standards for Hazardous Air Pollutants Concerning Regulations That Process Facilities and Hydrochloric for Steel Pickling—HCl Process Significantly Affect Energy Supply, Acid Regeneration Plants. Facilities and Hydrochloric Acid Distribution, or Use In addition to the reviews described Regeneration Plants, the Agency has I. National Technology Transfer and above, the EPA also reviewed these determined that no amendments are Advancement Act rules to determine if any other needed based on the risk and J. Executive Order 12898: Federal Actions corrections or clarifications were technology reviews under Sections To Address Environmental Justice in needed pursuant to other Sections the 112(d)(6) and 112(f) of the CAA. Minority Populations and Low-Income Populations Clean Air Act. As described below, However, EPA identified two areas K. Congressional Review Act based on all these reviews, the EPA has where amendments were needed to determined it is appropriate and ensure the rules were meeting I. General Information necessary to promulgate some requirements of Sections 112(d)(2) and A. Executive Summary amendments to these rules. 112(d)(3). First, this action eliminates an alternative compliance option that was 2. Summary of the Major Provisions of 1. Purpose of the Regulatory Action inconsistent with the requirements of the Regulatory Actions This action presents the results and CAA section 112(d)(2) and (3). final decisions based on EPA’s review of With regard to the National Emissions Secondly, we are adding provisions to two national regulations for hazardous Standards for Chromium Emissions require the emission limits of the rule to air pollutants. Specifically, pursuant to from Hard and Decorative Chromium apply at all times, including during the Clean Air Act (CAA), EPA has Electroplating and Chromium periods of startup, shutdown and completed risk and technology reviews Anodizing Tanks, based on the reviews malfunction. under Sections 112(d)(6) and 112(f), the (RTRs) for four source categories 3. Costs and Emissions Reductions covered by two separate regulations. EPA has determined it is appropriate to Section 112(d)(6) of the CAA requires promulgate emissions limits and surface Table 2 summarizes the costs and EPA to review these regulations (i.e., tension limits that are moderately lower emissions reductions for this action. See national emissions standards) and revise than the limits in the current regulation section V of this preamble for further them as necessary (taking into account for new and existing hard chromium discussion of the costs and impacts.

TABLE 2—SUMMARY OF THE ESTIMATED COSTS AND EMISSIONS REDUCTIONS FOR THE FINAL CHROMIUM ELECTROPLATING NESHAP AND FINAL STEEL PICKLING NESHAP AMENDMENTS

Emissions Source category Number of Capital costs Annualized costs reductions affected plants $ $/yr lbs/yr

Chromium Electroplating NESHAP

Large hard chromium electroplating ...... 57 $6,377,000 $1,686,000 148 Small hard chromium electroplating ...... 91 1,424,000 476,000 33 Decorative chromium electroplating ...... 313 163,000 166,000 35 Chromium anodizing ...... 74 235,000 51,000 8

Total ...... 535 8,200,000 2,380,000 224

Steel Pickling NESHAP

Hydrochloric acid regeneration facilities ...... 1 100,000–200,000 11,419–22,837 30,000

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B. Does this action apply to me? provides a guide for readers regarding If you have any questions regarding Regulated Entities. Categories and entities likely to be affected by the final the applicability of any aspect of these entities potentially regulated by this action for the source category listed. To NESHAP, please contact the appropriate action are shown in Table 3 of this determine whether your facility would person listed in Table 1 of this preamble preamble. be affected, you should examine the in the preceding FOR FURTHER Table 3 of this preamble is not applicability criteria in the appropriate INFORMATION CONTACT section. intended to be exhaustive, but rather NESHAP.

TABLE 3—NESHAP AND INDUSTRIAL SOURCE CATEGORIES AFFECTED BY THIS FINAL ACTION

NESHAP and Source Category NAICS Code 1 MACT Code 2

Chromium Electroplating NESHAP, Subpart N ...... Chromium Anodizing Tanks ...... 332813 1607 Decorative Chromium Electroplating ...... 332813 1610 Hard Chromium Electroplating ...... 332813 1615

Steel Pickling—HCl Process Facilities And Hydrochloric Acid Regeneration Plants NESHAP, Subpart CCC ..... 3311, 3312 0310 1 North American Industry Classification System. 2 Maximum Achievable Control Technology.

C. Where can I get a copy of this reconsideration, ‘‘[i]f the person raising plate base metals with a relatively thick document and other related an objection can demonstrate to the EPA layer of chromium using an electrolytic information? that it was impracticable to raise such process. Hard chromium electroplating In addition to being available in the objection within [the period for public provides a finish that is resistant to docket, an electronic copy of this final comment] or if the grounds for such wear, abrasion, heat, and corrosion. action will also be available on the objection arose after the period for These facilities plate large cylinders and World Wide Web (WWW) through the public comment (but within the time industrial rolls used in construction Technology Transfer Network (TTN). specified for judicial review) and if such equipment and printing presses, Following signature by the EPA objection is of central relevance to the hydraulic cylinders and rods, zinc die Administrator, a copy of this final outcome of the rule.’’ Any person castings, plastic molds, engine action will be posted on the TTN’s seeking to make such a demonstration to components, and marine hardware. policy and guidance page for newly us should submit a Petition for The NESHAP distinguish between proposed or promulgated rules at the Reconsideration to the Office of the large hard chromium electroplating following address: http://www.epa.gov/ Administrator, U.S. EPA, Room 3000, facilities and small hard chromium ttn/atw/rrisk/rtrpg.html. The TTN Ariel Rios Building, 1200 Pennsylvania electroplating facilities. Large hard provides information and technology Ave. NW., Washington, DC 20460, with chromium electroplating facilities are exchange in various areas of air a copy to both the person(s) listed in the defined as any such facility with a pollution control. preceding FOR FURTHER INFORMATION cumulative annual rectifier capacity Additional information is available on CONTACT section, and the Associate equal to or greater than 60 million the residual risk and technology review General Counsel for the Air and ampere-hours per year (amp-hr/yr). (RTR) Web page at http://www.epa.gov/ Radiation Law Office, Office of General Small hard chromium electroplating ttn/atw/rrisk/rtrpg.html. This Counsel (Mail Code 2344A), U.S. EPA, facilities are defined as any facility with information includes source category 1200 Pennsylvania Ave. NW., a cumulative annual rectifier capacity descriptions and detailed emissions and Washington, DC 20460. less than 60 million amp-hr/yr. The other data that were used as inputs to II. Background Information 1995 NESHAP require all affected tanks the risk assessments. located at large hard chromium A. Overview of the Chromium electroplating facilities to meet an D. Judicial Review Electroplating and Chromium emissions limit of 0.015 milligrams of Under CAA section 307(b)(1), judicial Anodizing Source Categories total chromium per dry standard cubic review of this final action is available The 1995 Chromium Electroplating meter (mg/dscm). Alternatively, large only by filing a petition for review in NESHAP regulate emissions of hard chromium facilities also can the United States Court of Appeals for chromium compounds from three comply with the NESHAP by the District of Columbia Circuit by source categories: Hard chromium maintaining the surface tension in November 19, 2012. Under CAA section electroplating, decorative chromium affected tanks equal to or less than 45 307(b)(2), the requirements established electroplating, and chromium dynes per centimeter (dynes/cm), if by this final rule may not be challenged anodizing. The NESHAP apply to both measured using a stalagmometer, or 35 separately in any civil or criminal major sources and area sources. The dynes/cm, if measured using a proceedings brought by the EPA to NESHAP were promulgated on January tensiometer. Compliance with the enforce the requirements. 25, 1995, (60 FR 4963) and codified at applicable surface tension limit ensures Section 307(d)(7)(B) of the CAA 40 CFR part 63, subpart N. We amended compliance with the emission limit. further provides that ‘‘[o]nly an the NESHAP to address issues related to The Chromium Electroplating objection to a rule or procedure which changes in control technology, NESHAP require affected tanks at was raised with reasonable specificity monitoring and implementation on July existing small hard chromium during the period for public comment 19, 2004 (69 FR 42885). electroplating facilities to meet an (including any public hearing) may be emissions limit of 0.030 mg/dscm and raised during judicial review.’’ This 1. Hard Chromium Electroplating affected tanks at new small hard section also provides a mechanism for The Hard Chromium Electroplating chromium electroplating facilities to us to convene a proceeding for source category consists of facilities that meet a limit of 0.015 mg/dscm.

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Alternatively, these sources have the conditions. We estimate that there MACT requirements for these source option of complying with surface currently are about 170 chromium categories. The basis for this proposal is tension limits equal to or less than 45 anodizing plants in operation in the described in the October 2010 Federal dynes per centimeter (dynes/cm), if U.S. The NESHAP require all existing Register Notice (75 FR 65068). We measured using a stalagmometer, or 35 and new chromium anodizing sources explained that alternatives to PFOS- dynes/cm, if measured using a to meet a total chromium emissions based WAFS had been successfully used tensiometer. Under the current limit of 0.01 mg/dscm, or meet the in the hard and decorative chrome NESHAP, any small hard chromium surface tension limits of 45 dynes/cm, if source categories and stated that while electroplating tank for which measured using a stalagmometer, or 35 alternatives had not been used construction or reconstruction was dynes/cm, if measured using a extensively in chromium anodizing, we commenced on or before December 16, tensiometer. were unaware of any technical reason 1993 (i.e., the proposal date for the that precluded such use. We specifically B. Summary of the Proposed original NESHAP), is subject to the solicited comment on this issue. existing source standards, and any small Amendments to the Chromium We also proposed some additional hard chromium electroplating tank Electroplating and Chromium changes in the 2010 proposal under constructed or reconstructed after Anodizing Source Categories Section 112(d)(2) and (d)(3), including: December 16, 1993, is subject to new 1. The October 2010 Proposal • Revise the startup, shutdown, and source standards. malfunction (SSM) provisions in the We estimate that there currently are In 2010, pursuant to section 112(f)(2) rule; approximately 188 large hard chromium of the CAA, we evaluated the residual • Revise the monitoring and testing electroplating facilities and 394 small risk associated with the NESHAP. At requirements; and hard chromium electroplating facilities that time, we also conducted a • Make technical corrections to the in operation in the U.S. outside of technology review, as required by NESHAP. California. Of the 394 small hard section 112(d)(6). Based on the results of The proposed changes to the SSM chromium electroplating facilities, we our initial residual risk and technology provisions will ensure that the estimate that 131 of these facilities have reviews, we proposed on October 21, standards apply at all times, even one or more tanks that are subject to the 2010 (75 FR 65071), that the risks due during periods of malfunction. new source standards, and the affected to HAP emissions from these source Regarding the monitoring and testing sources at the other 263 facilities are categories were acceptable. The basis for requirements, we proposed to revise the subject to the existing source standards. this decision is explained in the October compliance provisions for multiple Additionally, there are about 70 hard 21, 2010 Federal Register Notice. sources controlled by a common add-on chromium electroplating facilities Furthermore, we proposed that no air pollution control device, clarify that operating in California. additional controls were necessary to testing can be performed by either provide an ample margin of safety Method 306 or Method 306A, revise 2. Decorative Chromium Electroplating (AMOS) to protect public health or to Method 306B to clarify that the method The Decorative Chromium prevent an adverse environmental effect also applies to hard chromium Electroplating source category consists because we concluded that the costs of electroplating tanks and include of facilities that plate base materials the options analyzed were not procedures for checking the accuracy of, such as brass, steel, aluminum, or reasonable considering the emissions and cleaning of, a stalagmometer (See 75 plastic with layers of copper and nickel, and risk reductions potentially achieved FR 65095 for a more detailed discussion followed by a relatively thin layer of with the controls. Thus, we did not of the proposed monitoring revisions). chromium to provide a bright, tarnish- propose to revise the NESHAP under We also proposed to add a provision and wear-resistant surface. Decorative 112(f)(2). However, as explained in that to provide an affirmative defense against chromium electroplating is used for proposal publication, we remained civil penalties for violations of emission items such as automotive trim, metal concerned about the potential cancer standards caused by malfunctions, as furniture, bicycles, hand tools, and risks due to emissions from these source well as criteria for establishing the plumbing fixtures. We estimate that categories and asked for additional affirmative defense, which is the same there currently are approximately 517 information and comments on this affirmative defense provision we have decorative chromium electroplating issue. See 75 FR 65071. proposed or promulgated in several plants in operation in the U.S. The 1995 As a result of our technology review other recent MACT rules. NESHAP require all existing and new in 2010, we proposed the following In our 2010 proposal, we provided decorative chromium electroplating amendments to the NESHAP for all further explanation of the basis for sources to meet a total chromium three source categories: proposing these amendments to the emissions limit of 0.01 mg/dscm or meet • Incorporate housekeeping practices NESHAP pursuant to CAA section the surface tension limits of 45 dynes/ into 40 CFR 63.342(f); and, 112(d)(6). See 75 FR 65093. We cm, if measured using a stalagmometer, • Phase out the use of wetting agent proposed that existing sources could not or 35 dynes/cm, if measured using a fume suppressants (WAFS) that use use PFOS-based WAFS 3 years after tensiometer. perfluorooctane sulfonic acid (PFOS); publication of the final rule in the We proposed the housekeeping Federal Register and that new sources 3. Chromium Anodizing practices because they will help reduce cannot use PFOS-based WAFS as a The Chromium Anodizing source and minimize fugitive emissions of method to meet the NESHAP category consists of facilities that use chromium compounds from chromium requirements. chromic acid to form an oxide layer on electroplating and anodizing facilities aluminum to provide resistance to and we had determined at the time of 2. The February 8, 2012 Supplemental corrosion. The chromium anodizing the proposal that they could be Proposal process is used to coat aircraft parts implemented at relatively low costs. We In response to the 2010 proposal, (such as wings and landing gears) as proposed to revise the rule to no longer several commenters expressed concern well as architectural structures that are allow the addition of PFOS-based that the data set used in the risk subject to high stress and corrosive WAFS to tanks as a method to meet the assessment was not sufficient and not

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representative of the current chromium emissions limit from 0.010 mg/dscm to install and test new emissions control electroplating industry. Additional data 0.007 mg/dscm. For all new sources, we equipment. We further proposed that were submitted during the comment proposed tightening the emissions limit new sources must comply with the period and we also worked with to 0.006 mg/dscm. We explained that emission limits or surface tension limits industry and states to gather additional these emission limits were cost upon start-up. See 77 FR 6649. data. Based on the new data, we effective. As stated in the proposed preamble, performed a new risk and technology In our supplemental proposal, we also the EPA is taking a step to increase the review for all three source categories. proposed to require under CAA section ease and efficiency of data submittal Our February 2012 supplemental 112(d)(6) the same limits that we and data accessibility. Specifically, the proposal (77 FR 6628) presented the proposed would provide an ample EPA is requiring owners and operators results of the new risk assessment. margin of safety because the limits of Chrome Electroplating/Steel Pickling Based on that assessment, we proposed reflect developments in practices, facilities to submit electronic copies of that risks due to HAP emissions from processes or control technologies and required performance test reports. As mentioned in the proposed each of the three chromium are cost-effective. See 77 FR 6638–45. We also proposed under both CAA preamble, data will be collected through electroplating and anodizing source section 112(f)(2) and section 112(d)(6) an electronic emissions test report categories were acceptable since the that sources could instead demonstrate structure called the Electronic Reporting actual and allowable emissions of HAP compliance by maintaining surface Tool (ERT). The ERT will generate an pose cancer risks below 100-in-1 tension limits of 40 dynes/cm, if electronic report which will be million, and because a number of the measured using a stalagmometer, and 33 submitted to the EPA’s Central Data other risk metrics did not indicate high dynes/cm, if measured using a Exchange (CDX) through the risk concerns. For hard chromium tensiometer. These limits are tighter Compliance and Emissions Data electroplating, we estimated that the than those currently in the NESHAP, Reporting Interface (CEDRI). A maximum individual cancer risk (MIR) which are 45 dynes/cm, if measured description of the ERT can be found at: was 20-in-1 million based on actual using a stalagmometer, and 35 dynes/ http://www.epa.gov/ttn/chief/ert/index. emissions and that about 130,000 cm, if measured using a tensiometer. html and CEDRI can be accessed people were exposed to risks greater The proposed surface tension limits through the CDX Web site: (www.epa. than 1-in-1 million, for decorative would ensure that the alternative gov/cdx). chromium electroplating we estimated compliance option is at least as The requirement to submit that the MIR was 10-in-1 million based stringent as the concentration based performance test data electronically to on actual emissions and that about emissions limits described above. 77 FR the EPA does not create any additional 43,000 people were exposed to risks at 6644–45. For more information performance testing and will apply only greater than 1-in-1 million, and for the regarding the relationship between to those performance tests conducted chromic acid anodizing source category surface tension and emissions see the using test methods that are supported by we estimated that the MIR was 5-in-1 Development of Revised Surface the ERT. A listing of the pollutants and million based on actual emissions and Tension Limits for Chromium test methods supported by the ERT is that about 5,000 people were exposed to Electroplating and Anodizing Tanks available at the previously mentioned risks greater than 1-in-1 million. Controlled with Wetting Agent Fume ERT Web site. The EPA believes, Moreover, the potential risks due to Suppressants document, which is through this approach, industry will allowable emissions were estimated to available in the docket. save time in the performance test be up to 50-in-1 million for hard We estimated that these proposed submittal process. Additionally this chromium electroplating, 70-in-1 emissions limits and surface tension rulemaking benefits industry by cutting million for decorative chromium limits would reduce the cancer risks, back on recordkeeping costs as the electroplating, and 60-in-1 million for cancer incidence, and the number of performance test reports that are chromic acid anodizing. After proposing people exposed to risks greater than 1- submitted to the EPA using CEDRI are that the risks posed by each source in-1 million due to emissions of no longer required to be kept on site. category were acceptable, we evaluated hexavalent chromium from this industry As mentioned in the proposed potential control options under Section by 25 to 50 percent. 77 FR at 6648–49. preamble, State, local and tribal 112(f) for each source category to We proposed that existing sources agencies will benefit from more determine whether additional controls would need to meet the limits no later streamlined and accurate review of were necessary to provide an ample than 2 years after the effective date of electronic data that will be available on margin of safety or to prevent an adverse the final rule. Section 112(f)(4) generally the EPA WebFIRE database. environmental effect. We identified provides that a standard promulgated Additionally performance test data will cost-effective controls that would lower pursuant to CAA section 112(f)(2) become available to the public through emissions and reduce risks. Therefore, applies 90 days after the effective date, WebFIRE. Having such data publicly in the February 8, 2012, supplemental but further provides for a compliance available enhances transparency and proposal, we proposed pursuant to CAA period of up to 2 years where the accountability. The major advantages of section 112(f)(2) to tighten the emissions Administrator finds that such time is electronic reporting are more fully limits for affected sources. For existing necessary for the installation of controls explained in the proposed preamble. large hard chromium electroplating and that steps will be taken during that In summary, in addition to supporting tanks, we proposed tightening the period to assure protection to health regulation development, control strategy emissions limit from 0.015 mg/dscm to from imminent endangerment. In the development and other air pollution 0.011 mg/dscm. For existing small hard supplemental proposal, we explained control activities, having an electronic chromium electroplating sources, we that a 2-year compliance period was database populated with performance proposed tightening the emissions limit necessary for facilities to determine if test data will save industry, state, local, from 0.030 mg/dscm to 0.015 mg/dscm. they meet the proposed emissions tribal agencies and the EPA significant For existing decorative chromium limits, schedule a compliance test, time, money and effort while improving electroplating and chromium anodizing perform an engineering analysis to the quality of emission inventories and, sources, we proposed tightening the determine the control options, and as a result, air quality regulations. See

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77 FR 6649–50. We proposed that the acceptable based on our determination established in the original MACT rule. revised reporting requirements would that facilities in this source category The alternative compliance option apply upon promulgation of the final emit no HAPs that are carcinogens and allowed existing HCl regeneration rule. because the acute risks were low. While facilities to request approval for an the chronic non-cancer TOSHI level for alternative source-specific chlorine C. Overview of the Steel Pickling Source one facility exceeded the reference concentration standard from their Category level, we noted that this facility has had permitting authority. We stated that we Steel pickling is a treatment process compliance issues with the standard believe that this alternative compliance in which the heavy oxide crust or mill and that the actual emissions we relied option was not appropriate under CAA scale that develops on the steel surface on for this facility included emissions in sections 112(d)(2) and (3) and that the during hot forming or heat treating is excess of what is allowed under the option had been adopted removed chemically in a bath of MACT standard. We estimate that if inappropriately. Second, we proposed aqueous acid solution. There are two emissions were maintained at levels to require electronic reporting for the specific processes regulated under the equal to or lower than the level allowed Steel Pickling and HCl Acid Steel Pickling NESHAP. Pickling is a by the MACT limit (6 ppm) then the Regeneration source category similar to process applied to metallic substances TOSHI would be no higher than 1. The that described above for the chromium that removes surface impurities, stains, next highest HI from any facility in the electroplating and chromium anodizing or crusts to prepare the metal for source category is 0.1. source categories and for the same subsequent plating (e.g., with We identified one development in reasons. chromium) or other treatment, such as practices, processes or control galvanization or painting. A pickling technologies for this source category, III. Summary of the Final Rule line is defined in the rule as using an but determined that it was not A. What are the final rule amendments acid solution in any tank in which technically feasible for the industry. 75 for the Chromium Electroplating and hydrochloric acid is at a concentration FR at 65124. Thus, we proposed that no Chromium Anodizing source categories? of 6 percent by weight or greater and has amendments were necessary under both a temperature of 100 °F or greater. An the second part of the section 112(f) 1. Risk and Technology Review acid regeneration plant is defined in the review, determining whether the For all three chromium electroplating rule as the equipment and processes standard provides an ample margin of and chromium anodizing source that regenerate fresh hydrochloric acid safety and prevents an adverse categories, we are finalizing the (HCl) pickling solution from spent environmental effect, and for the emission and surface tension limits as pickle liquor using a thermal treatment 112(d)(6) review. 75 FR at 65124. proposed in the supplemental proposal process. The HAP emission points from However, under section 112(d)(2) and under Sections 112(d)(6) and 112(f)(2) of the steel pickling process include steel 112(d)(3), we proposed to eliminate the the Clean Air Act. However, as noted in pickling baths, steel pickling sprays, startup, shutdown and malfunction the following paragraphs, we performed and tank vents. The HAP emission point (SSM) exemption in the Steel Pickling additional analyses based on issues from acid regeneration plants is the NESHAP in light of the court’s decision raised and information submitted spray roaster. in Sierra Club v. EPA (Sierra Club v. during the comment period, which add We estimate that there are EPA, 551 F.3d 1019 (D.C. Cir. 2008) 130 further support for this final action. approximately 100 facilities subject to S. Ct. 1735 (2010)). We proposed several Additional information on emissions the Steel Pickling NESHAP. Many of revisions to the regulations regarding and controls from chromium these facilities are located adjacent to SSM, including: electroplating and chromic acid integrated iron and steel manufacturing • Revising Table 1 to indicate that the anodizing sources was submitted to EPA plants or electric arc furnace requirements in 40 CFR 63.6(e) of the during the comment period, and we also steelmaking facilities (minimills) that General Provisions, regarding the ‘‘duty obtained additional data and produce steel from scrap. Acid to minimize’’ emissions do not apply information from some States and Regeneration facilities may or may not and instead proposed to incorporate it industry shortly after the close of the be located at steel pickling operations. in 40 CFR 63.1159(c). comment period. The information • supported the data and analyses we had D. Summary of the Proposed Removing the SSM Plan requirement requiring affected sources performed to develop the emissions Amendments to the Steel Pickling limits for the supplemental proposal. Source Category to calculate their emissions during startup and shutdown and to maintain For example, we obtained data from two In 2010, pursuant to section 112(f)(2) records of the startup and shutdown additional chromic acid anodizing of the CAA, we evaluated the residual emission calculations. plants that showed they had emissions risk associated with the NESHAP. We • Revising the SSM-associated well below the limits we are also conducted a technology review, as monitoring, recordkeeping and promulgating and that indicates the required by section 112(d)(6) of the reporting requirements to require anodizing plants can easily meet the CAA. Based on our risk analysis, we reporting and recordkeeping for periods limits with readily available common determined that there were no cancer of malfunction. control technologies. We also obtained risks attributable to emissions from the • Adding provisions to provide an additional data from hard chromium steel pickling source category. We also affirmative defense against civil electroplating plants that shows even estimated the maximum chronic non- penalties for violations of emission more plants than we estimated in the cancer TOSHI value to be 2 based on standards caused by malfunctions, as proposal are already meeting the lower emissions of chlorine and the maximum well as criteria for establishing the emissions limits. off-facility-site acute Hazard Quotient affirmative defense. We also performed new analyses of (HQ) value could be up to 0.4, based on In the February 2012 supplemental the costs of the proposed requirements actual emission levels and the reference proposal (77 FR 6628) we proposed two and the emissions reductions that exposure level (REL) value for chlorine. additional actions for the Steel Pickling would be achieved based on the 75 FR at 65122–24. We proposed on source category. First, we proposed to information that became available after October 21, 2010 that the risks were remove a compliance alternative we issued the supplemental proposal.

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The revised costs and emissions notice and in the Responses to MIR due to actual emissions is reductions are similar to those Comments (RTC) document, which is estimated to be 20-in-1 million, and the presented at proposal (77 FR 6628). For available in the docket. cancer incidence is estimated to be 0.05 example, the overall total estimated As set forth in the Benzene NESHAP, cases per year. The MIR due to annualized cost in the supplemental in the ample margin of safety decision allowable emissions is estimated to be proposal was $3,000,000 and cost- process, the agency again considers all 50-in-1 million, and the cancer effectiveness was estimated to be of the health risks and other health incidence based on allowable emissions $14,900 per pound of hexavalent information considered in the first step is estimated to be 0.2 cases per year. chromium emissions reductions and we (acceptability determination). Beyond Based on actual emissions, estimated the proposed changes would that information, additional factors approximately 1,100 people are relating to the appropriate level of reduce emissions by 208 pounds per estimated to have cancer risks at or control are considered, including costs year. We now estimate the overall total above 10-in-1 million, and annualized cost of the final rule is and economic impacts of controls, approximately 130,000 people are $2,400,000, that the cost-effectiveness is technological feasibility, uncertainties estimated to have cancer risks at or approximately $11,000 per pound of and any other relevant factors. hexavalent chromium emissions In the supplemental proposal above 1-in-1 million. We estimate that reductions, and that the final rule will addressing our risk review for the about two-thirds of the population risks achieve 224 pounds per year of chromium electroplating and anodizing are due to large hard chromium sources hexavalent chromium reductions. Our source categories, under the ample and the remainder of the population full analysis can be found in Revised margin of safety analysis, we evaluated risks are due to small hard chromium Procedures for Determining Control and presented various emission control sources. We also estimate that the Costs and Cost Effectiveness for options, and the costs and economic potential is low for chronic and acute Chromium Electroplating and impacts associated with those options. non-cancer health effects, and for Anodizing, which is available in the While we summarized the risk multipathway risks. As discussed in the docket. reductions that would be achieved with preamble to the supplemental proposed With regard to our review under the proposed limits, we did not provide rule, we conclude that the risks from Section 112(f), we continue to conclude information regarding the risk this source category are acceptable. that risks are acceptable for all 3 source reductions that could be achieved by categories since the cancer MIRs for control options that we did not propose Large Hard Chromium Electroplating each of the source categories are below to adopt. In response to the comments Emission Limits we received, we also evaluated the risk 100-in-1 million, and because a number For the large hard chromium sources, of the other risk metrics do not indicate reductions that would be achieved by we evaluated three control options in high risk concerns. However, as each technically feasible option for each the supplemental proposal. The first explained below, we are promulgating of the chromium electroplating and standards under Section 112(f) to anodizing source categories and option, which is the option we proposed provide an ample margin of safety. subcategories (i.e., large hard chromium and are finalizing today, would be to Regarding the standards proposed electroplating, small hard chromium lower the chromium emissions limit for under Section 112(f)(2), several electroplating, decorative electroplating existing sources from 0.015 mg/dscm to commenters claimed that, as part of the and chromic acid anodizing). The 0.011 mg/dscm. The second option was ample margin of safety analysis results are summarized below. to lower the limit to 0.0075 mg/dscm, included in the proposed rule, we did Baseline Risks for Hard Chromium and the third option was to lower the not evaluate the health impacts (e.g., Electroplating. For the Hard Chromium limit to 0.006 mg/dscm. The results of reduced risk of cancer) of the various Electroplating source category our cost and risk analyses for large hard options we considered. The comments (including large and small hard chromium sources are summarized in are summarized in Section IV of this chromium electroplating sources), the Table 4. TABLE 4—SUMMARY OF COSTS AND RISK REDUCTIONS FOR THE VARIOUS OPTIONS CONSIDERED FOR LARGE HARD CHROMIUM ELECTROPLATING

MIR 1 Number of Emission Total emis- (in-a-million) people Number of Cost-effec- Option reductions sions in Incidence with risk > people w/ Annualized tiveness in lbs/yr lbs/yr (cases/yr) 1-in-1 mil- risk > 10- costs (per lb) Actual Allowable lion in-1 million

Baseline: current situation ...... 0 454 20 50 0.03 88,000 740 0 NA Option 1—Final: limit of 0.011 mg/dscm .... 148 306 2 20 40 0.02 59,000 500 $1.7 M $11,000 Option 2: limit of 0.0075 mg/dscm ...... 169 285 10 30 2 0.02 55,000 470 $4.1 M $24,700 Option 3: limit of 0.006 mg/dscm ...... 180 274 8 20 2 0.02 53,000 450 $5.3 M $29,900 1 MIR estimates are derived from estimates of actual and allowable emissions. Population risk estimates are derived from estimates of actual emissions. 2 There are further risk reductions associated with this option compared to the previous option, but they are not large enough to change the risk values as pre- sented to one significant figure.

We also estimated impacts of Option Chromium Electroplating and Chromic since they would impose costs on more 1 to small businesses, and found that Acid Anodizing Source Categories, facilities and almost all facilities within most facilities would have a costs-to- which can be found in the docket for this category are small businesses. As sales ratio of less than 1 percent. this action.) For the other two options shown in Table 4, Option 1 also However, we estimated that 6 plants (Options 2 and 3), we did not quantify achieves meaningful reductions in risks could have costs-to-sales ratios up to 9 the impacts to small businesses, associated with exposure to a known percent. (See Economic Impact Analysis however, they would both pose impacts human carcinogen, including an for Risk and Technology Review: to a larger number of small businesses estimated 30 percent reduction in the

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MIR, cancer incidence, and the numbers analyses, we estimate that the cost proposal. After considering public of people with risks at or above 1-in-1 effectiveness of requiring HEPA filters comments and additional analyses, we million and 10-in-1 million. For the on all large hard chromium plants are finalizing this limit of 0.006 mg/ other two options (Options 2 and 3), the would be at least $27,000 per pound. dscm for new large hard chromium estimated annualized costs and cost- (see Revised Procedures for Determining plants because this is the lowest level effectiveness values were more than Control Costs and Cost Effectiveness for that can be reliably achieved cost- double those of Option 1 and a Chromium Electroplating and effectively, such as allowing plants the significantly greater number of small Anodizing, which is available in the flexibility to use add-on controls or businesses would be impacted, with docket). With regard to health factors, WAFS to comply. This limit will ensure only small additional risk reductions requirements similar to the California that the risks posed by any new sources achieved beyond Option 1. Although standards would likely reduce risks to will be acceptable and the standard will Options 2 and 3 reduce the baseline below 1-in-1 million for all hard provide an ample margin of safety to MIR by 50 percent or more, the baseline chromium plants. However, given the protect public health and prevent an MIR is already considerably below 100- high overall costs and economic adverse environmental effect. in-1 million, and the options reduce impacts, we have determined that it is incidence and population risks only not appropriate to require those controls Small Hard Chromium Electroplating slightly. Considering the cost, economic, in order to provide an ample margin of Emission Limits and risk impacts discussed above, we safety to protect public health or to conclude that Option 1 provides an prevent an adverse environmental For small hard chromium ample margin of safety. effect. Therefore, based on all our electroplating sources, we also Furthermore, in the 2010 proposal (75 analyses and after weighing all the evaluated the costs and risk reductions FR 65068), we considered the option of factors, we are promulgating the that would be achieved for three main requiring controls similar to standards chromium emissions limit of 0.011 mg/ control options. The first option, which adopted in California, which would dscm, as proposed in February 2012 (77 is the option we proposed and are essentially require facilities to install FR 6628) for existing large hard finalizing today, would be to lower the high efficiency particulate air (HEPA) chromium electroplating sources chromium emissions limit for pre-1995 filters on all hard chromium plants. As because we believe that limit will sources from 0.03 mg/dscm to 0.015 mg/ described in the 2010 proposal, the provide an ample margin of safety to dscm. The second option was to lower overall costs for that option were protect public health and prevent an the limit to 0.01 mg/dscm, and the third significantly higher than the other adverse environmental effect. option was to lower the limit to 0.006 options described above, and would With regard to new sources, we mg/dscm. The basis for evaluating these have resulted in much greater economic proposed a limit of 0.006 mg/dscm. The options is explained further in the impacts to small businesses. rationale for choosing 0.006 mg/dscm is supplemental proposal. (77 FR 6628) Furthermore, based on more recent described in detail in the supplemental The results are summarized in Table 5. TABLE 5—SUMMARY OF COSTS AND RISK REDUCTIONS FOR THE VARIOUS OPTIONS CONSIDERED FOR SMALL HARD CHROMIUM ELECTROPLATING

MIR 1 Number of Number of Emission Total (in-a-million) people people Cost-effec- Option reductions emissions Incidence with risk with risk Annualized tiveness in lbs/yr in lbs/yr (cases/yr) > 1-in-1 > 10-in-1 costs (per lb) Actual Allowable million million

Baseline: current situation ...... 0 223 20 50 0.02 43,300 360 0 NA Option 1—Final (0.015 mg/dscm) ...... 33 190 10 30 0.01 36,800 306 $0.5 M $15,000 Option 2: 0.01 mg/dscm ...... 71 152 7 20 2 0.01 29,000 245 $1.5 M $21,000 Option 3: 0.006 mg/dscm ...... 116 107 4 10 0.008 22,500 190 $2.2 M $19,300 1 MIR estimates are derived from estimates of actual and allowable emissions. Population risk estimates are derived from estimates of actual emissions. 2 The incidence estimate under Option 2 is less than the incidence estimate under option 1, but the estimates are reported as the same when rounded to one sig- nificant figure.

We also estimated the impacts of million and 10-in-1 million, for California standards, which would have Option 1 to small businesses, and found $500,000 in annualized costs. Options 2 essentially required all hard chromium that most facilities would have a costs- and 3 achieve similar reductions in electroplating facilities to install HEPA to-sales ratio of less than 1 percent. incidence and population risks, but the filters. As described in the 2010 However, we estimated that 3 plants annualized costs were three and four proposal, the estimated total capital and could have costs-to-sales ratios of about times higher, respectively, than those of annualized costs for that option were three percent. For the other two options Option 1, and substantially more small much higher than the other options (Options 2 and 3), we did not quantify businesses would be impacted. described above and would have the impacts to small businesses; Although Options 2 and 3 reduce the imposed much more significant however, we know Options 2 and 3 baseline MIR by more than half, the economic impacts to small businesses. would pose impacts to a larger number baseline MIR is already considerably Furthermore, based on more recent of small businesses. below 100-in-1 million. Considering the analyses, we estimate that the cost Option 1, as shown in Table 5, cost, economic, and risk impacts effectiveness of requiring HEPA filters achieves approximately a 50 percent discussed above, we conclude that on all small hard chromium plants reduction in the MIR and cancer Option 1 provides an ample margin of would be at least $42,700 per pound. incidence associated with exposure to a safety to protect public health. (see Revised Procedures for Determining known human carcinogen, and a 20 Furthermore, as explained in the 2010 Control Costs and Cost Effectiveness for percent reduction in the numbers of proposal, we considered the option of Chromium Electroplating and people with risks at or above 1-in-1 requiring controls similar to the Anodizing, which is available in the

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docket). With regard to health factors, per year. The MIR due to allowable controls. Based on data we have for 20 requiring controls similar to the emissions is estimated to be 70-in-1 tanks at 17 facilities, the emissions California standards would likely million, and the cancer incidence is concentrations from these 20 tanks are reduce risks to below 1-in-1 million for estimated to be 0.08 cases per year. all less than 0.007 mg/dscm. The all hard chromium plants. However, Based on actual emissions, highest value is 0.0066 mg/dscm. Two given the high overall costs, we have approximately 100 people are estimated of these tanks (about 11 percent) have determined that it is not appropriate to to have cancer risks at or above 10-in- emissions between 0.006 to 0.0066 mg/ require controls similar to those in 1 million, and approximately 43,000 dscm. The other 15 tanks have California in the national rule. people are estimated to have cancer emissions below 0.005 mg/dscm. After In summary, based on all our analyses risks at or above 1-in-1 million. We also evaluating this range, as described in and after weighing all the factors, we are estimate that the potential is low for the proposal, we decided to propose an promulgating the chromium emissions chronic and acute non-cancer health emissions limit of 0.007 mg/dscm, a limit of 0.015 mg/dscm, as proposed in effects, and for multipathway risks. As limit slightly higher than the emissions the supplemental proposal notice (77 FR discussed in the preamble to the being achieved by the highest emitting 6628) for existing small hard chromium supplemental proposed rule, we facilities in our data set to minimize the electroplating sources. conclude that the risks from this source need for additional add-on controls in With regard to new sources, as category are acceptable. this source category. Based on the data described in detail in the supplemental With regard to control options, as we have, a limit of 0.006 mg/dscm could proposal, we proposed a chromium result in some plants needing to retrofit emissions limit of 0.006 mg/dscm. The explained in the preamble of the supplemental proposal, we evaluated their add-on controls which would rationale for choosing 0.006 mg/dscm is result in significantly higher costs for described in detail in the supplemental possible limits within the range of 0.006 to 0.01 mg/dscm under the technology those facilities. With regard to proposal. After considering public reductions, we estimate this option comments and additional analyses, we review and risk reviews. The current standard is 0.01 mg/dscm, and we would achieve reductions in overall are finalizing this limit of 0.006 mg/ emissions of far less than 15 percent dscm for new small hard chromium considered this as the upper limit to be considered. As described in the compared to the 0.007 mg/dscm limit. plants because this is the lowest level Therefore, we did not further evaluate that can be reliably achieved cost- supplemental proposal, we decided that 0.006 mg/dscm should be the lower end the 0.006 mg/dscm limit for existing effectively, such as allowing plants the sources. flexibility to use add-on controls or of the range of limits considered WAFS to comply. This limit will ensure because most plants rely on fume As described above, for decorative that the risks posed by any new sources suppressants to limit emissions and chromium electroplating sources, we will be acceptable and the standard will 0.006 mg/dscm was the lowest evaluated the costs and risk reductions provide an ample margin of safety to concentration that we estimated could that would be achieved under one protect public health and prevent an reliably be achieved by limiting surface control option for existing sources. That adverse environmental effect. tensions to 33 dynes/cm (as measured option, which we are finalizing today as with tensiometer) and 40 dynes/cm (as proposed, is to lower the emissions Decorative Chromium Electroplating measured with a stalagmometer). limit for existing sources from 0.01 mg/ Emission Limits However, a portion of the decorative dscm to 0.007 mg/dscm. The basis for For the Decorative Chromium plating sources rely on add-on controls evaluating this option is explained Electroplating source category, the MIR to comply with the NESHAP. Therefore, further in the supplemental proposal. due to actual emissions is estimated to we also evaluated the emissions levels The results of our cost and risk analyses be 10-in-1 million, and the cancer being achieved by decorative for decorative chromium electroplating incidence is estimated to be 0.02 cases electroplating plants that rely on add-on sources are summarized in Table 6. TABLE 6—SUMMARY OF COSTS AND RISK REDUCTIONS FOR THE VARIOUS OPTIONS CONSIDERED FOR DECORATIVE CHROMIUM ELECTROPLATING

MIR 1 Number of Number of Emission Total (in-a-million) people people Cost- Option reductions emissions Incidence with risk > with risk > Annualized effective- in lbs/yr in lbs/yr (cases/yr) 1-in-1 10-in-1 costs ness Actual Allowable million million (per lb)

Baseline: Current situation ...... 0 222 10 70 0.02 43,000 100 0 NA Option 1 (0.007 mg/dscm) ...... 35 187 7 50 2 0.02 36,000 80 $170K $5,000 1 MIR estimates are derived from estimates of actual and allowable emissions. Population risk estimates are derived from estimates of actual emissions. 2 The incidence estimate under Option 1 is less than the baseline estimate, but the estimates are reported as the same when rounded to one significant figure.

With regard to the risk reductions above 1-in-1 million would be reduced higher costs. Therefore, after achieved by the proposed lower limit of by about 15 percent. The MIR based on considering all the costs, economic and 0.007 mg/dscm, we estimate that the allowable emissions will be reduced health factors, and comments, we are MIR based on actual emissions of from 70-in-1 million to 50-in-1 million. promulgating an emissions limit of hexavalent chromium, a known human We also considered a limit of 0.006 mg/ 0.007 mg/dscm for decorative chromium carcinogen, would be reduced by about dscm; however, reducing the limit from sources, as proposed in the 30%, and the total estimated cancer 0.007 to 0.006 mg/dscm would provide supplemental proposal (77 FR 6628). incidence, the number of people minimal additional risk reduction and With regard to new sources, as estimated to have cancer risks at or would likely result in more sources described in detail in the supplemental above 10-in-1 million and the number of needing to upgrade add-on controls proposal, we proposed a limit of 0.006 people estimated to have risks at or which would result in significantly mg/dscm. The rationale for choosing

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0.006 mg/dscm is described in detail in Chromic Acid Anodizing Emission effects, and for multipathway risks. As the supplemental proposal. After Limits discussed in the preamble to the considering public comments and For the Chromic Acid Anodizing supplemental proposed rule, we additional analyses, we are finalizing source category, the MIR due to actual conclude that the risks from this source this limit of 0.006 mg/dscm for new emissions is estimated to be 5-in-1 category are acceptable. decorative chromium electroplating million, and the cancer incidence is For chromic acid anodizing sources, plants because this is the lowest level estimated to be 0.003 cases per year. we evaluated the costs and risk that can be reliably achieved cost- The MIR due to allowable emissions is reductions that would be achieved for effectively and while still allowing estimated to be 60-in-1 million, and the one control option for existing sources. plants the flexibility to use add-on cancer incidence is estimated to be 0.08 That option, which we are finalizing controls or WAFS to comply. This limit cases per year. Based on actual today as proposed, is to lower the will ensure that the risks posed by any emissions, no people are estimated to emissions limit for existing sources from new sources will be acceptable and the have cancer risks at or above 10-in-1 0.01 mg/dscm to 0.007 mg/dscm. The standard will provide an ample margin million, and approximately 5,000 basis for evaluating this option is of safety to protect public health and people are estimated to have cancer explained further in the supplemental prevent an adverse environmental risks at or above 1-in-1 million. We also proposal. The results of our cost and effect. estimate that the potential is low for risk analyses for chromic acid anodizing chronic and acute non-cancer health sources are summarized in Table 7. TABLE 7—SUMMARY OF COSTS AND RISK REDUCTIONS FOR THE VARIOUS OPTIONS CONSIDERED FOR CHROMIUM ANODIZING

MIR 1 Number Number Total (in-a-million) people people Cost- Emission emissions Incidence Annualized effective- Option reductions (cases/yr) with risk > with risk > costs ness in lbs/yr in 1-in-1 10-in-1 lbs/yr Actual Allowable million million (per lb)

Baseline: Current situation ...... 0 57 5 60 0.003 5,000 0 NA NA Option 1 (0.007 mg/dscm) ...... 8 49 3 40 2 0.003 4,000 0 $50K $6,580 1 MIR estimates are derived from estimates of actual and allowable emissions. Population risk estimates are derived from estimates of actual emissions. 2 The incidence estimate under Option 1 is less than the baseline incidence estimate, but the estimates are reported as the same when rounded to one significant figure.

As explained in the supplemental mg/dscm. The rationale for choosing limits we are promulgating under CAA proposal (77 FR 6628), we had less 0.006 mg/dscm is described in detail in section 112(f), described above, we have source data for anodizing plants; the supplemental proposal. After also determined it is necessary to revise however, we determined that based on considering public comments and the NESHAP pursuant to CAA section the similarities with decorative additional analyses, we are finalizing 112(d)(6) to require such limits. chromium sources, it was appropriate to this limit of 0.006 mg/dscm for new Housekeeping Requirements evaluate the same options and also to chromic acid anodizing plants because propose the same limits for anodizing this is the lowest level that can be We are also revising the standards plants as proposed for decorative reliably achieved cost-effectively, such pursuant to CAA section 112(d)(6) to sources. With regard to the risk as allowing plants the flexibility to use include several housekeeping reductions achieved by the proposed add-on controls or WAFS to meet this requirements. However, in response to limit of 0.007 mg/dscm, we estimate level of emissions and this limit will comments we received, we are making that the MIR based on actual emissions ensure that the risks posed by any new several minor revisions to the proposed of hexavalent chromium, a known sources will be acceptable and provide housekeeping requirements to clarify human carcinogen, would be reduced to an ample margin of safety to protect and simplify those requirements. The about 3-in-1 million, the total estimated public health and prevent an adverse revisions are summarized below and cancer incidence would be reduced by environmental effects. described in detail in the RTC about 15%, and the number of people document, which is available in the Conclusion—Emissions Limits estimated to have risks at or above 1-in- docket. 1 million would be reduced from 5,000 The Agency has determined that the The housekeeping procedures include to 4,000. As we did for the decorative risks due to HAP emissions from these storage requirements for any substance chromium electroplating category, we source categories are acceptable. that contains hexavalent chromium as a also considered a limit of 0.006 mg/ Furthermore, after considering all the primary ingredient; controls for the dscm for the anodizing category, health and cost factors described above, dripping of bath solution resulting from however the additional reduction in risk the agency has determined that the dragout; splash guards to minimize that would be achieved by going from NESHAP for the hard and decorative overspray and return bath solution to 0.007 to 0.006 would be minimal, and chromium electroplating and chromic the electroplating or anodizing tank; a this change would likely result in acid anodizing source categories, with requirement to promptly clean up or increased costs. After considering all the the promulgated changes in today’s contain all spills of any substance costs, economic and health factors, we action (as explained above) will provide containing hexavalent chromium; are promulgating an emissions limit of an ample margin of safety to protect the requirements for the routine cleaning or 0.007 mg/dscm for chromic acid public health and will prevent an stabilizing of storage and work surfaces, anodizing sources (77 FR 6628). adverse environmental effect. walkways, and other surfaces With regard to new sources, as We are also revising the standards potentially contaminated with described in detail in the supplemental pursuant to CAA section 112(d)(6). hexavalent chromium; a requirement to proposal, we proposed a limit of 0.006 Because it is cost effective to meet the install a barrier between all buffing,

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grinding, or polishing operations and 2013. The compliance date for the TOSHI allowed by the NESHAP will be electroplating or anodizing operations; revised emission limits and surface no higher than 1. and requirements for the storage, tension limits is September 19, 2014. Based on consideration of all the risk disposal, recovery, or recycling of The compliance date for eliminating the assessment results, including the fact chromium-containing wastes. The main use of PFOS-based fume suppressants is that the maximum TOSHI allowed by changes that were made to the September 21, 2015. the rule will be no higher than 1, we housekeeping requirements since the conclude that risks are acceptable and C. What are the final rule amendments 2010 proposal based on public that the NESHAP will provide an ample for the Steel Pickling source category? comments include removing routine margin of safety given the amendments housekeeping measures from 1. Revisions Pursuant to CAA Section we are promulgating in this action. recordkeeping, adding that cleanup 112(d)(2) & (3) Therefore, we are not amending the must be initiated within one hour of the At the time we promulgated the NESHAP under Section 112(f) because spill, and allowing facilities to collect original MACT standard, we also risks are acceptable and the NESHAP, as dragout using other methods when drip established an alternative compliance revised pursuant to 112(d)(2) and (d)(3), trays are not practical. The compliance option for the steel pickling source provides an ample margin of safety. We date for implementing the housekeeping category that allowed HCl regeneration are also not amending the NESHAP procedures will be 6 months after facilities to apply for a site specific under section 112(d)(6) because we have promulgation of the final amendments. alternative chlorine concentration not identified new developments in More details on the housekeeping standard for existing acid regeneration practices, processes or control requirements are explained in the 2010 technologies. We have determined that proposal and in the RTC document. plants. In this final rule, we are removing the alternative compliance the Steel Pickling NESHAP, given the Phase-Out of PFOS WAFS option. After reviewing public amendments we are promulgating in this action, provide an ample margin of Also pursuant to CAA section comments and evaluating additional information received since proposal, we safety to protect public health and 112(d)(6), we are specifying that PFOS prevent an adverse environmental WAFS cannot be added to any affected continue to believe that the alternative compliance option provided in the effect, and that there have been no hard chromium electroplating tank, advances in practices, processes, and decorative chromium electroplating original rule was not appropriate and therefore should be removed from the control technologies feasible for this tank, or chromium anodizing tank as a source category. method to meet the NESHAP rule because it allowed a source to requirements for these source categories. establish a source specific limit which 3. Electronic Reporting could be less stringent than the MACT In response to public comments about The final rule amendments require Floor level of control. Based on our the effectiveness and feasibility of non- owners and operators of affected review and analysis of available PFOS WAFS, we collected information facilities to submit electronic copies of information, EPA concludes that the from several chromium electroplating required performance test reports to emission limit for chlorine can be met plants in Minnesota that have been EPA’s WebFIRE database through an using available control technologies using non-PFOS WAFS for several electronic emissions test report such as alkaline scrubbers, and that this years, and that information confirmed structure called the Electronic Reporting level of control is consistent with the that the non-PFOS substitutes are Tool (ERT). The ERT generates an MACT floor level of control established effective and feasible alternatives to electronic report which would be in the original NESHAP. We estimate PFOS-based chemicals. See Information submitted using the Compliance and that the amendment to remove the on non-PFOS Fume Suppressants in Emissions Data Reporting Interface alternative compliance provision will Minnesota Chromium Electroplating (CEDRI). The submitted report will be reduce emissions of chlorine by 15 tons Facilities. Further details are also transmitted through EPA’s Central Data per year (tpy). provided in the responses to comments Exchange (CDX) network for storage in provided in Section IV of this FR notice 2. Risk and Technology Review the WebFIRE database making submittal and in the RTC document. As provided in the proposed rule, we of data very straightforward and easy. Other Amendments are not revising the Steel Pickling The requirement to submit performance test data electronically to EPA applies We are finalizing the changes to the NESHAP pursuant to CAA sections only to those performance tests SSM requirements, electronic reporting 112(f)(2) and 112(d)(6). While the conducted using test methods that are requirements, test procedures, and chronic non-cancer TOSHI level for one supported by the ERT. monitoring requirements as proposed. facility exceeded the reference level, we We are also finalizing the addition of a noted that this facility has had D. What are the effective and provision to provide an affirmative compliance issues with the standard compliance dates for the Steel Pickling defense against civil penalties for and that the actual emissions we relied source category amendments? violations of emission standards caused on for this facility included emissions in excess of what is allowed under the The effective and compliance date for by malfunctions, as well as criteria for the final rule amendments is September establishing the affirmative defense. NESHAP. Given the amendment to remove the 19, 2012. B. What are the effective and alternative compliance option under IV. Summary of Significant Comments compliance dates for the Chromium Section 112(d)(2) and (d)(3) as described and Responses Electroplating and Chromium above, and assuming that the one Anodizing source category facility will apply the necessary controls A. Comments and Responses Associated amendments? to achieve compliance with the With the Chromium Electroplating and The effective date for the final rule NESHAP, we estimate that the Chromium Anodizing Source Categories amendments is September 19, 2012. The maximum chronic non-cancer TOSHI Many of the significant comments and compliance date for implementing the for any facility in the category will be our responses are summarized in this housekeeping requirements is March 19, less than 1. Therefore, the maximum preamble. A summary of the public

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comments on the proposal not introduced that can be linked to commenter stated that current practices presented in the preamble, and the achieving these new limits (i.e., under and technologies used by the industry EPA’s responses to those comments, is section 112 (d)(6)), nor is there ongoing in California to comply with rules set by available in the Responses to Comments residual risk associated with chromium the California Air Resources Board (RTC) document which is available in emissions from these source categories (CARB), 17 Cal. Code Regs. §§ 93101– the Docket for this rulemaking, Docket that justifies the stricter standards (i.e., 93102.16, and the South Coast Air ID No. EPA–HQ–OAR–2010–0600. under section 112(f)(2)). Therefore, there Quality Management District is neither a legal nor factual basis for the 1. Technology Review (SCAQMD), Rule 1469, represent the proposed changes. type of significant developments that Comment: One commenter stated that Response: We believe the language in make an update necessary. The EPA made the decision to consider more section 112(d)(6) provides broad commenter pointed out that California stringent emissions limits primarily authority for EPA to consider the standards have achieved greater because the revised data set indicated practices, processes and technologies emission reductions than EPA’s existing that most facilities were operating well available at the time we are performing standard and that EPA may not below the current emissions limit. The our review. We agree that the fact that completely ignore the best-performing commenter explained that the fact that some facilities are meeting a limit below similar sources when deciding what some facilities operate below the the level of the current standard is not limit to set under section 112(d). The existing standard does not warrant the alone sufficient to justify revising the commenter listed some of California‘s establishment of revised standards existing standard. Rather, we evaluate standards and stated they are more under section 112(d)(6). The commenter what practices, processes and stringent because they require greater added that EPA should expect that some technologies are available and consider protection for facilities located nearest facilities will decide to reduce whether they are cost effective and to sensitive receptors, such as people emissions below the existing standard technologically feasible. If a more who attend, work at, or visit schools and in order to ensure a compliance buffer. stringent standard can be met through daycare centers. In addition, certain The commenter emphasized that EPA cost effective and technologically facilities are required to use add-on should not set the precedent that an feasible practices, processes or control controls, and they require HEPA filters industry that operates with a technologies, we believe it is necessary for new sources. The commenter noted compliance buffer will be subject to within the meaning of section 112(d)(6) that CARB rules limit hexavalent ratcheting down of the standards, since to revise the existing 112 standard. We that would create a disincentive for also note that, when developing chromium directly, instead of setting industry sectors to reduce their standards, we take into account the limits on total chromium, as under emissions below the existing MACT uncertainty associated with measuring EPA’s proposed rule. The commenter standards. The commenter also noted emissions and we assume that plants stated that EPA should require that section 112(d)(6) does not allow operate with a compliance buffer to additional protective measures EPA to change standards simply minimize the likelihood of exceeding including siting, monitoring (including because portions of the industry are the standard. continuous emission monitoring), operating below existing standards or Regarding the issue that EPA has not inspection and compliance, public because compliance with new limits identified any additional ‘‘practices, reporting of emissions, community may not be cost prohibitive. processes, [or] control technologies’’ outreach near these facilities to protect The same commenter also stated that that were not identified and considered public health, systems for community EPA has not identified any additional during the development of the NESHAP, reporting of suspected emission ‘‘practices, processes, [or] control the commenter’s interpretation of exceedances, enforcement, an 8-year technologies’’ that were not identified section 112(d)(6) is too narrow. In the deadline to review and revisit its and considered during the development 112(d)(6) review, we are not limited to residual risk analysis for this source of the original MACT or the 2010 reviewing practices, processes or control category, and similar requirements. For proposed rulemaking that warrant technologies that the Agency has never the provisions that require funding, EPA stricter standards. The commenter considered. Rather, section 112(d)(6) should either allocate or seek this explained that EPA’s technology requires us to take into account funding, or require registration of each analysis stopped when the Agency developments in practices, processes of the chromium electroplating facilities concluded that facilities are achieving and control technologies, which include and set a fee for this registration that better emissions results than the current not only new practices, processes and will pay for these activities. The standard and once EPA reached that control technologies, but also commenter stated that EPA has not conclusion, the Agency turned to improvements in efficiency, reduced analyzed the ways in which these rules creating options for combining existing costs or other changes that indicate that are stronger or provided any discussion technologies to achieve those reduced a previously considered option for of this in the record, as it must do to emission results. The commenter stated reducing emissions may now be cost consider all developments under section that EPA used the emission results to effective or technologically feasible. We 112(d)(6). The commenter stated that drive the identification of possible also reiterate that improvements in EPA has failed to provide any combinations of existing technologies control technology performance over explanation for not considering the and that EPA’s basis for revising time can provide the basis for revising California reductions as a regulatory emissions standards under section standards under section 112(d)(6). As option or explain why EPA‘s proposed 112(d)(6) is not appropriate since explained in the supplemental proposal, level of the standards for each section 112(d)(6) requires that any many existing facilities have emissions subcategory is appropriate. The changes in the standards be driven by levels more than 10 times below the commenter added that California’s changes in ‘‘practices, processes, [or] current emissions limits. standards undermine EPA’s control technologies.’’ The commenter Comment: One commenter stated that determination that the existing added that EPA has not based the EPA is legally required by section standards provide an ample margin of proposed emission limit reduction on 112(d) to set standards based on the best safety. Once California demonstrated evidence that new technology has been performing sources in California. The that it is feasible to require much more

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stringent standards than are currently regardless of the location of sensitive emission concentration-based limits required by the NESHAP, EPA must receptors and therefore we disagree that must apply at all times. The commenter provide a rational explanation as to why a special provision is needed with suggested that EPA update and it should not require at least the same regard to location of these receptors. strengthen the proposed surface tension level of protection. The fact that With regard to siting requirements, limits so that they are at least as California has required HEPA filters for community reporting, community stringent as the emission concentration- the vast majority of these facilities, outreach and registration fees, we based standards, and to require these while also requiring specific fume believe these items are not appropriate limits to apply in addition to, but not in suppressants for the smallest facilities, or necessary for this National lieu of, emission limits. belies EPA’s conclusion that its existing rulemaking. Response: We disagree with the MACT meets the test for an ample With regard to the comment that commenter that it is unlawful to set an margin of safety. CARB rules limit hexavalent chromium alternative to a numerical emissions Response: We proposed that the directly (instead of setting limits on limit. The CAA allows us to establish existing standards reduce risk to an total chromium), we believe it is alternatives to numerical emissions acceptable level based on our review of appropriate to regulate chromium limits if we can demonstrate that the health factors such as the maximum compounds (rather than hexavalent alternative limit (in this case, the individual risk and the number of chromium) under the national standards surface tension limit) is at least as persons exposed to a cancer risk greater developed pursuant to the CAA because stringent as the numerical emissions than 1-in-1 million. As part of our section 112(b) of the CAA lists limit. For the reasons described below, technology review and our ample chromium compounds as the HAP we also reject the commenter’s assertion margin of safety analyses, we which the EPA is to regulate. that the proposed surface tension limits considered the requirements of Nevertheless, because the emissions of are not as stringent as the proposed California’s Airborne Toxic Control total chromium are estimated to be 98 emission limits. Our analysis shows that Measure (ATCM) for Chromium Plating percent hexavalent chromium, a total maintaining the surface tension at the and Chromic Acid Anodizing Facilities chromium emissions limit is effectively proposed levels is at least as stringent as (title 17, California Code of Regulations a hexavalent chromium limit for these the proposed emission limits, both for sections 93102.1 to 93102.16) and of the source categories. The NESHAP existing and for new sources. The data South Coast Air Quality Management established emission limits in terms of demonstrate that, when surface tension District (SC AQMD) (Rule 1469, total chromium, as measured by Hexavalent Chromium Emissions from Methods 306 or 306A. Both of these is no greater than 40 dynes/cm (when Chromium Electroplating and Chromic methods measure the total amount of measured using a stalagmometer) or 33 Acid Anodizing Operations). chromium present in the exhaust dynes/cm (when measured using a Specifically, as part of our October 2010 stream, regardless of the form of the tensiometer), emissions will be no proposal, we evaluated requiring all emissions (hexavalent or trivalent greater than 0.006 mg/dscm. The facilities to install HEPA filters and chromium). proposed chromium emission limits for requiring all facilities that use less Comment: A commenter claimed that existing sources (0.011 mg/dscm for efficient controls, such as packed bed EPA may not lawfully set surface large hard chromium electroplating, scrubbers, to install CMP systems (75 FR tension limits as an alternative to an 0.015 mg/dscm for small hard at 65092–94); See Emissions Reductions emission standard because doing so chromium electroplating, and 0.007 mg/ and Cost Effectiveness of HEPA Filter violates section 112(h), 42 U.S.C. dscm for decorative chromium Retrofits for Chromium Electroplating, § 7412(h). The commenter pointed out electroplating and chromium and Emissions Reductions and Cost that section 112(h) of the Act, id. anodizing), all exceed the 0.006 mg/ Effectiveness of Composite Mesh Pads § 7412(h), requires EPA to set a dscm concentration associated with the for Chromium Electroplating, which are numerical standard for control of HAPs proposed surface tension limits and the available in the docket for this whenever it is feasible to promulgate emissions limit for all new sources rulemaking. These devices, alone or in and enforce a standard in such terms. (0.006 mg/dscm) is equivalent to the combination with fume suppressants or The commenter acknowledged that EPA level achieved with these surface other add-on devices, are the controls may promulgate work practice tension limits. We also disagree that the used to comply with the standards in standards instead of numerical proposed surface tension limits California. As explained in the 2010 standards only if measuring emission constitute establishing an emission proposal (75 FR 65068) we evaluated levels is technologically or standard based solely on one type of the capital costs, annualized costs, cost- economically impracticable and that technology (i.e., fume suppressants). effectiveness, and number of plants EPA may substitute work practice The NESHAP sets numerical emission impacted. Based on those analyses, we standards for emission limits only if standards for all of the affected concluded that requiring these controls doing so is consistent with the chromium electroplating and anodizing throughout the industry was not provisions of subsection (d) or (f). The sources. However, plants can elect to appropriate under either section commenter stated that EPA has not comply with the standard by meeting 112(d)(6) or 112(f)(2). satisfied section 112(h)(1), which is the surface tension limits through the Furthermore, we disagree with the required to set an alternative work use of fume suppressants. Section comment that EPA should follow the practice standard in lieu of an emission 112(h)(1) addresses setting an California example for people who standard and added that EPA may not alternative work practice standard when attend or visit schools and daycare set a section 112(d) emission standard a numerical emission standard is not centers, or other sensitive receptors that based solely on one type of technology feasible, but that is not the case for the are located close to these sources. Based (fume suppressants), when other chromium electroplating NESHAP on our analyses, we conclude that this methods are available to achieve greater because the existing NESHAP includes NESHAP, with the changes being reductions. The commenter also said both a numerical emission limit and an promulgated today, will provide an that EPA must set surface tension limits alternative surface tension limit that ample margin of safety for all not as an alternative, but in addition to will ensure that the emission limit is populations and subpopulations the concentration-based limits. The met at all times by sources that choose

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to use the surface tension limit emissions as 0.0007 mg/dscm, and the thus, potentially, both to the compliance alternative. other located in Massachusetts that environment and to human health, from Comment: One commenter stated that reported a concentration of 0.001 mg/ oral and systemic exposure through EPA reviewed data from only 17 dscm. In addition, we reviewed water-based ingestion, rather than just decorative chromium facilities and one emission test data we had previously inhalation. EPA therefore must assess anodizing facility, and concluded that received for three chromium anodizing the multipathway health risk. all decorative and anodizing facilities plants located in California. The data The commenter supported this already comply with the new proposed show emissions for tanks controlled argument by referring to California emissions limits (77 FR at 6642–6644.) with HEPA filters to range from EPA’s Office of Health Hazard The commenter goes on to say that EPA 0.0000097 to 0.00056 mg/dscm. Based Assessment (OEHHA)’s recent revisions acknowledged that 8 decorative on the control efficiencies reported by to Risk Assessment Guidelines, which, facilities may need to make adjustments California, we estimate that, if these according to the commenter, provide and achieve reductions to meet the new tanks were controlled with CMPs evidence that under some emissions limits, but dismissed these instead of HEPA filters, emissions environmental conditions hexavalent data by claiming that these facilities would range from 0.000097 to 0.0056 chromium contamination can persist in would choose to comply with the new mg/dscm. As shown in the cost analysis soil presenting an exposure risk via NESHAP with the surface tension levels technical memo, we already had data for ingestion and dermal exposure to rather than the new emissions limits. a plant in Oklahoma with reported contaminated soils, creating a cancer The commenter noted that EPA emissions of 0.0016 mg/dscm. risk.1 The commenter noted that EPA’s admitted that it did not perform any With regard to add-on controls, based failure to consider cancer risk from detailed analysis for anodizing facilities. on available information we conclude ingestion in its analysis is unlawful, Rather, EPA concluded that anodizing that the CMP is a readily available arbitrary and capricious. processes are similar enough to control technology that can be applied The commenter recommended that decorative processes so the proposed to anodizing plants and can easily meet the EPA perform a multipathway limits would also be appropriate. The a limit of 0.007 mg/dscm for these type analysis for this source category that commenter stated that EPA had limited of plants. Other technologies can also fully accounts for exposure that can data and had weak scientific and likely meet this limit. For example, the occur to a child in an urban or technical basis to support or justify the Connecticut and Massachusetts plants residential setting. The commenter proposed limits for decorative and have chromium mist eliminators (and suggested that the EPA assess anodizing facilities. have emissions of 0.0007 mg/dscm, and multipathway risk based on the Response: In evaluating the impacts of 0.001 mg/dscm, respectively) and the allowable emissions, as it has done for the proposed requirements on the plant from Oklahoma, which has inhalation risk. Further, the commenter existing decorative chromium emissions of 0.0016 mg/dscm, is reported that the OEHHA’s scientists electroplating and chromium anodizing controlled with a wet scrubber. The data found that there is the potential for facilities that comply with emissions from the Connecticut plant, hexavalent chromium uptake in plants limits (as opposed to those plants that Massachusetts plant, Oklahoma plant, and fish and concluded that to protect comply with the surface tension limits), and the plants in California all support public health, exposure via ingestion of we reviewed the available data. For the our assumption that most existing contaminated crops and fish must also 17 decorative tanks in our data set, all chromium anodizing plants that are be considered. of these tanks have emissions below currently complying with the existing Response: The current persistent and 0.007 mg/dscm and many have emission limit could easily meet the bioaccumulative HAP (PB–HAP) list in emissions more than 10 times below revised emissions limit of 0.007 mg/ the Air Toxics Assessment Library (see this level. Although all of the emissions dscm without additional controls. We http://www.epa.gov/ttn/fera/ data indicated that existing facilities received no data for any decorative or risk_atra_main.html), was developed would meet the more stringent anodizing plants that would not be able considering all of the available emissions limit of 0.007 mg/dscm, we to meet these lower limits. information on persistence and conservatively assumed that at least 2. Risk Assessment bioaccumulation. This list was peer- some facilities would not meet this limit reviewed by the SAB, and it is and would require further controls. The Comment: One commenter contended reasonable to use it in the RTR program. commenter is not correct that we that EPA did not assess multipathway In addition, the Agency does not have assumed the 8 facilities would choose to health risk for chrome plating because information, nor did the commenter comply with the surface tension levels hexavalent chromium is not on the provide information, that would enable rather than the new emissions limits. outdated list of 14 PB–HAPs that EPA the EPA to determine whether the However, we did assume those facilities has used for this risk assessment. The deposition of airborne hexavalent would choose to use fume suppressants commenter noted EPA’s statement that, chromium from chromium to achieve some emissions reductions to ‘‘PB–HAP emissions were not identified electroplaters and the subsequent comply with the more stringent from the chromium anodizing, movement of the hexavalent chromium emissions limits, but we disagree that decorative chromium electroplating, in the environment would result in this assumption means that we and hard chromium electroplating human exposures that could be of dismissed those plants. Using fume source categories, indicating that concern. With regard to the suppressant in combination with add-on exposures due to non-inhalation routes environment, the limited available controls is a relatively common practice of exposure are not significant.’’ The for meeting emissions limits in the commenter argued that this is unlawful, 1 Cal. EPA, OEHHA, Air Toxics Hot Spots chromium electroplating industry. arbitrary and capricious because the Program Risk Assessment Guidelines, Technical Regarding the data on chromium science demonstrates this pollutant can Support, Document for Exposure Assessment and anodizing, we have obtained emission indeed cause health effects when a Stochastic Analysis, Scientific Review Panel Draft at F–27, E–5 (Feb. 2012), http://oehha.ca.gov/air/ test data for two additional chromium person is exposed through a pathway hot_spots/SRP/index.html), http://oehha.ca.gov/air/ anodizing plants, one of which is other than inhalation. Evolving research hot_spots/SRP/index.html; see also id. at E–12 tbl. located in Connecticut that reported continues to show risk to animals and E3 (describing exposure pathways for analysis).

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information on the persistence and The commenter recommended that the 02/002F. Risk Assessment Forum, bioaccumulation of hexavalent EPA update both its 2005 Supplemental Washington DC. Available online at chromium suggests that there is no Guidance for Assessing Susceptibility http://www.epa.gov/raf/publications/ indication of the biomagnifications of from Early-Life Exposure to Carcinogens pdfs/rfd-final.pdf). For example, a hexavalent chromium along the aquatic (attached to comment letter), and EPA’s review of the chronic reference value food chain, and that chromium has low 2006 list of carcinogenic HAPs that act process concluded that the Agency’s mobility for translocation from roots to by a mutagenic mode of action to use reference concentration (RfC) derivation aboveground parts of plants. (ATSDRs age-dependent adjustment factors for process adequately considers potential Tox profile 2008 http:// hexavalent chromium in the susceptibility of different subgroups www.atsdr.cdc.gov/toxprofiles/tp7.pdf). Supplemental Guidance and with specific consideration of children, Comment: One commenter stated that incorporate more recent evaluations of such that the resultant RfC values the residual risk assessment carcinogenic modes of action in the list pertain to the full human population underestimates risk to the developing of carcinogenic HAPs. The commenter including ‘‘sensitive subgroups,’’ child and fetus. The commenter also suggested that the EPA should inclusive of childhood. With respect to observed that biological differences in consult with multiple scientific bodies cancer risk assessments, assessments are the developing child and fetus can on the scientific basis of the proposed performed in accordance with EPA’s result in increased cancer and non- rulemaking: National Academy of Supplemental Guidance for Assessing cancer risk due to both increased Sciences, the Office of Children’s Health Susceptibility from Early-life Exposure exposure and increased vulnerability, Protection, the Children’s Health to Carcinogens (US EPA, 2005). This and emphasizes that the EPA must Protection Advisory Committee, and Guidance recommends the application account for the increased susceptibility scientists in the Office of Research and of age-dependent adjustment factors for of children to HAP emissions from this Development who focus on children’s assessing cancer risk from carcinogenic source category in the risk assessment. and community health (such as experts pollutants concluded to act via a The commenter noted that according to in the National Center for mutagenic mode of action and for which OEHHA, there is an increased risk Environmental Research). The information on early-life susceptibility indicated from early life exposures and commenter asked the EPA to consider is lacking. The basis for this asserted that EPA’s failure to include an and follow its 2008 handbook on child- methodology is provided in the 2005 adequate evaluation of increased early specific exposure factors in this Supplemental Guidance. With regard to life susceptibility to HAP emissions rulemaking, and follow the Science other carcinogenic pollutants for which systematically underestimates risk from Advisory Board’s recommendations early-life susceptibility data are lacking, hexavalent chromium emissions of this regarding the greater exposure and it is the Agency’s long-standing science source category. The commenter stated vulnerability of children.5 policy position that use of the linear that the EPA must follow the lead of The commenter also pointed out that low-dose extrapolation approach OEHHA and include additional factors Congress recognized this science in the (without further adjustment) provides to address early life exposure in its risk Food Quality Protection Act (FQPA) for adequate public health conservatism in assessment. The commenter also cited a pesticide chemical residue, where the absence of chemical-specific data recent EPA toxicological review and Congress used a ten-fold margin of indicating differential early-life cancer toxicity reviews from California safety for infants and children. The susceptibility or when the mode of EPA (CalEPA) that provide evidence for commenter also provided a table of action is not mutagenicity (U.S. EPA, 6 the mutagenic activity of hexavalent comparisons between OEHHA child- 2005). chromium compounds, and health reference values and those of EPA disagrees with the commenter developmental, female reproductive and that EPA should use California EPA’s 234 EPA. male reproductive toxicity. The Response: The EPA disagrees with the child-specific reference doses for school 7 commenter suggested that under the commenter’s statement that the risk site risk assessments in order to 2005 Guidance, risk assessments of assessment underestimates risk to address the potential for early-life exposure to hexavalent chromium children and lacks consideration of susceptibility. EPA methods for should include adjustment for early life early-life susceptibility. The EPA agrees assessing hazard and dose-response exposures and the estimates included in that biological differences across relationships for HAPs and developing the residual risk assessment fail to lifestages may lead to differences in the RfCs and cancer risk estimates, as noted include the full health risk. susceptibility to HAP, as can differences above, specifically address the potential The commenter noted that the EPA among population groups due to pre- for early-life susceptibility. Whenever restricted its application of age- existing disease states or other factors. data indicate increased susceptibility of dependent adjustment factors to those Accordingly, the methods we use in risk a developmental lifestage or of a HAPs included in EPA’s 2006 list of assessments have taken this into population group, those data are carcinogenic HAPs that act by a account. For the dose-response mutagenic mode of action, and did not 6 The EPA has not yet determined whether component of HAP assessments for apply age-dependent adjustment factors hexavalent chromium poses disproportionate risks to assess cancer risk from chromium. RTR, the EPA uses exposure reference to children, but is currently developing an concentrations and unit risk estimates assessment of hexavalent chromium which likely (UREs) that are expressly derived with will address that issue. 2 EPA, IRIS, Draft, Technological Review of 7 We note that California EPA’s use of these Hexavalent Chromium (CAS No. 18540–29–9), In the objective of protecting sensitive numerical values, which do not exist for inhalation Support of Summary Information on the Integrated populations and lifestages, including exposures, is limited to the context of risk Risk Information System at 238 (Sept. 2010). children (see U.S. EPA, 2002). A Review assessment at proposed or existing California school 3 Cal. EPA OEHHA, Public Health Goal for of the Reference Dose and Reference sites and does not extend to their Air Hot Spots Hexavalent Chromium in Drinking Water (July Risk Assessment program. Further the guidance for 2011). Concentration Processes. EPA/630/P– the California EPA school site assessment program 4 Cal. EPA, OEHHA, Evidence of the specifies the use of California OEHHA or U.S. EPA Developmental and Reproductive Toxicity of 5 U.S. EPA, Child-Specific Exposure Factors IRIS values in the absence of the school site risk Chromium (Hexavalent Compounds) 3 (Aug. 2009), Handbook (Sept. 2008), EPA/600/R–06/096F, assessment child-specific values (Cal OEHHA, http://www.oehha.ca.gov/prop65/hazard_ident/ http://cfpub.epa.gov/ncea/cfm/ 2004—http://www.oehha.ca.gov/public_info/ pdf_zip/chrome0908.pdf. recordisplay.cfm?deid=199243. public/kids/pdf/SchoolscreenFinal.pdf).

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factored into the analysis. When data The EPA is continuing to discuss and demographic analyses we performed are are inadequate to understand the effects pilot approaches for conducting its more appropriate for this source of a specific pollutant on sensitive analyses that are consistent with the category-specific rulemaking. We are subpopulations, which, for some agency’s responsibilities regarding EJ as working with the OEJ, the Office of pollutants, may include children, the outlined in Executive Order (EO) 12898. Research and Development and other Agency’s risk assessment methods take We believe these NESHAP, with the Agency offices in an ongoing effort to that into account to ensure that resulting amendments being promulgated in assess ways to address cumulative risk assessments address the possibility that today’s action, will provide an ample and develop new tools for considering such subpopulations might be more or margin of safety to protect the health of environmental justice in rulemakings. less sensitive. all population groups. As stated in the In addition, as addressed more fully Benzene NESHAP, in determining the in the RTC, while we understand that 3. Environmental Justice need for residual risk standards, we some communities are exposed to Comment: One commenter questioned strive to limit to no higher than multiple pollutants emitted by many why EPA’s risk assessment did not approximately 1-in-10 thousand (100-in- different types of sources, EPA under consider all of the factors recommended 1 million) the estimated cancer risk that Plan 2014 is assessing ways to address in EPA’s own Environmental Justice a person living near a plant would have these exposures through a cumulative Strategic Enforcement Assessment Tool if he or she were exposed to the impact analysis. (EJSEAT) and why EPA did not propose maximum pollutant concentrations for 4. Emissions Estimates stricter controls in light of the 70 years and, in the ample of safety demographic risk results for hard decision, to protect the greatest number Comment: In response to the 2012 chromium electroplaters. The of persons possible to an individual supplemental proposal, one commenter commenter also stated that, as specified lifetime risk level of no higher than contacted approximately 300 of the in the EPA’s Interim Guidance on approximately 1-in-1 million. These facilities that EPA identified as having Considering Environmental Justice considerations are made for all people the highest emissions and received during the Development of an Action, regardless of racial or socioeconomic information from 181 plants. The EPA should consider addressing status. However, in determining commenter stated that out of the plants existing disproportionate impacts on whether to require additional standards that responded, 62 plants were closed, minority, low-income or indigenous under Section 112(f), these levels are 24 plants do not use chromium, 39 populations during this rulemaking. The not considered rigid lines, and we plants have lower emissions than commenter requested that a full weigh the cancer risk values with a reported by EPA, and 7 plants have evaluation of disproportionate impacts series of other health measures and emissions estimates consistent with that be conducted following guidance in factors in both the decision regarding relied on by EPA. The commenter also EJSEAT and an evaluation of how this risk acceptability and in the ample claimed the data for several other plants assessment could reduce impacts to margin of safety determination. We also were incorrect. If revisions were made those communities. The commenter consider cost of controls in the ample to emissions estimates for these 181 noted that the Online Tracking margin of safety determination. plants based on this information, the Information System (OTIS) database The results of our demographic resulting overall emissions would be appears to do this already at the facility- analyses for hard and decorative 73% lower than the EPA’s estimates for specific level and can be incorporated chromium electroplating indicate that these 181 plants. The commenter into the assessment to more accurately certain minority groups and low-income recognized that estimates found for the define the number of the individuals populations may be disproportionately higher-emitting, higher-risk facilities impacted by the emissions and the exposed to emissions from these could in part be counterbalanced by demographics of the impacted categories and to any risks that may emissions estimates for lower risk community. The commenter result due to these emissions because facilities the commenter did not recommended that EPA work with the the communities most proximate to investigate, but the commenter believes Office of Environmental Justice to facilities within these categories have a that EPA’s analysis would still not adequately evaluate the proposed higher proportion of these groups than account for the 73% reduction in rulemaking with regard to communities the national demographic profile. We emissions for this set of facilities experiencing disproportionate impacts. did not identify any vulnerability or resulting from facility closures and Another commenter stated that CARB susceptibility to risks particular to switches to non-hexavalent chromium has created a draft methodology to minority and low income populations processes. screen for cumulative impacts in from pollutants emitted from this source Response: We reviewed the data communities. EPA should use this or a category. The Agency has determined provided by the commenter and we similar tool to find and provide greater that the existing NESHAP for these created a separate source category protection for the local communities source categories reduce risk to an emissions dataset that reflects most of most affected by this source category. acceptable level for all proximate the changes suggested by the EPA has even developed a draft version populations, including minority and commenter. Specifically, we excluded of this type of tool for enforcement and low-income populations. all plants reported by the commenter to compliance purposes, specifically the We agree with the commenter on the be closed or to not use hexavalent EJSEAT that, without explanation, it has importance of working closely with the chromium. We also included revised not used in this rulemaking. EPA’s Office of Environmental Justice emissions estimates for several plants. Response: The EPA’s ‘‘Interim (OEJ), as well as other offices across the We conducted risk modeling with this Guidance on Considering agency, to develop criteria and specific dataset, and the results were not Environmental Justice During the guidance on how to interpret and apply significantly different from the Development of an Action,’’ encourages the outcome of our analyses in the assessment conducted for the rule writers and policy makers to look rulemaking process. While the EJSEAT supplemental proposal. The MIR, HI, at the whole range of relevant factors and OTIS database are general tools that and incidence estimates for all source that impact communities and can be used in considering categories were essentially unchanged, population groups when crafting rules. environmental justice issues, the and the population risk differences were

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not significantly different. For example, After receiving comment on the any scientific proof or supporting data. for the hard chromium electroplating supplemental proposal, EPA contacted The commenter believes that EPA source category, the number of people several facilities in Minnesota that have ignored the fact that fume suppressants estimated to be at cancer risk greater switched from a PFOS-based fume can perform differently in decorative than or equal to 1-in-1 million is suppressant to a non-PFOS-based fume chromium and chromium anodizing 120,000 based on the new dataset, and suppressant and asked for information plating baths. The commenter explained 130,000 in the previous assessment. on the price differences between the two that the data that EPA references to Because of the very small differences in products. Three facilities contacted support its claim that fume suppressants risk results based on this modeling, we agreed that the price of non-PFOS was effectively reduce emissions to meet the decided that the data do not warrant slightly higher, but were not aware of proposed limits is flawed and provides revising the overall risk assessment we how much higher, while three other no scientific evidence that fume conducted for the supplemental facilities stated they did not consider suppressants can be used to achieve the proposed rule. Regardless, the data do the products to have a significant proposed emissions limits. The not change the decisions set forth in the difference in price. Additionally, EPA commenter added that EPA cannot supplemental proposal. asked facilities about any changes in claim, in the absence of any credible fume suppressant consumption that 5. Costs and Economic Impacts of data in the record, that non-PFOS fume may have occurred after switching to a Proposed Limits suppressants can reduce emissions as non-PFOS fume suppressant. One effectively as PFOS fume suppressants. Comment: One commenter believes facility stated that they consume less Due to the challenges facing chromium that EPA has under-estimated the costs fume suppressant after switching to a electroplating and anodizing operations associated with using non-PFOS fume non-PFOS fume suppressant and in using the new technology to meet the suppressants and questions whether therefore overall costs were similar or current surface tension levels and the EPA evaluated comparable products perhaps have decreased since switching lack of any data in the record to when coming up with costs for fume to the non-PFOS suppressant. All other demonstrate that non-PFOS fume suppressants. The commenter noted that facilities stated they did not notice any suppressants can consistently achieve fume suppressants are available in a difference in effectiveness, the proposed surface tension levels, the number of different formulations that consumption, or required maintenance commenter recommended EPA forego contain non-PFOS and PFOS in various of the non-PFOS fume suppressant (see the proposed revisions to the surface concentrations. The commenter stated Information on non-PFOS Fume tension levels. The commenter also that EPA has not included all of the Suppressants in Minnesota Chromium suggested that the burdens of the additional costs associated with the use Electroplating Facilities memorandum, proposed changes clearly outweigh any of non-PFOS fume suppressants, such as which is available in the docket for this perceived benefits. The commenter the differences in the frequency that action). While the commenters raise believes PFOS is a very effective fume suppressants need to be added to general concerns about potential higher suppressant because of its persistent plating baths, and the increased surface costs, they did not provide any specific and bio-accumulative nature and tension monitoring and maintenance details about why costs would be higher acknowledged that PFOS and other associated with use of non-PFOS fume for any specific facility or group of long-chain perfluorinated compounds suppressants. The commenter further facilities. Based on the best information (PFCs) are being phased out by EPA and explained that several facilities have available to us, we believe that the price reported that costs for converting to by other regulatory agencies globally and cost methodology we are relying on because of the environmental impacts non-PFOS fume suppressant may be for this rule provide reasonable more than 30 percent higher than using that may result from the use of PFOS. estimates of the costs associated with The commenter, however, feels that the PFOS fume suppressants. The using non-PFOS fume suppressants. commenter stated that one facility biggest challenge in meeting the revised estimated that its annual costs for fume 6. Non-PFOS Fume Suppressants surface tension levels stems from the suppressants would increase by Comment: Two commenters stated phase-out of PFOS. The commenter approximately $100,000 with the switch that EPA has not demonstrated that the stated that facilities that have switched to non-PFOS fume suppressants. proposed surface tension limits can be to non-PFOS fume suppressants have Response: To support the met using non-PFOS fume suppressants. achieved moderate success in meeting supplemental proposal, EPA contacted One commenter pointed out that the the current surface tension levels, but several fume suppressant vendors in data used by EPA to support the many challenges and problems persist. order to calculate the costs of both PFOS proposed surface tension limits are The commenter believes the switch to and non-PFOS based fume based on chromium electroplating tanks non-PFOS fume suppressants suppressants. After reviewing the controlled with WAFS that contain diminishes a facility’s margin of information from vendors, we PFOS. The commenter recognized that compliance in meeting the current concluded costs for the non-FOS EPA proposed a 3-year compliance date surface tension levels. The commenter suppressants would be similar to the for the limit on the use of WAFS goes on to say that where non-PFOS has costs for PFOS suppressants or slightly containing PFOS. The commenter shown promise in lowering surface higher. To be conservative (more likely believes that EPA has not demonstrated tension levels, it requires more frequent to overestimate rather than that the proposed surface tension limits additions, more frequent monitoring, underestimate the costs), we estimated can be met using non-PFOS WAFS. and more labor to maintain surface that the cost of non-PFOS fume One commenter stated that EPA has tension levels compared to the use of suppressants was 15% higher than that provided no data in the record that PFOS fume suppressants. of PFOS fume suppressants (see shows non-PFOS fume suppressants can Response: Fume suppressants are Procedures for Determining Control achieve the proposed new surface used to lower the surface tension of Costs and Cost Effectiveness for tension levels and that EPA merely electroplating baths, which in turn, Chromium Electroplating Supplemental assumes non-PFOS fume suppressants reduces the size of gas bubbles Proposal memorandum, which is are equivalent in performance to PFOS generated during electrolysis. These available in the docket for this action). fume suppressants without presenting smaller bubbles travel more slowly

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through the solution and have less emissions just as effectively as the PFOS docket nor the docket for the energy when they arrive at the for about the same costs.8 supplemental proposal included the solution’s surface. The lower surface In a separate meeting, the EPA reference materials needed to tension also reduces the energy with discussed the effectiveness of non-PFOS substantiate EPA’s conclusions on the which the resulting droplets are ejected fume suppressants with a major availability and feasibility of using non- into the air. Together, both of these distributer of both PFOS and non-PFOS PFOS fume suppressants to meet the effects can reduce the emission of fume suppressant. The distributor proposed surface tension or emission droplets, which in turn reduces the discussed issues that arise when using limits. The commenter is also concerned amount of chromium emitted by the any type of fume suppressant and stated with the lack of information on how tank. It is our understanding that this that, worldwide, they have experienced these alternate materials may affect the relationship between surface tension issues with the switch to non-PFOS parts being plated and noted that the and chromium emissions is dependent based fume suppressants with only a procedures followed for their aircraft primarily on the surface tension of the couple of companies. The distributor maintenance are very tightly controlled tank and not on the product used to was confident that their non-PFOS with extensive testing done prior to reduce surface tension. based products could reach the implementation of any new procedures. proposed limits and noted that the The commenter stated that until We acknowledge that there may be phase-out of PFOS fume suppressants in adequate testing is completed, which differences in the performance of non- Europe and Japan occurred seamlessly can take longer than the proposed three PFOS based fume suppressants in (See Summary of EPA Meeting with year timetable for the PFOS phase-out, different types of chromium Atotech March 1, 2012, in the docket for they will be unable to change to an electroplating tanks, but this is also true this rulemaking). alternate fume suppressant. The of PFOS based fume suppressants. The EPA also contacted several facilities commenter recommended additional performance of any type of fume in Minnesota that have switched from a study of the available alternatives for suppressant can depend on the PFOS-based fume suppressant to a non- aeronautics plating and a process by characteristics of the chemical and tank PFOS fume suppressant and asked them which industry may petition for (i.e., temperature, contaminants present, to describe any changes in the additional time to complete the etc.), but EPA has found no evidence effectiveness or consumption of the transition to non-PFOS fume that supports the idea that non-PFOS fume suppressant. All facilities stated suppressants. based fume suppressants are unable to that the non-PFOS based fume Response: EPA has included several reach the surface tension limits being suppressant was equally effective as the documents on the performance of non- finalized in this rulemaking. EPA PFOS-based fume suppressant, with one PFOS based fume suppressants in the contacted several fume suppressant facility noting the non-PFOS based fume docket to this rule-making (see previous vendors to request information on non- suppressant performed more effectively. responses). EPA agrees that some PFOS fume suppressants. The vendors In terms of consumption, all facilities electroplaters of highly specialized who responded were confident that stated they have not noticed any products may need to perform their non-PFOS fume suppressants increase in fume suppressant additional testing in order to integrate could reach the proposed surface consumption since the switch, with one the use of non-PFOS fume suppressants tension limits (see Information on Non- facility stating they consume less fume and that this testing may require a PFOS Fume Suppressants for Chromium suppressant per operating hour since longer time commitment compared to Electroplating Supplemental Proposal switching to the non-PFOS fume other products. Nevertheless, we believe memorandum). It has been reported that suppressant. The facilities that that this testing can be accomplished by there are now suitable, successful and responded also reported no issues with the compliance date, which is 3 years well proven non-PFOS fume maintaining surface tension levels after the date of publication of this suppressants for hard and decorative consistent with the limits we are Federal Register notice. Additionally, chromium electroplating, and that the establishing in the final rule, with one the Clean Air Act allows facilities to surface tension can be reduced to as low facility stating that since the switch they apply for an extra year if needed for as 20 dynes/cm in baths, but are have seen less surface tension compliance. Therefore, facilities could commonly maintained at about 30 fluctuations in their tank. The responses have up to 4 years to comply, which dynes/cm. At this level, consumption of of Minnesota facilities are summarized should be adequate time to resolve any the suppressant is minimized and in the Information on Non-PFOS Fume remaining issues associated with the Suppressant Use at Minnesota emissions are controlled (Barlowe, G. switch to non-PFOS suppressants. Chromium Electroplating Facilities and Patton, N., 2011). For example, memorandum located in the docket of B. Comments and Responses Associated surface tension data from one decorative this rulemaking. Also industry With the Steel Pickling Source Category chromium electroplating plant in representatives submitted comments Comment: One commenter opposed Minnesota that has been using non- supporting the PFOS phase-out. the proposed removal of the source- PFOS fume suppressant for years show Comment: One commenter stated that specific alternative concentration they had an average surface tension of the phase-out of PFOS is being proposed standard for chlorine (Cl2) at HCl acid 28.7 dynes/cm over the first 6 months without adequate study of the non- regeneration facilities. The commenter of 2012, and their highest reading was PFOS materials ability to perform as stated that the current regulation was 32.4 dynes/cm. They had several well as PFOS and meet the proposed specifically written to allow for the readings below 23 dynes/cm, and some lower emission limits (as measured by production of iron oxide of acceptable values were as low as 18.5 dynes/cm. surface tension). The commenter quality, and that removing the These data indicate that 33 dynes/cm is indicated that neither the 2010 proposal ‘‘alternative concentration standard’’ quite feasible, especially for decorative may have the unintended consequence chromium electroplating sources. 8 Danish, EPA. 2011. Substitution of PFOS for use of reducing the quality of the iron oxide Furthermore, a study by the Danish EPA in non-decorative hard chrome plating. Pia Brunn produced and negatively impact the (Danish EPA, 2011) found that the non- Poulsen, Lars K. Gram and Allan Astrup Jensen. Danish Environmental Protection Agency. marketability of the material. The PFOS fume suppressant reduced Environmental Project No. 1371 2011. commenter noted that there are a

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number of operational variables, operational parameters, our review and Cl2 ‘‘so long as there was also the option including temperature and excess air, analysis of available information to set alternative source-specific limits that must be manipulated to produce indicate that the emission limit for in order to ensure that facilities could product to particular specifications. The chlorine can be met using available actually produce marketable products.’’ commenter stated, ‘‘HCl regeneration control technologies such as alkaline We drew no such linkage in that plants have had to regularly modify and scrubbers. rulemaking. We agree with the adapt operational parameters such as Comment: One commenter noted that commenter that we have not identified burner temperatures and nozzle types while EPA asserts that the source- any new technology to provide further and pressures in order to meet the specific alternative concentration control of chlorine emissions. However, changing product specifications of the provision does not meet the we are not basing this revision on marketplace. The current regulation requirements in section 112(d)(2) and section the 112(d)(6) review of accounts for such variability by (3) of the CAA because MACT standards developments in processes and control allowing for the setting of ‘alternative for existing sources cannot be less technologies. Rather, we are making this concentration standards’ due to the stringent than the average emissions correction under CAA sections 112(d)(2) impact that such operational limitation achieved by the best & (3) because we believe that the adjustments may have on Cl2 emissions. performing 12 percent of existing alternative compliance option was The existing regulation demonstrates sources in the category or subcategory improperly promulgated at the time we EPA’s intent to allow HCl regeneration (or the best-performing five sources for promulgated the initial MACT standard. plants the ability to produce marketable categories or subcategories with fewer Although not relevant to the decision products in changing markets and than 30 sources), EPA previously that a less stringent alternative changing operational conditions. The promulgated a regulation which allowed compliance is not appropriate under proposed revision would undermine an alternative concentration standard. section 112(d)(2) & (3), we note that the that intent and remove the operational The commenter also stated that the CAA commenter has not claimed that it flexibility that is necessary for HCl allows EPA the regulatory flexibility to cannot meet the MACT standard regeneration facilities to adapt to set source-specific concentration through the use of alkaline scrubbers. changing markets.’’ standards for particular pollutants. The final rule based the standard for The commenter also noted that chlorine emission control on the use of Response: We agree with the despite recently concluding that no new single stage water scrubbing and the commenter to the extent the commenter technology has been developed since limit of 6 parts per million by volume suggests that the basis for the alternative the promulgation of the current (ppmv) is based on test data from compliance standard in the original regulation, and despite no new facilities using that technology. MACT was for the purpose of allowing interpretation of the data supporting the However, if a facility cannot meet the sources to ‘‘produce iron oxide of promulgation of the current regulation, limit using water scrubbing, they still acceptable quality.’’ However, section EPA has proposed to remove the have the option of using an alkaline 112(d)(2) provides that EPA must ‘‘alternative concentration standard’’ scrubber to achieve compliance. The establish a standard that ensures the provision. The commenter claims such EPA stated in 62 FR 49063, ‘‘Wet maximum reductions of air pollutants a deletion is not merited by the facts nor scrubbing systems that do not use subject to section 112, taking into required by the Clean Air Act, and that alkaline solution as the collection consideration several factors. For the current rule is lawful. The medium do not effectively control Cl2 existing sources that standard may not commenter also noted that the existing emissions.’’ be less than the average emission limit NESHAP provides an ample margin of Comment: One commenter stated that, achieved by the best performing 12 safety to protect public health and ‘‘EPA must look to the emissions in the percent of existing sources or the prevent an adverse environmental industry to determine the MACT floor at average emission limitation achieved by effect. the time EPA proposes to amend the the best performing five sources for Response: EPA believes that the rule.’’ The commenter also noted that it which EPA could reasonably obtain alternate source specific provision does does not appear that EPA has information where the source category not meet the requirements in section considered any new data in making the contains fewer than 30 sources. This is 112(d)(2) and (3) of the CAA, and the decision to do away with the referred to as the MACT floor. Section CAA does not allow the regulatory ‘‘alternative concentration standards.’’ 112 makes no allowance for establishing flexibility to set source-specific The commenter argued that the MACT a standard less stringent than the floor concentration standards for particular floor is more than the existing standard for sources to which the floor applies. pollutants. We disagree to the extent the of 6 ppmv, and in addition, EPA has the (72 FR 61060). For that reason, we commenter is suggesting that because authority under the CAA to account for believe that we inappropriately EPA previously promulgated the variability in emissions or operational promulgated the alternative compliance alternative, it therefore must be factors in setting such standards, and limit at the time we promulgated the consistent with the CAA. Neither the cites Cement Kiln Recycling Coalition v. initial MACT standard. While it is true proposed nor final MACT rule provided EPA, 255 F.3d 855 (DC Cir. 2001). that the changing operational conditions the legal basis for the alternative and, The commenter would like to know have an effect on Cl2 emissions, EPA since that time, the courts have rejected how EPA proposes to address such believes there are available techniques similar provisions in other standards. facilities’ requests for alternative for controlling Cl2 emissions other than (72 FR 61060). The commenter cites no concentration standards, and how EPA the modification of the operational specific authority for the statement that proposes to regulate any facilities with parameters mentioned by the the CAA allows EPA to set source- alternative concentration standards. commenter. EPA believes that both a specific concentration standards for Response: During the development of marketable product can be produced particular pollutants. the original rule, EPA calculated the and the Cl2 emission limit can be met. We also disagree with the commenters MACT floor for existing sources to be 6 If a facility is unable to meet the Cl2 statement that in the original MACT ppmv and EPA does not believe the emission limit and produce a rulemaking we concluded that we could MACT floor would currently be any marketable product by adjusting their set a numerical emission standard for higher. In this rulemaking, we are not

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amending the MACT standard nor re- ‘‘new technology’’ but rather that they lbs/yr. For large hard chromium assessing the MACT floor. Rather, we convert at least one of their existing electroplating, the amendments will are removing the provision in the water scrubbers to an alkaline scrubber. reduce chromium compound emissions regulation allowing sources to seek a The cost range presented in the by about 148 lbs/yr from 454 lbs/yr less stringent emission limit than the proposed rule represents the estimated down to 306 pounds. For small hard floor limit. Thus, we do not agree that capital cost to upgrade a scrubber from chromium electroplating, the we need to recalculate the MACT floor. using water to using an alkaline amendments will reduce chromium However, we note that the commenter solution, if necessary to meet the compound emissions by an estimated 33 did not provide, and we are not aware emission limit. Based on available lbs/yr from 223 lbs/yr to 190 lbs/yr. For of, any information that would indicate information, EPA believes sources can decorative chromium electroplating, the that a MACT floor determined 10 years achieve the MACT standard with amendments will reduce chromium after the original MACT was readily available control technologies compound emissions by an estimated 35 promulgated would be less stringent, (e.g., alkaline scrubbers) at reasonable lbs/yr from 222 lbs/yr down to 187 lbs/ particularly in light of the fact that 3 out cost and still produce a marketable yr. For chromium anodizing, the of the 5 sources subject to the MACT product. amendments will reduce chromium standard have never indicated that there V. Summary of Cost, Environmental compound emissions by an estimated 8 are compliance issues with that and Economic Impacts lbs/yr from 57 lbs/yr down to 49 lbs/yr. standard. The elimination of the The amendments will have negligible alternative standard from the rule means A. What are the affected sources? impacts on secondary emissions the rule will no longer allow facilities to 1. Chromium Electroplating and because the additional control request alternative concentration Chromium Anodizing equipment that would be required will standards. not significantly impact energy use by Comment: One commenter stated that For the amendments to the Chromium the affected facilities. EPA’s conclusion that the proposed Electroplating NESHAP, the affected removal of the ‘‘alternative sources are each hard chromium 2. Steel Pickling electroplating tank, each decorative concentration standard’’ provision will We estimate that the amendment to chromium electroplating tank, and each have a capital cost in the range of remove the alternative compliance chromium anodizing tank located at a $100,000 to $200,000, cannot be provision for hydrochloric acid facility that performs hard chromium supported by fact. The commenter also regeneration facilities will reduce electroplating, decorative chromium noted that in its description of the emissions of chlorine by 15 tpy. proposed revision, EPA states that there electroplating, or chromium anodizing. C. What are the cost impacts? is no control technology available that is 2. Steel Pickling more effective in removing Cl2 than For the amendments to the Steel 1. Chromium Electroplating and existing technology already used by HCl Chromium Anodizing regeneration facilities. The commenter Pickling NESHAP, the affected sources stated that EPA’s two statements are are steel pickling and hydrochloric acid We estimate that these amendments irreconcilable; how can a facility spend regeneration plants that are major will achieve 224 pounds reductions in $100,000 to $200,000 to upgrade control sources of HAP. hexavalent chromium emissions, and equipment with new technology that B. What are the emission reductions? that the total capital and total does not exist? The commenter would annualized cost for these amendments is like to know what EPA proposes 1. Chromium Electroplating and $8.2 million and $2.4 million, existing facilities do that already have Chromium Anodizing respectively. The overall cost state of the art control technology. Overall, the amendments to the effectiveness is $10,600 per pound of Response: As noted in previous Chromium Electroplating NESHAP will hexavalent chromium emissions responses, alkaline scrubbers constitute reduce nationwide emissions of reductions. A summary of the estimated an existing technology that is effective chromium compounds by an estimated costs and reductions of hexavalent at controlling Cl2 emissions. We are not 224 pounds per year (lbs/yr) from the chromium emissions are shown in Table suggesting that facilities upgrade to current levels of 956 lbs/yr down to 732 8.

TABLE 8—SUMMARY OF COST IMPACTS FOR CHROMIUM ELECTROPLATING AND ANODIZING ASSOCIATED WITH SURFACE TENSION AND EMISSION LIMIT REQUIREMENTS

Capital costs Annualized costs Number of (controls + (controls + Emissions Cost Source category or subcategory affected plants WAFS + all WAFS + all reductions effectiveness testing) testing), $/yr (lbs/yr) (per lb)

Large Hard Chromium Electroplating .... 57 $6,377,000 $1,686,000 148 $11,400 Small Hard Chromium Electroplating .... 91 1,424,000 476,000 33 14,600 Decorative Chromium Electroplating ..... 313 163,000 166,000 35 4,800 Chromic Acid Anodizing ...... 74 235,000 51,000 8 6,600

Total ...... 535 8,200,000 2,380,000 224 10,600

Additionally, the total estimated capital amendments is $934,000 and $228,000, 2. Steel Pickling and annualized cost for the respectively. housekeeping requirements of these For HCl acid regeneration plants, we estimate that the total capital cost for the amendments is between $100,000

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and $200,000, depending on whether category. For these categories, because in response to OMB recommendations the existing equipment can be upgraded the average sales receipts used for the have been documented in the docket for or will need to be replaced. The analysis may understate sales for some this action. annualized costs are estimated to be facilities and because these facilities are B. Paperwork Reduction Act between $11,419 and $22,837 per year. likely to be able to pass cost increases The estimated cost effectiveness is $761 through to their customers, we do not This action does not impose any new to $1,522 per ton of HAP (mainly anticipate the final rule to result in firm information collection requirements chlorine). closures, significant price increases, or related to the Steel Pickling—HCl Process Facilities and Hydrochloric D. What are the economic impacts? substantial profit loss. We conclude that this final rule will not have a significant Acid Regeneration Plants MACT 1. Chromium Electroplating and economic impact on a substantial standards. However, the OMB has Chromium Anodizing number of small entities. More previously approved the information collection requirements contained in the EPA performed a screening analysis information and details of this analysis existing regulations 40 CFR part 63, for impacts on affected small entities by are provided in the technical document subpart CCC under the provisions of the comparing compliance costs to average ‘‘Economic Impact Analysis for Risk and Paperwork Reduction Act, 44 U.S.C. sales revenues by employment size Technology Review: Chromium 3501, et seq and assigned OMB Control category.9 This is known as the cost-to- Electroplating and Chromium Anodizing Source Categories,’’ which is Number 2060–0419. revenue or cost-to-sales ratio, or the The information collection ‘‘sales test.’’ The ‘‘sales test’’ is the available in the docket for this final rule. requirements in this rule for the Hard impact methodology EPA primarily and Decorative Chromium employs in analyzing small entity 2. Steel Pickling Electroplating and Chromium impacts as opposed to a ‘‘profits test,’’ Because only one of the Anodizing Tanks NESHAP have been in which annualized compliance costs submitted for approval to OMB under are calculated as a share of profits. The approximately 100 facilities incurs any cost for controls and that cost is the Paperwork Reduction Act, 44 U.S.C. sales test is frequently used because 3501, et seq. The Information Collection revenues or sales data are commonly estimated to be less than 1 percent of sales, no significant price or Request (ICR) document prepared was available for entities impacted by EPA assigned EPA ICR number 1611.10. regulations, and profits data normally productivity impacts are anticipated due to these amendments. Burden changes associated with these made available are often not the true amendments would result from the profit earned by firms because of E. What are the benefits? emission testing requirements and accounting and tax considerations. The compliance demonstrations being use of a ‘‘sales test’’ for estimating small 1. Chromium Electroplating and promulgated with today’s action. The business impacts for a rulemaking is Chromium Anodizing estimated average burden per response consistent with guidance offered by EPA The estimated reductions in is 9 hours; the frequency of response is on compliance with SBREFA 10 and is chromium emissions that will be one-time for all respondents that must consistent with guidance published by achieved by this rule will provide comply with the rule’s reporting the U.S. SBA’s Office of Advocacy that benefits to public health. The limits will requirements and the estimated average suggests that cost as a percentage of total result in significant reductions in the number of likely respondents per year is revenues is a metric for evaluating cost actual and allowable emissions of 485. The cost burden to respondents increases on small entities in relation to hexavalent chromium therefore will resulting from the collection of increases on large entities (U.S. SBA, reduce the actual and potential cancer 2010).11 information includes the total capital risks due to emissions of chromium cost annualized over the equipment’s Based on the analysis, we estimate from this source category. that approximately 97 percent of all expected useful life ($100,958), a total affected facilities have a cost-to-sales 2. Steel Pickling operation and maintenance component ratio of less than 1 percent. In addition, The estimated reductions in chlorine ($0 per year), and a labor cost for approximately 1 percent of all emissions that will result from this component (about $152,116 per year). affected facilities, or 9 facilities with action will provide benefits to public Burden is defined at 5 CFR 1320.3(b). An agency may not conduct or fewer than 20 employees, the potential health. The limits will result in sponsor, and a person is not required to for cost-to-sales impacts may be reductions in the potential for respond to a collection of information between 3 and 9 percent. All of these noncancer health effects due to unless it displays a currently valid OMB facilities are in the hard chromium emissions of these HAP. electroplating category, with 3 of the control number. The OMB control facilities in the small hard chromium VI. Statutory and Executive Order numbers for EPA’s regulations in 40 electroplating category and 6 in the Reviews CFR are listed in 40 CFR part 9. When this ICR is approved by OMB, the large hard chromium electroplating A. Executive Order 12866: Regulatory Agency will publish a technical Planning and Review and Executive 9 amendment to 40 CFR part 9 in the http://www.census.gov/econ/susb/data/ Order 13563: Improving Regulation and susb2002.html. Federal Register to display the OMB Regulatory Review 10 The SBREFA compliance guidance to EPA control number for the approved rulewriters regarding the types of small business Under Executive Order 12866 (58 FR information collection requirements analysis that should be considered can be found at: 51735, October 4, 1993), this action is a http://www.epa.gov/sbrefa/documents/Guidance- contained in this final rule. significant regulatory action because it RegFlexAct.pdf. See Table 2 on page 36 for C. Regulatory Flexibility Act guidance on interpretations of the magnitude of the raises novel legal and policy issues. cost-to-sales numbers. Accordingly, EPA submitted this action The Regulatory Flexibility Act (RFA) 11 U.S. SBA, Office of Advocacy. A Guide for to the Office of Management and Budget generally requires an agency to prepare Government Agencies, How to Comply with the Regulatory Flexibility Act, Implementing the (OMB) for review under Executive a regulatory flexibility analysis of any President’s Small Business Agenda and Executive Orders 12866 and 13563 (76 FR 3821, rule subject to notice and comment Order 13272, June 2010. January 21, 2011) and any changes made rulemaking requirements under the

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Administrative Procedure Act or any estimates of costs-to-sales ratios in the F. Executive Order 13175: Consultation other statute unless the agency certifies initial analyses are more likely to be and Coordination With Indian Tribal that the rule will not have a significant overstated rather than understated Governments economic impact on a substantial because the additional analyses indicate This rule will not have tribal number of small entities. Small entities that sales are typically higher for these implications, as specified in Executive include small businesses, small sources than the average value used in Order 13175 (65 FR 67249, November 9, organizations, and small governmental the initial analysis. 2000). It will not have substantial direct jurisdictions. effect on tribal governments, on the For purposes of assessing the impacts Moreover, because of the nature of the market, these facilities are likely to be relationship between the Federal of today’s rule on small entities, small government and Indian tribes, or on the entity is defined as: (1) A small business able to pass cost increases through to their customers. As such, we do not distribution of power and that is a small industrial entity as responsibilities between the Federal defined by the Small Business anticipate the rule to result in firm closures, or substantial profit loss. More government and Indian tribes, as Administration’s (SBA) regulations at 13 specified in Executive Order 13175. CFR 121.201; (2) a small governmental information and details of this analysis are provided in the technical document Thus, Executive Order 13175 does not jurisdiction that is a government of a apply to this action. city, county, town, school district or ‘‘Economic Impact Analysis for Risk and special district with a population of less Technology Review: Chromium G. Executive Order 13045: Protection of than 50,000; and (3) a small Electroplating,’’ which is available in Children From Environmental Health organization that is any not-for-profit the docket for this final rule. Risks and Safety Risks enterprise which is independently Although this rule will not have a This rule is not subject to Executive owned and operated and is not significant economic impact on a Order 13045 (62 FR 19885, April 23, dominant in its field. substantial number of small entities, 1997) because it is not economically After considering the economic EPA nonetheless has tried to reduce the significant as defined in Executive impact of this final rule on small impact of this rule on small entities. Order 12866. However, some of the entities, I certify that this action will not pollutants addressed by this action may have a significant economic impact on D. Unfunded Mandates Reform Act present a disproportionate risk to a substantial number of small entities. children.12 The phase-out of PFOS fume This rule imposes more stringent This rule does not contain a Federal mandate under the provisions of Title II suppressants will help to reduce a emissions limits and lower surface disproportionate risk to children. This tension requirements. These new of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531–1538 for action will not relax the control requirements and restrictions to the measures on existing regulated sources hard and decorative chromium state, local, or tribal governments or the private sector. The rule will not result and will result in reductions in cancer electroplating and chromium anodizing risks due to chromium emissions for in expenditures of $100 million or more tanks MACT standard will impact small people of all ages, including children. for State, local, and tribal governments, entities, but those impacts have been The EPA’s risk assessments (included in in aggregate, or the private sector in any estimated to be nominal. The emissions the docket for this rule) demonstrate 1 year. The rule imposes no enforceable limits reflect the level of performance that these regulations, with the duties on any State, local, or tribal currently being achieved by most amendments being promulgated in facilities, and many facilities currently governments or the private sector. Thus, today’s action, will be health protective. have emissions that are far below the this rule is not subject to the limits. With regard to the remaining requirements of sections 202 or 205 of H. Executive Order 13211: Actions facilities (those that will need to achieve the UMRA. Concerning Regulations That Significantly Affect Energy Supply, emissions reductions), most of these This rule is also not subject to the Distribution, or Use facilities can achieve the limits at low requirements of section 203 of UMRA costs (e.g., by using additional fume because it contains no regulatory This action is not a ‘‘significant suppressants). requirements that might significantly or energy action’’ as defined under The EPA’s analysis estimated that 97 uniquely affect small governments. This Executive Order 13211, (66 FR 28355 percent of the affected entities will have action contains no requirements that (May 22, 2001)), because it is not likely an annualized cost of less than 1 percent apply to such governments nor does it to have significant adverse effect on the of sales. In addition, approximately 1 impose obligations upon them. supply, distribution, or use of energy. percent of affected entities, or 9 This action will not create any new facilities with fewer than 20 employees, E. Executive Order 13132: Federalism requirements for sources in the energy may have cost-to-sales ratios between 3 supply, distribution, or use sectors. to 9 percent. All of these facilities are in This rule does not have federalism the hard chromium electroplating implications. It will not have substantial I. National Technology Transfer and category, with 3 of the facilities in the direct effects on the States, on the Advancement Act small hard chromium electroplating relationship between the national Section 12(d) of the National category and 6 in the large hard government and the States, or on the Technology Transfer and Advancement chromium electroplating category. distribution of power and Act of 1995 (NTTAA), Public Law No. Since our analysis indicates that a responsibilities among the various 104–113, 12(d) (15 U.S.C. 272 note) small subset of facilities (about 1 levels of government, as specified in directs EPA to use voluntary consensus percent) may have cost-to-sales ratios Executive Order 13132. None of the standards (VCS) in its regulatory greater than 3 percent, we have facilities subject to this action are conducted additional economic impact owned or operated by State 12 The EPA has not yet determined whether analyses on this small subset of facilities governments and do not impose hexavalent chromium poses disproportionate risks significant economic costs on state or to children by acting as a mutagenic carcinogen. to better understand the potential The EPA is currently developing an IRIS assessment economic impacts for these facilities. local governments. Thus, Executive of hexavalent chromium which likely will address The additional analyses indicate the Order 13132 does not apply to this rule. that issue.

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activities unless to do so would be adverse human health or environmental Comptroller General of the United inconsistent with applicable law or effects on minority or low-income States prior to publication of the final otherwise impractical. VCS are populations because it maintains or rule in the Federal Register. A major technical standards (e.g., materials increases the level of environmental rule cannot take effect until 60 days specifications, test methods, sampling protection for all affected populations after it is published in the Federal procedures, and business practices) that without having any disproportionately Register. This action is not a ‘‘major are developed or adopted by VCS high and adverse human health or rule’’ as defined by 5 U.S.C. 804(2). The bodies. The NTTAA directs EPA to environmental effects on any final rules will be effective on provide Congress, through OMB, population, including any minority low- September 19, 2012. explanations when the Agency decides income, or indigenous populations. not to use available and applicable VCS. Further, after implementation of the List of Subjects in 40 CFR Part 63 This rulemaking does not involve provisions of this rule, the public health Environmental protection, Air technical standards. Therefore, EPA is of all demographic groups will be pollution control, Reporting and not considering the use of any VCS. protected with an ample margin of recordkeeping requirements, Volatile organic compounds. J. Executive Order 12898: Federal safety. The development of demographic Actions To Address Environmental Dated: August 15, 2012. analyses to inform the consideration of Justice in Minority Populations and Lisa P. Jackson, environmental justice issues in EPA Low-Income Populations rulemakings is an evolving process. The Administrator. Executive Order 12898 (59 FR 7629, EPA offers the demographic analyses in For the reasons stated in the February 16, 1994) establishes federal this rulemaking as examples of how preamble, part 63 of title 40, chapter I, executive policy on environmental such analyses might be developed to of the Code of Federal Regulations is justice. Its main provision directs inform such consideration, with the amended as follows: Federal agencies, to the greatest extent hope that this will support the PART 63—NATIONAL EMISSION practicable and permitted by law, to refinement and improve utility of such make environmental justice part of their STANDARDS FOR HAZARDOUS AIR analyses for future rulemakings. POLLUTANTS FOR SOURCE mission by identifying and addressing, Our analysis of the demographics of CATEGORIES as appropriate, disproportionately high the population with estimated risks and adverse human health or greater than 1-in-1 million indicates ■ 1. The authority citation for part 63 environmental effects of their programs, potential disparities in risks between continues to read as follows: policies, and activities on minority demographic groups, including the populations and low-income African American, Other and Authority: 42 U.S.C. 7401, et seq. populations in the United States. Multiracial, Hispanic, Below the ■ 2. Amend § 63.341 by: To examine the potential for any Poverty Level, and the Over 25 without ■ a. Adding, in alphabetical order, in environmental justice issues that might a High School Diploma groups. These paragraph (a), definitions for be associated with two of the source groups stand to benefit the most from ‘‘affirmative defense,’’ ‘‘contains categories associated with today’s rule the emission reductions achieved by hexavalent chromium,’’ ‘‘existing (Hard Chromium Electroplaters and this rulemaking. affected source,’’ ‘‘new affected source,’’ Decorative Chromium Electroplaters), EPA defines ‘‘Environmental Justice’’ and ‘‘perfluorooctane sulfonic acid we evaluated the percentages of various to include meaningful involvement of (PFOS)-based fume suppressant’’; social, demographic, and economic all people regardless of race, color, ■ b. Revising in paragraph (a) the groups within the at-risk populations national origin, or income with respect definition for ‘‘wetting agent’’; and living near the facilities where these to the development, implementation, ■ c. Revising paragraph (b)(10). source categories are located and and enforcement of environmental laws, The added and revised text reads as compared them to national averages. We regulations, and polices. To promote follows: did not conduct this type of analysis for meaningful involvement, after the rule § 63.341 Definitions and nomenclature. the chromic acid anodizing or steel was proposed, EPA conducted a pickling categories because the numbers webinar to inform the public about the (a) * * * Affirmative defense means, in the of people for whom cancer risks were rule and to outline how to submit context of an enforcement proceeding, a greater than 1-in-1 million due to HAP written comments to the docket. Further response or a defense put forward by a emissions from these source categories stakeholder and public input occurred defendant, regarding which the were low. through public comment and follow-up defendant has the burden of proof, and The analysis indicated that certain meetings with interested stakeholders. minority groups and low-income the merits of which are independently populations may be disproportionately K. Congressional Review Act and objectively evaluated in a judicial exposed to emissions from these The Congressional Review Act, 5 or administrative proceeding. categories and to any risks that may U.S.C. 801, et seq., as added by the * * * * * result due to these emissions because Small Business Regulatory Enforcement Contains hexavalent chromium the communities most proximate to Fairness Act of 1996, generally provides means, the substance consists of, or facilities within these categories have a that, before a rule may take effect, the contains 0.1 percent or greater by higher proportion of these groups than agency promulgating the rule must weight, chromium trioxide, chromium the national demographic profile. We submit a rule report, which includes a (VI) oxide, chromic acid, or chromic did not, however, identify any copy of the rule, to each House of the anhydride. vulnerability or susceptibility to risks Congress and to the Comptroller General * * * * * particular to minority and low income of the United States. The EPA will Existing affected source means an populations from pollutants emitted submit a report containing this final rule affected hard chromium electroplating from this source category. and other required information to the tank, decorative chromium We determined that this rule will not United States Senate, the United States electroplating tank, or chromium have disproportionately high and House of Representatives, and the anodizing tank, the construction or

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reconstruction of which commenced on to the Administrator which may personal injury, or severe property or before February 8, 2012. include, but is not limited to, damage; and * * * * * monitoring results, review of operation (E) All possible steps were taken to New affected source means an and maintenance procedures, review of minimize the impact of the violation on affected hard chromium electroplating operation and maintenance records, and ambient air quality, the environment, tank, decorative chromium inspection of the source. and human health; and electroplating tank, or chromium (2) Each owner or operator of an (F) All emissions monitoring and anodizing tank, the construction or affected source subject to the provisions control systems were kept in operation reconstruction of which commenced of this subpart shall comply with these if at all possible, consistent with safety after February 8, 2012. requirements in this section on and after and good air pollution control practices; the compliance dates specified in and * * * * * (G) All of the actions in response to Perfluorooctane sulfonic acid (PFOS)- § 63.343(a). All affected sources are regulated by applying maximum the violation were documented by based fume suppressant means a fume properly signed, contemporaneous suppressant that contains 1 percent or achievable control technology. (b) * * * operating logs; and greater PFOS by weight. (H) At all times, the affected sources (1) The emission limitations in this * * * * * were operated in a manner consistent section apply during tank operation as Wetting agent means the type of with good practices for minimizing defined in § 63.341, and during periods commercially available chemical fume emissions; and of startup and shutdown as these are suppressant that materially reduces the (I) A written root cause analysis was routine occurrences for affected sources surface tension of a liquid. prepared, the purpose of which is to (b) * * * subject to this subpart. In response to an determine, correct, and eliminate the action to enforce the standards set forth (10) VRtot = the average total primary causes of the malfunction and ventilation rate for the three test runs as in this subpart, the owner or operator the excess emissions resulting from the determined at the outlet by means of the may assert a defense to a claim for civil malfunction event at issue. The analysis Method 306 or 306A testing specified in penalties for violations of such shall also specify, using the best appendix A of this part in dscm/min. standards that are caused by a monitoring methods and engineering malfunction, as defined in 40 CFR 63.2. ■ judgment, the amount of excess 3. Amend § 63.342 by: Appropriate penalties may be assessed, ■ emissions that were the result of the a. Revising paragraph (a); however, if the owner or operator fails ■ malfunction. b. Revising paragraph (b)(1); to meet the burden of proving all the ■ c. Revising paragraphs (c)(1)(i), (ii) Report. The owner or operator requirements in the affirmative defense. (c)(1)(ii), and (c)(1)(iii); seeking to assert an affirmative defense The affirmative defense shall not be ■ d. Adding paragraphs (c)(1)(iv) and shall submit a written report to the available for claims for injunctive relief. (c)(1)(v); Administrator with all necessary (i) To establish the affirmative defense ■ e. Revising paragraphs (c)(2)(i), supporting documentation, that it has in any action to enforce such a standard, (c)(2)(ii), (c)(2)(iii), and (c)(2)(iv); met the requirements set forth in ■ f. Adding paragraphs (c)(2)(vi), the owner or operator must timely meet paragraph (i) of this section. This (c)(2)(vii), and (c)(2)(viii); the reporting requirements of paragraph affirmative defense report shall be ■ g. Revising paragraphs (d)(1) and (b)(1)(ii) of this section, and must prove included in the first periodic (d)(2); by a preponderance of evidence that: compliance, deviation report or excess ■ h. Adding paragraphs (d)(3) and (A) The violation was caused by a emission report otherwise required after (d)(4); sudden, infrequent, and unavoidable the initial occurrence of the violation of ■ i. Revising paragraph (e)(1); failure of air pollution control the relevant standard (which may be the ■ j. Redesignating paragraphs (e)(2) and equipment, process equipment, or a end of any applicable averaging period). (e)(3) as paragraphs (e)(3) and (e)(4), and process to operate in a normal and usual If such compliance, deviation report or revising the newly designated paragraph manner; and could not have been excess emission report is due less than (e)(4); prevented through careful planning, 45 days after the initial occurrence of ■ k. Adding a new paragraph (e)(2); proper design or better operation and the violation, the affirmation defense ■ l. Adding paragraph (f)(3)(i)(F); and maintenance practices; and did not stem report may be included in the second ■ m. Adding Table 2 to read as follows: from any activity or event that could compliance, deviation report or excess have been foreseen and avoided, or emission report due after the initial § 63.342 Standards. planned for; and was not part of a occurrence of the violation of the (a)(1) At all times, each owner or recurring pattern indicative of relevant standard. operator must operate and maintain any inadequate design, operation, or (c)(1) * * * affected source subject to the maintenance; and (i) Not allowing the concentration of requirements of this subpart, including (B) Repairs were made as total chromium in the exhaust gas associated air pollution control expeditiously as possible when stream discharged to the atmosphere to equipment and monitoring equipment, exceeded violation occurred. Off-shift exceed 0.011 milligrams of total in a manner consistent with safety and and overtime labor were used, to the chromium per dry standard cubic meter good air pollution control practices for extent practicable to make these repairs; (mg/dscm) of ventilation air (4.8 × 10¥6 minimizing emissions. The general duty and grains per dry standard cubic foot (gr/ to minimize emissions does not require (C) The frequency, amount and dscf)) for all open surface hard the owner or operator to make any duration of the violation (including any chromium electroplating tanks that are further efforts to reduce emissions if bypass) were minimized to the existing affected sources and are located levels required by this standard have maximum extent practicable; and at large hard chromium electroplating been achieved. Determination of (D) If the violation resulted from a facilities; or whether such operation and bypass of control equipment or a (ii) Not allowing the concentration of maintenance procedures are being used process, then the bypass was total chromium in the exhaust gas will be based on information available unavoidable to prevent loss of life, stream discharged to the atmosphere to

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exceed 0.015 mg/dscm (6.6 × 10¥6 gr/ measured by a tensiometer at any time dynes/cm (2.3 × 10¥3 lbf/ft), as dscf) for all open surface hard during tank operation; or measured by a tensiometer at any time chromium electroplating tanks that are (iv) Not allowing the mass rate of total during tank operation, for all existing, existing affected sources and are located chromium in the exhaust gas stream new, or reconstructed decorative at small, hard chromium electroplating discharged to the atmosphere to exceed chromium electroplating tanks using a facilities; or the maximum allowable mass emission chromic acid bath and all existing, new, (iii) If a chemical fume suppressant rate determined by using the calculation or reconstructed chromium anodizing containing a wetting agent is used, not procedure in § 63.344(f)(1)(i) for all tanks; or allowing the surface tension of the enclosed hard chromium electroplating (4) After September 21, 2015, the electroplating or anodizing bath tanks that are existing affected sources owner or operator of an affected contained within the affected tank to and are located at large hard chromium decorative chromium electroplating exceed 40 dynes per centimeter (dynes/ electroplating facilities; or tank or an affected chromium anodizing cm) (2.8 × 10¥3 pound-force per foot * * * * * tank shall not add PFOS-based fume (lbf/ft)), as measured by a (vi) Not allowing the concentration of suppressants to any affected decorative stalagmometer, or 33 dynes/cm (2.3 × total chromium in the exhaust gas chromium electroplating tank or 10¥3 lbf/ft), as measured by a stream discharged to the atmosphere to chromium anodizing tank. tensiometer at any time during tank exceed 0.006 mg/dscm of ventilation air (e) * * * operation; or (2.6 × 10¥6 gr/dscf) for all enclosed hard (1) Each owner or operator of an (iv) Not allowing the concentration of chromium electroplating tanks that are existing, new, or reconstructed total chromium in the exhaust gas new affected sources; or decorative chromium electroplating stream discharged to the atmosphere to (vii) Not allowing the mass rate of tank that uses a trivalent chromium bath exceed 0.006 mg/dscm of ventilation air total chromium in the exhaust gas that incorporates a wetting agent as a (2.6 × 10¥6 gr/dscf) for all open surface stream discharged to the atmosphere to bath ingredient is subject to the hard chromium electroplating tanks that exceed the maximum allowable mass recordkeeping and reporting are new affected sources; or emission rate determined by using the requirements of §§ 63.346(b)(14) and (v) After September 21, 2015, the calculation procedure in 63.347(i), but are not subject to the work owner or operator of an affected open § 63.344(f)(1)(iii) if the enclosed hard practice requirements of paragraph (f) of surface hard chromium electroplating chromium electroplating tank is a new this section, or the continuous tank shall not add PFOS-based fume affected source. compliance monitoring requirements in suppressants to any affected open (viii) After September 21, 2015, the § 63.343(c). The wetting agent must be surface hard chromium electroplating owner or operator of an affected an ingredient in the trivalent chromium tank. enclosed hard chromium electroplating bath components purchased as a tank shall not add PFOS-based fume (2) * * * package. suppressants to any affected enclosed (i) Not allowing the concentration of (2) After September 21, 2015, the hard chromium electroplating tank. owner or operator of an affected total chromium in the exhaust gas (d) * * * stream discharged to the atmosphere to decorative chromium electroplating (1) Not allowing the concentration of tank using a trivalent chromium bath exceed 0.011 mg/dscm of ventilation air total chromium in the exhaust gas (4.8 × 10¥6 gr/dscf) for all enclosed hard shall not add PFOS-based fume stream discharged to the atmosphere to suppressants to any affected decorative chromium electroplating tanks that are × ¥6 exceed 0.007 mg/dscm (3.1 10 gr/ chromium electroplating tank. existing affected sources and are located dscf) for all existing decorative at large hard chromium electroplating chromium electroplating tanks using a * * * * * facilities; or chromic acid bath and all existing (4) Each owner or operator of an (ii) Not allowing the concentration of chromium anodizing tanks; or existing, new, or reconstructed total chromium in the exhaust gas (2) Not allowing the concentration of decorative chromium electroplating stream discharged to the atmosphere to total chromium in the exhaust gas tank that had been using a trivalent ¥ exceed 0.015 mg/dscm (6.6 × 10 6 gr/ stream discharged to the atmosphere to chromium bath that incorporated a dscf) for all enclosed hard chromium exceed 0.006 mg/dscm (2.6×10¥6 gr/ wetting agent and ceases using this type electroplating tanks that are existing dscf) for all new or reconstructed of bath must fulfill the reporting affected sources and are located at decorative chromium electroplating requirements of § 63.347(i)(3) and small, hard chromium electroplating tanks using a chromic acid bath and all comply with the applicable emission facilities; or new or reconstructed chromium limitation within the timeframe (iii) If a chemical fume suppressant anodizing tanks; or specified in § 63.343(a)(7). containing a wetting agent is used, not (3) If a chemical fume suppressant (f) * * * allowing the surface tension of the containing a wetting agent is used, not (3) * * * electroplating or anodizing bath allowing the surface tension of the (i) * * * contained within the affected tank to electroplating or anodizing bath (F) The plan shall include exceed 40 dynes/cm (2.8 × 10¥3 lbf/ft), contained within the affected tank to housekeeping procedures, as specified as measured by a stalagmometer, or 33 exceed 40 dynes/cm (2.8 × 10¥3 lbf/ft), in Table 2 of this section. dynes/cm (2.3 × 10¥3 lbf/ft), as as measured by a stalagmometer or 33 * * * * *

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TABLE 2 TO § 63.342—HOUSEKEEPING PRACTICES

For You must: At this minimum frequency

1. Any substance used in an affected chromium (a) Store the substance in a closed container At all times, except when transferring the sub- electroplating or chromium anodizing tank in an enclosed storage area or building; stance to and from the container. that contains hexavalent chromium. AND Whenever transporting substance, except (b) Use a closed container when transporting when transferring the substance to and the substance from the enclosed storage from the container. area. 2. Each affected tank, to minimize spills of bath (a) Install drip trays that collect and return to Prior to operating the tank. solution that result from dragout. Note: this the tank any bath solution that drips or Whenever removing parts from an affected measure does not require the return of con- drains from parts as the parts are removed tank. taminated bath solution to the tank. This re- from the tank; OR Whenever removing parts from an affected quirement applies only as the parts are re- (b) Contain and return to the tank any bath tank. moved from the tank. Once away from the solution that drains or drips from parts as tank area, any spilled solution must be han- the parts are removed from the tank; OR dled in accordance with Item 4 of these (c) Collect and treat in an onsite wastewater housekeeping measures. treatment plant any bath solution that drains or drips from parts as the parts are re- moved from the tank. 3. Each spraying operation for removing excess Install a splash guard to minimize overspray Prior to any such spraying operation. chromic acid from parts removed from, and during spraying operations and to ensure occurring over, an affected tank. that any hexavalent chromium laden liquid captured by the splash guard is returned to the affected chromium electroplating or an- odizing tank. 4. Each operation that involves the handling or Begin clean up, or otherwise contain, all spills Within 1 hour of the spill. use of any substance used in an affected of the substance. Note: substances that fall chromium electroplating or chromium anod- or flow into drip trays, pans, sumps, or izing tank that contains hexavalent chromium. other containment areas are not considered spills. 5. Surfaces within the enclosed storage area, (a) Clean the surfaces using one or more of At least once every 7 days if one or more open floor area, walkways around affected the following methods: HEPA vacuuming; chromium electroplating or chromium anod- tanks contaminated with hexavalent chro- Hand-wiping with a damp cloth; Wet mop- izing tanks were used, or at least after mium from an affected chromium electro- ping; Hose down or rinse with potable water every 40 hours of operating time of one or plating or chromium anodizing tank. that is collected in a wastewater collection more affection chromium electroplating or system; Other cleaning method approved chromium anodizing tank, whichever is by the permitting authority; OR later. (b) Apply a non-toxic chemical dust suppres- According to manufacturer’s recommenda- sant to the surfaces. tions. 6. All buffing, grinding, or polishing operations Separate the operation from any affected Prior to beginning the buffing, grinding, or that are located in the same room as chro- electroplating or anodizing operation by in- polishing operation. mium electroplating or chromium anodizing stalling a physical barrier; the barrier may operations. take the form of plastic strip curtains. 7. All chromium or chromium-containing wastes Store, dispose, recover, or recycle the wastes At all times. generated from housekeeping activities. using practices that do not lead to fugitive dust and in accordance with hazardous waste requirements.

■ 4. Section 63.343 is amended by: (4) The owner or operator of a new section, an owner or operator of an ■ a. Revising paragraphs (a)(1), (a)(2), area source (i.e., an area source for affected source subject to the and (a)(4), and adding paragraph (a)(8); which construction or reconstruction requirements of this subpart is required ■ b. Revising paragraph (b)(1); and was commenced after February 8, 2012, to conduct an initial performance test as ■ c. Revising paragraphs (c) that increases actual or potential required under § 63.7, using the introductory text, (c)(1)(ii), (c)(2)(ii), emissions of hazardous air pollutants procedures and test methods listed in (c)(4)(ii), (c)(5)(i), (c)(5)(ii), and (c)(6)(ii). such that the area source becomes a §§ 63.7 and 63.344. The added and revised text reads as major source must comply with the * * * * * follows: provisions for new major sources, (c) Monitoring to demonstrate § 63.343 Compliance provisions. immediately upon becoming a major source. continuous compliance. The owner or (a)(1) The owner or operator of an operator of an affected source subject to existing affected source shall comply * * * * * the emission limitations of this subpart with the emission limitations in (8) After March 19, 2013, the owner shall conduct monitoring according to § 63.342 no later than September 19, or operator of an affected source that is the type of air pollution control 2014. subject to the standards in paragraphs technique that is used to comply with (2) The owner or operator of a new or § 63.342(c) or (d) shall implement the the emission limitation. The monitoring reconstructed affected source that has housekeeping procedures specified in required to demonstrate continuous an initial startup after September 19, Table 2 of § 63.342. compliance with the emission 2012, shall comply immediately upon (b) Methods to demonstrate initial limitations is identified in this section startup of the source. compliance. (1) Except as provided in for the air pollution control techniques * * * * * paragraphs (b)(2) and (b)(3) of this expected to be used by the owners or

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operators of affected sources. As an performance test, or shall be operated (c)(6)(i) of this section, shall constitute alternative to the daily monitoring, the within the range of compliant values for noncompliance with the standards. The owner or operator of an affected source pressure drop established during foam blanket thickness shall be may install a continuous pressure multiple performance tests. measured according to the following monitoring system. * * * * * schedule: * * * * * (5) Wetting agent-type or combination * * * * * (c) * * * wetting agent-type/foam blanket fume ■ 5. Section 63.344 is amended by: (1) * * * suppressants. (i) During the initial ■ a. Revising paragraph (a) introductory (ii) On and after the date on which the performance test, the owner or operator text; initial performance test is required to be of an affected source complying with ■ b. Removing ‘‘and’’ from the end of completed under § 63.7, the owner or the emission limitations in § 63.342 paragraph (b)(1)(iii); operator of an affected source, or group through the use of a wetting agent in the ■ c. Removing the period from the end of affected sources under common electroplating or anodizing bath shall of paragraph (b)(1)(iv) and adding ‘‘; control, shall monitor and record the determine the outlet chromium and’’ in its place; pressure drop across the composite concentration using the procedures in ■ d. Adding paragraphs (b)(1)(v) mesh-pad system once each day that § 63.344(c). The owner or operator shall through (b)(1)(viii); any affected source is operating. To be establish as the site-specific operating ■ e. Removing and reserving paragraph in compliance with the standards, the parameter the surface tension of the (b)(2); composite mesh-pad system shall be bath using Method 306B, appendix A of ■ f. Revising paragraph (c)(1); operated within ±2 inches of water this part, setting the maximum value ■ g. Revising paragraphs (e)(3)(iii), column of the pressure drop value that corresponds to compliance with the (e)(3)(iv), and (e)(3)(v); established during the initial applicable emission limitation. In lieu ■ h. Revising paragraphs (e)(4)(ii) and performance test, or shall be operated of establishing the maximum surface (e)(4)(iv); within the range of compliant values for tension during the performance test, the ■ i. Revising paragraphs (f)(1)(i)(A) and pressure drop established during owner or operator may accept 40 dynes/ (f)(1)(ii)(A); and multiple performance tests. cm, as measured by a stalagmometer, or ■ j. Adding paragraph (f)(1)(iii). * * * * * 33 dynes/cm, as measured by a The added and revised text reads as (2) * * * tensiometer, as the maximum surface follows: (ii) On and after the date on which the tension value that corresponds to initial performance test is required to be compliance with the applicable § 63.344 Performance test requirements and test methods. completed under § 63.7, the owner or emission limitation. However, the operator of an affected source, or group owner or operator is exempt from (a) Performance test requirements. of affected sources under common conducting a performance test only if Performance tests shall be conducted control, shall monitor and record the the criteria of paragraph (b)(1) of this using the test methods and procedures velocity pressure at the inlet to the section are met. in this section. Performance tests shall packed-bed system and the pressure (ii) On and after the date on which the be conducted under such conditions as drop across the scrubber system once initial performance test is required to be the Administrator specifies to the owner each day that any affected source is completed under § 63.7, the owner or or operator based on representative operating. To be in compliance with the operator of an affected source shall performance of the affected source for standards, the scrubber system shall be monitor the surface tension of the the period being tested. Upon request, operated within ±10 percent of the electroplating or anodizing bath. the owner or operator shall make velocity pressure value established Operation of the affected source at a available to the Administrator such during the initial performance test, and surface tension greater than the value records as may be necessary to within ±1 inch of water column of the established during the performance test, determine the conditions of pressure drop value established during or greater than 40 dynes/cm, as performance tests. Performance test the initial performance test, or within measured by a stalagmometer, or 33 results shall be documented in complete the range of compliant operating dynes/cm, as measured by a test reports that contain the information parameter values established during tensiometer, if the owner or operator is required by paragraphs (a)(1) through (9) multiple performance tests. using this value in accordance with of this section. The test plan to be * * * * * paragraph (c)(5)(i) of this section, shall followed shall be made available to the (4) * * * constitute noncompliance with the Administrator prior to the testing, if (ii) On and after the date on which the standards. The surface tension shall be requested. initial performance test is required to be monitored according to the following * * * * * completed under § 63.7, the owner or schedule: (b)(1) * * * operator of an affected source, or group * * * * * (v) The performance test was of affected sources under common (6) * * * conducted after January 25, 1995; control, shall monitor and record the (ii) On and after the date on which the (vi) As of September 19, 2012 the pressure drop across the fiber-bed mist initial performance test is required to be source was using the same emissions eliminator, and the control device completed under § 63.7, the owner or controls that were used during the installed upstream of the fiber bed to operator of an affected source shall compliance test; prevent plugging, once each day that monitor the foam blanket thickness of (vii) As of September 19, 2012, the any affected source is operating. To be the electroplating or anodizing bath. source was operating under conditions in compliance with the standards, the Operation of the affected source at a that are representative of the conditions fiber-bed mist eliminator and the foam blanket thickness less than the under which the source was operating upstream control device shall be value established during the during the compliance test; and operated within ±1 inch of water performance test, or less than 2.54 cm (viii) Based on approval from the column of the pressure drop value (1 inch) if the owner or operator is using permitting authority. established during the initial this value in accordance with paragraph * * * * *

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(c) * * * each run of Methods 306 and 306A, emission limits of § 63.342 by (1) Method 306 or Method 306A, appendix A of this part shall be at least measuring the total chromium. ‘‘Determination of Chromium Emissions 120 minutes and 1.70 dscm (60 dscf), * * * * * From Decorative and Hard Chromium respectively. Methods 306 and 306A, (e) * * * Electroplating and Anodizing appendix A of this part allow the (3) * * * Operations,’’ appendix A of this part measurement of either total chromium (iii) Perform Method 306 or 306A shall be used to determine the or hexavalent chromium emissions. For testing and calculate an outlet mass chromium concentration from hard or the purposes of this standard, sources emission rate. decorative chromium electroplating using chromic acid baths must (iv) Determine the total ventilation tanks or chromium anodizing tanks. The demonstrate compliance with the rate from the affected sources (VRinlet) by sampling time and sample volume for using equation 1:

where VRtot is the average total ventilation affected sources; èIAtotal is the sum of all (v) Establish the allowable mass rate in dscm/min for the three test runs as inlet duct areas from both affected and emission rate of the system (AMRsys) in determined at the outlet by means of the nonaffected sources; and VRinlet is the total milligrams of total chromium per hour Method 306 or 306A testing; IDAi is the total ventilation rate from all inlet ducts inlet area for all ducts associated with associated with affected sources. (mg/hr) using equation 2:

where S VRinlet is the total ventilation rate in equation 2 should be equal to or more than (4) * * * dscm/min from the affected sources, and EL the outlet three-run average mass emission is the applicable emission limitation from rate determined from Method 306 or 306A (ii) Determine the total ventilation § 63.342 in mg/dscm. The allowable mass testing in order for the source to be in rate for each type of affected source emission rate (AMRsys) calculated from compliance with the standard. (VRinlet,a) using equation 3:

where VRtot is the average total ventilation of all duct areas from both affected and (iv) Establish the allowable mass rate in dscm/min for the three test runs as nonaffected sources; and VRinlet,a is the total emission rate of the system (AMRsys) in determined at the outlet by means of the ventilation rate from all inlet ducts milligrams of total chromium per hour Method 306 or 306A testing; IDA is the i,a conveying chromic acid from each type of (mg/hr) using equation 8, including total inlet duct area for all ducts conveying affected source performing the same chromic acid from each type of affected each type of affected source as operation, or each type of affected source source performing the same operation, or appropriate: each type of affected source subject to the subject to the same emission limitation. same emission limitation; èIAtotal is the sum * * * * *

The allowable mass emission rate (f) * * * § 63.342(c)(2)(iv) shall determine calculated from equation 8 should be (1) * * * compliance by not allowing the mass equal to or more than the outlet three- (i)(A) The owner or operator of an rate of total chromium in the exhaust run average mass emission rate enclosed hard chromium electroplating gas stream discharged to the atmosphere determined from Method 306 or 306A tank that is an existing affected source to exceed the maximum allowable mass testing in order for the source to be in and is located at a large hard chromium emission rate calculated using equation compliance with the standards. electroplating facility who chooses to 9: * * * * * meet the mass emission rate standard in

* * * * * located at a small hard chromium compliance by not allowing the mass (ii)(A) The owner or operator of an electroplating facility who chooses to rate of total chromium in the exhaust enclosed hard chromium electroplating meet the mass emission rate standard in gas stream discharged to the atmosphere tank that is an existing affected source § 63.342(c)(2)(v) shall determine to exceed the maximum allowable mass

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emission rate calculated using equation 10:

* * * * * to meet the mass emission rate standard gas stream discharged to the atmosphere (iii)(A) The owner or operator of an in § 63.342(c)(2)(vii) shall determine to exceed the maximum allowable mass enclosed hard chromium electroplating compliance by not allowing the mass emission rate calculated using equation tank that is a new source who chooses rate of total chromium in the exhaust 11:

(B) Compliance with the alternative (3)(i) Within 60 days after the date of (xii) The number, duration, and a mass emission limit is demonstrated if completing each performance test brief description for each type of the three-run average mass emission rate (defined in § 63.2) as required by this malfunction which occurred during the determined from testing using Method subpart, you must submit the results of reporting period and which caused or 306 or 306A of appendix A to part 63 the performance tests, including any may have caused any applicable is less than or equal to the maximum associated fuel analyses, required by emission limitation to be exceeded. The allowable mass emission rate calculated this subpart to the EPA’s WebFIRE report must also include a description of from equation 11. database by using the Compliance and actions taken by an owner or operator ■ 6. Amend § 63.346 by revising Emissions Data Reporting Interface during a malfunction of an affected paragraphs (b)(2),(b)(4) and (b)(13) to (CEDRI) that is accessed through the source to minimize emissions in read as follows: EPA’s Central Data Exchange (CDX) accordance with § 63.342(a)(1), (www.epa.gov/cdx). Performance test including actions taken to correct a § 63.346 Recordkeeping requirements. data must be submitted in the file malfunction. * * * * * format generated through use of the (xiii) The name, title, and signature of (b) * * * EPA’s Electronic Reporting Tool (ERT) the responsible official who is certifying (2) Records of all maintenance (see http://www.epa.gov/ttn/chief/ert/ the accuracy of the report; and performed on the affected source, the index.html). Only data collected using (xiv) The date of the report. test methods on the ERT Web site are add-on air pollution control device, and * * * * * monitoring equipment, except routine subject to this requirement for (h) * * * housekeeping practices; submitting reports electronically to (2) * * * * * * * * WebFIRE. Owners or operators who (i) If either of the following conditions (4) Records of actions taken during claim that some of the information being is met, semiannual reports shall be periods of malfunction to minimize submitted for performance tests is prepared and submitted to the emissions in accordance with confidential business information (CBI) Administrator: § 63.342(a)(1), including corrective must submit a complete ERT file actions to restore malfunctioning including information claimed to be CBI (A) The total duration of excess process and air pollution control and on a compact disk, flash drive or other emissions (as indicated by the monitoring equipment to its normal or commonly used electronic storage monitoring data collected by the owner usual manner of operation; media to the EPA. The electronic media or operator of the affected source in must be clearly marked as CBI and accordance with § 63.343(c)) is 1 * * * * * mailed to U.S. EPA/OAPQS/CORE CBI percent or greater of the total operating (13) For sources using fume Office, Attention: WebFIRE time for the reporting period; or suppressants to comply with the Administrator, MD C404–02, 4930 Old standards, records of the date and time * * * * * Page Rd., Durham, NC 27703. The same ■ that fume suppressants are added to the ERT file with the CBI omitted must be 8. Amend Table 1 to Subpart N by: ■ electroplating or anodizing bath and submitted to the EPA via CDX as a. Adding in alphanumerical order records of the fume suppressant described earlier in this paragraph. At entries 63.1(a)(5), 63.1(a)(7)–(9), manufacturer and product name; the discretion of the delegated authority, 63.1(a)(12), 63.1(c)(3)–(4), 63.4(a)(1)–(2), * * * * * you must also submit these reports, 63.4(a)(3)–(5), 63.4(b)–(c), 63.5(b)(2), ■ 7. Amend § 63.347 by: including the confidential business 63.5(c), 63.6(c)(3)–(4), 63.6(d), ■ a. Adding paragraph (f)(3); information, to the delegated authority 63.6(e)(1)–(3), 63.6(h)(1), 63.6(h)(2), ■ b. Redesignating paragraphs (g)(3)(xii) in the format specified by the delegated 63.6(i)(15), 63.7(a)(2)(i)–(viii), 63.7(a)(4), and (g)(3)(xiii) as (g)(3)(xiii) and authority. For any performance test 63.7(e)(1), 63.7(e)(2)–(4), 63.7(g)(2), (g)(3)(xiv), respectively, and adding a conducted using test methods that are 63.8(a)(3), and 63.9(h)(4). ■ new paragraph (g)(3)(xii); and not listed on the ERT Web site, the b. Removing entries 63.1(a)(7) and ■ c. Revising paragraphs (h)(2)(i) owner or operator shall submit the 63.1 (a)(8), 63.1(a)(12)—(a)(14), introductory text and (h)(2)(i)(A) to read results of the performance test to the 63.1(c)(4), 63.4, 63.6(e), 63.6(h), as follows: Administrator at the appropriate 63.7(a)(2)(i)–(vi), and 63.7(e). address listed in § 63.13. ■ c. Revising entries 63.1(b)(2), § 63.347 Reporting requirements. * * * * * 63.5(b)(5), 63.6(b)(6), and 63.9(b)(3), * * * * * (g) * * * The added and revised text reads as (f) * * * (3) * * * follows:

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TABLE 1 TO SUBPART N OF PART 63—GENERAL PROVISIONS APPLICABILITY TO SUBPART N

Applies to General provisions reference subpart N Comment

******* 63.1(a)(5) ...... No ...... [Reserved]

******* 63.1(a)(7)–(9) ...... No ...... [Reserved]

******* 63.1(a)(12) ...... Yes ......

******* 63.1(b)(2) ...... No ...... [Reserved]

******* 63.1(c)(3)–(4) ...... No ...... [Reserved]

******* 63.4(a)(1)–(2) ...... Yes. 63.4(a)(3)–(5) ...... No ...... [Reserved] 63.4(b)–(c) ...... Yes.

******* 63.5(b)(2) ...... No ...... [Reserved]

******* 63.5(b)(5) ...... No ...... [Reserved]

******* 63.5(c) ...... No ...... [Reserved]

******* 63.6(b)(6) ...... No ...... [Reserved]

******* 63.6(c)(3)–(4) ...... No ...... [Reserved]

******* 63.6(d) ...... No ...... [Reserved] 63.6(e)(1)–(3) ...... No ...... § 63.342(f) of subpart N contains work practice standards (operation and mainte- nance requirements) that override these provisions.

******* 63.6(h)(1) ...... No ...... SSM Exception 63.6(h)(2) ...... No ...... Subpart N does not contain any opacity or visible emission standards.

******* 63.6(i)(15) ...... No ...... [Reserved]

******* 63.7(a)(2)(i)–(viii) ...... No ...... [Reserved]

******* 63.7(a)(4) ...... Yes ......

******* 63.7(e)(1) ...... No ...... See § 63.344(a). Any cross reference to § 63.7(e)(1) in any other general provision incorporated by reference shall be treated as a cross-reference to § 63.344(a). 63.7(e)(2)–(4) ...... Yes ...... Subpart N also contains test methods specific to affected sources covered by that subpart.

******* 63.7(g)(2) ...... No ...... [Reserved]

******* 63.8(a)(3) ...... No ...... [Reserved]

******* 63.9(b)(3) ...... No ...... [Reserved]

******* 63.9(h)(4) ...... No ...... [Reserved]

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TABLE 1 TO SUBPART N OF PART 63—GENERAL PROVISIONS APPLICABILITY TO SUBPART N—Continued

Applies to General provisions reference subpart N Comment

*******

Subpart CCC—[AMENDED] ambient air quality, the environment, defendant has the burden of proof, and and human health; and the merits of which are independently ■ 9. Section 63.1155 is amended by (vi) All emissions monitoring and and objectively evaluated in a judicial adding paragraph (d) to read as follows: control systems were kept in operation or administrative proceeding. if at all possible, consistent with safety § 63.1155 Applicability. * * * * * and good air pollution control practices; * * * * * ■ 11. Section 63.1157 is amended by and revising paragraph (b)(2) to read as (d) In response to an action to enforce (vii) All of the actions in response to follows: the standards set forth in this subpart, the violation were documented by the owner or operator may assert an properly signed, contemporaneous § 63.1157 Emission standards for existing affirmative defense to a claim for civil operating logs; and sources. penalties for violations of such (viii) At all times, the affected source * * * * * standards that are caused by a was operated in a manner consistent (b) * * * malfunction, as defined in § 63.2. with good practices for minimizing (2) In addition to the requirement of Appropriate penalties may be assessed, emissions; and paragraph (b)(1) of this section, no however, if the owner or operator fails (ix) A written root cause analysis has owner or operator of an existing plant to meet the burden of proving all the been prepared, the purpose of which is shall cause or allow to be discharged requirements in the affirmative defense. to determine, correct, and eliminate the into the atmosphere from the affected The affirmative defense shall not be primary causes of the malfunction and plant any gases that contain chlorine available for claims for injunctive relief. the violation resulting from the (Cl2) in a concentration in excess of 6 (1) To establish the affirmative malfunction event at issue. The analysis ppmv. defense in any action to enforce such a shall also specify, using the best ■ 12. Section 63.1159 is amended by standard, the owner or operator must monitoring methods and engineering adding paragraph (c) to read as follows: timely meet the reporting requirements judgment, the amount of excess of paragraph (d)(2) of this section, and emissions that were the result of the § 63.1159 Operational and equipment must prove by a preponderance of malfunction. standards for existing, new, or evidence that: (2) Report. The owner of operator reconstructed sources. (i) The violation was caused by a seeking to assert an affirmative defense * * * * * sudden, infrequent, and unavoidable shall submit a written report to the (c) General duty to minimize failure of air pollution control Administrator with all necessary emissions. At all times, each owner or equipment, process equipment, or a supporting documentation, that it has operator must operate and maintain any process to operate in a normal and usual met the requirements set forth in affected source subject to the manner; and could not have been paragraph (d)(1) of this section. This requirements of this subpart, including prevented through careful planning, affirmative defense report shall be associated air pollution control proper design, or better operation and included in the first periodic equipment and monitoring equipment maintenance practices; and did not stem compliance, deviation report or excess in a manner consistent with safety and from any activity or event that could emission report otherwise required after good air pollution control practices for have been foreseen and avoided, or the initial occurrence of the violation of minimizing emissions. The general duty planned for; and was not part of a the relevant standard (which may be the to minimize emissions does not require recurring pattern indicative of end of any applicable averaging period). the owner or operator to make any inadequate design, operation, or If such compliance, deviation report or further efforts to reduce emissions if maintenance; and excess emission report is due less than levels required by this standard have (ii) Repairs were made as 45 days after the initial occurrence of been achieved. Determination of expeditiously as possible when the violation, the affirmation defense whether such operation and exceeded violation occurred. Off-shift report may be included in the second maintenance procedures are being used and overtime labor were used, to the compliance, deviation report or excess will be based on information available extent practicable to make these repairs; emission report due after the initial to the Administrator which may and occurrence of the violation of the include, but is not limited to, (iii) The frequency, amount, and relevant standard. monitoring results, review of operation duration of the violation (including any ■ 10. Section 63.1156 is amended by and maintenance procedures, review of bypass) were minimized to the adding in alphabetical order a definition operation and maintenance records, and maximum extent practicable; and for ‘‘affirmative defense’’ to read as inspection of the source. (iv) If the violation resulted from a follows: ■ 13. Section 63.1160 is amended by bypass of control equipment or a revising paragraph (b) to read as follows: process, then the bypass was § 63.1156 Definitions. unavoidable to prevent loss of life, * * * * * § 63.1160 Compliance dates and personal injury, or severe property Affirmative defense means, in the maintenance requirements. damage; and context of an enforcement proceeding, a * * * * * (v) All possible steps were taken to response or a defense put forward by a (b) Maintenance requirements. (1) The minimize the impact of the violation on defendant, regarding which the owner or operator shall prepare an

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operation and maintenance plan for identified, a description of the repair, EPA’s Central Data Exchange (CDX) each emission control device to be replacement, or other corrective action (www.epa.gov/;cdx). Performance test implemented no later than the taken, and the date of the repair, data must be submitted in the file compliance date. The plan shall be replacement, or other corrective action format generated through use of the incorporated by reference into the taken. EPA’s Electronic Reporting Tool (ERT) source’s title V permit. All such plans (2) The owner or operator of each (see http://www.epa.gov/ttn/chief/ert/ must be consistent with good hydrochloric acid regeneration plant index.html). Only data collected using maintenance practices, and, for a shall develop and implement a written test methods on the ERT Web site are scrubber emission control device, must maintenance program. The program subject to this requirement for at a minimum: shall require: submitting reports electronically to (i) Require monitoring and recording (i) Performance of the manufacturer’s WebFIRE. Owners or operators who the pressure drop across the scrubber recommended maintenance at the claim that some of the information being once per shift while the scrubber is recommended intervals on all required submitted for performance tests is operating in order to identify changes systems and components; confidential business information (CBI) that may indicate a need for (ii) Initiation of procedures for must submit a complete ERT file maintenance; appropriate and timely repair, including information claimed to be CBI (ii) Require the manufacturer’s replacement, or other corrective action on a compact disk, flash drive or other recommended maintenance at the within 1 working day of detection; and commonly used electronic storage recommended intervals on fresh solvent (iii) Maintenance of a daily record, media to the EPA. The electronic media pumps, recirculating pumps, discharge signed by a responsible maintenance must be clearly marked as CBI and pumps, and other liquid pumps, in official, showing the date of each mailed to U.S. EPA/OAPQS/CORE CBI addition to exhaust system and scrubber inspection for each requirement, the Office, Attention: WebFIRE fans and motors associated with those problems found, a description of the Administrator, MD C404–02, 4930 Old pumps and fans; repair, replacement, or other action Page Rd., Durham, NC 27703. The same (iii) Require cleaning of the scrubber taken, and the date of repair or ERT file with the CBI omitted must be internals and mist eliminators at replacement. submitted to the EPA via CDX as intervals sufficient to prevent buildup of ■ 14. Section 63.1161 is amended by: described earlier in this paragraph. At solids or other fouling; ■ a. Revising paragraph (a); and the discretion of the delegated authority, (iv) Require an inspection of each ■ b. Removing and reserving paragraph you must also submit these reports, scrubber at intervals of no less than 3 (c)(2). including the confidential business months with: information, to the delegated authority (A) Cleaning or replacement of any § 63.1161 Performance testing and test in the format specified by the delegated methods. plugged spray nozzles or other liquid authority. For any performance test delivery devices; (a) Demonstration of compliance. The conducted using test methods that are (B) Repair or replacement of missing, owner or operator shall conduct an not listed on the ERT Web site, the misaligned, or damaged baffles, trays, or initial performance test for each process owner or operator shall submit the other internal components; or emission control device to determine results of the performance test to the (C) Repair or replacement of droplet and demonstrate compliance with the Administrator at the appropriate eliminator elements as needed; applicable emission limitation address listed in § 63.13. according to the requirements in § 63.7 (D) Repair or replacement of heat * * * * * exchanger elements used to control the of subpart A of this part and in this (c) Reporting malfunctions. The temperature of fluids entering or leaving section. Performance tests shall be number, duration, and a brief the scrubber; and conducted under such conditions as the description for each type of malfunction (E) Adjustment of damper settings for Administrator specifies to the owner or which occurred during the reporting consistency with the required air flow. operator based on representative period and which caused or may have (v) If the scrubber is not equipped performance of the affected source for caused any applicable emission with a viewport or access hatch the period being tested. Upon request, limitation to be exceeded shall be stated allowing visual inspection, alternate the owner or operator shall make in a semiannual report. The report must means of inspection approved by the available to the Administrator such also include a description of actions Administrator may be used. records as may be necessary to taken by an owner or operator during a (vi) The owner or operator shall determine the conditions of malfunction of an affected source to initiate procedures for corrective action performance tests. minimize emissions in accordance with within 1 working day of detection of an * * * * * § 63.1159(c), including actions taken to operating problem and complete all ■ 15. Section 63.1164 is amended by: correct a malfunction. The report, to be corrective actions as soon as practicable. ■ a. Revising paragraph (a); and certified by the owner or operator or Procedures to be initiated are the ■ b. Revising paragraph (c). other responsible official, shall be applicable actions that are specified in § 63.1164 Reporting requirements. submitted semiannually and delivered the maintenance plan. Failure to initiate or postmarked by the 30th day following (a) Reporting results of performance or provide appropriate repair, the end of each calendar half. tests. Within 60 days after the date of replacement, or other corrective action ■ is a violation of the maintenance completing each performance test 16. Section 63.1165 is amended by: ■ a. Revising paragraph (a)(1); (defined in § 63.2), as required by this requirement of this subpart. ■ b. Revising paragraph (a)(4); (vii) The owner or operator shall subpart you must submit the results of ■ c. Removing paragraph (a)(5), and maintain a record of each inspection, the performance tests, including any redesignating paragraphs (a)(6) through including each item identified in associated fuel analyses, required by (a)(11) as (a)(5) through (a)(10). paragraph (b)(2)(iv) of this section, that this subpart to the EPA’s WebFIRE The revisions read as follows: is signed by the responsible database by using the Compliance and maintenance official and that shows the Emissions Data Reporting Interface § 63.1165 Recordkeeping requirements. date of each inspection, the problem (CEDRI) that is accessed through the (a) * * *

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(1) The occurrence and duration of ■ 17. Table 1 to Subpart CCC is ■ f. Removing entry 63.10(a)–(c); each malfunction of operation (i.e., amended by: ■ g. Adding entries 63.10(a), 63.10(b)(1), process equipment); ■ a. Removing entry 63.6(a)–(g); 63.10(b)(2)(i), 63.10(b)(2)(ii), * * * * * ■ b. Adding entry 63.6(a)–(d) in 63.10(b)(2)(iii), 63.10(b)(2)(iv)–(v), (4) Actions taken during periods of alphanumerical order; 63.10(b)(2)(vi)–(xiv), 63.10(b)(3), malfunction to minimize emissions in ■ c. Adding entries 63.6(e)(1)(i), 63.10(c)(1)–(9), 63.10(c)(10), accordance with § 63.1259(c) and the 63.6(e)(1)(ii), 63.6(e)(1)(iii), 63.6(e)(2), 63.10(c)(11), 63.10(c)(12)–(14), and dates of such actions (including 63.6(e)(3), 63.6(f)(1), 63.6(f)(2)–(3), and 63.10(c)(15) in alphanumerical order; corrective actions to restore 63.6(g) in alphanumerical order; ■ h. Removing entry 63.10(d)(4)–(5); malfunctioning process and air ■ d. Removing entry 63.7–63.9; and pollution control equipment to its ■ e. Adding entries 63.7, 63.8(a)–(c), ■ i. Adding entries 63.10(d)(4) and normal or usual manner of operation); 63.8(d)(1)–(2), 63.8(d)(3), and 63.8(e)–(f) 63.10(d)(5) in alphanumerical order. * * * * * in alphanumerical order; The additions read as follows:

TABLE 1 TO SUBPART CCC OF PART 63—APPLICABILITY OF GENERAL PROVISIONS (40 CFR PART 63, SUBPART A) TO SUBPART CCC

Applies to Reference subpart CCC Explanation

******* 63.6 (a)–(d) ...... Yes. 63.6(e)(1)(i) ...... No ...... See § 63.1259(c) for general duty requirement. Any cross-reference to § 63.6(e)(1)(i) in any other general provision incorporated by reference shall be treated as a cross-reference to § 63.1259(c). 63.6(e)(1)(ii) ...... No. 63.6(e)(1)(iii) ...... Yes. 63.6(e)(2) ...... No ...... Section reserved. 63.6(e)(3) ...... No. 63.6(f)(1) ...... No. 63.6(f)(2)–(3) ...... Yes. 63.6(g) ...... Yes.

******* 63.7 ...... Yes. 63.8(a)–(c) ...... Yes. 63.8(d)(1)–(2) ...... Yes. 63.8(d)(3) ...... Yes, except for last sentence. 63.8(e)–(f) ...... Yes.

******* 63.10(a) ...... Yes. 63.10(b)(1) ...... Yes. 63.10(b)(2)(i) ...... No. 63.10(b)(2)(ii) ...... No ...... See § 63.1265(a)(1) for recordkeeping of occurrence and duration of malfunctions. See § 63.1265(a)(4) for recordkeeping of actions taken during malfunction. Any cross-reference to § 63.10(b)(2)(ii) in any other general provision incorporated by reference shall be treated as a cross-reference to § 63.1265(a)(1). 63.10(b)(2)(iii) ...... Yes. 63.10(b)(2)(iv)–(b)(2)(v) ...... No. 63.10(b)(2)(vi)–(b)(2)(xiv) ...... Yes. 63.10(b)(3) ...... Yes. 63.10(c)(1)–(9) ...... Yes. 63.10(c)(10) ...... No ...... See § 63.1164(c) for reporting malfunctions. Any cross-reference to § 63.10(c)(10) in any other general provision incorporated by reference shall be treated as a cross-reference to § 63.1164(c). 63.10(c)(11) ...... No ...... See § 63.1164(c) for reporting malfunctions. Any cross-reference to § 63.10(c)(11) in any other general provision incorporated by reference shall be treated as a cross-reference to § 63.1164(c). 63.10(c)(12)–(c)(14) ...... Yes. 63.10(c)(15) ...... No. 63.10(d)(4) ...... Yes. 63.10(d)(5) ...... No.

*******

■ 18. Amend Appendix A to part 63, ■ c. Revising paragraphs 11.1 through ■ The added and revised text reads as Method 306B by: 11.1.3; and follows: ■ a. Revising paragraph 1.2; ■ d. Revising paragraph 11.2.2. ■ b. Revising paragraph 6.1;

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Appendix A to Part 63—Test Methods 11.1.2 If a stalagmometer is used, the beaker with reagent grade concentrated nitric Pollutant Measurement Methods From procedures specified in Sections 11.1.2.1 acid. Various Waste Media through 11.1.2.3 must be followed. 11.1.3.3 Immerse the bottom tip of the 11.1.2.1 Check the stalagmometer for stalagmometer (approximately 1 centimeter * * * * * visual signs of damage. If the stalagmometer (0.5 inches)) into the beaker. appears to be chipped, cracked, or otherwise 11.1.3.4 Squeeze the rubber bulb and METHOD 306B—SURFACE TENSION in disrepair, the instrument shall not be used. pinch at the arrow up (1) position to collapse. MEASUREMENT FOR TANKS USED AT 11.1.2.2 Using distilled or deionized 11.1.3.5 Place the bulb end securely on DECORATIVE CHROMIUM water and following the procedures provided top end of stalagmometer and carefully draw ELECTROPLATING AND CHROMIUM by the manufacturer, count the number of the nitric acid by pinching the arrow up (1) ANODIZING FACILITIES drops corresponding to the distilled/ position until the level is above the top * * * * * deionized water liquid volume between the etched line. upper and lower etched marks on the 11.1.3.6 Allow the nitric acid to remain 1.0 Scope and Application stalagmometer. If the number of drops for the in stalagmometer for 5 minutes, then * * * * * distilled/deionized water is not within ±1 carefully remove the bulb, allowing the acid 1.2 Applicability. This method is drop of the number indicated on the to completely drain. applicable to all chromium electroplating instrument, the stalagmometer must be 11.1.3.7 Fill a clean 150 mL beaker with and chromium anodizing operations, and cleaned, using the procedures specified in distilled or deionized water. continuous chromium plating at iron and Section 11.1.3 of this method, before using 11.1.3.8 Using the rubber bulb per the steel facilities where a wetting agent is used the instrument to measure the surface tension instructions in Sections 11.1.3.4 and 11.1.3.5, in the tank as the primary mechanism for of the tank liquid. rinse and drain stalagmometer with reducing emissions from the surface of the 11.1.2.2.1 If the stalagmometer must be deionized or distilled water. cleaned, as indicated in Section 11.1.2.2, plating solution. 11.1.3.9 Fill a clean 150 mL beaker with repeat the procedure specified in Section isopropyl alcohol. * * * * * 11.1.2.2 before proceeding. 11.1.3.10 Again using the rubber bulb per 11.1.2.2.2 If, after cleaning and 6.0 Equipment and Supplies the instructions in Sections 11.1.3.4 and performing the procedure in Section 11.1.2.2, 11.1.3.5, rinse and drain stalagmometer twice 6.1 Stalagmometer. Any commercially the number of drops indicated for the with isopropyl alcohol and allow the available stalagmometer or equivalent surface distilled/deionized water is not within ±1 stalagmometer to dry completely. tension measuring device may be used to drop of the number indicated on the 11.2 * * * measure the surface tension of the plating or instrument, either use the number of drops * * * * * corresponding to the distilled/deionized anodizing tank liquid provided the 11.2.2 If a measurement of the surface water volume as the reference number of procedures specified in Section 11.1.2 are tension of the solution is above the 40 dynes drops, or replace the instrument. followed. per centimeter limit when measured using a 11.1.2.3 Determine the surface tension of stalagmometer, above 33 dynes per * * * * * the tank liquid using the procedures centimeter when measured using a specified by the manufacturer of the 11.0 Analytical Procedure tensiometer, or above an alternate surface stalagmometer. tension limit established during the 11.1 Procedure. The surface tension of 11.1.3 Stalagmometer cleaning performance test, the time interval shall the tank bath may be measured using a procedures. The procedures specified in revert back to the original monitoring tensiometer, stalagmometer, or any other Sections 11.1.3.1 through 11.1.3.10 shall be schedule of once every 4 hours. A subsequent equivalent surface tension measuring device used for cleaning a stalagmometer, as decrease in frequency would then be allowed for measuring surface tension in dynes per required by Section 11.1.2.2. according to Section 11.2.1. centimeter. 11.1.3.1 Set up the stalagmometer on its 11.1.1 If a tensiometer is used, the stand in a fume hood. * * * * * procedures specified in ASTM Method D 11.1.3.2 Place a clean 150 (mL) beaker [FR Doc. 2012–20642 Filed 9–18–12; 8:45 am] 1331–89 must be followed. underneath the stalagmometer and fill the BILLING CODE 6560–50–P

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Part III

Department of Commerce

Takes of Marine Mammals Incidental to Specified Activities; Marine Geophysical Survey off the Central Coast of California, November to December, 2012; Notice

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DEPARTMENT OF COMMERCE document may be obtained by writing to not reasonably likely to, adversely affect the above address, telephoning the the species or stock through effects on National Oceanic and Atmospheric contact listed here (see FOR FURTHER annual rates of recruitment or survival.’’ Administration INFORMATION CONTACT) or visiting the Section 101(a)(5)(D) of the MMPA RIN 0648–XC072 internet at: http://www.nmfs.noaa.gov/ established an expedited process by pr/permits/incidental.htm#applications. which citizens of the United States can Takes of Marine Mammals Incidental to The National Science Foundation apply for an authorization to Specified Activities; Marine (NSF), which owns the R/V Marcus G. incidentally take small numbers of Geophysical Survey off the Central Langseth, has prepared a draft marine mammals by harassment. Coast of California, November to ‘‘Environmental Assessment Pursuant to Section 101(a)(5)(D) of the MMPA December, 2012 the National Environmental Policy Act, establishes a 45-day time limit for 42 U.S.C. 4321 et seq. Marine Seismic NMFS’s review of an application AGENCY: National Marine Fisheries Survey in the Pacific Ocean off Central followed by a 30-day public notice and Service (NMFS), National Oceanic and California, 2012’’ (EA). NSF’s EA comment period on any proposed Atmospheric Administration (NOAA), incorporates a draft ‘‘Environmental authorizations for the incidental Commerce. Assessment of Marine Geophysical harassment of small numbers of marine ACTION: Notice; proposed Incidental Surveys by the R/V Marcus G. Langseth mammals. Within 45 days of the close Harassment Authorization; request for for the Central California Seismic of the public comment period, NMFS comments. Imaging Project,’’ prepared by Padre must either issue or deny the Associates, Inc., on behalf of NSF, authorization. SUMMARY: NMFS has received an PG&E, and L–DEO, which is also Except with respect to certain application from the Lamont-Doherty available at the same internet address. activities not pertinent here, the MMPA Earth Observatory of Columbia Documents cited in this notice may be defines ‘‘harassment’’ as: Any act of University (L–DEO), in cooperation with viewed, by appointment, during regular pursuit, torment, or annoyance which (i) the Pacific Gas and Electric Company business hours, at the aforementioned has the potential to injure a marine (PG&E), for an Incidental Harassment address. mammal or marine mammal stock in the Authorization (IHA) to take marine wild [Level A harassment]; or (ii) has mammals, by harassment, incidental to FOR FURTHER INFORMATION CONTACT: the potential to disturb a marine conducting a marine geophysical Howard Goldstein or Jolie Harrison, mammal or marine mammal stock in the (seismic) survey off the central coast of Office of Protected Resources, NMFS, wild by causing disruption of behavioral California, November to December, 301–427–8401. patterns, including, but not limited to, 2012. Pursuant to the Marine Mammal SUPPLEMENTARY INFORMATION: migration, breathing, nursing, breeding, Protection Act (MMPA), NMFS is Background feeding, or sheltering [Level B requesting comments on its proposal to harassment]. Section 101(a)(5)(D) of the MMPA, as issue an IHA to L–DEO and PG&E to Summary of Request incidentally harass, by Level B amended (16 U.S.C. 1371(a)(5)(D)), harassment only, 25 species of marine directs the Secretary of Commerce On May 17, 2012, NMFS received an mammals during the specified activity. (Secretary) to authorize, upon request, application from the L–DEO and PG&E the incidental, but not intentional, requesting that NMFS issue an IHA for DATES: Comments and information must taking of small numbers of marine the take, by Level B harassment only, of be received no later than October 15, mammals of a species or population small numbers of marine mammals 2012. stock, by United States citizens who incidental to conducting a marine ADDRESSES: Comments on the engage in a specified activity (other than seismic survey within the U.S. application should be addressed to P. commercial fishing) within a specified Exclusive Economic Zone off the central Michael Payne, Chief, Permits and geographical region if certain findings coast of California during November to Conservation Division, Office of are made and, if the taking is limited to December, 2012. NMFS received a Protected Resources, National Marine harassment, a notice of a proposed revised application on August 31, 2012. Fisheries Service, 1315 East-West authorization is provided to the public The updated IHA application reflects Highway, Silver Spring, MD 20910. The for review. revisions to the proposed project that mailbox address for providing email Authorization for the incidental have resulted from discussions between comments is [email protected]. taking of small numbers of marine NMFS and the applicant during the NMFS is not responsible for email mammals shall be granted if NMFS MMPA consultation process, as well as comments sent to addresses other than finds that the taking will have a other Federal and State regulatory the one provided here. Comments sent negligible impact on the species or requirements and include the via email, including all attachments, stock(s), and will not have an elimination of portions of the originally must not exceed a 10-megabyte file size. unmitigable adverse impact on the planned survey area (specifically Survey All comments received are a part of availability of the species or stock(s) for Box 3) and the splitting of the proposed the public record and will generally be subsistence uses (where relevant). The project into two years, and the posted to http://www.nmfs.noaa.gov/pr/ authorization must set forth the shortening of the 2012 work window to permits/incidental.htm#applications permissible methods of taking, other November and December. Additionally, without change. All Personal Identifying means of effecting the least practicable PG&E has agreed to operationally and Information (for example, name, adverse impact on the species or stock financially support the design and address, etc.) voluntarily submitted by and its habitat, and requirements implementation of a comprehensive the commenter may be publicly pertaining to the mitigation, monitoring monitoring, stranding response, and accessible. Do not submit confidential and reporting of such takings. NMFS adaptive management plan that will business information or otherwise has defined ‘‘negligible impact’’ in 50 support real-time decision making to sensitive or protected information. CFR 216.103 as ‘‘* * * an impact reduce impacts to the Morro Bay stock A copy of the application containing resulting from the specified activity that of harbor porpoises (Phocoena a list of the references used in this cannot be reasonably expected to, and is phocoena). L–DEO and PG&E plan to

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use one source vessel, the R/V Marcus locations to generate data that can be week. This schedule is designed to G. Langseth (Langseth) and a seismic used to improve imaging of major reduce overall air emissions, length of airgun array to collect seismic data as geologic structures and fault zones in time for operation in the water thereby part of the ‘‘Offshore Central Coastal the vicinity of the Diablo Canyon Power reducing impacts to marine wildlife, California Seismic Imaging Project’’ Plant. The details of the proposed commercial fishing, and other area located in the central area of San Luis seismic studies are outlined in a Science users. PG&E will work with Obispo County, California. Plan submitted to the National Science environmental agencies to appropriately PG&E proposes to conduct a high Foundation (NSF) by L–DEO, University address the balancing of public health energy seismic survey in the vicinity of of Nevada, and Scripps Institution of and safety and environmental concerns the Diablo Canyon Power Plant and Oceanography. NSF, as owner of the during the conduct of these studies. Langseth will serve as the lead Federal known offshore fault zones near the Survey Details power plant. The observations will be agency and will ensure the approval of interpreted in the context of global the proposed Science Plan is in The proposed survey involves both synthesis of observations bearing on compliance with the National marine (offshore) and land (onshore) earthquake rupture geometries, Environmental Policy Act (NEPA) of activities. The offshore components earthquake displacements, fault 1969. consist of operating a seismic survey interactions, and fault evolution. These seismic studies would provide vessel and support/monitoring vessels Estimating the limits of future additional insights of any relationships within the areas shown in Figure 1 of earthquake ruptures is becoming or connection between the known faults the IHA application and transiting increasingly important as seismic as well as enhance knowledge of between the four different survey box hazard maps are based on geologists’ offshore faults in proximity to the areas extending between the mouth of maps of active faults and, locally, the central coast of California and the the Santa Maria River and Estero Bay. Hosgri Fault strikes adjacent to one of Diablo Canyon Power Plant. The The seismic survey vessel would tow a California’s major nuclear power plants. proposed deep penetrating (10 to 15 series of sound-generating airguns and In addition to the proposed operations kilometers [km] or 6 to 9 miles [mi]), sound-recording hydrophones along of the seismic airgun array and high energy seismic survey (energy pre-determined shore parallel and hydrophone streamer, L–DEO and PG&E greater than 2 kilo Joule) would shore-perpendicular transects to intend to operate a multibeam complement a previously completed conduct deep (10 to 15 km [6 to 9 mi]) echosounder and a sub-bottom profiler shallow (less than 1 km [0.6 mi]), low seismic reflection profiling of major continuously throughout the survey. energy (less than 2 kilo Joule) three- geologic structures and fault zones in Acoustic stimuli (i.e., increased dimensional (3D) seismic reflection the vicinity of the Diablo Canyon Power underwater sound) generated during the survey. Plant. operation of the seismic airgun array The objectives of the proposed high The offshore part of the survey may have the potential to cause a energy 3D seismic survey are to: activities include the placement of a • behavioral disturbance for marine Record high resolution two- limited number of seafloor geophones mammals in the survey area. This is the dimensional (2D) and 3D seismic (e.g., Fairfield Z700 nodal units) into principal means of marine mammal reflection profiles of major geologic nearshore waters. The planned seismic survey (e.g., taking associated with these activities structures and fault zones in the vicinity equipment testing, startup, line changes, and L–DEO and PG&E have requested of the central coast of California and repeat coverage of any areas, and an authorization to take 25 species of Diablo Canyon Power Plant. • equipment recovery) will consist of marine mammals by Level B Obtain high-resolution deep- approximately 3,565.8 km (1,925.4 nmi) harassment. Take is not expected to imaging (greater than 1 km [0.6 mi]) of (1,417.6 km [765.4 nmi] for Survey Box result from the use of the multibeam the Hosgri and Shoreline fault zones in 4 and 2,148.2 km [1,159.9 nmi] for echosounder or sub-bottom profiler, for the vicinity of the Diablo Canyon Power Survey Box 2) of transect lines reasons discussed in this notice; nor is Plant to constrain fault geometry and (including turns) in the survey area off take expected to result from collision slip rate (scheduled for the seismic the central coast of California (see with the source vessel because it is a survey activities in 2013). • Figure 2 of the IHA application). In single vessel moving at a relatively slow Obtain high-resolution, deep- addition to the operations of the airgun speed (4.6 knots [kts]; 8.5 kilometers per imaging of the intersection of the Hosgri array, a Kongsberg EM 122 multibeam hour [km/hr]; 5.3 miles per hour [mph]) and Shoreline fault zones near Point echosounder and Knudsen Chirp 3260 during seismic acquisition within the Buchon. • Obtain high-resolution, deep- sub-bottom profiler will also be survey, for a relatively short period of imaging of the geometry and slip rate of operated from the Langseth time (approximately 50 days). It is likely the Los Osos fault, as well as the continuously throughout the cruise. that any marine mammal would be able intersection of the Hosgri and Los Osos There will be additional seismic to avoid the vessel. fault zones in Estero Bay. operations associated with equipment Description of the Proposed Specified • Augment the current regional testing, ramp-up, and possible line Activity seismic database for subsequent use and changes or repeat coverage of any areas analysis through the provision of all where initial data quality is sub- Project Purpose data to the broader scientific and safety standard. In L–DEO and PG&E’s PG&E proposes to conduct a high community. estimated take calculations, 25% has energy seismic survey in the vicinity of The studies require the collection of been added for those additional the Diablo Canyon Power Plant and data over a long period of time. operations. Detailed descriptions of the known offshore fault zones near the However, the project timeframe is proposed actions for each component power plant (see Figure 1 of the IHA limited to fall and winter months to are provided below in this document. application). The project, as proposed minimize environmental impacts to the by L–DEO and PG&E, consists of greatest extent feasible. L–DEO and Vessel Movements deploying seismic or sound sources and PG&E are proposing to conduct the The tracklines for the 3D seismic receivers at onshore and offshore studies 24 hours a day for 7 days a survey will encompass an area of

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approximately 740.52 km2 (215.9 square The Langseth would transit south devices. The streamer recovery devices nautical miles [nmi2]). The 2012 project prior to the start of survey operations are activated when the streamer sinks to area is divided into two ‘‘primary target (approximately October 15 through a pre-determined depth (e.g., 50 m [164 areas’’ (Survey Boxes 2 and 4) are December 31, 2012, with active airgun ft]) to aid in recovery. described below and shown in Figure 2 survey operations starting • Primary vessel—the Langseth is of the IHA application. The offshore approximately November 1, 2012). Once 71.5 m (235 ft) in length, and is outfitted (vessel) survey would be conducted in the vessel has arrived in the project to deploy/retrieve hydrophone both Federal and State waters and water area, the survey crew, any required streamers and airgun array, air depths within the proposed survey areas equipment, and support provisions compressors for the airgun array, and ranging from 0 to over 400 m (1,300 ft). would be transferred to the vessel. survey recording facilities. • The State Three-Mile Limit is identified Larger equipment, if required, would Two Chase/Scout boats—22.9 to in Figure 1 of the IHA application. The need to be loaded onboard the vessel at 41.2 m (75 to 135 ft) in length and will Point Buchon Marine Protected Area either Port of San Francisco/Oakland or be around the Langseth to observe lies within portions of the survey area. Port Hueneme. The proposed survey potential obstructions, conduct In addition, the Monterey Bay National vessel is supported by two chase/scout additional marine mammal monitoring Marine Sanctuary, a Federally-protected boats, each with three Protected Species and support deployment of seismic Observers (PSOs) and a third support equipment. marine sanctuary that extends • northward from Cambria to Marine boat that will provide logistical support Third support vessel–will be County, is located to the north and to the Langseth or chase boats. This approximately 18.3 to 25.9 m (60 to 85 outside of the proposed project area. support vessel will also serve as a relief ft) in length and would act as a support Survey Box 2 (Survey area from Estero vessel for either of the two chase boats boat for the Langseth and the two other Bay to offshore Santa Maria River as required or equivalent. Any chase/scout and would provide relief to additional scout/monitoring vessels either chase/scout boat as required. Mouth): • • Area: 406.04 km2 (118.4 nmi2); required for the proposed project will be A nearshore work vessel (e.g., • Total survey line length is 2,148.2 drawn from local vessel operators. Upon Michael Uhl) approximately 50 m (150 km (1,159.9 nmi); and completion of the offshore survey ft) in length would be used to deploy • Strike line surveys along the Hosgri operations, the survey crew would be and retrieve seafloor geophones in the fault zone and Shoreline, Hosgri, and transferred to shore and the survey shallow water (0 to 20 m) zone. • Los Osos fault intersections. vessel would transit out to the proposed Monitoring aircraft—Partenavia Survey Box 4 (Estero Bay): project area. P68–OBS ‘‘Observer,’’ a high-wing, • Area: 334.48 km2 (97.5 nmi2); Nearshore operations would be twin-engine plane or equivalent aircraft • Total survey line length is 1,417.6 conducted using locally available is 9.5 m (31 ft) in length and has a km (765.4 nmi); vessels such as the M/V Michael Uhl wingspan of 12 m (39 ft) with a carrying • Dip line survey across the Hosgri (Michael Uhl) or equivalent vessel. capacity of six persons. The aircraft has and Los Osos fault zones in Estero Bay. Equipment, including the geophones two ‘‘bubble’’ observation windows, a Figure 2 of the IHA application and cables, would be loaded aboard the glass nose for clear observation, and will depicts the proposed survey transit Michael Uhl in Morro Bay Harbor and be equipped with communication and lines. These lines depict the survey transferred to the offshore deployment safety equipment sufficient to support lines as well as the turning legs. The full locations. Following deployment and the proposed operations. The aircraft seismic array is firing during the straight recovery of the geophones and cables, would be used to perform aerial surveys portions of the track lines as well as the they would be transferred back to Morro of marine mammals. initial portions of the run-out (offshore) Bay Harbor for transport offsite. Vessel Specifications sections and later portions of the run-in During onshore operations, receiver (inshore) sections. During turns and line equipment would be deployed by The Langseth, a seismic research most of the initial portion of the run-ins, foot-based crews supported by four- vessel owned by the NSF, will tow the there will only be one airgun firing (i.e., wheel drive vehicles or small vessel. 36 airgun array, as well as the mitigation airgun). Assuming a daily Once the proposed project has been hydrophone streamer, along survey rate of approximately 8.3 km/ completed, the equipment would predetermined lines (see Figure 2 of the hour (km/hr) (4.5 knots [kts] for 24/7 demobilize from the area by truck. IHA application). When the Langseth is operations), the Survey Box 2 is towing the airgun array and the expected to take approximately 14 days Offshore Survey Operations hydrophone streamer, the turning rate of and approximately 9.25 days for Survey The proposed offshore seismic survey the vessel is limited to three degrees per Box 4. When considering mobilization, would be conducted with vessels minute (2.5 km [1.5 mi]). Thus, the demobilization, refueling, equipment specifically designed and built to maneuverability of the vessel is limited maintenance, weather, marine mammal conduct such surveys. PG&E has during operations with the streamer. activity, and other contingencies, the selected the Langseth, which is operated The vessel would ‘‘fly’’ the appropriate proposed survey is expected to be by L–DEO. The following outlines the U.S. Coast Guard-approved day shapes completed in 49.25 days. general specifications for the Langseth (mast head signals used to communicate and the support vessels needed to with other vessels) and display the Mobilization and Demobilization complete the proposed offshore seismic appropriate lighting to designate the The offshore equipment and vessels survey. vessel has limited maneuverability. for the proposed 3D marine seismic In water depths from 30 to 305 m (100 The vessel has a length of 71.5 m (235 survey are highly specialized and to greater than 1,000 ft), the Langseth ft); a beam of 17.0 m (56 ft); a maximum typically no seismic vessels are located will tow four hydrophone streamers draft of 5.9 m (19 ft); and a gross in California. The proposed seismic with a length of approximately 6 km tonnage of 3,834. The Langseth was survey vessel (R/V Marcus G. Langseth) (3.2 nmi). The intended tow depth of designed as a seismic research vessel is currently operating on the U.S. west the streamers is approximately 9 m (29.5 with a propulsion system designed to be coast and is available to conduct the ft). Flotation is provided on each as quiet as possible to avoid interference proposed seismic survey work. streamer as well as streamer recovery with the seismic signals emanating from

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the airgun array. The ship is powered by emitted; the airguns will be silent Metrics Used in This Document two 3,550 horsepower (hp) Bergen BRG– during the intervening periods. The This section includes a brief 6 diesel engines which drive two dominant frequency components range explanation of the sound measurements propellers directly. Each propeller has from two to 188 Hertz (Hz). frequently used in the discussions of four blades and the shaft typically The tow depth of the airgun array will acoustic effects in this document. Sound rotates at 750 revolutions per minute. be 9 m (29.5 ft) during the surveys. pressure is the sound force per unit The vessel also has an 800 hp Because the actual source is a area, and is usually measured in bowthruster, which is not used during distributed sound source (18 airguns) micropascals (mPa), where 1 pascal (Pa) seismic acquisition. The Langseth’s rather than a single point source, the is the pressure resulting from a force of operation speed during seismic highest sound measurable at any one newton exerted over an area of one acquisition is typically 7.4 to 9.3 km per square meter. Sound pressure level hour (hr) (km/hr) (4 to 5 knots [kts]). location in the water will be less than the nominal source level. In addition, (SPL) is expressed as the ratio of a When not towing seismic survey gear, measured sound pressure and a the Langseth typically cruises at 18.5 the effective source level for sound propagating in near-horizontal reference level. The commonly used km/hr (10 kts). The Langseth has a range reference pressure level in underwater of 25,000 km (13,499 nmi) (the distance directions will be substantially lower than the nominal omni-directional acoustics is 1 mPa, and the units for the vessel can travel without refueling). SPLs are dB re: 1 mPa. SPL (in decibels The vessel also has an observation source level applicable to downward propagation because of the directional [dB]) = 20 log (pressure/reference tower from which Protected Species pressure). Visual Observers (PSVO) will watch for nature of the sound from the airgun array (i.e., sound is directed downward). SPL is an instantaneous measurement marine mammals before and during the and can be expressed as the peak, the proposed airgun operations. When Figure 3 of the IHA application shows one linear airgun array or ‘‘string’’ with peak-peak (p-p), or the root mean square stationed on the observation platform, (rms). Root mean square, which is the ten airguns. Figure 4 of the IHA the PSVO’s eye level will be square root of the arithmetic average of application diagrams the airgun array approximately 21.5 m (71 ft) above sea the squared instantaneous pressure and streamer deployment from the level providing the PSVO an values, is typically used in discussions Langseth. unobstructed view around the entire of the effects of sounds on vertebrates vessel. More details of the Langseth can Hydrophone Streamer and all references to SPL in this be found in the IHA application. document refer to the root mean square Acoustic Source Specifications Acoustic signals will be recorded unless otherwise noted. SPL does not using a system array of four hydrophone take the duration of a sound into Seismic Airguns streamers, which would be towed account. The Langseth will deploy a 36-airgun behind the Langseth. Each streamer array, consisting of two 18 airgun sub- would consist of Sentry Solid Streamer Characteristics of the Airgun Pulses arrays. Each sub-array will have a Sercel cable approximately 6 km (3.2 Airguns function by venting high- volume of approximately 3,300 cubic nmi) long. The streamers are attached by pressure air into the water which creates inches (in3). The airgun array will floats to a diverter cable, which keeps an air bubble. The pressure signature of consist of a mixture of Bolt 1500LL and the streamer spacing at approximately an individual airgun consists of a sharp Bolt 1900LLX airguns ranging in size 100 to 150 m (328 to 492 ft) apart. rise and then fall in pressure, followed 3 from 40 to 360 in , with a firing pressure Seven hydrophones will be present by several positive and negative of 1,900 pounds per square inch (psi). pressure excursions caused by the along each streamer for acoustic The 18 airgun sub-arrays will be oscillation of the resulting air bubble. measurement. The hydrophones will configured as two identical linear arrays The oscillation of the air bubble consist of a mixture of Sonardyne or ‘‘strings’’ (see Figure 3 and 4 of the transmits sounds downward through the Transceivers. Each streamer will contain IHA application). Each string will have seafloor and the amount of sound three groups of paired hydrophones, 10 airguns, the first and last airguns in transmitted in the near horizontal the strings are spaced 16 m (52.5 ft) with each group approximately 2,375 m directions is reduced. However, the apart. Of the 10 airguns, nine airguns in (7,800 ft) apart. The hydrophones airgun array also emits sounds that each string will be fired simultaneously within each group will be travel horizontally toward non-target (1,650 in3), whereas the tenth is kept in approximately 300 m (984 ft) apart. One areas. reserve as a spare, to be turned on in additional hydrophone will be located The nominal source levels of the case of failure of another airgun. The on the tail buoy attached to the end of airgun arrays used by L–DEO and PG&E sub-arrays would be fired alternately the streamer cable. In addition, one on the Langseth are 236 to 265 dB re 1 during the survey. The two airgun sub- Sonardyne Transducer will be attached mPa (p-p) and the rms value for a given arrays will be distributed across an area to the airgun array. Compass birds will airgun pulse is typically 16 dB re 1 mPa of approximately 12 x 16 m (40 x 52.5 be used to keep the streamer cables and lower than the peak-to-peak value ft) behind the Langseth and will be hydrophones at a depth of (Greene, 1997; McCauley et al., 1998, towed approximately 140 m (459.3 ft) approximately 10 m (32.8 ft). One 2000a). The specific source output for behind the vessel. Discharge intervals compass bird will be placed at the front the 18 airgun array is 252 dB (peak) and depend on both the ship’s speed and end of each streamer as well as 259 dB (p-p). However, the difference Two Way Travel Time recording periodically along the streamer. Figure 4 between rms and peak or peak-to-peak intervals. The shot interval will be 37.5 of the IHA application depicts the values for a given pulse depends on the m (123) during the study. The shot configuration of both the streamer and frequency content and duration of the interval will be relatively short, airgun array used by the Langseth. pulse, among other factors. approximately 15 to 20 seconds (s) Details regarding the hydrophone Accordingly, L–DEO and PG&E have based on an assumed boat speed of 4.5 streamer and acoustic recording predicted the received sound levels in knots. During firing, a brief equipment specifications are included relation to distance and direction from (approximately 0.1 s) pulse sound is in Table 1 of the IHA application. the 18 airgun array and the single Bolt

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1900LL 40 in3 airgun, which will be with physical description of sound Using the model (airgun array and used during power-downs. A detailed propagation and depends on waveguide single airgun), Table 1 (below) shows description of L–DEO and PG&E’s characteristics, including water depth, the distances at which three rms sound modeling for this survey’s marine water column sound velocity profile, levels are expected to be received from seismic source arrays for protected and geoacoustic parameters of the ocean the 18 airgun array and a single airgun. species mitigation is provided in bottom. For the sound propagation To avoid the potential for injury or Appendix A of the IHA application and model, Greeneridge Sciences, Inc. relied permanent physiological damage (Level NSF’s EA. Appendix A (GSI Technical on variants of the U.S. Navy’s range- A harassment), NMFS (1995, 2000) has Memorandum 470–3 and GSI Technical dependent Acoustic Model. Greeneridge concluded that cetaceans and pinnipeds Memorandum 470–2RevB) of the IHA Sciences, Inc. modeled three 2D (range should not be exposed to pulsed application and NSF’s EA discusses the versus depth) propagation paths, each underwater noise at received levels characteristics of the airgun pulses. with range-dependent (i.e., range- exceeding 180 dB re: 1 mPa and 190 dB NMFS refers the reviewers to the IHA varying) bathymetry and range- re: 1 mPa, respectively. L–DEO and application and EA documents for independent geoacoustic profiles. The PG&E used these levels to establish the additional information. resulting received sound levels at a exclusion zones. If marine mammals are receiver depth of 6 m (19.7 ft) and Predicted Sound Levels for the Airguns detected within or about to enter the across range were then ‘‘smoothed’’ via appropriate exclusion zone, the airguns To determine exclusion zones for the least-squares regression. The will be powered-down (or shut-down, if airgun array to be used off the central monotonically-decreasing regression necessary) immediately. NMFS also coast of California, the noise modeling equations yielded the estimated safety for the proposed 3D seismic survey is radii. assumes that marine mammals exposed based on the results of mathematical The accuracy of the sound field to levels exceeding 160 dB re: 1 mPa may modeling conducted by Greeneridge predicted by the acoustic propagation experience Level B harassment. Sciences, Inc. (2011). The model results model is limited by the quality and Table 1 summarizes the predicted are based upon the airgun specifications resolution of the available distances at which sound levels (160, provided for the Langseth and seafloor environmental data. Greeneridge 180, and 190 dB [rms]) are expected to characteristics available for the project Sciences, Inc. used environmental be received from the 18 airgun array and area. Specifically, L–DEO’s predicted information provided by the client for a single airgun operating in upslope sound contours were used to estimate the proposed survey area, specifically, (inshore), downslope (offshore), and pulse sound level extrapolated to an bathymetry data, a series of measured alongshore depths. For the proposed effective distance of one meter, water column sound speed profiles, and project, L–DEO and PG&E plan to use effectively reducing the multi-element descriptive sediment and basement the upslope distance (inshore) for the array to a point source. Such a properties. Greeneridge Sciences, Inc. 160 dB (6,210 m [20,374 ft]) and 180 dB description is valid for descriptions of used two geoacoustic profiles for its (1,010 m [3,313.7 ft], and alongshore the far field sounds, i.e., at distances three propagation paths: One for the distance for the 190 dB (320 m [1,049.9 that are long compared to the upslope propagation path (sand ft]), for the determination of the buffer dimensions of the array and the sound overlaying sandstone) and one for the and exclusion zones since this wavelength. Greeneridge Sciences, Inc. downslope and alongshore propagation represents the largest and therefore most did not account for near-field effects. paths (silt overlaying sandstone) conservative distances determined by However, since the vast majority of L–DEO and PG&E have used these the Greeneridge Sciences, Inc. acoustic energy radiated by an airgun calculated values to determine modeling. array is below 500 Hz and the near field exclusion zones for the 18 airgun array is small for the given airgun array at and previously modeled measurements Table 1. Modeled (array) or predicted these frequencies (the radius of the near by L–DEO for the single airgun, to (single airgun) distances to which sound field around the array is 21 m [68.9 ft] designate exclusion zones for purposes levels ≥ 190, 180, and 160 dB re: 1 mPa or less for frequencies below 500 Hz), of mitigation, and to estimate take for (rms) could be received in upslope, near-field effects are considered marine mammals off the central coast of downslope, and alongshore propagation minimal. California. A detailed description of the paths during the proposed survey off the The sound propagation from the modeling effort is provided in Appendix central coast of California, November to airgun array was modeled in accordance A of NSF’s EA. December, 2012.

Predicted RMS radii distances for 18 airgun array Sound pressure level (SPL) (dB re 1 μPa) Upslope distance Downslope distance (inshore) (offshore) Alongshore distance

190 dB ...... 250 m (0.13 nmi) ...... 280 m (0.15 nmi) ...... 320 m (0.17 nmi) 180 dB ...... 1,010 m (0.55 nmi) ...... 700 m (0.38 nmi) ...... 750 m (0.40 nmi) 160 dB ...... 6,210 m (3.35 nmi) ...... 4,450 m (2.40 nmi) ...... 4,100 m (2.21 nmi)

Predicted RMS radii distances for single airgun Sound pressure level (SPL) (dB re 1 μPa) Shallow water Intermediate water Deep Water (< 100 m) (100 to 1,000 m) (> 1,000 m)

190 dB ...... 150 m (0.08 nmi) ...... 18 m (< 0.01 nmi) ...... 12 m (< 0.01 nmi) 180 dB ...... 296 m (0.16 nmi) ...... 60 m (0.03 nmi) ...... 40 m (0.02 nmi) 160 dB ...... 1,050 m (0.57 nmi) ...... 578 m (0.31 nmi) ...... 385 m (0.21 nmi)

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Along with the airgun operations, two reduced from 100 ms to 2 to 15 ms for Nearshore and Onshore Survey additional acoustical data acquisition the multibeam echosounder. Power Operations systems will be operated from the levels of both instruments would be To collect deep seismic data in water Langseth continuously during the reduced from maximum levels to depths that are not accessible by the survey. The ocean floor will be mapped account for water depth. Actual Langseth (less than 25 m [82 ft]), with the Kongsberg EM 122 multibeam operating parameters will be established seafloor geophones and both offshore echosounder and a Knudsen 320B sub- at the time of the survey. and onshore seismic sources will be bottom profiler. These sound sources NMFS expects that acoustic stimuli used. The currently proposed locations will be operated continuously from the resulting from the proposed operation of for the seafloor geophone lines between Langseth throughout the cruise. the single airgun or the 18 airgun array Point Buchon and Point San Luis are Multibeam Echosounder has the potential to harass marine shown in Figure 7 of the IHA mammals. NMFS does not expect that application. The Langseth will operate a the movement of the Langseth, during Kongsberg EM 122 multibeam Twelve Fairfield Z700 marine nodes the conduct of the seismic survey, has would be placed on the seafloor along echosounder concurrently during airgun the potential to harass marine mammals operations to map characteristics of the two nearshore survey routes as a pilot because of the relatively slow operation test prior to the full deployment of 600 ocean floor. The hull-mounted speed of the vessel (approximately 4.6 multibeam echosounder emits brief nodes scheduled for 2013. The northern knots [kts]; 8.5 km/hr; 5.3 mph) during route (Crowbar Beach) traverses the pulses of sound (also called a ping) seismic acquisition. (10.5 to 13, usually 12 kHz) in a fan- Point Buchon MPA north of Diablo shaped beam that extends downward Gravimeter Canyon Power Plant. The southern route and to the sides of the ship. The (either Green Peak or Deer Canyon) is ° ° The Langseth will employ a Bell located south of the Diablo Canyon transmitting beamwidth is 1 or 2 fore- Aerospace BGM–3 gravimeter system aft and 150° athwartship and the Power Plant. The approximate locations (see Figure 5 of the IHA application) to maximum source level is 242 dB re: 1 of the proposed nodal routes are measure very tiny fractional changes mPa. depicted in Figure 7 of the IHA Each ping consists of eight (in water within the Earth’s gravity caused by application. Six nodes would be placed greater than 1,000 m) or four (less than nearby geologic structures, the shape of at 500 m (1,640.4 ft) intervals along each 1,000 m) successive, fan-shaped the Earth, and by temporal tidal route for a total length of 3 km (1.9 mi). transmissions, each ensonifying a sector variations. The gravimeter has been Maximum water depth ranges from 70 that extends 1° fore-aft. Continuous- specifically designed to make precision m (229.7 ft) (Crowbar) to 30 m (98.4 ft) wave pulses increase from 2 to 15 measurements in a high motion (Deer Canyon). Marine nodes would be milliseconds (ms) long in water depths environment. Precision gravity deployed using a vessel and (in some up to 2,600 m (8,350.2 ft), and frequency measurements are attained by the use of locations) divers and will be equipped modulated (FM) chirp pulses up to 100 the highly accurate Bell Aerospace with ultra-short baseline acoustic ms long are used in water greater than Model XI inertial grade accelerometer. tracking system to position and facilitate 2,600 m. The successive transmissions Magnetometer recovery of each node. The tracking span an overall cross-track angular equipment will be used to provide extent of about 150°, with 2 ms gaps The Langseth will employ a Bell underwater positioning of a remotely between the pulses for successive Aerospace BGM–3 geometer, which operated vehicle during deployment sectors (see Table 2 of the IHA contains a model G–882 cesium-vapor and recovery of the nodes. application). marine magnetometer (see Figure 6 of The seafloor equipment will be in the IHA application). Magnetometers place for the duration of the data Sub-Bottom Profiler measure the strength and/or direction of collection for the offshore 3D high The Langseth will also operate a a magnetic field, generally in units of energy seismic surveys plus deployment Knudsen Chirp 320B sub-bottom nanotesla in order to detect and map and recovery time. Node deployment continuously throughout the cruise geologic formations. These data would will be closely coordinated with both simultaneously with the multibeam enhance earlier marine magnetic offshore and onshore survey operations echosounder to map and provide mapping conducted by the U.S. to ensure survey activities are information about the sedimentary Geologic Survey (Sliter et al., 2009). completed before the projected batter features and bottom topography. The The G–882 is designed for operation life of 45 days is exceeded. PG&E beam is transmitted as a 27° cone, from small vessels for shallow water anticipates using a locally-available which is directed downward by a 3.5 surveys as well as for the large survey vessel to deploy and retrieve the kHz transducer in the hull of the vessels for deep tow applications. Power geophones. The vessel would be a Langseth. The maximum output is 1 may be supplied from a 24 to 30 VDC maximum of 50 m in length. The kilowatt (kW), but in practice, the battery power or a 110/220 VAC power Michael Uhl, which is locally available, output varies with water depth. The supply. The standard G–882 tow cable its sister vessel, or a vessel of similar pulse interval is one second, but a includes a Vectran strength member and size and engine specification, is common mode of operation is to can be built to up to 700 m (2,297 ft) (no proposed for this purpose. broadcast five pulses at one second telemetry required). The shipboard end Onshore, a linear array of ZL and intervals followed by a 5-second pause. of the tow cable is attached to a junction nodals will be deployed along a single Both the multibeam echosounder and box or onboard cable. Output data are route on the Morro Strand to record sub-bottom profiler are operated recorded on a computer with an RS–232 onshore sound transmitted from the continuously during survey operations. serial port. offshore airgun surveys. Route location Given the relatively shallow water Both the gravimeter and is shown in Figure 9 of the IHA depths of the survey area (20 to 300 m magnetometers are ‘‘passive’’ application. Ninety nodes would be [66 to 984 ft]), the number of pings or instruments and do not emit sounds, placed at 100 m (328 ft) intervals along transmissions would be reduced from 8 impulses, or signals, and are not the strand for a total route length of to 4, and the pulse durations would be expected to affect marine mammals. approximately 9 km (5.6 mi). The

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autonomous, nodal, cable-less recording • Onshore geophone deployment—2 Description of the Marine Mammals in devices (see Figure 9 of the IHA to 3 days (concurrent with offshore the Area of the Proposed Specified application) would be deployed by foot deployment activities); Activity into the soil adjacent to existing roads, • Equipment calibration and sound trails, and beaches. The nodal systems check (i.e., sound source verification)— Thirty-six marine mammal species (29 are carried in backpacks and pressed 5 days; cetaceans [whales, dolphins, and into the ground at each receiver point. • Seismic survey—23.25 days (Survey porpoises], 6 pinnipeds [seals and sea Each nodal would be removed following Box 4 will be surveyed first followed by lions], and 1 fissiped) are known to or completion of the data collection. PG&E Survey Box 2, 24/7 operations in all could occur off the central coast of estimates that the onshore receiver areas); California study area. Several of these activities would be conducted over a 2 • Survey Box 4 (survey area within species are listed as endangered under to 3 day period, concurrent with the Estero Bay)—9.25 days; the U.S. Endangered Species Act of offshore surveys. The onshore receivers • Survey Box 2 (survey area from 1973 (ESA; 16 U.S.C. 1531 et seq.), would record the offshore sound Estero Bay to offshore to the mouth of including the North Pacific right sources during the seismic operations. the Santa Maria River)—14 days; (Eubalaena japonica), humpback Figure 10 of the IHA application depicts • Streamer and airgun preventative (Megaptera novaeangliae), sei the area where the onshore receivers are maintenance—2 days; (Balaenoptera borealis), fin proposed to be placed along the Morro • Additional shut-downs (marine (Balaenoptera physalus), blue Strand. PG&E and NMFS have mammal presence, crew changes, and (Balaenoptera musculus), and sperm determined that onshore activities are unanticipated weather delays)—4 days; (Physeter macrocephalus) whales. The unlikely to impact marine mammals, • Demobilization—6 days. Guadalupe fur seal (Arctocephalus including pinnipeds at haul-outs and Placement of the onshore receiver townsendi) and Eastern stock of Steller rookeries, in the proposed action area. lines would be completed prior to the sea lion (Eumetopias jubatus), and More information on the vessels, start of offshore survey activities and southern sea otter (Enhydra lutris equipment, and personnel requirements would remain in place until the offshore nereis) are listed as threatened under the proposed for use in the offshore survey survey can be completed. Some minor ESA. The southern sea otter is the one can be found in sections 1.4 and 1.5 of deviation from this schedule is possible, the IHA application. marine mammal species mentioned in depending on logistics and weather (i.e., this document that is managed by the Dates, Duration, and Specified the cruise may depart earlier or be U.S. Fish and Wildlife Service (USFWS) Geographic Region extended due to poor weather; there and is not considered further in this The proposed project located offshore could be additional days of seismic analysis; all others are managed by of central California would have a total operations if collected data are deemed NMFS. While in their range, North duration of approximately 49.25 to be of substandard quality). Pacific right, sei, and sperm whale operational days occurring during the The latitude and longitude for the sightings are uncommon in the November through December, 2012 bounds of the two survey boxes are: proposed project area, and have a low timeframe, which will include Survey Box 4: likelihood of occurrence during the approximately 24 days of active seismic 35° 25′ 21.7128″ North, 120° 57′ proposed seismic survey. Similarly, the airgun operations. Mobilization will 44.7001″ West proposed project area is generally north initiate on October 15, 2012, with active 35° 20′ 16.0648″ North, 121° 9′ 24.1914″ of the range of the Guadalupe fur seal. airgun surveys taking place from West Table 2 (below) presents information on November 1 through December 31, 35° 18′ 38.3096″ North, 120° 53′ the abundance, distribution, population 2012. Below is an estimated schedule 29.9525″ West status, conservation status, and for the proposed project based on the 35° 14′ 42.003″ North, 121° 3′ 36.9513″ population trend of the species of use of the Langseth as the primary West marine mammals that may occur in the survey vessel (the total number of days Survey Box 2: proposed study area during November is based on adding the non-concurrent ° ′ ″ ° ′ to December, 2012. tasks): 34 57 43.3388 North, 120 45 • Mobilization to project site—6 days; 12.8318″ West Table 2. The habitat, regional • Initial equipment deployment—3 34° 55′ 40.383″ North, 120° 48′ 59.3101″ abundance, and conservation status of days (includes offshore geophone West marine mammals that may occur in or deployment); 35° 25′ 40.62″ North, 121° 00′ 27.12″ near the proposed seismic survey area • Pre-activity marine mammal West off the central coast of California. (See surveys—5 days (concurrent with 35° 23′ 57.26″ North, 121° 04′ 37.28″ text and Table 4 in L–DEO and PG&E’s offshore deployment activities); West application for further details.)

3 Population estimate 1 2 3 Species Habitat (minimum) ESA MMPA Population trend

Mysticetes: North Pacific right whale Pelagic and coastal ...... NA (18 to 21)—Eastern EN ...... D ...... No information avail- (Eubalaena japonica). North Pacific stock. able Gray whale (Eschrichtius Coastal, shallow shelf .. 19,126 (18,017)—East- DL—Eastern North Pa- NC—Eastern North Pa- Increasing over past robustus). ern North Pacific cific stock EN—West- cific stock D—West- several decades stock. ern North Pacific ern North Pacific stock. stock. Humpback whale (Megaptera Mainly nearshore, 2,043 (1,878)—Cali- EN ...... D ...... Increasing novaeangliae). banks. fornia/Oregon/Wash- ington stock. Minke whale (Balaenoptera Pelagic and coastal ...... 478 (202)—California/ NL ...... NC ...... No information avail- acutorostrata). Oregon/Washington able stock.

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3 Population estimate 1 2 3 Species Habitat (minimum) ESA MMPA Population trend

Sei whale (Balaenoptera bo- Primarily offshore, pe- 126 (83)—Eastern EN ...... D ...... No information avail- realis). lagic. North Pacific stock. able Fin whale (Balaenoptera Continental slope, pe- 3,044 (2,624)—Cali- EN ...... D ...... Unable to determine physalus). lagic. fornia/Oregon/Wash- ington stock. Blue whale (Balaenoptera Pelagic, shelf, coastal .. 2,497 (2,046)—Eastern EN ...... D ...... Unable to determine musculus). North Pacific stock. Odontocetes: Sperm whale (Physeter Pelagic, deep sea ...... 971 (751)—California/ EN ...... D ...... Variable macrocephalus). Oregon/Washington stock. Pygmy sperm whale (Kogia Deep waters off the 579 (271)—California/ NL ...... NC ...... No information avail- breviceps). shelf. Oregon/Washington able stock. Dwarf sperm whale (Kogia Deep waters off the NA—California/Oregon/ NL ...... NC ...... No information avail- sima). shelf. Washington stock. able Cuvier’s beaked whale Pelagic ...... 2,143 (1,298)—Cali- NL ...... NC ...... No information avail- (Ziphius cavirostris). fornia/Oregon/Wash- able ington stock. Baird’s beaked whale Pelagic ...... 907 (615)—California/ NL ...... NC ...... No information avail- (Berardius bairdii). Oregon/Washington able stock. Mesoplodon beaked whale Pelagic ...... 1,204 (576)—California/ NL ...... NC ...... No information avail- (includes Blainville’s Oregon/Washington able beaked whale [M. stock. densirostris], Perrin’s beaked whale [M. perrini], Lesser beaked whale [M. peruvianis], Stejneger’s beaked whale [M. stejnegeri], Gingko-toothed beaked whale [M. gingkodens], Hubbs’ beaked whale [M. carlhubbsi]). Bottlenose dolphin (Tursiops Coastal, oceanic, shelf 1,006 (684)—California/ NL ...... NC D—Western North No information avail- truncatus). break. Oregon/Washington Atlantic coastal. able Stable stock 323 (290)— California Coastal stock. Striped dolphin (Stenella Off continental shelf ..... 10,908 (8,231)—Cali- NL ...... NC ...... Unable to determine coeruleoalba). fornia/Oregon/Wash- ington stock. Short-beaked common dol- Shelf, pelagic, 411,211 (343,990)— NL ...... NC ...... Variable with oceano- phin (Delphinus delphis). seamounts. California/Oregon/ graphic conditions Washington stock. Long-beaked common dol- Coastal, on continental 27,046 (17,127)—Cali- NL ...... NC ...... No information avail- phin (Delphinus capensis). shelf. fornia stock. able, variable with oceanographic condi- tions Pacific white-sided dolphin Offshore, slope ...... 26,930 (21,406)—Cali- NL ...... NC ...... No information avail- (Lagenorhynchus fornia/Oregon/Wash- able obliquidens). ington stock. Northern right whale dolphin Slope, offshore waters 8,334 (6,019)—Cali- NL ...... NC ...... Unable to determine (Lissodelphis borealis). fornia/Oregon/Wash- ington stock. Risso’s dolphin (Grampus Deep water, seamounts 6,272 (4,913)—Cali- NL ...... NC ...... Unable to determine griseus). fornia/Oregon/Wash- ington stock. Killer whale (Orcinus orca) .... Pelagic, shelf, coastal .. 240 (162)—Eastern NL EN—Southern resi- NC D—Southern resi- No information avail- North Pacific Off- dent. dent, AT1 transient. able, No information shore stock 346 available, Declining, (346)—Eastern North Increased and slow- Pacific Transient ing stock 354 (354)— West Coast Transient stock. Short-finned pilot whale Pelagic, shelf coastal ... 760 (465)—California/ NL ...... NC ...... Unable to determine (Globicephala Oregon/Washington macrorhynchus). stock. Harbor porpoise (Phocoena Coastal and inland 2,044 (1,478)—Morro NL ...... NC ...... Increasing phocoena). waters. Bay stock. Dall’s porpoise Shelf, slope, offshore ... 42,000 (32,106)—Cali- NL ...... NC ...... No information avail- (Phocoenoides dalli). fornia/Oregon/Wash- able ington stock. Pinnipeds: California sea lion (Zalophus Coastal, shelf ...... 296,750 (153,337)— NL ...... NC ...... Increasing californianus). U.S. stock. Steller sea lion (Eumetopias Coastal, shelf ...... 49,685 (42,366)—West- T ...... D ...... Decreasing in California jubatus). ern stock 58,334 to 72,223 (52,847)— Eastern stock.

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3 Population estimate 1 2 3 Species Habitat (minimum) ESA MMPA Population trend

Guadalupe fur seal Coastal, shelf ...... 7,408 (3,028)—Mexico T ...... D ...... Increasing (Arctocephalus townsendi). stock. Northern fur seal (Callorhinus Pelagic, offshore ...... 9,968 (5,395)—San NL ...... D ...... Increasing ursinus). Miguel Island stock. Northern elephant seal Coastal, pelagic in mi- 124,000 (74,913)—Cali- NL ...... NC ...... Increasing (Mirounga angustirostris). gration. fornia Breeding stock. Pacific harbor seal (Phoca Coastal ...... 30,196 (26,667)—Cali- NL ...... NC ...... Increasing vitulina richardsi). fornia stock. Fissipeds: Southern sea otter (Enhydra Coastal ...... 2,711—California stock T ...... D ...... Increasing lutris nereis). NA = Not available or not assessed. 1 U.S. Endangered Species Act: EN = Endangered, T = Threatened, DL = Delisted, NL = Not listed. 2 U.S. Marine Mammal Protection Act: D = Depleted, NC = Not Classified. 3 NMFS Stock Assessment Reports.

In the Pacific Ocean, harbor porpoises approximately 13%. Appendix B of the physiological effects. Based on the are found in coastal and inland waters IHA application includes more detailed available data and studies described from California to Alaska and across to information on the density figures and here, some behavioral disturbance is Kamchatka and Japan (Gakin, 1984). calculations for the Morro Bay stock of expected, especially for the Morro Bay Harbor porpoises appear to have more harbor porpoise. Figure 1 of Appendix harbor porpoise stock, which could restricted movements along the western B shows the fine-scale density potentially be displaced from their core coast of the continental United States, (including core habitat of higher habitat during all or part of the seismic than along the eastern coast, with some density) as well as the proposed survey or longer. A more comprehensive regional differences within California. tracklines of Survey Box 4 and Survey review of these issues can be found in Based on genetic differences that Box 2. the ‘‘Programmatic Environmental showed small-scale subdivision within Refer to sections 3 and 4 of L–DEO Impact Statement/Overseas the U.S. portion of its range, California and PG&E’s application for detailed Environmental Impact Statement coast stocks were re-evaluated and the information regarding the abundance prepared for Marine Seismic Research stock boundaries were revised. The and distribution, population status, and that is funded by the National Science boundaries (i.e., range) for the Morro life history and behavior of these other Foundation and conducted by the U.S. Bay stock of harbor porpoises are from marine mammal species and their Geological Survey’’ (NSF/USGS, 2011). Point Sur to Point Conception, occurrence in the proposed project area. California. The vast majority of harbor The application also presents how L– Tolerance porpoise in California are within the 0 DEO and PG&E calculated the estimated Richardson et al. (1995) defines to 92 m (0 to 301.8 ft) depth, however, densities for the marine mammals in the tolerance as the occurrence of marine a smaller percentage can be found proposed survey area. NMFS has mammals in areas where they are between the 100 to 200 m (328 to 656.2 reviewed these data and determined exposed to human activities or man- ft) isobaths. A systematic ship survey of them to be the best available scientific made noise. In many cases, tolerance depth strata out to 90 m (295.3 ft) in information for the purposes of the develops by the animal habituating to northern California showed that harbor proposed IHA. the stimulus (i.e., the gradual waning of porpoise abundance declined responses to a repeated or ongoing significantly in waters deep than 60 m Potential Effects on Marine Mammals stimulus) (Richardson, et al., 1995; (196.9 ft) (Caretta et al., 2001b). Acoustic stimuli generated by the Thorpe, 1963), but because of ecological Additionally, individuals of the Morro operation of the airguns, which or physiological requirements, many Bay stock appear to be concentrated at introduce sound into the marine marine animals may need to remain in significantly higher densities in one environment, may have the potential to areas where they are exposed to chronic specific area of their overall range, cause Level B harassment of marine stimuli (Richardson, et al., 1995). which NMFS is referring to as their mammals in the proposed survey area. Numerous studies have shown that ‘‘core range,’’ and density is much lower The effects of sounds from airgun pulsed sounds from airguns are often to both the North and South of this area. operations might include one or more of readily detectable in the water at This core range has the larger number of the following: tolerance, masking of distances of many kilometers. Several harbor porpoise sightings and the largest natural sounds, behavioral disturbance, studies have shown that marine number of harbor porpoise individuals temporary or permanent hearing mammals at distances more than a few observed during line-transect surveys impairment, or non-auditory physical or kilometers from operating seismic and is defined for the purposes of this physiological effects (Richardson et al., vessels often show no apparent analysis from 34.755° through 35.425° 1995; Gordon et al., 2004; Nowacek et response. That is often true even in North latitude (see transects 3 to 6 in al., 2007; Southall et al., 2007). cases when the pulsed sounds must be Table 1 of Appendix B of the IHA Permanent hearing impairment, in the readily audible to the animals based on application). For the Morro Bay stock, unlikely event that it occurred, would measured received levels and the the best estimate of abundance is 2,044 constitute injury, but temporary hearing sensitivity of the marine animals and the minimum population threshold shift (TTS) is not an injury mammal group. Although various estimate is 1,478 animals. There has (Southall et al., 2007). Although the baleen whales and toothed whales, and been an increasing trend in harbor possibility cannot be entirely excluded, (less frequently) pinnipeds have been porpoise abundance in Morro Bay since it is unlikely that the proposed project shown to react behaviorally to airgun 1988. The observed increase in would result in any cases of temporary pulses under some conditions, at other abundance estimates for this stock since or permanent hearing impairment, or times marine mammals of all three types 1988 implies an annual growth rate of any significant non-auditory physical or have shown no overt reactions. The

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relative responsiveness of baleen and sounds at frequencies higher than the The biological significance of many of toothed whales are quite variable. dominant components of airgun sound, these behavioral disturbances is difficult but there is some overlap in the to predict, especially if the detected Masking frequencies of the airgun pulses and the disturbances appear minor. However, The term masking refers to the calls. However, the intermittent nature the consequences of behavioral inability of a subject to recognize the of airgun pulses presumably reduces the modification could be expected to be occurrence of an acoustic stimulus as a potential for masking biologically significant if the change result of the interference of another Marine mammals are thought to be affects growth, survival, and/or acoustic stimulus (Clark et al., 2009). able to compensate for masking by reproduction. Some of these significant Introduced underwater sound may, behavioral modifications include: adjusting their acoustic behavior • through masking, reduce the effective through shifting call frequencies, Change in diving/surfacing patterns communication distance of a marine increasing call volume, and increasing (such as those thought to be causing mammal species if the frequency of the vocalization rates. For example, blue beaked whale stranding due to exposure source is close to that used as a signal whales are found to increase call rates to military mid-frequency tactical by the marine mammal, and if the when exposed to noise from seismic sonar); anthropogenic sound is present for a • surveys in the St. Lawrence Estuary Habitat abandonment due to loss of significant fraction of the time desirable acoustic environment; and (Dilorio and Clark, 2009). The North (Richardson et al., 1995). • Cessation of feeding or social Atlantic right whales (Eubalaena Masking effects of pulsed sounds interaction. (even from large arrays of airguns) on glacialis) exposed to high shipping The onset of behavioral disturbance marine mammal calls and other natural noise increased call frequency (Parks et from anthropogenic noise depends on sounds are expected to be limited. al., 2007), while some humpback both external factors (characteristics of Because of the intermittent nature and whales respond to low-frequency active noise sources and their paths) and the low duty cycle of seismic airgun pulses, sonar playbacks by increasing song receiving animals (hearing, motivation, animals can emit and receive sounds in length (Miller et al., 2000). In general, experience, demography) and is also the relatively quiet intervals between NMFS expects the masking effects of difficult to predict (Richardson et al., pulses. However, in some situations, seismic pulses to be minor, given the 1995; Southall et al., 2007). Given the reverberation occurs for much or the normally intermittent nature of seismic many uncertainties in predicting the entire interval between pulses (e.g., pulses. quantity and types of impacts of noise Simard et al., 2005; Clark and Gagnon, Behavioral Disturbance on marine mammals, it is common 2006) which could mask calls. Some practice to estimate how many baleen and toothed whales are known to Marine mammals may behaviorally mammals would be present within a continue calling in the presence of react to sound when exposed to particular distance of industrial seismic pulses, and their calls can anthropogenic noise. Disturbance activities and/or exposed to a particular usually be heard between the seismic includes a variety of effects, including level of sound. In most cases, this pulses (e.g., Richardson et al., 1986; subtle to conspicuous changes in approach likely overestimates the McDonald et al., 1995; Greene et al., behavior, movement, and displacement. numbers of marine mammals that would 1999; Nieukirk et al., 2004; Smultea et Reactions to sound, if any, depend on be affected in some biologically- al., 2004; Holst et al., 2005a,b, 2006; and species, state of maturity, experience, important manner. Dunn and Hernandez, 2009). However, current activity, reproductive state, time Baleen Whales—Baleen whales Clark and Gagnon (2006) reported that of day, and many other factors generally tend to avoid operating fin whales in the North Atlantic Ocean (Richardson et al., 1995; Wartzok et al., airguns, but avoidance radii are quite went silent for an extended period 2004; Southall et al., 2007; Weilgart, variable (reviewed in Richardson et al., starting soon after the onset of a seismic 2007). These behavioral reactions are 1995; Gordon et al., 2004). Whales are survey in the area. Similarly, there has often shown as: Changing durations of often reported to show no overt been one report that sperm whales surfacing and dives, number of blows reactions to pulses from large arrays of ceased calling when exposed to pulses per surfacing, or moving direction and/ airguns at distances beyond a few from a very distant seismic ship (Bowles or speed; reduced/increased vocal kilometers, even though the airgun et al., 1994). However, more recent activities; changing/cessation of certain pulses remain well above ambient noise studies found that they continued behavioral activities (such as socializing levels out to much longer distances. calling in the presence of seismic pulses or feeding); visible startle response or However, baleen whales exposed to (Madsen et al., 2002; Tyack et al., 2003; aggressive behavior (such as tail/fluke strong noise pulses from airguns often Smultea et al., 2004; Holst et al., 2006; slapping or jaw clapping); avoidance of react by deviating from their normal and Jochens et al., 2008). Dilorio and areas where noise sources are located; migration route and/or interrupting Clark (2009) found evidence of and/or flight responses (e.g., pinnipeds their feeding and moving away. In the increased calling by blue whales during flushing into the water from haul-outs cases of migrating gray and bowhead operations by a lower-energy seismic or rookeries). If a marine mammal does whales, the observed changes in source (i.e., sparker). Dolphins and react briefly to an underwater sound by behavior appeared to be of little or no porpoises commonly are heard calling changing its behavior or moving a small biological consequence to the animals while airguns are operating (e.g., distance, the impacts of the change are (Richardson, et al., 1995). They simply Gordon et al., 2004; Smultea et al., 2004; unlikely to be significant to the avoided the sound source by displacing Holst et al., 2005a, b; and Potter et al., individual, let alone the stock or their migration route to varying degrees, 2007). The sounds important to small population. However, if a sound source but within the natural boundaries of the odontocetes are predominantly at much displaces marine mammals from an migration corridors. higher frequencies than are the important feeding or breeding area for a Studies of gray, bowhead, and dominant components of airgun sounds, prolonged period, impacts on humpback whales have shown that thus limiting the potential for masking. individuals and populations could be seismic pulses with received levels of Pinnipeds have the most sensitive significant (e.g., Lusseau and Bejder, 160 to 170 dB re 1 mPa (rms) seem to hearing and/or produce most of their 2007; Weilgart, 2007). cause obvious avoidance behavior in a

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substantial fraction of the animals Holst, 2010). In addition, humpback whales off British Columbia (Bain and exposed (Malme et al., 1986, 1988; whales were more likely to swim away Williams, 2006). Richardson et al., 1995). In many areas, and less likely to swim towards a vessel Various species of Balaenoptera (blue, seismic pulses from large arrays of during seismic vs. non-seismic periods sei, fin, and minke whales) have airguns diminish to those levels at (Moulton and Holst, 2010). occasionally been seen in areas distances ranging from 4 to 15 km (2.2 Humpback whales on their summer ensonified by airgun pulses (Stone, to 8.1 nmi) from the source. A feeding grounds in southeast Alaska did 2003; MacLean and Haley, 2004; Stone substantial proportion of the baleen not exhibit persistent avoidance when and Tasker, 2006), and calls from blue whales within those distances may exposed to seismic pulses from a 1.64– and fin whales have been localized in show avoidance or other strong L (100 in3) airgun (Malme et al., 1985). areas with airgun operations (e.g., behavioral reactions to the airgun array. Some humpbacks seemed ‘‘startled’’ at McDonald et al., 1995; Dunn and Subtle behavioral changes sometimes received levels of 150 to 169 dB re 1 Hernandez, 2009; Castellote et al., become evident at somewhat lower mPa. Malme et al. (1985) concluded that 2010). Sightings by observers on seismic received levels, and studies have shown there was no clear evidence of vessels off the United Kingdom from that some species of baleen whales, avoidance, despite the possibility of 1997 to 2000 suggest that, during times notably bowhead, gray, and humpback subtle effects, at received levels up to of good sightability, sighting rates for whales, at times, show strong avoidance 172 dB re 1 mPa (rms). However, mysticetes (mainly fin and sei whales) at received levels lower than 160 to 170 Moulton and Holst (2010) reported that were similar when large arrays of dB re 1 mPa (rms). humpback whales monitored during airguns were shooting vs. silent (Stone, Researchers have studied the seismic surveys in the Northwest 2003; Stone and Tasker, 2006). responses of humpback whales to Atlantic had lower sighting rates and However, these whales tended to exhibit seismic surveys during migration, were most often seen swimming away localized avoidance, remaining feeding during the summer months, from the vessel during seismic periods significantly further (on average) from breeding while offshore from Angola, compared with periods when airguns the airgun array during seismic and wintering offshore from Brazil. were silent. operations compared with non-seismic McCauley et al. (1998, 2000a) studied periods (Stone and Tasker, 2006). Studies have suggested that South the responses of humpback whales off Castellote et al. (2010) reported that Atlantic humpback whales wintering off western Australia to a full-scale seismic singing fin whales in the Mediterranean Brazil may be displaced or even strand survey with a 16 airgun array (2,678 in3) moved away from an operating airgun upon exposure to seismic surveys (Engel and to a single airgun (20 in3) with array. et al., 2004). The evidence for this was source level of 227 dB re 1 mPa (p-p). In Ship-based monitoring studies of circumstantial and subject to alternative the 1998 study, they documented that baleen whales (including blue, fin, sei, explanations (IAGC, 2004). Also, the avoidance reactions began at 5 to 8 km minke, and humpback whales) in the evidence was not consistent with (2.7 to 4.3 nmi) from the array, and that Northwest Atlantic found that overall, subsequent results from the same area of those reactions kept most pods this group had lower sighting rates approximately 3 to 4 km (1.6 to 2.2 nmi) Brazil (Parente et al., 2006), or with during seismic vs. non-seismic periods from the operating seismic boat. In the direct studies of humpbacks exposed to (Moulton and Holst, 2010). Baleen 2000 study, they noted localized seismic surveys in other areas and whales as a group were also seen displacement during migration of 4 to 5 seasons. After allowance for data from significantly farther from the vessel km (2.2 to 2.7 nmi) by traveling pods subsequent years, there was ‘‘no during seismic compared with non- and 7 to 12 km (3.8 to 6.5 nmi) by more observable direct correlation’’ between seismic periods, and they were more sensitive resting pods of cow-calf pairs. strandings and seismic surveys (IWC, often seen to be swimming away from Avoidance distances with respect to the 2007: 236). the operating seismic vessel (Moulton single airgun were smaller but Reactions of migrating and feeding and Holst, 2010). Blue and minke consistent with the results from the full (but not wintering) gray whales to whales were initially sighted array in terms of the received sound seismic surveys have been studied. significantly farther from the vessel levels. The mean received level for Malme et al. (1986, 1988) studied the during seismic operations compared to initial avoidance of an approaching responses of feeding eastern Pacific gray non-seismic periods; the same trend was airgun was 140 dB re 1 mPa (rms) for whales to pulses from a single 100 in3 observed for fin whales (Moulton and humpback pods containing females, and airgun off St. Lawrence Island in the Holst, 2010). Minke whales were most at the mean closest point of approach northern Bering Sea. They estimated, often observed to be swimming away distance the received level was 143 dB based on small sample sizes, that 50 from the vessel when seismic operations re 1 mPa (rms). The initial avoidance percent of feeding gray whales stopped were underway (Moulton and Holst, response generally occurred at distances feeding at an average received pressure 2010). of 5 to 8 km (2.7 to 4.3 nmi) from the level of 173 dB re 1 mPa on an Data on short-term reactions by airgun array and 2 km (1.1 nmi) from (approximate) rms basis, and that 10 cetaceans to impulsive noises are not the single airgun. However, some percent of feeding whales interrupted necessarily indicative of long-term or individual humpback whales, especially feeding at received levels of 163 dB re biologically significant effects. It is not males, approached within distances of 1 mPa (rms). Those findings were known whether impulsive sounds affect 100 to 400 m (328 to 1,312 ft), where the generally consistent with the results of reproductive rate or distribution and maximum received level was 179 dB re experiments conducted on larger habitat use in subsequent days or years. 1 mPa (rms). numbers of gray whales that were However, gray whales have continued to Data collected by observers during migrating along the California coast migrate annually along the west coast of several seismic surveys in the (Malme et al., 1984; Malme and Miles, North America with substantial Northwest Atlantic showed that sighting 1985), and western Pacific gray whales increases in the population over recent rates of humpback whales were feeding off Sakhalin Island, Russia years, despite intermittent seismic significantly greater during non-seismic (Wursig et al., 1999; Gailey et al., 2007; exploration (and much ship traffic) in periods compared with periods when a Johnson et al., 2007; Yazvenko et al., that area for decades (Appendix A in full array was operating (Moulton and 2007a, b), along with data on gray Malme et al., 1984; Richardson et al.,

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1995; Allen and Angliss, 2010). The Captive bottlenose dolphins (Tursiops whales would also show strong western Pacific gray whale population truncatus) and beluga whales exhibited avoidance of an approaching seismic did not seem affected by a seismic changes in behavior when exposed to vessel, although this has not been survey in its feeding ground during a strong pulsed sounds similar in documented explicitly. In fact, Moulton previous year (Johnson et al., 2007). duration to those typically used in and Holst (2010) reported 15 sightings Similarly, bowhead whales have seismic surveys (Finneran et al., 2000, of beaked whales during seismic studies continued to travel to the eastern 2002, 2005). However, the animals in the Northwest Atlantic; seven of Beaufort Sea each summer, and their tolerated high received levels of sound those sightings were made at times numbers have increased notably, before exhibiting aversive behaviors. when at least one airgun was operating. despite seismic exploration in their Results for porpoises depend on There was little evidence to indicate summer and autumn range for many species. The limited available data that beaked whale behavior was affected years (Richardson et al., 1987; Allen and suggest that harbor porpoises show by airgun operations; sighting rates and Angliss, 2010). The history of stronger avoidance of seismic operations distances were similar during seismic coexistence between seismic surveys than do Dall’s porpoises (Stone, 2003; and non-seismic periods (Moulton and and baleen whales suggests that brief MacLean and Koski, 2005; Bain and Holst, 2010). exposures to sound pulses from any Williams, 2006; Stone and Tasker, There are increasing indications that single seismic survey are unlikely to 2006). Dall’s porpoises seem relatively some beaked whales tend to strand result in prolonged effects. tolerant of airgun operations (MacLean when naval exercises involving mid- Toothed Whales—Little systematic and Koski, 2005; Bain and Williams, frequency sonar operation are ongoing information is available about reactions 2006), although they too have been nearby (e.g., Simmonds and Lopez- of toothed whales to noise pulses. Few observed to avoid large arrays of Jurado, 1991; Frantzis, 1998; NOAA and studies similar to the more extensive operating airguns (Calambokidis and USN, 2001; Jepson et al., 2003; baleen whale/seismic pulse work Osmek, 1998; Bain and Williams, 2006). Hildebrand, 2005; Barlow and Gisiner, summarized above have been reported This apparent difference in 2006; see also the ‘‘Stranding and for toothed whales. However, there are responsiveness of these two porpoise Mortality’’ section in this notice). These recent systematic studies on sperm species is consistent with their relative strandings are apparently a disturbance whales (e.g., Gordon et al., 2006; responsiveness to boat traffic and some response, although auditory or other Madsen et al., 2006; Winsor and Mate, other acoustic sources (Richardson et injuries or other physiological effects 2006; Jochens et al., 2008; Miller et al., al., 1995; Southall et al., 2007). may also be involved. Whether beaked 2009). There is an increasing amount of Most studies of sperm whales exposed whales would ever react similarly to information about responses of various to airgun sounds indicate that the sperm seismic surveys is unknown. Seismic odontocetes to seismic surveys based on whale shows considerable tolerance of survey sounds are quite different from monitoring studies (e.g., Stone, 2003; airgun pulses (e.g., Stone, 2003; those of the sonar in operation during Smultea et al., 2004; Moulton and Moulton et al., 2005, 2006a; Stone and the above-cited incidents. Miller, 2005; Bain and Williams, 2006; Tasker, 2006; Weir, 2008). In most cases Odontocete reactions to large arrays of Holst et al., 2006; Stone and Tasker, the whales do not show strong airguns are variable and, at least for 2006; Potter et al., 2007; Hauser et al., avoidance, and they continue to call. delphinids and Dall’s porpoises, seem to 2008; Holst and Smultea, 2008; Weir, However, controlled exposure be confined to a smaller radius than has 2008; Barkaszi et al., 2009; Richardson experiments in the Gulf of Mexico been observed for the more responsive et al., 2009; Moulton and Holst, 2010). indicate that foraging behavior was of some mysticetes. However, other data Seismic operators and PSOs on altered upon exposure to airgun sound suggest that some odontocete species, seismic vessels regularly see dolphins (Jochens et al., 2008; Miller et al., 2009; including harbor porpoises, may be and other small toothed whales near Tyack, 2009). more responsive than might be expected operating airgun arrays, but in general There are almost no specific data on given their poor low-frequency hearing. there is a tendency for most delphinids the behavioral reactions of beaked Reactions at longer distances may be to show some avoidance of operating whales to seismic surveys. However, particularly likely when sound seismic vessels (e.g., Goold, 1996 a,b,c; some northern bottlenose whales propagation conditions are conducive to Calambokidis and Osmek, 1998; Stone, (Hyperoodon ampullatus) remained in transmission of the higher frequency 2003; Moulton and Miller, 2005; Holst the general area and continued to components of airgun sound to the et al., 2006; Stone and Tasker, 2006; produce high-frequency clicks when animals’ location (DeRuiter et al., 2006; Weir, 2008; Richardson et al., 2009; exposed to sound pulses from distant Goold and Coates, 2006; Tyack et al., Barkaszi et al., 2009; Moulton and seismic surveys (Gosselin and Lawson, 2006; Potter et al., 2007). Holst, 2010). Some dolphins seem to be 2004; Laurinolli and Cochrane, 2005; Pinnipeds—Pinnipeds are not likely attracted to the seismic vessel and Simard et al., 2005). Most beaked to show a strong avoidance reaction to floats, and some ride the bow wave of whales tend to avoid approaching the airgun array. Visual monitoring from the seismic vessel even when large vessels of other types (e.g., Wursig et al., seismic vessels has shown only slight (if arrays of airguns are firing (e.g., 1998). They may also dive for an any) avoidance of airguns by pinnipeds, Moulton and Miller, 2005). Nonetheless, extended period when approached by a and only slight (if any) changes in small toothed whales more often tend to vessel (e.g., Kasuya, 1986), although it is behavior. In the Beaufort Sea, some head away, or to maintain a somewhat uncertain how much longer such dives ringed seals avoided an area of 100 m greater distance from the vessel, when a may be as compared to dives by to (at most) a few hundred meters large array of airguns is operating than undisturbed beaked whales, which also around seismic vessels, but many seals when it is silent (e.g., Stone and Tasker, are often quite long (Baird et al., 2006; remained within 100 to 200 m (328 to 2006; Weir, 2008; Barry et al., 2010; Tyack et al., 2006). Based on a single 656 ft) of the trackline as the operating Moulton and Holst, 2010). In most observation, Aguilar-Soto et al. (2006) airgun array passed by (e.g., Harris et al., cases, the avoidance radii for delphinids suggested that foraging efficiency of 2001; Moulton and Lawson, 2002; appear to be small, on the order of one Cuvier’s beaked whales may be reduced Miller et al., 2005). Ringed seal sightings km or less, and some individuals show by close approach of vessels. In any averaged somewhat farther away from no apparent avoidance. event, it is likely that most beaked the seismic vessel when the airguns

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were operating than when they were rises and a sound must be stronger in odontocetes (cf. Southall et al., 2007). not, but the difference was small order to be heard. At least in terrestrial Some cetaceans apparently can incur (Moulton and Lawson, 2002). Similarly, mammals, TTS can last from minutes or TTS at considerably lower sound in Puget Sound, sighting distances for hours to (in cases of strong TTS) days. exposures than are necessary to elicit harbor seals and California sea lions For sound exposures at or somewhat TTS in the beluga or bottlenose dolphin. tended to be larger when airguns were above the TTS threshold, hearing For baleen whales, there are no data, operating (Calambokidis and Osmek, sensitivity in both terrestrial and marine direct or indirect, on levels or properties 1998). Previous telemetry work suggests mammals recovers rapidly after of sound that are required to induce that avoidance and other behavioral exposure to the noise ends. Few data on TTS. The frequencies to which baleen reactions may be stronger than evident sound levels and durations necessary to whales are most sensitive are assumed to date from visual studies (Thompson elicit mild TTS have been obtained for to be lower than those to which et al., 1998). marine mammals, and none of the odontocetes are most sensitive, and During seismic exploration off Nova published data concern TTS elicited by natural background noise levels at those Scotia, gray seals (Halichoerus grypus) exposure to multiple pulses of sound. low frequencies tend to be higher. As a exposed to noise from airguns and Available data on TTS in marine result, auditory thresholds of baleen linear explosive charges did not react mammals are summarized in Southall et whales within their frequency band of strongly (J. Parsons in Greene et al., al. (2007). Table 1 (above) presents the best hearing are believed to be higher 1985). Pinnipeds, in both water and air, estimated distances from the Langseth’s (less sensitive) than are those of sometimes tolerate strong noise pulses airguns at which the received energy odontocetes at their best frequencies from non-explosive and explosive level (per pulse, flat-weighted) would be (Clark and Ellison, 2004). From this, it scaring devices, especially if attracted to expected to be greater than or equal to is suspected that received levels causing the area for feeding and reproduction 180 or 190 dB re 1 mPa (rms). TTS onset may also be higher in baleen (Mate and Harvey, 1987; Reeves et al., To avoid the potential for injury, whales than those of odontocetes 1996). Thus, pinnipeds are expected to NMFS (1995, 2000) concluded that (Southall et al., 2007). be rather tolerant of, or habituate to, cetaceans and pinnipeds should not be In pinnipeds, researchers have not repeated underwater sounds from exposed to pulsed underwater noise at measured TTS thresholds associated distant seismic sources, at least when received levels exceeding 180 and 190 with exposure to brief pulses (single or the animals are strongly attracted to the dB re 1 mPa (rms), respectively. NMFS multiple) of underwater sound. Initial area. believes that to avoid the potential for evidence from more prolonged (non- Level A harassment, cetaceans and pulse) exposures suggested that some Hearing Impairment and Other Physical pinnipeds should not be exposed to pinnipeds (harbor seals in particular) Effects pulsed underwater noise at received incur TTS at somewhat lower received Exposure to high intensity sound for levels exceeding 180 and 190 dB re 1 levels than do small odontocetes a sufficient duration may result in mPa (rms), respectively. The established exposed for similar durations (Kastak et auditory effects such as a noise-induced 180 and 190 dB (rms) criteria are not al., 1999, 2005; Ketten et al., 2001). The threshold shift—an increase in the considered to be the levels above which TTS threshold for pulsed sounds has auditory threshold after exposure to TTS might occur. Rather, they are the been indirectly estimated as being an noise (Finneran, Carder, Schlundt, and received levels above which, in the view SEL of approximately 171 dB re 1 mPa2·s Ridgway, 2005). Factors that influence of a panel of bioacoustics specialists (Southall et al., 2007) which would be the amount of threshold shift include convened by NMFS before TTS equivalent to a single pulse with a the amplitude, duration, frequency measurements for marine mammals received level of approximately 181 to content, temporal pattern, and energy started to become available, one could 186 dB re 1 mPa (rms), or a series of distribution of noise exposure. The not be certain that there would be no pulses for which the highest rms values magnitude of hearing threshold shift injurious effects, auditory or otherwise, are a few dB lower. Corresponding normally decreases over time following to marine mammals. NMFS also values for California sea lions and cessation of the noise exposure. The assumes that cetaceans and pinnipeds northern elephant seals are likely to be amount of threshold shift just after exposed to levels exceeding 160 dB re higher (Kastak et al., 2005). exposure is called the initial threshold 1 mPa (rms) may experience Level B Permanent Threshold Shift—When shift. If the threshold shift eventually harassment. PTS occurs, there is physical damage to returns to zero (i.e., the threshold For toothed whales, researchers have the sound receptors in the ear. In severe returns to the pre-exposure value), it is derived TTS information for cases, there can be total or partial called temporary threshold shift (TTS) odontocetes from studies on the deafness, whereas in other cases, the (Southall et al., 2007). bottlenose dolphin and beluga. The animal has an impaired ability to hear Researchers have studied TTS in experiments show that exposure to a sounds in specific frequency ranges certain captive odontocetes and single impulse at a received level of 207 (Kryter, 1985). There is no specific pinnipeds exposed to strong sounds kPa (or 30 psi, p-p), which is equivalent evidence that exposure to pulses of (reviewed in Southall et al., 2007). to 228 dB re 1 Pa (p-p), resulted in a 7 airgun sound can cause PTS in any However, there has been no specific and 6 dB TTS in the beluga whale at 0.4 marine mammal, even with large arrays documentation of TTS let alone and 30 kHz, respectively. Thresholds of airguns. However, given the permanent hearing damage, i.e., returned to within 2 dB of the pre- possibility that mammals close to an permanent threshold shift (PTS), in free- exposure level within 4 minutes of the airgun array might incur at least mild ranging marine mammals exposed to exposure (Finneran et al., 2002). For the TTS, there has been further speculation sequences of airgun pulses during one harbor porpoise tested, the received about the possibility that some realistic field conditions. level of airgun sound that elicited onset individuals occurring very close to Temporary Threshold Shift—TTS is of TTS was lower (Lucke et al., 2009). airguns might incur PTS (e.g., the mildest form of hearing impairment If these results from a single animal are Richardson et al., 1995, p. 372ff; that can occur during exposure to a representative, it is inappropriate to Gedamke et al., 2008). Single or strong sound (Kryter, 1985). While assume that onset of TTS occurs at occasional occurrences of mild TTS are experiencing TTS, the hearing threshold similar received levels in all not indicative of permanent auditory

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damage, but repeated or (in some cases) strandings are unknown (Geraci et al., specific evidence that they can cause single exposures to a level well above 1976; Eaton, 1979; Odell et al., 1980; serious injury, death, or stranding even that causing TTS onset might elicit PTS. Best, 1982). Numerous studies suggest in the case of large airgun arrays. Relationships between TTS and PTS that the physiology, behavior, habitat However, the association of strandings thresholds have not been studied in relationships, age, or condition of of beaked whales with naval exercises marine mammals, but are assumed to be cetaceans may cause them to strand or involving mid-frequency active sonar similar to those in humans and other might pre-dispose them to strand when (non-pulse sound) and, in one case, the terrestrial mammals (Southall et al., exposed to another phenomenon. These co-occurrence of an L–DEO seismic 2007). PTS might occur at a received suggestions are consistent with the survey (Malakoff, 2002; Cox et al., sound level at least several dBs above conclusions of numerous other studies 2006), has raised the possibility that that inducing mild TTS if the animal that have demonstrated that beaked whales exposed to strong were exposed to strong sound pulses combinations of dissimilar stressors ‘‘pulsed’’ sounds could also be with rapid rise times. Based on data commonly combine to kill an animal or susceptible to injury and/or behavioral from terrestrial mammals, a dramatically reduce its fitness, even reactions that can lead to stranding (e.g., precautionary assumption is that the though one exposure without the other Hildebrand, 2005; Southall et al., 2007). PTS threshold for impulse sounds (such does not produce the same result Specific sound-related processes that as airgun pulses as received close to the (Chroussos, 2000; Creel, 2005; DeVries lead to strandings and mortality are not source) is at least 6 dB higher than the et al., 2003; Fair and Becker, 2000; Foley well documented, but may include: TTS threshold on a peak-pressure basis, et al., 2001; Moberg, 2000; Relyea, (1) Swimming in avoidance of a and probably greater than 6 dB (Southall 2005a, 2005b; Romero, 2004; Sih et al., sound into shallow water; et al., 2007). 2004). (2) A change in behavior (such as a Given the higher level of sound Strandings Associated with Military change in diving behavior) that might necessary to cause PTS as compared Active Sonar—Several sources have contribute to tissue damage, gas bubble with TTS, it is considerably less likely published lists of mass stranding events formation, hypoxia, cardiac arrhythmia, that PTS would occur. Baleen whales of cetaceans in an attempt to identify hypertensive hemorrhage or other forms generally avoid the immediate area relationships between those stranding of trauma; around operating seismic vessels, as do events and military active sonar (3) A physiological change such as a some other marine mammals. Some (Hildebrand, 2004; IWC, 2005; Taylor et vestibular response leading to a pinnipeds show avoidance reactions to al., 2004). For example, based on a behavioral change or stress-induced airguns, but their avoidance reactions review of stranding records between hemorrhagic diathesis, leading in turn are generally not as strong or consistent 1960 and 1995, the International to tissue damage; and as those of cetaceans, and occasionally Whaling Commission (2005) identified (4) Tissue damage directly from sound they seem to be attracted to operating ten mass stranding events and exposure, such as through acoustically- seismic vessels (NMFS, 2010). concluded that, out of eight stranding mediated bubble formation and growth Stranding and Mortality—When a events reported from the mid-1980s to or acoustic resonance of tissues. living or dead marine mammal swims or the summer of 2003, seven had been floats onto shore and becomes coincident with the use of mid- Some of these mechanisms are unlikely ‘‘beached’’ or incapable of returning to frequency active sonar and most to apply in the case of impulse sounds. sea, the event is termed a ‘‘stranding’’ involved beaked whales. However, there are indications that gas- (Geraci et al., 1999; Perrin and Geraci, Over the past 12 years, there have bubble disease (analogous to ‘‘the 2002; Geraci and Lounsbury, 2005; been five stranding events coincident bends’’), induced in supersaturated NMFS, 2007). The legal definition for a with military mid-frequency active tissue by a behavioral response to stranding under the MMPA is that ‘‘(A) sonar use in which exposure to sonar is acoustic exposure, could be a pathologic a marine mammal is dead and is (i) on believed to have been a contributing mechanism for the strandings and a beach or shore of the United States; or factor to strandings: Greece (1996); the mortality of some deep-diving cetaceans (ii) in waters under the jurisdiction of Bahamas (2000); Madeir (2000); Canary exposed to sonar. The evidence for this the United States (including any Islands (2002); and Spain (2006). Refer remains circumstantial and associated navigable waters); or (B) a marine to Cox et al. (2006) for a summary of with exposure to naval mid-frequency mammal is alive and is (i) on a beach common features shared by the sonar, not seismic surveys (Cox et al., or shore of the United States and is strandings events in Greece (1996), 2006; Southall et al., 2007). unable to return to the water; (ii) on a Bahamas (2000), Madeira (2000), and Seismic pulses and mid-frequency beach or shore of the United States and, Canary Islands (2002); and Fernandez et sonar signals are quite different, and although able to return to the water is al., (2005) for an additional summary of some mechanisms by which sonar in need of apparent medical attention; the Canary Islands 2002 stranding event. sounds have been hypothesized to affect or (iii) in the waters under the Potential for Stranding from Seismic beaked whales are unlikely to apply to jurisdiction of the United States Surveys—Marine mammals close to airgun pulses. Sounds produced by (including any navigable waters), but is underwater detonations of high airgun arrays are broadband impulses unable to return to its natural habitat explosives can be killed or severely with most of the energy below one kHz. under its own power or without injured, and the auditory organs are Typical military mid-frequency sonar assistance.’’ especially susceptible to injury (Ketten emits non-impulse sounds at Marine mammals are known to strand et al., 1993; Ketten, 1995). However, frequencies of 2 to 10 kHz, generally for a variety of reasons, such as explosives are no longer used in marine with a relatively narrow bandwidth at infectious agents, biotoxicosis, waters for commercial seismic surveys any one time. A further difference starvation, fishery interaction, ship or (with rare exceptions) for seismic between seismic surveys and naval strike, unusual oceanographic or research. These methods have been exercises is that naval exercises can weather events, sound exposure, or replaced entirely by airguns or related involve sound sources on more than one combinations of these stressors non-explosive pulse generators. Airgun vessel. Thus, it is not appropriate to sustained concurrently or in series. pulses are less energetic and have expect that the same to marine However, the cause or causes of most slower rise times, and there is no mammals will result from military sonar

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and seismic surveys. However, evidence diving species, this might perhaps result when a multibeam echosounder emits a that sonar signals can, in special in bubble formation and a form of the pulse is small. The animal would have circumstances, lead (at least indirectly) bends, as speculated to occur in beaked to pass the transducer at close range and to physical damage and mortality (e.g., whales exposed to sonar. However, be swimming at speeds similar to the Balcomb and Claridge, 2001; NOAA and there is no specific evidence of this vessel in order to receive the multiple USN, 2001; Jepson et al., 2003; upon exposure to airgun pulses. pulses that might result in sufficient Ferna´ndez et al., 2004, 2005; In general, very little is known about exposure to cause TTS. Hildebrand 2005; Cox et al., 2006) the potential for seismic survey sounds Navy sonars that have been linked to suggests that caution is warranted when (or other types of strong underwater avoidance reactions and stranding of dealing with exposure of marine sounds) to cause non-auditory physical cetaceans: (1) Generally have longer mammals to any high-intensity sound. effects in marine mammals. Such pulse duration than the Kongsberg EM There is no conclusive evidence of effects, if they occur at all, would 122; and (2) are often directed close to cetacean strandings or deaths at sea as presumably be limited to short distances horizontally versus more downward for a result of exposure to seismic surveys, and to activities that extend over a the multibeam echosounder. The area of but a few cases of strandings in the prolonged period. The available data do possible influence of the multibeam general area where a seismic survey was not allow identification of a specific echosounder is much smaller—a narrow ongoing have led to speculation exposure level above which non- band below the source vessel. Also, the concerning a possible link between auditory effects can be expected duration of exposure for a given marine seismic surveys and strandings. (Southall et al., 2007), or any mammal can be much longer for naval Suggestions that there was a link meaningful quantitative predictions of sonar. During L–DEO and PG&E’s between seismic surveys and strandings the numbers (if any) of marine mammals operations, the individual pulses will be of humpback whales in Brazil (Engel et that might be affected in those ways. very short, and a given mammal would al., 2004) were not well founded (IAGC, Marine mammals that show behavioral not receive many of the downward- 2004; IWC, 2007). In September, 2002, avoidance of seismic vessels, including directed pulses as the vessel passes by. there was a stranding of two Cuvier’s most baleen whales, some odontocetes, Possible effects of a multibeam beaked whales in the Gulf of California, and some pinnipeds, are especially echosounder on marine mammals are Mexico, when the L–DEO vessel R/V unlikely to incur non-auditory physical described below. Maurice Ewing was operating a 20 effects. Masking—Marine mammal airgun (8,490 in3) array in the general communications will not be masked area. The link between the stranding Potential Effects of Other Acoustic appreciably by the multibeam and the seismic surveys was Devices echosounder signals given the low duty inconclusive and not based on any Multibeam Echosounder cycle of the echosounder and the brief physical evidence (Hogarth, 2002; period when an individual mammal is Yoder, 2002). Nonetheless, the Gulf of L–DEO and PG&E will operate the likely to be within its beam. California incident plus the beaked Kongsberg EM 122 multibeam Furthermore, in the case of baleen whale strandings near naval exercises echosounder from the source vessel whales, the multibeam echosounder involving use of mid-frequency sonar during the planned study. Sounds from signals (12 kHz) do not overlap with the suggests a need for caution in the multibeam echosounder are very predominant frequencies in the calls, conducting seismic surveys in areas short pulses, occurring for 2 to 15 ms which would avoid any significant occupied by beaked whales until more once every 5 to 20 s, depending on masking. is known about effects of seismic water depth. Most of the energy in the Behavioral Responses—Behavioral surveys on those species (Hildebrand, sound pulses emitted by this multibeam reactions of free-ranging marine 2005). No injuries of beaked whales are echosounder is at frequencies near 12 mammals to sonars, echosounders, and anticipated during the proposed study kHz, and the maximum source level is other sound sources appear to vary by because of: 242 dB re 1 mPa (rms). The beam is species and circumstance. Observed (1) The high likelihood that any narrow (1 to 2°) in fore-aft extent and reactions have included silencing and beaked whales nearby would avoid the wide (150°) in the cross-track extent. dispersal by sperm whales (Watkins et approaching vessel before being Each ping consists of eight (in water al., 1985), increased vocalizations and exposed to high sound levels, and greater than 1,000 m deep) or four (in no dispersal by pilot whales (Rendell (2) Differences between the sound water less than 1,000 m deep) and Gordon, 1999), and the previously- sources operated by L–DEO and those successive fan-shaped transmissions mentioned beachings by beaked whales. involved in the naval exercises (segments) at different cross-track During exposure to a 21 to 25 kHz associated with strandings. angles. Any given mammal at depth ‘‘whale-finding’’ sonar with a source Non-auditory Physiological Effects— near the trackline would be in the main level of 215 dB re 1 mPa, gray whales Non-auditory physiological effects or beam for only one or two of the nine reacted by orienting slightly away from injuries that theoretically might occur in segments. Also, marine mammals that the source and being deflected from marine mammals exposed to strong encounter the Kongsberg EM 122 are their course by approximately 200 m underwater sound include stress, unlikely to be subjected to repeated (656.2 ft) (Frankel, 2005). When a 38 neurological effects, bubble formation, pulses because of the narrow fore–aft kHz echosounder and a 150 kHz resonance, and other types of organ or width of the beam and will receive only acoustic Doppler current profiler were tissue damage (Cox et al., 2006; Southall limited amounts of pulse energy transmitting during studies in the et al., 2007). Studies examining such because of the short pulses. Animals Eastern Tropical Pacific, baleen whales effects are limited. However, resonance close to the ship (where the beam is showed no significant responses, while effects (Gentry, 2002) and direct noise- narrowest) are especially unlikely to be spotted and spinner dolphins were induced bubble formations (Crum et al., ensonified for more than one 2 to 15 ms detected slightly more often and beaked 2005) are implausible in the case of pulse (or two pulses if in the overlap whales less often during visual surveys exposure to an impulsive broadband area). Similarly, Kremser et al. (2005) (Gerrodette and Pettis, 2005). source like an airgun array. If seismic noted that the probability of a cetacean Captive bottlenose dolphins and a surveys disrupt diving patterns of deep- swimming through the area of exposure beluga whale exhibited changes in

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behavior when exposed to 1 s tonal vessel during the proposed survey. Behavioral Responses to Vessel signals at frequencies similar to those Sounds from the sub-bottom profiler are Movement—There are limited data that will be emitted by the multibeam very short pulses, occurring for 1 to 4 concerning marine mammal behavioral echosounder used by L–DEO and PG&E, ms once every second. Most of the responses to vessel traffic and vessel and to shorter broadband pulsed signals. energy in the sound pulses emitted by noise, and a lack of consensus among Behavioral changes typically involved the sub-bottom profiler is at 3.5 kHz, scientists with respect to what these what appeared to be deliberate attempts and the beam is directed downward. responses mean or whether they result to avoid the sound exposure (Schlundt The sub-bottom profiler on the Langseth in short-term or long-term adverse et al., 2000; Finneran et al., 2002; has a maximum source level of 204 dB effects. In those cases where there is a Finneran and Schlundt, 2004). The re 1 mPa. Kremser et al. (2005) noted busy shipping lane or where there is a relevance of those data to free-ranging that the probability of a cetacean large amount of vessel traffic, marine odontocetes is uncertain, and in any swimming through the area of exposure mammals (especially low frequency case, the test sounds were quite when a bottom profiler emits a pulse is specialists) may experience acoustic different in duration as compared with small—even for a sub-bottom profiler masking (Hildebrand, 2005) if they are those from a multibeam echosounder. more powerful than that on the present in the area (e.g., killer whales in Very few data are available on the Langseth. If the animal was in the area, Puget Sound; Foote et al., 2004; Holt et reactions of pinnipeds to echosounder it would have to pass the transducer at al., 2008). In cases where vessels sounds at frequencies similar to those close range in order to be subjected to actively approach marine mammals used during seismic operations. Hastie sound levels that could cause TTS. (e.g., whale watching or dolphin and Janik (2007) conducted a series of Masking—Marine mammal watching boats), scientists have behavioral response tests on two captive communications will not be masked documented that animals exhibit altered gray seals to determine their reactions to appreciably by the sub-bottom profiler behavior such as increased swimming underwater operation of a 375 kHz signals given the directionality of the speed, erratic movement, and active multibeam imaging echosounder that signal and the brief period when an avoidance behavior (Bursk, 1983; included significant signal components individual mammal is likely to be Acevedo, 1991; Baker and MacGibbon, down to 6 kHz. Results indicated that within its beam. Furthermore, in the 1991; Trites and Bain, 2000; Williams et the two seals reacted to the signal by case of most baleen whales, the sub- al., 2002; Constantine et al., 2003), significantly increasing their dive bottom profiler signals do not overlap reduced blow interval (Ritcher et al., durations. Because of the likely brevity with the predominant frequencies in the 2003), disruption of normal social of exposure to the multibeam calls, which would avoid significant behaviors (Lusseau, 2003, 2006), and the echosounder sounds, pinniped reactions masking. shift of behavioral activities which may are expected to be limited to startle or Behavioral Responses—Marine increase energetic costs (Constantine et otherwise brief responses of no lasting mammal behavioral reactions to other al., 2003, 2004). A detailed review of consequences to the animals. pulsed sound sources are discussed marine mammal reactions to ships and Hearing Impairment and Other above, and responses to the sub-bottom boats is available in Richardson et al., Physical Effects—Given recent stranding profiler are likely to be similar to those (1995). For each of the marine mammal events that have been associated with for other pulsed sources if received at taxonomy groups, Richardson et al., the operation of naval sonar, there is the same levels. However, the pulsed (1995) provides the following concern that mid-frequency sonar signals from the sub-bottom profiler are assessment regarding reactions to vessel sounds can cause serious impacts to considerably weaker than those from the traffic: marine mammals (see above). However, multibeam echosounder. Therefore, Toothed whales—‘‘In summary, the multibeam echosounder proposed behavioral responses are not expected toothed whales sometimes show no for use by L–DEO and PG&E is quite unless marine mammals are very close avoidance reaction to vessels, or even different than sonar used for Navy to the source. approach them. However, avoidance can operations. Pulse duration of the Hearing Impairment and Other occur, especially in response to vessels multibeam echosounder is very short Physical Effects—It is unlikely that the of types used to chase or hunt the relative to the naval sonar. Also, at any sub-bottom profiler produces pulse animals. This may cause temporary given location, an individual marine levels strong enough to cause hearing displacement, but we know of no clear mammal would be in the beam of the impairment or other physical injuries evidence that toothed whales have multibeam echosounder for much less even in an animal that is (briefly) in a abandoned significant parts of their time given the generally downward position near the source. The sub- range because of vessel traffic.’’ orientation of the beam and its narrow bottom profiler is usually operated Baleen whales—‘‘When baleen whales fore-aft beamwidth; Navy sonar often simultaneously with other higher-power receive low-level sounds from distant or uses near-horizontally-directed sound. acoustic sources, including airguns. stationary vessels, the sounds often Those factors would all reduce the Many marine mammals will move away seem to be ignored. Some whales sound energy received from the in response to the approaching higher- approach the sources of these sounds. multibeam echosounder rather power sources or the vessel itself before When vessels approach whales slowly drastically relative to that from naval the mammals would be close enough for and non-aggressively, whales often sonar. there to be any possibility of effects exhibit slow and inconspicuous NMFS believes that the brief exposure from the less intense sounds from the avoidance maneuvers. In response to of marine mammals to one pulse, or sub-bottom profiler. strong or rapidly changing vessel noise, small numbers of signals, from the baleen whales often interrupt their Vessel Movement and Collisions multibeam echosounder is not likely to normal behavior and swim rapidly result in the harassment of marine Vessel movement in the vicinity of away. Avoidance is especially strong mammals. marine mammals has the potential to when a boat heads directly toward the result in either a behavioral response or whale.’’ Sub-Bottom Profiler a direct physical interaction. Both Behavioral responses to stimuli are L–DEO and PG&E will also operate a scenarios are discussed below in this complex and influenced to varying sub-bottom profiler from the source section. degrees by a number of factors, such as

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species, behavioral contexts, Although the radiated sound from the mammal interactions occurring during geographical regions, source Langseth and support vessels will be the proposed survey is unlikely due to characteristics (moving or stationary, audible to marine mammals over a large the Langseth’s and support vessels slow speed, direction, etc.), prior experience distance, it is unlikely that marine operational speed, which is typically 4.6 of the animal and physical status of the mammals will respond behaviorally (in kts (8.5 km/hr, 5.3 mph). Outside of animal. For example, studies have a manner that NMFS would consider seismic operations, the Langseth’s shown that beluga whales’ reaction harassment under the MMPA) to low- cruising speed would be approximately varied when exposed to vessel noise level distant shipping noise as the 10 kts (18.5 km/hr, 11.5 mph), which is and traffic. In some cases, beluga whales animals in the area are likely to be generally below the speed at which exhibited rapid swimming from ice- habituated to such noises (Nowacek et studies have noted reported increases of breaking vessels up to 80 km (43.2 nmi) al., 2004). In light of these facts, NMFS marine mammal injury or death (Laist et away, and showed changes in surfacing, does not expect the Langseth’s al., 2001). breathing, diving, and group movements to result in Level B As a final point, the Langseth has a composition in the Canadian high harassment. number of other advantages for avoiding Arctic where vessel traffic is rare (Finley Vessel Strike—Ship strikes of ship strikes as compared to most et al., 1990). In other cases, beluga cetaceans can cause major wounds, commercial merchant vessels, including whales were more tolerant of vessels, which may lead to the death of the the following: the Langseth’s bridge but responded differentially to certain animal. An animal at the surface could offers good visibility to visually monitor vessels and operating characteristics by be struck directly by a vessel, a for marine mammal presence; PSOs reducing their calling rates (especially surfacing animal could hit the bottom of posted during operations scan the ocean older animals) in the St. Lawrence River a vessel, or an animal just below the for marine mammals and must report where vessel traffic is common (Blane surface could be cut by a vessel’s visual alerts of marine mammal and Jaakson, 1994). In Bristol Bay, propeller. The severity of injuries presence to crew; and the PSOs receive Alaska, beluga whales continued to feed typically depends on the size and speed extensive training that covers the when surrounded by fishing vessels and of the vessel (Knowlton and Kraus, fundamentals of visual observing for resisted dispersal even when 2001; Laist et al., 2001; Vanderlaan and marine mammals and information about purposefully harassed (Fish and Vania, Taggart, 2007). marine mammals and their 1971). The most vulnerable marine mammals identification at sea. are those that spend extended periods of In reviewing more than 25 years of time at the surface in order to restore Entanglement whale observation data, Watkins (1986) oxygen levels within their tissues after Entanglement can occur if wildlife concluded that whale reactions to vessel deep dives (e.g., the sperm whale). In becomes immobilized in survey lines, traffic were ‘‘modified by their previous addition, some baleen whales, such as cables, nets, or other equipment that is experience and current activity: the North Atlantic right whale, seem moving through the water column. The Habituation often occurred rapidly, generally unresponsive to vessel sound, proposed seismic survey would require attention to other stimuli or making them more susceptible to vessel towing approximately 6.4 km2 (1.9 preoccupation with other activities collisions (Nowacek et al., 2004). These nmi2) of equipment and cables. This sometimes overcame their interest or species are primarily large, slow moving large of an array carries the risk of wariness of stimuli.’’ Watkins noticed whales. Smaller marine mammals (e.g., entanglement for marine mammals. that over the years of exposure to ships bottlenose dolphin) move quickly Wildlife, especially slow moving in the Cape Cod area, minke whales through the water column and are often individuals, such as large whales, have changed from frequent positive interest seen riding the bow wave of large ships. a low probability of becoming entangled (e.g., approaching vessels) to generally Marine mammal responses to vessels due to slow speed of the survey vessel uninterested reactions; fin whales may include avoidance and changes in and onboard monitoring efforts. The changed from mostly negative (e.g., dive pattern (NRC, 2003). NSF has no recorded cases of avoidance) to uninterested reactions; fin An examination of all known ship entanglement of marine mammals whales changed from mostly negative strikes from all shipping sources during any of their 160,934 km (e.g., avoidance) to uninterested (civilian and military) indicates vessel (86,897.4 nmi) of seismic surveys. In reactions; right whales apparently speed is a principal factor in whether a May, 2011, there was one recorded continued the same variety of responses vessel strike results in death (Knowlton entanglement of an olive ridley sea (negative, uninterested, and positive and Kraus, 2001; Laist et al., 2001; turtle (Lepidochelys olivacea) in the responses) with little change; and Jensen and Silber, 2003; Vanderlaan and Langseth’s barovanes after the humpbacks dramatically changed from Taggart, 2007). In assessing records in conclusion of a seismic survey off Costa mixed responses that were often which vessel speed was known, Laist et Rica. There have cases of baleen whales, negative to reactions that were often al. (2001) found a direct relationship mostly gray whales (Heyning, 1990), strongly positive. Watkins (1986) between the occurrence of a whale becoming entangled in fishing lines. summarized that ‘‘whales near shore, strike and the speed of the vessel The probability for entanglement of even in regions with low vessel traffic, involved in the collision. The authors marine mammals is considered not generally have become less wary of concluded that most deaths occurred significant because of the vessel speed boats and their noises, and they have when a vessel was traveling in excess of and the monitoring efforts onboard the appeared to be less easily disturbed than 13 kts (24.1 km/hr, 14.9 mph). survey vessel. previously. In particular locations with L–DEO and PG&E’s proposed The potential effects to marine intense shipping and repeated operation of one source vessel and mammals described in this section of approaches by boats (such as the whale- support vessels for the proposed survey the document do not take into watching areas of Stellwagen Bank), is relatively small in scale compared to consideration the proposed monitoring more and more whales had positive the number of commercial ships and mitigation measures described later reactions to familiar vessels, and they transiting at higher speeds in the same in this document (see the ‘‘Proposed also occasionally approached other areas on an annual basis. The Mitigation’’ and ‘‘Proposed Monitoring boats and yachts in the same ways.’’ probability of vessel and marine and Reporting’’ sections) which, as

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noted are designed to effect the least seismic surveys on marine fish is from indicated anatomical damage, and the practicable impact on affected marine studies of individuals or portions of a second indicated TTS in fish hearing. mammal species and stocks. population; there have been no studies The anatomical case is McCauley et al. at the population scale. The studies of (2003), who found that exposure to Anticipated Effects on Marine Mammal individual fish have often been on caged airgun sound caused observable Habitat fish that were exposed to airgun pulses anatomical damage to the auditory The proposed seismic survey is not in situations not representative of an maculae of pink snapper (Pagrus anticipated to have any permanent actual seismic survey. Thus, available auratus). This damage in the ears had impact on habitats used by the marine information provides limited insight on not been repaired in fish sacrificed and mammals in the proposed survey area, possible real-world effects at the ocean examined almost two months after including the food sources they use (i.e. or population scale. This makes drawing exposure. On the other hand, Popper et fish and invertebrates). Additionally, no conclusions about impacts on fish al. (2005) documented only TTS (as physical damage to any habitat is problematic because, ultimately, the determined by auditory brainstem anticipated as a result of conducting the most important issues concern effects response) in two of three fish species proposed seismic survey. While it is on marine fish populations, their from the Mackenzie River Delta. This anticipated that the specified activity viability, and their availability to study found that broad whitefish may result in marine mammals avoiding fisheries. (Coregonus nasus) exposed to five certain areas due to temporary Hastings and Popper (2005), Popper airgun shots were not significantly ensonification, this impact to habitat is (2009), and Popper and Hastings different from those of controls. During temporary and was considered in (2009a,b) provided recent critical both studies, the repetitive exposure to further detail earlier in this document, reviews of the known effects of sound sound was greater than would have as behavioral modification. The main on fish. The following sections provide occurred during a typical seismic impact associated with the proposed a general synopsis of the available survey. However, the substantial low- activity will be temporarily elevated information on the effects of exposure to frequency energy produced by the noise levels and the associated direct seismic and other anthropogenic sound airguns (less than 400 Hz in the study effects on marine mammals in any as relevant to fish. The information by McCauley et al. [2003] and less than particular area of the approximately comprises results from scientific studies approximately 200 Hz in Popper et al. 740.5 km2 proposed project area, of varying degrees of rigor plus some [2005]) likely did not propagate to the previously discussed in this notice. The anecdotal information. Some of the data fish because the water in the study areas next section discusses the potential sources may have serious shortcomings was very shallow (approximately nine impacts of anthropogenic sound sources in methods, analysis, interpretation, and m in the former case and less than two on common marine mammal prey in the reproducibility that must be considered m in the latter). Water depth sets a proposed survey area (i.e., fish and when interpreting their results (see lower limit on the lowest sound invertebrates). Hastings and Popper, 2005). Potential frequency that will propagate (the Anticipated Effects on Fish adverse effects of the program’s sound ‘‘cutoff frequency’’) at about one-quarter sources on marine fish are noted. wavelength (Urick, 1983; Rogers and One reason for the adoption of airguns Pathological Effects—The potential Cox, 1988). as the standard energy source for marine for pathological damage to hearing Wardle et al. (2001) suggested that in seismic surveys is that, unlike structures in fish depends on the energy water, acute injury and death of explosives, they have not been level of the received sound and the organisms exposed to seismic energy associated with large-scale fish kills. physiology and hearing capability of the depends primarily on two features of However, existing information on the species in question. For a given sound the sound source: (1) the received peak impacts of seismic surveys on marine to result in hearing loss, the sound must pressure, and (2) the time required for fish and invertebrate populations is exceed, by some substantial amount, the the pressure to rise and decay. limited. There are three types of hearing threshold of the fish for that Generally, as received pressure potential effects of exposure to seismic sound (Popper, 2005). The increases, the period for the pressure to surveys: (1) pathological, (2) consequences of temporary or rise and decay decreases, and the physiological, and (3) behavioral. permanent hearing loss in individual chance of acute pathological effects Pathological effects involve lethal and fish on a fish population are unknown; increases. According to Buchanan et al. temporary or permanent sub-lethal however, they likely depend on the (2004), for the types of seismic airguns injury. Physiological effects involve number of individuals affected and and arrays involved with the proposed temporary and permanent primary and whether critical behaviors involving program, the pathological (mortality) secondary stress responses, such as sound (e.g., predator avoidance, prey zone for fish would be expected to be changes in levels of enzymes and capture, orientation and navigation, within a few meters of the seismic proteins. Behavioral effects refer to reproduction, etc.) are adversely source. Numerous other studies provide temporary and (if they occur) permanent affected. examples of no fish mortality upon changes in exhibited behavior (e.g., Little is known about the mechanisms exposure to seismic sources (Falk and startle and avoidance behavior). The and characteristics of damage to fish Lawrence, 1973; Holliday et al., 1987; three categories are interrelated in that may be inflicted by exposure to La Bella et al., 1996; Santulli et al., complex ways. For example, it is seismic survey sounds. Few data have 1999; McCauley et al., 2000a,b, 2003; possible that certain physiological and been presented in the peer-reviewed Bjarti, 2002; Thomsen, 2002; Hassel et behavioral changes could potentially scientific literature. As far as L–DEO, al., 2003; Popper et al., 2005; Boeger et lead to an ultimate pathological effect PG&E, and NMFS know, there are only al., 2006). on individuals (i.e., mortality). two papers with proper experimental An experiment of the effects of a The specific received sound levels at methods, controls, and careful single 700 in3 airgun was conducted in which permanent adverse effects to fish pathological investigation implicating Lake Meade, Nevada (USGS, 1999). The potentially could occur are little studied sounds produced by actual seismic data were used in an Environmental and largely unknown. Furthermore, the survey airguns in causing adverse Assessment of the effects of a marine available information on the impacts of anatomical effects. One such study reflection survey of the Lake Meade

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fault system by the National Park migration, mating, and catchability of invertebrates involves studies of Service (Paulson et al., 1993, in USGS, fish populations. Studies investigating individuals; there have been no studies 1999). The airgun was suspended 3.5 m the possible effects of sound (including at the population scale. Thus, available (11.5 ft) above a school of threadfin shad seismic survey sound) on fish behavior information provides limited insight on in Lake Meade and was fired three have been conducted on both uncaged possible real-world effects at the successive times at a 30 second interval. and caged individuals (e.g., Chapman regional or ocean scale. The most Neither surface inspection nor diver and Hawkins, 1969; Pearson et al., 1992; important aspect of potential impacts observations of the water column and Santulli et al., 1999; Wardle et al., 2001; concerns how exposure to seismic bottom found any dead fish. Hassel et al., 2003). Typically, in these survey sound ultimately affects For a proposed seismic survey in studies fish exhibited a sharp startle invertebrate populations and their Southern California, USGS (1999) response at the onset of a sound viability, including availability to conducted a review of the literature on followed by habituation and a return to fisheries. the effects of airguns on fish and normal behavior after the sound ceased. Literature reviews of the effects of fisheries. They reported a 1991 study of The Minerals Management Service seismic and other underwater sound on the Bay Area Fault system from the (MMS, 2005) assessed the effects of a invertebrates were provided by continental shelf to the Sacramento proposed seismic survey in Cook Inlet. Moriyasu et al. (2004) and Payne et al. River, using a 10 airgun (5,828 in3) The seismic survey proposed using (2008). The following sections provide a array. Brezzina and Associates were three vessels, each towing two, four- synopsis of available information on the hired by USGS to monitor the effects of airgun arrays ranging from 1,500 to effects of exposure to seismic survey the surveys, and concluded that airgun 2,500 in3. MMS noted that the impact to sound on species of decapod operations were not responsible for the fish populations in the survey area and crustaceans and cephalopods, the two death of any of the fish carcasses adjacent waters would likely be very taxonomic groups of invertebrates on observed, and the airgun profiling did low and temporary. MMS also which most such studies have been not appear to alter the feeding behavior concluded that seismic surveys may conducted. The available information is of sea lions, seals, or pelicans observed displace the pelagic fishes from the area from studies with variable degrees of feeding during the seismic surveys. temporarily when airguns are in use. scientific soundness and from anecdotal Some studies have reported, some However, fishes displaced and avoiding information. A more detailed review of equivocally, that mortality of fish, fish the airgun noise are likely to backfill the the literature on the effects of seismic eggs, or larvae can occur close to survey area in minutes to hours after survey sound on invertebrates is seismic sources (Kostyuchenko, 1973; cessation of seismic testing. Fishes not provided in Appendix F of NSF’s EA. Dalen and Knutsen, 1986; Booman et dispersing from the airgun noise (e.g., Pathological Effects—In water, lethal al., 1996; Dalen et al., 1996). Some of demersal species) may startle and move and sub-lethal injury to organisms the reports claimed seismic effects from short distances to avoid airgun exposed to seismic survey sound treatments quite different from actual emissions. appears to depend on at least two seismic survey sounds or even In general, any adverse effects on fish features of the sound source: (1) the reasonable surrogates. However, Payne behavior or fisheries attributable to received peak pressure; and (2) the time et al. (2009) reported no statistical seismic testing may depend on the required for the pressure to rise and differences in mortality/morbidity species in question and the nature of the decay. Generally, as received pressure between control and exposed groups of fishery (season, duration, fishing increases, the period for the pressure to capelin eggs or monkfish larvae. Saetre method). They may also depend on the rise and decay decreases, and the and Ona (1996) applied a ‘worst-case age of the fish, its motivational state, its chance of acute pathological effects scenario’ mathematical model to size, and numerous other factors that are increases. For the type of airgun array investigate the effects of seismic energy difficult, if not impossible, to quantify at planned for the proposed program, the on fish eggs and larvae. They concluded this point, given such limited data on pathological (mortality) zone for that mortality rates caused by exposure effects of airguns on fish, particularly crustaceans and cephalopods is to seismic surveys are so low, as under realistic at-sea conditions. expected to be within a few meters of compared to natural mortality rates, that the seismic source, at most; however, the impact of seismic surveying on Anticipated Effects on Invertebrates very few specific data are available on recruitment to a fish stock must be The existing body of information on levels of seismic signals that might regarded as insignificant. the impacts of seismic survey sound on damage these animals. This premise is Physiological Effects—Physiological marine invertebrates is very limited. based on the peak pressure and rise/ effects refer to cellular and/or However, there is some unpublished decay time characteristics of seismic biochemical responses of fish to and very limited evidence of the airgun arrays currently in use around acoustic stress. Such stress potentially potential for adverse effects on the world. could affect fish populations by invertebrates, thereby justifying further Some studies have suggested that increasing mortality or reducing discussion and analysis of this issue. seismic survey sound has a limited reproductive success. Primary and The three types of potential effects of pathological impact on early secondary stress responses of fish after exposure to seismic surveys on marine developmental stages of crustaceans exposure to seismic survey sound invertebrates are pathological, (Pearson et al., 1994; Christian et al., appear to be temporary in all studies physiological, and behavioral. Based on 2003; DFO, 2004). However, the impacts done to date (Sverdrup et al., 1994; the physical structure of their sensory appear to be either temporary or Santulli et al., 1999; McCauley et al., organs, marine invertebrates appear to insignificant compared to what occurs 2000a,b). The periods necessary for the be specialized to respond to particle under natural conditions. Controlled biochemical changes to return to normal displacement components of an field experiments on adult crustaceans are variable and depend on numerous impinging sound field and not to the (Christian et al., 2003, 2004; DFO, 2004) aspects of the biology of the species and pressure component (Popper et al., and adult cephalopods (McCauley et al., of the sound stimulus. 2001). 2000a,b) exposed to seismic survey Behavioral Effects—Behavioral effects The only information available on the sound have not resulted in any include changes in the distribution, impacts of seismic surveys on marine significant pathological impacts on the

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animals. It has been suggested that catchability by fisheries. Studies (1) Vessel-based Marine Wildlife exposure to commercial seismic survey investigating the possible behavioral Contingency Plan; activities has injured giant squid effects of exposure to seismic survey (2) Scheduling to avoid areas of high (Guerra et al., 2004), but the article sound on crustaceans and cephalopods marine mammal activity; provides little evidence to support this have been conducted on both uncaged (3) Speed and course alterations; claim. Tenera Environmental (2011b) and caged animals. In some cases, (4) Proposed exclusion zones around reported that Norris and Mohl (1983, invertebrates exhibited startle responses the sound source; summarized in Mariyasu et al., 2004) (e.g., squid in McCauley et al., 2000a,b). (5) Power-down procedures; observed lethal effects in squid (Loligo In other cases, no behavioral impacts (6) Shut-down procedures; vulgaris) at levels of 246 to 252 dB after were noted (e.g., crustaceans in (7) Ramp-up procedures; and 3 to 11 minutes. Christian et al., 2003, 2004; DFO 2004). (8) Morro Bay stock harbor porpoise Andre et al. (2011) exposed four There have been anecdotal reports of mitigation, monitoring, and adaptive species of cephalopods (Loligo vulgaris, reduced catch rates of shrimp shortly management that will detect significant Sepia officinalis, Octopus vulgaris, and after exposure to seismic surveys; impacts to harbor porpoises in real time Ilex coindetii), primarily cuttlefish, to however, other studies have not in order to trigger appropriate mitigation two hours of continuous 50 to 400 Hz observed any significant changes in measures (e.g., suspension of seismic ¥ sinusoidal wave sweeps at 157+/ 5 dB shrimp catch rate (Andriguetto-Filho et operations). re 1 mPa while captive in relatively al., 2005). Similarly, Parry and Gason Vessel-based Marine Wildlife small tanks. They reported (2006) did not find any evidence that Contingency Plan—The vessel-based morphological and ultrastructural lobster catch rates were affected by seismic operations of the PG&E’s Marine evidence of massive acoustic trauma seismic surveys. Any adverse effects on Wildlife Contingency Plan are designed (i.e., permanent and substantial crustacean and cephalopod behavior or to meet the anticipated Federal and alterations [lesions] of statocyst sensory fisheries attributable to seismic survey State regulatory requirements. The hair cells) to the exposed animals that objectives of the program will be: sound depend on the species in • increased in severity with time, question and the nature of the fishery To minimize any potential suggesting that cephalopods are (season, duration, fishing method). disturbance to marine mammals and particularly sensitive to low frequency ensure all regulatory requirements are sound. The received SPL was reported Proposed Mitigation followed; ¥ • as 157+/ 5 dB re 1 mPa, with peak In order to issue an Incidental Take To document observations of the levels at 175 dB re 1 mPa. As in the Authorization (ITA) under section proposed seismic survey on marine McCauley et al. (2003) paper on sensory mammals; and 101(a)(5)(D) of the MMPA, NMFS must • hair cell damage in pink snapper as a set forth the permissible methods of To collect baseline data on the result of exposure to seismic sound, the taking pursuant to such activity, and occurrence and distribution of marine cephalopods were subjected to higher other means of effecting the least mammals in the proposed study area. sound levels than they would be under practicable impact on such species or Proposed survey design features natural conditions, and they were stock and its habitat, paying particular include: • Timing and locating seismic unable to swim away from the sound attention to rookeries, mating grounds, operations to avoid potential source. and areas of similar significance, and Physiological Effects—Physiological interference with the annual peak of the the availability of such species or stock effects refer mainly to biochemical gray whale migration period; for taking for certain subsistence uses. responses by marine invertebrates to • Limiting the size of the seismic L–DEO and PG&E have reviewed the acoustic stress. Such stress potentially sound source to minimize energy could affect invertebrate populations by following source documents and have introduced into the marine increasing mortality or reducing incorporated a suite of appropriate environment; and reproductive success. Primary and mitigation measures into their project • Establishing buffer and exclusion secondary stress responses (i.e., changes description. zones radii based on modeling results of in haemolymph levels of enzymes, (1) Protocols used during previous the proposed sound sources. proteins, etc.) of crustaceans have been NSF and USGS-funded seismic research The Marine Wildlife Contingency noted several days or months after cruises as approved by NMFS and Plan will be implemented by a team of exposure to seismic survey sounds detailed in the recently completed Final NMFS-qualified PSOs. PSOs will be (Payne et al., 2007). It was noted Programmatic Environmental Impact stationed aboard the source and support however, that no behavioral impacts Statement/Overseas Environmental vessels through the duration of the were exhibited by crustaceans (Christian Impact Statement for Marine Seismic proposed project. Reporting of the et al., 2003, 2004; DFO, 2004). The Research Funded by the National results of the vessel-based mitigation periods necessary for these biochemical Science Foundation or Conducted by and monitoring program will include changes to return to normal are variable the U.S. Geological Survey; the estimation of the number of takes. and depend on numerous aspects of the (2) Previous IHA applications and The vessel-based work will provide: biology of the species and of the sound IHAs approved and authorized by • Information needed to estimate the stimulus. NMFS; and number of potential takes of marine Behavioral Effects—There is (3) Recommended best practices in mammals by harassment, which must be increasing interest in assessing the Richardson et al. (1995), Pierson et al. reported to NMFS and USFWS; possible direct and indirect effects of (1998), and Weir and Dolman, (2007). • Data on the occurrence, seismic and other sounds on To reduce the potential for distribution, and activities of marine invertebrate behavior, particularly in disturbance from acoustic stimuli mammals in the areas where the relation to the consequences for associated with the activities, L–DEO, proposed seismic operations are fisheries. Changes in behavior could PG&E and/or its designees have conducted; and potentially affect such aspects as proposed to implement the following • Information to compare the reproductive success, distribution, mitigation measures for marine distances, distributions, behavior, and susceptibility to predation, and mammals: movements of marine mammals relative

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to the source vessel at times with and down the airgun array, or perform a of one seismic trackline to the start of without airgun activity. shut-down if necessary (see ‘‘Shut-down the next trackline. During a power-down Scheduling to Avoid Areas of High Procedures’’). Table 1 summarizes the for mitigation, L–DEO and PG&E will Marine Mammal Activity—PG&E calculated distances at which sound operate one airgun. The continued proposes to conduct offshore seismic levels (160, 180, and 190 dB [rms]) are operation of one airgun is intended to surveys from October 15 through expected to be received from the 18 (a) alert marine mammals to the December 31, 2012, with airgun airgun array operating in upslope, presence of the seismic vessel in the operations taking place from November downslope, and alongshore depths area; and, (b) retain the option of 1 through December 31, 2012, to (although only the upslope radii will be initiating a ramp-up to full operations coincide with the reduced number of used for the 160 and 180 dB isopleths under poor visibility conditions. In cetaceans in the area, and outside the and the alongshore radii will be used for contrast, a shut-down occurs when all peak gray whale annual migration the 190 dB isopleth, as these are airgun activity is suspended. period. This timeframe also is outside considered the most conservative) and If the PSVO detects a marine mammal the breeding and pupping periods for the single airgun operating in shallow, outside the exclusion zone and is likely the Pacific harbor seal (March to June) intermediate, and deep water depths (all to enter the exclusion zone, L–DEO and and California sea lion (May to late survey boxes are within water depths of PG&E will power-down the airguns to July), both of which have rookeries 400 m or less). Received sound levels reduce the size of the 180 dB exclusion inshore, but adjacent to the proposed have been calculated by L–DEO, in zone before the animal is within the project area. No other pinnipeds breed relation to distance and direction from exclusion zone. Likewise, if a mammal in the project area. The 2012 survey the airguns, for the 18 airgun array and is already within the exclusion zone, timing has also been refined to address for the single 1900LL 40 in3 airgun, when first detected L–DEO and PG&E the breeding activity of the resident which will be used during power- will power-down the airguns Morro Bay stock of harbor porpoises. As downs. immediately. During a power-down of such, active use of airguns will not be A detailed description of the the airgun array, L–DEO ad PG&E will started until November 1, 2012, which modeling effort for the 18 airgun array operate the single 40 in3 airgun, which will minimize exposure of nursing by Greeneridge Sciences, Inc. is has a smaller exclusion zone. If the harbor porpoise to seismic operations. presented in Appendix A of the IHA PSVO detects a marine mammal within Speed and Course Alterations—If a application and NSF EA. Modeled or near the smaller exclusion zone marine mammal is detected outside the received sound levels prepared by L– around that single airgun (see Table 1), exclusion zone and, based on its DEO will be used for the single airgun. L–DEO and PG&E will shut-down the position and direction of travel, is likely If the PSVO detects marine airgun (see next section). to enter the exclusion zone, changes of mammal(s) within or about to enter the Following a power-down, the the vessel’s speed and course will be appropriate exclusion zone, the airguns Langseth will not resume full airgun considered if this does not compromise will be powered-down (or shut-down, if activity until the marine mammal has operational safety. For marine seismic necessary) immediately. cleared the 180 or 190 dB exclusion surveys towing large streamer arrays, At the initiation of the 3D seismic zone (see Table 1). The PSO will however, course alterations are not survey, direct measurements will be consider the animal to have cleared the typically implemented due to the taken of the received levels of exclusion zone if: vessel’s limited maneuverability. After underwater sound versus distance and • The observer has visually observed any such speed and/or course alteration direction from the airgun source vessel the animal leave the exclusion zone, or is begun, the marine mammal activities using calibrated hydrophones (i.e., a • An observer has not sighted the and movements relative to the seismic sound source verification test). The animal within the exclusion zone for 15 vessel will be closely monitored to acoustic data will be analyzed as minutes for species with shorter dive ensure that the marine mammal does quickly as reasonably practicable in the durations (i.e., small odontocetes or not approach within the exclusion zone. field and used to verify and adjust the pinnipeds), or 30 minutes for species If the marine mammal appears likely to buffer and exclusion zone distances. with longer dive durations (i.e., enter the exclusion zone, further The field report will be made available mysticetes and large odontocetes, mitigation actions will be taken, to NMFS and PSOs within 120 hours of including sperm, pygmy sperm, dwarf including a power-down and/or shut- completing the measurements. sperm, and beaked whales); or down of the airgun(s). To augment visual observations on • The vessel has transited outside the Proposed Exclusion Zones—L–DEO the Langseth, two scout vessels with a original 180 dB exclusion zone after an and PG&E use radii to designate minimum of three NMFS-qualified 8 minute period minute wait period. exclusion and buffer zones and to PSOs onboard each, shall be positioned The Langseth crew will resume estimate take for marine mammals. adjacent to the Langseth to monitor the operating the airguns at full power after Table 1 (presented earlier in this buffer and exclusion zones for 15 minutes of sighting any species with document) shows the distances at which mitigation-monitoring purposes. The short dive durations (i.e., small one would expect to receive three sound PSOs onboard the scout vessels will odontocetes or pinnipeds). Likewise, the levels (160, 180, and 190 dB) from the report to the PSOs onboard the Langseth crew will resume airgun operations at 18 airgun array and a single airgun. The if any marine mammals are observed. full power after 30 minutes of sighting 180 dB and 190 dB level shut-down Power-down Procedures—A power- any species with longer dive durations criteria are applicable to cetaceans and down involves decreasing the number of (i.e., mysticetes and large odontocetes, pinnipeds, respectively, as specified by airguns in use to one airgun, such that including sperm, pygmy sperm, dwarf NMFS (2000). L–DEO and PG&E used the radius of the 180 dB (or 190 dB) sperm, and beaked whales). these levels to establish the exclusion zone is decreased to the extent that the Because the vessel has transited away and buffer zones. observed marine mammal(s) are no from the vicinity of the original sighting If the PSVO detects marine longer in or about to enter the exclusion during the 8 minute period, mammal(s) within or about to enter the zone for the full airgun array. A power- implementing ramp-up procedures for appropriate exclusion zone, the down of the airgun array can also occur the full array after an extended power- Langseth crew will immediately power- when the vessel is moving from the end down (i.e., transiting for an additional

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35 minutes from the location of initial If the full exclusion zone is not visible to the start of operations in either sighting) would not meaningfully to the PSO for at least 30 minutes prior daylight or nighttime, L–DEO will not increase the effectiveness of observing to the start of operations in either commence the ramp-up unless at least marine mammals approaching or daylight or nighttime, the Langseth crew one airgun (40 in3 or similar) has been entering the exclusion zone for the full will not commence ramp-up unless at operating during the interruption of source level and would not further least one airgun (40 in3 or similar) has seismic survey operations. Given these minimize the potential for take. The been operating during the interruption provisions, it is likely that the airgun Langseth’s PSOs are continually of seismic survey operations. Given array will not be ramped-up from a monitoring the exclusion zone for the these provisions, it is likely that the complete shut-down at night or in thick full source level while the mitigation vessel’s crew will not ramp-up the fog, because the outer part of the airgun is firing. On average, PSOs can airgun array from a complete shut-down exclusion zone for that array will not be observe to the horizon (10 km or 5.4 at night or in thick fog, because the visible during those conditions. If one nmi) from the height of the Langseth’s outer part of the zone for that array will airgun has operated during a power- observation deck and should be able to not be visible during those conditions. down period, ramp-up to full power state with a reasonable degree of If one airgun has operated during a confidence whether a marine mammal power-down period, ramp-up to full will be permissible at night or in poor would be encountered within this power will be permissible at night or in visibility, on the assumption that distance before resuming airgun poor visibility, on the assumption that marine mammals will be alerted to the operations at full power. marine mammals will be alerted to the approaching seismic vessel by the Shut-down Procedures—L–DEO and approaching seismic vessel by the sounds from the single airgun and could PG&E will shut-down the operating sounds from the single airgun and could move away. L–DEO and PG&E will not airgun(s) if a marine mammal is seen move away. The vessel’s crew will not initiate a ramp-up of the airguns if a within or approaching the exclusion initiate ramp-up of the airguns if a marine mammal is sighted within or zone for the single airgun. L–DEO will marine mammal is sighted within or near the applicable exclusion zones. implement a shut-down: near the applicable exclusion zones (1) If an animal enters the exclusion during the day or close to the vessel at Use of a Small-Volume Airgun During zone of the single airgun after L–DEO night. Turns and Maintenance has initiated a power-down; or Ramp-up Procedures—Ramp-up of an Throughout the seismic survey, (2) If an animal is initially seen within airgun array provides a gradual increase particularly during turning movements, the exclusion zone of the single airgun in sound levels, and involves a step- and short-duration equipment when more than one airgun (typically wise increase in the number and total maintenance activities, L–DEO and the full airgun array) is operating (and volume of airguns firing until the full it is not practical or adequate to reduce volume of the airgun array is achieved. PG&E will employ the use of a small- exposure to less than 180 dB [rms]). The purpose of a ramp-up is to ‘‘warn’’ volume airgun (i.e., mitigation airgun) to Considering the conservation status marine mammals in the vicinity of the deter marine mammals from being for the North Pacific right whale, the airguns, and to provide the time for within the immediate area of the airguns will be shut-down immediately them to leave the area and thus avoid seismic operations. The mitigation in the unlikely event that this species is any potential injury or impairment of airgun would be operated at observed, regardless of the distance their hearing abilities. L–DEO and PG&E approximately one shot per minute and from the Langseth. Ramp-up will only will follow a ramp-up procedure when would not be operated for longer than begin if the North Pacific right whale the airgun array begins operating after three hours in duration (turns may last has not been seen for 30 minutes. an 8 minute period without airgun two to three hours for the proposed Following a shut-down in excess of 8 operations or when a power-down shut project). minutes, the Langseth crew will initiate down has exceeded that period. L–DEO During turns or brief transits (e.g., less a ramp-up with the smallest airgun in and PG&E considered proposing that, than 2 hours) between seismic the array (40 in3). The crew will turn on for the present cruise, this period would tracklines, one airgun will continue additional airguns in a sequence such be approximately two minutes. Since operating. The ramp-up procedure will that the source level of the array will from a practical and operational still be followed when increasing the increase in steps not exceeding 6 dB per standpoint this time period is source levels from one airgun to the full five-minute period over a total duration considered too brief, L–DEO and PG&E airgun array. However, keeping one of approximately 30 minutes. During propose to use 8 minutes, which is a airgun firing will avoid the prohibition ramp-up, the PSOs will monitor the time period used during previous 2D of a ‘‘cold start’’ during darkness or exclusion zone, and if he/she sights a surveys. L–DEO has used similar other periods of poor visibility. Through marine mammal, the Langseth crew will periods (approximately 8 to 10 min) use of this approach, seismic operations implement a power-down or shut-down during previous L–DEO surveys. as though the full airgun array were Ramp-up will begin with the smallest may resume without the 30 minute operational. airgun in the array (40 in3). Airguns will observation period of the full exclusion During periods of active seismic be added in a sequence such that the zone required for a ‘‘cold start,’’ and operations, there are occasions when the source level of the array will increase in without ramp-up if operating with the Langseth crew will need to temporarily steps not exceeding six dB per five mitigation airgun for under 8 minutes, shut-down the airguns due to minute period over a total duration of or with ramp-up if operating with the equipment failure or for maintenance. In approximately 30 to 35 minutes. During mitigation airgun over 8 minutes. PSOs this case, if the airguns are inactive ramp-up, the PSOs will monitor the will be on duty whenever the airguns longer than eight minutes, the crew will exclusion zone, and if marine mammals are firing during daylight, and at night follow ramp-up procedures for a shut- are sighted, L–DEO will implement a during the 30 minute periods prior to down described earlier and the PSOs power-down or shut-down as though ramp-ups as well as during ramp-ups or will monitor the full exclusion zone and the full airgun array were operational. when the Protected Species Acoustic will implement a power-down or shut- If the complete exclusion zone has not Observer detects the presence of marine down if necessary. been visible for at least 30 minutes prior mammals within the exclusion zone.

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Nighttime Survey Areas Appendix D of the IHA application), continue until the disposition of the Nighttime operations will be which will use aerial surveys, C–PODS animals was complete; this could restricted to areas in which marine (passive acoustic devices tuned to detect involve herding offshore, refloating/ mammal abundance is low based on high frequency harbor porpoise transporting/herding, transport to daytime observations (i.e., vessel and vocalizations), and moored rehabilitation, euthanasia, or any period aerial data) and historical hydrophones (tuned to identify received combination of the above. Shut-down distribution patterns. Data collection levels of seismic signals) to detect procedures will remain in effect until along inshore tracklines and near broader scale harbor porpoise responses NMFS determines that, and advises ° ′ ° to seismic surveys; and PG&E that, all live animals have left the Church Rock (35 20.675 North, 120 • 59.049′ West) will be done during Marine Mammal Stranding geographic area (either of their volition Response Plan (see Appendix F of the or following herding). daylight hours to the extent possible. If • nighttime survey operations are located IHA application), which will utilize If 2 cetaceans within one day, 3 or within the 40 m (131 ft) depth contour, response personnel and necessary more cetaceans within a week, or 5 or PSOs will visually monitor the area equipment to monitor the action area for more pinniped within a week are newly forward of the vessel with the aid of behaviors suggestive of stranding detected stranded (sick, injured, in need binoculars, and the forward-looking responses, and subsequently run of medical attention, or dead) on the infrared system available on the appropriate tests if an event occurs. beach or floating incapacitated or dead Triggers for Adaptive Management— Langseth. within the impact zone during the Below are the situations in which period of seismic operations, the Harbor Porpoise Mitigation, Monitoring, suspension of seismic airgun operations following would occur: and Adaptive Management Plan would be required. Following Æ For live stranded animals, the Because of heightened concern over suspension of activities for any of the stranding team would attempt to impacts from seismic operations to situations outlined below, NMFS and capture the animals and perform a harbor porpoises from the proposed our stranding network partners will Phase 1 examination, including auditory action, NMFS coordinated closely with further evaluate available information, evoked potential (AEP) testing of all PG&E to develop a comprehensive and including new information collected odontocetes, and any clinical tests precautionary monitoring, mitigation, while seismic operations are suspended, deemed necessary by the attending and adaptive management framework. and NMFS will coordinate with PG&E veterinarian. If the animal(s) are This plan, which PG&E has agreed to and L–DEO to determine if and how determined to be candidates for operationally and financially support, is seismic operations may continue. The immediate release (either from the designed to detect significant responses triggers that have been identified are as original stranding location or following follows: transport to a new location), shut-down of harbor porpoises to the activity that • can be used to trigger management The seismic survey will be may be needed until the release is actions in real-time and allow the suspended if the aerial surveys or complete. If the animal is determined to activity to proceed in a cautious manner acoustic detections show that moderate be a candidate for rehabilitation and the in light of some uncertainty regarding to large numbers of the Morro Bay stock initial examination is inconclusive how this species will respond to the of harbor porpoises, have been pushed regarding a reason for stranding, Phase activity. Additional measures include: out of their primary (core) habitat and/ 2 investigations will be conducted. • Implementation of an extended or outside of their normal stock range. Æ For all dead stranded animals, the initial ramp-up (around the length of Numerical thresholds for this, including stranding team would attempt to recover time it takes to run the first transect of (a) decreased densities in core habitat the carcass(es) and perform a detailed the aerial survey) at the beginning of and/or (b) increased densities in necropsy with diagnostic imaging scans each of the two survey boxes. secondary habitat (or beyond, e.g., Point to rule out obvious cause of death (e.g., • Ensuring that airgun operations for Conception) will have to be identified a Phase 1 investigation), as appropriate each survey box begin in the daylight. based in part on the fine-scale given the decomposition rate of the Data collected during pre-activity ‘‘baseline’’ surveys planned for October, animal and other logistical constraints survey operations and on-going before seismic operations start, and (size, weight, location, etc.). Then, if operational monitoring activities will be NMFS’s knowledge about their core Phase 1 tests are inconclusive and the used during the proposed seismic habitat from the coarser historical aerial animal(s) is (are) in good body operations to adjust or redirect seismic survey data. condition, Phase 2 investigations will be • operations should significant adverse The seismic survey will be conducted. impacts be observed to marine suspended if unusual behavior for Æ In either case, if Phase 2 mammals in the proposed project area. harbor porpoises is observed that would investigations are warranted for enough The Adaptive Management Plan will be suggest there is severe disturbance or animals to meet the initial numerical finalized in consultation with resource stress/injury. Details of this criterion are criteria, seismic operations will be agencies involved in the permitting and difficult to predict, but harbor porpoises suspended. monitoring activities associated with the usually occur in loosely aggregated • Strandings of single marine proposed 2012 seismic operations. groups of 1 to 5 individuals, with mammals with signs of acoustic trauma Information sources used as part of this characteristic surfacing behaviors. So, or barotrauma without another etiology plan will include, but not be limited to for example, a large, tight group of 50 would require a suspension of seismic the following: to 100 individuals rafting or bunched in operations. • Pre-activity and weekly aerial an unusual area would be of concern. • A ship-strike of a marine mammal • surveys (see Appendix G of the IHA A mass stranding (i.e., 2 or more by any of the vessels involved in the application); animals that simultaneously strand, seismic survey (including chase/support • Sound source verification study; other than cow-calf pairs) or unusual vessels) would result in a suspension of • Visual monitoring by PSOs onboard nearshore milling (‘‘near mass seismic operations. vessels; stranding’’) of any cetacean species. At Data from the proposed seismic • NMFS Morro Bay stock of Harbor a minimum, the shut-down of all operations 2012 may also be used to Porpoise Monitoring Program (see seismic airgun operations would revise proposed survey operations

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within Survey Box 1, or associated other groups insofar as this is practical • Approximately 5 to 10 days prior to mitigation and monitoring, which have and desirable. the start of seismic operations, an aerial been proposed to be conducted in 2013 survey will be flown to establish a Aerial Surveys as a result of consultation under the baseline for numbers and distribution of MMPA with NMFS. PG&E proposes to conduct aerial marine mammals in the project area; NMFS has carefully evaluated the surveys for large cetaceans in • Aerial surveys will be conducted applicant’s proposed mitigation conjunction with the proposed seismic weekly during the seismic operations to measures and has considered a range of survey operations and in accordance assist in the identification of marine other measures in the context of with the requirements established by mammals within the project buffer and ensuring that NMFS prescribes the the California State Lands Commission exclusion zones. Aerial monitors will be means of effecting the least practicable Environmental Impact Report mitigation in direct communications with ship- adverse impact on the affected marine measures. In addition to the PG&E aerial based monitors to assess the mammal species and stocks and their surveys focusing on large cetaceans effectiveness of monitoring operations. habitat. NMFS’s evaluation of potential (flying above 305 m [1,000 ft]), NMFS/ Based on the results of these measures included consideration of the USFWS will be conducting low level coordinated monitoring efforts, the need following factors in relation to one aerial surveys designed to monitor for additional aerial surveys will be another: southern sea otter and the Morro Bay evaluated; and stock of harbor porpoise movements • Approximately 5 to 10 days (1) The manner in which, and the through a separate project funded by following the completion of the offshore degree to which, the successful PG&E. These NMFS/USFWS aerial seismic operations, a final aerial survey implementation of the measure is survey operations will be conducted in will be conducted to document the expected to minimize adverse impacts close coordination with the PG&E aerial number and distribution of marine to marine mammals; surveys, but under existing permits. The mammals in the project area. These data (2) The proven or likely efficacy of the information generated by these two will be used in comparison with specific measure to minimize adverse aerial survey operations will be used to original survey data completed prior to impacts as planned; and inform the proposed project’s Adaptive the seismic operations. (3) The practicability of the measure Management Plan. Discussions between A copy of the draft Aerial Survey for applicant implementation. PG&E and NMFS/USFWS are currently Plan, that focuses particular attention on Proposed Monitoring and Reporting ongoing regarding the coordination of the presence of large cetaceans, is the aerial surveys and the potential for provided in Appendix G of the IHA In order to issue an ITA for an NMFS/USFWS to undertake all aerial application. activity, section 101(a)(5)(D) of the survey operations. More information Vessel-Based Visual Monitoring MMPA states that NMFS must set forth regarding the NMFS/USFWS aerial ‘‘requirements pertaining to the survey operations are provided in PSVOs will be based aboard the monitoring and reporting of such Appendix D and E of the IHA seismic source vessel and will watch for taking.’’ The MMPA implementing application. Two PSO’s will be used on marine mammals near the vessel during regulations at 50 CFR 216.104(a)(13) all aerial surveys. Aerial survey data daytime airgun operations and during indicate that requests for IHAs must and observations noted by PSOs will be any ramp-ups of the airguns at night. include the suggested means of provided to the agencies for review and PSVOs will also watch for marine accomplishing the necessary monitoring consideration of potential refinements mammals near the seismic vessel for at and reporting that will result in to mitigation measures. The general least 30 minutes prior to the start of increased knowledge of the species and purpose of these aerial survey efforts are airgun operations after an extended of the level of taking or impacts on to: shut-down (i.e., greater than populations of marine mammals that are • Identify direction of travel and approximately 8 minutes for this expected to be present in the action corridors utilized by marine mammals proposed cruise). When feasible, PSVOs area. relative to the proposed survey area; will conduct observations during • daytime periods when the seismic Proposed Monitoring Identify locations within the proposed survey area that support system is not operating for comparison L–DEO and PG&E propose to sponsor aggregations of marine mammals; of sighting rates and behavior with and marine mammal monitoring during the • Identify the relative abundance of without airgun operations and between proposed project, in order to implement marine mammals within the proposed acquisition periods. Based on PSVO the proposed mitigation measures that survey area; and observations, the airguns will be require real-time monitoring, and to • Document changes in the behavior powered-down or shut-down when satisfy the anticipated monitoring and distribution of marine mammals in marine mammals are observed within or requirements of the IHA. L–DEO and the area before, during and after the about to enter a designated exclusion PG&E’s proposed ‘‘Monitoring Plan’’ is proposed seismic operations. zone. The exclusion zone is a region in described below this section. L–DEO With the proposed timing of the which a possibility exists of adverse and PG&E understand that this seismic operations, aerial surveys will effects on animal hearing or other monitoring plan will be subject to be conducted prior to the initiation of, physical effects. review by NMFS, and that refinements during, and after the proposed project. During seismic operations off the may be required. The monitoring work The aerial surveys will pay particular central coast of California, at least five described here has been planned as a attention will be directed to the PSOs (PSVO and/or Protected Species self-contained project independent of identification of the presence of large Acoustic Observer [PSAO]) will be any other related monitoring projects cetaceans (i.e., blue, fin, and humpback based aboard the Langseth. In addition, that may be occurring simultaneously in whales) due to the likelihood that those three PSO’s will be positioned on each the same regions. L–DEO and PG&E are species will be present in the project of the survey/chase vessels (which at prepared to discuss coordination of area. Aerial survey operations focused this time is anticipated to be two their monitoring program with any on large cetaceans will include the vessels). L–DEO will appoint the PSOs related work that might be done by following components: with NMFS’s concurrence. Observations

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will take place during ongoing daytime durations (mysticetes and large and a hull-mounted hydrophone. One operations and nighttime ramp-ups of odontocetes, including sperm, pygmy PSAO will monitor the acoustic the airguns. During the majority of sperm, dwarf sperm, killer, and beaked detection system by listening to the seismic operations, two PSVOs will be whales). signals from two channels via on duty from the observation tower (i.e., headphones and/or speakers and Vessel-Based Passive Acoustic the best available vantage point on the Monitoring watching the real-time spectrographic source vessel) to monitor marine display for frequency ranges produced mammals near the seismic vessel. Use of Vessel-based, towed PAM will by cetaceans. The PSAO monitoring the two simultaneous PSVOs will increase complement the visual monitoring acoustical data will be on shift for one the effectiveness of detecting animals program, when practicable. Visual to six hours at a time. All PSOs are near the source vessel. However, during monitoring typically is not effective expected to rotate through the PAM meal times and bathroom breaks, it is during periods of poor visibility or at position, although the expert PSAO will sometimes difficult to have two PSVOs night, and even with good visibility, is be on PAM duty more frequently. on effort, but at least one PSVO will be unable to detect marine mammals when When a vocalization is detected while on duty. PSVO(s) will be on duty in they are below the surface or beyond visual observations (during daylight) are shifts no longer than 4 hours in visual range. Passive acoustical in progress, the PSAO will contact the duration. monitoring can be used in addition to PSVO immediately, to alert him/her to Two PSVOs will also be on visual visual observations to improve the presence of cetaceans (if they have watch during all daytime ramp-ups of detection, identification, and not already been seen), and to allow a localization of cetaceans. The passive the seismic airguns. A third PSAO will power-down or shut-down to be acoustic monitoring will serve to alert monitor the PAM equipment 24 hours a initiated, if required. When bearings visual observers (if on duty) when day to detect vocalizing marine (primary and mirror-image) to calling vocalizing cetaceans are detected. It is mammals present in the action area. In cetacean(s) are determined, the bearings only useful when marine mammals call, summary, a typical daytime cruise will be related to the PSVO(s) to help but it can be effective either by day or would have scheduled two PSVOs on him/her sight the calling animal. During by night, and does not depend on good duty from the observation tower, and a non-daylight hours, when a cetacean is visibility. It will be monitored in real third PSAO on PAM. Other crew will detected by acoustic monitoring and time so that the PSVOs can be advised also be instructed to assist in detecting may be close to the source vessel, the when cetaceans are detected. marine mammals and implementing Langseth crew will be notified mitigation requirements (if practical). The PAM system consists of hardware immediately so that the proper Before the start of the seismic survey, (i.e., hydrophones) and software. The mitigation measure may be the crew will be given additional ‘‘wet end’’ of the system consists of a implemented. instruction on how to do so. towed hydrophone array that is The Langseth is a suitable platform for connected to the vessel by a tow cable. The information regarding the call marine mammal observations. When The tow cable is 250 m (820.2 ft) long, will be entered into a database. Data stationed on the observation platform, and the hydrophones are fitted in the entry will include an acoustic encounter the eye level will be approximately 21.5 last 10 m (32.8 ft) of cable. A depth identification number, whether it was m (70.5 ft) above sea level, and the gauge is attached to the free end of the linked with a visual sighting, date, time PSVO will have a good view around the cable, and the cable is typically towed when first and last heard and whenever entire vessel. During daytime, the at depths less than 20 m (65.6 ft). The any additional information was PSVOs will scan the area around the array will be deployed from a winch recorded, position and water depth vessel systematically with reticle located on the back deck. A deck cable when first detected, bearing if binoculars (e.g., 7 x 50 Fujinon), Big-eye will connect from the winch to the main determinable, species or species group binoculars (25 x 150), and with the computer laboratory where the acoustic (e.g., unidentified dolphin, sperm naked eye. Laser range-finding station, signal conditioning, and whale), types and nature of sounds binoculars (Leica LRF 1200 laser processing system will be located. The heard (e.g., clicks, continuous, sporadic, rangefinder or equivalent) will be acoustic signals received by the whistles, creaks, burst pulses, strength available to assist with distance hydrophones are amplified, digitized, of signal, etc.), and any other notable estimation. Those are useful in training and then processed by the Pamguard information. The acoustic detection can observers to estimate distances visually, software. The system can detect marine also be recorded for further analysis. but are generally not useful in mammal vocalizations at frequencies up PSO Data and Documentation measuring distances to animals directly; to 250 kHz. that is done primarily with the reticles One PSAO, an expert bioacoustician PSVOs will record data to estimate in the binoculars. in addition to the four PSVOs, with the numbers of marine mammals When marine mammals are detected primary responsibility for PAM, will be exposed to various received sound within or about to enter the designated onboard the Langseth. The towed levels and to document apparent exclusion zone, the airguns will hydrophones will ideally be monitored disturbance reactions or lack thereof. immediately be powered-down or shut- by the PSAO 24 hours per day while at Data will be used to estimate numbers down if necessary. The PSVO(s) will the proposed seismic survey area during of animals potentially ‘taken’ by continue to maintain watch to airgun operations, and during most harassment (as defined in the MMPA). determine when the animal(s) are periods when the Langseth is underway They will also provide information outside the exclusion zone by visual while the airguns are not operating. needed to order a power-down or shut- confirmation. Airgun operations will However, PAM may not be possible if down of the airguns when a marine not resume until the animal is damage occurs to the array or back-up mammal is within or near the exclusion confirmed to have left the exclusion systems during operations. The primary zone. Observations will also be made zone, or if not observed after 15 minutes PAM streamer on the Langseth is a during daytime periods when the for species with shorter dive durations digital hydrophone streamer. Should the Langseth is underway without seismic (small odontocetes and pinnipeds) or 30 digital streamer fail, back-up systems operations. There will also be minutes for species with longer dive should include an analog spare streamer opportunities to collect baseline

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biological data during the transits to, other intervals as required by NMFS, that could result in ‘‘takes’’ of marine from, and through the study area. USFWS, the U.S. Army Corps of mammals by harassment or in other When a sighting is made, the Engineers, California State Lands ways. After the report is considered following information about the sighting Commission, California Coastal final, it will be publicly available on the will be recorded: Commission, or PG&E, summarizing the NMFS and NSF Web sites at: http:// 1. Species, group size, age/size/sex recent results of the monitoring www.nmfs.noaa.gov/pr/permits/ categories (if determinable), behavior program. The reports will summarize incidental.htm#iha and http:// when first sighted and after initial the species and numbers of marine www.nsf.gov/geo/oce/encomp/index.jsp. sighting, heading (if consistent), bearing mammals sighted. These reports will be Estimated Take by Incidental and distance from seismic vessel, provided to NMFS as well as PG&E, L– Harassment sighting cue, apparent reaction to the DEO, and NSF. airguns or vessel (e.g., none, avoidance, In addition to the vessel-based Except with respect to certain approach, paralleling, etc.), and monitoring, L–DEO and PG&E will activities not pertinent here, the MMPA behavioral pace. submit reports outlining the monitoring defines ‘‘harassment’’ as: Any act of 2. Time, location, heading, speed, results of the aerial survey for large pursuit, torment, or annoyance which (i) activity of the vessel, sea state, cetaceans, the aerial survey for harbor has the potential to injure a marine visibility, and sun glare. porpoises and other small cetaceans, mammal or marine mammal stock in the The data listed under (2) will also be and any marine mammals stranding wild [Level A harassment]; or (ii) has recorded at the start and end of each response activities. the potential to disturb a marine observation watch, and during a watch L–DEO and PG&E will submit a mammal or marine mammal stock in the whenever there is a change in one or comprehensive report to NMFS and wild by causing disruption of behavioral more of the variables. NSF within 90 days after the end of the patterns, including, but not limited to, All observations and ramp-ups, cruise. The report will describe the migration, breathing, nursing, breeding, power-downs or shut-downs will be operations that were conducted and feeding, or sheltering [Level B recorded in a standardized format. The sightings of marine mammals near the harassment]. PSOs will record this information onto operations. The report will provide full Level B harassment is anticipated and datasheets. During periods between documentation of methods, results, and proposed to be authorized as a result of watches and periods when operations interpretation pertaining to all the proposed marine seismic survey off are suspended, those data will be monitoring. The 90-day report will the central coast of California. Acoustic entered into a laptop computer running summarize the dates and locations of stimuli (i.e., increased underwater a custom computer database. The seismic operations, and all marine sound) generated during the operation accuracy of the data entry will be mammal sightings (i.e., dates, times, of the seismic airgun array are expected verified by computerized data validity locations, activities, associated seismic to result in the behavioral disturbance of checks as the data are entered and by survey activities, and associated PAM some marine mammals, and potentially subsequent manual checking of the detections). The report will minimally the temporary displacement of some of the Morro Bay stock of harbor porpoises database. These procedures will allow include: initial summaries of data to be prepared • Summaries of monitoring effort— from their preferred, or core, habitat during and shortly after the field total hours, total distances, and area. There is no evidence that the program, and will facilitate transfer of distribution of marine mammals planned activities could result in injury, the data to statistical, graphical, and through the study period accounting for serious injury, or mortality for which L– other programs for further processing sea state and other factors affecting DEO and PG&E seeks the IHA. The and archiving. Quality control of the visibility and detectability of marine required mitigation and monitoring data will be facilitated by (a) The start- mammals; measures will minimize any potential of survey training session; (b) • Analyses of the effects of various risk for injury, serious injury, or subsequent supervision by the onboard factors influencing detectability of mortality. lead PSO; and (c) ongoing data checks marine mammals including sea state, The following sections describe L– during the seismic survey. number of PSOs, and fog/glare; DEO and PG&E’s methods to estimate Results from the vessel-based • Species composition, occurrence, take by incidental harassment and observations will provide: and distribution of marine mammals present the applicant’s estimates of the 1. The basis for real-time mitigation sightings including date, water depth, numbers of marine mammals that could (airgun power-down or shut-down). numbers, age/size/gender, and group be affected during the proposed seismic 2. Information needed to estimate the sizes; and analyses of the effects of program along the central coast of number of marine mammals potentially seismic operations; California. The estimates are based on a taken by harassment, which must be • Sighting rates of marine mammals consideration of the number of marine reported to NMFS. during periods with and without airgun mammals that could be harassed by 3. Data on the occurrence, activities (and other variables that could seismic operations with the 18 airgun distribution, and activities of marine affect detectability); array to be used. The size of the mammals in the area where the seismic • Initial sighting distances versus proposed 3D seismic survey area in study is conducted. airgun activity state; 2012 is approximately 740.52 km2 4. Information to compare the • Closes point of approach versus (285.9 nmi2) and located adjacent to the distance and distribution of marine airgun activity state; coastline and extending from 11 to 21 mammals relative to the source vessel at • Observed behaviors and types of km (5.9 to 11.3 nmi) offshore, as times with and without seismic activity. movements versus airgun activity state; depicted in Figure 2 of the IHA 5. Data on the behavior and • Numbers of sightings/individuals application. movement patterns of marine mammals seen versus airgun activity state; and L–DEO and PG&E assume that, during seen at times with and without seismic • Distribution around the source simultaneous operations of the airgun activity. vessel versus airgun activity state. array and the other sources, any marine Throughout the seismic survey, PSOs The report will also include estimates mammals close enough to be affected by will prepare a report each day or at such of the number and nature of exposures the multibeam echosounder and sub-

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bottom profiler would already be purposes of developing density For Padre Associates, Inc. densities affected by the airguns. However, estimates. Further, all survey data are indicated with an uppercase superscript whether or not the airguns are operating subject to detectability and availability ‘‘B’’ (B), data were acquired between simultaneously with the other sources, biases. Detectability bias is associated October, 2010 and February, 2011 marine mammals are expected to exhibit with diminishing sightability of marine during seismic surveys. The data used no more than short-term and mammals with increasing lateral to acquire the densities were collected inconsequential responses to the distances from the survey trackline from daily monitoring logs where multibeam echosounder and sub-bottom (ƒ[0]). Availability bias is due to the fact species were observed and recorded profiler given their characteristics (e.g., that not all marine mammals are at the when navigating survey tracklines and narrow, downward-directed beam) and surface at all times, and, as such, there transiting to and from the survey area. other considerations described is less than 100 percent probability of The density was calculated based on a previously. Such reactions are not detecting animals along the survey 305 m (1,000 ft) visibility in each ƒ considered to constitute ‘‘taking’’ trackline (0), and it is measured by direction of the observer/vessel by the (NMFS, 2001). Therefore, L–DEO and g(0). distance of tracklines or transits PG&E provide no additional allowance Within Table 3 (Tables 7 and 8 of the conducted during the survey period. for animals that could be affected by IHA application), marine mammal These density data were used as sound sources other than airguns. densities were calculated based on Density estimates are based on the supplemental information based on the available density or survey data. PG&E lack of density models of species within best available peer-reviewed scientific and the NMFS Office of Protected data, specifically, the NMFS online the SERDP. Resources worked with the NMFS marine mammal database (Barlow et al., For harbor porpoise density data Southwest Fisheries Science Center 2009). These data are supplemented c (SWFSC) and Southwest Regional Office indicated with superscripted ‘‘c’’ ( ), with non-published survey data to identify the preferred method of NMFS SWFSC staff worked with NMFS obtained from the proposed project area acquiring density data was the SERDP Office of Protected Resources to during an earlier low-energy 3D survey sponsored by the Department of Defense construct fine-scale density estimates (Padre Associates, Inc., 2011b). The low- (DOD) with mapping provided by OBIS– based on aerial surveys of the central energy 3D seismic surveys were SEAMAP. Within the mapping program coast conducted between 2002 and conducted on 76 days between October density data are available by strata or 2011. NMFS SWFSC provided latitude 24, 2010 and February 5, 2011. The coordinates of density changes for the principal source of density information density models (indicated with a superscripted lower case ‘‘a’’ (a). harbor porpoise were inserted into GIS is the Strategic Environmental Research to delineate the associated polygon and Development Program (SERDP)– For density models, the Geographic Information Systems (GIS) shapefile of within the project survey boxes. The SDSS Marine Animal Model Mapper on corrected density data were extracted the Ocean Biogeographic Information the proposed project area (tracklines [referred to as ‘‘race track’’ in the IHA for the project site within the 160 dB System Spatial Ecological Analysis of ensonified areas of Survey Boxes 2 and Megavertebrate Populations (OBIS– application] with the 160 dB buffer 4. The density data are variable based SEAMAP) Web site (Barlow et al., zone) was uploaded into the program on the location within the project site, 2009), which was recommended by and densities for the ensonified area with the San Luis Bay having the NMFS staff at the Southwest Regional were calculated using available NMFS Office. A second density dataset was data within the uploaded project area. highest density. Because of the variable prepared by Padre Associates, Inc. Density data calculated using this densities used to extract the estimated (2011b) based on marine mammal method was indicated with a number of individuals within the sightings recorded during a seismic superscript ‘‘1’’ (1). All densities project site, the densities within Tables survey conducted between October, calculated using this model were from 7 and 8 of the IHA application are broad 2010 and February, 2011. The Padre summer data (defined as July to categorical densities for their Associates, Inc. dataset is from the December). For density data indicated corresponding survey box. Additionally, southern portion of the proposed survey with a superscript ‘‘2’’ (2), stratum the offshore portion (greater than 92 m area, and contained densities for marine density data was used within the same [301.8 ft]) of the harbor porpoise density mammal species for which data were SERDP marine mammal mapper; is a stock-wide density used in Caretta sparse or absent from the NOAA however, a different layer of the et al. (2009) and also within the data database. mapping program were utilized. The provided by the NMFS SWFSC. An The Padre Associates, Inc. dataset was stratum layer provides limited density additional figure illustrating the fine compiled from a series of daily marine data for the region the species occurs scale densities used to calculate the take mammal monitoring reports, and the within. This density number within the numbers is available in Appendix B of data were not originally collected for the stratum layer is static for the region. the IHA application.

TABLE 3—ESTIMATED DENSITIES OF MARINE MAMMAL SPECIES IN THE PROPOSED SURVEY OFF THE CENTRAL COAST OF CALIFORNIA, NOVEMBER TO DECEMBER, 2012

NOAA density a (#/km2) Padre Associates, Inc. density b (#/km2) Species Box 2 minimum Box 4 minimum maximum mean maximum mean Transit Transect

Mysticetes: North Pacific right whale 2 ...... 0.000061 ...... 0.000061 ...... NA ...... NA. 0.000061 ...... 0.000061 0.000061 ...... 0.000061

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TABLE 3—ESTIMATED DENSITIES OF MARINE MAMMAL SPECIES IN THE PROPOSED SURVEY OFF THE CENTRAL COAST OF CALIFORNIA, NOVEMBER TO DECEMBER, 2012—Continued

NOAA density a (#/km2) Padre Associates, Inc. density b (#/km2) Species Box 2 minimum Box 4 minimum maximum mean maximum mean Transit Transect

Gray whale ...... NA ...... NA ...... 0.0154 ...... 0.0211. NA ...... NA NA ...... NA Humpback whale 1 ...... 0.000088 ...... 0.00117 ...... 0.0028 ...... 0.0065. 0.005781 ...... 0.00635 0.002349 ...... 0.003243 Minke whale 2 ...... 0.000276 ...... 0.000276 ...... 0.0007 ...... 0.0008. 0.000276 ...... 0.000276 0.000276 ...... 0.000276 Sei whale 2 ...... 0.000086 ...... 0.000086 ...... NA ...... NA. 0.000086 ...... 0.000086 0.000086 ...... 0.000086 Fin whale 1 ...... 0.000142 ...... 0.00239 ...... NA ...... NA. 0.01083 ...... 0.0113 0.004385 ...... 0.006177 Blue whale 1 ...... 0.0001 ...... 0.001254 ...... NA ...... NA. 0.006603 ...... 0.006777 0.002652 ...... 0.003579 Odontocetes: Sperm whale 1 ...... 0.000009 ...... 0.000187 ...... NA ...... NA. 0.000723 ...... 0.000768 0.000297 ...... 0.000436 Kogia spp. (Pygmy and dwarf sperm 0.001083 ...... 0.001083 ...... NA ...... NA. whale) 2. 0.001083 ...... 0.001083 0.001083 ...... 0.001083 Baird’s beaked whale 1 ...... 0.000016 ...... 0.000244 ...... NA ...... NA. 0.001148 ...... 0.001148 0.000467 ...... 0.000638 Small (Mesoplodon and Cuvier’s) 0.000042 ...... 0.000813 ...... NA ...... NA. beaked whale 1c. 0.003347 ...... 0.003422 0.001363 ...... 0.001952 Bottlenose dolphin 2 ...... Coastal 4 ...... Coastal 4 ...... NA ...... NA. 0.361173 ...... 0.361173 0.361173 ...... 0.361173 0.361173 ...... 0.361173 Offshore—Winter Offshore—Winter 0.000616 ...... 0.000616 0.000616 ...... 0.000616 0.000616 ...... 0.000616 Striped dolphin 1 ...... 0.000039 ...... 0.000943 ...... NA ...... 0.0081. 0.0033 ...... 0.003448 0.001379 ...... 0.002075 Short-beaked common dolphin 1 ...... 0.01203 ...... 0.1612 ...... 0.0252 ...... 0.0836. 0.8019 ...... 0.8285 0.3252 ...... 0.4443 Long-beaked common dolphin 2 ...... 0.018004 ...... 0.018004 ...... NA ...... NA. 0.018004 ...... 0.018004 0.018004 ...... 0.018004 Pacific white-sided dolphin 1 ...... 0.001027 ...... 0.01856 ...... NA ...... NA. 0.08342 ...... 0.0896 0.03364 ...... 0.04786 Northern right whale dolphin 1 ...... 0.00066 ...... 0.0112 ...... NA ...... NA. 0.0503 ...... 0.05254 0.02038 ...... 0.02867 Risso’s dolphin 1 ...... 0.000672 ...... 0.007767 ...... 0.0063 ...... 0.2881. 0.04279 ...... 0.04545 0.001721 ...... 0.02316 Killer whale 2 ...... Summer ...... Summer ...... Summer NA ...... Summer NA. 0.000709 0.000709 0.000709 ...... 0.000709 0.000709 ...... 0.000709 Winter ...... Winter ...... Winter NA ...... Winter 0.0016. 0.000246 0.000246 0.000246 0.000246 0.000246 0.000246 Short-finned pilot whale 2 ...... 0.000307 ...... 0.000307 ...... NA ...... NA. 0.000307 ...... 0.000307 0.000307 ...... 0.000307

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TABLE 3—ESTIMATED DENSITIES OF MARINE MAMMAL SPECIES IN THE PROPOSED SURVEY OFF THE CENTRAL COAST OF CALIFORNIA, NOVEMBER TO DECEMBER, 2012—Continued

NOAA density a (#/km2) Padre Associates, Inc. density b (#/km2) Species Box 2 minimum Box 4 minimum maximum mean maximum mean Transit Transect

Harbor porpoise 3 ...... Morro Bay Inshore ..... Morro Bay Inshore ..... Morro Bay Inshore Morro Bay Inshore 0.43 ...... 0.43 0.0259. 0.0016 4.17 ...... 1.42 1.83 ...... 1.22 Morro Bay Offshore ... Morro Bay Offshore ... Morro Bay Offshore Morro Bay Offshore 0.062 ...... 0.062 NA. NA 0.062 ...... 0.062 0.062 ...... 0.062 Dall’s porpoise 1 ...... 0.000441 ...... 0.008552 ...... NA ...... 0.0081. 0.03504 ...... 0.0396 0.01433 ...... 0.0209 Pinnipeds: California sea lion ...... NA ...... NA ...... NA ...... NA. NA ...... NA NA ...... NA Steller sea lion ...... NA ...... NA ...... NA ...... NA. NA ...... NA 0.00001 ...... 0.00001 Guadalupe fur seal ...... NA ...... NA ...... NA ...... NA. NA ...... NA 0.00001 ...... 0.00001 Northern fur seal ...... NA ...... NA ...... NA ...... NA. NA ...... NA 0.00001 ...... 0.00001 Northern elephant seal ...... NA ...... NA ...... NA ...... NA. NA ...... NA 0.00001 ...... 0.00001 Pacific harbor seal ...... NA ...... NA ...... 0.0166 ...... 0.0089. NA ...... NA NA ...... NA NA = Not available or not assessed. a Barlow et al. (2009) average density used in calculation. 1 Density data based on density models of survey area in SERDP program. 2 Density data based on stratums within SERDP program. 3 Density data from Caretta et al. (2009). 4 Density data based on stratums within SERDP program with only area ensonified within 1 km from shore calculated. b Padre Associates, Inc. (2011b) (Highest density between transit and track data used). c SERDP Marine Mammal Mapper categorizes small beaked whales as both Mesoplodon and Ziphiidae genera; whereas, the NMFS Stock As- sessment Report has Ziphiidae genera whale as their own species assessment and combines only Mesoplodon species together.

The proposed 3D survey area varies (hereafter called the buffer zone). This distances of the greater than or equal to by survey box (see Table 3 or Table 6 results in a maximum total area as 160 dB (rms) radii result in repeated of the IHA application). The anticipated shown in Table 3 (Table 6 and depicted exposure of the same area of water. area ensonified by the sound levels of on Figures 11 to 12 of the IHA Excessive amounts of repeated exposure greater than or equal to 160 dB (rms), application). The approach for probably results in an overestimate of based on the calculations provided by estimating take by Level B harassment the number of animals ‘‘taken’’ by Level Greeneridge Scientific, Inc., is a 6.21 km (described in more detail below) was B harassment. (3.35 nmi) radius extending from each taken because closely spaced survey point of the survey area perimeter tracklines and large cross-track

TABLE 4—SURVEY AREAS AND SURVEY AREAS WITH 160 dB BUFFER ZONE

Survey area with Survey box Survey area 160 dB buffer zone (km2 [nmi2]) (km2 [nmi2])

2 ...... 406.0 (118.4) 1,272.3 (370.9) 4 ...... 334.5 (97.5) 784.5 (228.7)

L–DEO and PG&E estimated the occasions by considering the total mammals. The number of possible number of different individuals that marine area that would be within the exposures (including repeat exposures may be exposed to airgun sounds with 160 dB radius around the operating of the same individuals) can be received levels greater than or equal to airgun array on at least one occasion estimated by considering the total 160 dB re 1 mPa (rms) on one or more and the expected density of marine marine area that would be within the

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160 dB radius around the operating level, which suggests that there would density of (0.00001/km2) was used for airguns, excluding areas of overlap. not necessarily be a large number of low probability for chance encounters. Some individuals may be exposed new animals entering the area once the The estimate of the number of multiple times since the survey seismic survey started. Additionally, individual cetaceans and pinnipeds that tracklines are spaced close together, separate take estimates were calculated could be exposed to seismic sounds however, it is unlikely that a particular for each survey box, and the two survey with received levels greater than or animal would stay in the area during the boxes do overlap over a relatively large equal to 160 dB re 1 mPa (rms) during entire survey. area. This approach for calculating take the proposed survey is 2,329 and 511, The number of different individuals estimates considers the fact that new respectively (2,606 and 639 with 25% potentially exposed to received levels animals could have moved into the area, contingency) (see Table 14 of the IHA greater than or equal to 160 re 1 mPa which means that it also considers the application). That total (with 25% (rms) was calculated by multiplying: fact that new animals could have moved contingency) includes 83 baleen whales, (1) The expected species density (in into the area in the time between the with estimates of 55 gray, 7 humpback, number/km2), times end of Survey Box 4 seismic operations (2) The anticipated area (in Survey and the beginning of Survey Box 2 13 fin, and 8 blue whales, which should Boxes 2 and 4 separately) to be seismic operations. represent 0.3, 0.3, 0.4, and 0.3% of the ensonified to that level during airgun L–DEO and PG&E’s estimates of affected populations or stocks, operations excluding overlap. exposures to various sound levels respectively. In addition, 3 dwarf/ Areas of overlap within each survey assume that the proposed surveys will pygmy sperm whales, 5 killer whales, box (because of lines being closer be carried out in full (i.e., approximately and 6 beaked whales, (including together than the 160 dB radius) were 10 and 14 days of seismic airgun Cuvier’s, Baird’s, and Mesoplodon combined into one ensonified area operations for Survey Box 4 and Survey beaked whales) could be taken by Level estimate and included only once when Box 2, respectively), however, the B harassment during the proposed estimating the number of individuals ensonified areas calculated using the seismic survey. Most of the cetaceans exposed. However, the full area of each planned number of line-kilometers have potentially taken by Level B harassment of the two survey boxes were separately been increased by 25% to accommodate are delphinids; short-beaked common, used in the take calculations as lines that may need to be repeated, long-beaked common, Pacific white- described below. equipment testing, account for repeat sided, northern right whale, bottlenose, Applying the approach described exposure, etc. As is typical during and Risso’s dolphins, and harbor and above, approximately 1,237 km2 (360.7 offshore ship surveys, inclement Dall’s porpoises are estimated to be the nmi2) for Survey Box 2 and 784.5 km2 weather and equipment malfunctions most common species in the area, with (228.7 nmi2) for Survey Box 4 would be are likely to cause delays and may limit estimates of 953, 47, 100, 60, 40, 50, within the 160 dB isopleth on one or the number of useful line-kilometers of 1,513, and 43, which would represent more occasions during the survey. The seismic operations that can be 0.2, 0.2, 0.4 0.7, 0.1/9.6, 0.8, 74, 0.1% take calculations within a given survey undertaken. of the regional populations or stocks, box do not explicitly add animals to Table 5 (Table 7 and 8 of the IHA respectively. The most common account for the fact that new animals are application) shows the estimates of the pinniped species estimated to be not accounted for in the initial density number of different individual marine potentially taken by Level B harassment snapshot and animals could also mammals anticipated to be exposed to are California sea lions and Pacific approach and enter the area ensonified greater than or equal to 160 dB re 1 mPa harbor seals, with estimates of 597 and above 160 dB; however, studies suggest (rms) during the seismic survey. For the 34, which would represent 0.2 and 0.1% that many marine mammals will avoid species that a density was not reported of the affected populations or stocks, exposing themselves to sounds at this (Barlow et al., 2009), a minimum respectively.

TABLE 5—ESTIMATES OF THE POSSIBLE NUMBERS OF MARINE MAMMALS EXPOSED TO SOUND LEVELS ≥160 dB DURING L–DEO AND PG&E’S PROPOSED SEISMIC SURVEYS OFF THE CENTRAL COAST OF CALIFORNIA DURING NOVEMBER TO DECEMBER, 2012

Requested take authoriza- tion [i.e., estimated number Requested take authoriza- Approximate percentage of of individuals exposed to tion with additional 25% for best population estimate of Species sound levels ≥ 160 dB re 1 Box 2 Box 4 (total for stock (with additional μPa] for Box 2 Box 4 (total Boxes 2 and 4) 25%) 1 for Boxes 2 and 4)

Mysticetes: North Pacific right whale ...... 0 ...... 0 ...... 0 (0). 0 ...... 0. (0) ...... (0). Gray whale ...... 27 ...... 0.2 (0.3). 17 ...... 34 (44) ...... 21. (55). Humpback whale ...... 3 ...... 4 ...... 0.3 (0.3). 3 ...... 3. (6) ...... (7). Minke whale ...... 0 ...... 0 ...... 0 (0.0). 0 ...... 0. (0) ...... (0).

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TABLE 5—ESTIMATES OF THE POSSIBLE NUMBERS OF MARINE MAMMALS EXPOSED TO SOUND LEVELS ≥160 dB DURING L–DEO AND PG&E’S PROPOSED SEISMIC SURVEYS OFF THE CENTRAL COAST OF CALIFORNIA DURING NOVEMBER TO DECEMBER, 2012—Continued

Requested take authoriza- tion [i.e., estimated number Requested take authoriza- Approximate percentage of of individuals exposed to tion with additional 25% for best population estimate of Species sound levels ≥ 160 dB re 1 Box 2 Box 4 (total for stock (with additional μPa] for Box 2 Box 4 (total Boxes 2 and 4) 25%) 1 for Boxes 2 and 4)

Fin whale ...... 6 ...... 7 ...... 0.4 (0.4). 5 ...... 6. (11) ...... (13). Sei whale ...... 0 ...... 0 ...... 0 (0). 0 ...... 0. (0) ...... (0). Blue whale ...... 3 ...... 4 ...... 0.2 (0.3). 3 ...... 4. (6) ...... (8). Odontocetes: Sperm whale ...... 0 ...... 0 ...... 0 (0). 0 ...... 0. (0) ...... (0). Kogia spp. (Pygmy and dwarf sperm whale) ...... 1 ...... 2 ...... 0.3 (0.5)—Pygmy sperm 1 ...... 1. whale (2) ...... (3). NA—Dwarf sperm whale. Baird’s beaked whale ...... 1 ...... 1 ...... 0.2 (0.2). 1 ...... 1. (2) ...... (2). Small beaked whale (Cuvier’s and Mesoplodon 2 ...... 2 ...... 0.2 (0.2)—Cuvier’s beaked beaked whale). 2 ...... 2. whale (4) ...... (4). 0.3 (0.3)—Mesoplodon beaked whale. Bottlenose dolphin ...... 14—Coastal ...... 18—Coastal ...... 0.1 (0.1)—CA/OR/WA 1—Offshore Winter ...... 1 Offshore Winter stock 17—Coastal ...... 21—Coastal 9.6 (12.1)—California 0—Offshore Winter ...... 0—Offshore Winter Coastal stock. (31—Coastal) ...... (39—Coastal) (1—Offshore Winter) ...... (1—Offshore Winter) Striped dolphin ...... 2 ...... 2 ...... <0.1 (<0.1). 2 ...... 2. (4) ...... (4). Short-beaked common dolphin ...... 414 ...... 517 ...... 0.2 (0.2). 349 ...... 436. (763) ...... (953). Long-beaked common dolphin ...... 23 ...... 29 ...... 0.1 (0.2). 14 ...... 18. (37) ...... (47). Pacific white-sided dolphin ...... 43 ...... 53 ...... 0.3 (0.4). 38 ...... 47. (81) ...... (100). Northern right whale dolphin ...... 26 ...... 32 ...... 0.6 (0.7). 22 ...... 28. (48) ...... (60). Risso’s dolphin ...... 22 ...... 27 ...... <0.6 (0.8). 18 ...... 23. (40) ...... (50). Killer whale ...... 2 ...... 1.2 (2.1)—Eastern North 1 ...... Pacific Offshore stock. (3) ...... 0.9 (1.5)—Eastern North 3 Pacific Transient stock. 2. 0.9 (1.4)—West Coast (5). Transient stock.. Short-finned pilot whale ...... 0 ...... 0 ...... 0.0 (0.0). 0 ...... 0. (0) ...... (0). Harbor porpoise ...... 895 ...... 1,119 ...... 59.2 (74). 315 ...... 394. (1,210) ...... (1,513). Dall’s porpoise ...... 18 ...... 23 ...... 0.1 (0.1). 16 ...... 20. (34) ...... (43). Pinnipeds:

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TABLE 5—ESTIMATES OF THE POSSIBLE NUMBERS OF MARINE MAMMALS EXPOSED TO SOUND LEVELS ≥160 dB DURING L–DEO AND PG&E’S PROPOSED SEISMIC SURVEYS OFF THE CENTRAL COAST OF CALIFORNIA DURING NOVEMBER TO DECEMBER, 2012—Continued

Requested take authoriza- tion [i.e., estimated number Requested take authoriza- Approximate percentage of of individuals exposed to tion with additional 25% for best population estimate of Species sound levels ≥ 160 dB re 1 Box 2 Box 4 (total for stock (with additional μPa] for Box 2 Box 4 (total Boxes 2 and 4) 25%) 1 for Boxes 2 and 4)

California sea lion ...... 295 ...... 369 ...... 0.2 (0.2). 182 ...... 228. (477) ...... (597). Steller sea lion ...... 0 ...... 0 ...... 0 (0). 0 ...... 0. (0) ...... (0). Guadalupe fur seal ...... 0 ...... 0 ...... 0 (0). 0 ...... 0. (0) ...... (0). Northern fur seal ...... 0 ...... 0 ...... 0 (0). 0 ...... 0. (0) ...... (0). Northern elephant seal ...... 0 ...... 0 ...... (0). 0 ...... 0. (0) ...... (0). Pacific harbor seal ...... 21 ...... 26 ...... 0.1 (0.1]). 13 ...... 16. (34) ...... (42). NA = Not available or not assessed. 1 Stock sizes are best populations from NMFS Stock Assessment Reports (see Table 2 in above).

Encouraging and Coordinating negligible impact determination, NMFS avoided through the implementation of Research evaluated factors such as: the power-down and shut-down L–DEO and PG&E will cooperate with (1) The number of anticipated measures; external entities (i.e., agencies, injuries, serious injuries, or mortalities; (3) The Morro Bay Stock of Harbor universities, non-governmental (2) The number, nature, and intensity, Porpoise Monitoring Plan and Stranding organizations) to manage, understand, and duration of Level B harassment (all Response Plan will provide real-time and communicate information about relatively limited); and data (via aerial surveys and beach environmental impacts related to the (3) The context in which the takes monitors) allowing for the early seismic activities provided an occur (i.e., impacts to areas of detection of marine mammal (and acceptable methodology and business significance, impacts to local especially harbor porpoise) behaviors relationship can be agreed upon. PG&E populations, and cumulative impacts that may indicate an increased potential is currently working with a number of when taking into account successive/ for stranding. This information will be agencies and groups to implement contemporaneous actions when added used to modify, in real-time, any aspect monitoring programs to address to baseline data); of the activity that could contribute to potential short-term and long-term (4) The status of stock or species of a marine mammal stranding (e.g., effects on marine resources within the marine mammals (i.e., depleted, not suspension of seismic airgun project area. These study programs depleted, decreasing, increasing, stable, operations) and the additional include: impact relative to the size of the evaluation of the situation that will • Monitoring activities associated population); minimize the likelihood of injury or with the California Department of Fish (5) Impacts on habitat affecting rates death resulting from the proposed and Game Scientific Collection Permit of recruitment/survival; and activity; for Point Buchon Marine Protected (6) The effectiveness of monitoring (4) The Morro Bay stock of Harbor Area; and mitigation measures. Porpoise Monitoring Plan will also use • Nature Conservancy Remotely As described above and based on the a combination of aerial and acoustic Operated Vehicle (ROV) Monitoring following factors, the specified activities data to detect whether moderate to large Program; associated with the marine seismic numbers of harbor porpoises have been • California Collaborative Fisheries survey are not likely to cause PTS, or displaced from their core habitat which Research Program; other non-auditory injury, serious could result in serious energetic impacts injury, or death. The factors include: to individuals if it continued longer Negligible Impact Determination (1) The likelihood that, given than a short time. This information will NMFS has defined ‘‘negligible sufficient notice through relatively slow be used to modify, in real-time, any impact’’ in 50 CFR 216.103 as ‘‘* * * an ship speed, marine mammals are aspect of the activity (e.g., suspension of impact resulting from the specified expected to move away from a noise seismic airgun operations) that could activity that cannot be reasonably source that is annoying prior to its result in impacts of a more serious expected to, and is not reasonably likely becoming potentially injurious; nature (e.g., mortality); to, adversely affect the species or stock (2) The potential for temporary or No injuries, serious injuries, or through effects on annual rates of permanent hearing impairment is mortalities are anticipated to occur as a recruitment or survival.’’ In making a relatively low and would likely be result of the L–DEO and PG&E’s

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planned marine seismic surveys, and reduced the anticipated energetic the monitoring and mitigation is none are proposed to be authorized by impacts within a given year by designed such that if serious impacts of NMFS. Table 5 of this document spreading them over two years. Further, a nature expected to have adverse outlines the number of requested Level the required monitoring plans will effects on reproduction or survival were B harassment takes that are anticipated allow us to assess the degree to which, detected and thought to be occurring to as a result of these activities. Due to the and in part the amount of time, harbor a significant number of individuals, the nature, degree, and context of Level B porpoises may be displaced from their second portion of the survey would (behavioral) harassment anticipated and core habitat (and potentially crowded proceed. Additionally, the seismic described (see ‘‘Potential Effects on into sub-optimal habitat and adjust, in survey will be increasing sound levels Marine Mammals’’ section above) in this real time L–DEO and PG&E’s activity to in the marine environment in a notice, the activity is not expected to minimize the likelihood of population relatively small area surrounding the impact rates of annual recruitment or level effects. Silent periods (i.e., no vessel (compared to the range of the survival for any affected species or active use of airguns) between animals), which is constantly travelling stock, particularly given the NMFS and conducting seismic operations for over distances, and some animals may the applicant’s proposal to implement a Survey Box 4 and Survey Box 2 should only be exposed to and harassed by rigorous mitigation, monitoring, and allow any displaced animals to return to sound for shorter less than day. stranding response plans to minimize optimal habitat for foraging and feeding Of the 36 marine mammal species impacts to the Morro Bay stock of that are necessary for reproduction, under NMFS jurisdiction that are harbor porpoise. nursing, and survivorship; and the known to or likely to occur in the study The proposed seismic operations will required monitoring will allow NMFS to area, eight are listed as threatened or occur throughout a large portion of the detect whether or not this happens and endangered under the ESA: North range of the Morro Bay stock of harbor make a decision about whether PG&E Pacific right, humpback, sei, fin, blue, porpoises (i.e., Point Sur to Point may conduct the second survey (i.e., and sperm whales as well as Steller sea Conception, California), and cover much Survey Box 2) this year. lions and Guadalupe fur seals. These of the core range and optimal habitat for species are also considered depleted For the other marine mammal species this stock for the duration of the seismic under the MMPA. Of these ESA-listed that may occur within the proposed survey. Sighting rates outside of the species, incidental take has been action area, there are no known operational area are much lower, requested to be authorized for designated or important feeding and/or indicating sub-optimal habitat. Studies humpback, fin, blue, and sperm whales. have shown that harbor porpoises are reproductive areas. The gray whale, There is generally insufficient data to sensitive to underwater sound and will which has an annual migration route determine population trends for the move long distances away from a loud along the coastline, has the potential to other depleted species in the study area. sound source; and the Morro Bay stock occur in the action area during the To protect these animals (and other may be forced to move to sub-optimal proposed seismic survey. The marine mammals in the study area), L– habitat at the ends of (North or South), southward migration along the West DEO and PG&E must cease or reduce or outside their normal range for days to Coast of North America from summer airgun operations if animals enter weeks, which may affect foraging feeding areas in the north generally designated zones. No injury, serious success which could in turn have occurs from November/December injury, or mortality is expected to occur energetic impacts that effect through February, while the northward and due to the nature, degree, and reproduction or survival. This is a migration from winter breeding areas in context of the Level B harassment coastal species that is primarily found the south generally occurs from mid- anticipated, the activity is not expected in shallow water within the February through May (with a peak in to impact rates of recruitment or approximate 100 m (328 ft) isobath and March). During the southward survival. does not move offshore as this is not migration, animals do not approach as As mentioned previously, NMFS suitable habitat, and the seismic airgun close to the coastline and the area of the estimates that 25 species of marine operations will ensonify a large area that seismic surveys than they would during mammals under its jurisdiction could be reaches from land to offshore past where the northward migration (especially potentially affected by Level B harbor porpoises are typically found. cows and calves). The proposed end of harassment over the course of the IHA. This small-bodied species has a high the seismic survey is designed to The population estimates for the marine metabolic rate (Spitz et al., 2010) coincide with the approximate start of mammal species that may be taken by requiring regular caloric intake to the peak of the annual southward gray Level B harassment were provided in maintain fitness and health; therefore, whale migration (December 15, 2012), Table 5 of this document. there is a potential for adverse health therefore most of the animals will start NMFS’s practice has been to apply the effects if an animal were forced into an traveling through after the seismic 160 dB re 1 mPa (rms) received level area offering sub-optimal habitat for an operations have concluded. Many threshold for underwater impulse sound extended period of time. animals perform vital functions, such as levels to determine whether take by The November to December, 2012, feeding, resting, traveling, and Level B harassment occurs. Southall et timeframe of the seismic operations will socializing, on a diel cycle (i.e., 24 hr al. (2007) provide a severity scale for avoid the peak of their breeding season cycle). Behavioral reactions to noise ranking observed behavioral responses and after the first few months that are exposure (such as disruption of critical of both free-ranging marine mammals critical to nursing mothers and life functions, displacement, or and laboratory subjects to various types dependent calves. The phased avoidance of important habitat) are of anthropogenic sound (see Table 4 in approach, as suggested by NMFS and more likely to be significant if they last Southall et al. [2007]). agreed to by the applicant, of more than one diel cycle or recur on NMFS has preliminarily determined, conducting seismic operations within subsequent days (Southall et al., 2007). provided that the aforementioned the survey boxes (i.e., Survey Box 4 While seismic operations are mitigation and monitoring measures are first, Survey Box 2 second in 2012) over anticipated to occur on consecutive implemented, that for species other than multiple years (i.e., Survey Box 1 days, they are broken into two sections the Morro Bay stock of harbor porpoise, planned for 2013) has significantly of approximately 10 and 14 days, and the impact of conducting a marine

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seismic survey off the central coast of Endangered Species Act Marine Geophysical Surveys by the R/ California, November to December, Of the species of marine mammals V Marcus G. Langseth for the Central 2012, may result, at worst, in a that may occur in the proposed survey Coastal California Seismic Imaging modification in behavior and/or low- area, several are listed as endangered Project,’’ prepared by Padre Associates, level physiological effects (Level B under the ESA, including the North Inc. on behalf of NSF, L–DEO, and harassment) of certain species of marine Pacific right, humpback, sei, fin, blue, PG&E. The EA analyzes the direct, mammals. and sperm whales. Two pinniped indirect, and cumulative environmental While behavioral modifications, species, the Guadalupe fur seal and impacts of the proposed specified including temporarily vacating the area eastern stock of Steller sea lion are activities on marine mammals including during the operation of the airgun(s), listed as threatened under the ESA. L– those listed as threatened or endangered may be made by these species to avoid DEO and PG&E did not request take of under the ESA. Prior to making a final the resultant acoustic disturbance, the endangered North Pacific right whales decision on the IHA application, NMFS availability of alternate areas within due to the low likelihood of will either prepare an independent EA, these areas for species other than the encountering this species during the or, after review and evaluation of the Morro Bay stock of harbor porpoises and cruise. Under section 7 of the ESA, NSF NSF EA for consistency with the the short and sporadic duration of the has initiated formal consultation with regulations published by the Council of research activities, have led NMFS to the NMFS, Office of Protected Environmental Quality (CEQ) and preliminary determine that the taking by Resources, Endangered Species Act NOAA Administrative Order 216–6, Level B harassment from the specified Interagency Cooperation Division, on Environmental Review Procedures for activity will have a negligible impact on this proposed seismic survey. NMFS’s Implementing the National the affected species in the specified Office of Protected Resources, Permits Environmental Policy Act, adopt the geographic region. Although NMFS and Conservation Division, has initiated NSF EA and make a decision of whether anticipates the potential for more formal consultation under section 7 of or not to issue a Finding of No serious impacts to harbor porpoises, as the ESA with NMFS’s Office of Significant Impact (FONSI). described above, NMFS believes that the Protected Resources, Endangered Proposed Authorization reduced length of the seismic survey Species Act Interagency Cooperation (accomplished through the splitting of Division, to obtain a Biological Opinion NMFS proposes to issue an IHA to the originally planned survey over a two evaluating the effects of issuing the IHA PG&E for conducting a marine seismic year period), the requirement to on threatened and endangered marine survey off the central coast of California, implement mitigation measures (e.g., mammals and, if appropriate, provided the previously mentioned shut-down of seismic operations), and authorizing incidental take. NMFS will mitigation, monitoring, and reporting the inclusion of the comprehensive conclude formal section 7 consultation requirements are incorporated. The monitoring and stranding response prior to making a determination on duration of the IHA would not exceed plans, will reduce the amount and whether or not to issue the IHA. If the one year from the date of its issuance. IHA is issued, NSF and L–DEO and severity of the harassment from the Information Solicited activity to the degree that it will have a PG&E, in addition to the mitigation and negligible impact on the Morro Bay monitoring requirements included in NMFS requests interested persons to stock of harbor porpoise. the IHA, will be required to comply submit comments and information with the Terms and Conditions of the concerning this proposed project and Impact on Availability of Affected Incidental Take Statement NMFS’s preliminary determination of Species or Stock for Taking for corresponding to NMFS’s Biological issuing an IHA (see ADDRESSES). Subsistence Uses Opinion issued to both NSF and Concurrent with the publication of this NMFS’s Office of Protected Resources. notice in the Federal Register, NMFS is Section 101(a)(5)(D) of the MMPA National Environmental Policy Act forwarding copies of this application to also requires NMFS to determine that the Marine Mammal Commission and the authorization will not have an With L–DEO and PG&E’s complete its Committee of Scientific Advisors. unmitigable adverse effect on the application, NSF provided NMFS a draft availability of marine mammal species ‘‘Environmental Assessment Pursuant to Dated: September 13, 2012. or stocks for subsistence use. There are the National Environmental Policy Act, Helen M. Golde, no relevant subsistence uses of marine 42 U.S.C. 4321 et seq. Marine Seismic Acting Director, Office of Protected Resources, mammals in the study area (off the Survey in the Pacific Ocean off Central National Marine Fisheries Service. central coast of California) that California, 2012,’’ which incorporates a [FR Doc. 2012–22999 Filed 9–14–12; 11:15 am] implicate MMPA section 101(a)(5)(D). draft ‘‘Environmental Assessment of BILLING CODE 3510–22–P

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Part IV

The President

Proclamation 8863—National Hispanic Heritage Month, 2012 Proclamation 8864—National Employer Support of the Guard and Reserve Week, 2012 Proclamation 8865—National Farm Safety and Health Week, 2012 Proclamation 8866—National Hispanic-Serving Institutions Week, 2012

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Federal Register Presidential Documents Vol. 77, No. 182

Wednesday, September 19, 2012

Title 3— Proclamation 8863 of September 14, 2012

The President National Hispanic Heritage Month, 2012

By the President of the United States of America

A Proclamation Our Nation’s story would not be possible without generations of Hispanics who have shaped and strengthened the fabric of our Union. They have enriched every aspect of our national identity with traditions that stretch across centuries and reflect the many ancestries that comprise the Hispanic community. This month, we celebrate this rich heritage and reflect on the invaluable contributions Hispanics have made to America. Hispanics have helped shape our communities and expand our country, from laboratories and industry to board rooms and classrooms. They have led movements that pushed our country closer to realizing the democratic ideals of America’s founding documents, and they have served courageously as members of our Armed Forces to defend those ideals at home and abroad. Hispanics also serve as leaders throughout the public sector, working at the highest levels of our government and serving on our highest courts. As we celebrate these hard-fought achievements, we must also remember there is more work to be done to widen the circle of opportunity for the Hispanic community and keep the American dream within reach for all who seek it. From promoting job creation and ensuring Hispanics are represented in the Federal workforce to reshaping our education system to meet the demands of the 21st century, my Administration has built ladders of opportunity. The Department of Homeland Security has lifted the shadow of deportation from talented and patriotic young people who were brought to America as children, giving them a degree of relief so they can continue contributing to our society, and we remain steadfast in our pursuit of meaningful legislative immigration reform. Whether we trace our roots to those who came here on the Mayflower, who settled the Southwest centuries ago, or who joined the American family more recently, we share a common belief in the enduring promise of Amer- ica—the promise that regardless of where we come from or what we look like, each of us can make it if we try. During National Hispanic Heritage Month, as we celebrate the successes of the Hispanic community, let us reaffirm our commitment to extending that promise to all Americans. To honor the achievements of Hispanics in America, the Congress by Public Law 100–402, as amended, has authorized and requested the President to issue annually a proclamation designating September 15 through October 15 as ‘‘National Hispanic Heritage Month.’’ NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, do hereby proclaim September 15 through October 15, 2012, as National Hispanic Heritage Month. I call upon public officials, educators, librarians, and all Americans to observe this month with appropriate cere- monies, activities, and programs.

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IN WITNESS WHEREOF, I have hereunto set my hand this fourteenth day of September, in the year of our Lord two thousand twelve, and of the Independence of the United States of America the two hundred and thirty- seventh.

[FR Doc. 2012–23290 Filed 9–18–12; 11:15 am] Billing code 3295–F2–P

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Proclamation 8864 of September 14, 2012

National Employer Support of the Guard and Reserve Week, 2012

By the President of the United States of America

A Proclamation

During the 236 years since our fundamental rights to life, liberty, and the pursuit of happiness were first put to paper, ordinary citizens have always stood ready to defend them as members of the United States Armed Forces. Today’s service members represent the latest in the long line of heroes who have answered their country’s call, and their exceptional service in a post-9/11 world has secured their place alongside the greatest generations. As essential components of our military, the National Guard and Reserve have helped carry that legacy forward. This week, we honor their service and sacrifice, give thanks to their employers, and reaffirm our commitment to giving our troops, our military families, and our veterans the opportunities and support they have earned. Of the more than 2 million Americans who have gone to war since September 11, 2001, many have been members of the Guard and Reserve. Deployment after deployment, these men and women demonstrate the utmost courage and distinction in the line of duty, putting themselves in harm’s way while knowing all too well the full cost of conflict. Members of the Guard and Reserve also serve here at home, stepping in to keep our communities safe when emergencies or natural disasters threaten our security. For their extraordinary sacrifice, our Nation must serve them as well as they have served us—from ensuring they have our fullest support on the battlefield to helping them find good jobs when they come home. Businesses across America are helping us meet that obligation by hiring and retaining members of the Guard and Reserve, and by creating a culture of military support in the workplace. These employers help keep our service members’ civilian careers moving forward, and many demonstrate their in- valuable support by ensuring our men and women in uniform—and their families—get the flexibility and care they need during deployment. At a time when our Nation has asked so much of our troops and military families, businesses nationwide are helping them meet the challenges they face and defend the country they love. America shares a sacred trust with all those who serve in our Armed Forces, and my Administration remains committed to honoring that trust. As part of First Lady Michelle Obama and Dr. Jill Biden’s Joining Forces initiative, we have striven to expand employment opportunities for veterans and military spouses, and to help workplaces create environments that sup- port military families. Within the past year, 2,000 companies have hired or trained more than 125,000 service members and military spouses through Joining Forces. With tools like our online Veterans Job Bank, we are con- necting veterans to businesses that will put their skills to work. I was proud to sign the VOW to Hire Heroes Act, which created new tax credits to encourage employers to hire veterans. And this July, we announced an overhaul of our transition assistance program that will give departing service members the training they need to find their next job or advance their education and skills.

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During National Employer Support of the Guard and Reserve Week, let us pay tribute to the brave men and women who keep our Nation safe and celebrate their devoted employers, whose support is vital to the strength of our military. NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim September 16 through September 22, 2012, as National Employer Support of the Guard and Reserve Week. I call upon all Americans to join me in expressing our heartfelt thanks to the members of the National Guard and Reserve and their civilian employers. I also call on State and local officials, private organizations, and all military commanders, to observe this week with appropriate cere- monies and activities. IN WITNESS WHEREOF, I have hereunto set my hand this fourteenth day of September, in the year of our Lord two thousand twelve, and of the Independence of the United States of America the two hundred and thirty- seventh.

[FR Doc. 2012–23295 Filed 9–18–12; 11:15 am] Billing code 3295–F2–P

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Proclamation 8865 of September 14, 2012

National Farm Safety and Health Week, 2012

By the President of the United States of America

A Proclamation From producing America’s food, fuel, and fiber to advancing clean, home- grown energy solutions, farmers and ranchers play an essential role in driving our country’s progress. They keep our economy moving forward, and as important stewards of our environment, they help conserve our lands, protect our wildlife, and safeguard our waters for future generations. During National Farm Safety and Health Week, we celebrate agricultural workers’ vital con- tributions and reaffirm our commitment to keeping them safe on the job. Farmers and ranchers put in long hours to accomplish difficult tasks— rain or shine. Many operate heavy machinery, handle livestock, and work under hazardous conditions. Because the demands of the job put agricultural workers at high risk of illness and injury, appropriate training and education are critical. I encourage all farming and ranching families to participate in farm safety and health programs, remain aware of the hazards of their working environment, and carry out safe practices every step of the way— from equipment inspection to handling hazardous materials. Our Nation’s rural communities give America its heartbeat. They are home to producers who rise before the dawn, entrepreneurs who bring ideas to market, and working men and women who build the American dream with their bare hands. This week, we honor their tireless efforts and rededi- cate ourselves to equipping our next generation with the knowledge and training they need to stay safe and healthy. NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim September 16 through September 22, 2012, as National Farm Safety and Health Week. I call upon the agencies, organizations, businesses, and extension services that serve America’s agricultural workers to strengthen their commitment to promoting farm safety and health programs. I also urge Americans to honor our agricul- tural heritage and express appreciation to our farmers, ranchers, and farm- workers for their contributions to our Nation.

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IN WITNESS WHEREOF, I have hereunto set my hand this fourteenth day of September, in the year of our Lord two thousand twelve, and of the Independence of the United States of America the two hundred and thirty- seventh.

[FR Doc. 2012–23299 Filed 9–18–12; 11:15 am] Billing code 3295–F2–P

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Proclamation 8866 of September 14, 2012

National Hispanic-Serving Institutions Week, 2012

By the President of the United States of America

A Proclamation Equipping our children with the knowledge and skills for a lifetime of success is among our Nation’s most important responsibilities. We know that providing the next generation with a world-class education is not just a moral obligation—it is a prerequisite for America’s progress in the 21st century. With Hispanics representing more than 20 percent of students en- rolled in our public elementary and secondary schools, the opportunities in postsecondary education offered to these young people will have a signifi- cant impact on our country’s future. Hispanic-Serving Institutions (HSIs) have helped bring the dream of a college education within reach for many Hispanic students and their families, and this week, we celebrate the critical role these colleges and universities play in American higher education. Across our country, HSIs are giving students access to a quality education and vesting in them a lifelong appreciation for intellectual inquiry. In these halls of higher learning, students are pursuing careers in science and engi- neering, health care, technology, education, and other fields that will bolster our economic prosperity and foster American innovation for decades to come. Graduates of these institutions are already leaders in every part of our national life, and with these institutions graduating such a significant portion of Hispanic students, HSIs are helping move us closer to leading the world in college completion by 2020. As we reflect on the contributions of HSIs, let us renew our commitment to preparing our future leaders—from focusing on early childhood education to combating high school dropout rates—and to supporting those institutions that equip students of all backgrounds to take on tomorrow’s challenges. By honoring this commitment, we uphold that most American idea: that with a quality education, a child of any race, faith, or station in life can overcome any barriers to achieve his or her dreams. NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim September 16 through September 22, 2012, as National Hispanic-Serving Institutions Week. I call on public officials, educators, and all the people of the United States to observe this week with appropriate programs, ceremonies, and activities that acknowledge the tremendous contributions these institutions and their graduates have made to our country.

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IN WITNESS WHEREOF, I have hereunto set my hand this fourteenth day of September, in the year of our Lord two thousand twelve, and of the Independence of the United States of America the two hundred and thirty- seventh.

[FR Doc. 2012–23302 Filed 9–18–12; 11:15 am] Billing code 3295–F2–P

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Reader Aids Federal Register Vol. 77, No. 182 Wednesday, September 19, 2012

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING SEPTEMBER

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 622...... 56571 623...... 56571 Executive orders and proclamations 741–6000 Proclamations: The United States Government Manual 741–6000 630...... 56571 8858...... 56521 722...... 54722 Other Services 8859...... 56523 1024...... 57200 Electronic and on-line services (voice) 741–6020 8860...... 56747 1026 ...... 54722, 54843, 54844, Privacy Act Compilation 741–6064 8861...... 56985 55272, 57318 Public Laws Update Service (numbers, dates, etc.) 741–6043 8862...... 57983 1222...... 54722 TTY for the deaf-and-hard-of-hearing 741–6086 8863...... 58293 8864...... 58295 13 CFR 8865...... 58297 121...... 56755 ELECTRONIC RESEARCH 8866...... 58299 World Wide Web Proposed Rules: Executive Orders: 121...... 55737, 55755 Full text of the daily Federal Register, CFR and other publications 13642...... 54779 is located at: www.fdsys.gov. 13625...... 54783 14 CFR Federal Register information and research tools, including Public 13626...... 56749 25...... 56525, 57481 Inspection List, indexes, and links to GPO Access are located at: Administrative Orders: 39 ...... 54353, 54787, 54791, www.ofr.gov. Memorandum: 54793, 54796, 54798, 54800, E-mail Memorandum of 54803, 55411, 55681, 55684, August 29, 2012...... 57479 55686, 56528, 56755, 56756, FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is Notices: 56760, 56987, 56989, 56991, an open e-mail service that provides subscribers with a digital Notice of September 56993, 57001, 57003, 57005, form of the Federal Register Table of Contents. The digital form 11, 2012 ...... 56517 57007, 57484, 57990, 57994, of the Federal Register Table of Contents includes HTML and Notice of September 57995, 57996, 57998, 58002, PDF links to the full text of each document. 11, 2012 ...... 56519 58003 To join or leave, go to http://listserv.access.gpo.gov and select Presidential 71 ...... 54804, 54805, 55688, Online mailing list archives, FEDREGTOC-L, Join or leave the list Determinations: 55690, 55691, 55692, 56761, (or change settings); then follow the instructions. No. 2012–14 of 56764, 57010 PENS (Public Law Electronic Notification Service) is an e-mail September 10, 97...... 56762 service that notifies subscribers of recently enacted laws. 2012 ...... 56753 121...... 55105 129...... 55105 7 CFR To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 420...... 55108 and select Join or leave the list (or change settings); then follow 205...... 57985 Proposed Rules: the instructions. Proposed Rules: 25...... 57039 FEDREGTOC-L and PENS are mailing lists only. We cannot 210...... 56565 36...... 57524 respond to specific inquiries. 245...... 56565 39 ...... 54846, 54848, 54850, Reference questions. Send questions and comments about the 985...... 57037 54854, 54856, 55159, 55163, Federal Register system to: [email protected] 1710...... 54839 55166, 55768, 55770, 55773, 1717...... 54839 56170, 56172, 56581, 56585, The Federal Register staff cannot interpret specific documents or 1721...... 54839 56794, 57041, 57529, 57531, regulations. 1724...... 54839 57534, 57536, 57539, 57541, Reminders. Effective January 1, 2009, the Reminders, including 1730...... 54839 58052 Rules Going Into Effect and Comments Due Next Week, no longer 71 ...... 54859, 54860, 55776, 10 CFR appear in the Reader Aids section of the Federal Register. This 56174, 56586, 56796 information can be found online at http://www.regulations.gov. 2...... 53769 235...... 53779 CFR Checklist. Effective January 1, 2009, the CFR Checklist no 171...... 53769 15 CFR longer appears in the Federal Register. This information can be Proposed Rules: found online at http://bookstore.gpo.gov/. 26...... 55429 730...... 56766 30...... 56793 732...... 56766 FEDERAL REGISTER PAGES AND DATE, SEPTEMBER 50...... 54839 734...... 56766 736...... 56766 12 CFR 53769–54352...... 4 738...... 56766 54353–54786...... 5 741...... 57990 740...... 56766 54787–55104...... 6 Proposed Rules: 742...... 56766 55105–55410...... 7 34...... 54722 743...... 56766 55411–55680...... 10 164...... 54722 744...... 56766, 58006 55681–56092...... 11 226...... 54722 746...... 56766 56093–56520...... 12 604...... 56571 747...... 56766 56521–56754...... 13 611...... 56571 748...... 56766 56755–56984...... 14 612...... 56571 750...... 56766 56985–57480...... 17 619...... 56571 752...... 56766 57481–57984...... 18 620...... 56571 754...... 56766 57985–58300...... 19 621...... 56571 756...... 56766

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758...... 56766 602...... 56533 201...... 55783 95...... 55715 760...... 56766 Proposed Rules: 202...... 53829 101...... 54421 762...... 56766 Ch. 1 ...... 57055 210...... 55783 Proposed Rules: 764...... 56766 1 ...... 54482, 54862, 57452 90...... 56605 766...... 56766 38 CFR 101...... 54511 768...... 56766 27 CFR 1...... 54367 48 CFR 770...... 56766 4...... 56539 17...... 54368 772...... 56766 9...... 56541, 56544 Ch. 1...... 56738, 56744 774...... 56766 39 CFR 4...... 56739 Proposed Rules: 28 CFR 111...... 56552 6...... 56740 1400...... 53780 8...... 56093 501...... 56554 7...... 56743 15...... 56743 16 CFR 9...... 56093 Proposed Rules: 111...... 53830 19...... 56741 Proposed Rules: 29 CFR 966...... 53830 25...... 56739 301...... 57043 4022...... 56770 3001...... 56176 33...... 56742 1240...... 53781 4044...... 56770 52...... 56739 40 CFR 3052...... 54835 17 CFR Proposed Rules: 1610...... 53814 9...... 56422 Proposed Rules: 4...... 54355 1...... 57950 23...... 55904 52 ...... 53772, 53773, 55417, 30 CFR 55419, 55695, 56124, 56125, 2...... 57950 232...... 54806 3...... 57950 56555, 56775, 57029, 57864, 240...... 56274, 56365 926...... 58022 4...... 57950 58027, 58032 249...... 56365 943...... 58025 5...... 57950 60...... 56422 249b...... 56274 Proposed Rules: 6...... 57950 63...... 55698, 58220 Proposed Rules: 901...... 54490 7...... 57950 230...... 54464 904...... 55430 70...... 54382 8 ...... 54864, 54872, 57950 239...... 54464 917...... 58053 82...... 58035 9...... 54872, 57950 924...... 58056 86...... 54384 10...... 57950 19 CFR 944...... 54491 180 ...... 54402, 56128, 56133, 11...... 57950 4...... 54808 56782, 58045 12...... 54864, 57950 12...... 58020 31 CFR 228...... 55144 13...... 57950 Proposed Rules: 261...... 56558 14...... 57950 21 CFR 10...... 57055 300...... 57495 15...... 54864, 57950 74...... 55693 761...... 54818 16...... 57950 510...... 55413, 56769 32 CFR Proposed Rules: 17...... 54864, 57950 520 ...... 55414, 56769, 58021 233...... 57486 52 ...... 55168, 55171, 56591, 19...... 57950 522...... 55413, 55414 319 ...... 57013, 57015, 57016, 56797, 58058, 58063, 58067, 22...... 57950 556...... 55414 57017 58072, 58076, 58078 23...... 57950 558...... 58021 701...... 56771 82...... 58081 24...... 57950 1316...... 56093 122...... 53834 25...... 57950 Proposed Rules: 33 CFR 141...... 57545 26...... 57950 16...... 57055 100...... 55138 142...... 57545 27...... 57950 73...... 54862 117 ...... 55416, 56115, 57019, 300...... 57546 28...... 57950 172...... 53801 57020, 57022, 57024, 57026, 725...... 54499 30...... 57950 573...... 56175 57492 761...... 54863 31...... 57950 801...... 57055 151...... 55417 32...... 57950 42 CFR 803...... 57055 165 ...... 53769, 54811, 54813, 33...... 57950 806...... 57055 54815, 55139, 55141, 55143, 37...... 56718 36...... 57950 810...... 57055 55693, 56115, 56549, 56772, 88...... 56138 37...... 57950 814...... 57055 57494 412...... 53968 38...... 57950 39...... 57950 820...... 57055 Proposed Rules: 413...... 53968 41...... 57950 821...... 57055 100...... 55436 495...... 53968 42...... 54864, 57950 822...... 57055 110...... 54493 43 CFR 43...... 57950 830...... 57055 161...... 55439 44...... 57950 165 ...... 54495, 55777, 56587, 3000...... 55420 22 CFR 46...... 57950 57063 Proposed Rules: 47...... 57950 22...... 57012 167...... 55781 2...... 56592 42...... 57012 48...... 57950 34 CFR 44 CFR 49...... 54864 23 CFR 50...... 57950 Proposed Rules: 64...... 53775, 57032 Proposed Rules: 51...... 57950 Ch. I ...... 53819 Proposed Rules: 172...... 53802 52...... 54872, 57950 67 ...... 55784, 55785, 55787, 53...... 57950 24 CFR 36 CFR 57066 7...... 56117 49 CFR 5...... 55120 45 CFR 200...... 55120 Proposed Rules: 571...... 54836 207...... 55120 7...... 53826 162...... 54664 Proposed Rules: 232...... 55120 1192...... 56590 170...... 54163 26...... 54952 Proposed Rules: 37 CFR 46 CFR 270...... 55372 1000...... 57544 395...... 57068 1...... 54360 162...... 55417 573...... 55606 25 CFR 41...... 54360 Proposed Rules: 577...... 55606 Proposed Rules: 42...... 56068 10...... 55174 578...... 55175 226...... 55777 Proposed Rules: 579...... 55606 1...... 55028 47 CFR 26 CFR 41...... 55028 1...... 57035, 57504 50 CFR 1 ...... 54808, 56533, 57013 42...... 55028 2...... 55715 17 ...... 54434, 55530, 57648

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